Restrictive Covenants. (a) Neither HHC nor its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world. (b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world. (c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof): (i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange; (ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement); (iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement)); (iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012; (v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates; (vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement); (vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or (viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction. (d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Hagerty, Inc.), Limited Liability Company Agreement (Hagerty, Inc.)
Restrictive Covenants. (a) Neither HHC nor Parent agrees, to the maximum extent not violative of applicable Legal Requirements, that for a period of three (3) years following the Closing Date, Parent shall not, and shall cause its Affiliates shallnot to, directly or indirectly indirectly, solicit for employment or hire any Business Employee who is or has been employed by or through any Affiliate or agentof the Transferred Companies, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultantat, or in at any other capacitytime within one (1) year prior to, during the applicable Restricted Periodtime of the act of solicitation; provided, engage however, that (i) general solicitations, such as through newspaper advertisements, not directed at any Business Employees, will not be deemed to violate this Section 4.15(a); and (ii) this Section 4.15(a) shall not apply to any Business Employee whose employment with Buyer or participate in any of its Affiliates, including the Business anywhere in the worldTransferred Companies, is terminated by Buyer or any of its Affiliates.
(b) Neither ▇▇▇▇▇▇ nor Parent agrees, to the maximum extent not violative of applicable Legal Requirements, that for a period of three (3) years following the Closing Date, Parent shall not, and shall cause its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Periodnot to, engage or participate in the Business in any country (the “Restricted Territory”) in which the Business anywhere in conducts operations as of the world.
Closing Date (c) Notwithstanding anything the “Restricted Business”); provided, however, that nothing herein shall be construed to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ prevent Parent or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring or owning, directly or indirectly, for investment purposes only, less than an aggregate 5% of five percent outstanding equity securities issued by any Person which Person (5%A) of is publicly traded or listed on any class of stock of a Person engagedexchange or automated quotation system and (B) engages, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
in the Restricted Territory; (ii) acquiring, merging or combining with, or investing in, acquiring any Person Entity or business that engagesthat, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging engages in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, in the relevant portion Restricted Territory if less than 10% of the aggregate net revenue derived from the Business in the most recent complete fiscal year of such acquired Person Entity or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B(calculated on a consolidated basis) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates was attributable to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance AgreementRestricted Territory; (iii) conducting any business conducted by them on the date of this Agreement (other than those conducted through the Transferred Companies);
; or (viiiv) developing performing their obligations under this Agreement or selling products that would constitute part of any Ancillary Document. In the event Parent acquires, to the extent permitted by clause (ii) above, an Entity or business that, directly or indirectly, engages in the Restricted Business in the Restricted Territory, Parent will use, or will cause its applicable Affiliate to use, its commercially reasonable efforts to dispose of such portion of such Entity or business to the extent ▇▇▇▇▇▇ or any that it engages in the Restricted Business in the Restricted Territory within twelve (12) months of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) acquisition by Parent or such Affiliate. For a period of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented Closing Date, Parent will, and will cause its Affiliates to, refrain from making, causing to the Board takes actions in good faithbe made, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute any public statement or announcement that disparages the Business or Restricted Business, as applicable. If any director of a majority of the Board determine that the Transferred Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicableany Key Employee; provided, however, that the New Business Proponent foregoing shall continue not prevent the making of any factual statement as required by any Legal Requirement, any valid Order of a court of competent jurisdiction or any Proceeding.
(c) Notwithstanding anything herein to be bound the contrary, the restrictions set forth in Sections 4.15(a) and 4.15(b) will apply only to Parent Guarantor, Parent and Entities “controlled by” (as such term is defined in the definition of the term “Affiliate”) Parent Guarantor or Parent, and shall not apply to any third Person or the Affiliates of such third Person (other than Parent and any Entities “controlled” by Parent Guarantor) that acquires Parent or any Entities “controlled” by Parent Guarantor, whether as a result of a merger, consolidation, other business combination, or acquisition of all or substantially all of his its assets or her business.
(d) Parent acknowledges and agrees that the covenants set forth in this Section 4.15 are reasonable in geographical and temporal scope and in all other respects. The covenants contained in this Section 4.15 relate to matters which are of a special, unique and extraordinary character, and any violation of these covenants would cause substantial and irreparable injury to Buyer, the amount of which would be impossible to estimate or determine and which cannot be adequately compensated. Parent acknowledges that Buyer would not have entered into this Agreement without Parent’s commitment in binding itself and its Affiliates to these covenants. Therefore, in the event of a breach or a threatened breach by Parent or any of its Affiliates of these covenants, Buyer will be entitled to an injunction restraining Parent or such Affiliate from such breach or threatened breach without the necessity of proving the inadequacy as a remedy of money damages; provided, however, that the right to injunctive relief will not be construed as prohibiting Buyer from pursuing or obtaining any other duties and obligations available remedies, whether at law or in equity, for such breach or threatened breach. The injunctive relief provided for in this Section 4.15(d) is in addition to the Company relief provided for in Section 10.9.
(e) If any court determines that any provision (or part thereof) included in this Section 4.15 is unenforceable, such court will have the power to reduce the duration or scope of such provision (or part thereof) or otherwise reform such provision (or part thereof) and, as the case may be, in reduced or reformed form, such provision shall be enforceable; it is the intention of the parties hereto that the foregoing restrictions shall not be terminated, but shall be deemed amended to the extent required to render them valid and its Subsidiariesenforceable, including all duties as a director of PubCo, Member, officer or employee in accordance such amendment to apply only with respect to the terms operation of this AgreementAgreement in the jurisdiction of the court that has made the adjudication.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Rockwood Holdings, Inc.), Stock Purchase Agreement (Huntsman International LLC)
Restrictive Covenants. (a) Neither HHC nor In light of the unique and valuable services it is expected the Employee will render to the Corporation, the Employee's knowledge of the business of the Corporation and proprietary information relating to the business of the Corporation and similar knowledge regarding the Corporation it is expected the Employee will obtain during the course of his employment with the Corporation, and in consideration of this Agreement and the compensation to be received by the Employee hereunder, the Employee agrees that for so long as he is employed by the Corporation and for a period of one year thereafter (the "Covenant Period"), he will not compete, directly or indirectly, with the Corporation or any of its Affiliates shallsubsidiaries now owned or hereafter acquired (for purposes of this Section 9, the "Corporation") or, directly or indirectly (except as permitted by Section 3 hereof), own, manage, operate, control, loan money to, or through any Affiliate participate in the ownership, management, operation or agentcontrol of, whether or be connected with as principal, agent, owner, investor, lender, shareholder, member, partner, manager, a director, officer, employee, partner, consultant, agent, independent contractor or otherwise, or acquiesce in the use of his name in, any other business or organization which competes, directly or indirectly, with the Corporation, in any other capacitygeographical area in which the Corporation is then conducting business or any geographical area in which, during to the applicable Restricted Periodknowledge of the Employee, engage or participate in the Business anywhere in the worldCorporation plans to conduct business within a six (6) month period.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shallDuring the Covenant Period, the Employee will not, directly or indirectly through any principalindirectly, partner, manager, director, officer, contractor, either individually or employee thereof acting on behalf of any other person or entity (i) solicit customers, suppliers, or other business relations of the Corporation for the benefit purpose of ▇▇▇▇▇▇ interfering with or its Affiliatesencouraging them to terminate their relationship with the Corporation, during or (ii) encourage other employees (full-time or part-time) of the applicable Restricted Period, engage or participate in Corporation to terminate their employment with the Restricted Business anywhere in the worldCorporation.
(c) Notwithstanding anything to It is acknowledged and agreed that the contrary in Section 7.4(b), nothing restrictions contained in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.Section
(d) It is the desire and intent of the parties that the provisions of this Section 9 shall be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Section 9 shall be adjudicated to be invalid or unenforceable, such provision shall be deemed amended to delete therefrom the portion thus adjudicated to be invalid or unenforceable. Such deletion shall apply only with respect to the operation of such provisions of this Section 9 in the particular jurisdiction in which such adjudication is made. In addition, if the scope of any restriction contained in this Section 9 is too broad to permit enforcement thereof to its fullest extent, then such restriction shall be enforced to the maximum extent permitted by law, and the Employee hereby consents and agrees that such scope may be judicially modified in any proceeding brought to enforce such restriction.
(e) In the event that, during his of a breach or her or its Restricted Period, any Member other than PubCo, including threatened breach by the equityholders or Affiliates Employee of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect provisions of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”)this Section 9, the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity Corporation shall be deemed entitled to constitute an injunction and such other equitable relief as may be necessary or desirable to enforce the Business or Restricted Business, as applicablerestrictions contained herein. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity Nothing herein contained shall be deemed to not constitute construed as prohibiting the Business Corporation from pursuing any other remedies available for such breach or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his threatened breach or her or its any other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms breach of this Employment Agreement.
Appears in 2 contracts
Sources: Employment Agreement (Marine Shuttle Operations Inc), Employment Agreement (Marine Shuttle Operations Inc)
Restrictive Covenants. As an inducement for Parent, Holdings and Buyer to enter into the Purchase Agreement, for the protection of the goodwill of the Company, and as additional consideration for the consideration to be paid under the Purchase Agreement, the parties hereto agree as follows:
(a) Neither HHC nor Ancillary to the enforceable promises set forth herein, BCP agrees that for a period of two years from and after the Closing Date, BCP shall not, and shall cause its Affiliates shallnot to, directly or indirectly indirectly:
(i) induce or attempt to induce any of the persons set forth on Schedule 1 hereto (each, an “Executive” and, collectively, the “Executives”) or other executive officer of the Company (as of the Closing) to leave the employ of the Company; provided, however, that notwithstanding the promises and covenants within this Section 1(a)(i), BCP shall not be precluded from (A) engaging in general solicitations or advertising for personnel, including advertisements and searches conducted by a headhunter agency, provided that such solicitation, advertising or through searches are not specifically directed at any Affiliate such employees of the Company; and (B) subject to Section 1(a)(ii), hiring any such person who contacts BCP or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, its Affiliates in response to solicitations or in advertising under the foregoing clause (A);
(ii) hire any other capacity, Executive who was employed by the Company at any time during the applicable Restricted Period12 month period prior to the Closing; or
(iii) induce or attempt to induce any Person that is, engage to BCP’s knowledge, a Customer, supplier or participate in material business relation of the Business anywhere in Company (including any Person that, to BCP’s knowledge, was a Customer, supplier or other material business relation of the worldCompany at any time during the 12 month period immediately prior to the Closing) to cease doing business with the Company.
(b) Neither ▇▇▇▇▇▇ nor From and after the date hereof, each party hereto agrees that it will not, and will direct its Affiliates shallnot to, directly knowingly make, publish or indirectly through communicate to any principalPerson any oral or written statement that disparages or places the other party hereto in respect thereof in a false light, partnerexcept in connection with a legal proceeding, manager, director, officer, contractorlegal process or if such party is otherwise required by Law to cooperate with, or employee thereof acting on behalf is responding to a request from, a Governmental Entity or self-regulatory authority; provided, however, that nothing in this Section 1(b) shall prohibit any of the parties hereto or for their Affiliates or any parties to the benefit Purchase Agreement or any of ▇▇▇▇▇▇ the agreements entered into in connection therewith from defending against claims, or its Affiliatesenforcing their rights, during under this Agreement, the applicable Restricted Period, engage Purchase Agreement or participate any of the other agreements entered in the Restricted Business anywhere in the worldconnection therewith.
(c) From and after the date hereof, except to the extent consented to by Parent, Holdings, Buyer or the Company, BCP shall keep confidential (except as may be disclosed to its Affiliates, directors, officers, partners, employees, agents, consultants, financing sources, investors (including direct and indirect limited partners or investors), vehicles, managed accounts, attorneys, accountants, financial advisors or other representatives (collectively, “Representatives”)) and not use or disclose, and shall direct its Representatives to keep confidential and to not use or disclose, any and all Proprietary Information relating directly to the Company that remains in BCP’s possession after the Closing. The foregoing will not preclude BCP and its Representatives from (i) disclosing such Proprietary Information without liability hereunder if compelled or requested to disclose the same by legal, judicial or administrative process or by other requirements of Law (including, without limitation, by oral questions, interrogatories, requests for information or documents in legal, administrative, arbitration or other formal proceedings, subpoena, civil investigative demand or other similar process, including but not limited to an audit or examination by a regulator, bank examiner or self-regulatory organization) (subject to the following sentence), (ii) discussing or using such Proprietary Information if the same hereafter is publically available (other than as a result of a breach of this Section 1(c)); (iii) discussing or using such Proprietary Information to the extent such information is acquired or made available to BCP or its Representatives by a Person that is not, to BCP’s reasonable belief, subject to an obligation of confidentiality to the Company or any Person (other than BCP and its Representatives) with respect to such information; or (iv) using such Proprietary Information in connection with its ownership of Equity Interests of the Buyer Group. If BCP or its Affiliates or their Representatives is requested or required (by oral questions, interrogatories, requests for information or documents in legal, administrative, arbitration or other formal proceedings, subpoena, civil investigative demand or other similar process, including but not limited to an audit or examination by a regulator, bank examiner or self-regulatory organization) to disclose any such Proprietary Information, BCP shall, to the extent legally permissible, promptly notify Buyer Group of any such request or requirement so that Buyer Group may seek a protective order or other appropriate remedy (in each case, at Buyer Group’s sole expense) and/or waive compliance with the provisions of this Section 1(c). If based on the advice of counsel and in the absence of a protective order or other remedy, BCP is required to disclose such information, BCP, without any liability hereunder, may disclose that portion of such information that it believes in good faith it is legally required to disclose. Notwithstanding anything to the contrary in Section 7.4(b)contained herein, nothing in this Agreement BCP shall preclude, prohibit, or restrict ▇▇▇▇▇▇ not be required to give any notice and shall have no liability hereunder to the extent BCP or its Affiliates from directly Representatives is requested or indirectly engagingrequired to disclose Proprietary Information to the applicable regulatory or self-regulatory authorities having supervisory jurisdiction over BCP or its Representatives, in as applicable, during the course of any manner in any of regulatory audit or examination. BCP shall be liable to the following (with each such subpart Company for the breach of this Section 7.4(c1(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionRepresentatives.
(d) In Notwithstanding anything herein to the event thatcontrary, during his or her nothing in this Section 1 shall in any way limit the activities of any Affiliate (including portfolio companies) of BCP or its Restricted PeriodAffiliates (or any investment funds, any Member other than PubCo, including the equityholders vehicles or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she companies managed by Seller or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board who are not in writing receipt of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicableotherwise provided any Proprietary Information; provided, however, that the New Business Proponent foregoing shall continue not apply to the extent any Affiliate (including portfolio companies) of BCP or its Affiliates is acting at the specific instruction of a Person in possession of Proprietary Information who is using such Proprietary Information in making such instruction. For avoidance of doubt, no such Affiliate shall be deemed to be bound by all “in receipt or otherwise provided any Proprietary Information” solely as a result of his or her a Representative of BCP or its Affiliates (or any investment funds, vehicles or companies managed by BCP or its Affiliates) who is in possession of Proprietary Information also being an officer, director or other duties and obligations to the Company and its Subsidiaries, including all duties as a director agent of PubCo, Member, officer or employee in accordance with the terms of this Agreementsuch portfolio company.
Appears in 2 contracts
Sources: Unit Purchase Agreement (Boxwood Merger Corp.), Restrictive Covenant Agreement (Atlas Technical Consultants, Inc.)
Restrictive Covenants. (a) Neither HHC nor During the period from the Closing until the second anniversary of the Closing Date, Seller will not, and will cause each of its Affiliates shallnot to, directly or indirectly by or through any Affiliate or agentindirectly, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world, engage in or participate in, or acquire any controlling interest (directly or indirectly) in any Person that engages or participates in, or competes in the Business as conducted as of the Closing, or take any action intended to, or that would reasonably be expected to, negatively affect any commercial relationship or prospective commercial relationship of Buyer or the Company with any other Person related to the Business as conducted as of the Closing; provided, however, that, for the purposes of this Section 7.10, ownership of securities having no more than one percent of the outstanding voting power of any competitor which are listed on any national securities exchange shall not be deemed to be in violation of this Section 7.10 as long as the Person owning such securities has no other connection or relationship with such competitor. Notwithstanding the foregoing sentence, Seller and its Affiliates may continue to engage in the Retained Business.
(b) Neither ▇▇▇▇▇▇ During the period from the Closing until the second anniversary of the Closing Date, neither Seller nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in Buyer nor any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedtheir respective Affiliates will, directly or indirectly, anywhere in the Restricted Business if such stock is publicly traded and listed on world, encourage, induce, attempt to induce, solicit or attempt to solicit any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) employee of the total consolidated gross revenues of such Person other party or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in including the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination employees of the Alliance AgreementCompany after the Closing) to leave his or her employment with such other party or its Affiliates. Any discussions initiated by any one party’s employees with the other party and general solicitations for employment, including the requirements use of employment agencies not directed to target the other party’s employees, conducted by or on behalf of the other party, will not be deemed to be a breach of this Section 7.10(b). The parties hereby acknowledge that the covenants set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii)7.10 are reasonable in scope and a material inducement to enter into this Agreement and consummate the transactions contemplated hereby, reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement parties would not have entered into this Agreement if not for such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementcovenants.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Tessera Technologies Inc)
Restrictive Covenants. (a) Neither HHC nor its From the date of this Agreement until the second (2nd) anniversary of the Closing (the “Restricted Period”), the GSRP Parties shall not, and shall cause their respective Controlled Affiliates shallnot to, directly or indirectly by indirectly, solicit (or through encourage any Affiliate other Person to solicit) the employment or agentengagement of services of, whether employ or engage as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, an independent contractor or consultant, any person who is or was employed as an employee of a GSAM Entity or any of their respective Controlled Affiliates at any time during the Restricted Period; provided, that the restrictions in this sentence shall not apply to solicitation or employment of the GSAM Subject Employees as set forth in Section 2.02 or the receipt of services under the TSA. In addition, for a period of two (2) years commencing from and after the Closing, the GSAM Entities shall not, and shall cause their Controlled Affiliates not to, directly or indirectly, solicit (or encourage any other Person to solicit) the employment or engagement of services of, employ or engage as an independent contractor or consultant, any person who is or was employed as an employee of a GSRP Entity at any time during the Restricted Period. Notwithstanding anything in this Section 6.03(a) to the contrary, the GSAM Entities, the GSRP Entities and their respective Controlled Affiliates shall not be prohibited from directly or indirectly making general advertisements (including online or in print media) not targeting specific employees (or groups of employees) of the other; provided, that such Person shall not be permitted to hire any other capacity, during the applicable Restricted Period, engage such employees who either respond to such advertisements or participate in the Business anywhere in the worldwho otherwise initiate discussions regarding employment or engagement.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf From and after the Closing until the earliest of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than the sixth year anniversary of the consummation of an aggregate of five percent (5%) of any class of stock of a Person engagedIPO or Sale, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, the consummation of a Liquidation and (iii) (1) in respect of any Person or business Non-Compete Change of Control that engages, directly or indirectly, in is consummated after completion of the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended IPO and prior to the date second anniversary of the completion of the IPO, the second anniversary of such acquisition were equal to IPO, and (2) in respect of any Non-Compete Change of Control that is consummated on or less than twenty percent (20%) after the second anniversary of completion of the total consolidated gross revenues IPO, upon consummation of such Person or business for such Fiscal Year; provided, that, subject to Non-Compete Change of Control (the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest“Non-Compete Period”), the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business GSRP Parties (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, which for purposes of this Section 7.4(c)(iii)clause (b) shall include, reference without limitation, any Person formed by or on behalf of the GSRP Parties for the purpose of holding all or substantially all of the assets of the GSRP Parties or for the purpose of spinning off any business of the GSRP Parties to the equity holders of the GSRP Parties) shall not, and shall cause their respective present and future Affiliates that the GSRP Parties Control directly or indirectly (“Controlled Affiliates”) (the GSRP Parties and their Controlled Affiliates collectively, the “GSRP Restricted Parties”) not to (A) engage in Investment Management Activities, whether as a manager, member of an investment committee, adviser, subadviser or otherwise, (B) own any policyinterest (other than, binder or contract of insurance shall not include reinsurance of with respect to publicly-listed companies, a less than 5% equity interest) in any formPerson engaged in Investment Management Activities (in each case, other than reinsurance the primary purpose with respect to ownership of interests where GSRP Restricted Parties or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten any employees or administered in connection with the Alliance Business (as defined personnel thereof do not participate in the Alliance Agreementmanagement of such Person’s business));
, or (ivC) marketingreceive or have a contractual right to receive any Compensation relating to Investment Management Activities of any Restricted Third Parties, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering if any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC GSRP Restricted Person or any employees or personnel thereof participate in the management of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of any such Person. “Investment Management Activities” shall mean: (w) providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is agreeing to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten recommendations or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person make decisions with respect to a merger, share exchange the purchase or other business combination transaction immediately following which the beneficial owners sale of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates assets of any Member other than PubCo type for a Restricted Third Party in exchange for Compensation; (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliatesx) (a “New Business Opportunity”), i) meeting the New Business Proponent shall notify the Board in writing definition of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.an investment company under the
Appears in 2 contracts
Sources: Internalization Agreement (MN8 Energy, Inc.), Internalization Agreement (MN8 Energy, Inc.)
Restrictive Covenants. 7.1 Each party hereto agrees that all: (ai) Neither HHC nor its Affiliates shallcommunication regarding the Possible Transaction; (ii) requests for Confidential Information; (iii) requests for facility tours or management meetings; and (iv) discussions or questions regarding procedures will be submitted or directed to such persons as each party may designate in writing to be responsible for such actions, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither case of FW with a copy to ▇▇▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign case of AMEC with a definitive agreement copy to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;.
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or 7.2 Neither party hereto nor any of their Affiliates;
(vi) marketingrespective Representatives will make or have any contact whatsoever, producingeither directly or indirectly, sellingwith any past or present officer, underwriting employee, customer, supplier, adviser, contractor or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies sub-contractor of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ other party hereto or any of its Affiliates is reasonably required in relation to develop the Possible Transaction or sell such products any Confidential Information without the other party’s prior written consent. Nothing in order this paragraph will prevent either party or any of their Representatives from making contact with its existing customers and suppliers, contractors or sub-contractors in the ordinary course of its or their existing business, provided it does not refer in any way to comply with requirements under applicable Law; orthe Possible Transaction in the course of doing so.
(viii) entering into and consummating an agreement with 7.3 The parties hereto further agree that, for a period of two years from the date hereof, each party will not solicit for employment or employ any Person with respect to a merger, share exchange corporate officer or other business combination transaction immediately following which the beneficial owners management level employee of the voting capital stock other party or any of ▇▇▇▇▇▇ or its Affiliates with whom such Affiliate immediately prior to party first had direct and significant contact through the consummation of such transaction do not beneficially own more than fifty percent (50%) process of the combined voting power evaluation of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicablePossible Transaction; provided, however, that this provision shall not prohibit the New Business Proponent solicitation or employment of any such person: (i) resulting from general advertisement for employment; (ii) if such person approaches the party on an unsolicited basis; (iii) following the termination by the other party of such person’s employment with the other party; or (iv) resulting from solicitation by a recruiting firm that is not requested to specifically solicit that person for employment.
7.4 Until the earliest of: (i) the execution and delivery by the parties hereto of a final definitive agreement regarding the Possible Transaction; or (ii) one year from the date of this letter agreement, each party agrees that no employee of such party that participated in the evaluation of the possible Transaction shall continue to be bound by all initiate or maintain contact (except for those contacts made in the ordinary course of his business) with any key employee (defined as any elected or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, appointed officer or employee in accordance director) of the other party regarding its business, assets, operations, prospects or finances, except with the terms express permission of a duly authorised executive officer of the other party.
7.5 The undertakings in this Agreementparagraph 7 are intended for the benefit of each party hereto and for the benefit of the Representatives of each party hereto and apply to actions carried out by either party hereto or any Representative in any capacity and whether directly or indirectly, on either party’s behalf, on behalf of any other person or jointly with any other person.
7.6 Each party hereto hereby agrees that each of the restrictions and undertakings contained in paragraph 7 are reasonable and necessary for the protection of each party’s legitimate interests in the goodwill of its company and each of its subsidiaries and shall be construed as separate and independent undertakings.
Appears in 2 contracts
Sources: Confidentiality Agreement (Amec PLC), Confidentiality Agreement (Amec PLC)
Restrictive Covenants. 6.3.1 The Company has agreed to provide benefits under this Agreement in return for the Executive’s acceptance of restrictive covenants set forth in this Section 6.3. The Executive hereby acknowledges that the benefits provided hereunder constitute adequate consideration for Executive’s obligations under this Section 6.3.
6.3.2 Neither the Company nor any Subsidiary shall pay any benefit under this Agreement, and the Executive shall be obligated to repay any lump sum payment received under this Agreement if, without the prior written consent of the Company and the affected Subsidiary or Subsidiaries, Executive:
(a) Neither HHC nor its Affiliates shallat any time prior to the ___ anniversary of the Separation from Service of the Executive, directly either as an individual, on his or indirectly by her own account, or through any Affiliate or as an agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manageremployee, director, officer, employee, consultant, shareholder or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedotherwise, directly or indirectly, in (i) solicit or attempt to solicit the Restricted Business if such stock is publicly traded and listed on business of any stock exchange;
customer of the Company, its successors or affiliates, or (ii) acquiringsolicit, merging induce or combining withencourage, or investing inattempt to solicit, induce or encourage any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) customer of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required affiliates not to develop do business with the Company or sell any of its affiliates. For purposes of this paragraph, such products in order customers and such affiliates shall be limited to comply with requirements under applicable Lawthose persons or entities which are customers or affiliates as of the date immediately preceding the date of the Executive’s Separation from Service; or
(viiib) entering into and consummating an agreement with at any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately time prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) ___ anniversary of the combined voting power Separation from Service of the outstanding voting capital stock entitled to vote generally in the election of directors (Executive, directly or Persons performing a similar function) indirectly solicits, induces or encourages any person who, as of the entity resulting date immediately preceding the date of the Separation from such transactionService, is an employee of the Company or any of its affiliates to terminate his or her relationship with the Company or any of its affiliates.
6.3.3 Executive represents and warrants that:
(a) Executive has read and understands this Agreement;
(b) Executive has had an opportunity to consult with legal counsel in connection herewith;
(c) the restraints and agreements herein provided are fair and reasonable;
(d) In enforcement of the event that, during his provisions of Section 6.3 will not cause him or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo undue hardship; and
(in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliatese) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will above restrictions are reasonable in good faith pursue scope and duration and are the New Business Opportunity and within three (3) years following least restrictive means to protect the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company Company’s and its Subsidiaries, including all duties as a director ’ legitimate and proprietary business interests and property from irreparable harm.
6.3.4 The Company and the Executive hereby recognize that the restrictive noncompete provisions of PubCo, Member, officer or employee Section 6.3.2 have value and that value shall be recognized in accordance with the terms Section 280G calculations by an allocation of this Agreementthe termination benefits between the noncompete provision and the other termination benefits based on the value of the fair market value of the noncompete provisions. The Company shall make the determination of the fair value to be assigned.
Appears in 1 contract
Sources: Supplemental Executive Retirement Agreement (Midwest Banc Holdings Inc)
Restrictive Covenants. (a) Neither HHC nor For a period of 36 months commencing on the Closing Date (the “Restricted Period”), neither Seller shall, and each shall cause each of its Affiliates shall, directly or indirectly controlled by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedOMERS Infra not to, directly or indirectly, except as otherwise permitted under this Section 6.09, (i) establish, own, operate, manage, control or invest in (in each case in any capacity, including as a partner, shareholder or member) a facility or Person located in Canada that is engaged in the business of, in each case, any of the following: the provision of clinical laboratory testing or anatomic pathology services and healthcare infrastructure in respect of the prevention, screening, diagnosing, treatment and monitoring of diseases and the collection, transportation and performance of testing of human specimens (the “Restricted Business”), in each case, other than in respect of the Permitted Activities; provided that, if, during the Restricted Period, either Seller or any of its Affiliates controlled by OMERS Infra directly or indirectly acquires or amalgamates or merges with or into, any Person (the “Acquired Person”) or business (an “Acquisition”) that, immediately prior to the completion of such Acquisition, is engaged in the Restricted Business, it will not be a violation of this Section 6.09 for the relevant Seller or such Affiliate controlled by OMERS Infra to engage in the Restricted Business if as a result of such stock Acquisition, provided that the primary purpose of the Acquisition is publicly traded other than to engage in the Restricted Business and, as at the date of the Acquisition, the principal activity of the Acquired Person is not the Restricted Business and listed on any stock exchange;
(ii) acquiringthe Restricted Business does not exceed the greater of 5% and $5,000,000 of the Acquired Person’s revenues for its most recently completed annual financial period. Notwithstanding the foregoing, merging or combining with, or investing in, any Person or business that engageseither Seller and their Affiliates controlled by OMERS Infra may own, directly or indirectly, in solely as a passive investment, securities of any Person if the Restricted BusinessSellers or such Affiliates controlled by OMERS Infra are not together a controlling Person of, so long as the gross revenues or a member of a group that controls, such Person and do not, directly or indirectly, own 5% or more of any class of securities of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.For the
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor From the date hereof and until the second anniversary of the Closing Date, Seller shall not, and shall cause its Affiliates shallSubsidiaries not to, without the prior written consent of Buyer, directly or indirectly indirectly, solicit for employment or hire (or cause to be solicited or hired) any Key Employee; provided that Seller and its Subsidiaries may (i) solicit or hire for employment any Key Employee who has not been employed by a Target Company for a three-month period prior to commencement of employment discussions with such person, and (ii) engage in general solicitations of employment (including through bona fide search firms and agencies) in the ordinary course of business consistent with past practice not specifically directed at Company Employees.
(b) Seller shall not, and shall cause its Subsidiaries not to, for a period of five years following the Closing Date (the “Non-Competition Period”), engage (whether on its own account, or through any Affiliate or agent, whether as principal, agent, an owner, investor, lender, shareholder, member, partneroperator, manager, director, officer, employee, consultant, investor or provider of financing) in any other capacity, during the applicable Restricted Period, engage or participate in the a Competing Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ ; provided that if Seller or its AffiliatesSubsidiaries wish to sell services or equipment in any jurisdiction other than the United States or Canada related to an air-to-ground network and such actions would otherwise be restricted by this Section 4.23(b), during it shall notify Buyer in writing and, for a period of 30 days thereafter, negotiate with Buyer and its Subsidiaries for their right to be the applicable Restricted Period, engage or participate sole re-seller of such air-to-ground network services in the Restricted Business anywhere commercial aviation market in the world.
(c) such jurisdiction; provided, further, that if no agreement can be reached within such 30-day period, Seller and its Subsidiaries shall be permitted to proceed with such sale of services or equipment. Notwithstanding anything to the contrary in Section 7.4(b)the foregoing, nothing in this Agreement Section 4.23(b) shall precludeprevent Seller Group, prohibitduring the Non-Competition Period, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
from: (i) acquiring less than an aggregate of collectively owning up to five percent (5%) of the publicly traded debt or equity securities of any class of stock of a Person engagedthat engages in any Competing Business, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably performing obligations required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.this
Appears in 1 contract
Restrictive Covenants. In order to assure that Parent will realize the benefits of the transactions contemplated hereby, each of the Shareholders hereby agrees with Parent, whether or not compensation is received, to the following:
(a) Neither HHC nor its Affiliates during the Restricted Period, no Management Shareholder shall, directly or indirectly by indirectly, act alone or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, a partner, managerjoint venturer, officer, director, officermember, employee, consultant, agent, independent contractor or shareholder of, or lender to, any company or business (a "COMPETITOR") whose products or services compete with (i) the business of Surviving Entity (for this purpose, any business that engages or plans to engage in the development, manufacturing, marketing, licensing, or sale of software applications or products that have been developed and/or marketed, or are in the process of being developed and/or marketed, by Company or Surviving Entity, as the case may be, at any other capacity, time during the applicable Restricted Period, engage time the Management Shareholder was or participate is employed by the Company or the Surviving Entity shall be deemed to be in the Business anywhere in the world.
competition with Surviving Entity and a Competitor) (b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart purposes of this Section 7.4(c5.3, collectively the "BUSINESS") having independent significance regardless or (ii) the Computer Products or any upgrades, enhancements, or other releases, modifications or customizations thereof, or otherwise which enterprise is the same as or similar to the Business; PROVIDED, HOWEVER, that, the beneficial ownership of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class the shares of stock of any corporation having a Person engaged, directly class of equity securities actively traded on a national securities exchange or indirectlyover-the-counter market shall not be deemed, in and of itself, to violate the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiringprohibitions of this Section; PROVIDED, merging or combining withHOWEVER, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior with respect to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇. ▇▇▇▇▇▇ Insurance Agency(the "NON-CONTROLLING SHAREHOLDERS") only, LLCthe restrictive covenants contained in this subsection 5.3(a) shall not prevent such Non-Controlling Shareholder from being employed by a Competitor that competes with the Business; PROVIDED, ▇▇▇▇▇▇▇ Classic Marine Insurance AgencyHOWEVER, LLC that the Non-Controlling Shareholder (i) is employed by a division or subsidiary of such Competitor that does not, directly or indirectly, market, develop or sell products or services that compete with the Business (an "EXCEPTED COMPETITOR"), and (ii) provides prior written notice to Parent (A) stating his or her intention to be employed by such Excepted Competitor, and (B) reaffirming his or her intention and obligation to abide by all the restrictive covenant provisions of this Section 5.3(a) (and any other similar existing restrictive covenants in an Employment Agreement) , and (C) representing and warranting that he or she has disclosed to the Excepted Competitor the existence and binding nature of restrictive covenant provisions of this Section 5.3(a) on or before the date of such written notice; PROVIDED FURTHER, that the Non-Controlling Shareholder shall provide to Parent further written notice of any termination of his or her employment with any such Excepted Competitor, if such termination occurs during the period the restrictive covenant provisions are in force hereunder.
(b) during the Restricted Period, no Management Shareholder shall, directly or indirectly (i) induce, or attempt to induce, any Person which is a customer of Surviving Entity or Parent or any Affiliate of Surviving Entity to patronize any business directly or indirectly in competition the Business; (ii) canvass, solicit or accept, or attempt to canvas, solicit or accept, from any Person which is a customer of Surviving Entity, Parent or any Affiliate of Surviving Entity, any such competitive business; or (iii) request or advise, or attempt to request or advise, any Person who is a customer of Surviving Entity, Parent or any Affiliate of Surviving Entity, or its or their Affiliatessuccessors, to withdraw, curtail or cancel any such customer's business with any such entity;
(vic) marketingduring the Restricted Period, producingno Management Shareholder shall, sellingdirectly or indirectly employ or attempt to employ, underwriting or administering reinsurance (knowingly permit any company or business directly or indirectly controlled by such Management Shareholder, to employ, any management personnel, computer programmer or other similar protection offered skilled employee who was employed by Surviving Entity, Parent or any Affiliate of Surviving Entity at or within the prior twelve months, or in any manner seek to insurance induce any such person to leave his or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement)her employment;
(viid) developing or selling products that would constitute part of during the Restricted Business Period, no Shareholder shall, directly or indirectly, in any way utilize, disclose, copy, reproduce or retain, or attempt to utilize, disclose, copy, reproduce or retain, in its possession Surviving Entity's proprietary rights or records, including, but not limited to any customer lists, all of which shall be deemed confidential information, except information which has been publicly disclosed by the extent ▇▇▇▇▇▇ Surviving Entity or by the Parent or by a third party not in violation of any applicable law or agreement, or is lawfully required to be disclosed by any governmental agency or applicable law; PROVIDED, HOWEVER, that the Shareholders shall be allowed reasonable access to review and copy such records for purposes of litigation and tax audits and tax preparation, but with respect to any litigation brought by the Shareholder against or adverse to Parent or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior access shall be only to the consummation extent required under laws and rules of procedure and discovery applicable to such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.proceeding;
Appears in 1 contract
Sources: Merger Agreement (Hte Inc)
Restrictive Covenants. (a) Neither HHC nor Without the prior written consent of Buyer, and for a period of 24 months from the Closing Date, each Seller covenants and agrees on his own behalf not to, and shall procure that its Affiliates shalland Related Parties will not, directly or indirectly by engage in, conduct, assist or through have any Affiliate active interest in, own any assets or agentshares in, whether or act as principalan employee, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employeeadvisor, consultant, or agent to, any person, corporation or entity, which is or is about to become engaged in any other capacity, during the applicable Restricted Period, engage operations or participate in business that is competing with the Business anywhere in as conducted by the worldGroup Companies at Closing, including as planned to be conducted and expanded at such time.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shallThe restrictions set out in Section 9.5(a) shall not prohibit Sellers from:
(i) investing in publicly listed shares or any other publicly listed financial instruments, directly provided that such investments do not exceed 2% of the outstanding shares of the relevant publicly listed entity; or
(ii) holding any of the investments they have made prior the Signing Date or indirectly through holding any principalof the positions they hold on the Signing Date, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere each case as set out in the worldSchedule 9.5(b).
(c) Notwithstanding anything to Without the contrary in Section 7.4(b)written consent of Buyer, nothing in this Agreement and for a period of 36 months from the Closing Date, each Seller covenants and agrees not to, and shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or procure that its Affiliates from and Related Parties will not, directly or indirectly engagingemploy or solicit the employment or service of any employee or director of any Group Company, in or take any manner in other measures to entice any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless employees or directors or key suppliers of any overlap Group Company away from the employment or service of such Group Company, provided that nothing herein shall restrict or preclude the subject matter thereof):
employment of any person (i) acquiring less than resulting from hiring practices in the ordinary course of business that are not targeted specifically at an aggregate employee or director or the employees of five percent (5%) directors of any class of stock of a Person engaged, directly Group Company; or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, if such person approaches any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to Seller on an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionunsolicited basis.
(d) In case of breach by a Seller of the event thatcovenants contained in this Section 9.5, during his which breach cannot be remedied or her or its Restricted Period, any Member other than PubCo, including has not been remedied within ten (10) Business Days of the equityholders or Affiliates receipt of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”)written notice thereof, the New Business Proponent breaching Seller shall notify the Board in writing pay to Buyer immediately by means of liquidated damages an amount equal to 20% of such intention and provide Seller’s entitlement to the Board with sufficient detail regarding Purchase Price per breach.
(e) Where the New Business Opportunity actual damages suffered by Buyer or any Group Company as a result of a breach of the covenants in this Section 9.5 are greater than the amount of the liquidated damages, Buyer is entitled to receive compensation for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority full amount of the Board determine that damages so suffered.
(f) Each Seller gives the Company undertakings in this Section 9.5 on its own behalf, and its Subsidiaries will not pursue no Seller can be held liable for a breach of another Seller.
(g) The breaching Seller be obliged to immediately cease with any actions or omissions giving rise to a breach of the New Business Opportunitycovenants set out in this Section 9.5, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed even if liquidated damages have been paid by such Seller pursuant to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this AgreementSection 9.5.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Clearfield, Inc.)
Restrictive Covenants. Seller hereby agrees that it shall not, directly, or indirectly, in its own name or through or on behalf of any Affiliate (but expressly excluding any bona fide purchaser of Seller or its business (and/or any of Seller’s subsidiaries or any of their respective businesses, in each case if such subsidiary or business ceases to be an Affiliate of Seller after giving effect to the purchase and sale transaction) in an arms-length transaction), (a) Neither HHC nor its Affiliates shall, directly or indirectly by or at any time from the Closing through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during and including the applicable Restricted Period, engage or participate in the Business anywhere in the world.
third (b3rd) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any anniversary of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedClosing Date, directly or indirectly, invest, carry on, engage in or become involved, either as a stockholder, partner, joint venturer, manager, advisor, consultant, investor or lender, in any business enterprise which derives any material amount of revenues from the ownership or operation of laboratory facilities conducting screening of newborns for inborn errors of metabolism and/or metabolic disorders in the Restricted Business if such first thirty (30) days of life (“Newborn Screening”) at any location anywhere in the world (provided that (i) the passive ownership of not more than 5% of the outstanding stock is of a publicly traded entity shall not constitute a breach of this Section 15.5, and listed on any stock exchange;
(ii) acquiring, merging the provision of advice or combining withservice to customers incidental to the implementation or use of products or services sold or licensed shall not constitute a breach of this Section 15.5), or investing in(b) at any time from the Closing through and including the first (1st) anniversary of the Closing Date, solicit, hire or seek to hire or retain, whether as an employee, consultant or otherwise, any Person individual employed or business retained by either of the Companies at the time of or within six (6) months prior to such solicitation, or otherwise materially and adversely interfere with the relationship between either of the Companies and any such individual (provided that engagesit shall not be a breach of this Section 15.5(b) if the solicitation is pursuant to a general trade advertisement or if the subject individual was dismissed by either of the Companies subsequent to the Closing and such solicitation is made not sooner than six (6) months after such dismissal). In the event of any breach of this Section 15.5, directly or indirectlySeller acknowledges that it will be difficult to ascertain the precise amount of damages that may be suffered by reason of such breach, and that such breach may cause irreparable injury for which there is no adequate remedy at law; accordingly, Seller hereby agrees that, in the Restricted Businessevent of any such breach, so long as the gross revenues Buyer shall be entitled, in addition to any all other remedies available, to seek and obtain injunctive and/or other equitable relief to require specific performance of or prevent, restrain and/or enjoin such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) breach. Each of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to parties agrees that the requirements of Law, ▇▇▇▇▇▇ duration and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination geographic scope of the Alliance Agreement, the requirements covenants set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that 15.5 are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) reasonable. In the event that, during his that any court of competent jurisdiction or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board arbitrator determines that the Company duration or one the geographic scope, or both, are unreasonable and that such provision is to that extent unenforceable, each of its Subsidiaries will the parties agrees that the provision shall remain in good faith pursue full force and effect for the New Business Opportunity greatest time period and within three (3) years following in the date greatest area that would not render it unenforceable. Each of the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity parties intends that this Section 15.5 shall be deemed to constitute the Business or Restricted Businessbe a series of separate covenants, as applicable. If a majority one for each and every county of each and every state of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue United States of America where this provision is intended to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementeffective.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor During such time as you shall be employed by the Company or its Affiliates shallsubsidiaries, and for a period of three years thereafter, with respect to Sections 6(a)(i) and (iii) below, and during the first year of the Term (or such lesser period if your employment is terminated earlier) and for a period of three years thereafter with respect to Section 6(a)(ii) below, you shall not, without the written consent of the board of directors of the Company, directly or indirectly by become associated with, render services to invest in, represent, advise or through any Affiliate or agent, whether otherwise participate as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, an officer, employee, consultantdirector, stockholder, partner, agent of or consultant for, any business in the United States which (i) is competitive with the business in which Cross Country Local is engaged during your employment and at the time your employment with the Company ceases, (ii) is competitive with the business in which E-Staff is engaged during the first year of the Term (or, up to the date your employment terminates, if earlier), or (iii) is engaged in travel nurse staffing. Notwithstanding anything in the prior sentence to the contrary, (1) after you are no longer employed by the Company or any other capacityof its subsidiaries, you shall not be restricted from engaging in per diem nurse staffing outside of a 50-mile radius from any locations in which the Cross Country Local had offices during your employment or has offices at the time your employment with the Company ceases and, (2) nothing herein shall prevent you from acquiring up to 3% of the securities of any company listed on a national securities exchange or quoted on the NASDAQ quotation system, provided your involvement with any such company is solely that of a stockholder. If your employment hereunder shall be terminated during the Term by you with Good Reason (as defined below) or by the Company without Just Cause (as defined below), then the foregoing noncompetition covenant shall only be effective for the applicable Restricted Periodabove-stated period after such termination; provided (A) the Company so elects and (B) the Company pays to you (i) six months of your Base Salary in effect at the time of such termination, engage and (ii) the cost to provide six months of any life and medical insurance benefits you were receiving at the time of such termination pursuant to Section 4 of this Agreement (collectively, the "Total Payment") over a six-month period and in accordance with the Company's regular payroll practices. Any payments made by the Company to you pursuant to Section 9(e) or participate 9(f) hereof shall be credited against the Total Payment obligation in this Section 6, although nothing in this Section 6 shall be construed to limit the Company's obligations under such sections. The Company shall provide you written notice of the exercise of its rights in the Business anywhere immediately preceding sentence within thirty (30) days of the date of the termination of your employment and shall be obligated to make such Total Payment if the Company exercises its rights, or if such notice is not given, the Company shall be deemed to have irrevocably waived such rights and you shall not be subject to the non-competition covenant in the worldthis Section 6(a).
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for The parties hereto intend that the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing covenant contained in this Agreement Section 6 shall precludebe deemed a series of separate covenants for each country, prohibitstate, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engagingcounty and city in which the Cross Country Local's and E-Staff's business is conducted. If, in any manner judicial proceeding, a court shall refuse to enforce all the separate covenants deemed included in any this Section 6 because, taken together, they cover too extensive a geographic area, the parties intend that those of such covenants (taken in order of the following (with each countries, states, counties and cities therein which are least populous) which if eliminated would permit the remaining separate covenants to be enforced in such subpart proceeding shall, for the purpose of such proceeding, be deemed eliminated from the provisions of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction6.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC The Seller agrees that, for the period commencing on the Closing Date and expiring on the third (3rd) anniversary of the Closing Date, neither it nor any of its Subsidiaries will (i) solicit for employment or any similar arrangement any Continuing Employee or (ii) hire or assist any other Person in hiring any Continuing Employee; provided, however, that this Section 6.6(a) shall not (x) apply to Continuing Employees whose employment with the Purchaser or any of its Affiliates shall(including the Company) is terminated by the Purchaser or its applicable Affiliate without cause or is terminated by the employee for good reason or (y) prohibit general solicitations by the Seller for employment through advertisements or other means or engaging search firms for such purposes that are not specifically targeted or directed at Continuing Employees, directly or indirectly by or through any Affiliate or agent, whether so long as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or (A) with respect to Continuing Employees in any other capacitythe categories set forth in Schedule 6.6, during the applicable Restricted Periodthree (3) year period after the Closing Date and (B) with respect to all other Continuing Employees, engage during the one (1) year period after the Closing Date, the Seller and its Affiliates shall not hire or participate in the Business anywhere in the worldretain such Continuing Employees who respond to such general advertisement or solicitations for employment or from such search firm.
(b) Neither ▇▇▇▇▇▇ The Seller agrees that, for the period commencing on the Closing Date and expiring on the fourth (4th) anniversary of the Closing Date, neither it nor any of its Affiliates shallSubsidiaries will engage, directly or indirectly indirectly, in any Restricted Activity. For the purposes of this Agreement, a Person shall be deemed to engage in a “Restricted Activity” if such Person owns, operates, manages, controls, engages in, participates in, invests in, permits such Person’s name to be used by, or acts as a consultant, advisor or licensor to a business that engages in the Ongoing Business. For the avoidance of doubt, none of (1) Real Money Gaming, (2) any activity of the Seller and its Subsidiaries for which the customer cannot pay, barter or otherwise transfer cash or cash equivalents with respect to such activity, (3) any activity of the Seller and its Subsidiaries related to live or replayed historical horse races or virtual horse races through any principal, partner, manager, director, officer, contractormedium, or employee thereof acting on behalf (4) the Seller’s and its Subsidiaries’ continued participation in its business operations existing as of the date of this Agreement (other than the Business) shall constitute, nor be deemed to constitute, a Restricted Activity. For purposes of this Agreement, “Real Money Gaming” means any wagering activity in any form (including poker, slot machine or casino table games, lottery, sports betting, sports wagering, bingo, fantasy sports (season-long and daily), pari-mutuel wagering in any form, skill-based games or any other wagering activity or through any medium (including land-based, mobile-based or internet) that provides to a player engaging in such wagering activity the opportunity to receive the payment of cash or anything else that can be redeemed for the benefit of cash or cash equivalents (e.g., vouchers for future ▇▇▇▇▇▇ or its Affiliates, during other complimentary non-virtual goods or services)). Notwithstanding the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b)foregoing, nothing in this Agreement Section 6.6(b) shall preclude, prohibit, prohibit the Seller or restrict ▇▇▇▇▇▇ or any of its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring being a passive owner of less than an aggregate of five percent (5%) of any class of stock the outstanding shares of a publicly traded company that, directly or indirectly, engages in a Restricted Activity, (ii) a business activity that is carried on by any third Person that is acquired by or combined with the Seller or any of its Affiliates after the date hereof (whether through a merger, consolidation, acquisition or other business combination), and after such acquisition or combination, owning an interest in any other Person (or its successor) that is engaged, directly or indirectly, in the Restricted Ongoing Business if such stock business generated less than ten percent (10%) of such Person’s aggregate consolidated EBITDA in the last completed fiscal year prior to such acquisition or combination, (iii) engaging in any business activity that would otherwise violate this Section 6.6(b) that is publicly traded acquired from any Person (an “After-Acquired Business”) or is carried on by any Person that is acquired by or combined with the Seller or one of its Subsidiaries in each case after the Closing Date (an “After-Acquired Company”), so long as within one hundred and listed on any stock exchange;
eighty (ii180) acquiringdays after such acquisition of the After-Acquired Business or the After-Acquired Company, merging the Seller or combining withthe applicable Subsidiary signs a definitive agreement to divest, and within one hundred and eighty (180) days after signing such definitive agreement, subsequently divests, the relevant portion of the business or securities of the After-Acquired Business or the After-Acquired Company, or investing inat the expiration of such first one hundred and eighty (180) days period, the business of the After-Acquired Business or the After-Acquired Company complies with this Section 6.6(b), (iv) entering into any joint venture with any Person or business that engagesis engaged, directly or indirectly, in the Restricted Ongoing Business, so long as the gross revenues of such joint venture does not engage in the Ongoing Business, (v) subject to clause (i) above, making any equity investment in any Person or business derived from (A) in which the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less Seller and its Affiliates collectively hold not more than twenty ten percent (2010%) of the total consolidated gross revenues outstanding voting securities or similar equity interests or (B) in which the aggregate annual EBITDA from the Ongoing Business of such Person or business for such Fiscal Year; providedthe entity in which the equity is held is less than $5,000,000, that, subject to in each case where the requirements of Law, ▇▇▇▇▇▇ Seller and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging do not have an active role in the Restricted Business management of the day-to-day operations of the business conducted by such entity or (yvi) sign a definitive agreement to divestdistributing, and subsequently divestmarketing or selling any products or services, the relevant portion of such acquired Person other than products or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination services of the Alliance Agreement, the requirements set forth Company or products or services described in Section 5.12(b)(i)(Bclauses (ii) and (iii) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired businessdefinition of “Ongoing Business” herein, that would be included in are being distributed, marketed or sold by the Alliance Business Seller or its Affiliates (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties ) as a director of PubCo, Member, officer or employee in accordance with the terms date of this AgreementAgreement and any products or services developed in the future by the Seller or such Affiliates derived therefrom or that are natural extensions thereof; provided that such future developed products or services are not of the type developed or exploited by the Company as of the date of this Agreement or described in clauses (ii) and (iii) of the definition of “Ongoing Business” herein.
Appears in 1 contract
Restrictive Covenants. The Shareholders understand that the Buyer shall be entitled to protect and preserve the going concern value of the business of the Company purchased by the Buyer to the extent permitted by law and that the Buyer would not have entered into this Agreement absent the provisions of this §6(d) and, therefore, for a period of three (a3) Neither HHC nor its Affiliates shallyears from the Closing, the Shareholders shall not, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):indirectly:
(i) acquiring engage in activities or businesses, or establish any new businesses, that are in competition with the business engaged in by the Company at the time of Closing (“Competitive Activities”), including (A) selling goods or services of the type now or previously sold by the Company, (B) soliciting any past, present or prospective customer of the Company to purchase any goods or services sold by the Company at the time of Closing, from anyone other than the Buyer and (C) assisting any Person in any way to do, or attempt to do, anything prohibited by clause (A) or (B) above; and
(ii) soliciting, recruiting or hiring any employee of the Company and who is hired by the Buyer at Closing, (B) soliciting or encouraging any employee of the Company who has been hired by the Buyer at Closing to leave the employment of the Buyer and (C) disclosing or furnishing to anyone any Company Confidential Information (as defined below) relating to the Company that has been purchased by the Buyer pursuant to this Agreement, or otherwise using such Company Confidential Information for their own benefit or the benefit of any other Person. This §6(d) shall be deemed not breached as a result of the ownership by any of the Shareholders of less than an aggregate of five percent (5%) % of any class of stock (listed on a national securities exchange) of a Person engaged, directly or indirectly, in Competitive Activities. Notwithstanding any other provision of this Agreement, it is understood and agreed that the Restricted Business if such stock is publicly traded remedy of indemnity payments pursuant to §9 and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, other remedies at law would be inadequate in the Restricted Business, so long as the gross revenues case of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) any breach of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging covenants contained in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divestthis §6(d). Accordingly, the relevant portion Buyer shall be entitled to seek equitable relief, including the remedy of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; providedspecific performance, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter breach of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactioncovenants.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.
Appears in 1 contract
Restrictive Covenants. In addition to the Continuing Obligations, and in consideration of the severance and equity benefits provided hereunder, and in recognition of Employee’s role as a senior officer of inVentiv with broad access to material confidential and proprietary information of the Company, and in order to protect the Company’s goodwill and other legitimate business interests, Employee shall be subject to non-competition, non-solicitation, and no-hire obligations with the same geographic restrictions and covering the same scope of activities as provided in the Severance Agreement for a period of 18 months after Employee’s Termination Date (a) Neither HHC nor its Affiliates shallthe “Restricted Period”), directly or indirectly provided, however, that notwithstanding the terms of the Severance Agreement and for the avoidance of doubt, Employee during the Restricted Period shall not be employed by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engagingotherwise provide services to, in any manner role or capacity whatsoever, any person, business or entity which is engaged in any portion of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Company’s Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Severance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that Employee may become employed by or render services to a company or other entity that is engaged in one or more business lines that compete with the New Company’s Business Proponent and in other business lines that do not compete with the Company’s Business so long as Employee (i) is not employed by, does not render any services to or in respect of, does not share any confidential information of the Company with, and does not have any other involvement with or responsibility for, such competitive line or lines of business, (ii) provides advance notice to inVentiv’s general counsel prior to assuming such role, and (iii) provides, upon reasonable written request of the Company, reasonable assurance of his compliance with the requirements of clause (i) of this proviso. Further, solely for purposes of the Bad Leaver provisions of the Stockholders Agreement, Employee’s non-competition obligations in the Severance Agreement, as modified and clarified by the preceding sentence, shall continue until the latest of (i) the date the Vested Options and the Enhanced Options or any portion thereof are no longer outstanding and exercisable, (ii) 90 days after Employee exercises his last Option, or (iii) March 15, 2018 (the “Equity Restricted Period”). If the Company discovers at any time that Employee breached his non-competition obligations under this Agreement or any other agreement during the Equity Restricted Period, the Company shall have the right to be bound by cancel and nullify all of his Employee’s Enhanced Options regardless of whether they were vested or her unvested, or if such Enhanced Options have already been exercised, to invoke its call right at the Bad Leaver Price as provided in Section 5.1.3 of the Stockholders Agreement, and Employee shall have no cure period with respect to such violations. The foregoing restrictions shall be cumulative with and not in the alternative to each other and/or to the Continuing Obligations. Further, if Employee holds any shares of common stock in Holdings as a result of an exercise of the Vested Options or the Enhanced Options, Employee agrees not to attend or otherwise participate in any shareholder meetings of the Company for as long as he holds any such shares. During the Restricted Period, Employee shall remain off the Company’s premises and, unless Employee obtains the prior written consent of the Company Employee shall refrain from contacting, in each case with respect to communications concerning the Company or its business, (i) the Company’s employees (other duties than as necessary to comply with Sections SIXTEEN (Return of Company Property) and obligations to the SEVENTEEN (Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms Investigations) of this AgreementAgreement or with respect to matters pertaining to his entitlement to post-employment benefits), (ii) the Company’s shareholders, (iii) clients or customers, or (iv) any members of the press.
Appears in 1 contract
Sources: Enhanced Separation Agreement (Inventiv Health Inc)
Restrictive Covenants. (1) The Executive shall not without the prior written consent of the Board (such consent to be withheld only so far as may be reasonably necessary to protect the legitimate interests of any member of the Barclays Group) for a period of six months after the termination for whatever reason of. his employment either on his own behalf or on behalf of any other person, firm or company:-
(a) Neither HHC nor its Affiliates shallin connection with the provision of services or the sale of products with which the Executive was concerned to a material extent within the year before termination of his employment, directly or indirectly by deal with any customer or through client of the Bank or of any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during member of the applicable Restricted Period, engage or participate in Barclays Group with whom the Business anywhere in Executive had business dealings within the world.year before the termination of his employment;
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through canvass, solicit, entice away or cause to be canvassed or solicited or enticed away from the Bank or from any principalmember of the Barclays Group any person, partner, manager, director, officer, contractor, firm or employee thereof acting on behalf company who at the date of the termination of his employment or for within one year prior to such date is or was a customer or client of the benefit Bank or of ▇▇▇▇▇▇ any member of the Barclays Group or its Affiliates, was in the habit of dealing under contract with the Bank or with any member of the Barclays Group and with whom or which the Executive had business contact during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.said period;
(c) Notwithstanding anything solicit or entice away or endeavour to solicit or entice away from the contrary Bank or from any member of the Barclays Group any director, officer or employee of the Bank or any member of the Barclays Group;
(d) the restricted area to which the restrictions set out in Section 7.4(b(a), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(cb) having independent significance regardless of any overlap of the subject matter thereof):and (c) above apply is as follows:
(i) acquiring less than an aggregate if at the time of five percent termination of his employment or six months prior thereto the Executive’s duties and responsibilities are countrywide in nature, the restricted area shall be the United Kingdom or England or Wales or Scotland (5%) as may be appropriate to the geographical scope of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchangeExecutive’s responsibilities);
(ii) acquiringif at the time of termination of his employment or within six months prior thereto the Executive’s duties are regional or local in nature, merging the restricted area shall be the region or combining withlocality to which the Executive’s responsibilities extend.
(2) Each of the restrictions in sub-clauses 1(a), or investing in(b), any Person or business that engages, directly or indirectly, (c) and (d) of this Clause are considered by the parties to be reasonable in all the Restricted Business, so long circumstances as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to at the date of this Agreement. However, the parties agree that if any one or more of such acquisition were equal restrictions shall be judged to or less than twenty percent (20%) be void as going beyond what is reasonable in all the circumstances for the protection of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination interests of the Alliance Agreement, Bank and the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that Barclays Group but would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) valid if words were deleted therefrom or the Restricted Business (period thereof reduced or the range of activities or area covered thereby reduced in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), scope the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity said restrictions shall be deemed to constitute apply with such modifications as may be necessary to make them valid and effective. Any such modification shall not thereby affect the Business or Restricted Business, as applicable. If a majority validity of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its any other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee restriction contained in accordance with the terms of this Agreement.
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Restrictive Covenants. (a) Neither HHC nor its Affiliates For a period of [***] ([***]) years commencing on the Closing Date, no Seller Restricted Entity shall, directly or indirectly by indirectly, own, manage, operate, control or through any Affiliate or agentinvest in, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere ownership, management, operation or control of, any Restricted Business; provided that the prohibitions in this Section 5.22(a) shall not apply to: (A) any acquisition, whether through the acquisition of assets, securities or other ownership interests or a merger, consolidation, share exchange, business combination, reorganization, recapitalization or other similar transaction, by any Seller Restricted Entity of all or any part of a business or Person that is engaged in the worldRestricted Business where the revenues of the acquired Restricted Business represent no more than [***] percent ([***]%) of the aggregate consolidated revenues of such acquired business or Person, as applicable, for such business’s or Person’s most recently completed fiscal year; (B) the acquisition, holding or direct or indirect passive ownership by any Seller Restricted Entity of up to an aggregate of [***] percent ([***]%) of the voting stock or other equity interests of any Person; or (C) the ownership, management, operation, control or investment in, or participation in the ownership, management, operation or control of, any Restricted Business by any Seller Restricted Entity acquired in compliance with clause (A) of this sub-section (a) or developed organically by such Seller Restricted Entity (either before or after the date of this Agreement), in each case, if such Restricted Business is ancillary to other services offered by a Seller Restricted Entity and all such ancillary Restricted Businesses in which Seller Restricted Entities are engaged represent no more than [***] percent ([***]%) of the aggregate consolidated revenues of the Seller Restricted Entities for the Seller Restricted Entities’ most recently completed fiscal year.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates For a period of [***] ([***]) years commencing on the Closing Date, no Seller Restricted Entity shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedattempt to, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on solicit for employment or engagement or hire or engage any stock exchange;
(ii) acquiring, merging or combining with, or investing in, Continuing Employee employed by any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Acquired Group Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation Closing, or encourage or induce any such employee to leave such employment, except any general solicitation (including through the use of recruiting or search firms) which is not directed specifically to any such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (employees so long as no Continuing Employee is employed or Persons performing engaged as a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicableresult thereof; provided, however, that nothing in this Section 5.22(b) shall prevent any Seller Restricted Entity from (i) hiring or soliciting any of the New Business Proponent shall continue to be bound Continuing Employees whose employment has been terminated by all Buyer or any of its Affiliates or (ii) after [***] ([***]) months from the date of resignation, hiring or soliciting any Continuing Employee who has resigned from his or her or its other duties and obligations to the Company employment with Buyer and its SubsidiariesAffiliates (including the Acquired Group Companies).
(c) If any Seller Restricted Entity breaches this Section 5.22, including all duties as a director of PubCo, Member, officer Buyer may seek an injunction or employee other equitable relief restraining such breach in accordance with Section 10.11(b) in addition to all other remedies available at law or equity; provided, however, that prior to seeking such injunction or remedy, Buyer shall give the applicable Seller Restricted Entity written notice specifying in reasonable detail the action or actions taken that Buyer believes to be prohibited by this Section 5.22 and such Seller Restricted Entity shall have thirty (30) days after receipt of such written notice to cease the prohibited behavior; provided, that no cure right shall apply to any subsequent breach arising out of the same or substantially similar acts.
(d) The Seller Restricted Entities acknowledge that the restrictions contained in Section 5.22 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.22 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.22 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(e) For the avoidance of doubt, the terms of Section 5.22(a) and Section 5.22(b) shall not apply to [***]. For purposes of this AgreementSection 5.22(e), the term “control” shall mean the power, authority or ability of Seller Parent to, directly or indirectly, cause the applicable entity to comply with the applicable terms of this Section 5.22.
Appears in 1 contract
Restrictive Covenants. 12.1 The Executive acknowledges that: (ai) Neither HHC nor the Executive performs services of a unique nature for the Company that are irreplaceable, and that the Executive’s performance of such services for a Competing Business (as defined below) will result in irreparable harm to the Company; (ii) the Executive will have access to Confidential Information, which, if disclosed, would unfairly and inappropriately assist in competition against the Company or any of its Affiliates shallaffiliates; (iii) the Company and its affiliates have substantial relationships with their clients, directly or indirectly by or through any Affiliate or agentbusiness partners, whether as principaland investors, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or and the Executive will have access to these persons and entities; (iv) the Executive will generate goodwill for the Company and its affiliates in any other capacitythe course of the Executive’s employment. Accordingly, during the applicable Executive’s employment hereunder and, in the event that the Executive’s employment is terminated for Cause or voluntarily by the Executive (whether or not for Good Reason), and the Company notified the Executive within ten (10) days of such termination of its intention to continue to pay the Executive 50% of his/her Base Salary during such period (unless the Executive’s employment is terminated by him/her for Good Reason, in which case his/her entitlements under Section 10.5 shall apply), during Executive’s employment and the six (6) month period thereafter (the “Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b”), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedExecutive agrees that he/she will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in a Competing Business, or with respect to which the Restricted Business if such stock is Company has spent significant time or resources analyzing for the purposes of engaging, on the date of termination, in any state of the United States, in Europe, or in any country in which the Company conducts business or has made plans and taken significant steps to conduct business (a “Planned Competing Business”). Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more than 2% of the equity securities of a publicly traded and listed on any stock exchange;
(ii) acquiring, merging corporation engaged in a Competing Business or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Planned Competing Business, so long as the gross revenues Executive has no active participation in the Competing Business or Planned Competing Business of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for corporation. For purposes of this Section 7.4(c)(iii)12.1, reference the “Company” shall mean the Company together with its parent companies and its and their direct and indirect subsidiaries, and “Competing Business” shall mean the research, development and/or sale of cancer therapeutics together with drug efficacy prediction technology (e.g. companion diagnostics, predictive biomarkers) for the treatment of cancer, including, without limitation, products or services designed to make such technology available to patients and businesses in the healthcare industry, or any other material business in which the Company is engaged as of the date of the Executive’s termination of employment. For the avoidance of doubt, the provisions of this Section 12.1 will not prohibit the Executive, after termination of his/her employment with the Company, from providing services of any nature to any policybusiness engaged in multiple business activities, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products including activities that would constitute part a Competing Business or a Planned Competing Business, as long as the Executive is not himself/herself directly involved in such Competing Business or Planned Competing Business activities, or managing or supervising the conduct of such Competing Business or Planned Competing Business activities. In addition, if the Company or a controlling interest in the Company is acquired by another entity during the term of this Agreement, in such circumstances the restrictions in this Section 12.1 will not be applicable to any business activities of the Restricted Business acquiring entity (and/or its affiliates) except to the extent ▇▇▇▇▇▇ that either (i) such business activities would constitute a Competing Business or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
Planned Competing Business (viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners than by reason of the voting capital stock of ▇▇▇▇▇▇ acquisition itself), or (ii) the Executive after such Affiliate immediately prior to acquisition is directly involved in the consummation conduct, management or supervision of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event thatbusiness activities. Allarity Employment Agreement_Marie Foegh_Dec. 7, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.2021 13
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Restrictive Covenants. (a) Neither HHC nor its Affiliates shall, You covenant and agree that at no time during the eighteen (18) month period immediately following the Resignation Date will you (i) directly or indirectly employ or seek to employ any person or entity employed at that time by the Company or through otherwise encourage or entice any Affiliate such person or agententity to leave such employment; (ii) become employed by, whether enter into a consulting arrangement with or otherwise agree to perform personal services for a Competitor (as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, defined below); (iii) acquire an ownership interest in a Competitor (excluding an investment which represents 3% or in less of the aggregate market value of the outstanding capital stock of a publicly traded Competitor); or (iv) solicit any other capacity, during customers or vendors of the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting Company on behalf of or for the benefit of ▇▇▇▇▇▇ a Competitor. You further covenant and agree that at no time following the Resignation Date will you communicate, furnish, divulge or disclose in any manner to any person or entity confidential business information or trade secrets of the Company, without the prior express written consent of the Company. For purposes of this Section 3, “Competitor” means any entity which engages in the design or distribution to department stores, mass-merchandisers or catalogue vendors of household products which directly compete with those (W) presently sold by the Company or APN Holding Company, Inc., (“APN”) and its subsidiaries or (X) which the Company or APN and its subsidiaries has made definitive plans or taken concrete steps to sell or launch at any time during such 18 month period. Notwithstanding the above, you shall not be prohibited from working (Y) in the personal care business solely in the United States and Canada and (Z) in the cookware and exercise business in the United States, Canada, or any international location, in each case, provided that you comply with the restrictions contained in this Section 3.
(b) All copyrights, patents, trade secrets, or other intellectual property rights associated with any ideas, concepts, techniques, inventions, processes, or works of authorship developed or created by you during the course of performing work for the Company or its Affiliatescustomers (collectively, during the applicable Restricted Period“Work Product”) shall belong exclusively to the Company and shall, engage or participate to the extent possible, be considered a work made by you for hire for the Company within the meaning of the Copyright Act of 1976, as amended (the “Act”). If and to the extent that any such Work Product is found as a matter of law not to be a “work made for hire” within the meaning of the Act, you expressly assign to the Company all right, title and interest in and to the Work Product, and all copies thereof, and the copyright, patent, trademark, trade secret and all their proprietary rights in the Restricted Business anywhere in Work Product, without further consideration, free from any claim, lien for balance due or rights of retention thereto on your part. Upon the worldrequest of the Company, you shall take such further actions, including execution and delivery of instruments of conveyance, as may be appropriate to give full and proper effect to such assignment. In the event that the Company is unable, after reasonable effort, to secure your signature on any letters patent, copyright or other analogous protection relating to Work Product, whether because of your physical or mental incapacity or for any other reason whatsoever, you hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as your agent and attorney-in-fact, to act for and on your behalf to execute and file any such application or applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent, copyright and other analogous protection with the same legal force and effect as if personally executed by you.
(c) Notwithstanding anything to the contrary in Section 7.4(b)All books, nothing in this Agreement shall precluderecords, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, and accounts relating in any manner in any to the customers of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap Company, whether prepared by you or otherwise coming into your possession, shall be the exclusive property of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded Company and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior shall be returned to the date of such acquisition were equal to Company after the Resignation Date or less than twenty percent (20%) of on the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to Company’s request at any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactiontime.
(d) In You acknowledge and confirm that (a) the event thatrestrictive covenants contained in this Section 3 are reasonably necessary to protect the legitimate business interests of the Company, during his and (b) the restrictions contained in this Section 3 (including without limitation the length of the term of the provisions of this Section 3) are not overbroad, overlong, or her unfair and are not the result of overreaching, duress or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates coercion of any Member other than PubCo (kind. You further acknowledge and confirm that your full, uninhibited and faithful observance of each of the covenants contained in such casethis Section 3 will not cause you any undue hardship, a “New Business Proponent”)financial or otherwise, determines and that she enforcement of each of the covenants contained herein will not impair your ability to obtain employment commensurate with your abilities and on terms fully acceptable to you or he or it would like otherwise to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity obtain income required for the Board to assess whether comfortable support of you and your family and the satisfaction of the needs of your creditors, partially based on the payments set forth in Section 2(a) above. You acknowledge and confirm that your special knowledge of the business of the Company and its Subsidiaries is such as would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that cause the Company serious injury or one of its Subsidiaries will in good faith pursue the New Business Opportunity loss if you were to use such ability and within three (3) years following the date the New Business Opportunity has been presented knowledge to the Board takes actions in good faith, subject benefit of a competitor or were to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that compete with the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all in violation of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this AgreementSection 3. You further acknowledge that the restrictions contained in this Section 3 are intended to be, and shall be, for the benefit of and shall be enforceable by, the Company.
(e) In the event that a court of competent jurisdiction shall determine that any provision of this Section 3 is invalid or more restrictive than permitted under the governing law of such jurisdiction, then only as to enforcement of this Section 3 within the jurisdiction of such court, such provision shall be interpreted and enforced as if it provided for the maximum restriction permitted under such governing law.
(f) If you shall be in violation of any provision of this Section 3, then each time limitation set forth in this Section 3 shall be extended for a period of time equal to the period of time during which such violation or violations occur. If the Company seeks injunctive relief from such violation in any court, then the covenants set forth in this Section 3 shall be extended for a period of time equal to the pendency of such proceeding including all appeals by you.
(g) You acknowledge that the Company relies on the provisions of this Section 3 and that monetary damages will not be an adequate remedy to a breach of this Section 3, and that it would be impossible for the Company to measure damages in the event of such a breach. Therefore, you agree that, in addition to other rights that the Company may have, the Company is entitled to an injunction preventing the Executive from doing any act that would be in breach of this Section 3.
Appears in 1 contract
Sources: Separation Agreement (Salton Inc)
Restrictive Covenants. (a) Neither HHC nor Each Company Shareholder hereby agrees with Parent that such Company Shareholder and its representatives shall not, and that such Company Shareholder shall cause its Affiliates shallnot to, directly at any time on or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during after the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedClosing Date, directly or indirectly, in without the Restricted Business if such stock is publicly traded and listed on prior written consent of Parent, disclose any stock exchange;
(ii) acquiring, merging confidential or combining with, proprietary information involving or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior relating to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such Subsidiaries, its business, its products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicableassets; provided, however, that the New Business Proponent information subject to the foregoing provisions of this sentence shall continue not include any information which was or becomes generally available to, or known by, the public (other than as a result of disclosure in violation hereof); and provided, further, that the provisions of this Section 6.11(a) shall not prohibit any retention of records or disclosure (i) required by any applicable Legal Requirement so long as reasonable prior notice is given of such disclosure and a reasonable opportunity is afforded to be bound contest the same or (ii) made in connection with the enforcement of any right or remedy relating to this Agreement.
(b) For a period of three years from and after the Closing Date, none of the Subject Company Shareholders will engage, directly or indirectly (whether as an employee, director, consultant, equity holder or otherwise), and will cause their Affiliates not to engage, directly or indirectly (whether as an employee, director, consultant, equity holder or otherwise), in any portion of the business conducted by all the Company or any of his its Subsidiaries at the Effective Time or her any business which the Company or any of its Subsidiaries has taken affirmative steps to implement prior to the Effective Time, in each case, other than on behalf of the Company or its other duties Subsidiaries; provided, however that (i) no owner of less than 5% of the outstanding stock of any publicly-traded corporation shall be deemed to engage solely by reason thereof in the businesses of such corporation and (ii) engaging in non-commercial academic activities shall not be deemed to violate the obligations to of the Subject Stockholders under this Section 6.11(b).
(c) For a period of three years from and after the Closing Date, the Subject Company Shareholders will not, and will cause their Affiliates not to, solicit, induce, or encourage any individuals who are or become employees of the Company and its SubsidiariesSubsidiaries or Affiliates, including all duties as and who receive cash compensation of $100,000 or more per annum from the Company and its Subsidiaries or Affiliates, to leave such employment or hire, employ or otherwise engage any such individual.
(d) If the final judgment of a director court of PubCo, Member, officer competent jurisdiction declares that any term or employee in accordance with the terms provision of paragraphs (b) or (c) of this AgreementSection 6.11 is invalid or unenforceable, the parties hereto agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or 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, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.
Appears in 1 contract
Restrictive Covenants. 15.1 During a period of twenty-four (a24) Neither HHC nor its Affiliates shallmonths from the Closing Date, the Seller and each of the Sellers' Ultimate Owners (each a “Restricted Party”) shall not;
i. be, directly or indirectly by indirectly, engaged, economically interested or through any Affiliate or agent, otherwise involved (whether as principal, agent, ownershareholder, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, partner, agent or otherwise) in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything Competing Business. This restriction shall not apply to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedportfolio investments, directly or indirectly, in listed securities that do not exceed five (5) per cent in total of the Restricted Business if such stock is publicly traded shares and voting rights of the listed on any stock exchange;company; or
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages. be entitled to, directly or indirectly, actively seek to solicit or hire any current employee of the Group (or any individual who was an employee of the Group in the Restricted Business, so long as preceding six (6) months) without the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) written consent of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired PersonBuyer, or in connection with any way cause or encourage such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering employees to leave any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionGroup Companies.
15.2 If a Restricted Party contemplates to be employed with or become a consultant for or otherwise assist or become involved in any undertaking that will or may constitute a Competing Business in violation of clause 15.1(i) (d) In such business the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business OpportunityBusiness”), the New Business Proponent relevant Restricted Party (such Person the “Notifying Person”) shall notify be entitled to provide a notice to the Board in writing of such intention and provide Buyer requesting the Board with sufficient detail regarding Buyer to consider whether the New Business Opportunity for will in the Board Buyer’s view, if undertaken by the Notifying Person, constitute a Competing Business. The Buyer must no later than fifteen (15) Business Days after having received notice from the Notifying Person provide its consent to assess whether or reject that the Company and its Subsidiaries would like to pursue such opportunity rather than allowing Notifying Person undertakes the New Business. Any consent provided shall be binding and irrevocable on the Buyer.
15.3 If a Restricted Party does not comply with clause 15.1, the Buyer shall as soon as reasonably practicable send a written notice thereof to such Restricted Party who shall remedy the non-compliance no later than ten (10) Business Proponent to pursue it. If Days after the Board determines that receipt of the Company or one notice.
15.4 In case of its Subsidiaries any non-compliance with clause 15.1, the Buyer will in good faith pursue addition to remedies under Danish law be entitled to seek an injunction (in Danish “fogedforbud”) before the New Business Opportunity and within three (3) years following ordinary courts anywhere in the date world against the New Business Opportunity has been presented Seller without having to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority put up any security irrespective of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementprovision for arbitration.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor For a period of three (3) years from the Transition Employment Date, without the prior written consent of Buyer, as to any Transferred Employee, Seller agrees that it shall not, and that it shall cause its Affiliates shallnot to, directly or indirectly indirectly, either (i) solicit for employment or hire any Transferred Employee (in each case, irrespective of whether that Transferred Employee is then employed by Buyer or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultantits Affiliates), or in (ii) otherwise induce any Transferred Employee to discontinue his or her employment or business relationship with Buyer or any of its Affiliates; provided, that Seller and its Affiliates shall not be precluded from soliciting or hiring, or taking any other capacityaction with respect to any such individual (1) who responds to a solicitation by a search firm or recruiting agency not specifically targeted at employees of Buyer or any of its Affiliates or (2) whose employment was terminated by Buyer or its Affiliates other than due to a voluntary resignation by that individual or whose employment with Buyer or its Affiliates ceased at least six (6) months prior to the commencement of employment discussions between such individual and Seller or its Affiliates; provided, during further, that Seller and its Affiliates shall not be restricted from engaging in general solicitations or advertising not targeted at Transferred Employees. For the applicable Restricted Periodavoidance of doubt, engage Seller shall not be required to cause its former employees or participate in the Business anywhere in former employees of its Affiliates to abide by the worldterms of this Section 7.13(a).
(b) Neither ▇▇▇▇▇▇ nor As a material inducement to Buyer to enter into this Agreement and the Collateral Agreements and to consummate the transactions contemplated hereby and thereby, Seller agrees that commencing on the Closing Date for a period of three (3) years thereafter, except for the sole purpose of providing transition services to Buyer during the Transition Service Period, without the prior written consent of Buyer, it shall not, and it shall cause its Affiliates shallnot to, directly or indirectly through do any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business following anywhere in the world:
(i) engage in, acquire or own an interest in (in whole or in part) any business that engages in the same or substantially the same business as the Business on the date hereof;
(ii) except for the possible pursuit of Chapter 5 Claims, Rights and Causes of Action that are Excluded Assets, interfere with or disrupt, or attempt to interfere with or disrupt, the relationship of Buyer or any of its Affiliates with any customer, vendor, supplier, or contractor of the Business; or
(iii) solicit or divert, or attempt to solicit or divert, the business or patronage (with respect to products or services of the kind or type developed, produced, marketed, furnished, or sold by the Business) of any customer or prospective customer of the Business.
(c) Notwithstanding anything to the contrary in Section 7.4(b)foregoing, nothing in this Section 7.13 shall preclude Seller from exercising its rights or complying with its obligations under this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Collateral Agreement.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallThe Executive acknowledges that (i) the Company is engaged and in the future will be engaged in the business of developing and providing products and services relating to financial information (the foregoing, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in together with any other capacitybusinesses that the Company or its affiliates over which the Executive has responsibility under this Agreement may engage in from the date hereof to the date of the termination of this Agreement, during being hereinafter referred to as the applicable Restricted Period"Company Business"); (ii) the Executive's services to the Company have been and will be, engage or participate special and unique; (iii) the Executive's work for the Company has and will give the Executive, access to trade secrets of and confidential information concerning the Company; (iv) the Company Business is national and international in scope; (v) the Business anywhere Parent would not have entered into the Merger Agreement but for the agreements and covenants contained in this Section 4; and (vi) the world.agreements and covenants contained in this Section 4 are essential to protect the business and goodwill of the Company. In order to induce the Company to enter into this Agreement and the Parent to enter into the Merger Agreement, the Executive covenants and agrees that:
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or In consideration for the benefit of ▇▇▇▇▇▇ or its Affiliatespayments provided for hereunder, during the applicable Term hereof and for a period equal to one year after the termination or expiration of the Executive's employment by Company (whether or not pursuant to this Agreement), however caused, (the "Restricted Period"), the Executive shall not, unless otherwise approved by the Company, other than as specifically provided in this Agreement directly or indirectly, (i) engage or participate in the Restricted Company Business anywhere as conducted on the date hereof or as it may hereafter be conducted during the course of the Executive's employment, or a business competitive with the Company Business; (ii) assist any person in conducting a business competitive with the Company Business, provided, however, that this is not intended to restrict the Executive's ownership of up to 1% of the securities of a publicly traded company that engages in the worldCompany Business; or (iii) interfere with business relationships (whether formed heretofore or hereafter) between the Company and customers of or suppliers to the Company Business. The Executive agrees that in the event of a breach or threatened breach by the Executive of this section the Company shall be entitled to seek injunctive relief restraining the breaching party from engaging in any of the aforesaid prohibited activities. Nothing hereunder, however, shall be construed as prohibiting the Company from pursuing any other remedies available to it in law or in equity.
(c) Notwithstanding anything to During and after the contrary Restricted Period, the Executive shall keep secret and retain in Section 7.4(b), nothing in this Agreement strictest confidence and shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any not use for the benefit of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedExecutive or others, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered except in connection with the Alliance Business (as defined in business and affairs of the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Serviceits affiliates, Incorporated as of March 9, 2012;
(v) underwriting all confidential information relating to the Company Business or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC to the Company or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection)any of the Company's affiliates, regardless including, but not limited to, "know-how," trade secrets, customer lists, subscription lists, details of whether the subject matter of such reinsurance (consultant contracts, pricing policies, operational methods, marketing plans or strategies, product development techniques or plans, business acquisition plans, technical processes, new personnel acquisition plans, processes, designs and design projects, inventions, software, source codes, object codes, system documentation, research projects and other similar protection) relates business affairs relating to the Restricted Company Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies any affiliate of the type marketedCompany learned by the Executive heretofore or hereafter, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part and shall not disclose them to anyone outside of the Restricted Business to Company and its affiliates, either during or after employment by the extent ▇▇▇▇▇▇ Company or any of its Affiliates is reasonably affiliates, except (i) as required in the course of performing the Executive's duties hereunder; (ii) with the Company's express written consent, or (iii) pursuant to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a mergerlegal process. Notwithstanding the foregoing, share exchange or other business combination transaction immediately following which the beneficial owners obligations of the voting capital stock Executive in this Section 4(c) shall not apply to confidential information (A) which at the date hereof or thereafter becomes a matter of ▇▇▇▇▇▇ public knowledge without breach by the Executive of this Agreement; or such Affiliate immediately prior (B) which is obtained by the Executive from a person other than the Company or an affiliate of the Company who is under no obligation of confidentiality to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionCompany.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or During the Restricted Business (in respect of ▇▇▇▇▇▇ Period and its Affiliates) (a “New Business Opportunity”), so long as the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether Executive is employed by the Company and its Subsidiaries would like the Executive shall not, directly or indirectly (i) hire, solicit or encourage any employee to pursue such opportunity rather than allowing leave the New Business Proponent to pursue it. If the Board determines that employment of the Company or one any of its Subsidiaries will in good faith pursue affiliates; or (ii) hire any such employee who has voluntarily left the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority employment of the Board determine that Company or any of its affiliates within one year of the termination of such employee's employment with the Company or any of its affiliates.
(e) Upon termination of the Executive's employment with the Company, all documents, records, notebooks, and its Subsidiaries will not pursue similar repositories of or containing trade secrets or intellectual property then in the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its SubsidiariesExecutive's possession, including all duties as a director of PubCocopies thereof, Memberwhether prepared by the Executive or others, officer will be promptly returned to or employee in accordance left with the terms of this AgreementCompany.
Appears in 1 contract
Sources: Employment Agreement (Primark Corp)
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallIn order to assure that MTLM will realize the benefits of this Agreement and in consideration of the transactions set forth in this Agreement, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither Mike ▇▇▇ Sol ▇▇▇▇▇▇ nor its Affiliates shall▇▇▇ntly and severally, each agree with MTLM that they will not for a period of three years from the later of the Effective Time or the date they cease to be an employee, officer or director of the MTLM Companies:
(a) directly or indirectly, alone or as a partner, joint venturer, officer, director, employee, consultant, agent, independent contractor or stockholder of any company or business, engage in any business activity in the State of Texas which is directly or indirectly through any principalin competition with the business conducted by HouTex at the Effective Time; provided, partnerhowever, managerthat, director, officer, contractor, or employee thereof acting on behalf the beneficial ownership of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class the shares of stock of any corporation having a Person engaged, directly class of equity securities actively traded on a national securities exchange or indirectlyover-the-counter market shall not be deemed, in and of itself, to violate the Restricted Business if such stock is publicly traded and listed on any stock exchangeprohibitions of this Section;
(b) directly or indirectly (i) induce any Person which is a customer of HouTex at the Effective Time to patronize any business directly or indirectly in competition with the business conducted by HouTex; (ii) acquiringcanvass, merging solicit or combining withaccept from any Person which is a customer of HouTex, any such competitive business, or investing in(iii) request or advise any Person which is a customer of HouTex at the Effective Time to withdraw, curtail or cancel any such customer's business with HouTex;
(c) directly or indirectly employ, or knowingly permit any company or business directly or indirectly controlled by him, to employ, any Person person who was employed by HouTex at or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended within six months prior to the date of such acquisition were equal Effective Time, or in any manner seek to or less than twenty percent (20%) of the total consolidated gross revenues of induce any such Person to leave his or business for such Fiscal Yearher employment; provided, that, subject to the requirements of Law, Mike ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇ Sol ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Serviceee and acknowledge that the restrictions contained in this Section 5.9 are reasonable in scope and duration and are necessary to protect MTLM Companies after the Effective Time. If any provision of this Section as applied to any party or to any circumstance is adjudged by a court to be invalid or unenforceable, Incorporated as the same will in no way affect any other circumstance or the validity or enforceability of March 9this Agreement. If any such provision, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any part thereof, is held to be unenforceable because of their Affiliates;
(vi) marketingthe duration of such provision or the area covered thereby, producingthe parties agree that the court making such determination shall have the power to reduce the duration and/or area of such provision, sellingand/or to delete specific words or phrases, underwriting or administering reinsurance (and in its reduced form, such provision shall then be enforceable and shall be enforced. The parties agree and acknowledge that the breach of this Section will cause irreparable damage to the MTLM Companies and upon breach of any provision of this Section, the MTLM Companies shall be entitled to injunctive relief, specific performance or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicableequitable relief; provided, however, that that, this shall in no way limit any other remedies which the New Business Proponent shall continue MTLM Companies may have (including, without limitation, the right to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementseek monetary damages).
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC Without limiting Section 5.04, each of PEL and the Seller recognizes and acknowledges that it has certain Confidential Information and Trade Secrets. From and after the Closing until the third anniversary of the Closing Date (the “Restriction Period”), none of PEL, the Seller nor its Affiliates any of their respective subsidiaries or affiliates (the “Seller Restricted Parties”) shall, directly or indirectly by indirectly, use, take commercial or through proprietary advantage of or profit from any Affiliate Confidential Information or agentTrade Secrets or disclose Confidential Information or Trade Secrets to any person for any reason or purpose whatsoever, whether except as principalis required to be disclosed under applicable Law or as otherwise may be necessary to enforce PEL’s or Seller’s rights or Purchasers’ obligations under this Agreement; provided, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in that the party required to make such disclosure shall provide the Operating Companies with prompt notice of any other capacity, during such disclosure and shall use commercially reasonable efforts to limit the applicable Restricted Period, engage or participate in the Business anywhere in the worldextent of such disclosure.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for Without limiting the benefit of ▇▇▇▇▇▇ or its Affiliatesforegoing, during the applicable Restricted Restriction Period, engage or participate in the (i) no Seller Restricted Business Party will, anywhere in the world.
(c) Notwithstanding anything to , without the contrary in Section 7.4(b)prior written consent of the Purchasers, nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from either directly or indirectly engagingindirectly, whether for such Seller Restricted Party’s own account or solely or jointly with others, as a shareholder, partner, lender or joint venturer, enter into or engage in any business that competes with the Acquired Business as conducted as of the date hereof; provided, that the foregoing covenant shall not restrict any Seller Restricted Party’s right to (x) invest in stock, bonds or other securities of any person, so long as such stock, bonds or other securities are listed on any national securities exchange or are publicly owned and regularly traded in the over-the-counter-market and constitute no more than, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless case of any overlap class of the subject matter thereof):
(i) acquiring less than an aggregate capital stock or other securities of any issuer, five percent (5%) of the issued and outstanding shares or other securities of such issuer) anywhere in the world or (y) own, invest in, or engage in any class of stock activities, services, products or systems of a Person engagednature provided by such Seller Restricted Party apart from the Acquired Business as of the date of this Agreement, and any natural evolution thereof.
(c) From and after the date hereof until two (2) years after the Closing Date, no Seller Restricted Party shall, either directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person solicit or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divestinduce any person who, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination as of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) date hereof or as of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired PersonClosing, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance was a Service Provider of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Acquired Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
Company Subsidiary (vi“Protected Employees”) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during terminate his or her relationship with such Operating Company, or its Restricted Period, hire any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicableProtected Employee; provided, however, that the New Business Proponent foregoing covenant shall continue not restrict any Seller Restricted Party’s right to be bound by all (a) solicit or retain the services of any Protected Employee at any time after (i) the date such Protected Employee is terminated or (ii) the six (6) month anniversary of the date such Protected Employee resigns his or her employment (provided that such Protected Employee did not terminate such relationship based upon any conduct by any Seller Restricted Party in breach of this Section 5.14(c)), or its (b) solely for the purposes of clause (x) of the foregoing covenant, conduct general solicitations for employees or public advertisements of employment opportunities (including, without limitation, any recruitment efforts conducted by any recruitment agency), provided, that such general solicitations, public advertisements and recruitment efforts are not specifically directed at any of the Protected Employees.
(d) If, at the time of enforcement of the covenants contained in this Section 5.14 (the “Restrictive Covenants”), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable Law. The Seller has consulted with legal counsel regarding the Restrictive Covenants applicable to it and, based on such consultation, has determined and hereby acknowledges that such Restrictive Covenants are reasonable in terms of duration, scope and area restrictions and are necessary to protect the goodwill of the Operating Companies. The Seller further acknowledges and agrees that the Restrictive Covenants are being entered into by such person in connection with the transactions contemplated by this Agreement and not directly or indirectly in connection with the Seller’s employment or other duties relationship with the Operating Companies.
(e) If any of the Seller Restricted Parties breaches, or threatens to commit a breach of, any of the Restrictive Covenants applicable to it, Purchasers shall have the following rights and obligations remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer Purchasers at law or employee in accordance with equity or pursuant to the terms of this Agreement: (i) the rights provided under Section 5.14(d), (ii) the right and remedy to have such Restrictive Covenants specifically enforced by any court of competent jurisdiction (without posting a bond), it being agreed that any breach or threatened breach of such Restrictive Covenants would cause irreparable injury to Purchasers and that money damages would not provide an adequate remedy to Purchasers; and (iii) the right to money damages.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor During the period a Member or a Beneficial Owner or any of their respective Designated Affiliates (each, a “Restricted Person”) directly or indirectly owns any Units and for a period of two (2) years thereafter, such Restricted Person shall, and shall cause its Affiliates shall(which in the case of any member of (x) the WCAS Group shall only include WCAS XIII, L.P. and its portfolio companies and (y) the Walgreens Group shall only include the Walgreens Parent and its controlled Affiliates) not to, except with respect to activities of the Company or any of its Subsidiaries, directly or indirectly by or through any Affiliate or agentindirectly, whether as principalowner, partner, investor, consultant, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultantco-venturer or otherwise engage, or have any interest in any other capacitybusiness or Person that engages, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engagingUnited States, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring the development or management of a Person’s specialty pharmacy business and/or (ii) any business that is competitive with the Business of the Company or any its Subsidiaries as such Business was (1) conducted prior to the date hereof or (2) planned, and substantial steps were taken by the Company or its Subsidiaries toward conducting such Business, in each case prior to the date hereof; provided that this Section 12.2(a) shall be deemed not breached as a result of (1) the ownership by a Restricted Person of less than an aggregate of five percent (5%) 2% of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if of the Company or any of its Subsidiaries as of the date hereof; provided, however, that such stock is publicly traded and listed on any stock a national securities exchange;
, (ii2) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Businesscase of UMass and its Affiliates, so long (A) owning and operating hospital licensed pharmacies (retail and non-retail) located on the hospital campus of any UMass Affiliate, but precluding open or closed door specialty pharmacies except as provided in the gross revenues last sentence of this paragraph; (B) owning and operating non-hospital licensed pharmacies that (I) are not specialty pharmacies, (II) are located on site and incorporated into the clinical operations of any UMass Affiliate and (III) exclusively serve patients of the UMass Affiliate; or (C) engaging in the activities listed on Exhibit A to the extent consistent with the past practice UMass or such Person or business derived from the Restricted Business for the most recent fiscal year ended applicable Affiliate prior to the date of such acquisition were equal to this Agreement or less than twenty percent (20%3) in the case of Walgreens and the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investmentWalgreens Parent, (x) cause such acquired Person or business any activity that would otherwise be deemed to cease engaging in the Restricted Business violate clause (i) above or (y) sign (A) any business conducted on the date of this Agreement by the Walgreens Parent or any of its Affiliates or any joint venture arrangement to which the Walgreens Parent is a definitive agreement party or (B) any business that is contemplated or being developed or designed on the date of this Agreement by the Walgreens Parent or its Affiliates or any such joint venture arrangement to divest, and subsequently divest, which the relevant portion Walgreens Parent is a party or (z) business activity that would otherwise violate this Section 12.2(a) that is acquired from any Person (an “After-Acquired Business”) or is carried on by any Person that is acquired by or combined with Walgreens or any of such acquired Person or business conducting its Affiliates in each case after the Restricted Business to date of this Agreement (an unaffiliated third party“After-Acquired Company”); provided, that with respect to any clause (z), if the revenues derived from the portion such After-Acquired Business or After-Acquired Company that would otherwise violate this Section 12.2(a) constitute greater than 35% of the gross revenues of such After-Acquired Business or After-Acquired Company for the fiscal year immediately preceding such acquisition, merger or combination occurring prior to expiration or termination then, within twelve (12) months after the consummation of the Alliance Agreementpurchase or other acquisition of the After-Acquired Business or the After-Acquired Company, the requirements set forth in Section 5.12(b)(i)(BWalgreens Parent shall sign a definitive agreement to dispose, and within twenty-four (24) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to months after the consummation of such transaction do not beneficially own more than fifty percent purchase or other acquisition the Walgreens Parent shall actually dispose (50%) to an unrelated third party), of the combined voting power relevant portion of the outstanding voting capital stock entitled to vote generally in the election of directors (business or Persons performing a similar function) securities of the entity After-Acquired Business or the After-Acquired Company resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such caseexcess gross revenues, a “New Business Proponent”)unless, determines that she or he or it would like to pursue an opportunity that otherwise constitutes at the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing expiration of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.twenty-
Appears in 1 contract
Sources: Limited Liability Company Agreement (Walgreens Boots Alliance, Inc.)
Restrictive Covenants. Each of the Seller Parties, for itself and on behalf of its Affiliates, covenants and agrees as follows:
(a) Neither HHC For the period commencing on the date hereof and terminating on the 2nd anniversary of the Closing Date, neither RSG nor its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ Seller nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of their respective Affiliates (other than the following (with each such subpart of this Section 7.4(cCompany) having independent significance regardless of any overlap of the subject matter thereof):
will (i) acquiring less than an aggregate of five percent (5%) of solicit any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on municipal solid waste disposal business from any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance AgencyDisposal Accounts or (ii) solicit from any counterparty to a Landfill Operating Contract or Government Contract, LLCthe disposal services provided by the Company under such Contract, provided, however, that, subject to Section 6.12(b) below, the foregoing restrictions set forth in this Section 6.12 shall not prohibit RSG, Seller or any of its Affiliates from (A) accepting disposal business from customers willing to pay the posted gate disposal fees (without providing any broker, trucking or other refund, deduction, credit or discount of any kind), (B) responding to, or executing a contract with any customer solicited through, a request for proposals or other bidding process (whether public or private), (C) responding to inquiries or solicitations made by any customers (including pricing inquiries) and providing disposal services to the customers that are derived as a result of such inquiries or solicitations, or (D) continuing to do business with any customers of RSG, Seller or any of their Affiliates at locations not included in the ▇▇▇▇▇▇▇▇ Classic Marine Insurance AgencyCompany Assets, LLC or so long as such business does not include the solicitation of any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities business included in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇▇▇ or any Disposal Accounts as of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; orthe date hereof.
(viiib) entering into Notwithstanding anything to the contrary set forth in Section 6.12(a) above, for the period commencing on the date hereof and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which terminating on the beneficial owners 1st anniversary of the voting capital stock of Closing Date, RSG, Seller and their respective Affiliates agree not to accept any municipal solid waste disposal business from any ▇▇▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicableDisposal Accounts; provided, however, that the New Business Proponent foregoing restriction set forth in this Section 6.12(b) shall continue not prohibit RSG, Seller or any Affiliate from accepting disposal business in the event that the customer with respect to such ▇▇▇▇▇▇▇▇ Disposal Account asserts that any of the key disposal terms offered by the Company, Buyer or their Affiliates to such ▇▇▇▇▇▇▇▇ Disposal Account following the Closing are materially less favorable than the disposal terms in existence as of the Closing Date with respect to such ▇▇▇▇▇▇▇▇ Disposal Account; provided further, however, that the foregoing restrictions set forth in this Section 6.12(b) shall not prohibit RSG, Seller or any Affiliate from (i) accepting disposal business from customers willing to pay the posted gate disposal fees (without providing any broker, trucking or other refund, deduction, credit or discount of any kind), (ii) responding to, or executing a contract with any customer solicited through, a request for proposals or other bidding process (public but not private), or (iii) continuing to do business with any existing customers of RSG, Seller or any of their Affiliates at locations not included in the ▇▇▇▇▇▇▇▇ Company Assets, so long as such business does not include the solicitation or acceptance of any business included in the ▇▇▇▇▇▇▇▇ Disposal Accounts as of the date hereof. For purposes of clarifying clause (iii) above, contracts in place as of the date hereof with existing customers of RSG, Seller or their Affiliates shall not be bound considered a solicitation or acceptance of existing ▇▇▇▇▇▇▇▇ Disposal Account business.
(c) In addition to any other rights or remedies available to Buyer Parties pursuant to this Agreement or any other agreement, at law or in equity, Buyer Parties shall be entitled to injunctive relief requiring specific performance by all the Seller and its Affiliates of his or her or this Section and the Seller, for itself and its other duties and obligations Affiliates, consents to the Company entry thereof.
(d) The Seller Parties and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with Buyer Parties acknowledge that the terms intent of this Section 6.12 is to impose the same restrictions, limitations, conditions and exceptions that would apply pursuant to Section 6.20 of the Asset Purchase Agreement if the ▇▇▇▇▇▇▇▇ Company Assets were being sold under the Asset Purchase Agreement.
Appears in 1 contract
Restrictive Covenants. Former Executive acknowledges that the Company’s obligations to pay or continue to provide any portion of the Severance Package is expressly conditioned on her continued compliance with the restrictive covenants set forth in this Section 7 (collectively, the “Restrictive Covenants”), and Section 8:
(a) Neither HHC nor its Affiliates shallFor 12 months following the Termination Date, Former Executive shall not (whether directly or indirectly by indirectly, individually or through for any Affiliate person or agentorganization) solicit, whether as principaldivert, agentinterfere with, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultantdisturb or take away, or attempt to solicit, divert, interfere with, disturb or take away (A) the services of any current or former employee or independent contractor of the Company, or (B) the patronage of the following (each, a “Client”): (i) any customer or prospective customer of ▇▇▇▇▇ ▇▇▇▇▇’ Customer Interaction division (but limited to those who are current customers at the time of such solicitation or to whom ▇▇▇▇▇ ▇▇▇▇▇ provided or proposed goods, services or software in the year preceding the Termination Date); or (ii) any person or organization that purchased goods, services or software from the Company or its affiliates during any time within the year preceding the Termination Date, and for which purchase Employee received a commission or other compensation related to the provision thereof. Notwithstanding Section 7(a)(A) above, it shall not be a breach of Section 7(a)(A) for Former Executive to maintain a social relationship with current and/or former employees of the Company, nor shall it be a breach of Section 7(a)(A) for Former Executive to interact with current or former employees of the Company by way of social media, in person, or otherwise, so long as Former Executive does not engage in any other capacity, during of the applicable Restricted Period, engage or participate in the Business anywhere in the worldactivities prohibited under Section 7(a)(A).
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shallAt all times following the Termination Date, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for Executive agrees to hold the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business Proprietary Information (as defined below) in strictest confidence, to take all reasonable steps to prevent the Alliance Agreement);
(iii) marketingProprietary Information from being disclosed to third parties, producing, selling, underwriting or administering and to refrain from using the Proprietary Information for any Insurance Policies purpose other than any policy, binder or contract of insurance the conduct of the type comprising the Restricted Business (provided that, for Company’s business pursuant to Section 6 of this Agreement. For purposes of this Section 7.4(c)(iii7(b), reference “Proprietary Information” shall mean any and all knowledge, data or information of a business nature relating to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will affiliates, including without limitation (a) trade secrets, copyrights, ideas, business practices, formulas, data, know-how, negative know-how, improvements, discoveries, developments, designs, inventions, techniques, all technical data, proposals, reports, and client or vendor information compiled by the Company, and any modifications or enhancements thereto, software, programs, and information (whether or not necessarily in good faith pursue the New Business Opportunity and within three (3writing) years following the date the New Business Opportunity which has been presented actual or potential economic value to the Board takes actions in good faithCompany; (b) marketing techniques and materials, subject to commercial limitationspricing information, to implement such New Business Opportunitycost information, margin information, client and vendor information of any type (including client identities, project information and terms of engagement), information regarding the New Business Proponent shall not pursue it Company’s interactions with third parties, governmental entities and personnel, business plans, business strategy, financial statements, projections, budgets and financial information of any type; and (c) information regarding the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority skills and compensation of the Board determine that the Company employees and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementindependent contractors.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor Seller Party acknowledges that it is familiar with the trade secrets of the Company and other information concerning the business of the Company. Each Seller Party acknowledges and agrees that the Buyer and its Affiliates shallwould be irreparably damaged if a Seller Party were to provide services to or otherwise participate in a Competing Business, directly or indirectly and that any such competition by or through any Affiliate or agenta Seller Party in violation of this Section 7.06 could result in a significant loss of goodwill by the Buyer in respect of the business of the Company. Each Seller Party acknowledges and agrees that the Buyer and its Affiliates would not obtain the benefit of the bargain set forth in this Agreement as specifically negotiated by the parties hereto if such Seller Party breached the provisions of this Section 7.06. Therefore, whether as principalin further consideration of the Purchase Price and other good and valuable consideration, agentthe sufficiency of which is hereby acknowledged, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, each Seller Party agrees that during the applicable period beginning on the Closing Date and ending on the five (5)-year anniversary of the Closing Date (the “Restricted Period”), engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor such Seller Party shall not, and shall cause its controlled Affiliates shallnot to, directly or indirectly through any principalother Person, partner(i) whether as a sole proprietor, manageremployee, directorconsultant, officeradvisor or otherwise, contractorengage in, participate in, or employee thereof acting on behalf of permit such Person’s name to be used by any enterprise engaging in, any business which may provide software or for payment solutions competitive to the benefit of ▇▇▇▇▇▇ Company’s existing products and solutions to hotels or its Affiliatesaccommodations merchants (the “Competing Business”) anywhere in the world (the “Restricted Territory”), during the applicable Restricted Periodor (ii) own, engage control, or participate in the Restricted ownership, management or control of, lend money or capital to or invest capital in, any business or Person that engages in a Competing Business anywhere in the world.
Restricted Territory; provided, however, that no Seller Party shall be prohibited from owning (cA) Notwithstanding anything up to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five two percent (52%) of any class of stock securities of a any Person engaged, directly or indirectly, in the Restricted Business if such stock that is publicly traded on a national or regional securities exchange or in the over-the-counter market so long as such Seller Party has no active participation in connection with the business of such corporation and/or (B) Equity in the Buyer.
(b) During the Restricted Period, no Seller Party shall (and listed on shall cause its, his or her controlled Affiliates not to) directly, or indirectly through another Person, (i) induce or attempt to induce any stock exchange;
employee of the Company to leave the employ or service of the Company or (ii) acquiring, merging or combining with, or investing in, hire any Person or business that engages, directly or indirectly, in person who was an employee of the Restricted Business, so long as Company at any time during the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended twelve (12)-month period immediately prior to the date of on which such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Yearhiring would take place; provided, thathowever, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging nothing in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, this Section 7.06 shall prohibit any general solicitation for employees that with respect to any such acquisition, merger or combination occurring prior to expiration or termination is not specifically targeted at employees of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, Company or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);hiring resulting therefrom.
(iiic) marketingEach Seller Party acknowledges that the restrictions, producing, selling, underwriting or administering any Insurance Policies prohibitions and other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes provisions of this Section 7.4(c)(iii)7.06 are reasonable, reference fair and equitable in scope, terms and duration, are necessary to any policyprotect the legitimate business interests of the Buyer and are a material inducement to the Buyer to enter into the Transactions. Each Seller Party acknowledges and agrees that the Restricted Period, binder or contract as it applies to such Seller Party in violation of insurance this Section 7.06 only, shall not include reinsurance be increased by the period of time beginning from the commencement of any form, other than reinsurance violation of this Section 7.06 until such time the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted violation has been cured by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionSeller Party.
(d) It is the desire and intent of the parties to this Agreement that the provisions of this Section 7.06 shall be enforced to the fullest extent permissible under applicable Law and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Section 7.06 shall be adjudicated to be invalid or unenforceable, such provision shall be deemed amended to delete or modify (including to limit or reduce its duration, geographical scope, activity or subject) the portion adjudicated to be invalid or unenforceable, such deletion or modification to apply only with respect to the operation of such provision of this Section 7.06 in the particular jurisdiction in which such adjudication is made and to be made only to the extent necessary to cause the provision as amended to be valid and enforceable.
(e) Each Seller Party acknowledges and agrees that the provisions of this Section 7.06 are of a special and unique nature, the loss of which cannot be accurately compensated for in damages by an Action at law and that the breach of the provisions of this Section 7.06 would cause the Buyer irreparable harm. In the event that, during his of a breach or her attempted breach by Seller or any of its Restricted Period, any Member other than PubCo, including the equityholders or controlled Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect provisions of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”)this Section 7.06, the New Business Proponent Buyer shall notify be entitled to seek an injunction restraining it from such breach or any further breach (without the Board in writing necessity of such intention posting a bond or other security). Nothing herein contained shall be construed as prohibiting the Buyer from pursuing any other remedies available for any breach of this Section 7.06, and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company pursuit of an injunction or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent any other remedy shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If be an exclusive election of such a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementremedy.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallFor so long as any Class B Member (such Members, directly the “Restricted Parties”) or indirectly by any such Class B Member’s Permitted Transferee owns a direct or through any Affiliate or agentindirect beneficial interest in the Company, whether as principalindirect owners of a Member or otherwise, agentand for three (3) years following the date on which such Member or such Permitted Transferee or such Member ceases to own such an interest in the Company (such period with respect to each Restricted Party, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable “Restricted Period”), engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor such Restricted Party shall not, and shall cause its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its respective Affiliates, during the applicable Restricted Periodmembers, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedshareholders and trustees not to, directly or indirectly, (except in service of the Restricted Business if such stock is publicly traded and listed on Company or its Affiliates, including the Company Entities), (i) manage, operate, control or in any stock exchange;
capacity, engage in or have any direct or indirect ownership interest in, (ii) acquiringsponsor, merging advise, provide funding to or combining withotherwise assist any other Person to engage in or (iii) permit its name to be used in connection with any business in North America (the “Restricted Territory”) which is engaged, or investing in, any Person or business that engages, either directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of (A) the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business passive beneficial ownership (as defined in the Alliance Agreement);
(iiiSection 13(d) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising Exchange Act) of less than 2% of the outstanding equity securities of a publicly-held corporation that is engaged in a Restricted Business within the Restricted Business Territory, (provided thatB) the ownership and operation of a logistics services company operating in the pharmaceutical industry or the sale of medical surgical and laboratory consumables and supplies, for durable medical equipment and other non-pharmaceutical items, (C) the ownership of and operation of the business of Apace KY LLC, a Kentucky limited liability company d/b/a Apace Packaging LLC, in substantially the same manner and scope as such business is currently conducted, and (D) any of those activities listed on Schedule 7.07 of the Purchase Agreement, shall not be deemed, solely by reason thereof, a violation of this Schedule 5.4(a). For purposes of this Section 7.4(c)(iiiAgreement, the term “engage in” includes any direct or indirect interest in any enterprise, whether as a stockholder, member, partner, joint venturer, franchisor, franchisee, owner, investor, agent, employee executive, consultant or otherwise or rendering any direct or indirect service or assistance to any Person.
(b) Each Restricted Party covenants that for so long as it owns a direct or indirect beneficial interest in the Company, whether as indirect owners of a Member or otherwise, and for two (2) years following the date on which such Member ceases to own such an interest in the Company, such Restricted Party shall not (except in the furtherance of the Restricted Parties duties as an employee of the Company or any of its Affiliates), reference to any policydirectly or indirectly, binder individually or contract of insurance shall not include reinsurance on behalf of any formother Person, (i) solicit, aid or induce any employee, representative or agent of the Company’s and its subsidiaries’ and affiliates’ (collectively, the “Company Group”) to leave such employment or retention or to accept employment with or render services to or with any other Person, firm, corporation or other entity unaffiliated with the Company Group or hire or retain any such employee, representative or agent, or take any action to materially assist or aid any other person, firm, corporation or other entity in identifying, hiring or soliciting any such employee, representative or agent, other (x) than reinsurance any such employee, representative or agent whose employment has been terminated by the primary purpose Company Group and (y) his personal assistant(s), (ii) solicit, aid or effect of which is induce (or attempt to provide coverage on Insurance Policies do any of the type marketedforegoing) directly or indirectly, produced, sold, underwritten any current or administered prospective customer of the Company Group with whom the Restricted Party substantially dealt with at any time during the last two years of the Class B Member’s status as a Member of the Company to purchase goods or services then sold in connection with the Alliance Business Company’s business from another person, firm, corporation or other entity or assist or aid any other persons or entity in identifying or soliciting any such customer or (iii) interfere in any manner with the relationship of the Company Group and any of its vendors. An employee, representative or agent shall be deemed covered by this Section 5.4(b) while so employed or retained by the Company Group and for six months thereafter. Anything to the contrary herein notwithstanding, the following shall not be deemed a violation of this Section 5.4(b): (A) the Restricted Party’s solicitation of the Company Group’s customers and/or vendors in connection with, and directly related to, his engaging in a business that complies with Section 5.4(a); (B) the Restricted Party’s responding to an unsolicited request for an employment reference regarding any former employee of the Company Group from such former employee, or from a third party, by providing a reference setting forth his personal views about such former employee; or (C) if an entity with which the Restricted Party is associated hires or engages any employee of the Company Group, if the Restricted Party was not, directly or indirectly, involved in hiring or identifying such person as defined a potential recruit or assisting in the Alliance Agreement));recruitment of such employee. For purposes hereof, the Restricted Party shall be deemed to have been involved “indirectly” in soliciting, hiring or identifying an employee only if the Restricted Party (x) directs a third party to solicit or hire the employee, (y) identifies an employee to a third party as a potential recruit or (z) aids, assists or participates with a third party in soliciting or hiring an employee.
(ivc) marketingThe Company, producingthe Restricted Parties and the other Members mutually agree that it is in the interest of all parties for the Restricted Parties to enter into the restrictive covenants set forth in this Section 5.4 to, sellingamong other things, underwriting or administering Insurance Policies in connection with protect the general marine insurance coverage legitimate business as conducted by ▇▇▇▇▇▇ American Insurance interests of the Company and ▇▇▇▇▇▇ Servicethe Members. The Company, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except Parties and the Members further acknowledge and agree that (i) the Company would not have entered into this Agreement or the Purchase Agreement but for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part restrictive covenants of the Restricted Business Parties set forth in this Section 5.4, (ii) such restrictive covenants have been made by the Restricted Parties in order to induce the Company to enter into this Agreement and the Purchase Agreement and (ii) each Restricted Party, as applicable, recognizes and agrees that such Restricted Party can comply with the restrictive covenants contained in this Section 5.4 and still find gainful employment without violating the agreements and covenants contained herein. For the avoidance of doubt, the provisions of this Section 5.4 are not intended to, and shall not, result in any modification of the covenants contained in the Purchase Agreement or any other agreement entered into between any Restricted Party and any Company Entity, and, in this regard, to the extent ▇▇▇▇▇▇ any of the covenants in this Agreement overlap with the covenants contained in the Purchase Agreement or any of its Affiliates such agreement, the provision that is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which more restrictive upon the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionRestricted Party shall control.
(d) In The Company, the event Restricted Parties and the other Members acknowledge and agree that: (i) the time, during his scope, and other provisions of this Section 5.4 have been specifically negotiated by sophisticated commercial parties and specifically hereby agree that such time, scope and other provisions are reasonable and necessary under the circumstances; and (ii) if, at any time, despite the express agreement of the parties hereto, a court of competent jurisdiction holds pursuant to a final judgment that any portion of this Section 5.4 is unenforceable because any of the restrictions therein are unreasonable, or her for any other reason, such decision shall not affect the validity or enforceability of any of the other provisions of this Agreement, and the maximum restrictions of time or scope reasonable under the circumstances, as determined by such court, will be substituted for any such restrictions that are held unenforceable.
(e) The Company, the Restricted Parties and the other Members acknowledge and agree that any breach by any Restricted Party of any of the provisions of this Section 5.4 may cause irreparable damage to the Members and the Company, the exact amount of which may be difficult to ascertain, and the remedies at law for any such breach may be inadequate. Accordingly, each Member and the Company shall be entitled, in addition to any other rights or remedies existing in its Restricted Periodfavor, to obtain injunctive relief restraining any actual or threatened breach of this Section 5.4 and to have this Section 5.4 specifically enforced without need to post bond and to recover their reasonable attorneys’ fees and costs incurred thereby, it being agreed that any actual or threatened breach of this Section 5.4 would cause irreparable injury and that money damages would not provide an adequate remedy.
(f) If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 5.4 is invalid or unenforceable, the parties hereto agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or 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, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed. The provisions of this Section 5.4 shall be in addition to, and not in limitation of, any Member other than PubCo, including similar provisions to which any Restricted Party is bound or may be bound in the equityholders future. The covenants contained in this Section 5.4 and each provision thereof are severable and distinct covenants and provisions. The invalidity or Affiliates unenforceability of any Member such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other than PubCo (jurisdiction. If any court holds any of the restrictions or covenants contained in this Section 5.4 to be unenforceable by reason of their breadth or scope or otherwise, it is the intention of the parties hereto that such case, a “New Business Proponent”), determines that she determination not bar or he or it would like in any way affect the right of the Company to pursue an opportunity that otherwise constitutes the Business (relief provided in respect this Section 5.4 in the courts of HHC and its equityholders and Affiliates) or any other jurisdiction within the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing geographic scope of such intention restrictions and covenants.
(g) The Company shall be entitled to provide the Board with sufficient detail regarding the New Business Opportunity for the Board a copy of this Section 5.4 and any terms incorporated herein to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines any Person that the Company reasonably believes may be employing or one retaining the services of its Subsidiaries will any Restricted Party in good faith pursue violation of this Section 5.4.
(h) For the New Business Opportunity and within three (3) years avoidance of doubt, the foregoing restrictions shall not apply to the operation of any Company Entity following the date the New Business Opportunity has been presented hereof pursuant to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this AgreementAgreement or any other agreement to which any Company Entity is a party.
Appears in 1 contract
Restrictive Covenants. (ai) Neither HHC nor From and after the Closing, each Seller Party will keep confidential and not disclose to any other Person or use for such Person’s own benefit or the benefit of any other Person any confidential or non-public information regarding any Seller or the Business. The obligation of each Seller Party and its respective Affiliates shallunder this Section 5.2(a)(i) will not apply to information that is or becomes generally available to the public without breach of the commitment provided for in this Section 5.2(a)(i) or is required to be disclosed by applicable Law; provided, however, that, in the case of a required disclosure, the applicable Seller Party or such other Person, as applicable, will notify Buyer as early as reasonably practicable prior to disclosure to allow Buyer to take appropriate measures to preserve the confidentiality of such information.
(ii) As a material inducement to Buyer to enter into and perform its obligations under this Agreement, each Seller Party agrees that, from the Closing Date through the two-year anniversary of the Closing Date (the “Non-Compete Restricted Period”), each Seller Party will not, and will cause its respective employees, officers, directors, managers, agents and Affiliates not to, directly or indirectly by or through indirectly, own any Affiliate or agentinterest in, manage, control, participate in (whether as principalan owner, officer, director, manager, employee, partner, agent, ownerrepresentative or otherwise), investorconsult with, lenderrender services for, shareholder, member, partner, manager, director, officer, employee, consultantbecome employed by, or in any other capacity, during the applicable Restricted Period, manner engage or participate in the Business anywhere in retail sale of recreational or medical marijuana or the world.
operation of a recreational or medical marijuana dispensary (bsuch action, a “Competitive Activity”) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in within the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(bArea, except as set forth on Schedule 5.2(a)(ii), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates . Nothing herein will prohibit any such Person from directly or indirectly engaging, in any manner in any being a passive owner of not more than two percent of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) outstanding stock of any class of stock of a Person engaged, directly or indirectly, corporation involved in the Restricted Business if such stock cannabis business that is publicly traded and listed on traded. “Restricted Area” means any stock exchange;
(ii) acquiringarea north of 38.2544° N, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, 104.6091° W coordinates in the Restricted Business, so long as the gross revenues state of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionColorado.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Medicine Man Technologies, Inc.)
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallSellers and Flotek, directly on behalf of themselves and their Affiliates, hereby acknowledge and agree that (i) Buyers would not have entered into this Agreement if Sellers and Flotek had not agreed to the covenants set forth in this Section 4.01 and (ii) Sellers and Flotek have had access to information that is confidential in relation to the Purchased Assets that constitutes a valuable, special and unique asset, and with respect to which Buyers are entitled to the protections afforded by this Agreement and to the remedies for enforcement of this Section 4.01 provided by law or indirectly by equity (including those remedies the availability of which may be within the discretion of the court or through arbitrator that presides over any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the worldaction for which enforcement of this Agreement is brought).
(b) Neither ▇▇▇▇▇▇ nor its For a period of one (1) year after the Closing Date, Sellers and Flotek agree that they will not, and they shall cause their Affiliates shallnot to, directly or indirectly through solicit the employment or services of, or, cause or attempt to cause any principalemployees of Sellers or their Affiliates who accept offers of employment with Buyers or their Affiliates (“Business Employee”) to leave the employment or service of, partner, manager, director, officer, contractor, Buyers or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its their Affiliates, during other than general solicitations that do not target the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the worldEmployee.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any For a period of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date Closing Date, Sellers and Flotek agree that they will not, and shall cause their Affiliates not to, directly or indirectly, acting alone or as a member of a partnership or company, as a holder or owner of any security, as an agent, advisor, consultant or independent contractor:
(i) carry on, participate in, or be engaged in (whether for its own account or for the New account of any other Person) the Restricted Business Opportunity has been presented within the Restricted Area; or
(ii) share in the earnings of, or beneficially own or hold any security issued by, or otherwise own or hold any interest in any entity which is engaged in the Restricted Business in the Restricted Area; or
(iii) request or suggest, directly or indirectly, that any customer or supplier of Buyers relating to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, curtail or cancel its business or refrain from doing business with Buyers or their Affiliates within the Restricted Area. Notwithstanding the foregoing provisions of this Section 4.04(c), Sellers and Flotek and their Affiliates may own, solely as applicable. If a majority an investment, securities of an entity that is engaged in the Restricted Business if (1) such Person is not an Affiliate of the Board determine that issuer of such securities, (2) such Person does not, directly or indirectly, beneficially own more than five percent (5%) in the Company aggregate of such class of securities, (3) such class of securities is publicly traded and its Subsidiaries will (4) such Person has no active participation in such entity.
(d) For a period of three (3) years following the Closing Date, Sellers and Flotek shall, and shall cause their Affiliates to, hold in confidence and shall not pursue use in any manner any confidential and proprietary information, whether written or oral, to the New Business Opportunity, extent concerning the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicablePurchased Assets; provided, however, that the New Business Proponent such parties shall continue be able to use any such information as may be reasonably required by such Persons in connection with any insurance Proceedings or Tax audits against, or Proceedings concerning, any such Persons. If Sellers, Flotek or their Affiliates are requested or compelled to disclose any such confidential information by judicial or administrative process, by any Government Authority or by other requirements of Law, such Person shall promptly notify Buyers in writing and shall disclose only that portion of such information that such Person is advised by its counsel that it is legally required to disclose; provided, that such Person shall cooperate with Buyers, at Buyers’ sole cost and expense, to permit Buyers to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information. Notwithstanding anything contained in this Section 4.04(d) to the contrary, the provisions of this Section 4.04(d) shall not apply to (i) any information which has come within the public domain, except that which has come in the public domain through a Seller’s or Flotek’s or their respective Affiliates’ breach of this Agreement or (ii) information which was lawfully available to Sellers or Flotek on a non-confidential basis prior to its disclosure hereunder.
(e) Buyers, Sellers and Flotek hereby agree that if Sellers or Flotek (or any Affiliate of such Persons) violate or threaten to violate any of the provisions of this Section 4.01, it would be difficult to determine the entire cost, damage or injury which Buyers would sustain. Sellers and Flotek acknowledge that if they (or any of their Subsidiaries or Affiliates) violate any of the provisions of this Section 4.01, Buyers may have no adequate remedy at law. In the event of such violation, Buyers shall have the right, in addition to any other rights that may be available to them to seek to obtain in any court of competent jurisdiction injunctive relief to restrain any violation by such Person of any provision of this Section 4.01 or to seek to compel specific performance by such Person of one or more of its obligations under this Section 4.01. The seeking or obtaining by Buyers of such injunctive relief shall not foreclose or in any way limit the right of Buyers to obtain a money judgment against Sellers or Flotek for any damage to Buyers that may result from any breach by Sellers or Flotek (or any Subsidiary or Affiliate of such Persons) of any provision of this Section 4.01.
(f) Sellers and Flotek acknowledge that the covenants contained in Section 4.01 are reasonable in geographic and temporal scope and that the scope of each of the activities being restrained is reasonable and does not impose a greater restraint than is necessary to protect the goodwill or other business interest of Buyers. If any court of competent jurisdiction determines that any of such covenants, provisions or portions of Section 4.01, or any part thereof, are unenforceable and invalid, then (i) the validity and enforceability of any remaining covenants, provisions or portions thereof shall not be affected by such determination, (ii) those of such covenants, provisions or portions that are determined to be bound unenforceable because of the duration or scope thereof shall be severed and/or reformed by the court to reduce their duration or scope so as to render them enforceable against Sellers and Flotek and (iii) all of his or her or its other duties remaining covenants, provisions, portions and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this AgreementSection 4.01 shall be valid and enforceable to the fullest extent permitted by law.
(g) If Closing occurs, the restrictions contained in this Section 4.01 shall survive the Closing Date for the periods specified.
Appears in 1 contract
Sources: Asset Purchase Agreement (Flotek Industries Inc/Cn/)
Restrictive Covenants. (a) Neither HHC nor its Affiliates shall9.1 Seller and Gicks shall not, directly except as representatives of and as directed by Buyer, without the prior written consent of Buyer, which consent may be withheld for any or indirectly by or through any Affiliate or agentno reason, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during for a period of 2 years following the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedClosing, directly or indirectly, own, manage, operate, control, be employed by, participate in, render services to, make loans to, or be connected in any manner with the ownership, management, operation, or control of any business located anywhere in the Restricted world, in any business competitive with the Business (which is defined as being limited to crafts, stationary, toys, and greeting cards). However, if such stock is publicly traded Gicks conceive a new or improved product, and listed if Buyer fails to exercise its right of first refusal to acquire the idea, as set forth in the Consulting Agreements (Exhibit "A"), Gicks may thereupon market the ideas rejected by Buyer to competitors of Buyer, or Gick ▇▇▇ enter into direct competition with Buyer in order to exploit the ideas. In the event of any actual or threatened breach of the provisions of this Section, Buyer shall be entitled to an injunction restraining the actual or threatened breach. The parties further agree that should there be a violation of the provisions of this Section, the violating party shall be liable to Buyer for, in addition to amounts pursuant to other remedies available against that party, two (2) times the greater of the amount of profit earned by the violating party as a result of the violation and the amount of profit which would have been earned by Buyer from the activities causing the violation had Buyer conducted said activities, plus interest on said greater amount calculated at eighteen percent (18%) per annum from the date of the violating activities until paid, as liquidated damages for only Buyer's loss of potential profits. Nothing in this paragraph
9.2 Seller and the Gicks shall not at any stock exchange;
time, without the prior written consent of Buyer, which consent may be withheld for any or no reason, disclose, in any fashion other than as required in the day to day affairs of Buyer, to any person or entity: (i) the names of customers of Buyer or the Business, or the names of other persons or entities having business dealings with Buyer or the Business, or (ii) acquiringany of the business methods or confidential information of Buyer or the Business, merging including but not limited to its customer lists, prospective customers, customers purchasing habits, customer contact personnel, marketing and servicing techniques, financial matters, sales and marketing systems and methods, marketing development and business expansion plans and projections, personnel training and development programs, customer and supplier relationships, and trade secrets.
9.3 Seller and the Gicks shall not, at any time within two (2) years after the Closing, without prior written consent of Buyer, which consent may be withheld for any reason or combining with, or investing in, any Person or business that engagesno reason, directly or indirectlyindirectly induce, in encourage or solicit or assist any person who was or is employed (whether as an employee or as an independent contractor) by the Restricted Business during the two years preceding the Closing, to leave the employ of the Business.
9.4 The parties acknowledge and agree that the restrictions contained herein, including but not limited to the time period and geographical area restrictions, are fair and reasonable and necessary for the successful operation of the Business, so long as that violation of any of them would cause irreparable injury, and that the gross revenues restrictions contained herein are not unreasonably restrictive of any party's ability to earn a living. If the scope of any restrictions in this Section is too broad to permit enforcement of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior restriction to its fullest extent, then such restriction shall be enforced to the date of maximum extent permitted by law, and all parties hereto consent and agree that such acquisition were equal scope shall be modified judicially or by arbitration in any proceeding brought to enforce such restriction. The parties hereto acknowledge and agree that remedies at law for any breach or less than twenty percent (20%) violation of the total consolidated gross revenues provisions of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divestthis Section would alone be inadequate, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, agree and consent that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or temporary and permanent injunctive relief may be granted in connection with such acquired businessviolations, without the necessity of proof of actual damage, and such remedies shall be in addition to other remedies and rights the parties may have at law or in equity. The parties agree that would no party shall be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting required to give notice or administering post any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered bond in connection with applying for or obtaining any such injunctive relief.
9.5 The parties acknowledge and agree that the Alliance Business (covenants in this Section shall be construed as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners independent of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.any
Appears in 1 contract
Sources: Purchase and Sale Agreement (Futech Interactive Products Inc)
Restrictive Covenants. (a) Neither HHC nor Parent agrees that for a period commencing on the Closing Date and ending on the date that is two (2) years after the Closing Date, Parent shall not, and shall cause its Affiliates shallSubsidiaries not to, directly or indirectly indirectly, hire, solicit for employment or seek to induce for employment any Company Employee with an annual salary in excess of $150,000 or the local equivalent (all such Persons collectively, the “Company Covered Employees”) to leave his or her employment or position with Buyer or any of its Affiliates (including the Companies); provided that this Section 6.21(a) shall not prohibit Parent or any of its Affiliates from (i) soliciting or hiring any Person who has been terminated by the Buyer, the Companies or through the Business, (ii) soliciting or hiring any Affiliate Person who has resigned from the Company or agentthe Business at least six (6) months prior to the initiation of discussions with respect to such hiring, whether as principal(iii) advertising employment opportunities in any national newspaper, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultanttrade journal or other publication in a major metropolitan area or any Internet website posting, or negotiating with, offering employment to or employing any Person contacted through such medium, or (iv) participating in any other capacitythird-party hiring fair or similar event open to the public or negotiating with, during offering employment to or employing any Person contacted through such medium, in each case of (iii) and (iv) provided that such medium was not specifically directed at employees of the applicable Restricted Period, engage or participate in the Business anywhere in the worldBusiness.
(b) Neither ▇▇▇▇▇▇ nor Parent agrees that, for a period commencing on the Closing Date and ending on the date that is three (3) years after the Closing Date, Parent shall not, and shall cause its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedSubsidiaries not to, directly or indirectly, engage in, own, manage, finance, operate or control, or knowingly participate in the ownership, management, operation, financing or control of any Person that competes with the Business (as conducted as of the Closing Date and/or during the six (6) months prior to the Closing Date) (a “Restricted Business if such stock is publicly traded Business”) in the United States of America, Canada, India, the United Kingdom of Great Britain and listed on Northern Ireland and Serbia; provided that this Section 6.21(b) shall not prohibit Parent or any stock exchangeof its Subsidiaries from:
(i) engaging in the Excluded Businesses (which, for purposes of this clause (i), shall not include any future businesses of Parent and its Subsidiaries) and any reasonable expansion thereof, which, for the avoidance of doubt, includes providing any type of software solution or service to retail and restaurant customers;
(ii) acquiringacquiring any Person, merging business or combining with, business line engaged in the Business (an “Acquired Business”) so long as the Business accounts for not more than ten percent (10%) of such Acquired Business’ sales (based on its latest available annual audited financial statements) of such Acquired Business;
(iii) acquiring or investing in, holding investments or direct or indirect ownership of any equity interests of any Person or business that engages, directly or indirectly, engaged in the a Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less ownership interest represents not more than twenty ten percent (2010%) of the total consolidated gross revenues aggregate voting power of such Person;
(iv) entering into or participating in a joint venture, partnership or other strategic business relationship with any Person engaged in a Restricted Business, if such joint venture, partnership or other strategic business for relationship does not engage in the Restricted Business;
(v) owning, transferring or acquiring additional ownership interests in any business or entity set forth on Schedule 6.21(b)(v) in which Parent or any of its Affiliates holds a minority ownership interest as of the Closing Date (and Schedule 6.21(b)(v) also sets Parent’s ownership interest in each such Fiscal Yearbusiness or entity as of the date hereof); provided, that, in the event any such business or entity becomes engaged in the Business, Parent or Parent’s Affiliates may only hold or acquire additional ownership interests in such business or entity if (A) the aggregate outstanding ownership interest held by Parent and its Affiliates represents ten percent (10%) or less of the total outstanding ownership interests in such business or entity and (B) Parent and its Affiliates are not entitled to nominate a member of the board of directors (or similar governing body) of such business or entity and do not take an active part in the management of such business or entity (other than having and exercising the right to appoint an observer to the board of directors (or similar governing body) of such entity);
(vi) entering into commercial agreements with any Person engaged in the Business, so long as Parent and its Affiliates do not engage in the Business under the terms of such agreements; and
(vii) performing their obligations or exercising their rights under this Agreement and the Ancillary Agreements. This Section 6.21(b) shall not, in any way, limit or affect Parent’s or any of its Affiliates’ ability to perform any obligations under the Transition Services Agreement.
(c) The Parties agree that, for a period commencing on the Closing Date and ending on the date that is three (3) years after the Closing Date, each Party shall not, and shall cause its Subsidiaries not to, and direct its and its Affiliates’ directors and officers not to, in any communication with the press or other public media or with any Person having a business relationship with the other Party, disparage or otherwise express any negative remarks, comments, statements, recommendations or opinions with respect to any of the products, services, personnel, performance or condition (financial or otherwise) of the other Party, in each case, that would reasonably be expected to adversely affect any past, present or prospective relationship, contractual or otherwise, between the other Party and any of their respective customers, partners, suppliers, employees or stockholders. For the avoidance of doubt, nothing herein shall restrict any Party providing information it believes to be true in connection with any Action.
(d) Parent agrees that, for a period commencing on the Closing Date and ending on the date that is three (3) years after the Closing Date, Parent shall not, and shall cause its Subsidiaries not to (i) induce, solicit, or otherwise cause any Material Customer to (A) cease being a Material Customer or to not become a Material Customer in respect of the Business, or (B) materially divert any business from or reduce the amount of business of such Material Customer in respect of the Business, (ii) otherwise materially interfere with or materially disrupt the contractual relationship between the Business and any of its Material Customers, including without limitation, inducing, for a purpose competitive with services of the Business, any Material Customer to terminate or modify any written or oral agreement with the Business, or (iii) solicit to provide or provide any Material Customer services that are the same as or competitive with the services sold or provided, or proposed to be sold or provided, by the Business to a Material Customer at any time during the six (6)-month period prior to the Closing. In the event of any conflict between this Section 6.21(d) and Section 6.21(b), Section 6.21(b) shall control.
(e) Until the date that is five (5) years following the Closing Date, Parent and its Affiliates will treat all information directly relating to Buyer, and, from and after the Closing, the Companies and the Business as confidential, preserve the confidentiality thereof, and not use or disclose to any Person such information without Buyer’s prior written consent (except as expressly permitted by this Agreement) unless (i) such information is publicly available as of the date hereof or becomes publicly available after the date hereof through no act or omission in violation hereof by Parent, its Affiliates or any of their respective Representatives, (ii) disclosure of such information is so required under applicable Law or (iii) disclosure of such information is reasonably necessary to be made to third parties (subject to such Persons being informed of the obligations under this Section 6.21(e)), (A) in connection with the performance by Parent or any of its Affiliates of their respective obligations under this Agreement or any of the Ancillary Agreements (but, for the avoidance of doubt, on the terms and subject to the requirements conditions hereof and thereof) or (B) who need to know such information for purposes of assisting Parent or any of its Affiliates with complying with their tax obligations or other reporting obligations under applicable Law, ▇▇▇▇▇▇ and preparing tax returns or financial statements, or (iv) disclosure of such information is reasonably necessary for the enforcement of by Parent or any of its Affiliates of any right or remedy arising out of or relating to this Agreement or any of the Ancillary Agreements. If the disclosure of such information is so required by applicable Law, Parent shall, as promptly as reasonably practicable following such acquisition, merger, combination or investmentto the extent not prohibited by applicable Law, (x) cause such acquired Person or business to cease engaging in provide Buyer with as much prior written notice as is reasonably practicable under the Restricted Business or circumstances and (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted if reasonably requested by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9use reasonable best efforts, 2012;at Buyer’s sole expense, to (1) cooperate with Buyer in obtaining an appropriate protective order or (2) obtain written assurance from the Person to whom such information will be disclosed that confidential treatment will be afforded to such information.
(vf) underwriting Notwithstanding anything in this Agreement to the contrary, but subject to the last sentence of this Section 6.21(f), in the event of a Change of Control (as defined below) of Parent, this Section 6.21 shall not limit or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance prohibit Parent’s controlling group (or its Affiliates, other similar protection offered to insurance or reinsurance companies or other entities than Parent and its Subsidiaries) after such Change of Control transaction from engaging in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance in any location or any other activities prohibited pursuant to this Section 6.21. “Change of Control” with respect to a Person means (i) the primary purpose acquisition at any time by a Person or effect of which is to provide coverage on Insurance Policies “group” (as used in Sections 13(d) and 14(d)(2) of the type marketed, produced, sold, underwritten Securities Act) who or administered in connection with which are the Alliance Business beneficial owners (as defined in Rule 13(d)-3 under the Alliance AgreementSecurities Act);
(vii) developing , directly or selling products that would constitute part indirectly, of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own securities representing more than fifty percent (50%) of the combined voting power outstanding equity securities of Parent; (ii) any sale or disposition of substantially all of the outstanding voting capital stock entitled assets of Parent; or (iii) any merger, consolidation, or statutory share exchange to vote generally in which such Person is a party as a result of which the election of directors (or Persons performing a similar function) who were stockholders immediately prior to the effective date of the entity resulting from such transaction.
merger, consolidation or share exchange shall have beneficial ownership of less than fifty percent (d) In 50)% of the event that, during his or her or its Restricted Period, any Member other than PubCo, including surviving corporation. For the equityholders or Affiliates avoidance of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”)doubt, the New Business Proponent shall notify the Board restrictions set forth in writing this Section 6.21 will survive any Change of such intention Control and provide the Board with sufficient detail regarding the New Business Opportunity for the Board will continue to assess whether the Company apply to Parent and its Subsidiaries would like to pursue notwithstanding such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one Change of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this AgreementControl.
Appears in 1 contract
Sources: Purchase Agreement (NCR Voyix Corp)
Restrictive Covenants. (a) Neither HHC nor For a period of 3 years following the Closing Date, Seller shall not, and shall cause EnPro and its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business Subsidiaries not to anywhere in the world, directly or indirectly, either for itself or through any other Person, engage in, participate in, or permit Seller’s name to be used by any enterprise engaging in the Business. Notwithstanding the foregoing, nothing in this Section 7.22 shall prohibit EnPro and its Subsidiaries from performing their obligations under any Transaction Agreement.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b)this Agreement, nothing in this Agreement Section 7.22 shall preclude, prohibit, preclude EnPro or restrict ▇▇▇▇▇▇ or its Affiliates any Subsidiary thereof from directly or indirectly engaging, engaging in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate De Minimis Business; (ii) ownership of five percent (5%) securities of any class of stock Person traded on any national securities exchange if EnPro or such Subsidiary is not a controlling Person of, or a member of a group which controls, such Person engagedand does not, directly or indirectly, in own 5% or more of any class of securities of such Person; or (iii) business activity that would otherwise violate Section 7.22 that is acquired from any unaffiliated Person after the Restricted Business if such stock Closing Date (an “After-Acquired Business”) or is publicly traded and listed carried on by any stock exchange;
currently unaffiliated Person that is acquired by or combined with EnPro or any of its Subsidiaries after the Closing Date (ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Businessan “After-Acquired Company”), so long as within 12 months after the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) consummation of the total consolidated gross revenues acquisition of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted After-Acquired Business or (y) sign the After-Acquired Company, EnPro or its applicable Subsidiary signs a definitive agreement to divestdispose, and subsequently divestdisposes, of the relevant portion of such acquired Person the business or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination securities of the Alliance Agreement, After-Acquired Business or the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business After-Acquired Company (provided thatthat such 12-month period shall be extended by an additional 6 months if, at the end of such 12 -month period, all regulatory or other Governmental Authority approvals for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance such disposition shall not include reinsurance have been obtained, all required notices with Governmental Authorities shall not have been filed or made or all waiting periods imposed by applicable Governmental Authorities necessary to consummate such disposition have not expired or been terminated) or at the expiration of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in such 12‑month period the business of providing primary risk protectionthe After-Acquired Business or the After-Acquired Company complies with Section 7.22(a). Notwithstanding the foregoing, regardless EnPro and its Subsidiaries will not be required to dispose of whether any assets or securities of an After-Acquired Business or After-Acquired Company if the subject matter business activity thereof that would otherwise violate Section 7.22(a) does not account for more than the greater of such reinsurance (or other similar protectionx) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies 15% of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part revenues of the Restricted After-Acquired Business to the extent ▇▇▇▇▇▇ or any of After-Acquired Company (based on its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately latest annual financial statements prior to the consummation of such transaction do acquisition) or (y) $10,000,000 in revenues. As used in this Section 7.22(b), “De Minimis Business” means any passive investment in an unaffiliated third party in which (A) Seller and its Affiliates collectively hold not beneficially own more than fifty percent (50%) of the combined voting power 15% of the outstanding voting capital stock entitled securities or similar equity interests, (B) the amount invested by Seller and its Affiliates collectively is less than $10 million, and (C) Seller and its Affiliates do not possess the right (through ownership of securities, contract or otherwise) to vote generally in designate a majority, or such higher amount constituting a controlling number, of the election members of the board of directors (or Persons performing a similar functiongoverning body) of such Person and do not otherwise control such Person.
(c) For a period of 3 years following the entity resulting Closing Date, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, employ, hire or solicit any Business Employees, or encourage any such employee to leave his or her employment from the Buyer or any of its Affiliates or the Business or hire any such transactionemployee who has left such employment, except that the foregoing shall not prohibit (i) the hiring or soliciting of any such employee who is terminated by Buyer and its Affiliates after the Closing and has been terminated for a period of at least 6 months or (ii) general solicitations which are not directed at any such employees (it being understood and agreed that the hiring of any such employees shall not be permitted by this clause (ii)).
(d) Seller will not, or will cause its Affiliates not to, disclose or use at any time any information of a confidential or proprietary nature (whether or not specifically labeled or identified as “confidential”), in any form or medium, that relates to the business, products or financial condition of the Business (“Confidential Information”) and will take all commercially reasonable steps to safeguard such Confidential Information and to protect it against disclosure, misuse, espionage, loss and theft; provided, that the foregoing will not apply with respect to (i) disclosures to such Person’s counsel or independent auditors or other advisors, in each case, on a confidential basis, (ii) information required to be disclosed by Law, (iii) information for which such Person has received a subpoena or similar demand (provided in the case of clauses (ii) and (iii) of this sentence that such Person shall, to the extent permitted by applicable Law, first, as promptly as practicable upon receipt of such demand, furnish notice and a copy to Buyer so that Buyer may, at Buyer’s expense, seek an appropriate order or other remedy protecting such information; provided, further, that no such notice will be required in respect of disclosures to any regulatory, self‑regulatory or supervisory authority having appropriate jurisdiction over such Person in connection with routine regulatory examinations), (iv) information that is or becomes generally available to the public other than as a result of an act or omission of Seller or its Affiliates or as a result of a breach of obligations of confidentiality owed by another Person to the Company or Buyer, or (v) disclosures by Seller in connection with a proceeding to enforce its rights against the Company or Buyer for a breach arising under this Agreement.
(e) Seller shall direct its officers and directors not to, directly or indirectly, (i) make any negative statement or communication regarding Buyer, the Company or any of their respective Affiliates or employees with the intent to harm any such Person, or (ii) make any derogatory or disparaging statement or communication regarding Buyer, the Company, or any of their respective Affiliates or employees; provided, that, for clarification, no such Person shall be prevented or otherwise discouraged from making true and accurate statements or communications in connection with any disclosure that such Person reasonably believes is required pursuant to Law or necessary to enforce any rights of Seller or its Affiliates under this Agreement or any Transaction Agreement.
(f) The covenants set forth in this Section 7.22 (the “Restrictive Covenants”) are necessary for the reasonable and proper protection of Buyer and its Affiliates and their respective trade secrets and confidential information and businesses and each and every one of the Restrictive Covenants is reasonable with respect to subject matter, length of time and geographic area, and has a unique, very substantial and immeasurable value to Buyer and its Affiliates. If it is determined by a court of competent jurisdiction in any state that any of the Restrictive Covenants is excessive in duration or scope or is unreasonable or unenforceable under applicable Law, it is the intention of Seller and Buyer that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the Laws of that state or other jurisdiction. Whenever possible, each provision of this Section 7.22 will be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Section 7.22 is held to be invalid, illegal or unenforceable in any respect under any applicable Law in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Section 7.22 will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, violation of Restrictive Covenants by a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”)Seller, the New Business Proponent shall notify applicable Restrictive Covenants will be extended by a period of time equal to the Board in writing period of such violation, it being the intention and provide of the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines parties hereto that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority running of the Board determine that the Company and its Subsidiaries applicable restriction period will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all tolled during any period of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementsuch violation.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Enpro Industries, Inc)
Restrictive Covenants. (a) Neither HHC nor Each Seller covenants that, commencing on the Closing Date and ending on the date that is eighteen months following the Closing Date (the “Noncompetition Period”), it shall not, and it shall cause its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Periodnot to, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedin, directly or indirectly, in the Restricted Business if any capacity, or have any direct or indirect ownership interest in, or permit Seller’s or any such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining Affiliate’s name to be used in connection with, or investing inany business anywhere in the world which is engaged, any Person or business that engages, either directly or indirectly, in the business of developing, marketing or selling any products or providing services which are competitive with products marketed, sold or under development by, or services provided by, the Acquired Company (the “Restricted Business, so long as the gross revenues of such Person or business derived from ”). It is recognized that the Restricted Business for is expected to be conducted throughout the most recent fiscal year ended prior to world and that more narrow geographical limitations of any nature on this non-competition covenant (and the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements non-solicitation covenants set forth in Sections 5.2(b) and (c)) are therefore not appropriate. Notwithstanding the foregoing, this Section 5.12(b)(i)(B5.2 shall not be applicable to: (i) Sellers’ ownership and operation of Group Financial, Network Merchants, TDC Limited, in each case solely in accordance with the current respective business activities of each entity as set forth on Schedule 5.2(a); and (ii) Sellers’ ownership and operating of its existing domain names.
(b) Each Seller covenants that, during the Noncompetition Period, Seller shall not, and it shall cause its Affiliates not to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, Acquired Company potential clients or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance customers of the type comprising the Restricted Business (provided that, Acquired Company for purposes of this Section 7.4(c)(iii), reference to any policy, binder diverting their business or contract of insurance shall not include reinsurance of any form, other than reinsurance services from the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered Acquired Company.
(c) Except as may be required in connection with the Alliance Business (as defined in termination of any Acquired Company employee pursuant to Section 6.4 hereof, each Seller covenants that, during the Alliance Agreement));
(iv) marketingNoncompetition Period, producingSeller shall not, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of it shall cause its Affiliates not to, solicit the employment or engagement of services of any person who is reasonably required to develop or sell was employed as an employee, contractor or consultant by the Acquired Company during such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to period on a merger, share exchange full- or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionpart-time basis.
(d) Each Seller acknowledges that the restrictions contained in this Section 5.2 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the Acquisition. Each Seller acknowledges that any violation of this Section 5.2 will result in irreparable injury to Buyer and agrees that Buyer is entitled to seek preliminary and permanent injunctive relief, without the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of this Section 5.2, which rights shall be cumulative and in addition to any other rights or remedies to which Buyer may be entitled. Without limiting the generality of the foregoing, the Noncompetition Period shall be extended for an additional period equal to any period during which any Seller or any Affiliate is in breach of its obligations under this Section 5.2.
(e) In the event thatthat any covenant contained in this Section 5.2 should ever be adjudicated to exceed the time, during his geographic, product or her service, or its Restricted Periodother limitations permitted by applicable Law in any jurisdiction, then any Member other than PubCocourt is expressly empowered to reform such covenant, including the equityholders or Affiliates of any Member other than PubCo (in and such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity covenant shall be deemed to constitute the Business or Restricted Businessreformed, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations in such jurisdiction to the Company maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.2 and its Subsidiarieseach provision thereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, including all duties as a director of PubCo, Member, officer and any such invalidity or employee unenforceability in accordance with the terms of this Agreementany jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallDuring the period beginning on the Closing Date and ending on the fifth anniversary thereof (the “Restricted Period”), each Seller agrees that it shall not directly or indirectly:
(i) engage in any Competitive Activity, or directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or own an equity interest exceeding Five Percent (5%) in any entity that is engaged in any Competitive Activity. As used herein, the term “Competitive Activity” means a business a primary activity of which is factoring receivables or providing other capacity, during the applicable Restricted Period, engage or participate receivables factoring related services in the Business anywhere United States. For purposes hereof, “primary activity” shall mean gross revenue for the immediately preceding calendar year in excess of 15% of the world.
(b) Neither total gross revenue of such entity or business for such period. It is acknowledged that ▇▇▇ ▇▇▇▇▇ serves on the Board of Director of AloStar Bank and that certain of the Sellers have an ownership interest in and/or provide services to the ▇▇▇▇▇▇ nor its Affiliates shallConsumer Finance Companies (the “Existing Activities”). For the avoidance of doubt, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf it is acknowledged and agreed that the continuance by the Sellers of or for the benefit Existing Activities in their current form shall not constitute a violation of this Section 5.1. Sellers represent and warrant that the ▇▇▇▇▇▇ Consumer Finance Companies are not currently engaged in any Competitive Activity; or
(ii) without Buyer’s prior written consent, employ or its Affiliates, during the applicable Restricted Period, engage or participate offer to employ or engage in any capacity or solicit, interfere with or attempt to divert or entice away from the Restricted Business anywhere Company for the purposes of so employing or engaging, any employee of the Company; provided that general solicitations for employment not specifically targeted to such Company employees shall not be prohibited.
(b) Each Seller acknowledges and agrees that the Company’s business is national in scope and that the worldtime and activity limitations set forth in this Section 5.1 are reasonable and necessary (both generally and particularly in light of the Proposed Transactions provided for in this Agreement) and are properly and fairly required for the protection of Buyer and the Company, their goodwill and their business and customer relationships. If any such time or activity limitation is determined to be unreasonable by a court or other tribunal, Buyer and each Seller expressly agree to the reduction of such time or activity limitations to such an area, period or scope of activity as said court or tribunal shall deem reasonable under the circumstances. Also, if the Company and/or Buyer seeks partial enforcement of this Section 5.1 as to only a time and scope of activity which is reasonable, then the Company and/or Buyer shall be entitled to such reasonable partial enforcement.
(c) Notwithstanding anything to Each Seller hereby acknowledges that the contrary in Section 7.4(b), nothing covenants made by it in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of Section 5.1 are a material inducement to Buyer’s decision to purchase the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionPurchased Units.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (National Commerce Corp)
Restrictive Covenants. (a) Neither HHC nor Subject to Section 5.17(d) in all respects, Seller agrees that for a period of three (3) years after the Closing Date (the “Non-Competition Period”), Seller shall not and shall cause its Affiliates shallnot to, directly or indirectly by or through any Affiliate or agentindirectly, whether as principalown, agentmanage, owneroperate, investorcontrol, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the ownership, management, operation or control of, or otherwise engage in, any Competing Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) United States. Notwithstanding anything to the contrary in Section 7.4(b)the foregoing, nothing in this Agreement Section 5.17 shall preclude, prohibit, prevent Seller or restrict ▇▇▇▇▇▇ or any of its Affiliates from directly or indirectly engaging, in any manner in any of during the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
Non-Competition Period from: (i) acquiring collectively owning less than an aggregate of five percent (5%) of the outstanding shares of any class of capital stock of any Person that engages in a Person engagedCompeting Business, (ii) owning any publicly traded securities through a Company Benefit Plan operating in the ordinary course of business, (iii) performing obligations required under this Agreement or the Transaction Documents or (iv) the acquisition by Seller or any of its Affiliates of a diversified company having not more than 25% of its net sales (based on its latest published annual audited financial statements) attributable to a Competing Business.
(b) Subject to Section 5.17(d) in all respects, neither Seller nor any of its Affiliates will (i) at any time prior to the date that is eighteen (18) months from the Closing Date (the “Non-Solicitation Period”), directly or indirectly, solicit or encourage any Company Employee or consultant performing services (whether as an employee, consultant, independent contractor or otherwise) for the Companies or the Business who is set forth in Section 5.17(b)(i) of the Restricted Business if such stock is publicly traded and listed on any stock exchange;
Seller Disclosure Schedule to leave the employment or retention of the Companies, without Buyer’s prior written consent or (ii) acquiringat any time prior to the third (3rd) anniversary of the Closing Date, merging hire in any capacity (whether as an employee, consultant, independent contractor or combining withotherwise) any of the employees set forth in (b), of the Seller Disclosure Schedule unless (x) such employee has been terminated by Buyer, the Companies or investing in, any Person of their respective Affiliates or business that engages, directly or indirectly, in (y) the Restricted Business, so long as the gross revenues employment of such Person employee by Buyer, the Companies or business derived from the Restricted Business for the most recent fiscal year ended their respective Affiliates has otherwise terminated at least six (6) months prior to the date of such acquisition were equal to or less than twenty percent (20%) hire, without Buyer’s prior written consent. For purposes of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divestSection 5.17(b)(i), the relevant portion terms “solicit the employment or services” shall not be deemed to include generalized searches for employees through media advertisements of such acquired Person general circulation, employment search firms, open job fairs or business conducting otherwise that are not directed at the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);Company Employees.
(iiic) marketingEach of Seller and Buyer expressly agrees that the character, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes duration and scope of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies 5.17 are reasonable in light of the type marketedcircumstances as they exist on the date hereof, producedincluding, soldbut not limited to, underwritten or administered in connection with the Alliance Business (as defined its material economic interest in the Alliance transactions contemplated by this Agreement));
(iv) marketing. The parties hereto agree that, producingif any court of competent jurisdiction in a final, sellingnon-appealable judgment determines that any of the covenants and agreements contained in this Section 5.17, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any part thereof, is unenforceable because of their Affiliates;
(vi) marketingthe character, producing, selling, underwriting duration or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter scope of such reinsurance (covenant or other similar protection) relates agreement, such court shall have the power to reduce the Restricted Business except for reinsurance the primary purpose duration or effect scope of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten such covenant or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business agreement solely to the extent ▇▇▇▇▇▇ required or permitted by Applicable Law to permit the enforceability of such covenant or agreement and, in its reduced form, such covenant or agreement shall then be enforceable to the maximum extent permitted by Applicable Law. Each party hereto acknowledges that money damages would be an insufficient remedy for any actual or threatened breach of its Affiliates is reasonably required this Section 5.17 and in addition to develop any other remedies available at law or sell such products in order equity, the non-breaching party will be entitled to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with seek equitable relief by way of injunction, specific performance or otherwise, without posting any Person with respect to a merger, share exchange bond or other business combination transaction immediately following which the beneficial owners undertaking, for any actual or threatened breach of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionthis Section 5.17.
(d) In Notwithstanding anything in the foregoing that may be deemed to the contrary, in no event thatshall any of the restrictions set forth in (i) this Section 5.17 apply in any respect to any acquirer of Seller or any ultimate parent of Seller or any of such acquirer’s other Affiliates (or, during his in any business combination transaction involving Seller or her any ultimate parent of Seller, the counterparty to that transaction or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) and (a “New Business Opportunity”), ii) Section 5.17(a) apply in any respect to the New Business Proponent shall notify the Board in writing existing businesses of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company Seller and its Subsidiaries would like to pursue such opportunity rather than allowing or the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3currently contemplated business line expansion set forth on Section 5.17(d) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this AgreementSeller Disclosure Schedule.
Appears in 1 contract
Restrictive Covenants. 9.1 Neither Seller nor Gary ▇▇▇ (a▇▇e) Neither HHC nor its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
▇▇ll▇▇▇▇ (b) Neither ▇▇reinafter "Bill▇▇▇▇▇▇ nor its Affiliates "), by his signature appearing below, shall, directly except as representatives of and as directed by Buyer, without the prior written consent of Buyer, which consent may be withheld for any or indirectly through any principalno reason, partner, manager, director, officer, contractor, or employee thereof acting on behalf for a period of or for 2 years following the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedClosing, directly or indirectly, own, manage, operate, control, be employed by, participate in, render services to, make loans to, or be connected in any manner with the Restricted ownership, management, operation, or 13 Agreement for Purchase and Sale of Assets Page 13 control of any business located anywhere in United States of America, Canada, or Europe, in any business competitive with the Business if such stock is publicly traded (which shall be deemed to include all business operations publishing, manufacturing, and/or distributing books, toys or games, or electronic or other parts or components thereof). In the event of any actual or threatened breach of the provisions of this Section, Buyer shall be entitled to an injunction restraining the actual or threatened breach. The parties further agree that should there be a violation of the provisions of this Section, the violating party shall be liable to Buyer for, in addition to amounts pursuant to other remedies available against that party, two (2) times the greater of the amount of profit earned by the violating party as a result of the violation and listed the amount of profit which would have been earned by Buyer from the activities causing the violation had Buyer conducted said activities, plus interest on any stock exchange;
said greater amount from the date of the violating activities until paid, as liquidated damages for only Buyer's loss of potential profits. Said interest shall be calculated at the lesser of: (i) eighteen percent (18%) per annum, and (ii) acquiringthe highest rate of interest permitted by applicable law. Nothing in this paragraph shall be construed as prohibiting Buyer from pursuing any other available remedies for such breach or threatened breach, merging including pursuing a recovery for damages. The parties agree that the liquidated provisions set out above do not constitute a penalty, but rather reflect the estimate of the parties as to the actual damages, including loss of profits, Buyer might or combining withis likely to incur in the event of a violation of the restrictions appearing herein.
9.2 Neither Seller nor Bill▇▇▇▇ ▇▇▇ll at any time, without the prior written consent of Buyer, which consent may be withheld for any or no reason, disclose, in any fashion other than as required in the day to day affairs of Buyer, to any person or entity: (i) the names of customers of Buyer or the Business, or investing inthe names of other persons or entities having business dealings with Buyer or the Business, or (ii) any Person of the business methods or confidential information of Buyer or the Business, including but not limited to its customer lists, prospective customers, customers purchasing habits, customer contact personnel, marketing and servicing techniques, financial matters, sales and marketing systems and methods, marketing development and business that engagesexpansion plans and projections, personnel training and development programs, customer and supplier relationships, and trade secrets.
9.3 Neither Seller nor Bill▇▇▇▇ ▇▇▇ll, at any time within two (2) years after the Closing, without the prior written consent of Buyer, which consent may be withheld for any reason or no reason, directly or indirectlyindirectly induce, encourage or solicit or assist any person who was or is employed (whether as an employee or as an independent contractor) by the Business during the two years preceding the Closing, to leave the employ of the Business.
9.4 of any of them would cause irreparable injury, and that the restrictions contained herein are not unreasonably restrictive of any party's ability to earn a living. If the scope of any restriction in this Section is too broad to permit enforcement of such restriction to its fullest extent, then such restriction shall be enforced to the Restricted Businessmaximum extent permitted by law, and all parties hereto consent and agree that such scope shall be modified judicially or by arbitration in any proceeding brought to enforce such restriction. The parties hereto acknowledge and agree that remedies at law for any breach or violation of the provisions of this Section would alone be inadequate, and agree and consent that temporary and permanent injunctive relief may be granted in connection with such violations, without the necessity of proof of actual damage, and such remedies shall be in addition to other remedies and rights the parties may have at law or in equity. The parties agree that no party shall be required to give notice or post any bond in connection with applying for or obtaining any such injunctive relief.
9.5 The parties acknowledge and agree that the covenants in this Section shall be construed as an agreement independent of any other provision of this Agreement, so long as that the gross revenues existence of such Person any claim or business derived from the Restricted Business for the most recent fiscal year ended prior to the date cause of such acquisition were equal to action by Seller (or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, Bill▇▇▇▇) ▇▇ and its Affiliates shall▇ainst Buyer, whether predicated on this Section or otherwise, shall not constitute a defense to the enforcement of this Section.
9.6 The provisions in this Section 9 were specifically bargained for as promptly as reasonably practicable following such acquisitiona material portion of the Transaction. The consideration for the restrictions appearing in this Section include, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divestwithout limitation, the relevant portion of such acquired Person or business conducting financial benefits received by the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇Corporation and Bill▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in m the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such sale transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Futech Interactive Products Inc)
Restrictive Covenants. The Employee hereby agrees and acknowledges that the Employee shall be bound by and shall comply with the restrictive covenants provided in Sections 16 and 17 of the August 24, 2000 Agreement and that such restrictive covenants are hereby made a part of this Agreement as if specifically restated herein, subject in each case to all of the terms and conditions of such Sections 16 and 17 except as expressly provided below in this section, provided that, the Employee hereby agrees that, (a) Neither HHC nor its Affiliates shallwith respect to Section 17 of the August 24, directly or indirectly by or through 2000 Agreement, (i) he shall not engage in any Affiliate or agentof the restricted activities listed under Section 17 of the August 24, whether 2000 Agreement for a period of four years from the Termination Date, (ii) clause 17(a)(i) shall be amended to read as principalfollows:
(i) Become an officer, director, partner, associate, employee, owner, agent, ownercreditor, investorindependent contractor, lender, shareholder, member, partner, manager, director, officer, employee, consultantco-venturer or otherwise, or be interested in or associated with any other corporation, firm or business engaged, in any other capacitygeographical area in which the Employer, Synopsys or their respective subsidiaries and Affiliates (the "Synopsys Group") is then engaged, in making or selling one or more products competitive with a product or products then being made or sold by the Synopsys Group in the EDA industry, which products made or sold by the Synopsys Group accounted for at least 1% of the annual sales of either the Corporation or Synopsys (including in each case their respective subsidiaries and affiliates) during the applicable Restricted Periodfour fiscal quarter period ending with the last fiscal quarter completed prior to the Termination Date; and (iii) clause 17(a)(iv) shall be amended by replacing the word "executive" in line three thereof with the word "employee", engage and by adding the following at the end of such clause 17(a)(iv): ", nor to any solicitation of Yvonne Liu (commencing six months after the Termination Date), Kevin ▇▇▇, ▇▇▇▇▇ Huang, D.J. Ma, Maggie Chen, C.S. Kuo or participate in the Business anywhere in the world.
(b) Neither any relativ▇ ▇▇ ▇▇▇ Em▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇; ▇▇▇ or its Affiliates, during (b) the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ob▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇t ▇▇ ▇▇▇▇▇▇▇ Classic Marine Insurance Agencyose confidential information, LLC as described under Section 16 of the August 24, 2000 Agreement, shall not terminate on the first anniversary of the Termination Date with respect to trade secrets related to the Employer's technology or financial information, or to the pricing or other material terms or conditions of agreements between the Employer and any of their Affiliates;
(vi) marketingits customers, producingbut shall instead continue until the fourth anniversary of the Termination Date with respect to such trade secrets. The Employee agrees and acknowledges that the Proprietary Information and Inventions Agreement executed by him continues in full force and effect in accordance with its terms, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates except to the Restricted Business except for reinsurance the primary purpose extent that Sections 4(a) and 4(b) of this Agreement expressly state a more limited scope or effect of which is to provide coverage on Insurance Policies duration of the type marketed, produced, sold, underwritten Employee's obligations not to disclose the Employer's confidential information or administered in connection to compete with the Alliance Business (Employer or the Synopsys Group. The restrictions imposed on the Employee's activities under Section 17 of the August 24, 2000 Agreement, as incorporated by reference in and amended by this Agreement, shall not be interpreted to restrict any activities of the Employee that are not materially related to the EDA industry, nor to the Employee's donation of any money, property or services to any educational, scientific or religious organization as defined in Section 501(c)(3) of the Alliance Agreement);
Internal Revenue Code, as amended (vii) developing or selling products any such organization that would constitute fall within such definition if the entire world were part of the Restricted Business United States). The Employee hereby agrees that it is impossible to measure in money the damages which will accrue to the Employer, Synopsys or their respective subsidiaries and Affiliates (the "Synopsys Group") by reason of a failure by the Employee to perform any of his obligations under the restrictive covenants. Accordingly, notwithstanding Section 11 of this Agreement, if the Synopsys Group institutes any action or proceeding to enforce the provisions hereof, to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under permitted by applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”)law, the New Business Proponent shall notify Employee hereby waives the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines claim or defense that the Company or one of its Subsidiaries will in good faith pursue Synopsys Group has an adequate remedy at law, and the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent Employee shall not pursue it and urge in any such action or proceeding the New Business Opportunity shall be deemed to constitute the Business claim or Restricted Business, as applicable. If a majority of the Board determine defense that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementany such remedy at law exists.
Appears in 1 contract
Sources: Separation Agreement (Synopsys Inc)
Restrictive Covenants. Each of the Seller Parties, for itself and on behalf of its Affiliates, covenants and agrees as follows:
(a) Neither HHC For the period commencing on the date hereof and terminating on the 2nd anniversary of the Closing Date, neither RSG nor its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ Seller nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of their respective Affiliates (other than the following (with each such subpart of this Section 7.4(cCompany) having independent significance regardless of any overlap of the subject matter thereof):
will (i) acquiring less than an aggregate of five percent (5%) of solicit any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on municipal solid waste disposal business from any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance AgencyDisposal Accounts or (ii) solicit from any counterparty to a Landfill Operating Contract or Government Contract, LLCthe disposal services provided by the Company under such Contract, provided, however, that, subject to Section 6.12(b) below, the foregoing restrictions set forth in this Section 6.12 shall not prohibit RSG, any Seller or any of their Affiliates from (A) accepting disposal business from customers willing to pay the posted gate disposal fees (without providing any broker, trucking or other refund, deduction, credit or discount of any kind), (B) responding to, or executing a contract with any customer solicited through, a request for proposals or other bidding process (whether public or private), (C) responding to inquiries or solicitations made by any customers (including pricing inquiries) and providing disposal services to the customers that are derived as a result of such inquiries or solicitations, or (D) continuing to do business with any customers of RSG, any Seller or any of their Affiliates at locations not included in the ▇▇▇▇▇▇▇▇ Classic Marine Insurance AgencyCompany Assets, LLC or so long as such business does not include the solicitation of any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities business included in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇▇▇ or any Disposal Accounts as of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; orthe date hereof.
(viiib) entering into Notwithstanding anything to the contrary set forth in Section 6.12(a) above, for the period commencing on the date hereof and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which terminating on the beneficial owners 1st anniversary of the voting capital stock of Closing Date, RSG, Sellers and their respective Affiliates agree not to accept any municipal solid waste disposal business from any ▇▇▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicableDisposal Accounts; provided, however, that the New Business Proponent foregoing restriction set forth in this Section 6.12(b) shall continue not prohibit RSG, any Seller or any Affiliate from accepting disposal business in the event that the customer with respect to such ▇▇▇▇▇▇▇▇ Disposal Account asserts that any of the key disposal terms offered by the Company, Buyer or their Affiliates to such ▇▇▇▇▇▇▇▇ Disposal Account following the Closing are materially less favorable than the disposal terms in existence as of the Closing Date with respect to such ▇▇▇▇▇▇▇▇ Disposal Account; provided further, however, that the foregoing restrictions set forth in this Section 6.12(b) shall not prohibit RSG, any Seller or any Affiliate from (i) accepting disposal business from customers willing to pay the posted gate disposal fees (without providing any broker, trucking or other refund, deduction, credit or discount of any kind), (ii) responding to, or executing a contract with any customer solicited through, a request for proposals or other bidding process (public but not private), or (iii) continuing to do business with any existing customers of RSG, any Seller or any of their Affiliates at locations not included in the ▇▇▇▇▇▇▇▇ Company Assets, so long as such business does not include the solicitation or acceptance of any business included in the ▇▇▇▇▇▇▇▇ Disposal Accounts as of the date hereof. For purposes of clarifying clause (iii) above, contracts in place as of the date hereof with existing customers of RSG, any Seller or their Affiliates shall not be bound considered a solicitation or acceptance of existing ▇▇▇▇▇▇▇▇ Disposal Account business.
(c) In addition to any other rights or remedies available to Buyer Parties pursuant to this Agreement or any other agreement, at law or in equity, Buyer Parties shall be entitled to injunctive relief requiring specific performance by all Sellers and their Affiliates of his or her or this Section and each Seller, for itself and its other duties and obligations Affiliates, consents to the Company entry thereof.
(d) The Seller Parties and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with Buyer Parties acknowledge that the terms intent of this Section 6.12 is to impose the same restrictions, limitations, conditions and exceptions that would apply pursuant to Section 6.20 of the Asset Purchase Agreement if the ▇▇▇▇▇▇▇▇ Company Assets were being sold under the Asset Purchase Agreement.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallDuring the Term and at all times thereafter, directly the Executive shall not, without the prior written consent of the relevant Company, divulge, disclose or indirectly by or through make accessible to any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultantother Person any Confidential Information except (v) to the Companies and their Affiliates, or to any authorized (or apparently authorized) agent or representative of any of them, (w) in any connection with performing his duties hereunder, (x) when required to do so by law or by a court, governmental agency, legislative body, arbitrator or other capacityPerson with apparent jurisdiction to order him to divulge, during the applicable Restricted Perioddisclose or make accessible such information, engage or participate (y) in the Business anywhere course of any Proceeding under Section 12(c) or 15 or (z) in confidence to an attorney or other professional advisor for the worldpurpose of securing professional advice. In the event that the Executive is required to disclose any Confidential Information pursuant to clause (x) or (y) of the immediately preceding sentence, he shall (A) promptly give the relevant Company notice that such disclosure is or may be made and (B) cooperate with the Companies, at their reasonable request and sole expense, in seeking to protect the confidentiality of the Confidential Information.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shallThe Executive shall not, directly for his own benefit or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliatesany other Person, without the prior written consent of the Companies and other than in connection with his services hereunder during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):Term:
(i) acquiring less than during the Term and for a period of 12 months thereafter (provided that such period shall be shortened to 6 months in the event that the Term ends in a termination of the Executive's employment that is governed by Section 9(d), 9(e) or 9(g) (relating to without Cause and full Term terminations)), perform material services for, or otherwise have material involvement with (whether as an aggregate of five percent officer, director, partner, consultant, security holder, owner, employee, independent contractor or otherwise), any Person that competes materially (5%) of any class of stock of a Person engaged, whether directly or indirectly, ) with the Companies in the Restricted Business in the United States; provided that the Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and
(y) be employed by, or otherwise have material association with, any business that competes materially with the Companies in the Business if his employment or association is with a separately managed and operated division or Affiliate of such stock is publicly traded business that does not compete with the Companies in the Business and listed he has no business communication relating to the Business with employees of any division or Affiliate of such business that does compete with the Companies in the Business and (z) serve on the Board of any stock exchange;business as an immaterial part of its overall business provided that he recuses himself fully and completely from all matters relating to the Business.
(ii) acquiringduring the Term and for a period of 12 months thereafter, merging personally solicit, aid in the solicitation of, induce or combining with, or investing in, any Person or business that engages, otherwise encourage (whether directly or indirectly) any individual who is, in at the Restricted Business, so long as the gross revenues time of such Person encouragement, employed as an executive, highly-compensated employee, or business derived from the Restricted Business for the most recent fiscal year ended prior to the date managerial/supervisory employee of such acquisition were equal to or less than twenty percent (20%) either of the total consolidated gross revenues of such Person or business for such Fiscal Year; providedCompanies, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Lawemployment; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.
Appears in 1 contract
Restrictive Covenants. Except as otherwise provided in provided in paragraph 5(d) below:
(a) Neither HHC nor its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇▇ nor its Affiliates shallshall not, during the term commencing on the date of this Agreement and terminating one year from the date of this Agreement (the "Restricted Period"), anywhere within the United States (the "Restricted Territory"), directly or indirectly through any principal(whether as an owner, partner, managershareholder, agent, officer, director, officeremployee, independent contractor, consultant, or employee thereof acting on behalf of otherwise):
(i) perform services for, or engage in, any business that develops or sells products or services which are competitive with any products or services sold or developed by the Company for which ▇▇▇▇▇▇▇ has provided any assistance in planning, development, marketing, training, support, or maintenance during the benefit period of ▇▇▇▇▇▇▇'▇ employment with the Company (the "Products");
(ii) except on behalf of the Company, solicit any person or its Affiliatesentity who is, or was at any time during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything twelve-month period immediately prior to the contrary in Section 7.4(b)date of this Agreement, nothing in this Agreement shall preclude, prohibit, a customer of the Company for the sale of the Products or restrict any product or service of a type then sold by the Company for which ▇▇▇▇▇▇▇ provided any direct, material assistance in planning, development, marketing, training, support, or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):maintenance; or
(iiii) acquiring less than an aggregate of five percent (5%) of solicit for employment any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining withperson who is, or investing in, was at any Person or business that engages, directly or indirectly, in time during the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended twelve-month period immediately prior to the date of such acquisition were equal to or less than twenty percent this Agreement, an employee of any Company, except for ▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
(20%b) The parties acknowledge that the businesses of the total consolidated gross revenues Company are and will be national and international in scope and thus the covenants in this Section 5 would be particularly ineffective if the covenants were to be limited to a particular geographic area of such Person the United States. If any court of competent jurisdiction at any time deems the Restricted Period unreasonably lengthy, or business for such Fiscal Year; providedthe Restricted Territory unreasonably extensive, thator any of the covenants set forth in this Section 5 not fully enforceable, subject the other provisions of this Section 5, and this Agreement in general, will nevertheless stand and to the requirements full extent consistent with law continue in full force and effect, and it is the intention and desire of Lawthe parties that the court treat any provisions of this Agreement which are not fully enforceable as having been modified to the extent deemed necessary by the court to render them reasonable and enforceable and that the court enforce them to such extent (for example, that the Restricted Period be deemed to be the longest period permissible by law, but not in excess of the length provided for in paragraph 5(a), and the Restricted Territory be deemed to comprise the largest territory permissible by law under the circumstances).
(c) ▇▇▇▇▇▇▇ and its Affiliates shallacknowledges that all records, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divestdocuments, and subsequently divest, the relevant portion tangible embodiments containing or of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced Proprietary Information prepared by ▇▇▇▇▇▇▇ Insurance Agency, LLCor coming into his possession by virtue of his employment by Surge and Superus are and will remain the property of the applicable Company. Accordingly, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered shall immediately return to insurance or reinsurance companies or other entities Surge all such items in the business of providing primary risk protection), regardless of whether the subject matter his possession and all copies of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionitems.
(d) In The provisions of this Section 5 shall no longer be applicable with respect to MailEncrypt (to the extent subsequently waived by MailEncrypt) in the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one Surge disposes of its Subsidiaries will current equity interest in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this AgreementMailEncrypt.
Appears in 1 contract
Sources: Termination and Separation Agreement (Surge Components Inc)
Restrictive Covenants. 12.1 The Executive acknowledges that: (ai) Neither HHC nor the Executive performs services of a unique nature for the Company that are irreplaceable, and that the Executive’s performance of such services for a Competing Business (as defined below) will result in irreparable harm to the Company; (ii) the Executive will have access to Confidential Information, which, if disclosed, would unfairly and inappropriately assist in competition against the Company or any of its Affiliates shallaffiliates; (iii) the Company and its affiliates have substantial relationships with their clients, directly or indirectly by or through any Affiliate or agentbusiness partners, whether as principaland investors, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or and the Executive will have access to these persons and entities; (iv) the Executive will generate goodwill for the Company and its affiliates in any other capacitythe course of the Executive’s employment. Accordingly, during the applicable Executive’s employment hereunder and, in the event that the Executive’s employment is terminated for Cause or voluntarily by the Executive (whether or not for Good Reason), and provided the Company first provides the Executive with a one-time payment of seventy-five thousand dollars (US $75,000.00), and the Company notified the Executive within ten (10) days of such termination of its intention to continue to pay the Executive 50% of his/her Base Salary during such period (unless the Executive’s employment is terminated by him/her for Good Reason, in which case his/her entitlements under Section 10.5 shall apply), during Executive’s employment and the six (6) month period thereafter (the “Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b”), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedExecutive agrees that he/she will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in a Competing Business, or with respect to which the Restricted Business if such stock is Company has spent significant time or resources analyzing for the purposes of engaging, on the date of termination, in any state of the United States, in Europe, or in any country in which the Company conducts business or has made plans and taken significant steps to conduct business (a “Planned Competing Business”) and in which the Executive, during the last two years of his/her employment, provided services or had a material presence or influence. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more than 2% of the equity securities of a publicly traded and listed on any stock exchange;
(ii) acquiring, merging corporation engaged in a Competing Business or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Planned Competing Business, so long as the gross revenues Executive has no active participation in the Competing Business or Planned Competing Business of such Person or business derived from corporation. For purposes of this Section 12.1, the Restricted Business “Company” shall mean the Company together with its parent companies and its and their direct and indirect subsidiaries, and “Competing Business” shall mean the research, development and/or sale of cancer therapeutics together with drug efficacy prediction technology (e.g. companion diagnostics, predictive biomarkers) for the most recent fiscal year ended prior treatment of cancer, including, without limitation, products or services designed to make such technology available to patients and businesses in the healthcare industry, or any other material business in which the Company is engaged as of the date of the Executive’s termination of employment. For the avoidance of doubt, the provisions of this Section 12.1 will not prohibit the Executive, after termination of his/her employment with the Company, from providing services of any nature to any business engaged in multiple business activities, including activities that would constitute a Competing Business or a Planned Competing Business, as long as the Executive is not himself/herself directly involved in such Competing Business or Planned Competing Business activities, or managing or supervising the conduct of such Competing Business or Planned Competing Business activities. In addition, if the Company or a controlling interest in the Company is acquired by another entity during the term of this Agreement, in such circumstances the restrictions in this Section 12.1 will not be applicable to any business activities of the acquiring entity (and/or its affiliates) except to the extent that either (i) such business activities would constitute a Competing Business or Planned Competing Business (other than by reason of the acquisition itself), or (ii) the Executive after such acquisition were equal to is directly involved in the conduct, management or less than twenty percent (20%) of the total consolidated gross revenues supervision of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, activities. Allarity CEO Employment Agreement_James ▇. ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by _▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities 2023 14 The Parties acknowledge and agree that the payment options set forth in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether Section 12.1 have been mutually agreed upon by the Company and its Subsidiaries would like the Executive, are fair and reasonable, and are sufficient in exchange for the Executive’s obligations set forth in this Section 12.1. The Parties acknowledge and agree that this Section 12.1 shall not be enforceable if, at the time the Executive’s employment with the Company terminates, the Executive is: classified by the Company as a non-exempt employee under the Fair Labor Standards Act (“FLSA”); enrolled in a full-time or part-time undergraduate or graduate educational institution; or laid off or terminated without Cause. The Parties acknowledge and agree that at or around the time the Executive’s employment ends, and in the Company’s sole discretion, the Company may waive the Executive’s obligations in this Section 12.1, in which case the Company will not be required to pursue such opportunity rather than allowing provide the New Business Proponent to pursue itExecutive with any of the payments set forth in Section 12.1 above. If the Board determines The Parties acknowledge and agree that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity Executive has been presented advised that he/she has the right to the Board takes actions in good faith, subject consult with counsel prior to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of signing this Agreement.
Appears in 1 contract
Restrictive Covenants. A. From and after the Closing, Seller and each Member will keep confidential and not disclose to any other Person or use for such Person’s own benefit or the benefit of any other Person any confidential or non-public information regarding the Business. The obligation of Seller, the Members and their Affiliates under this Section 17(A) will not apply to information that: (ai) Neither HHC nor is or becomes generally available to the public without breach of the commitment provided for in this Section 17(A); (ii) is or becomes available to Seller or a Member on a non-confidential basis from a source not known (or reasonably expected) by Seller or such Member to be prohibited from disclosing such information; or (iii) is required to be disclosed by Law; provided, however, that in the case of a required disclosure under subsection (iii), Seller, a Member or such other Person, as applicable, will notify Buyer as early as reasonably practicable prior to disclosure to allow Purchaser to take appropriate measures to preserve the confidentiality of such information.
B. As a material inducement to Buyer to enter into and perform its Affiliates shallobligations under this Agreement, Seller and each Member agrees that, from the Closing Date through the three (3) year anniversary of the Closing Date (the “Non-Compete Restricted Period”), Seller and each Member will not, directly or indirectly by or through own any Affiliate or agentinterest in, manage, control, participate in (whether as principalan owner, officer, director, manager, employee, partner, agent, ownerrepresentative or otherwise), investorconsult with, lenderrender services for, shareholder, member, partner, manager, director, officer, employee, consultantbecome employed by, or in any other capacity, during the applicable Restricted Period, manner engage or participate in the Business anywhere in or any business that competes directly with the world.
Business within the State of Colorado. Nothing herein will prohibit any such Person from being a passive owner of not more than two percent (b2%) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) outstanding stock of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock corporation that is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Businesstraded, so long as Seller or such Member has no active participation in the gross revenues business of such Person or corporation. For purposes hereof, “competes directly with” shall mean a business derived from which engages in the Restricted Business sale and/or distribution of medical and/or retail marijuana within twenty-five (25) miles of the Leased Real Property; such term shall expressly exclude any business (including, for the most recent fiscal year ended prior to the date avoidance of such acquisition were equal to or less than twenty percent (20%) doubt, any business activity of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC▇▇▇▇▇, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ) which engages in the cultivation, manufacturing, sale and/or wholesale distribution of products derived from hemp or such Affiliate immediately prior marijuana.
C. As a material inducement to Buyer to enter into and perform its obligations under this Agreement, from the consummation of such transaction do not beneficially own more than fifty percent Closing Date through the two (50%) 2)-year anniversary of the combined voting power of Closing Date (the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its “Non- Solicit Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines Seller and each Member (i) will not, directly or indirectly contact, approach or solicit for the purpose of offering employment to or hiring (whether as an employee, consultant, agent, independent contractor or otherwise) or actually hire any Person employed by Buyer or its Affiliates (or any successor to the Business); provided, however, that she this Section 17C will not prohibit any such Person from (A) conducting any general solicitations in a newspaper, trade publication or he other periodical or it would like web posting not specifically targeted at any Person employed by Buyer or its Affiliates (or any successor to pursue an opportunity that otherwise constitutes the Business), or (B) participating in job fairs, career fairs or similar recruiting events; and (ii) will not induce or attempt to induce any customer or other business relation of the Business into any business relationship that might materially harm Buyer or its Affiliates or the Business. Notwithstanding the foregoing, such foregoing restrictions shall expressly not prohibit Seller or any of its Members from: (in respect x) engaging any independent contractors of HHC and its equityholders and AffiliatesSeller; or (y) directly or indirectly contacting, approaching or soliciting for the purpose of offering employment to or hiring (whether as an employee, consultant, agent, independent contractor or otherwise) or the Restricted Business (in respect of actually hire ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, DunMin Media, ▇▇▇▇ ▇▇▇▇▇▇ and/or ▇▇▇▇ ▇▇▇▇▇▇.
D. As a material inducement to Buyer to enter into and perform its Affiliatesobligations under this Agreement, from and after the Closing, Seller and each Member will not, directly or indirectly denigrate or disparage Buyer or its Affiliates (including Parent) and their respective equityholders, managers, directors, officers, employees, independent contracts or representatives or the Business.
E. Seller and each Member acknowledges and agrees that in the event of a breach or alleged breach by such Person of any of the provisions of this Section 17, monetary damages will not constitute a sufficient remedy. Consequently, in the event of any such breach or alleged breach, Buyer, its Affiliates and their successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of law or equity of competent jurisdiction for specific performance, injunctive relief, or both, or any other equitable remedies available to enforce or prevent any violations of the provisions hereof (a “New Business Opportunity”)including, without limitation, the New Business Proponent shall notify extension of the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company Non-Compete Restricted Period or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Non-Solicit Restricted BusinessPeriod, as applicable. If , by a majority period equal to (A) the length of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms violation of this AgreementSection 17 plus (B) the length of any court proceedings necessary to stop such violation), in each case, without the requirement of posting a bond or proving actual damages.
Appears in 1 contract
Sources: Asset Purchase Agreement (Medicine Man Technologies, Inc.)
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallSeller hereby acknowledges and agrees that (i) Buyer would not have entered into this Agreement if Seller had not agreed to the covenants set forth in this Section 5.10, directly or indirectly that Section 5.10 is a material term and material incentive for entering into this Agreement, and (ii) Seller has had access to and is selling to Buyer as part of this Agreement the goodwill of the Company and information that is confidential and proprietary to the Company, that constitutes a valuable, special and unique asset of the Company, and with respect to which Buyer is entitled to the protections afforded by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, this Agreement and to the remedies for enforcement of this Agreement provided by law or in equity (including those remedies the availability of which may be within the discretion of the court or arbitrator that presides over any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the worldaction for which enforcement of this Agreement is brought).
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shallFor a period of 18 months after the Closing Date, Seller agrees that it will not (i) directly or indirectly through employ or engage any principal(A) Business Employee who accepts an Employment Offer from Buyer or any other Field Business Employee who receives an Employment Offer from Buyer, partner(B) Company Service Provider who provides services to the Company after the Closing or (C) employee of Buyer or any of its Affiliates with whom Seller or any of its Affiliates had contact with or became aware of prior to the Closing Date (collectively, manager, director, officer, contractorthe “Restricted Employees”), or employee thereof acting on behalf (ii) directly or indirectly solicit the employment or services of, or cause or attempt to cause to leave the employment or service of Buyer or any Affiliate of Buyer, any Restricted Employees; provided, however, that Seller may solicit or hire any Restricted Employees (X) Buyer has consented to the solicitation or hiring of such individual in writing, which consent Buyer may withhold in its sole discretion or (Y) with respect to Restricted Employees who are not Business Employees or Company Service Providers, such solicitation solely occurs by general solicitation for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable employment not directed at any such Restricted Period, engage or participate in the Restricted Business anywhere in the worldEmployees.
(c) Notwithstanding anything to For a period of 18 months following the contrary in Section 7.4(b)Closing Date, nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedSeller agrees that it will not, directly or indirectly, in acting alone or as a member of a partnership or company, as a holder or owner of any security, as a lender, agent, advisor, consultant or independent contractor:
(i) within the Restricted Business if such stock is publicly traded and listed on Area, carry on, participate in, or be engaged in (whether for its own account or for the account of any stock exchangeother Person) the Restricted Business;
(ii) acquiring, merging or combining withshare in the earnings of, or investing inbeneficially own or hold any security issued by, or otherwise own or hold any Person interest in any entity which is engaged in the Restricted Business within the Restricted Area; or
(iii) encourage or business that engagesinduce, directly or indirectly, in any customer or supplier of the Company who is a customer or supplier of the Company within the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended Area immediately prior to the date of such acquisition were equal to Closing, or less than twenty percent (20%) is a prospective customer or supplier of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject Company within the Restricted Area immediately prior to the requirements of LawClosing, ▇▇▇▇▇▇ and to curtail, cancel or materially reduce its business or refrain from doing business with, Buyer or its Affiliates shall(which after Closing includes the Company) within the Restricted Area. Notwithstanding the foregoing provisions of this Section 5.10(c), Seller may own, solely as promptly as reasonably practicable following such acquisition, merger, combination or an investment, (x) cause such acquired Person or business to cease engaging securities of an entity that is engaged in the Restricted Business within the Restricted Area if (1) Seller is not an Affiliate of the issuer of such securities, (2) Seller does not, directly or (y) sign a definitive agreement to divestindirectly, beneficially own more than 5% in the aggregate of such class of securities, and subsequently divest, (3) Seller has no active participation in such entity.
(d) From the relevant portion Closing Date and for a period of such acquired Person 2 years thereafter (or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any contract with a term longer than two years, for a period equivalent to the term of such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreementcontract) (such period, the requirements set forth “Confidentiality Period”), Seller shall, and shall cause its Affiliates to, hold in Section 5.12(b)(i)(Bconfidence and not use, any Confidential Information; provided, however, that Seller and its Affiliates shall be able to use or disclose any such Confidential Information (i) of the Alliance Agreement shall apply with respect to any Insurance Policies written as may be reasonably required by such acquired Person, Seller or its Affiliates in connection with such acquired business, that would be included in the Alliance Business any insurance proceedings or Tax audits against or proceedings concerning Seller or its Affiliates or (as defined in the Alliance ii) to enforce its rights and comply with its obligations under this Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ . If Seller or any of its Affiliates is reasonably required requested or compelled during the Confidentiality Period to develop disclose any Confidential Information by judicial or sell such products in order to comply with administrative process, by any Governmental Authority or by other requirements under applicable of Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ Seller or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%as applicable) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed permitted to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicablemake such disclosure; provided, however, that Seller or such Affiliate (as applicable), to the New Business Proponent extent permitted by applicable Law, promptly notifies Buyer in writing and discloses only that portion of such Confidential Information that Seller or such Affiliate (as applicable) is legally required to disclose and that Seller or such Affiliate (as applicable) provides reasonable cooperation to Buyer, at Buyer’s expense, with respect to any actions taken by Buyer to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded Confidential Information. Further, notwithstanding any other provision in this Agreement, Seller may disclose Confidential Information to Seller’s Affiliates and each of their respective partners, members, officers, managers, directors, agents and investors to the extent Seller deems reasonably necessary in connection with the transactions contemplated by this Agreement, subject to the confidentiality and non-use restrictions set forth in this Section 5.10(d) and Seller shall continue be responsible for a breach by Seller’s Affiliates and each of their respective partners, members, officers, managers, directors, agents and investors of this Section 5.10(d) to the extent Seller provides Confidential Information to such Affiliates or other persons.
(e) Seller hereby agrees that if Seller violates or threatens to violate any of the provisions of this Section 5.10, it would be difficult to determine the entire cost, damage or injury which Buyer and its Affiliates would sustain. Seller acknowledges that if it violates any of the provisions of this Section 5.10, Buyer may have no adequate remedy at law. In the event of such violation, Buyer shall have the right, in addition to any other rights that may be available to it, to seek to obtain in any court of competent jurisdiction injunctive relief to restrain any violation by Seller of any provision of this Section 5.10 or to seek to compel specific performance by Seller of one or more of its obligations under this Section 5.10. The seeking or obtaining by Buyer of such injunctive relief shall not foreclose or in any way limit the right of Buyer to obtain a money judgment against Seller for any damage to Buyer that may result from any breach by Seller of any provision of this Section 5.10.
(f) Seller acknowledges that the covenants contained in Section 5.10 are reasonable in geographic and temporal scope and that the scope of each of the activities being restrained is reasonable and does not impose a greater restraint than is necessary to protect the goodwill or other business interest of Buyer and the Company. If any court of competent jurisdiction determines that any of such covenants, provisions or portions of Section 5.10, or any part thereof, are unenforceable or otherwise invalid, then (i) the validity and enforceability of any remaining covenants, provisions or portions thereof shall not be affected by such determination, (ii) those of such covenants, provisions or portions that are determined to be bound unenforceable because of the duration or scope thereof shall be reformed if possible by all of his the court to reduce their duration or her or its other duties and obligations scope so as to render the same enforceable against Seller to the Company maximum duration and its Subsidiariesbroadest scope permitted by law, including and if such reformation is not possible, then severance by the court, and (iii) all duties as a director of PubCoremaining covenants, Memberprovisions, officer or employee in accordance with the portions and terms of this AgreementSection 5.10 shall be valid and enforceable to the fullest extent permitted by law.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Targa Resources Partners LP)
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallDuring the Term and at all times thereafter, directly the Executive shall not, without the prior written consent of the relevant Company, divulge, disclose or indirectly by or through make accessible to any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultantother Person any Confidential Information except (v) to the Companies and their Affiliates, or to any authorized (or apparently authorized) agent or representative of any of them, (w) in any connection with performing his duties hereunder, (x) when required to do so by law or by a court, governmental agency, legislative body, arbitrator or other capacityPerson with apparent jurisdiction to order him to divulge, during the applicable Restricted Perioddisclose or make accessible such information, engage or participate (y) in the Business anywhere course of any Proceeding under Section 12(c) or 15 or (z) in confidence to an attorney or other professional advisor for the worldpurpose of securing professional advice. In the event that the Executive is required to disclose any Confidential Information pursuant to clause (x) or (y) of the immediately preceding sentence, he shall (A) promptly give the relevant Company notice that such disclosure is or may be made and (B) cooperate with the Companies, at their reasonable request and sole expense, in seeking to protect the confidentiality of the Confidential Information.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shallThe Executive shall not, directly for his own benefit or indirectly through the benefit of any principalother Person, without the prior written consent of the Companies and other than in connection with his services hereunder during the Term:
(i) during the Term and for a period of 12 months thereafter (provided that such period shall be shortened to 6 months in the event that the Term ends in a termination of the Executive's employment that is governed by Section 9(d), 9(e) or 9(g) (relating to without Cause and full Term terminations)), perform material services for, or otherwise have material involvement with (whether as an officer, director, partner, managerconsultant, directorsecurity holder, officerowner, contractoremployee, independent contractor or otherwise), any Person that competes materially (whether directly or indirectly) with the Companies in the Business in the United States; provided that the Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) be employed by, or otherwise have material association with, any business that competes materially with the Companies in the Business if his employment or association is with a separately managed and operated division or Affiliate of such business that does not compete with the Companies in the Business and he has no business communication relating to the Business with employees of any division or Affiliate of such business that does compete with the Companies in the Business and (z) serve on the Board of any business as an immaterial part of its overall business provided that he recuses himself fully and completely from all matters relating to the Business.
(ii) during the Term and for a period of 12 months thereafter, personally solicit, aid in the solicitation of, induce or otherwise encourage (whether directly or indirectly) any individual who is, at the time of such encouragement, employed as an executive, highly-compensated employee, or managerial/supervisory employee thereof acting on behalf of either of the Companies, to cease such employment; or
(iii) during the Term and for a period of 12 months thereafter, personally solicit, aid in the solicitation of, induce, or otherwise encourage (whether directly or indirectly) any Person that was a customer of the Companies at any time during the Term for the benefit purpose of ▇▇▇▇▇▇ (a) selling services or its products to such Person in competition with the Companies in the Business or (b) inducing such Person to cancel, transfer or cease doing Business in whole or in part with the Companies; provided, that the restrictions set forth in clauses (i), (ii) and (iii) of this Section 12(b) shall immediately expire in the event that either of the Companies, or any of their Affiliates, during shall have materially breached, on or after the applicable Restricted PeriodTermination Date, engage any of their material obligations to the Executive under this Agreement or participate in otherwise, which breach shall have continued uncured for 15 days after the Restricted Business anywhere in the worldExecutive has given written notice requesting cure.
(c) Notwithstanding anything The Executive acknowledges and agrees that the Companies' Business and the services they provide are highly competitive, and that the restrictions contained in this Section 12 are reasonable and necessary to protect the Companies' legitimate business interests. The Executive further acknowledges that any actual or prospective breach may irreparably cause damage to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engagingCompanies for which money damages may not be adequate. Therefore, in the event of any manner in actual or threatened breach by the Executive of any of the following (provisions of Section 12(a) or 12(b) above, the Companies shall each be entitled to seek, through arbitration in accordance with each Section 15 or from any court with jurisdiction over the matter and the Executive, temporary, preliminary and permanent equitable/injunctive relief restraining the Executive from violating such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectlyprovision and to seek, in the Restricted Business if such stock is publicly traded addition, but solely through arbitration in accordance with Section 15, money damages, together with any and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies all other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements remedies available under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionlaw.
(d) In The purpose of Section 12, among other things, is to protect the event thatCompanies from unfair or inappropriate competition, during his or her or its Restricted Periodto protect their confidential information and trade secrets, any Member other than PubCo, including and to prevent competitors from raiding the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue itCompanies' management employees. If the Board determines that the Company scope or one enforcement of Section 12 is ever disputed, a court, arbitrator or other trier of fact may modify and enforce its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented provisions to the Board takes actions in good faithextent it believes is lawful and appropriate. If any provision of Section 12 is construed to be invalid, subject to commercial limitationsillegal or unenforceable, to implement such New Business Opportunity, then the New Business Proponent remaining provisions therein shall not pursue it be affected thereby and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementenforceable without regard thereto.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor During the Term and at all times thereafter, the Executive shall not, without the prior written consent of the Company, divulge, disclose or make accessible to any other Person any Confidential Information except (i) to the Company and its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultantAffiliates, or to any authorized (or apparently authorized) agent or representative of any of them, (ii) in any connection with performing his duties hereunder, (iii) when required to do so by law or by a court, governmental agency, legislative body, arbitrator or other capacityPerson with apparent jurisdiction to order him to divulge, during the applicable Restricted Perioddisclose or make accessible such information, engage or participate (iv) in the Business anywhere course of any Proceeding under Section 11(c) or 14 or (v) in confidence to an attorney or other professional advisor for the worldpurpose of securing professional advice. In the event that the Executive is required to disclose any Confidential Information pursuant to clause (iii) or (iv) of the immediately preceding sentence, he shall (I) promptly give the Company notice that such disclosure is or may be made and (II) cooperate with the Company, at its reasonable request and sole expense, in seeking to protect the confidentiality of the Confidential Information.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shallThe Executive shall not, directly for his own benefit or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliatesany other Person, during without the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any prior written consent of the following (Company and other than in connection with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):his services hereunder:
(i) acquiring during the Term, and in the event of any termination of the Executive’s employment hereunder, for the remainder of the then-scheduled Term, provided that such period shall be no less than twelve (12) months and shall not exceed eighteen (18) months (such period, the “Restricted Period”), perform material services for, or otherwise have material involvement with (whether as an aggregate of officer, director, partner, consultant, security holder, owner, employee, independent contractor or otherwise), any Person that competes materially (whether directly or indirectly) with the Company in the Business; provided further that the Executive may in any event (x) own up to a five percent (5%) of passive ownership interest in any class of stock of a Person engagedpublic or private entity and (y) be employed by, directly or indirectlyotherwise have material association with, any business that competes materially with the Company in the Restricted Business if such stock is publicly traded and listed on any stock exchangehis employment or association does not involve competing with the Company in the Business;
(ii) acquiringduring the Restricted Period, merging personally solicit, aid in the solicitation of, induce or combining with, or investing in, any Person or business that engages, otherwise encourage (whether directly or indirectly) any individual who is, at the time of such encouragement, employed as an executive, highly-compensated employee, or managerial/supervisory employee of the Company, to cease such employment; or
(iii) during the Restricted Period, personally solicit, aid in the Restricted Businesssolicitation of, so long as induce, or otherwise encourage (whether directly or indirectly) any Person that was a customer of the gross revenues of such Person or business derived from Company at any time during the Restricted Business Term for the most recent fiscal year ended prior to the date purpose of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause selling services or products to such acquired Person or business to cease engaging in competition with the Company in the Restricted Business or (y) sign a definitive agreement inducing such Person to divestcancel, and subsequently divest, the relevant portion of such acquired Person transfer or business conducting the Restricted cease doing Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, whole or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection part with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionCompany.
(dc) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC The Executive acknowledges and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines agrees that the Company or one of its Subsidiaries will in good faith pursue the New Company’s Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Businessservices it provides are highly competitive, as applicable. If a majority of the Board determine and that the Company restrictions contained in this Section 11 are reasonable and its Subsidiaries will not pursue necessary to protect the New Business Opportunity, the New Business Proponent Company’s legitimate business interests. The Executive further acknowledges that any actual or prospective breach may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations irreparably cause damage to the Company and its Subsidiariesfor which money damages may not be adequate. Therefore, including all duties as a director in the event of PubCoany actual or threatened breach by the Executive of any of the provisions of Section 11(a) or 11(b) above, Memberthe Company shall be entitled to seek, officer or employee through arbitration in accordance with Section 14 or from any court with jurisdiction over the terms of this Agreementmatter and the Executive, temporary, preliminary and permanent equitable/injunctive relief restraining the Executive from violating such provision and to seek, in addition, but solely through arbitration in accordance with Section 14, money damages, together with any and all other remedies available under applicable law.
Appears in 1 contract
Sources: Employment Agreement (Epicept Corp)
Restrictive Covenants. (a) Neither HHC nor During the Interim Period (solely with respect to the Blackstone Sellers) and for a period of two years following the Closing Date (with respect to all Sellers), (i) (A) each Seller (other than the Blackstone Sellers) shall not, and shall cause its Affiliates shall(excluding, prior to the Closing, the Acquired Companies) not to, and (B) the Blackstone Sellers and their Affiliates shall not, directly or indirectly indirectly, solicit or employ or otherwise seek to employ, any Covered Employee, provided that (I) this clause (i) shall not apply with respect to any solicitation for employment by a Seller or through its Affiliates of a Covered Employee who (x) has not been employed with the Acquired Companies for a period of twelve consecutive months as of the commencement of such solicitation and (y) was not, directly or indirectly, solicited for employment by such Seller or its Affiliates or the Blackstone Sellers or their Affiliates, as applicable, in violation of this Section 7.19 at any Affiliate time prior to the end of such twelve-month period and (II) for the avoidance of doubt, the Blackstone Sellers shall be responsible for any violation of this Section 7.19(a) by their Affiliates, and (ii) each Non-Compete Seller agrees that it shall not, and shall cause its Affiliates (excluding, prior to the Closing, the Acquired Companies) not to, solicit or agentencourage any customers, whether as principalsuppliers, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultantpartners or distributors of, or other Persons having a business relationship with, any Acquired Company or Buyer or any of their respective Subsidiaries to cease doing business with, alter the terms of its business with, or otherwise alter its relationship with, the Acquired Companies, Buyer and/or their respective Subsidiaries, as applicable, in any other capacitya manner adverse to the Acquired Companies (it being agreed, during for the applicable Restricted Periodavoidance of doubt, engage or participate that activities on behalf of the Acquired Companies in the Business anywhere in ordinary of business consistent with past practice prior to the worldClosing shall not be deemed a breach of this clause (ii)).
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or In consideration for the benefit agreements of ▇▇▇▇▇▇ or its AffiliatesBuyer herein, each Non-Compete Seller that has not executed a separate non-competition agreement with Buyer and Buyer Parent effective as of the Execution Date hereby covenants and agrees that, during the applicable Restricted PeriodProtected Term, engage or participate unless expressly permitted in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b)writing by Buyer, nothing in this Agreement such Non-Compete Seller shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or not and shall not permit any of its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedto, directly or indirectly, for its own account or for the account of any other Person: (x) initiate, undertake, acquire, participate in or engage in any Competing Activity, or (y) operate, perform, control, manage or have any ownership or debt interest or Equity Interest in (excluding the ownership, individually and in the Restricted Business if aggregate with such Non-Compete Seller and all of its Affiliates, of less than 5% of the outstanding voting stock of any corporation whose common stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging securities exchange so long as neither such Non-Compete Seller nor any of its Affiliates actively participates in the management or combining withoperation of such corporation), or investing inotherwise provide any financial, operational or technical assistance to, any Person or business that engagesengages in a Competing Activity during the Protected Term (excluding, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended avoidance of doubt, the operation of the Acquired Companies prior to the date Closing). For the purposes of such acquisition were equal to this Agreement, (i) “Competing Activity” means any business that is the same as, or less than twenty percent (20%) directly competitive in any material respect with, the material business conduct of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject Acquired Companies during the six months prior to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divestClosing, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance the “Protected Term” means the period commencing on the Closing Date and ending on the third anniversary of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionClosing Date.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor From and after the Closing Date, ▇▇▇▇▇▇▇▇ hereby acknowledges and agrees that (i) the Purchaser would not have entered into this Agreement if ▇▇▇▇▇▇▇▇ had not executed and delivered this Agreement to the Purchaser containing this Section 9.8; (ii) ▇▇▇▇▇▇▇▇ has had access to information that is confidential to the Purchaser and the Companies that constitutes a valuable, special and unique asset of the Purchaser and the Companies, and with respect to which the Purchaser is entitled to the protections afforded by this Agreement and to the remedies for enforcement of this Agreement provided by law or in equity (including, without limitation, those remedies the availability of which may be within the discretion of the court or arbitrator that presides over any action for enforcement of this Agreement is brought); and (iii) ▇▇▇▇▇▇▇▇ recognizes that the goodwill of the Companies’ business affects the value of the Seller Equity and that the restrictions set forth in this Section 9.8 are necessary and required to protect the Confidential Information and Seller Equity.
(b) Except with respect to any ownership interest in, or other relationship with, Purchaser or the Companies, from and after the Closing Date, for a period of seven (7) years following the Closing Date, ▇▇▇▇▇▇▇▇ agrees that he will not (directly or indirectly through any entity or other Person), and shall cause each of his, he or its Affiliates shallnot to, directly or indirectly by indirectly, acting alone or through as a member of a partnership, as a holder or owner of any Affiliate or agentsecurity, whether as principalan employee, agent, owneradvisor, investorconsultant to, lenderindependent contractor to, shareholderrepresentative or in any of the states listed on Exhibit C hereto (collectively, memberthe “Territory”):
(i) Carry on or be engaged in or otherwise take part in (whether for his/its own account or for the account of any other Person, partnerother than the Purchaser or its Affiliates) any business which competes with the Business in the Territory; provided, managerhowever, directorthat the definition of “Competitive Business” and the restrictions of this Section 9.8 shall not apply to the supply of motor fuel or gasoline products to terminals which are located in or otherwise supply such motor fuel or gasoline products to the Territory (“Competitive Business”);
(ii) Share in the earnings of, officeror beneficially own or hold any security issued by or any other economic interest in, or otherwise own or hold any interest in, any Person who or which is directly or indirectly engaged in a Competitive Business in the Territory;
(iii) Request or suggest, directly or indirectly, that any customer or vendor of the Companies as of the Closing Date, or that has been a customer or vendor of the Companies within two (2) years before the Closing Date, curtail or cancel its business or refrain from doing business with the Companies in the Territory; or
(iv) Solicit or provide services in the Territory as a Competitive Business to the services of the Companies as performed as of the Closing Date to, for, or on behalf of, directly or indirectly, any customer of the Companies as of the Closing Date, or that has been a customer of the Companies within two (2) years before the Closing Date.
(c) For a period of five (5) years following the Closing Date, ▇▇▇▇▇▇▇▇ agrees that he will not (directly or indirectly through any entity or other Person), and shall cause each of his Affiliates not to, directly or indirectly, acting alone or as a member of a partnership, as a holder or owner of any security, as an employee, consultantagent, advisor, consultant to, representative, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.:
(bi) Neither Contact, solicit or enter into any agreement or contract with any employee of the Companies or any Affiliate of the Companies other than ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇▇▇ or its Affiliates▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
(ii) Directly or indirectly solicit the employment or services of, during or cause or attempt to cause to leave the applicable Restricted Periodemployment or service of the Companies or any Affiliate of Companies, engage any Person who or participate which is employed by, or otherwise engaged to perform services for, the Companies or any Affiliate of the Companies (whether in the Restricted Business anywhere in the world.
(ccapacity of employee, consultant, independent contractor or otherwise) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict other than ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency▇▇▇▇▇▇▇; or
(iii) Request that any present or future employee, LLCagent or independent contractor of the Companies, or any Affiliate of the Companies, curtail or cancel its business or refrain from doing business with the Companies or any Affiliate of the Companies other than ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇. Without limiting the generality of the provisions of this Section 9.8, ▇▇▇▇▇▇▇▇ Classic Marine Insurance Agencyshall be deemed to be carrying on or engaged in a particular business if he, LLC she or it (whether alone or in association with one or more other Persons) is an owner, proprietor, partner, employee, stockholder, member, independent contractor, director, manager or joint venturer of, or a consultant or lender to, or an investor in any of their Affiliates;manner in, any Person who or which is directly or indirectly engaged in Competitive Business.
(vid) marketingNotwithstanding the foregoing provisions of this Section 9.8, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇▇▇ or any Affiliate may own or share in the earnings of its Affiliates any Person in a Competitive Business in the Territory, solely as an investment, securities if (i) ▇▇▇▇▇▇▇▇ does not, directly or indirectly, beneficially own more than five percent (5%), in the aggregate, of the class of which securities are a part, (ii) such class of securities is reasonably required to develop or sell publicly traded and (iii) ▇▇▇▇▇▇▇▇ has no active participation in such products in order to comply with requirements under applicable Law; orentity.
(viiie) entering into ▇▇▇▇▇▇▇▇ acknowledges and consummating an agreement with any Person with respect agrees that the limitations imposed by this non-competition covenant as to time, geographical area, and scope of activity being restrained are reasonable and do not impose a mergergreater restraint than is necessary to protect the Confidential Information, share exchange goodwill or other business combination transaction immediately following which the beneficial owners interest of the voting capital stock of Purchaser, which are being purchased and for which ▇▇▇▇▇▇▇▇ is being compensated pursuant to this Agreement.
(f) The Purchaser and ▇▇▇▇▇▇▇▇ hereby agree that if ▇▇▇▇▇▇▇▇ or such any Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇▇▇ and its violates or threatens to violate any of the provisions of this Agreement, it would be difficult to determine the entire cost, damage or injury which the Purchaser would sustain. ▇▇▇▇▇▇▇▇ acknowledges that if he (or his Affiliates) (a “New Business Opportunity”)violates or threatens to violate any of the provisions of this Agreement, the New Business Proponent Purchaser will not have a complete and adequate remedy at law. In that event, the Purchaser shall notify have the Board right, in writing addition to any other rights that may be available to it, to seek to obtain in any court of competent jurisdiction injunctive relief to restrain any violation or threatened violation by ▇▇▇▇▇▇▇▇ or his Affiliates of any provision of this Agreement or to compel specific performance by ▇▇▇▇▇▇▇▇ of one or more of his obligations under this Section 9.8. The seeking or obtaining by the Purchaser of such intention injunctive relief shall not foreclose or in any way limit the right of the Purchaser to obtain a money judgment against ▇▇▇▇▇▇▇▇ for any damage to the Purchaser that may result from any breach by ▇▇▇▇▇▇▇▇ of any provision of this Agreement. In the event of a breach by ▇▇▇▇▇▇▇▇ of any covenant set forth in this Section 9.8, the term of such covenant will be extended by the period of duration of such breach.
(g) ▇▇▇▇▇▇▇▇ acknowledges that the covenants contained in this Section 9.8 are reasonable in geographical and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company temporal scope and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue itin all other respects. If the Board any court of competent jurisdiction determines that any of such covenants, provisions or portions of this Agreement, or any part thereof, are unenforceable and invalid, then (i) the Company validity and enforceability of any remaining covenants, provisions or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent portions thereof shall not pursue it and be affected by such determination, (ii) those of such covenants, provisions or portions that are determined to be unenforceable because of the New Business Opportunity duration or scope thereof shall be deemed severed and/or reformed by the court to constitute reduce their duration or scope so as to render the Business or Restricted Businesssame enforceable against ▇▇▇▇▇▇▇▇, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity(iii) all remaining covenants, the New Business Proponent may pursue it provisions, portions and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this AgreementAgreement shall be valid and enforceable to the fullest extent permitted by law.
Appears in 1 contract
Sources: Equity Purchase Agreement (Caseys General Stores Inc)
Restrictive Covenants. As an inducement to Buyer to execute and deliver the Purchase Agreement and the other Transaction Documents and to consummate the Transactions, and to preserve the goodwill associated with the Business, from and after the Closing Date through the fifth anniversary of the Closing Date, (X) the Seller and each Excluded Subsidiary will not, and will cause its respective Subsidiaries not to, and (Y) each Equityholder will not, and will cause his respective Affiliates (including, for the purposes of this Section 5 only, the Seller, the Excluded Subsidiaries and their Subsidiaries, for so long as such Excluded Subsidiaries and such Subsidiaries continue to be Affiliates of Seller) (collectively with the Persons included in clause (X), the “Non-Compete Parties” and each, a “Non-Compete Party”) not to, without the prior written consent of Buyer, directly or indirectly:
(a) Neither HHC nor its Affiliates shallbe involved in, directly engage in or indirectly by or through any Affiliate or agentparticipate in, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officeremployer, employee, consultant, independent contractor, agent or in advisor of, or partner or owner of stock, equity or other financial interest in, any Person (including advertising or otherwise endorsing the products or services of, soliciting customers or otherwise serving as an intermediary for, or loaning money or rendering any other capacityform of financial assistance to, any such Person), business or product or service line that competes with the Business as the Business is conducted on the date hereof or was conducted at any time during the applicable Restricted Period, engage or participate in 24-month period prior to the Business date hereof anywhere in the world.United States or any other country in which any of Buyer, Buyer’s direct and indirect Subsidiaries (including, from and after the Closing, the Company) and the respective successors and assigns of each of the foregoing (the “Buyer-Related Parties” and each, a “Buyer-Related Party”) is engaged in business as of the date hereof or has been engaged in business at any time during the 24-month period prior to the date hereof directly or indirectly (including through its dealers, distributors, agents or representatives) (the “Territory”); provided, that a violation of this Section 5(a) will not arise solely as a result of an investment by a Non-Compete Party in shares of stock or other interest of a Person or any of its direct or indirect subsidiaries listed on a national securities exchange or quotation system or traded in the over-the-counter market if such Non-Compete Party does not (i) directly or indirectly hold, beneficially or of record, in the aggregate more than a total of two percent of all such shares of stock or other interest issued and outstanding and (ii) serve as an officer, director, manager, employee, agent, or representative of, or consult to, such Person or any of its direct or indirect subsidiaries;
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractorsolicit, or employee thereof acting on behalf attempt to solicit, any Person that is or has been a customer, client, supplier, vendor, distributor, licensor, licensee or any other business relation of any Acquired Company or for the benefit of ▇▇▇▇▇▇ or its Affiliates, Business at any time during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything 24-month period prior to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibitdate hereof to purchase from any source other than such Acquired Company or the Business any product or service supplied or provided by any Acquired Company or the Business as of the date hereof or at any time during the 24-month period prior to the date hereof, or restrict ▇▇▇▇▇▇ to cease doing business with, refuse to do business with or to adversely alter or limit its Affiliates from directly business relationship with any Acquired Company or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):Business;
(i) acquiring less solicit, induce or influence, or attempt to solicit, induce or influence, any employee of, or consultant to, any Acquired Company to either leave his or her employment or engagement, as applicable, or materially and adversely change such employment or engagement with such Acquired Company, other than solicitations through general advertising media not targeted specifically at employees of or consultants to any Acquired Company or (ii) hire any individual who is, or at any time during the 12-month period prior to the date hereof has been, an aggregate of five percent employee (5%including those who respond to general solicitations permitted by clause (i) preceding), consultant or worker of any class Acquired Company to provide services (as an employee, consultant, worker or otherwise) to any Person other than such Acquired Company; provided, that this clause (ii) will not prohibit the hiring of stock any Person (x) whose employment with an Acquired Company has been terminated by such Acquired Company at least six months prior to the date of a hiring or (y) who has contacted such Non-Compete Party on his or her own initiative, in the case of each of clauses (x) and (y) without any direct or indirect solicitation, inducement or influence by or on the behalf of such Non-Compete Party as described in clause (i) hereof;
(d) assist, advise, instruct, aid or encourage any other Person engagedin carrying out, directly or indirectly, in any activity that would be prohibited by the Restricted Business provisions of this Section 5 if such stock is publicly traded activity were carried out by such Non-Compete Party, either directly or indirectly, and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business in particular such Equityholder agrees that engageshe will not, directly or indirectly, individually or together with any other Person, induce any employee, consultant or worker of a Buyer-Related Party to carry out, directly or indirectly, any such competitive activity;
(e) engage in any practice the Restricted Businesspurpose of which is to evade the provisions of this Section 5; or
(f) make (or cause to be made) to any Person any statement that such Non- Compete Party knows to be, so long as the gross revenues or that would reasonably be understood to be, disparaging or derogatory or otherwise negative or false concerning any Buyer-Related Party, or any of such Person its or business derived from the Restricted Business for the most recent fiscal year ended prior to the date their respective officers, directors, employees, managers, consultants, partners, direct or indirect equityholders, members, Affiliates, owners or agents (or any of such acquisition were equal to its or less than twenty percent (20%) of the total consolidated gross revenues of such Person their products or business for such Fiscal Yearservices); provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, that this Section 5 will not prohibit (x) cause the employment or engagement as a consultant of an Equityholder by any Buyer-Related Party following the Closing and any actions taken by such acquired Person or business to cease engaging Equityholder solely in the Restricted Business course of fulfilling his duties as an employee or consultant of a Buyer-Related Party or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person ownership or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination operation of the Alliance Agreementbusiness of the Excluded Subsidiaries, as such business is conducted as of the requirements date hereof (the “Excluded Business”). Recognizing the specialized nature of each of the Business and the business of the Buyer-Related Parties, each Equityholder acknowledges and agrees that the duration, geographic scope and activity restrictions of the covenants set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that 5 are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionreasonable.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.
Appears in 1 contract
Restrictive Covenants. Except as otherwise provided in provided in paragraph 5(d) below:
(a) Neither HHC nor its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇▇ nor its Affiliates shallshall not, during the term commencing on the date of this Agreement and terminating one year from the date of this Agreement (the "Restricted Period"), anywhere within the United States (the "Restricted Territory"), directly or indirectly through any principal(whether as an owner, partner, managershareholder, agent, officer, director, officeremployee, independent contractor, consultant, or employee thereof acting on behalf of otherwise):
(i) perform services for, or engage in, any business that develops or sells products or services which are competitive with any products or services sold or developed by the Company for which ▇▇▇▇▇▇▇ has provided any assistance in planning, development, marketing, training, support, or maintenance during the benefit period of ▇▇▇▇▇▇▇'▇ employment with the Company (the "Products");
(ii) except on behalf of the Company, solicit any person or its Affiliatesentity who is, or was at any time during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything twelve-month period immediately prior to the contrary in Section 7.4(b)date of this Agreement, nothing in this Agreement shall preclude, prohibit, a customer of the Company for the sale of the Products or restrict any product or service of a type then sold by the Company for which ▇▇▇▇▇▇▇ provided any direct, material assistance in planning, development, marketing, training, support, or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):maintenance; or
(iiii) acquiring less than an aggregate of five percent (5%) of solicit for employment any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining withperson who is, or investing in, was at any Person or business that engages, directly or indirectly, in time during the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended twelve-month period immediately prior to the date of such acquisition were equal to or less than twenty percent this Agreement, an employee of any Company, except for ▇▇▇▇▇ ▇▇▇▇▇▇▇.
(20%b) The parties acknowledge that the businesses of the total consolidated gross revenues Company are and will be national and international in scope and thus the covenants in this Section 5 would be particularly ineffective if the covenants were to be limited to a particular geographic area of such Person the United States. If any court of competent jurisdiction at any time deems the Restricted Period unreasonably lengthy, or business for such Fiscal Year; providedthe Restricted Territory unreasonably extensive, thator any of the covenants set forth in this Section 5 not fully enforceable, subject the other provisions of this Section 5, and this Agreement in general, will nevertheless stand and to the requirements full extent consistent with law continue in full force and effect, and it is the intention and desire of Lawthe parties that the court treat any provisions of this Agreement which are not fully enforceable as having been modified to the extent deemed necessary by the court to render them reasonable and enforceable and that the court enforce them to such extent (for example, that the Restricted Period be deemed to be the longest period permissible by law, but not in excess of the length provided for in paragraph 5(a), and the Restricted Territory be deemed to comprise the largest territory permissible by law under the circumstances).
(c) ▇▇▇▇▇▇▇ and its Affiliates shallacknowledges that all records, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divestdocuments, and subsequently divest, the relevant portion tangible embodiments containing or of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced Proprietary Information prepared by ▇▇▇▇▇▇▇ Insurance Agency, LLCor coming into his possession by virtue of his employment by Surge and Superus are and will remain the property of the applicable Company. Accordingly, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any shall immediately return to Surge all such items in his possession and all copies of their Affiliates;such items.
(vid) marketing, producing, selling, underwriting or administering reinsurance The provisions of this Section 5 shall no longer be applicable with respect to MailEncrypt (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent subsequently waived by MailEncrypt) in the event that Surge disposes of its current equity interest in MailEncrypt and such current equity interest is, in part, acquired by ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.
Appears in 1 contract
Sources: Termination and Separation Agreement (Surge Components Inc)
Restrictive Covenants. In consideration for the payment by Buyer of the Purchase Price, Seller and Shareholders each agree that they will not, at any time within the three (a3) Neither HHC nor its Affiliates shallyear period immediately following the Closing Date, directly or indirectly by engage in, or through have any Affiliate interest in any person, firm, corporation or agent, business (whether as principalan employee, officer, director, agent, ownersecurity holder, investorcreditor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, consultant or in any other capacity, during the applicable Restricted Period, engage or participate otherwise) that engages in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of counties or cities in North America where Buyer operates the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedBusiness. Furthermore, Seller and Shareholders shall never use, directly or indirectly, nor allow the name “Lightning Technologies” and any logos therefore, or any reputation, or any of its accreditations to be sold, leased, or used in any way or given to any person or entity in North America, or who conducts business in North America. Until the Restricted Business if such stock is publicly traded and listed on third anniversary of the Effective Date, neither Seller nor Shareholders will directly or indirectly solicit or offer employment to any stock exchange;
Employee (i) who did not become an employee of Buyer, (ii) acquiring, merging or combining withwho is then an employee of Buyer, or investing in(iii) who has terminated such employment without the consent of Buyer within 180 days of such solicitation or offer. In addition, any Person neither Seller nor Shareholders will directly or business that engagesindirectly solicit, directly or indirectly, in any client of the Restricted Business. Seller and Shareholders shall not, so long directly or indirectly, influence or attempt to influence any person who is a contracting party with Seller as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal this Agreement to terminate or less than twenty percent (20%) of the total consolidated gross revenues of such Person adversely amend any existing written or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive oral agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except Business. If any court of competent jurisdiction shall determine that the restrictions contained in this Section 9.1 shall be void, voidable or unenforceable for reinsurance any reason, it is the primary purpose or effect of which is to provide coverage on Insurance Policies intent of the type marketed, produced, sold, underwritten or administered parties that the restrictions herein contained shall be construed by such court so that the restrictions are limited to conform with prevailing law and to that extent the restrictions shall be enforced. The parties acknowledge and agree that the restrictions contained in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part this section are a reasonable and necessary protection of the Restricted Business immediate interests of Buyer, and any violation of these restrictions would cause substantial injury to Buyer and that Buyer would not have entered into this Agreement without receiving the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners additional consideration offered by each of the voting capital stock of ▇▇▇▇▇▇ or Seller and Shareholders in binding such Affiliate immediately prior Seller and Shareholders to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) these restrictions. In the event that, during his of a breach or her or its Restricted Period, any Member other than PubCo, including a threatened breach by the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) Shareholders or the Restricted Business (in respect Seller or any affiliated entities of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”)these restrictions, Buyer shall be entitled to an injunction restraining each of the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it Shareholders and the New Business Opportunity shall be deemed Seller and any affiliated entity from such breach or threatened breach without having to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicableestablish monetary damage; provided, however, that the New Business Proponent right to injunctive relief shall continue to not be bound by all of his construed as prohibiting Buyer from pursuing any other available remedies for such breach or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementthreatened breach.
Appears in 1 contract
Sources: Purchase and Sale Agreement (National Technical Systems Inc /Ca/)
Restrictive Covenants. (ai) Neither HHC nor From and after the Closing, each Seller Party will keep confidential and not disclose to any other Person or use for such Person’s own benefit or the benefit of any other Person any confidential or non-public information regarding Seller or the Business. The obligation of each Seller Party and its respective Affiliates shallunder this Section 5.2(a)(i) will not apply to information that is or becomes generally available to the public without breach of the commitment provided for in this Section 5.2(a)(i) or is required to be disclosed by applicable Law; provided, however, that, in the case of a required disclosure, the applicable Seller Party or such other Person, as applicable, will notify Buyer as early as reasonably practicable prior to disclosure to allow Buyer to take appropriate measures to preserve the confidentiality of such information.
(ii) As a material inducement to Buyer to enter into and perform its obligations under this Agreement, each Seller Party agrees that, from the Closing Date through the two-year anniversary of the Closing Date (the “Non-Compete Restricted Period”), each Seller Party will not, and, to the extent allowed by applicable Colorado law, will cause its respective employees who do not become Transferred Employees and whom remain as employees of each such Seller Party following the Closing Date, including any officers, directors, managers and Affiliates not to, directly or indirectly by or through indirectly, own any Affiliate or agentinterest in, manage, control, participate in (whether as principalan owner, officer, director, manager, employee, partner, agent, ownerrepresentative or otherwise), investorconsult with, lenderrender services for, shareholder, member, partner, manager, director, officer, employee, consultantbecome employed by, or in any other capacity, during the applicable Restricted Period, manner engage or participate in the Business anywhere in retail sale of recreational or medical marijuana or the world.
operation of a recreational or medical marijuana dispensary (bsuch action, a “Competitive Activity”) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in within the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(bArea, except as set forth on Schedule 5.2(a)(ii), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates . Nothing herein will prohibit any such Person from directly or indirectly engaging, in any manner in any being a passive owner of not more than two percent of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) outstanding stock of any class of stock of a Person engaged, directly or indirectly, corporation involved in the Restricted Business if such stock cannabis business that is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in traded. “Restricted Area” means the Restricted Business, so long as the gross revenues State of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionColorado.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Medicine Man Technologies, Inc.)
Restrictive Covenants. (a) Neither HHC nor its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.Special position of trust
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
15.1 The Executive acknowledges that: (i) acquiring less than an aggregate of five percent (5%) of any class of stock he performs services of a Person engagedunique nature for the Company that are irreplaceable, and that the Executive’s performance of such services for a Competing Business (as defined below) will result in irreparable harm to the Company/ the Allarity Group; (ii) the Executive will have access to Confidential Information (as defined below), which, if disclosed, would unfairly and inappropriately assist in competition against the Company or the ALLARITY Group; (iii) the Company and the ALLARITY Group have substantial relationships with their clients, business partners, and investors, and the Executive will have access to these persons and entities; (iv) the Executive will generate goodwill for the Company/ the ALARITY Group in the course of the Executive’s employment. Accordingly, the Company has a justifiable reason to impose the below combined restrictions on the Executive.
15.2 The Executive agrees that he will not, upon termination of the employment and for a period of 6 months after his resignation (the “Restricted Period”), directly or indirectly, own, manage, operate, control, be employed by (whether as an Executive, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in a Competing Business, or with respect to which the Restricted Business if such stock is Company has spent significant time or resources analyzing for the purposes of engaging, on the date of termination, in Denmark, any state of the United States, in other European countries, or in any country in which the Company conducts business or has made plans and taken significant steps to conduct business (a “Planned Competing Business”).
15.3 Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more than 2% of the equity securities of a publicly traded and listed on any stock exchange;
(ii) acquiring, merging corporation engaged in a Competing Business or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Planned Competing Business, so long as the gross revenues Executive has no active participation in the Competing Business or Planned Competing Business of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for corporation. For purposes of this Section 7.4(c)(iii)15.2, reference “Competing Business” shall mean the research, development and/or sale of cancer therapeutics together with drug efficacy prediction technology (e.g. companion diagnostics, predictive biomarkers) for the treatment of cancer, including, without limitation, products or services designed to make such technology available to patients and businesses in the healthcare industry, or any other material business in which the Company/ the ALLARITY Grupo is engaged as of the date of the expiry of the Executive’s notice period. In addition, if the Company or a controlling interest in the Company is acquired by another entity during the term of this Contract, in such circumstances the restrictions in this Section 15.2 will not be applicable to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies business activities of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business acquiring entity (as defined in the Alliance Agreement));
(ivand/or its affiliates) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ that either (i) such business activities would constitute a Competing Business or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
Planned Competing Business (viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners than by reason of the voting capital stock of ▇▇▇▇▇▇ acquisition itself), or (ii) the Executive after such Affiliate immediately prior to acquisition is directly involved in the consummation conduct, management or supervision of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionbusiness activities.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.
Appears in 1 contract
Restrictive Covenants. Seller is engaged in the business of development, operation, and support of precision dosing software for intravenous medications (athe “Business”).
a. Seller covenants that, for a period of five (5) Neither HHC nor years from the date of this Agreement (the “Restricted Period”), Seller shall not, and shall not permit any of its Affiliates shallcontrolled subsidiaries to, directly or indirectly, (x) engage in or assist others in engaging, in the Business worldwide (such restricted area, the “Territory”); (y) have an interest in any person or entity that engages directly or indirectly by or through in the Business in the Territory in any Affiliate or agentcapacity, whether including as principal, agent, owner, investor, lendera partner, shareholder, member, partneremployee, principal, agent, trustee, manager, directordirector or consultant; or (z) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between Buyer or any of its subsidiaries or affiliates, officeron the one hand, employeeand customers or suppliers of Buyer or any of its subsidiaries or affiliates, consultanton the other hand.
b. Seller covenants that during the Restricted Period it will not, and shall cause its affiliates not to, directly or indirectly, in any capacity hire, solicit or otherwise enter into any business affiliation with any employee of Buyer; provided, however, that this restriction shall not prohibit (i) soliciting or recruiting for employment or employing or hiring any such person from and after the twelve month anniversary of the date such person’s employment with Buyer terminated, or (ii) the solicitation for employment and subsequent hiring of such person who responds to a general solicitation through advertisements in newspapers or other media of general circulation advertising employment opportunities, to the extent that such advertisements are not aimed specifically at any such person.
c. Seller acknowledges that a breach of this Section 8 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach by Seller of any such obligations, Buyer 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 seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other capacity, during relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
d. During the applicable Restricted Period, engage Seller will not, and shall cause its affiliates not to, directly or participate in indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers that Seller knows or has reason to know are clients or customers of Buyer with the Business anywhere in the worldintent of diverting their business or services from Buyer.
(b) Neither ▇. ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for acknowledges that the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing restrictions contained in this Section 8 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. If a court of competent jurisdiction determines that the character, duration or geographical scope of the provisions of this Section 8 are unreasonable, it is the intention and the agreement of the Parties that these provisions shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engagingbe construed by the court in such a manner as to impose only those restrictions on Seller's conduct that are reasonable in light of the circumstances and as are necessary to assure to Buyer the benefits of this Agreement in such jurisdiction. If, in any manner in any judicial proceeding, a court shall refuse to enforce all of the following (with each such subpart separate covenants of this Section 7.4(c) having independent significance regardless 8 because taken together they are more extensive than necessary to assure to Buyer the intended benefits of any overlap of this Agreement, it is expressly understood and agreed by the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedParties that the provisions hereof, directly or indirectlyif eliminated, would permit the remaining separate provisions to be enforced in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divestproceeding, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute eliminated, for the Business or Restricted Businesspurposes of such proceeding, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of from this Agreement. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Tabula Rasa HealthCare, Inc.)
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallFrom the date hereof until twelve (12) months after (i) the Closing Date or (ii) the date of termination of this Agreement, directly or indirectly by or through whichever is applicable (the “Restricted Period”), Seller agrees that it will not solicit any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or individual that is an employee of Purchaser who is employed in any other capacityOwned Branch or whose place of employment is within the traditional and primary market area of the Branches. Likewise, except as explicitly contemplated hereby with respect to the Transferred Employees, Purchaser agrees that during the applicable Restricted Period, engage or participate in Purchaser will not solicit for employment any individual that Purchaser knows is an employee of Seller whose place of employment is within the Business anywhere in traditional and primary market area of the world.
Branches. The parties agree, however, that general recruiting advertisements not targeted specifically at the other’s employees shall not be considered a solicitation under this Section 7.11(a). (b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for From the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
date hereof until twenty-four (c24) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
months after (i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly the Closing Date or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) termination of this Agreement, whichever is applicable, Seller agrees that it will not target and solicit customers of the total consolidated gross revenues of such Person Branches whose Deposits are being assumed or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written purchased by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicablePurchaser; provided, however, that nothing in this Section 7.11(b) shall (i) restrict general mass mailings, telemarketing calls, statement stuffers, advertisements or other similar communications whether in print, on radio, television, the New Business Proponent shall continue Internet, or by other means that are directed to the general public. Seller also agrees that during the Restricted Period 19 Exhibit 2.1 it will not open, either directly or through a subsidiary, a branch banking facility, loan production office or any other facility used or to be bound by all used to provide any banking services within a distance of his five (5) miles of any Branch; provide, however, that it shall not constitute a breach of the foregoing if the Seller, during the Restricted Period, acquires another financial institution that, at the time of the closing of such transaction, operates a branch banking facility, loan production office or her any other facility used or its other duties and obligations to the Company and its Subsidiaries, including all duties as be used to provide any banking services within a director distance of PubCo, Member, officer or employee in accordance with the terms five miles of this Agreementany Branch.
Appears in 1 contract
Sources: Purchase and Assumption Agreement
Restrictive Covenants. CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
12.1.1. For a period of ten (a10) Neither HHC nor its Affiliates shallyears following the Closing Date (the "Seller Non-competition Period"), Seller shall not, directly or indirectly by (including through the licensing of intellectual property to third parties), anywhere in the world, engage in, or through have any Affiliate interest in, any business, firm, person, partnership, corporation, limited liability company, or agent, whether other entity (as principal, agent, an owner, investor, lender, shareholder, member, partner, manager, directormember, officer, employeeagent, consultant, licensor or otherwise) that engages in Jaundice Management; provided that (a) Seller may enter into a business relationship with a company that engages in Jaundice Management so long as Seller does not provide any services to, or have any involvement, including without limitation, as a licensor, with the portion of such company's business that engages in Jaundice Management, and that Seller shall not have an ownership interest in any such company other capacitythan as described in clause (b) of this Section 12.1.1, during and (b) the applicable Restricted Periodownership, engage beneficially or participate in of record, of less than five percent (5%) of the Business outstanding shares of any class of stock of any issuer listed on a national securities exchange shall not be a breach of the foregoing provision.
12.1.2. Unless required by law, Seller shall not, directly or indirectly, at any time following the Closing Date, anywhere in the world, divulge, communicate, use to the detriment of Buyer or any affiliates of Buyer, or for the benefit of Seller or any other business, firm, person, partnership, limited liability company or corporation, the confidential information, data, intellectual property or trade secrets of Seller relating to the BiliCheck Business, including but not limited to the business records, financial information, customer, supplier and personnel information of Seller. Provided that the foregoing confidentiality obligation shall not apply to information which currently is in, or in the future becomes part of, the public domain, through no fault of Seller
12.1.3. Neither Seller nor any Affiliate (as defined in Section 12.1.4) of Seller shall, directly or indirectly, anywhere in the world, for a period of three (3) years following the Closing Date, (i) induce or solicit any customer of Seller on the Closing Date to patronize any other individual or entity in the supply of Jaundice Management products or services, or (ii) request any individual or entity which is a customer of Seller on the Closing Date, to withdraw, curtail or cancel any such customer's business with Buyer.
(b) 12.1.4. Neither Seller nor any Affiliate of Seller shall, directly or indirectly, induce or solicit ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agencyto work, LLCdirectly or indirectly, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or for any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member person other than PubCo, including the equityholders or Affiliates Buyer; for a period of any Member other than PubCo two (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (32) years following the date any such listed person leaves the New Business Opportunity has employ of Seller (if applicable); provided that the foregoing shall not apply to any of the listed persons who have not accepted employment with Buyer within a period of six (6) months following the Closing Date. As used in this Agreement, the term "Affiliate" means, with respect to a specified person, any other person which directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified.
12.1.5. Seller agrees and acknowledges that the restrictions contained in this Section 12.1 have been presented to the Board takes actions specifically negotiated by sophisticated parties and agrees that all such provisions are reasonable and necessary in good faith, subject to commercial limitationsscope and in duration, to implement such New Business Opportunity, adequately protect Buyer after the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicableClosing. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; providedIf, however, that the New Business Proponent shall continue any provision of this Section 12.1 is adjudged by a court of competent jurisdiction to be bound by all invalid or unenforceable, the same will in no way affect any other provision of his this Section 12.1 or her or its any other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms part of this Agreement, the application of such provision in any other circumstances or the validity or enforceability of this Agreement. If any such provision, or any part thereof, is held to be unenforceable * CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED because of the duration of such provision or the area covered thereby, the parties agree that the court making such determination will have the power to modify the duration and/or scope of such provision, and/or to delete specific words or phrases, in each case to the least extent necessary to remedy the unenforceability of such provision, and in its modified form such provision will then be enforceable and will be enforced. It is further agreed that a breach or violation of any provision of this Section 12.1 will result in immediate and irreparable injury to Buyer and that money damages will be an inadequate remedy. Accordingly, in addition to such damages as Buyer can demonstrate it has sustained by reason of such breach or violation, and in addition to any other remedy that Buyer may have, Buyer shall be entitled to both temporary and permanent injunctive relief to enforce the specific provisions of this Section 12.1.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallSeller shall not during the period of three years after the Closing (the "Restricted Period"), directly or indirectly by indirectly, own, manage, operate, join, control, finance or through any Affiliate participate in the ownership, management, operation, control or agentfinancing of, whether or be connected as a partner, principal, agent, ownerrepresentative, investorconsultant or otherwise with or use or permit its or his name to be used in connection with, lender, shareholder, member, partner, manager, director, officer, employee, consultant, any business or enterprise engaged directly or indirectly in competition with the Business at any time during the Restricted Period within any portion of the United States (the "Restricted Business"). It is recognized by the Seller that the Restricted Business is and is expected to continue to be conducted throughout the United States and that more narrow geographical limitations of any nature on this non-competition covenant (and the non-solicitation covenant set forth in Section 6.1(b)) are therefore not appropriate. The foregoing restriction shall not be construed to prohibit (i) the ownership by the Seller as a passive investment of not more than five percent of any class of securities of any public or private corporation which is engaged in any other capacityof the foregoing businesses, during (ii) the applicable Restricted Period, engage provision of services that are directly or participate indirectly in competition with the Business anywhere that are ancillary to Contracts associated with any of the Seller's businesses (other than the Business) or the provision of services that are directly or indirectly in competition with the worldBusiness, which the aggregate of all such services under this clause (ii) represent less than $1,000,000 on an annual basis; provided that in any case, the Seller shall not transact business with any existing customers of the Division that is not also a customer of any of its telemarketing, customer care or interactive voice response businesses.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, Seller shall not during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(iii) acquiringcall on, merging solicit or combining with, or investing in, contract with any Person who or business that engages, directly or indirectly, in which within the past two years has been a customer with respect to the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (yii) sign a definitive agreement to divesthire, and subsequently divest, solicit the relevant portion of such acquired Person employment or business conducting utilize the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance services of any form, other than reinsurance the primary purpose or effect of which is to provide coverage person listed on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.Exhibit 6.1
Appears in 1 contract
Sources: Asset Purchase Agreement (Telespectrum Worldwide Inc)
Restrictive Covenants. 12.1 The Executive acknowledges that: (ai) Neither HHC nor the Executive performs services of a unique nature for the Company that are irreplaceable, and that the Executive’s performance of such services for a Competing Business (as defined below) will result in irreparable harm to the Company; (ii) the Executive will have access to Confidential Information, which, if disclosed, would unfairly and inappropriately assist in competition against the Company or any of its Affiliates shallaffiliates; (iii) the Company and its affiliates have substantial relationships with their clients, directly or indirectly by or through any Affiliate or agentbusiness partners, whether as principaland investors, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or and the Executive will have access to these persons and entities; (iv) the Executive will generate goodwill for the Company and its affiliates in any other capacitythe course of the Executive’s employment. Accordingly, during the applicable Executive’s employment hereunder and, in the event that the Executive’s employment is terminated for Cause or voluntarily by the Executive (whether or not for Good Reason), and provided the Company first provides the Executive with a one-time payment of seventy-five thousand dollars (US $75,000.00), and the Company notified the Executive within ten (10) days of such termination of its intention to continue to pay the Executive 50% of his/her Base Salary during such period (unless the Executive’s employment is terminated by him/her for Good Reason, in which case his/her entitlements under Section 10.5 shall apply), during Executive’s employment and the six (6) month period thereafter (the “Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b”), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedExecutive agrees that he/she will not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in a Competing Business, or with respect to which the Restricted Business if such stock is Company has spent significant time or resources analyzing for the purposes of engaging, on the date of termination, in any state of the United States, in Europe, or in any country in which the Company conducts business or has made plans and taken significant steps to conduct business (a “Planned Competing Business”) and in which the Executive, during the last two years of his/her employment, provided services or had a material presence or influence. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from being a passive owner of not more than 2% of the equity securities of a publicly traded and listed on any stock exchange;
(ii) acquiring, merging corporation engaged in a Competing Business or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Planned Competing Business, so long as the gross revenues Executive has no active participation in the Competing Business or Planned Competing Business of such Person or business derived from corporation. For purposes of this Section 12.1, the Restricted Business “Company” shall mean the Company together with its parent companies and its and their direct and indirect subsidiaries, and “Competing Business” shall mean the research, development and/or sale of cancer therapeutics together with drug efficacy prediction technology (e.g. companion diagnostics, predictive biomarkers) for the most recent fiscal year ended prior treatment of cancer, including, without limitation, products or services designed to make such technology available to patients and businesses in the healthcare industry, or any other material business in which the Company is engaged as of the date of the Executive’s termination of employment. For the avoidance of doubt, the provisions of this Section 12.1 will not prohibit the Executive, after termination of his/her employment with the Company, from providing services of any nature to any business engaged in multiple business activities, including activities that would constitute a Competing Business or a Planned Competing Business, as long as the Executive is not himself/herself directly involved in such Competing Business or Planned Competing Business activities, or managing or supervising the conduct of such Competing Business or Planned Competing Business activities. In addition, if the Company or a controlling interest in the Company is acquired by another entity during the term of this Agreement, in such circumstances the restrictions in this Section 12.1 will not be applicable to any business activities of the acquiring entity (and/or its affiliates) except to the extent that either (i) such business activities would constitute a Competing Business or Planned Competing Business (other than by reason of the acquisition itself), or (ii) the Executive after such acquisition were equal to is directly involved in the conduct, management or less than twenty percent (20%) of the total consolidated gross revenues supervision of such Person or business for such Fiscal Year; providedactivities. Allarity Employment Agreement_James Cullem_ December 7, that, subject to 2021 13 The Parties acknowledge and agree that the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements payment options set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written 12.1 have been mutually agreed upon by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like the Executive, are fair and reasonable, and are sufficient in exchange for the Executive’s obligations set forth in this Section 12.1. The Parties acknowledge and agree that this Section 12.1 shall not be enforceable if, at the time the Executive’s employment with the Company terminates, the Executive is: classified by the Company as a non-exempt employee under the Fair Labor Standards Act (“FLSA”); enrolled in a full-time or part-time undergraduate or graduate educational institution; or laid off or terminated without Cause. The Parties acknowledge and agree that at or around the time the Executive’s employment ends, and in the Company’s sole discretion, the Company may waive the Executive’s obligations in this Section 12.1, in which case the Company will not be required to pursue such opportunity rather than allowing provide the New Business Proponent to pursue itExecutive with any of the payments set forth in Section 12.1 above. If the Board determines The Parties acknowledge and agree that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity Executive has been presented advised that he/she has the right to the Board takes actions in good faith, subject consult with counsel prior to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of signing this Agreement.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor Seller acknowledges that its management has extensive knowledge and a unique understanding of the SBS Business and has had access to all of the proprietary and confidential information used in the SBS Business. Seller further acknowledges that if it or its Affiliates shallwere to compete with Buyer in such business following the Closing, directly or indirectly by or through any Affiliate or agentgreat harm could come to Buyer and the SBS Business, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during thereby impairing the applicable Restricted Period, engage or participate in value associated with the Business anywhere in purchase of Seller Interests and the worldgoodwill of the SBS Business.
(b) Neither In furtherance of the sale of the Seller Interests to Buyer hereunder by virtue of the transaction contemplated by this Agreement and to more effectively protect the value of the SBS Business, Seller covenants and agrees that, for a period five (5) years from and after the Closing Date (the “Restricted Period”), it shall not, and shall cause S▇▇▇▇▇▇ nor its Affiliates shallFinancial Corp., a New York corporation (“Parent”), not to, whether for compensation or without compensation, directly or indirectly through any indirectly, as an owner, principal, partner, managermember, shareholder, independent contractor, director, officerconsultant, contractorjoint venturer, investor, licensor, lender or in any other capacity whatsoever, alone, or employee thereof acting on behalf of in association with any other Person, carry on, be engaged or for take part in, or render services or advice to, own, share in the benefit of earnings of, invest in the stocks, bonds or other securities of, or otherwise become financially interested in, any Person engaged in a business that is competitive to the SBS Business using the “S▇▇▇▇▇▇ ▇” name or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business any derivation thereof anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b)United States. For avoidance of doubt, nothing in this Agreement shall precludebe construed as placing any restriction on the business or operations of any direct or indirect shareholder of Parent or on the use by Seller, prohibit, Parent or restrict ▇▇▇▇▇▇ any direct or its Affiliates from directly or indirectly engaging, in any manner in any indirect shareholder of Seller of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by “S▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC ” name or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered derivation thereof in connection with any business other than a business that competes with the Alliance Business (as defined in the Alliance Agreement);SBS Business.
(viic) developing or selling products The covenants set forth in this Section 6.1 (the “Restrictive Covenants”) have been separately bargained for to protect the business, including goodwill, being acquired by Buyer hereunder and to ensure that would constitute part Buyer shall have the full benefit of the Restricted Business to value thereof. Seller recognizes and acknowledges that the extent ▇▇▇▇▇▇ or any business and markets of its Affiliates Buyer are national in scope, and that Buyer is reasonably required to develop or sell investing substantial sums in purchasing the Seller Interests and in consideration for the Restrictive Covenants contained herein, that such products covenants are necessary in order to comply with requirements under applicable Law; or
(viii) entering into protect and consummating an agreement with maintain the legitimate business interests of Buyer and are reasonable in all respects, and that Buyer would not consummate the transaction contemplated by this Agreement but for such agreements. Seller hereby waives any Person with respect and all right to a merger, share exchange or other business combination transaction immediately following which contest the beneficial owners validity of the voting capital stock Restrictive Covenants on the ground of ▇▇▇▇▇▇ the breadth of their geographic or such Affiliate immediately prior product coverage or the length of their term. Seller acknowledges and agrees that a substantial and legally sufficient consideration is attributable to the consummation Restrictive Covenants and Seller hereby waives any right to assert inadequacy of such transaction do not beneficially own more than fifty percent (50%) consideration as a defense to enforcement of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from Restrictive Covenants should such transactionenforcement ever become necessary.
(d) In the event thatIf Seller breaches, during his or her or its Restricted Periodthreatens to commit a breach of, any Member of Restrictive Covenants, Buyer shall have, in addition to, and not in lieu of, any other than PubCorights and remedies available to them under law or in equity, including the equityholders rights to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach or Affiliates threatened breach of the Restrictive Covenants would cause irreparable injury to the Buyer, the Buyer Members and SBS and that money damages would not provide an adequate remedy. Seller covenants and agrees not to oppose any demand for specific performance and injunctive and other equitable relief in case of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she breach or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementattempted breach.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any Executive acknowledges and agrees that the restrictive covenants and other capacity, during the applicable Restricted Period, engage or participate post-termination obligations set forth in the Business anywhere Proprietary Information Agreement, including without |US-DOCS\116663163.2|| limitation Executive’s obligations relating to confidentiality, non-use and non-disclosure of Proprietary Information (as defined in the worldProprietary Information Agreement), non-solicitation, non-disparagement, cooperation, and return of property, are hereby incorporated by reference and shall remain in full force and effect pursuant to their terms to the maximum extent permitted by applicable law, except that the parties expressly agree to modify the Proprietary Information Agreement by removing Section 4 of the Proprietary Information Agreement, including each subpart thereto, which section shall be of no further force or effect upon the Effective Date (as defined below). Executive represents and warrants that Executive has complied with all provisions of the Proprietary Information Agreement at all times through the Effective Date.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shallIn consideration for the severance payments and benefits set forth in Section 1 of this Agreement, Executive agrees for a period of 12 months after the Effective Date (the “Noncompetition Restricted Period”) to not, directly or indirectly through indirectly, on Executive’s own behalf or for the benefit of any principalother individual or entity: (i) operate, partnerconduct, engage in, or own (except as a holder of not more than 1% of the outstanding stock of a publicly held company), or prepare to operate, conduct, engage in, or own any business or enterprise that develops, manufactures, markets, licenses, sells or otherwise provides, or is preparing to develop, manufacture, market, license, sell or otherwise provide, any product or service that competes with any product or service developed, manufactured, marketed, licensed, sold or otherwise provided, or planned to be developed, manufactured, marketed, licensed, sold or otherwise provided by the Company while Executive was employed by the Company (a “Competing Business”) or (ii) participate in, render services to, or assist any individual or entity that engages in a Competing Business in any capacity (whether as an employee, manager, consultant, director, officer, contractor, or employee thereof acting on behalf otherwise) (A) which involve the same or similar types of or services Executive performed for the benefit of ▇▇▇▇▇▇ or its Affiliates, Company at any time during the applicable last two years of Executive’s employment or engagement with the Company or (B) in which Executive could reasonably be expected to use or disclose Proprietary Information, in each case (i) and (ii) limited to each city, county, state, territory and country in which (x) Executive provided services or had a material presence or influence at any time during Executive’s last two years of employment or engagement with the Company or (y) the Company is engaged in or has plans to engage in the Competing Business as of the Effective Date. Without limiting the Company’s ability to seek other remedies available in law or equity, if Executive violates this Section 4(b), the Noncompetition Restricted Period shall be extended by one day for each day that Executive is in violation of such provisions, up to a maximum extension equal to the length of the Noncompetition Restricted Period, engage or participate in so as to give the Restricted Business anywhere in Company the worldfull benefit of the bargained-for length of forbearance.
(c) Notwithstanding anything to Executive’s continued compliance with the contrary terms of the Proprietary Information Agreement (as modified in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of 4(a) above) and the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements noncompetition obligations set forth in Section 5.12(b)(i)(B4(b) above (collectively, the “Restrictive Covenants”) is a material condition to receipt of the Alliance Agreement shall apply with respect severance payments and benefits set forth in Section 1 of this Agreement. In the event Executive breaches any part of such Restrictive Covenants, then, in addition to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included remedies and enforcement mechanisms set forth in the Alliance Business Proprietary Information Agreement, the Employment Agreement and this Agreement, and any other remedies available to the Company (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iiiincluding equitable and injunctive remedies), reference Executive shall forfeit any additional consideration owing and shall be obligated to any policy, binder promptly return to the Company or contract of insurance shall not include reinsurance Parent (within two (2) business days of any form, other than reinsurance breach) the primary purpose or effect full gross amount of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company all severance payments and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.benefits provided. |US-DOCS\116663163.2||
(d) In If any provision of the event that, during his Restrictive Covenants shall be determined to be unenforceable by any court of competent jurisdiction or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one arbitrator by reason of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faithextending for too great a period of time or over too large a geographic area or over too great a range of activities, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed interpreted to constitute extend only over the Business maximum period of time, geographic area or Restricted Business, range of activities as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent to which it may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementenforceable.
Appears in 1 contract
Sources: Employment Agreement (Merus N.V.)
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallIn consideration of the Purchase Price to be received under this Agreement, each of Parent and the Company agrees that, for a period of five (5) years after the Closing Date (the “Restrictive Covenant Period”), it shall not, directly or indirectly by indirectly, do any of the following:
(i) engage in, or through invest in, own (except ownership of less than 5% of any Affiliate class of securities of an entity which are listed for trading on any national securities exchange or agentwhich are traded in the over-the-counter market), whether as principalmanage, agentoperate, ownerfinance, investorcontrol, lenderbe employed by, shareholder, member, partner, manager, director, officer, employee, consultant, associated with or in any manner connected with, or render services or advice or other capacityaid to, any Person engaged in or planning to become engaged in, or any other business whose products or activities compete in whole or in part with, the business of growing, cultivating, supplying, selling or distributing any frozen vegetables (a “Competing Business”) anywhere within the United States; provided, however, in no event shall the Company’s business of providing veggie rice or quinoa, bean, grain, or fruit blends and bowls which may also contain vegetables under the “Boulder Canyon” brand or veggie blends for use in making juices or smoothies under the “Radar Farms” or “Jamba” brands be deemed to be a “Competing Business” in breach of this Section 6.8. In addition, Buyer acknowledges and agrees that in the event Parent or the Company acquires (or merges with) a frozen fruit operator subsequent to the Closing and that operator also processes and freezes vegetables for unrelated third-party customers and/or performs contract manufacturing and private label brands for unrelated third parties, such activities as they relate to vegetables shall not be deemed a “Competing Business” in breach of this Section 6.8, nor shall the Company’s business of co-packing vegetables solely for unrelated third parties who supply the vegetables to the Company for co-packing be deemed to be a “Competing Business” in breach of this Section 6.8.
(ii) induce or attempt to induce any employee or independent contractor of Buyer who was an employee or independent contractor of the Company prior to the Closing to leave the employ or service of Buyer, in any way interfere with the relationship between Buyer and any such employee or independent contractor, or solicit, offer employment to, otherwise attempt to hire, employ, or otherwise engage as an employee, independent contractor, or otherwise, any such employee or independent contractor; or
(iii) induce or attempt to induce any Person that was a customer, supplier or business relation of the Company at any time during the applicable Restricted Periodone (1) year period preceding the Closing Date to cease doing business with Buyer, engage in any way interfere with the relationship between Buyer and any such customer, supplier or participate in business relation, or solicit the Business anywhere in the worldbusiness of any such customer, supplier or business relation for a Competing Business.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shallEach of Parent and the Company acknowledges that all of the foregoing provisions are reasonable and are necessary to protect and preserve the value of the Purchased Assets and to prevent any unfair advantage being conferred on Parent or the Company. If any of the covenants set forth in this Section 6.8 are held to be unreasonable, directly or indirectly through any principal, partner, manager, director, officer, contractorarbitrary, or employee thereof acting on behalf of or for against public policy, the benefit of ▇▇▇▇▇▇ or its Affiliates, during restrictive time period herein will be deemed to be the applicable Restricted Period, engage or participate in longest period permissible by law under the Restricted Business anywhere in circumstances and the worldrestrictive geographical area herein will be deemed to comprise the largest territory permissible by law under the circumstances.
(c) Notwithstanding anything to In the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, event of a breach by Parent or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless Company of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements covenant set forth in Section 5.12(b)(i)(B6.8(a) of this Agreement, the Alliance Agreement shall apply with respect to any Insurance Policies written Restrictive Covenant Period will be extended by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance period of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter duration of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionbreach.
(d) In Each of Parent and the event that, during his Company acknowledges that a breach by Parent or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates Company of any Member of the covenants set forth in Section 6.8(a) of this Agreement cannot be reasonably or adequately compensated in damages in an action at law, and that Buyer will be entitled to, among other than PubCo remedies, and without posting any bond or other undertaking, injunctive relief, which may include, but will not be limited to: (i) seeking injunctive relief to restrain Parent or the Company from engaging in such case, any action that would constitute or cause a “New Business Proponent”breach or violation of Section 6.8(a), determines that she or he or it would like (ii) obtaining specific performance to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) compel Parent or the Restricted Business Company to perform its obligations and covenants hereunder, and (iii) obtaining damages available either at law or in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementequity.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor For so long as the Sanken Partner owns any Partnership Interests, and for a period of one (1) year thereafter, the Sanken Partner agrees that it shall not, and shall cause its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagednot to, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(iii) acquiring, merging solicit (or combining with, or investing in, any Person or business that engages, permit to be directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person indirectly solicited) or business derived from the Restricted Business for the most recent fiscal year ended prior employ or otherwise seek to the date of such acquisition were equal to or less than twenty percent (20%) employ any employee of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ Partnership or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicablesubsidiaries; provided, however, that nothing herein shall restrict or prohibit the New Business Proponent shall continue employment of any such person (A) resulting from generalized searches for employees through use of bona fide public advertisements in the media or any recruitment efforts conducted by any recruitment agency, in each case that are not targeted at the employees of the Partnership or any of its subsidiaries, or (B) who is no longer employed by the Partnership or any of its subsidiaries for at least six months prior to be bound by all of such hiring so long as the Sanken Partner or its Affiliates did not directly or indirectly encourage such Person to terminate his or her employment with the Partnership or its subsidiaries, or (ii) solicit or encourage any customers, suppliers, partners or distributors of, or other duties and obligations Persons having a business relationship with the Partnership or any of its subsidiaries to the Company and its Subsidiariescease doing business with, including all duties as a director of PubCo, Member, officer or employee in accordance with alter the terms of its business with, or otherwise alter its relationship with the Partnership or any of its subsidiaries, as applicable.
(b) The Sanken Partner agrees that the covenants and restrictions in this AgreementSection 19 (i) are reasonable in scope and time, (ii) are reasonable restrictions to protect the legitimate business interests and goodwill of the Partnership and its subsidiaries, and (iii) are ancillary to or a part of an otherwise enforceable contract that is supported by adequate consideration. In the event any provision of this Section 19 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it will be interpreted to extend only over the maximum period of time for which it may be enforceable, over the maximum geographical area as to which it may be enforceable, or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action.
Appears in 1 contract
Sources: Limited Partnership Agreement (Allegro Microsystems, Inc.)
Restrictive Covenants. (a) Neither HHC nor Each Contributor covenants that, commencing on the Closing Date and ending on December 19, 2017 (the “Non-competition Period”), such Contributor shall not, and it shall cause its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Periodnot to, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedin, directly or indirectly, in the Restricted Business if any capacity, or have any direct or indirect ownership interest in, or permit such stock is publicly traded and listed on Contributor’s or any stock exchange;
(ii) acquiring, merging or combining such Affiliate’s name to be used in connection with, or investing inany business in the United States which is engaged, any Person or business that engages, either directly or indirectly, in the business of acquiring, owning, operating and leasing single-family residential properties (the “Restricted Business”); provided, so long as however, that nothing in this Agreement shall prevent or restrict such Contributor or any of its Affiliates from any of the gross revenues following: (i) owning equity interests, indebtedness or other securities in a company that is engaged in a Restricted Business and such Contributor is not otherwise associated with the management of such corporation, including serving on the board of directors or other similar governing position, (ii) owning, operating or leasing, directly or indirectly, fewer than 100 single-family residential properties, (iii) owning, operating or leasing, directly or indirectly, single-family residential properties acquired as a result of loss mitigation, foreclosure or similar activities in connection with or incidental to investments in mortgage loans, mortgage servicing rights, mortgage-backed securities or other mortgage-related assets or (iv) the acquisition and operation of any Person or business derived from the engaged in a Restricted Business for so long as, with respect to subsection (iv), (x) the most recent fiscal year ended prior to the date of revenues from such acquisition were equal to or Restricted Business constitute less than twenty twenty-five percent (2025%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting (measured for the four calendar quarters before the execution of the purchase agreement) and (y) such Contributor or its Affiliate divests such Restricted Business within twelve (12) months of the closing of the acquisition. It is recognized that the Restricted Business is expected to an unaffiliated third party; provided, be conducted in the United States and that with respect to more narrow geographical limitations of any such acquisition, merger or combination occurring prior to expiration or termination of nature on this non-competition covenant (and the Alliance Agreement, the requirements non-solicitation covenants set forth in Section 5.12(b)(i)(BSections 4.07(b) and (c)) are therefore not appropriate.
(b) Each Contributor covenants that, during the Noncompetition Period, such Contributor shall not, and it shall cause its Affiliates not to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, Company or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC OP or any of their Affiliates;
(vi) marketing, producing, selling, underwriting subsidiaries for purposes of diverting their business or administering reinsurance (services from the Company or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ OP or any of their subsidiaries.
(c) Each Contributor covenants that, during the Noncompetition Period, such Contributor shall not, and it shall cause its Affiliates not to, solicit the employment or engagement of services of any person who is reasonably required to develop or sell was employed as an employee, contractor or consultant by the Company or the OP or any of their subsidiaries during such products in order to comply period on a full- or part-time basis. The foregoing shall not prohibit any general solicitation of employees, contractors or consultants or public advertising of employment opportunities (including through the use of employment agencies) not specifically directed at any such employees, contractors or consultants, nor shall it prohibit any Contributor or its Affiliates from hiring any such employee, contractor or consultant who seeks employment or engagement with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange such Contributor or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ its Affiliate on his or such Affiliate immediately prior to the consummation of such transaction do not beneficially her own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactioninitiative.
(d) In Each Contributor acknowledges that the event that, during his or her or its Restricted Period, any Member other than PubCo, including restrictions contained in this Section 4.07 are reasonable and necessary to protect the equityholders or Affiliates legitimate interests of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity OP and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations material inducement to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms OP to enter into this Agreement and consummate the Transactions. Each Contributor acknowledges that any violation of this AgreementSection 4.07 may result in irreparable injury to the Company and/or the OP and agrees that the Company and/or the OP shall be entitled to seek preliminary and permanent injunctive relief, without the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of this Section 4.07, which rights shall be cumulative and in addition to any other rights or remedies to which the Company and the OP may be entitled.
(e) In the event that any covenant contained in this Section 4.07 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 4.07 and each provision thereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Sources: Contribution Agreement (Silver Bay Realty Trust Corp.)
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallFor a period of two (2) years following the Closing Date, directly or indirectly by or through any Affiliate or agentneither Seller shall solicit, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultantinduce, or recruit any Affected Employee to terminate their employment with Buyer. Nothing in this Section 5.13(a) shall limit or otherwise prohibit the Sellers from initiating any other capacity, during solicitations or searches for employees or consultants that are not targeted or focused on the applicable Restricted Period, engage or participate in the Business anywhere in the worldAffected Employees.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for During the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b)no Seller shall, nothing in this Agreement and each Seller shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or cause its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagednot to, directly or indirectly, in make any public statement disparaging the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ Buyer or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her Buyer’s or its Restricted PeriodAffiliates’ respective shareholders, any Member other than PubCodirectors, including the equityholders officers, employees or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicableagents; provided, however, that the New Business Proponent shall continue this provision is not applicable to (i) truthful testimony obtained through subpoena, (ii) any truthful information provided pursuant to investigation by any Governmental Authority or required to be bound by all provided pursuant to applicable Law, or (iii) any truthful information provided pursuant to any legal action under this Agreement or any of his the other transaction documents contemplated thereunder asserted in good faith.
(c) During the Restricted Period, Buyer and Buyer Parent shall not, and shall cause their Affiliates not to, directly or her indirectly, make any public statement disparaging the Oat Base Facility, either Seller or any of their Affiliates or any Seller or its Affiliates’ respective shareholders, directors, officers, employees or agents; provided, however, that this provision is not applicable to (i) truthful testimony obtained through subpoena, (ii) any truthful information provided pursuant to investigation by any Governmental Authority or required to be provided pursuant to applicable Law, or (iii) any truthful information provided pursuant to any legal action under this Agreement or any of the other duties transaction documents contemplated thereunder asserted in good faith.
(d) The nature and obligations scope of the foregoing provisions of this Section 5.13 have been carefully considered by the Parties. The Parties agree and acknowledge that (i) the duration, scope and geographic areas applicable to such provisions are fair, reasonable and necessary to protect the Company goodwill of the Business and its Subsidiarieseach Party from and after Closing, including all duties and (ii) adequate compensation has been received by each Party for such obligations. Each Party agrees that it will not assert or claim, or raise as a director defense, in any judicial proceeding or otherwise, that any of PubCosuch provisions are unenforceable as a matter of public policy or that any of the duration, Memberscope and geographic areas applicable to such provisions is or was not fair, officer reasonable or employee necessary or that adequate compensation was not received by such Party for such obligations; provided, however, that this sentence in accordance with no way limits any other defense that may be available to any Party. The Parties further agree and acknowledge that if for any reason any court determines that any such provisions are or were not fair, reasonable or necessary or that consideration was inadequate, the terms Parties shall negotiate to modify such provisions to include as much of the duration, scope and geographic area identified in this AgreementSection 5.13 as will render such restrictions valid and enforceable.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallAs a material inducement to Buyer and Parent to consummate the Transactions, for a period of four years following the Closing Date, Seller shall not, directly or indirectly by indirectly, either for itself or through for any Affiliate or agentother Person:
(i) undertake, whether as principalparticipate, agentcarry on, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultantbe engaged in, or assist any other Person in connection with the operation of any Restricted Business in the Restricted Area, or, subject to Section 4.17(b), acquire any interest in any other capacityPerson who engages in any Restricted Business in the Restricted Area; or
(ii) solicit, during the applicable Restricted Periodentice, engage encourage, or participate influence any employee of Buyer, Parent, or their respective Affiliates primarily engaged in the Business anywhere as of or within the six months immediately preceding the Closing Date (including any Business Employee) to resign or leave employment of Buyer, Parent, or their respective Affiliates or otherwise hire, employ, engage, or contract with any such employee to perform services other than for the benefit of Buyer, Parent, or their respective Affiliates; provided that nothing in this Section 4.17(a)(ii) will prohibit Seller or any of its Affiliates from (A) conducting general public solicitations, including through Third Party recruiting services, not specifically targeting such employees or (B) hiring or contracting with any employee who was primarily engaged in the worldBusiness and whose employment was terminated (x) by such employee more than three months prior to such hiring or contracting or (y) by Buyer or its Affiliates more than 30 days prior to such hiring or contracting.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shallNotwithstanding anything to the contrary in Section 4.17(a), directly or indirectly through Seller may own up to 5% of the outstanding, publicly-traded securities of any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf class of or for a Person engaged in a 05466425.6 42 Restricted Business in the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate Area so long as it otherwise has no active participation in the Restricted Business anywhere in the worldof such corporation.
(c) Notwithstanding anything to the contrary in set forth herein (including Section 7.4(b8.9), nothing in this Agreement shall preclude, prohibit, the event of a breach or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in threatened breach of any of the following (with each such subpart of covenants or promises contained in this Section 7.4(c) having independent significance regardless of any overlap of 4.17 (collectively, the subject matter thereof“Restrictive Covenants”):
(i) acquiring less than an aggregate Buyer and its Affiliates may (1) suffer irreparable injury and material Loss, the amount of five percent which may not be readily determined and for which neither Buyer nor any of its Affiliates may have adequate remedy at Law or in damages and (5%2) seek, without regard to any other available remedy, to have the Restrictive Covenants specifically enforced by any court of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchangecompetent jurisdiction;
(ii) acquiringit is the desire and intent of the Parties that the Restrictive Covenants be enforced to the fullest extent permissible under the Laws, merging Orders, and public policies applied in each jurisdiction where enforcement is sought, and, if any Restrictive Covenant is finally adjudicated to be invalid or combining withunenforceable, or investing insuch Restrictive Covenant will be deemed amended to the extent necessary so that (1) such provision is valid and enforceable, any Person or business that engages, directly or indirectly, in (2) the Restricted Business, so long as the gross revenues remainder of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior Restrictive Covenant is not affected and is given full effect without regard to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divestany invalid portions, and subsequently divest, the relevant portion of (3) such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that amendment applies only with respect to any such acquisition, merger or combination occurring prior to expiration or termination the operation of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included Restrictive Covenant in the Alliance Business (as defined in the Alliance Agreement);particular jurisdiction where such adjudication is made; and
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance the Parties acknowledge and agree that the Restrictive Covenants are necessary for the protection and preservation of the type comprising value and the Restricted Business (provided that, for purposes goodwill of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company Buyer’s and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their its Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo’ businesses, including the equityholders Business, and legitimate business interests and are (1) reasonable and valid in geographical and temporal scope and in all other respects, (2) not overly broad or Affiliates of any Member other than PubCo (in such caseunduly burdensome, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions are given by Seller in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority consideration of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this AgreementPurchase Price.
Appears in 1 contract
Sources: Asset Purchase Agreement (Priority Technology Holdings, Inc.)
Restrictive Covenants. (a) Neither HHC nor From the date hereof and until the second anniversary of the Closing Date, Seller shall not, and shall cause its Affiliates shallSubsidiaries not to, without the prior written consent of Buyer, directly or indirectly indirectly, solicit for employment or hire (or cause to be solicited or hired) any Key Employee; provided that Seller and its Subsidiaries may (i) solicit or hire for employment any Key Employee who has not been employed by a Target Company for a three-month period prior to commencement of employment discussions with such person, and (ii) engage in general solicitations of employment (including through bona fide search firms and agencies) in the ordinary course of business consistent with past practice not specifically directed at Company Employees.
(b) Seller shall not, and shall cause its Subsidiaries not to, for a period of five years following the Closing Date (the “Non-Competition Period”), engage (whether on its own account, or through any Affiliate or agent, whether as principal, agent, an owner, investor, lender, shareholder, member, partneroperator, manager, director, officer, employee, consultant, investor or provider of financing) in any other capacity, during the applicable Restricted Period, engage or participate in the a Competing Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ ; provided that if Seller or its AffiliatesSubsidiaries wish to sell services or equipment in any jurisdiction other than the United States or Canada related to an air-to-ground network and such actions would otherwise be restricted by this Section 4.23(b), during it shall notify Buyer in writing and, for a period of 30 days thereafter, negotiate with Buyer and its Subsidiaries for their right to be the applicable Restricted Period, engage or participate sole re-seller of such air-to-ground network services in the Restricted Business anywhere commercial aviation market in the world.
(c) such jurisdiction; provided, further, that if no agreement can be reached within such 30-day period, Seller and its Subsidiaries shall be permitted to proceed with such sale of services or equipment. Notwithstanding anything to the contrary in Section 7.4(b)the foregoing, nothing in this Agreement Section 4.23(b) shall precludeprevent Seller Group, prohibitduring the Non-Competition Period, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
from: (i) acquiring less than an aggregate of collectively owning up to five percent (5%) of the publicly traded debt or equity securities of any class of stock of a Person engagedthat engages in any Competing Business, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging performing obligations required under this Agreement or combining with, or investing in, any Person or business Ancillary Agreement; provided that engages, directly or indirectly, in if Buyer forfeits its right to exclusivity under the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divestATG Network Sharing Agreement, the relevant portion of such acquired Person restrictions set forth in this Section 4.23(b) shall no longer apply to Seller or business conducting the Restricted Business to an unaffiliated third party; provided, that its Subsidiaries with respect to any such acquisition, merger the sale of services or combination occurring prior equipment related to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for Seller’s air-to-ground cellular network. For purposes of this Section 7.4(c)(iii4.23(b), reference to “Competing Business” means any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection business that competes with the Alliance Business (as defined the Business was conducted in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with 12-month period immediately preceding the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicableClosing Date; provided, however, that the New Retained Business Proponent as conducted on the date hereof shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as deemed not be a director of PubCo, Member, officer or employee in accordance with the terms of this AgreementCompeting Business.
Appears in 1 contract
Restrictive Covenants. 12.1 In this Clause and in Clauses 13 and 15 the following expressions have the following meanings:- Expression Meaning “the Company’s Business” all and any commercial activities of the Company and any Subsidiary:-
(a) Neither HHC nor its Affiliates with which the Executive shall have been concerned or involved to any material extent at any time during his employment by the Company and which the Company or any Subsidiary, as the case may be, shall carry on with a view to profit; or
(b) which the Company or any Subsidiary shall, at the Termination Date, have determined to carry on with a view to profit in the immediate or foreseeable future and in relation to which the Executive shall, at the Termination Date, possess any Confidential Information; “Confidential Information” all and any Corporate Information, Marketing Information, Technical Information and other information (whether or not recorded in documentary form or on computer disk or tape) to which the Company and any Subsidiary attaches an equivalent level of confidentiality to any third party:-
(a) which the Executive shall acquire at any time during his employment by the Company but which does not form part of the Executive’s own stock in trade; and
(b) which is not readily ascertainable to persons not connected with the Company or any Subsidiary either at all or without a significant expenditure of labour, skill or money; “Corporate Information” all and any information (whether or not recorded in documentary form or on computer disk or tape) relating to the business methods, business plans, management systems, finances or maturing new business opportunities of the Company, any Subsidiary or the Syndicates; “directly or indirectly indirectly” without prejudice to the generality of the expression, means by or through virtue of:-
(a) the holding of any Affiliate or agent, whether position as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, partner, principal or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.agent;
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly the direct or indirectly through indirect control or ownership (whether jointly or alone) of any principal, partner, manager, director, officer, contractor, shares (or employee thereof acting on behalf of any voting rights attached to them) or debentures save for the benefit ownership for investment purposes only of ▇▇▇▇▇▇ or its Affiliates, during not more than 4% of the applicable Restricted Period, engage or participate issued ordinary shares of any company whose shares are listed on any recognised Investment Exchange (as defined in Section 207 of the Restricted Business anywhere in the world.Financial Services Act 1986); or
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, direct or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless indirect provision of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchangefinancial assistance;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallEmployee will not, during the period of his employment by or with any member of the Recency Media USA, Inc. and for a period of one (1) year immediately following the termination of his employment, for any reason whatsoever, directly or indirectly indirectly, for himself or on behalf of or in conjunction with any other person, persons, company, partnership, corporation or business of whatever nature:
(i) call upon, or cause others to call upon, any person who is, at that time, within 100 miles of where Recency Media or where any of its subsidiaries conducts business (the “Territory”), an employee of Recency Media (including its subsidiaries) in a software development, sales representative or managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of Recency Media (including its subsidiaries), provided that Employee shall be permitted to call upon and hire any member of his or her immediate family;
(ii) call upon, or cause others to call upon, any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer of Recency Media (including its subsidiaries) within the Territory for the purpose of soliciting or selling products or services in direct competition with Recency Media (including its subsidiaries) within the Territory;
(iii) call upon, or cause others to call upon, any prospective acquisition candidate, on Employee’s own behalf or on behalf of any competitor in the narrowcasting and/or software application business, which candidate was either called upon by Recency Media (including its subsidiaries) or through any Affiliate or agentfor which Recency Media (including its subsidiaries) made an acquisition analysis, for the purpose of acquiring such entity; or
(iv) disclose customers, whether as principalin existence or proposed, agentof Recency Media (including its subsidiaries) to any person, ownerfirm, investorpartnership, lender, shareholder, member, partner, manager, director, officer, employee, consultant, corporation or in business for any other capacity, during reason or purpose whatsoever except to the applicable Restricted Period, engage or participate extent that Recency Media (including its subsidiaries) has in the Business anywhere in past disclosed such information to the worldpublic for valid business reasons. Notwithstanding the above, the foregoing covenants shall not be deemed to prohibit Employee from acquiring as an investment not more than one percent (1%) of the capital stock of a competing business, whose stock is traded on a national securities exchange or over-the-counter.
(b) Neither ▇▇▇▇▇▇ nor Because of the difficulty of measuring economic losses to Recency Media (including its Affiliates shallsubsidiaries) as a result of a breach of one of the foregoing covenants and because of the immediate and irreparable damage that could be caused to Recency Media (including its subsidiaries) for which it would have no other adequate remedy, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for Employee agrees that the benefit of ▇▇▇▇▇▇ or foregoing covenants may be enforced by Recency Media (including its Affiliates, during the applicable Restricted Period, engage or participate subsidiaries) in the Restricted Business anywhere in the worldevent of breach by him, by injunctions and restraining orders.
(c) Notwithstanding anything It is agreed by the parties that the foregoing covenants in this Section 3 impose a reasonable restraint on Employee in light of the activities and business of Recency Media (including its subsidiaries) on the date of the execution of this Agreement and the current plans of Recency Media; but it is also the intent of Recency Media and Employee that such covenants be construed and enforced in accordance with the changing activities and business of Recency Media throughout the term of this covenant. For example, if, during the term of this Agreement, Recency Media (including its subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the contrary activities or business enumerated under the Recitals above or the locations currently established therefore, then Employee will be precluded from soliciting the customers or employees of such new activities or business or of such new location within 100 miles of its operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in Section 7.4(bthe event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with Recency Media (including its subsidiaries), nothing or engage in this Agreement shall precludesimilar activities or business in locations the operation of which, prohibitunder such circumstances, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart do not violate another provision of this Section 7.4(c3, Employee shall not be chargeable with a violation of this Section 3 if Recency Media (including its subsidiaries) having independent significance regardless of any overlap of shall thereafter enter the subject matter thereof):
same, similar or a competitive (i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedbusiness, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging course of activities or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketinglocation, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionapplicable.
(d) In The covenants in this Section 3 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates court of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent competent jurisdiction shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and the Agreement shall thereby be reformed.
(e) All of the covenants in this Section 3 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against Recency Media (including its Subsidiaries subsidiaries), whether predicated on this Agreement or otherwise, will not pursue constitute a defense to the New Business Opportunityenforcement by Recency Media (including its subsidiaries) of such covenants. It is specifically agreed that the period of one (1) year stated at the beginning of this Section 3, during which the New Business Proponent may pursue it agreements and the New Business Opportunity covenants of Employee made in this Section 3 shall be deemed to not constitute the Business or Restricted Businesseffective, as applicable; provided, however, that the New Business Proponent shall continue to be bound computed by all excluding from such computation any time during which Employee is in violation of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms any provision of this AgreementSection 3.
Appears in 1 contract
Restrictive Covenants. Acknowledging that (i) [he/she] has intimate knowledge of the business of the Target Bank and the Bank which, if exploited by [him/her], in contravention of this Agreement, would seriously adversely and irreparably affect the value of the Bank and the ability of ABC to continue to operate the Bank following the consummation of the mergers contemplated by the Merger Agreement; (ii) the provisions of this Section 7 are reasonable and necessary to protect the legitimate interests of ABC; (iii) the provisions of this Section 7 are reasonable and necessary to protect the goodwill of the Target Bank acquired by ABC pursuant to the Merger Agreement; (iv) any violation of this Section 7 will result in irreparable injury to ABC and the Bank and that damages at law would not be reasonable or adequate compensation to ABC and the Bank for a violation of this Section 7; and (v) that in the course of [his/her] employment with the Bank, as contemplated by this Agreement, and as a result of the position of trust that [he/she] will hold under this Agreement, [he/she] will obtain private and confidential information, trade secrets and proprietary data relating to ABC, the Bank and other affiliates of ABC, including, without limitation, financial information, product information and other data that are valuable assets and property rights of the Bank and ABC and its affiliates (collectively referred to as “Confidential Information”), the Executive hereby agrees as follows:
(a) Neither HHC nor The Executive shall not, during the Term of this Agreement or any time after the termination of this Agreement, either directly or indirectly, disclose or use any Confidential Information acquired during [his/her] employment with the Bank, unless (i) the Confidential Information has been made public through no action or fault of the Executive, or (ii) its Affiliates shalldisclosure is requested or compelled by applicable law or regulatory agency. The Executive further agrees that after the termination of this Agreement, or at such other time as the Bank requests, the Executive will return to the Bank all documents, papers and records constituting Confidential Information, and all copies of same in the Executive’s possession and control.
(b) The Executive shall not, directly or indirectly indirectly, provide banking or bank-related services to, or solicit the banking or bank-related business of, any customer of the Bank who the Executive served, either alone or with others, while employed by the Bank in any city, town, borough, township, village or through any Affiliate other place in which the Executive performed services for the Bank (i) for a period of one (1) year after (A) the expiration of the Term or agent(B) the termination of this Agreement pursuant to Section 4(a)(v) or Section 4(a)(vi) hereof or (ii) during the remaining Term and one (1) year after the expiration of the Term upon the termination of this Agreement pursuant to Section 4(a)(iv) hereof.
(c) The Executive shall not, whether directly or indirectly, as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultantor trustee, or through the agency of any corporation, partnership, trade association, agent or agency, engage in any other capacity, banking or bank-related business or venture which competes with the business of the Bank as conducted during the applicable Restricted Period, engage or participate in Executive’s employment by the Business anywhere in the world.
Bank within a radius of fifty (b50) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any miles of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of Branch Office while the subject matter thereof):
Executive is employed by the Bank and (i) acquiring less than an aggregate for a period of five percent one (5%1) year after (A) the expiration of any class the Term or (B) the termination of stock of a Person engaged, directly this Agreement pursuant to Section 4(a)(v) or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
Section 4(a)(vi) hereof or (ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in during the Restricted Business, so long as remaining Term upon the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in this Agreement pursuant to Section 5.12(b)(i)(B4(a)(iv) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionhereof.
(d) In The Executive will not, on the event thatExecutive’s own behalf or in the service or on behalf of others, during his solicit, recruit or her hire away, or its Restricted Periodattempt to solicit, recruit or hire away, directly or by assisting others, any Member employee of the Bank, whether or not such employee is a full-time employee or a temporary employee of the Bank and whether or not such employment is pursuant to written agreement and whether or not such employment is for a determined period or is at will, (i) for a period of one (1) year after (A) the expiration of the Term or (B) the termination of this Agreement pursuant to Section 4(a)(v) or Section 4(a)(vi) hereof or (ii) during the remaining Term and one (1) year after the expiration of the Term upon the termination of this Agreement pursuant to Section 4(a)(iv) hereof.
(e) In addition to all other than PubCoremedies provided at law or in equity, including the equityholders Bank may petition and obtain from a court of law or Affiliates equity both temporary and permanent injunctive relief without the necessity of proving actual damages and without posting bond or other security to prevent a breach by the Executive of any Member other than PubCo (covenant contained in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Businessthis Section 7, as applicable. If a majority well as to an equitable accounting of the Board determine that the Company all earnings and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it profits and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all other benefits arising out of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementany such violations.
Appears in 1 contract
Sources: Merger Agreement (Abc Bancorp)
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallDistributor covenants that, directly or indirectly by or through any Affiliate or agentcommencing on the Termination Date and ending on the eighteen (18) month anniversary of the Termination Date (the “Noncompetition Period”), whether and provided that Misonix has made all payments due and owing under this Agreement on their respective due dates, Distributor shall not, in the Territory (as principaldefined in the Distributor Agreement), agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultantengage in, or permit Distributor’s name to be used in any other capacityconnection with, during (x) the applicable development, selling, repair, servicing or testing new or used ultrasonic surgical aspiration equipment including consumable accessories used in conjunction therewith, and (y) performing training for the use, service, repair and maintenance for the equipment set forth in (x) above (collectively, the “Restricted Period, engage or participate in the Business anywhere in the worldBusiness”).
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, Distributor covenants that during the applicable Restricted Noncompetition Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in and provided that Misonix has made all payments due and owing under this Agreement shall precludeon their respective due dates, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
it will not (i) acquiring less than an aggregate call on or solicit any person for purposes of five percent business relating to the ultrasonic surgical aspiration business who or which is, at that time, or has been within one year prior thereto, a customer of Distributor ; or (5%ii) solicit the employment of or hire any class person who at the time of stock such solicitation or hiring or who within one year prior thereto, is or was employed by, or a consultant of, Misonix on a full or part-time basis; provided, however, that the foregoing shall not prohibit Distributor from soliciting any such individual solely pursuant to a general advertisement for employment. Misonix and F-S each covenants that during the Noncompetition Period, it will not solicit the employment of or hire any person who at the time of such solicitation or hiring or who within one year prior thereto, is or was employed by, or a Person engagedconsultant of, Distributor on a full or part-time basis; provided, however, that the foregoing shall not prohibit Misonix or F-S from soliciting any such individual solely pursuant to a general advertisement for employment. Distributor, Misonix and F-S each covenant that during the Noncompetition Period it will not make statements or representations, or otherwise communicate, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiringwriting, merging orally or combining withotherwise, or investing in, take any Person or business action that engagesmay, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person disparage or business derived from the Restricted Business for the most recent fiscal year ended prior be damaging to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC parties or any of their Affiliates;respective officers, directors, employees, advisors, businesses, or reputation.
(vic) marketing, producing, selling, underwriting or administering reinsurance (or The parties each acknowledge that the restrictions contained in this Section 13 are reasonable and necessary to protect the legitimate interests of the other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates parties and constitute a material inducement to the Restricted Business except for reinsurance other parties to enter into this Termination Agreement and consummate the primary purpose transactions contemplated by this Termination Agreement. The parties acknowledge that any violation of this Section 13 may result in irreparable injury to the other parties and agrees that the affected party shall be entitled to seek preliminary and permanent injunctive relief as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of this Section 13, which rights shall be cumulative and in addition to any other rights or effect of remedies to which is to provide coverage on Insurance Policies such party may be entitled. Without limiting the generality of the type marketedforegoing, produced, sold, underwritten or administered the Noncompetition Period shall be extended for an additional period equal to any period during which a party is in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any breach of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements obligations under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionthis Section 13.
(d) In the event thatthat any covenant contained in this Section 13 should ever be adjudicated to exceed the time, during his geographic, product or her service or its Restricted Periodother limitations permitted by applicable law in any jurisdiction, then any Member other than PubCocourt is expressly empowered to reform such covenant, including the equityholders or Affiliates of any Member other than PubCo (in and such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity covenant shall be deemed to constitute the Business or Restricted Businessreformed, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations in such jurisdiction to the Company maximum time, geographic, product or service or other limitations permitted by applicable law. The covenants contained in this Section 13 and its Subsidiarieseach provision thereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, including all duties as a director of PubCo, Member, officer and any such invalidity or employee unenforceability in accordance with the terms of this Agreementany jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Sources: Distributor Agreement (Misonix Inc)
Restrictive Covenants. (a) Neither HHC nor its Affiliates shall6.1 During the term of this Agreement and thereafter, the Employee shall not reveal, divulge or make known to any person, firm, corporation or other business organization, and shall not directly or indirectly by or through any Affiliate or agentuse for his own benefit, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ anyone else, any secret or confidential information used by the Company in its Affiliatesbusiness, including, without limitation, (i) pricing information, (ii) the terms of the Company's existing contracts with suppliers, distributors or vendors (iii) any information pertaining to the Company's customers and their requirements and (iv) any other of the Company's trade secrets, all of which shall be collectively referred to hereafter as the "Confidential Information."
6.2 The Employee agrees that he will not at any time during the term of this Agreement, without the prior written approval of the Board of Directors of the Company, directly or indirectly, (i) own an interest in any business which is competitive with the business of the Company or (ii) engage in any business activity which is competitive with the business of the Company. For the purposes of this Agreement any business which is engaged in Healthcare Communications through any medium will constitute a business activity competitive with the business of the Company. Furthermore, the Employee agrees that, during such period, he shall not solicit, directly or indirectly, or affect to the applicable Restricted PeriodCompany's detriment any relationship of the Company with any customer, engage supplier, vendor, distributor or participate in employee of the Restricted Business anywhere in Company or cause any customer, supplier, distributor or vendor to refrain from entrusting additional business to the world.
(c) Company. Notwithstanding anything to the contrary in Section 7.4(b)contained herein, nothing in this Agreement the Employee shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of be permitted to acquire up to five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance outstanding securities of any formcompany whose securities are publicly traded, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies provided that such acquisitions are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactioninvestment purposes only.
(d) 6.3 In the event thatthat any of the provisions of subsections 6.1 and 6.2 hereof shall be adjudicated to exceed the time, during his geographic or her or its Restricted Periodother limitations permitted by applicable law in any jurisdiction, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in then such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity provision shall be deemed reformed in any such jurisdiction to constitute the Business maximum time, geographic or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunityother limitations permitted by applicable law.
6.4 As used in this Section 6, the New Business Proponent may pursue it term "Company" shall mean and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by include any and all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance corporations affiliated with the terms of this AgreementCompany, which either now exist or which may hereafter be organized.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during From the applicable date hereof until twenty-four (24) months after the Closing Date (the “Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b”), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business Seller agrees that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ it and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance solicit any individual that is an employee of Purchaser who is employed in any form, other than reinsurance the primary purpose Branch or effect whose place of which employment is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering within any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicableBranch MSA; provided, however, that nothing in this Section 6.15(a) shall restrict (i) general recruiting advertisements not targeted specifically at Purchaser’s employees or (ii) Seller from employing any employee who does not constitute a Branch Employee, any Non-Transferred Employee, or any Resigning Employee.
(b) During the New Business Proponent Restricted Period, Seller agrees that it and its Affiliates shall continue not target or solicit customers of the Branches whose Assumed Deposits or Purchased Loans are being assumed or purchased by Purchaser; provided, however, that nothing in this Section 6.15(b) shall restrict general mass mailings, telemarketing calls, statement stuffers, advertisements or other similar communications whether in print, on radio, television, the Internet, or by other means that are directed to the general public. Seller also agrees that during the Restricted Period, except as set forth on Schedule 6.15(b), it and its Affiliates shall not open or operate a subsidiary, a branch banking facility, loan or deposit production office or any other facility used or to be bound by all used to provide any banking services within a distance of his or her or its other duties and obligations to thirty (30) miles of any Branch.
(c) During the Company Restricted Period, Purchaser agrees that it and its Subsidiaries, including all duties as a director Affiliates shall not solicit any individual that is an employee of PubCo, Member, officer or employee in accordance with the terms of Seller (other than Branch Employees pursuant to this Agreement); provided, however, that nothing in this Section 6.15(c) shall restrict general recruiting advertisements not targeted specifically at Seller’s employees.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Atlantic Capital Bancshares, Inc.)
Restrictive Covenants. (a) Neither HHC nor In consideration of the transactions contemplated by this Agreement and to more effectively protect the value and goodwill of the Business to be acquired hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Parent covenants and agrees that, without the prior written consent of Buyer, for a period commencing on the Closing Date and ending on the earlier of the second anniversary of the Closing Date and a Sale of Parent, Parent shall not, and shall cause its Affiliates shallSubsidiaries not to, directly or indirectly by or through any Affiliate or agentacquire, whether as principalown, agentmanage, owneroperate, investorcontrol, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the ownership, management, operation or control of any Business anywhere in the worldUnited States.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing Nothing contained in this Agreement letter agreement shall preclude, prohibit, limit or restrict ▇▇▇▇▇▇ otherwise affect the ability of Parent or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
its Subsidiaries to (i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, invest in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging debt or combining with, or investing in, any Person or business that engages, directly or indirectly, equity securities of companies engaged in the Restricted a Business, so long as such ownership is a passive investment and represents less than 5% of such outstanding debt or equity securities, (ii) engage in any of the actions contemplated by the Transaction Agreements, (iii) acquire or own any Person or business; provided, however, that if more than ten percent (10%) of the total gross revenues of such Person or business derived is from a Business, then Parent or such Subsidiary will be required to divest such portion of the Restricted Business Person or business, (iv) engage in any research and development activities with respect to Parent’s “Spine” or “International” lines of business, or (v) the direct or indirect distribution of surgical implants, instruments, or biologics used in the treatment of conditions affecting the spine (x) as represented by Parent’s “Spine” or “International” lines of business and (y) as otherwise described in RTI Surgical’s Form 10-K for the most recent fiscal year ended prior to December 31, 2018 filed with the date of such acquisition were equal to or less than twenty percent SEC on March 5, 2019.
(20%c) Commencing on the Closing Date, (i) Parent shall not, and shall not permit its Subsidiaries to, disclose any Confidential Information of the total consolidated gross revenues Business, and (ii) Buyer shall not, and shall not permit its Subsidiaries to, disclose any Confidential Information of such Person or business for such Fiscal Year; providedParent, that, subject to the requirements in each case except as may be required by applicable Requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination fiduciary duties or investment, (x) cause such acquired Person any rule or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance regulation of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionnational securities exchange.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.
Appears in 1 contract
Sources: Equity Purchase Agreement (RTI Surgical Holdings, Inc.)
Restrictive Covenants. (a) Neither HHC nor its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, contractor or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, prohibit or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in [Section 5.12(b)(i)(B) 5.14(b)(i)(B)] of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Aldel Financial Inc.)
Restrictive Covenants. (a) Neither HHC Seller nor any of its controlled Affiliates shall, directly or indirectly by or through indirectly, (i) with respect to the business described in clause (a)(ii) of the definition of “PP&S Business”, during the five year period commencing on the Closing Date, and (ii) with respect to any Affiliate or agentother portion of the PP&S Business, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultantduring the three year period commencing on the Closing Date: (A) engage anywhere in North America, or in any other capacitythe case of polyvinyl chloride materials, during the applicable Restricted PeriodNorth America and China, engage or participate in the PP&S Business anywhere (whether through ownership, management, operations, control, under Contract, or otherwise), or (B) divert or attempt to divert from Purchaser any business or customers for products or services provided by the PP&S Business manufactured in the world.
12 month prior to closing. Notwithstanding the foregoing, (b1) Neither ▇▇▇▇▇▇ nor Seller and its controlled Affiliates may continue to operate the Retained Businesses, (2) the acquisition by Seller or any of its Affiliates shallfollowing the Closing of a Person engaged in the PP&S Business shall not be deemed a violation of this Section 5.17(a), provided, that the business of the acquired Person otherwise prohibited by this Section 5.17(a) represents less than twenty five (25%) of such Person’s consolidated gross sales for its most recent completed fiscal year, and (3) this Section 5.17(a) will not apply to any Person that directly or indirectly through any principal, partner, manager, director, officer, contractor, acquires Seller or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of its controlled Affiliates or any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues controlled Affiliate of such Person or business derived from (other than Seller and its controlled Affiliates), provided that (x) such Person is already engaged in the Restricted PP&S Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent and (20%y) of the total consolidated gross revenues of such Person does not use any assets of Seller or business for such Fiscal Year; provided, that, subject its controlled Affiliates to engage in the requirements PP&S Business.
(b) Seller agrees that neither it nor any of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable until the end of the two-year period immediately following such acquisitionthe Closing Date, merger, combination or investmentwithout the prior written consent of Purchaser, (xi) cause such acquired Person solicit any individual who is a Transferred Employee with aggregate 2018 or business 2019 annual compensation in excess of $100,000 to cease engaging in the Restricted Business leave his or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that her employment with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, Purchaser or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection way interfere with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company employment relationship between Purchaser and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates employees, or (ii) hire or otherwise engage any individual who is reasonably required to develop or sell such products in order to comply an employee of Purchaser with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which whom Seller has had contact during the beneficial owners course of pursuing the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicabletransactions contemplated by this Agreement; provided, however, that the New Business Proponent shall continue Seller and its controlled Affiliates will not be precluded from hiring any person (A) who responds to be bound any general solicitation or advertisement (including any recruitment efforts conducted by all any recruitment agency, provided that Seller or its controlled Affiliates has not directed such recruitment efforts at such person), (B) who contacts Seller or any of its Affiliates on his or her own initiative without any direct or indirect solicitation or encouragement from Seller or any of its Affiliates, other than any general solicitation or advertisement, or (C) whose employment with Purchaser has been terminated.
(c) Following the Closing, Purchaser agrees that neither it nor any of its Affiliates (including the Purchased Entities) shall, until the end of the two-year period immediately following the Closing Date, without the prior written consent of Seller, (i) solicit any individual who is an employee of Seller or any of its Affiliates with aggregate 2018 or 2019 annual compensation in excess of $100,000 to leave his or her employment with Seller or any of its Affiliates or in any way interfere with the - 81 - employment relationship between Seller or any of its Affiliates and any of their respective employees or (ii) hire or otherwise engage any individual who is an employee of Seller or any of its Affiliates with whom Purchaser has had contact during the course of pursuing the transactions contemplated by this Agreement; provided, however, that Purchaser and its Affiliates will not be precluded from hiring any person (A) who responds to any general solicitation or advertisement (including any recruitment efforts conducted by any recruitment agency, provided that Purchaser or its Affiliates has not directed such recruitment efforts at such person), (B) who contacts Purchaser or any of its Affiliates on his or her own initiative without any direct or indirect solicitation or encouragement from Purchaser or any of its Affiliates, other duties and obligations to the Company and its Subsidiariesthan any general solicitation or advertisement, including all duties as a director of PubCo, Member, officer or employee in accordance (C) whose employment with the terms of this AgreementSeller has been terminated.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor In consideration of the completion of the Transactions, each Seller Party agrees that for a period of 18 months after the Closing Date (the “Restricted Period”), without the prior written consent of Buyer and other than transfers of employment as required under the Employee Leasing Agreement, such Seller Party shall not, and shall cause its Affiliates shallnot to, directly or indirectly by indirectly, (i) contact, approach or through solicit for the purpose of offering employment to, hiring or engaging any Affiliate Transferred Employee or agent(ii) seek to persuade any Transferred Employee to discontinue employment or engagement with Buyer or any of its Affiliates, whether as principalincluding the Company Entities. Notwithstanding the foregoing, agent(A) the Seller Parties shall not be prohibited from (I) engaging in general solicitations of employment not directed at any Transferred Employees, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant(II) engaging search firms that do not target any Transferred Employees, or (III) soliciting, hiring or engaging any Transferred Employee (y) whose employment was terminated by a Company Entity or other Affiliate of Buyer or (z) who resigned from employment with a Company Entity or other Affiliate of Buyer at least 12 months prior to such solicitation or hiring (in each case, assuming such Transferred Employee had not been solicited by a Seller Party in violation of this Section prior to the termination of or resignation from their employment); and (B) solicitation by individual, non-management employees of the Seller Parties without actual knowledge of the restrictions imposed by this Section 5.12 shall not constitute a violation of the prohibitions on solicitation contained herein; and (C) it will not constitute a violation of this Section for any other capacitySeller Party or its Affiliate to continue to engage, during the applicable Restricted Periodon a part-time basis, engage any Transferred Employee that worked on a part-time basis for such Seller Party or participate in the Business anywhere in the worldits Affiliate and, separately, for a Company Entity, as of Closing.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shallEach Seller Party agrees that, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(ci) Notwithstanding anything were such Seller Party to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in breach any of the following covenants contained in this Section 5.12, the damage to Buyer may be irreparable, (with each ii) Buyer, in addition to any other remedies available to it, shall be entitled to seek preliminary and permanent injunctive relief against any breach or threatened breach by such subpart Seller Party of any such covenants, without having to post bond, and (iii) in the event that any provision of this Section 7.4(c) having independent significance regardless 5.12 is determined by any court of any overlap competent jurisdiction to be unenforceable by reason of the subject matter thereof):
(i) acquiring less than an aggregate its being extended over too great a time, too large a geographic area or too great a range of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; providedactivities, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity provision shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and be modified to permit its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations enforcement to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementmaximum extent permitted by Law.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor During the Term and at all times thereafter, the Executive shall not, without the prior written consent of the Company, divulge, disclose or make accessible to any other Person any Confidential Information except (v) to the Company and its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultantAffiliates, or to any authorized (or apparently authorized) agent or representative of any of them, (w) in any connection with performing his duties hereunder, (x) when required to do so by law or by a court, governmental agency, legislative body, arbitrator or other capacityPerson with apparent jurisdiction to order him to divulge, during the applicable Restricted Perioddisclose or make accessible such information, engage or participate (y) in the Business anywhere course of any Proceeding under Section 11(c) or 14 or (z) in confidence to an attorney or other professional advisor for the worldpurpose of securing professional advice. In the event that the Executive is required to disclose any Confidential Information pursuant to clause (x) or (y) of the immediately preceding sentence, he shall (A) promptly give the Company notice that such disclosure is or may be made and (B) cooperate with the Company, at its reasonable request and sole expense, in seeking to protect the confidentiality of the Confidential Information.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shallThe Executive shall not, directly for his own benefit or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliatesany other Person, during without the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any prior written consent of the following (Company and other than in connection with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):his services hereunder:
(i) acquiring during the Term, and in the event of any termination of the Executive’s employment hereunder, for the remainder of the then-scheduled Term, provided that such period shall be no less than twelve (12) months and shall not exceed eighteen (18) months (such period, the “Restricted Period”), perform material services for, or otherwise have material involvement with (whether as an aggregate of officer, director, partner, consultant, security holder, owner, employee, independent contractor or otherwise), any Person that competes materially (whether directly or indirectly) with the Company in the Business in the United States; provided further that the Executive may in any event (x) own up to a five percent (5%) of passive ownership interest in any class of stock of a Person engagedpublic or private entity and (y) be employed by, directly or indirectlyotherwise have material association with, any business that competes materially with the Company in the Restricted Business if such stock is publicly traded and listed on any stock exchange;his employment or association does not involve competing with the Company in the Business.
(ii) acquiringduring the Restricted Period, merging personally solicit, aid in the solicitation of, induce or combining with, or investing in, any Person or business that engages, otherwise encourage (whether directly or indirectly) any individual who is, in at the Restricted Business, so long as the gross revenues time of such Person encouragement, employed as an executive, highly-compensated employee, or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) managerial/supervisory employee of the total consolidated gross revenues of such Person or business for such Fiscal Year; providedCompany, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third partyemployment; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);or
(iii) marketingduring the Restricted Period, producingpersonally solicit, sellingaid in the solicitation of, underwriting induce, or administering otherwise encourage (whether directly or indirectly) any Insurance Policies other than any policy, binder or contract of insurance Person that was a customer of the type comprising Company at any time during the Restricted Business Term for the purpose of (provided that, for purposes of this Section 7.4(c)(iii), reference a) selling services or products to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered such Person in connection competition with the Alliance Business (as defined Company in the Alliance Agreement));
Business or (ivb) marketinginducing such Person to cancel, producing, selling, underwriting transfer or administering Insurance Policies cease doing Business in connection whole or in part with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionCompany.
(dc) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC The Executive acknowledges and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines agrees that the Company or one of its Subsidiaries will in good faith pursue the New Company’s Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Businessservices it provides are highly competitive, as applicable. If a majority of the Board determine and that the Company restrictions contained in this Section 11 are reasonable and its Subsidiaries will not pursue necessary to protect the New Business Opportunity, the New Business Proponent Company’s legitimate business interests. The Executive further acknowledges that any actual or prospective breach may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations irreparably cause damage to the Company and its Subsidiariesfor which money damages may not be adequate. Therefore, including all duties as a director in the event of PubCoany actual or threatened breach by the Executive of any of the provisions of Section 11(a) or 11(b) above, Memberthe Company shall be entitled to seek, officer or employee through arbitration in accordance with Section 14 or from any court with jurisdiction over the terms of this Agreementmatter and the Executive, temporary, preliminary and permanent equitable/injunctive relief restraining the Executive from violating such provision and to seek, in addition, but solely through arbitration in accordance with Section 14, money damages, together with any and all other remedies available under applicable law.
Appears in 1 contract
Sources: Employment Agreement (Epicept Corp)
Restrictive Covenants. Each of the Seller Parties, for itself and on behalf of its Affiliates, covenants and agrees as follows:
(a) Neither HHC For the period commencing on the date hereof and terminating on the 2nd anniversary of the Closing Date, neither RSG nor its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ Seller nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of their respective Affiliates (other than the following (with each such subpart of this Section 7.4(cCompany) having independent significance regardless of any overlap of the subject matter thereof):
will (i) acquiring less than an aggregate of five percent (5%) of solicit any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on municipal solid waste disposal business from any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance AgencyDisposal Accounts or (ii) solicit from any counterparty to a Landfill Operating Contract or Government Contract, LLCthe disposal services provided by the Company under such Contract, provided, however, that, subject to Section 6.12(b) below, the foregoing restrictions set forth in this Section 6.12 shall not prohibit RSG, Seller or any of its Affiliates from (A) accepting disposal business from customers willing to pay the posted gate disposal fees (without providing any broker, trucking or other refund, deduction, credit or discount of any kind), (B) responding to, or executing a contract with any customer solicited through, a request for proposals or other bidding process (whether public or private), (C) responding to inquiries or solicitations made by any customers (including pricing inquiries) and providing disposal services to the customers that are derived as a result of such inquiries or solicitations, or (D) continuing to do business with any customers of RSG, Seller or any of their Affiliates at locations not included in the ▇▇▇▇▇▇▇▇ Classic Marine Insurance AgencyCompany Assets, LLC or so long as such business does not include the solicitation of any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities business included in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇▇▇ or any Disposal Accounts as of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; orthe date hereof.
(viiib) entering into Notwithstanding anything to the contrary set forth in Section 6.12(a) above, for the period commencing on the date hereof and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which terminating on the beneficial owners 1st anniversary of the voting capital stock of Closing Date, RSG, Seller and their respective Affiliates agree not to accept any municipal solid waste disposal business from any ▇▇▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicableDisposal Accounts; provided, however, that the New Business Proponent foregoing restriction set forth in this Section 6.12(b) shall continue not prohibit RSG, Seller or any Affiliate from accepting disposal business in the event that the customer with respect to such ▇▇▇▇▇▇▇▇ Disposal Account asserts that any of the key disposal terms offered by the Company, Buyer or their Affiliates to such ▇▇▇▇▇▇▇▇ Disposal Account following the Closing are materially less favorable than the disposal terms in existence as of the Closing Date with respect to such ▇▇▇▇▇▇▇▇ Disposal Account; provided further, however, that the foregoing restrictions set forth in this Section 6.12(b) shall not prohibit RSG, Seller or any Affiliate from (i) accepting disposal business from customers willing to pay the posted gate disposal fees (without providing any broker, trucking or other refund, deduction, credit or discount of any kind), (ii) responding to, or executing a contract with any customer solicited through, a request for proposals or other bidding process (public but not private), or (iii) continuing to do business with any existing customers of RSG, Seller or any of their Affiliates at locations not included in the ▇▇▇▇▇▇▇▇ Company Assets, so long as such business does not include the solicitation or acceptance of any business included in the ▇▇▇▇▇▇▇▇ Disposal Accounts as of the date hereof. For purposes of clarifying clause (iii) above, contracts in place as of the date hereof with existing customers of RSG, Seller or their Affiliates shall not be bound considered a solicitation or acceptance of existing ▇▇▇▇▇▇▇▇ Disposal Account business.
(c) In addition to any other rights or remedies available to Buyer pursuant to this Agreement or any other agreement, at law or in equity, Buyer shall be entitled to injunctive relief requiring specific performance by all Seller and its Affiliates of his or her or this Section and Seller, for itself and its other duties and obligations Affiliates, consents to the Company entry thereof.
(d) The Seller Parties and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with Buyer acknowledge that the terms intent of this Section 6.12 is to impose the same restrictions, limitations, conditions and exceptions that would apply pursuant to Section 6.20 of the Asset Purchase Agreement if the ▇▇▇▇▇▇▇▇ Company Assets were being sold under the Asset Purchase Agreement.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallThe services of the Employee are unique and extraordinary and essential to the business of the Company, especially since the Employee shall have access to the Company’s customer lists, trade secrets and other privileged and confidential information essential to the Company’s business. Therefore, the Employee agrees that, if the term of his employment hereunder shall expire or his employment shall at any time terminate for any reason whatsoever, with or without Cause (as hereinafter defined) and with or without Good Reason (as hereinafter defined), the Employee will not at any time during the one year period commencing with the date on which the Employee ceases to be employed by the Company because this Agreement has expired or this Agreement has been terminated by either party for any reason whatsoever (the “Cessation Date”) (the “Restrictive Covenant Period”), without the prior written consent of the Company, directly or indirectly by indirectly, anywhere within five (5) miles of the location of any office of the Company or through any Affiliate or agentfranchisee thereof, whether individually or as a principal, agentofficer, owneremployee, investor, lenderpartner, shareholder, member, partner, manager, director, agent of, or consultant or independent contractor to, any entity,
(i) engage or participate in a business which, as of the Cessation Date, is similar to or competitive with, directly or indirectly, that of the Company, including, without limitation, those businesses of the Parent described in its Annual Report on Form 10-KSB for the fiscal year ended December 31, 2006 (collectively, the “Current Businesses”) and shall not make any investments in any such similar or competitive entity, except that the foregoing shall not restrict the Employee from (A) acquiring up to one percent (1%) of the outstanding voting stock of any entity whose securities are listed on a stock exchange or Nasdaq or (B) engaging or participating in a business other than a Current Business (a “New Business”) if the revenues of such New Business for the preceding fiscal year are less than one percent (1%) of the consolidated revenues of the Parent for such preceding fiscal year;
(ii) cause or seek to persuade any director, officer, employee, consultantcustomer, client, account, agent or supplier of, or consultant or independent contractor to, the Company, or others with whom the Company has a business relationship (collectively “Business Associates”), to discontinue or materially modify the status, employment or relationship of such person or entity with the Company, or to become employed in any activity similar to or competitive with the activities of the Company;
(iii) cause or seek to persuade any prospective customer, client, account or other capacityBusiness Associate of the Company (which at or about the Cessation Date was then actively being solicited by the Company) to determine not to enter into a business relationship with the Company or to materially modify its contemplated business relationship;
(iv) hire, retain or associate in a business relationship with, directly or indirectly, any director, officer or employee of the Company; or
(v) solicit or cause or authorize to be solicited, or accept, for or on behalf of him or any third party, any business from, or the entering into of a business relationship with, (A) others who are, or were within one (l) year prior to the Cessation Date, a customer, client, account or other Business Associate of the Company, or (B) any prospective customer, client, account or other Business Associate of the Company which at or about the Cessation Date was then actively being solicited by the Company. The foregoing restrictions set forth in this Paragraph 7.1(a) shall apply likewise during the applicable Restricted Period, engage or participate in the Business anywhere in the worldTerm.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shallNotwithstanding the foregoing, directly or indirectly through any principal, partner, manager, director, officer, contractorin the event that the Employee’s employment is terminated by the Company without Cause, or employee thereof acting on behalf by the Employee for Good Reason, or ceases following a non-renewal of or this Agreement beyond the Expiration Date (or, if this Agreement is renewed for a one year period beyond the benefit of ▇▇▇▇▇▇ or Expiration Date pursuant to Paragraph 1.2, beyond such additional one-year period) (i.e., this Agreement is not renewed for a one-year term upon its Affiliatesinitial expiration or, during if renewed for a one-year period pursuant to Paragraph 1.2, it is not further renewed upon its expiration after such additional one-year period) (in each case, an “Entitlement Termination”), then the applicable Restricted Restrictive Covenant Period shall instead be the six (6) month period commencing with the Cessation Date (the “Entitlement Restrictive Covenant Period”), engage or participate except that, in such event, the Restricted Business anywhere in Company may, upon written notice given to the worldEmployee within one (1) month following the Cessation Date, extend the Entitlement Restrictive Covenant Period from six (6) months to one (1) year (an “Extension”).
(c) Notwithstanding anything During the initial six (6) months of the Entitlement Restrictive Covenant Period, the Employee shall be entitled to receive from the contrary in Section 7.4(bCompany an amount per annum equal to his Base Salary at the Cessation Date (payable over such six (6) month period), nothing less all amounts the Employee is entitled to receive from the Company pursuant to Paragraph 11.5 hereof for such period and/or from third parties in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any consideration of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedservices rendered, directly or indirectly, by the Employee to or for the third parties during such period (the “Initial Restrictive Covenant Amount”). (For purposes of clarity, if the Base Salary at the Cessation Date is $110,000 for such six month period, the base Initial Restrictive Covenant Amount will be $110,000). During the second six (6) months of the Entitlement Restrictive Covenant Period (if an Extension notice is given by the Company), the Employee shall be entitled to receive from the Company an amount per annum equal to his Base Salary at the Cessation Date (payable over such six (6) month period) (as clarified above), less all amounts the Employee is entitled to receive from the Company pursuant to Paragraph 11.5 hereof for such period and/or from third parties in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engagesconsideration of services rendered, directly or indirectly, by the Employee to or for the third parties during such period (the “Restrictive Covenant Amount”). Notwithstanding the foregoing, in the Restricted Businessevent of an Entitlement Termination, so long as the gross revenues of such Person or business derived Company may elect to release the Employee from the Restricted Business for restrictions set forth in clause Paragraph 7.1 hereof during the most recent fiscal year ended Entitlement Restrictive Covenant Period by written notice to such effect given to the Employee at least six (6) months prior to the Cessation Date (in the event of an Entitlement Termination relating to a non-renewal of this Agreement) or within thirty (30) days following the Cessation Date (with respect to any other Entitlement Termination) . In the event the Company sends such notice, it shall be relieved of its obligation to pay any portion of the Restrictive Covenant Amount with the exception of that portion of the thirty (30) days following the Cessation Date prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionnotice is given.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including that the equityholders or Affiliates Employee terminates this Agreement upon the happening of any Member other than PubCo a Change in Control (in as such case, a “New Business Proponent”term is hereinafter defined), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”)then, the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms provisions of Paragraph 11.6 hereof, this Agreement shall be cancelled and of no further force and effect and the Employee shall not be subject to the restrictions contained in this Paragraph 7.1.
7.2 The Employee agrees to disclose promptly in writing to the Chief Executive Officer of the Company all ideas, processes, methods, devices, business concepts, inventions, improvements, discoveries, know-how and other creative achievements (hereinafter referred to collectively as “discoveries”), whether or not the same or any part thereof is capable of being patented, trademarked, copyrighted, or otherwise protected, which the Employee, while employed by the Company, conceives, makes, develops, acquires or reduces to practice, whether acting alone or with others and whether during or after usual working hours, and which are related to the Company’s business or interests, or are used or usable by the Company, or arise out of or in connection with the duties performed by the Employee. The Employee hereby transfers and assigns to the Company all right, title and interest in and to such discoveries (whether conceived, made, developed, acquired or reduced to practice on or prior to the Effective Date or during his employment with the Company), including any and all domestic and foreign copyrights and patent and trademark rights therein and any renewals thereof. On request of the Company, the Employee will, without any additional compensation, from time to time during, and after the expiration or termination of, the Term, execute such further instruments (including, without limitation, applications for copyrights, patents, trademarks and assignments thereof) and do all such other acts and things as may be deemed necessary or desirable by the Company to protect and/or enforce its right in respect of such discoveries. All expenses of filing or prosecuting any patent, trademark or copyright application shall be borne by the Company, but the Employee shall cooperate, at the Company’s expense, in filing and/or prosecuting any such application.
(a) The Employee represents that he has been informed that it is the policy of the Company to maintain as secret all confidential information relating to the Company, including, without limitation, any and all knowledge or information with respect to secret or confidential methods, processes, plans, materials, customer lists or data, or with respect to any other confidential or secret aspect of the Company’s activities, and further acknowledges that such confidential information is of great value to the Company. The Employee recognizes that, by reason of his employment with the Company, he will acquire confidential information as aforesaid. The Employee confirms that it is reasonably necessary to protect the Company’s goodwill, and, accordingly, hereby agrees that he will not, directly or indirectly (except where authorized by the Chief Executive Officer or Board of Directors of the Company), at any time during the term of this AgreementAgreement or thereafter divulge to any person, firm or other entity, or use, or cause or authorize any person, firm or other entity to use, any such confidential information.
(b) The Employee agrees that he will not, at any time, remove from the Company’s premises any drawings, notebooks, software, data or other confidential information relating to the business and procedures heretofore or hereafter acquired, developed and/or used by the Company, except where necessary in the fulfillment of his duties hereunder.
(c) The Employee agrees that, upon the expiration or termination of this Agreement or the termination of his employment with the Company for any reason whatsoever, he shall promptly deliver to the Company any and all drawings, notebooks, software, data and other documents and material, including all copies thereof, in his possession or under his control relating to any confidential information or discoveries, or which is otherwise the property of the Company.
(d) For purposes hereof, the term “confidential information” shall mean all information given to the Employee, directly or indirectly, by the Company and all other information relating to the Company otherwise acquired by the Employee during the course of his employment with the Company, other than information which (i) was in the public domain at the time furnished to, or acquired by, the Employee, or (ii) thereafter enters the public domain other than through disclosure, directly or indirectly, by the Employee or others in violation of an agreement of confidentiality or nondisclosure.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallThe Restricted Parties acknowledge and agree that in order to protect the legitimate business interests of the Purchaser Entities, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or it is necessary that the Restricted Parties agree to the restrictive covenants set forth in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the worldthis Section 1.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates The Restricted Parties hereby agree that from and after the date hereof until the date that is five (5) years after the date hereof (the “Restricted Period”), none of the Restricted Parties shall, directly or indirectly through indirectly, enter into the employment of, render any services to, engage, manage, operate, join, or own, lend money or otherwise offer other assistance to or participate in or be connected with, as an officer, director, member, manager, employee, principal, agent, creditor, RESTRICTIVE COVENANT AND GENERAL RELEASE AGREEMENT proprietor, representative, stockholder, partner, managerassociate, directorconsultant, officersole proprietor or otherwise, contractorany Person that, directly or indirectly, is engaged in the cultivation, processing, or employee thereof acting on behalf dispensing of or for cannabis (the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business “Business”) anywhere in North America (the world.
(c) Notwithstanding anything “Restricted Area”); provided, that, for these purposes, a Restricted Party’s ownership of securities of the Company, a Purchaser Entity, including but not limited to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibitPurchaser, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five two percent (52%) of any class of stock securities of a Person engagedpublic company, so long as no Restricted Party is an officer, director, employee or consultant of any such public company, shall not be deemed to violate this Section 1(b). During the Restricted Period and thereafter, none of the Restricted Parties shall, directly or indirectly, use any name which is similar to any corporate name of, or any trade name, service ▇▇▇▇, trademark, logo or insignia used by any Purchaser Entity, other than in furtherance of the Purchaser Entities’ business or as otherwise agreed in writing by the applicable Purchaser Entity.
(c) During the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiringPeriod, merging or combining with, or investing in, any Person or business that engagesneither of the Restricted Parties shall, directly or indirectly, whether for his or its own account or for the account of any other Person, solicit, attempt to solicit, endeavor to entice away from any Purchaser Entity, attempt to hire, attempt to attract business from or otherwise interfere with (whether by reason of cancellation, withdrawal, modification of relationship or otherwise) any actual relationship of any Purchaser Entity with any Person (i) who is or was within the prior twelve (12) months employed by or otherwise engaged to perform services for Purchaser or the Company related to the Business, including, but not limited to, any independent contractor or representative, or (ii) who is or was within the prior twelve (12) months an actual vendor, customer, or client of Purchaser Entity (or other Person with which Purchaser Entity had an actual relationship), in the Restricted case of any of the foregoing, in the context of the Business, so long except as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Yearotherwise agreed by a Purchaser Entity in writing; provided, that, subject to the requirements for these purposes, a Restricted Party’s or any of Lawthat Restricted Parties’ Affiliates’ retention of, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following engagement of or work with any attorney or law firm with whom such acquisition, merger, combination Restricted Party or investment, Affiliate (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, which for purposes of this Section 7.4(c)(iii)clause, reference to any policyincludes the Company) retained, binder engaged or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection worked with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation Closing, shall not be deemed to violate this Section 1(c). For purposes of clarification, the parties acknowledge and agree that the Restricted Parties may continue to engage in the nursery business in which the Company was previously engaged, and that the conduct of such transaction do nursery business shall not beneficially own more than fifty percent (50%) constitute a violation of the combined voting power of the outstanding voting capital stock entitled to vote generally this Section 1, provided, in any case, that such nursery business is not directly or indirectly engaged or otherwise involved in the election of directors (or Persons performing a similar function) of Business within the entity resulting from such transactionRestricted Area.
(d) In Each Restricted Party agrees that he or it will never, directly or indirectly, make or publish, or encourage, solicit, or incite any third party to make or publish any statement or communication which is false or disparaging with respect to any Purchaser Entity and/or such Purchaser Entity’s direct or indirect shareholders, officers, directors, members, managers, partners, employees or agents, unless such statement or communication is made truthfully in response to a subpoena or other former legal process. Purchaser similarly agrees that neither it, nor any of its officers, employees, members, managers, parents or representatives will ever, directly or indirectly, make or publish, or encourage, solicit, or incite any third party to make or publish any statement or communication which is false or disparaging with respect to any Restricted Party, unless such statement or communication is made truthfully in response to a subpoena or other form of legal process. RESTRICTIVE COVENANT AND GENERAL RELEASE AGREEMENT
(e) During the event that, during his or her or its Restricted Period, the Restricted Parties acknowledge and agree that the Confidential Information (as defined below) is a valuable, special, sensitive and unique asset of the Business of the Purchaser Entities, the continued confidentiality of which is essential to the continuation of its Business, and the improper disclosure or use of which could severely and irreparably damage the Purchaser Entities. The Restricted Parties agree, each for and on behalf of himself, or itself, their legal representatives and successors and assigns that all Confidential Information is the property of the Purchaser Entities (and not of a Restricted Party). The Restricted Parties further agree that each (i) will continue to keep all Confidential Information strictly confidential and not disclose the Confidential Information to any Member other Person and (ii) shall not, directly or indirectly, disclose, communicate or divulge to any Person, or use or cause or authorize any Person to use any Confidential Information, other than PubCoin furtherance of the Purchaser Entities’ Business or as otherwise agreed by a Purchaser Entity in writing. “Confidential Information” means all information, including data and items relating to any Purchaser Entity (or any such Purchaser Entity’s customers) which is valuable, confidential or proprietary, including, without limitation, information relating to the equityholders Purchaser Entities’ accounts, receivables, customers and customer lists and data, prospective business(es), prospective customers and prospective customer lists and data, Work Product (as defined below), vendors and vendor lists and data, business methods and procedures, pricing techniques, business leads, budgets, memoranda, correspondence, designs, plans, schematics, patents, copyrights, equipment, tools, works of authorship, reports, records, processes, pricing, costs, products, services, margins, systems, software, service data, inventions, analyses, plans, business leads, intellectual property, proprietary information, writings, trade secrets, manuals, training materials and methods, sales and marketing materials and compilations of and other items derived (in whole or Affiliates in part) from the foregoing. Confidential Information may be in either human, electronic or computer readable form. Notwithstanding the foregoing, “Confidential Information” shall not include information that: (i) becomes publicly known without breach of any Member other than PubCo (in such case, a “New Business Proponent”Restricted Parties’ obligations under this Section 1(e), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliatesii) or the Restricted Business Party independently developed without using any Confidential Information, (in respect iii) the Restricted Party rightfully obtains from a third party who has the right to transfer or disclose it without violation of ▇▇▇▇▇▇ and its Affiliatesany confidentiality obligations to a Purchaser Entity or (iv) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board is required to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company be disclosed by law or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business by court order or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicablegovernmental order; provided, however, that if any Restricted Party is required to disclose any Confidential Information pursuant to any law, court order or governmental order, (x) such Restricted Party shall promptly notify Purchaser of any such requirement so that the New Business Proponent Purchaser Entities may seek an appropriate protective order or waive compliance with the provisions of this Agreement, (y) the Restricted Parties shall continue reasonably cooperate with the Purchaser Entities to obtain such a protective order at the Purchaser Entities’ cost and expense, and (z) if such order is not obtained, or Purchaser waives compliance with the provisions of this Section 1(e), the Restricted Parties shall disclose only that portion of the Confidential Information which the Restricted Parties are advised by counsel that the Restricted Parties are legally required to so disclose and will exercise commercially reasonable efforts to obtain assurance that confidential treatment will be bound accorded the information so disclosed. Each Restricted Party will notify Purchaser promptly and in writing of any circumstances of which such Restricted Party has knowledge relating to any possession or use of any Confidential Information by all of his or her or its any Person other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with than those authorized by the terms of this Agreement. “Work Product” means all inventions, technology, processes, innovations, ideas, improvements, developments, methods, designs, analyses, trademarks, service marks, and other indicia of origin, writings, audiovisual works, RESTRICTIVE COVENANT AND GENERAL RELEASE AGREEMENT concepts, drawings, reports and all similar, related, or derivative information or works (whether or not patentable or subject to copyright), including but not limited to all patents, copyrights, copyright registrations, trademarks, and trademark registrations in and to any of the foregoing, along with the right to practice, employ, exploit, use, develop, reproduce, copy, distribute copies, publish, license, or create works derivative of any of the foregoing, and the right to choose not to do or permit any of the aforementioned actions, which relate to the Business. For purposes of clarification, the parties acknowledge and agree that the use of any “Confidential Information” in connection with the conduct of the nursery business previously engaged in by the Company following the Closing shall not constitute a violation of this Section 1, provided that such nursery business does not directly or indirectly involve or relate to the Business.
Appears in 1 contract
Sources: Share Purchase Agreement
Restrictive Covenants. (1) Seller Parent hereby covenants and agrees that, from and after the Closing Date and continuing for a period of five (5) years from the Closing Date, neither Seller Parent nor any of its respective Affiliates shall do any one or more of the following, directly or indirectly:
(a) Neither HHC nor its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business participate, anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principalas an owner, partner, managermember, shareholder, director, officeremployee, independent contractor, agent, adviser, consultant, joint venturer or employee thereof acting on behalf (without limitation by the specific enumeration of or for the benefit foregoing) otherwise, in any business that is competitive with the Purchased Assets; provided, however, that nothing contained herein shall restrict any of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ Seller Parent or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of owning five percent (5%) or less of the equity securities of any class of stock of a Person engaged, directly or indirectly, publicly-traded corporation in competition with the Restricted Business if such stock is publicly traded and listed on any stock exchangePurchased Assets;
(iib) acquiring, merging canvass or combining withsolicit the business of, or investing inprocure or assist the canvassing or soliciting of the business of, any Person that has been a customer, supplier, distributor, licensor, licensee or any other business that engages, directly or indirectly, (the “Subject Parties”) in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior relation to the date of such acquisition were equal to or less than twenty percent Purchased Assets within the past twelve (20%12) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicablemonths; provided, however, that nothing contained herein shall restrict any of Seller Parent or its Affiliates from canvassing or soliciting the New Business Proponent shall continue business of, or procuring or assisting the canvassing or soliciting of the business of, the Subject Parties in respect of matters which do not relate specifically to the Purchased Assets (including, without limitation, matters relating to the Pre-Closing Transferred Assets and the Pre- Closing Transferred Liabilities); and
(c) make (or cause to be bound by all of his or her made) to any Person any statement that Seller Parent or its Affiliates thereof knows to be, or that would reasonably be understood to be, disparaging or derogatory or otherwise negative or false concerning the Purchased Corporations or the Purchased Assets.
(2) Seller Parent hereby acknowledges that it will receive an immediate and direct benefit on the Closing Date from the consummation of the transactions contemplated by this Agreement, including the receipt of significant monetary proceeds as a direct result of such transactions. The parties hereto agree that the covenants set forth in this Section 9.6 are reasonable with respect to their duration, geographical area, and scope. It is the intent and understanding of each party hereto that if, in any Action before any court or other duties Governmental Authority legally empowered to enforce this Section 9.6, any term, restriction, covenant or promise in this Section 9.6 is found to be unreasonable and obligations for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer extent necessary to make it enforceable by such court or employee in accordance with the terms of this Agreementother Governmental Authority.
Appears in 1 contract
Sources: Share Purchase Agreement
Restrictive Covenants. (a) Neither HHC nor For a period beginning on the date of this Agreement and ending on the later of (i) the fourth anniversary of this Agreement, and (ii) such time that JG TopCo (and JG and any Permitted Transferees) holds less than a 20% Percentage Share, and (iii) such time that JG no longer provides consulting or similar services to the Company or any of its Subsidiaries (the “Non-Compete Period”), JG will not, and will cause JG TopCo and his other Affiliates shall(other than the Company and its Subsidiaries) not to, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Periodindirectly, engage or participate in, or render management services to (whether as owner, operator, member, shareholder, trustee, manager, consultant, strategic partner, employee or otherwise, with or without compensation) any Person engaged in, the Business (a “Competing Business”). Notwithstanding the foregoing, following the fourth anniversary of this Agreement, subject to JG providing thirty (30) days’ prior written notice to HHC and the Company that JG will terminate the Non-Compete Period, JG shall at the end of such thirty (30) day period no longer be bound by the restrictions in this 8.2(a), subject to Section 6.1(a) of the Company LLC Agreement. For purposes of illustration and not limitation, Competing Business includes ownership of, employment by or management services related to food preparation and service in the setting of any restaurant, hotel or hospitality group in any city in which any Company Group Party is engaged or participates (or management has expressed the intent to engage or participate) in any of the businesses or services referred to in clause (i) of the definition of Business. For the purposes of the foregoing, JG will not be in violation of this 8.2(a) solely by reason of his beneficial ownership, together with that of his Affiliates, of five percent or less of a Competing Business’ voting capital stock if (A) such Competing Business anywhere in is publicly traded and (B) JG and his Affiliates do not control the worldoperation or management of such Competing Business.
(b) Neither ▇▇▇▇▇▇ nor During the Non-Compete Period, JG and HHC will not, and will cause their respective Affiliates (other that the Company and its Affiliates shallSubsidiaries) not to, directly or indirectly through indirectly, (i) solicit for employment, recruit or hire (except within the Company and its Subsidiaries), either as an employee or a consultant, any principal, partner, manager, director, officer, contractor, employee or employee thereof acting on behalf consultant of the Company or for the benefit any of ▇▇▇▇▇▇ its Subsidiaries or its Affiliates, during the applicable Restricted Period, (ii) otherwise engage or participate in any effort or act to induce any Person to discontinue a relationship with the Restricted Business anywhere Company or any of its Subsidiaries; provided, that general advertisements in the worldmedia not targeted to any such consultants, employees independent contractors or other Persons shall not deemed prohibited solicitations, recruitment or inducement hereunder.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long Except as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or disclosed in connection with such acquired businessany action, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting suit or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered proceeding in connection with the Alliance Business rights or obligations of JG or HHC (as defined in or their respective Affiliates) under this Agreement, the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC MIPA or any of their Affiliates;
(vi) marketingother action, producing, selling, underwriting or administering reinsurance (suit or other similar protection offered to insurance or reinsurance companies or other entities in proceeding involving the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ Company or any of its Subsidiaries, JG and HHC shall not and shall cause their respective Affiliates is reasonably required not to develop (and will use reasonable best efforts to cause their respective Representatives not to), make or sell such products in order cause to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with be made or condone the making of any Person with respect to a mergerstatement, share exchange comment or other business combination transaction immediately following which communication, written or otherwise, that could constitute disparagement or criticism of, or that could otherwise be considered to be derogatory or detrimental to, or otherwise reflect adversely on, harm the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ reputation of, or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event thatencourage any adverse action against, during his or her or its Restricted PeriodJG, any Member other than PubCoHHC, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one any of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business their respective Affiliates or Restricted Business, as applicable. If a majority Representatives or any of the Board determine that teams, personnel, products or services of the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementforegoing.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Seaport Entertainment Group Inc.)
Restrictive Covenants. (a) Neither HHC nor its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇In order to assure that Kell▇▇▇▇▇ nor its Affiliates shall▇▇▇l realize the benefits of the Acquisition, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇Shareholder agrees with Kell▇▇▇▇▇ ▇▇ follows:
6.6.1. During the period commencing on the Closing Date and ending 42 months thereafter, (the "Restriction Period"), neither the Shareholder nor any Person in which the Shareholder has a Controlling Interest (collectively, the "Restricted Parties") shall, directly or its Affiliatesindirectly, during employ or solicit for employment any person who was, at any time within the applicable Restricted immediately preceding six (6) months, employed by Solair. The parties agree that nothing herein is intended to prohibit the Shareholder from advertising generally for any job position (provided that the Shareholder does not hire any person responding thereto that was employed by Solair at any time within the immediately preceding six (6) month period).
6.6.2. During the Restriction Period, no Restricted Party shall, directly or indirectly, engage or participate in the Restricted Business anywhere in business of purchasing, selling and supporting aircraft parts, as conducted by Solair on the world.
Closing Date (c) Notwithstanding anything to the contrary in Section 7.4(b"Competitive Business"), nothing in this Agreement provided that the foregoing restriction shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in not apply to any of the following (with each such subpart following:
6.6.2.1. Any Restricted Party that was engaged in the Competitive Business prior to the date of this Section 7.4(cAgreement (a list of such Restricted Parties is set forth in Schedule 6.6 hereof) having independent significance regardless of any overlap may continue to engage in the Competitive Business, and may reasonably develop and expand such Competitive Business.
6.6.2.2. Any Restricted Party may acquire and hold, in the aggregate, up to 10% of the subject matter thereof):issued and outstanding capital stock or other equity interest in any Person that engages in the Competitive Business.
6.6.2.3. Any Restricted Party may acquire any Person or business that engages in the Competitive Business, provided that (i1) acquiring less such Competitive Business does not constitute the principal business of the acquired Person or business (based on the sales of the acquired Person or business during the preceding four (4) full calendar quarters), and (2) if the Competitive Business constitutes more than an aggregate of five fifteen percent (515%) of the revenues of the acquired Person or business, the Restricted Party uses reasonable efforts to divest that portion of the acquired Person or business that engages in the Competitive Business within twelve (12) months after the acquisition thereof.
6.6.3. At any class of stock of a Person engagedtime following the Closing Date no Restricted Party shall, directly or indirectly, in any way utilize, disclose, copy, reproduce or retain in its possession any of the Restricted Business if proprietary rights or records of Solair or any subsidiary of Solair, including, but not limited to, any of their respective customer lists. The Shareholder agrees and acknowledges that the restrictions contained in this Section are reasonable in scope and duration and are necessary to protect Kell▇▇▇▇▇ ▇▇▇ its Affiliates after the Closing Date. If any provision of this Section 6.6 as applied to any party or to any circumstance is adjudged by a court to be invalid or unenforceable, the same will in no way affect any other circumstance or the validity or enforceability of this Agreement. If any such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining withprovision, or investing inany part thereof, any Person or business that engages, directly or indirectly, in is held to be unenforceable because of the Restricted Business, so long as the gross revenues duration of such Person provision or business derived from the Restricted Business for area covered thereby, the most recent fiscal year ended prior parties agree that the court making such determination shall have the power to reduce the date duration and/or area of such acquisition were equal provision, and/or to delete specific words or less than twenty percent (20%) phrases, and in its reduced form, such provision shall then be enforceable and shall be enforced. The parties agree and acknowledge that the breach of the total consolidated gross revenues this Section 6.6 will cause irreparable damage to Kell▇▇▇▇▇ ▇▇▇ its Affiliates and upon breach of such Person any provision of this Section 6.6, Kell▇▇▇▇▇ ▇▇▇ its Affiliates shall be entitled to injunctive relief, specific performance or business for such Fiscal Yearother equitable relief; provided, however, that, subject this shall in no way limit any other remedies which Kell▇▇▇▇▇ ▇▇▇ its Affiliates may have (including, without limitation, the right to seek monetary damages). Kell▇▇▇▇▇ ▇▇▇ the requirements Shareholder hereby agree that Kell▇▇▇▇▇ ▇▇▇ assign, without limitation, the foregoing restrictive covenants to any successor to or Affiliates of Law, Kell▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.
Appears in 1 contract
Restrictive Covenants. (aA) Neither HHC nor its Affiliates shallNone of Parent, directly Seller or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following their respective Subsidiaries or Affiliates (with each such subpart of this Section 7.4(ca “Restricted Party”) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engagedshall, directly or indirectly, anywhere in the world for a period of two (2) years from the Closing Date (the “Restricted Business if such stock is publicly traded and listed on Period”), engage as an owner, representative or otherwise, in any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or derives any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to revenue from operating a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Competitive Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent nothing contained in this Section 4.8 or otherwise shall continue to be bound by all prohibit any Restricted Party from:
(i) Owning, directly or indirectly, solely as a passive investment, securities of his any Person that offers products or her or its other duties and obligations services similar to the Company Competing Business, if the Restricted Parties do not, directly or indirectly, own more than two percent (2%) of any class of securities of such Person;
(ii) Engaging in the activities, services or businesses set forth on Schedule 4.8(A)(ii); and
(iii) Performing its obligations under this Agreement and its Subsidiariesany Transaction Document or otherwise taking actions in connection with the transactions contemplated hereby and thereby.
(B) During the Restricted Period none of the Restricted Parties shall, including all duties directly or indirectly, (i) recruit or solicit for employment any New Buyer Employee; provided that nothing in this Section 4.8(B) shall prohibit any Restricted Party from (x) conducting general solicitation, by advertisement, search firm or otherwise, not specifically targeted at such employees, (y) receiving and acting upon responses or inquiries from such employees (other than those employees listed on Schedule 4.8(B)) as a director result of PubCogeneral solicitation or otherwise not as a result of such Restricted Party’s active recruitment or solicitation, Memberor (z) recruiting or soliciting for employment any employee whose employment with Buyer has been terminated by Buyer, officer or employee in accordance (ii) intentionally cause, induce or encourage any client, customer, supplier or licensor of the Business or any other Person who has a material business relationship with the terms Business, in each case as of the Closing, to terminate or materially and adversely modify any such relationship with the Business; provided, that the foregoing shall not prohibit any Restricted Party from contacting, soliciting or otherwise communicating with such persons in the ordinary course of business so long as such contact does not entail any activity expressly prohibited by this AgreementSection 4.8.
(C) Parent and Seller acknowledge and agree that the duration and geographic scope of the restrictions and covenants set forth in this Section 4.8 are reasonable. In the event that a court or arbitrator determines that the duration or the geographic scope, or both, are unreasonable and that such provision is to that extent unenforceable, the Parties agree that the provision shall remain in full force and effect for the greatest time period and in the greatest area that would not render it unenforceable.
Appears in 1 contract
Sources: Asset Purchase Agreement (Endurance International Group Holdings, Inc.)
Restrictive Covenants. (a) Neither HHC For a period of [***] following the Closing Date (the “Restricted Period”), neither Seller nor its controlled Affiliates shall, directly or indirectly by indirectly, own, invest in, design, develop, manufacture, market, sell or through license any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant[***], or manage, consult, direct any business activity involving any [***]; provided, however, this Section 4.3(a) foregoing will not: (i) prohibit Seller or any of its controlled Affiliates from directly or indirectly acquiring or owning equity interests of a public company constituting less than 3% of the outstanding voting power thereof; (ii) prohibit Seller or its controlled Affiliates from performing its obligations in accordance with any other capacityagreement entered into in connection with the transactions contemplated by this Agreement, during including the applicable Restricted PeriodTransition Services Agreement, engage or participate in the Business anywhere in the world(iii) apply to any unaffiliated third party that acquires Seller, any controlled Affiliate of Seller or any of its or their respective assets or businesses.
(b) Neither ▇▇▇▇▇▇ During the Restricted Period, neither Purchaser nor its controlled Affiliates shall, directly or indirectly through indirectly, own, invest in, design, develop, manufacture, market, sell or license any principal, partner, manager, director, officer, contractor[***], or employee thereof acting on behalf manage, consult, direct any business activity involving any [***]; provided, however, this Section 4.3(b) foregoing will not: (i) prohibit Purchaser or any of its controlled Affiliates from directly or indirectly acquiring or owning equity interests of a public company constituting less than 3% of the outstanding voting power thereof; (ii) prohibit Purchaser or any of its controlled Affiliates from directly or indirectly performing any such activities for or in respect of the benefit Specified Product, or any other product currently owned, licensed or marketed by Purchaser as of ▇▇▇▇▇▇ the date of this Agreement; or (iii) prohibit Purchaser or its Affiliatescontrolled Affiliates from performing its obligations in accordance with any agreement entered into in connection with the transactions contemplated by this Agreement, during including the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the worldTransition Services Agreement.
(c) Notwithstanding anything to Each of Purchaser and Seller (for itself and on behalf of its controlled Affiliates) agrees that the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any duration and geographic scope of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements covenants set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that 4.3 are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) reasonable. In the event that, during his or her or its Restricted Period, that any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board court determines that the Company duration or one of its Subsidiaries will in good faith pursue the New Business Opportunity geographic scope, or both, are unreasonable and within three (3) years following the date the New Business Opportunity has been presented that such provision is unenforceable to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunityany extent, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine Parties agree that the Company provision shall remain in full force and its Subsidiaries will not pursue effect for the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.greatest time period
Appears in 1 contract
Sources: Asset Purchase Agreement (Emergent BioSolutions Inc.)
Restrictive Covenants. In order to assure that Mabwe will realize the benefits of the transactions contemplated hereby, the Shareholder and Fonon agree that he, she or it will not:
(a) Neither HHC nor its Affiliates shallfor a period of two (2) years beginning on the Closing Date (the "Noncompete Period"), directly or indirectly by indirectly, alone or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, a shareholder, member, partner, managerjoint venturer, officer, director, officer, employee, consultant, agent, independent contractor, lender or in security holder, of any other capacity, during the applicable Restricted Periodcompany or business, engage or participate in the Business Business, other than Fonon Laser Technologies, LLC and Sfinkx Corporation anywhere in the world.
United States (b) Neither ▇▇▇▇▇▇ nor its Affiliates shallthe "Territory"); provided, directly or indirectly through any principalhowever, partner, manager, director, officer, contractor, or employee thereof acting on behalf that the beneficial ownership of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock securities of any entity having a class of equity securities actively traded on a national securities exchange or over-the-counter market is permitted.
(b) during the Noncompete Period, directly or indirectly, (i) induce any customer acquired hereunder or any other customer of Mabwe or any of its subsidiaries (including Mabwe), successors, or assigns (as used in this Section 4.5, the "Mabwe Companies") to patronize any business which is directly or indirectly in competition with the Business conducted by any of the Mabwe Companies within the Territory; (ii) canvas, solicit or accept from any Person engagedwhich is a customer of the Business conducted by any of the Mabwe Companies, any such competitive business within the Territory; or (iii) request or advise any customer of the Business conducted by any of the Mabwe Companies within the Territory to withdraw, curtail or cancel any such customer's business with the Mabwe Companies or their successors within the Territory;
(c) during the Noncompete Period, directly or indirectly, employ any person who was employed by the Mabwe Companies, or in any manner seek to induce any employee of the Mabwe Companies to leave his or her employment without the prior written consent of Mabwe, which consent shall not be unreasonably withheld; and
(d) at any time following the Closing Date, directly or indirectly, in any way utilize, disclose, copy, reproduce or retain in their possession any of the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiringMabwe Companies' proprietary rights or records acquired hereunder, merging or combining withincluding, or investing inbut not limited to, any Person or business customer lists. The Shareholder and Fonon agree and acknowledge that engages, directly or indirectly, the restrictions contained in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ this Section 4.5 are reasonable in scope and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divestduration, and subsequently divest, are necessary to protect the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to Mabwe Companies. If any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes provision of this Section 7.4(c)(iii), reference 4.5 as applied to any policyparty or to any circumstance is adjudged by a court to be invalid or unenforceable, binder the same will in no way affect any other circumstance or contract the validity or enforceability of insurance this Agreement. If any such provision, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties agree that the court making such determination shall not include reinsurance have the power to reduce the duration and/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable and shall be enforced. The Shareholder and Mabwe agree and acknowledge that any breach of this Section will cause irreparable injury to the Mabwe Companies and upon any breach or threatened breach of any formprovision of this Section 4.5, other than reinsurance the primary purpose or effect of which is Mabwe Companies shall be entitled to provide coverage on Insurance Policies of the type marketedinjunctive relief, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (specific performance or other similar protection offered to insurance or reinsurance companies or other entities in equitable relief, without the business necessity of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicableposting bond; provided, however, that this shall in no way limit any other remedies which the New Business Proponent shall continue to be bound by all Mabwe Companies may have as a result of his or her or its other duties and obligations to the Company and its Subsidiariessuch breach, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementright to seek monetary damages.
Appears in 1 contract
Sources: Stock Purchase and Asset Sale Agreement (Mabwe Minerals Inc.)
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallFor three years following the Closing Date, subject to the other terms of this Section 5.10: (i) each of the Sellers, other than the Sellers set forth on Schedule II hereto (the “Management Sellers”), shall not directly or indirectly by or through any Affiliate own, hold or agentcontrol a majority of the voting equity interests in any Person whose primary business is either (A) the Business (as conducted by the Company and its Subsidiaries as of the Closing Date) in the United States, whether as principalCanada or Mexico or (B) the business of importing frozen fruit into the United States (clauses (A) and (B) collectively, agentthe “Restricted Business”); and (ii) the Management Sellers shall not engage in the Restricted Business in the United States, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultantCanada or Mexico, or in any other capacity, during the applicable Restricted Period, engage be employed (or participate act as a consultant or render services to) in the Restricted Business anywhere by any Person engaged in the worldRestricted Business.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shallFor three years following the Closing Date, subject to the other terms of this Section 5.10, each of the Sellers shall not directly or indirectly through any principalAffiliate, partnersolicit for employment (whether as an employee, managerconsultant or otherwise) any executive officer or management-level employee of or similar management-level consultant to the Company or its Subsidiaries who has any responsibility for or involvement with the Restricted Business, directorprovided, officerhowever, contractorthat nothing in this Section 5.10(b) shall preclude Sellers and their Affiliates and their respective officers, directors and employees from (A) soliciting any such individual who has not been employed by Purchaser or its Affiliates for a period of at least twelve months prior to commencement of employment discussions between Sellers, their Affiliates or their respective officers, directors or employees and such individual, or employee thereof acting on behalf (B) making any general or public solicitation not targeted at employees of Purchaser or for the benefit any of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.; or
(c) Notwithstanding anything to For three years following the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, thatClosing Date, subject to the requirements other terms of Lawthis Section 5.10, ▇▇▇▇▇▇ and each of the Sellers shall not directly or indirectly through any Affiliate, make or publish any statements or comments that disparage or injure the reputation or goodwill of the Company or its Affiliates shallSubsidiaries, as promptly as reasonably practicable following such acquisitionany of their directors, mergerofficers, combination employees or investmentagents, (x) cause such acquired Person any of their subsidiaries or business to cease engaging in Affiliates, or any of the products or services of the Restricted Business Business.
(d) For three years following the Closing Date, subject to the other terms of this Section 5.10, each of the Sellers shall not directly or (y) sign a definitive agreement indirectly through any Affiliate, hire, engage the services or attempt to divesthire or engage any executive officer or management-level employee of or similar management-level consultant of the Company or its Subsidiaries, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, however, that nothing in this Section 5.10(d) shall preclude Sellers and their Affiliates and their respective officers, directors and employees from hiring or engaging, or taking any other action with respect to any such acquisition, merger individual who (i) has been terminated by Purchaser or combination occurring its Affiliates or (ii) has not been employed by Purchaser or its Affiliates (other than by reason of a termination by Purchaser or its Affiliates) for a period of at least twelve months prior to expiration commencement of employment discussions between Sellers, their Affiliates or termination of the Alliance Agreementtheir respective officers, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by directors or employees and such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionindividual.
(de) In The Parties acknowledge and agree that the covenants and provisions in Section 5.10 are:
(i) reasonable in duration, geographic area and scope; and
(ii) separate and divisible and, if any such covenant or provision is determined to be unenforceable or invalid for any reason, it shall be reformed to have the closest possible effect, consistent with applicable Law, to the original covenant or provision and the remaining covenants shall be unaffected.
(f) The Parties acknowledge and agree that, in the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (breach of any covenant in such casethis Section 5.10, money damages may not be a “New Business Proponent”)sufficient remedy, determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of Section 11.10 shall apply to this AgreementSection 5.10.
Appears in 1 contract
Restrictive Covenants. (ai) Neither HHC nor its Affiliates shallFor a period of five (5) years from and after the Closing Date (the “Restricted Period”), each Seller agrees that he, she or it will not, directly or indirectly by or through any Affiliate or agentindirectly, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Periodrender services, engage or participate have a financial interest in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b)Business, nothing in this Agreement shall preclude, prohibit, other than as such Seller may be employed or restrict ▇▇▇▇▇▇ retained by Buyer or one of its Affiliates from directly or indirectly engaging(including Target and the Subsidiaries) post-Closing, in any manner in any provided however, that a Seller’s ownership of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of the outstanding stock of a Person engagedany publicly traded corporation shall not be deemed engagement, solely by reason thereof, in the Business. Each Seller covenants and agrees that during the Restricted Period such Seller shall not, directly or indirectly: (A) solicit, in the Restricted Business if such stock is publicly traded and listed on encourage, cause or attempt to cause any stock exchange;
(ii) acquiringcustomer, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (vendor or other similar protection offered to insurance or reinsurance companies or other entities in the third party having business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection dealings with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ Target or any of its Affiliates is reasonably required Subsidiaries not to develop do business with, or sell such products in order to comply reduce any part of its business, with requirements under applicable Law; or
Target or any of its Subsidiaries, or (viiiB) entering into and consummating hire, engage or solicit, or otherwise cause to leave their employment with Target or any of its Subsidiaries, any employee or independent contractor of Target, a Subsidiary, or Buyer (or its Affiliates) who was an agreement with employee or independent contractor of Target or any Person with respect to a merger, share exchange or other business combination transaction immediately following which of its Subsidiaries at any time during the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate twelve (12) month period immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event thatClosing, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that general solicitations of employment by means of newspaper, periodical or trade publication advertisements or through the New Business Proponent shall continue to be bound by all use of his or her an executive search firm not directed at employees of Buyer or its other duties and obligations to the Company Affiliates (including Target and its Subsidiaries) shall not constitute a violation of this provision.
(ii) The Parties recognize that the Laws and public policies of the various states of the United States and other jurisdictions may differ as to the validity and enforceability of covenants similar to those set forth in this Section 6(d). It is the intention of the Parties that the provisions of this Section 6(d) be enforced to the fullest extent permissible under the applicable Laws and policies of each jurisdiction in which enforcement may be sought, and that the unenforceability (or the modification to conform to such Laws or policies) of any provisions of this Section 6(d) shall not render unenforceable, or impair, the remainder of the provisions of this Section 6(d). Accordingly, if any provision of this Section 6(d) shall be judicially determined by a court of competent jurisdiction and venue to be invalid or unenforceable, then such invalidity or unenforceability shall be deemed to apply only with respect to the operation of such provision in the particular jurisdiction in which such determination is made and not with respect to any other provision or jurisdiction. The Parties (A) have carefully read and understand all of the provisions of this Agreement and have had the opportunity for this Agreement to be reviewed by counsel and (B) acknowledge that the duration, geographical scope and subject matter of this Section 6(d) are reasonable and necessary to protect the goodwill, customer relationships, legitimate business interests, trade secrets and confidential information of the Business.
(iii) The Parties acknowledge and agree any breach of this Section 6(d) would cause irreparable injury, that any remedy at law for any breach of the provisions of this Section 6(d) would be inadequate, and that, in the event of a breach of this Section 6(d), Buyer shall, in addition to any other rights or remedies that Buyer may have, be entitled to specific performance and equitable relief, including all duties as the issuance of a director temporary or permanent injunction by a court of PubCocompetent jurisdiction, Member, officer or employee in accordance with the terms without a requirement for a posting of this Agreementbond.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (MSA Safety Inc)
Restrictive Covenants. (a) Neither HHC nor Seller covenants and agrees that, Seller shall not, and shall cause its Affiliates shallnot to, directly or indirectly by or through any Affiliate or agent, (whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, independent contractor, partner or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereofotherwise):
(i) acquiring less than an aggregate for a period commencing on the Closing Date and ending on the fifth (5th) anniversary of five percent the Closing Date, engage, invest or have any interest (5%) of any class of stock of a Person engaged, either directly or indirectly, as a principal or for its own account, solely or jointly with others, or as equity holders or otherwise) in the Restricted Business if such stock is publicly traded and listed on or in any stock exchange;
business or Person that competes with the Business as conducted as of the Closing Date (iia “Competing Business”) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, anywhere in the Restricted Business, so long as world (it being understood by the gross revenues of such Person or business derived from parties hereto that the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect is not limited to any such acquisition, merger or combination occurring prior to expiration or termination of particular geographic region and that the Alliance Agreement, the requirements set forth Business may be engaged in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to effectively from any Insurance Policies written by such acquired Person, or location); provided that nothing in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance 9.8 shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ preclude Seller or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; orfrom:
(viiiA) owning up to two percent (2%) of any Person engaged in a Competing Business if (A) such Competing Business is publicly traded and (B) Seller or such Affiliate does not control the operation or management of such Competing Business;
(B) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction with respect to Seller immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate Seller immediately prior to the consummation of such transaction do not not, directly or indirectly, beneficially own more than fifty twenty-five percent (5025%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction., and in the event of such transaction, the restrictions contained in this Section 9.8 shall not apply to such acquirer or its Affiliates, except that such restrictions shall continue to apply to Seller (or the surviving company in a merger or combination with Seller if the surviving company is a Subsidiary of such acquirer) and its Subsidiaries; or
(dC) In acquiring any entity, assets or business that is or are engaged in a Competing Business if the event that, during his or her or its Restricted Period, any Member other revenues from the Competing Business constitute less than PubCo, including the equityholders or Affiliates of any Member other than PubCo twenty-five percent (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates25%) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunitytotal revenues generated by such entity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business assets or Restricted Business, as applicablebusiness; provided, however, that the New Business Proponent shall continue to be bound by all of his or her Seller or its other duties Affiliate, as applicable, shall divest the portion of such entity, assets or business that is engaged in a Competing Business within twelve (12) months following the acquisition thereof;
(ii) for a period commencing on the Closing Date and obligations ending on the second (2nd) anniversary of the Closing Date, solicit for purposes of employment or hire (or engage as a contractor or consultant) any Business Employee, or otherwise solicit, induce or otherwise encourage any Business Employee to the Company and discontinue, or refrain from entering into any employment relationship (contractual or otherwise) with Buyer or its Subsidiaries; provided, including all duties as a director of PubCohowever, Memberthat notwithstanding the foregoing, officer or employee in accordance with the terms for purposes of this Agreement, the Selling Parties shall not be prohibited from (A) placing general advertisements or conducting general employment solicitations (including via a search firm inquiry) that are not targeted at any Continuing Employee or the Business, or (B) soliciting or hiring any Continuing Employee that has been terminated without cause by Buyer or any of its Subsidiaries.
(b) Buyer covenants and agrees that for a period commencing on the Closing Date and ending on the second (2nd) anniversary of the Closing Date, Buyer shall not, and shall cause its Affiliates not to, directly or indirectly (whether as principal, agent, independent contractor, partner or otherwise) solicit for purposes of employment or hire (or engage as a contractor or consultant) any Non-Business Employee with whom Buyer or its Representatives has had contact prior to Closing to discontinue or refrain from entering into any employment relationship (contractual or otherwise) with Seller or any of its Subsidiaries; provided, however, that notwithstanding the foregoing, for purposes of this Agreement, Buyer and its Affiliates shall not be prohibited from (i) placing general advertisements or conducting general employment solicitations (including via a search firm inquiry) that are not targeted at any such Non-Business Employee, or (ii) soliciting or hiring any such Non-Business Employee that has been terminated without cause by Seller or any of its Subsidiaries.
(c) It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 9.8, any term, restriction, covenant or promise in this Section 9.8 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency. The period of time in which a Person is required to act, or refrain from acting, pursuant to this Section 9.8 shall be tolled (shall not run) for so long as such Person is in breach of any of such Person’s obligations hereunder.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor its Affiliates shallIn light of the special and unique services that will be furnished to the Company by BORNE and the Confidential Information that has been and will be disclosed to him during his employment, BORNE agrees that during his employment hereunder, and for a period of two (2) years thereafter, he will refrain from, without the written consent of the Company, directly or indirectly by or through any Affiliate or agentindirectly, whether as principal, agent, ownerofficer, investordirector, lenderconsultant, shareholderemployee, partner, member, partner, manager, director, officer, employee, consultant, stockholder or owner of or in any capacity with any corporation, partnership, business, firm, individual, company or any other capacityentity, during the applicable Restricted Period(i) carrying on or engaging in, or assisting another to carry on or engage or participate in, in the Business anywhere parishes of the State of Louisiana and counties of the other states specified on Attachment A hereto (the “Restricted Areas”) in which the Company or any of its affiliates are then engaged in business, any business, work or activity similar to the business of the Company or its affiliates and (ii) soliciting customers of the Company or its affiliates in the worldRestricted Area. BORNE specifically agrees that because of his special expertise and the special and unique services that he will be furnishing to the Company, and because of the Confidential Information that has been acquired by him or has been or will be disclosed to him during his employment with the Company, the Restricted Area and above-stated time period, in and during which he will refrain from the activities described above, are reasonable in scope and duration and are necessary to afford the Company just and adequate protection against the irreparable damage which would result to the Company from any activities prohibited by this Section.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shallBORNE agrees that, during the term of his employment and for a period of two (2) years thereafter, he will not, directly or indirectly through indirectly, solicit for employment, advise or recommend to any principalother person that they solicit for employment, partner, manager, director, officer, contractor, or any employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the worldCompany.
(c) Notwithstanding anything to It is the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any desire and intent of the following (with each such subpart parties that the provisions of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior 7 shall be enforced to the date of such acquisition were equal to or less than twenty percent (20%) of fullest extent permissible under the total consolidated gross revenues of such Person or business for such Fiscal Year; providedlaws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant if any particular portion of this Section 7 shall be adjudicated to be invalid or unenforceable, this Section 7 shall be deemed amended to delete therefrom the portion thus adjudicated to be invalid or unenforceable, such acquired Person or business conducting the Restricted Business deletion to an unaffiliated third party; provided, that apply only with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes operation of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies particular jurisdiction in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of which such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which adjudication is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionmade.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.
Appears in 1 contract
Sources: Employment Agreement (Amedisys Inc)
Restrictive Covenants. (a) Neither HHC nor its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during 8.1 During the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (Executive’s employment with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing for a period of twenty four (24) months thereafter:
(A) the New Business Proponent to pursue it. If Executive shall not, directly for the Board determines that the Company Executive or one of its Subsidiaries will any third party, become engaged in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions any business or activity which is directly in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that competition with the Company and that also derives more than 5% of its Subsidiaries will not pursue annual revenue from the New Business Opportunity, the New Business Proponent may pursue it sale of aftermarket automotive parts and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicableproducts; provided, however, that this provision shall not restrict the New Business Proponent Executive from owning or investing in publicly traded securities after termination of employment.;
(B) the Executive shall continue not solicit any person who was a customer of the Company during the period of the Executive’s employment hereunder, or solicit potential customers who are or were identified through leads developed during the course of employment with the Company, or otherwise divert or attempt to divert any existing business of the Company; and
(C) the Executive shall not, directly for the Executive or any third party, solicit, induce, recruit or cause another person in the employment of the Company to terminate such employee’s employment for the purposes of joining, associating, or becoming employed with any business or activity.
8.2 The Executive agrees that he will not, while employed with the Company or at any time thereafter for any reason, in any fashion, form or manner, either directly or indirectly, divulge, disclose or communicate to any person, firm, corporation or other business entity, in any manner whatsoever, any confidential information or trade secrets concerning the business of the Company, including, without limiting the generality of the foregoing, any customer lists or other customer identifying information, the techniques, methods or systems of the Company’s operation or management, any information regarding its financial matters, or any other material information concerning the business of the Company, its manner of operation, its plans or other material data. The provisions of this Section 8.2 shall not apply to (i) information that is public knowledge other than as a result of disclosure by the Executive in breach of this Section 8.2; (ii) information disseminated by the Company to third parties in the ordinary course of business and not subject to a confidentiality obligation; (iii) information lawfully received by the Executive from a third party who, based upon inquiry by the Executive, is not bound by a confidential relationship to the Company, or (iv) information disclosed under a requirement of law or as directed by applicable legal authority having jurisdiction over the Executive.
8.3 The Executive agrees that he will not, while employed with the Company or at any time thereafter for any reason, in any fashion, form or manner, either directly or indirectly, disparage or criticize the Company, or otherwise speak of the Company, in any negative or unflattering way to anyone with regard to any matters relating to the Executive’s employment by the Company or the business or employment practices of the Company. The Company agrees that it will not, in any fashion, form or manner, either directly or indirectly, disparage or criticize the Executive or otherwise speak of the Executive in any negative or unflattering way to anyone with regard to any matters relating to the Executive’s employment with the Company. This Section shall not operate as a bar to (i) statements reasonably necessary to be bound by all made in any judicial, administrative or arbitral proceeding, or (ii) internal communications between and among the employees of his the Company with a job-related need to know about this Agreement or her or its other duties and obligations matters related to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms administration of this Agreement.
8.4 The Executive understands that in the event of a violation of any provision of Section 8, the Company shall have the right to (i) seek injunctive relief, in addition to any other existing rights provided in this Agreement or by operation of law, without the requirement of posting bond and (ii) stop making any future payments or providing benefits under this Agreement. The remedies provided in this Section 8.4 shall be in addition to any legal or equitable remedies existing at law or provided for in any other agreement between the Executive and the Company, and shall not be construed as a limitation upon, or as an alternative or in lieu of, any such remedies. If any provisions of Section 8 shall be determined by a court of competent jurisdiction to be unenforceable in part by reason of it being too great a period of time or covering too great a geographical area, it shall be in full force and effect as to that period of time or geographical area determined to be reasonable by the court.
8.5 The Executive acknowledges that the provisions of Section 8 shall extend to any business that becomes an affiliate of or successor to the Company or any of its affiliates on account of a Change in Control or otherwise.
Appears in 1 contract
Sources: Change in Control Severance Agreement (O Reilly Automotive Inc)
Restrictive Covenants. (ai) Neither HHC nor The Seller and each Principal in exchange for the good and valuable consideration they are receiving from the Contemplated Transactions, the receipt and sufficiency of which is hereby acknowledged, intending to be legal bound and acknowledging the Buyer would not enter into this Agreement or the Contemplated Transactions without this Section 6(h), hereby covenant and agree that, during the period commencing at the Closing and continuing until the fifth (5th) anniversary of the Closing Date (the “Restricted Period”), the Seller and each Principal shall not (and shall cause its Affiliates shallnot to) do any of the following, directly or indirectly by or through any Affiliate or agentserve as a partner, whether as principaljoint venturer, agent, owner, investor, lender, shareholder, member, partnerdirector, manager, directortrustee, officer, employee, consultantindependent contractor, agent, lender, investor or equityholder (excluding de minimis holdings in publicly traded companies) of any Person that does any of the following, in each case whether directly or indirectly:
(A) participate or engage in, or provide any financial or other assistance to any Person participating or engaging in any other capacity, during the applicable Restricted Period, engage or participate in the a Competitive Business anywhere in the world.world (it being understood, recognized and acknowledged by the Seller that the Business being purchased hereunder is conducted on a global worldwide basis) (the “Restricted Territory”), provided that this clause (A) shall not apply to any Principal serving in any capacity of the Buyer or any of its Affiliates;
(bB) Neither ▇▇▇▇▇▇ nor solicit, contact, or conduct a Competitive Business with (or attempt to conduct a Competitive Business with) any Person who is then, or was within the twelve (12) months prior thereto, a Customer of the Buyer or the Business being purchased hereunder;
(C) induce or entice (or attempt to induce or entice) any distributor, supplier, vendor, or any other Person having a business relationship with the Buyer or the Business being purchased hereunder to terminate or adversely modify its Affiliates shallrelationship with the Buyer or such Business;
(D) solicit, directly contact, hire, engage, or indirectly through enter into any principalother business relationship with (or attempt to do any of the foregoing) any Person who is then, partneror was within the twelve (12) months prior thereto, a director, manager, director, officer, employee, independent contractor, or employee thereof acting on behalf agent of the Buyer or for the benefit of ▇▇▇▇▇▇ Business being purchased hereunder, or induce or entice (or attempt to induce or entice) any such Person to terminate or adversely modify its Affiliatesrelationship with the Buyer or such Business, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), provided that nothing in this Agreement clause (D) shall precludeprohibit the publishing of general advertisements not specifically targeted to any directors, prohibitmanagers, officers, employees, independent contractors, or restrict ▇▇▇▇▇▇ agents of the Buyer or such Business; or
(E) make or endorse any disparaging, derogatory, or otherwise negative written or oral communication regarding the Business, any of the Purchased Assets or Assumed Liabilities, or the Buyer or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;Representatives.
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the The Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that Period with respect to Seller and each Principal shall be tolled during (and shall be deemed to be automatically extended by) any such acquisition, merger or combination occurring prior to expiration or termination period during which Seller is in violation of the Alliance Agreement, the requirements any provision set forth in Section 5.12(b)(i)(Bclause (i) above.
(iii) Seller and each Principal hereby agree that the Business would suffer irreparable damage, and money damages would be inadequate, if any provision of clause (i) above were not performed in accordance with its terms and that the Buyer shall be entitled to injunctive relief and specific performance of the Alliance Agreement shall apply with respect terms of clause (i) above, in addition to any Insurance Policies written by such acquired Person, other remedy to which it is entitled at law or in equity. Seller and each Principal irrevocably waives any requirement for the securing or posting of any bond in connection with such acquired business, remedy. Seller and each Principal further agree that would be included the only permitted objection that it may raise in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference response to any policy, binder Action for equitable relief is that it contests the existence of a breach or contract threatened breach of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business clause (as defined in the Alliance Agreement));i) above.
(iv) marketingSeller and each Principal hereby agree that all restrictions set forth in clause (i) above, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates including those relating to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part duration of the Restricted Business Period and the scope of the Restricted Territory, are necessary and fundamental to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners protection of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) Buyer and its operation of the combined voting power Business purchased hereunder, are reasonable and valid, and constitute a material inducement for the Buyer to enter into this Agreement and each Ancillary Agreement and to consummate the Contemplated Transactions. To the extent that any court of competent jurisdiction holds that the outstanding voting capital stock entitled to vote generally duration, scope, or area restrictions set forth in the election of directors clause (or Persons performing a similar functioni) of the entity resulting from such transaction.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”)above are unreasonable under circumstances then existing, the New Business Proponent Parties agree that the maximum duration, scope, or area reasonable under such circumstances shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity be substituted for the Board to assess whether the Company stated duration, scope, or area and its Subsidiaries would like to pursue that such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity court shall be permitted, and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitationsthis Agreement shall automatically be revised, to implement such New Business Opportunitymodify the restrictions set forth in clause (i) above to cover the maximum period, the New Business Proponent shall not pursue it scope and the New Business Opportunity shall be deemed to constitute the Business area permitted by law or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementequity.
Appears in 1 contract
Sources: Asset Purchase Agreement (STRATA Skin Sciences, Inc.)
Restrictive Covenants. (a) Neither HHC nor Seller will not, and will cause its Affiliates shall(each a “Restricted Party”) not to, for a period of eighteen (18) months after the Closing Date (the “Restricted Period”), without the prior written consent of Buyer (which may be withheld in its sole discretion), either alone or in conjunction with any other Person, directly or indirectly by indirectly, for their own benefit or for the benefit of any other Person, or through their present or future Affiliates, solicit, interfere with or endeavor to entice away, offer to employ, employ or cause to be employed, hire, attempt to hire or aid or assist any Affiliate other Person to solicit, employ or agenthire, whether as principalon a full-time, agentpart-time, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, consulting or in any other capacitybasis, during any person who is an employee of the applicable Restricted Period, engage or participate Company as of the Closing; unless such individual (i) is no longer (and has not for the prior three (3) months been) in the Business anywhere employ of the Company, (ii) approaches Seller or its Affiliate on an unsolicited basis or (iii) is contacted or solicited through general non-targeted solicitation or advertisement in the world.
(b) Neither a newspaper, online or through an employment agency. ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting agrees on behalf of itself and each other Restricted Party that any remedy at Law for any breach by any Restricted Party of this Section 7.11 would be inadequate, and that Buyer, its Affiliates and the Company shall be entitled to injunctive relief in such a case. If any one or for more of the benefit provisions contained in this Section 7.11 shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting and reducing them so as to be enforceable to the maximum extent allowed by applicable Law.
(b) Seller further agrees, on behalf of ▇itself and each Restricted Party, that during the Restricted Period, such Restricted Party shall not disparage the Company or any of its officers, directors, direct or indirect shareholders or members, or employees (in their respective capacities as officers, directors, direct or indirect shareholders or members, or employees of the Company) in any manner likely to be harmful to such Person, or its personal or business reputation.
(c) ▇▇▇▇▇ or agrees, on behalf of itself and its Affiliates, that during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of no such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ shall disparage Seller and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketingrespective officers, producingdirectors, sellingdirect or indirect shareholders or members, underwriting or administering reinsurance (employees in any manner likely to be harmful to such Person, or other similar protection offered to insurance its personal or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionreputation.
(d) In Each Party agrees that any remedy at law for any breach of this Section 7.11 would be inadequate, and that the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (Parties shall be entitled to injunctive relief in such a case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If any one or more of the Board determines that the Company provisions contained in this Section 7.11 shall be held to be excessively broad as to duration, activity or one of its Subsidiaries will in good faith pursue the New Business Opportunity subject, such provisions shall be construed by limiting and within three (3) years following the date the New Business Opportunity has been presented reducing them so as to be enforceable to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound maximum extent allowed by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreementapplicable Law.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither Each of ▇▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇. ▇▇▇▇▇▇▇ and REIT Manager (collectively, solely for the purpose of this Section 4.03, the "Restricted Parties") covenants that, commencing on the Closing Date and ending on the three year anniversary of the Closing Date (the "Non-Competition Period"), he or it shall not, and shall not cause his or its Affiliates, during the applicable Restricted Periodrespective Affiliates to, engage directly or participate indirectly in, in any capacity, or have any direct or indirect ownership interest in, or permit such Restricted Party's or any such Affiliate's name to be used in connection with, any business in the Restricted Business anywhere United States which is primarily engaged in the world.
business of acquiring, investing in, owning, operating, or leasing parking lots, parking garages or other parking facilities (c) Notwithstanding anything to the contrary in Section 7.4(b"Restricted Business"); provided, however, that nothing in this Agreement shall preclude, prohibitprevent or restrict the Restricted Parties, or restrict ▇▇▇▇▇▇ or its any of their respective Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):following:
(i) acquiring less owning equity interests, indebtedness or other securities representing not more than an aggregate of five percent (5%) of any class of stock the equity capital of a Person engaged, directly or indirectly, in the Restricted Business if such stock company that is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, engaged in the Restricted Business, so long as the gross revenues Restricted Party is not otherwise associated with the management of such Person company, including by serving on the board of directors or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent holding any other similar governing position;
(20%ii) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, business and subsequently divest, activities as currently conducted by REIT Manager including the relevant portion management of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement)REIT Manager;
(iii) marketing, producing, selling, underwriting engaging in any activities pursuant to or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection consistent with the Alliance Business (as defined in the Alliance Agreement));Employment Agreement for Shustek; or
(iv) marketingowning, producingoperating or leasing parking lots, sellingparking garages or other parking facilities, underwriting directly or administering Insurance Policies indirectly, as a result of loss mitigation, foreclosure or similar activities in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Serviceor incidental to investments in mortgage loans, Incorporated as of March 9mortgage servicing rights, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (mortgage-backed securities or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to mortgage-related assets. It is recognized that the Restricted Business except for reinsurance is expected to be conducted in the primary purpose United States and that more narrow geographical limitations of any nature on this non-competition covenant (and the non-solicitation covenants set forth in Section 4.03(b)) are therefore not appropriate.
(b) Each Restricted Party covenants that, during the Non-Competition Period, such Restricted Party shall not, and it shall cause its Affiliates not to, directly or effect of which is indirectly, solicit or entice, or attempt to provide coverage on Insurance Policies solicit or entice, any clients or customers of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ REIT or any of its Affiliates is reasonably required to develop Subsidiaries for purposes of diverting their business or sell such products in order to comply with requirements under applicable Law; orservices from the REIT or any of its Subsidiaries.
(viiic) entering into Each Restricted Party covenants that, during the Non-Competition Period, such Restricted Party shall not, and consummating an agreement with it shall cause its Affiliates not to, solicit the employment or engagement of services of any Person with respect to a mergerperson who is, share exchange or other business combination transaction immediately following which was during the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate three-month period immediately prior to such solicitation, employed as an employee, contractor or consultant by the consummation REIT or any of its Subsidiaries (including REIT Manager) during such transaction do period on a full- or part-time basis. The foregoing shall not beneficially own more than fifty percent prohibit any general solicitation of employees, contractors or consultants or public advertising of employment opportunities (50%including through the use of employment agencies) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (not specifically directed at any such employees, contractors or Persons performing a similar function) of the entity resulting from such transactionconsultants.
(d) In Each Restricted Party acknowledges that the event restrictions contained in this Section 4.03 are reasonable and necessary to protect the legitimate interests of the REIT and constitute a material inducement to the REIT to enter into this Agreement and consummate the Transactions. Each Restricted Party acknowledges that any violation of this Section 4.03 may result in irreparable injury to the REIT and agrees that the REIT shall be entitled to seek preliminary and permanent injunctive relief, without the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of this Section 4.03, which rights shall be cumulative and in addition to any other rights or remedies to which the REIT may be entitled.
(e) By executing this Agreement, Shustek hereby represents, warrants and covenants, to the Company, that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo :
(in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise i) This Agreement has been duly executed and delivered by Shustek and constitutes the Business (in respect legal, valid and binding agreement of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee Shustek enforceable against him in accordance with the terms of this Section 4.03, subject to the Enforceability Exceptions. Shustek has full power and authority to execute this Agreement.
(ii) Shustek acknowledges that, as a beneficial owner of a portion of the Equity Interests in REIT Manager, Shustek will be entitled to receive consideration and other benefits in connection with the Transactions, and that his agreement to be bound by the provisions of Section 4.03 is a material inducement for the Company to enter into and to carry out the terms of this Agreement and consummate the Transactions.
(f) In the event that any covenant contained in this Section 4.03 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 4.03 and each provision thereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Restrictive Covenants. (a) Neither HHC nor its Affiliates shall, directly or indirectly by or through any Affiliate or agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant, or in any other capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate For a period of five percent (5%) of any class of stock of a Person engagedthree years from and after the Closing Date, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) none of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of LawAcquired Asset Entities, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency(collectively, LLCthe “Seller Restricted Parties”) will, ▇▇▇▇▇▇▇ Classic Marine Insurance Agencydirectly or indirectly through an Affiliate, LLC a family member or otherwise, own, open or operate any plasma collection center within the Seller Restricted Area (as defined on Exhibit M hereto). For a period of their Affiliates;
three years from and after the Closing Date, neither Buyer nor Holdings (vitogether, the “Buyer Restricted Parties”) marketingwill, producingdirectly or indirectly, sellingthrough an Affiliate or otherwise, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in use the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business Licensed Materials (as defined in the Alliance License Agreement) to own, open or operate any plasma collection center within the Buyer Restricted Area (as defined on Exhibit M hereto);.
(viiii) developing or selling products that would constitute part For a period of three years from and after the Closing Date, none of the Seller Restricted Business to Parties will, directly or indirectly, on his, her or its own behalf or in combination with others, hire, engage or solicit for employment or consulting services, the extent ▇▇▇▇▇▇ Key Employees, other individuals identified on Exhibit K hereto or any of its Affiliates is reasonably required to develop or sell the Buyer’s employees, except that (A) such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person restrictions shall not apply with respect to a merger, share exchange or other business combination transaction immediately following which any such Person who is terminated by the beneficial owners Buyer after the Closing; and (B) such restrictions shall lapse after the first anniversary of the voting capital stock of ▇▇▇▇▇▇ Closing Date with respect to any such Person employed in human resources or such Affiliate finance functions for the Acquired Asset Entities immediately prior to the consummation Closing and who declines relocation requested by the Buyer. For a period of three years from and after the Closing Date, none of the Buyer Restricted Parties will, directly or indirectly, on his, her or its own behalf or in combination with others, hire, engage or solicit for employment or consulting services any post-Closing employee of the Acquired Asset Entities (including, without limitation, the employees listed on Exhibit M-1), except that such transaction do restrictions shall not beneficially apply with respect to any such Person who is terminated by any Acquired Asset Entity after the Closing. Notwithstanding the foregoing, this §3(e)(ii) shall not prevent non-targeted solicitations of employment that are widely disseminated or made available to the general public, or the hiring of any personnel responding thereto.
(iii) From and after the date of this Agreement, none of the Seller Restricted Parties shall disparage Buyer, Holdings or any of their respective directors, officers, members, managers, partners, employees or agents. From and after the date of this Agreement, neither the Buyer nor Holdings nor any of their respective directors, officers, members, managers, partners, employees or agents, shall disparage any of the Acquired Asset Entities or any of their respective directors, officers, members, managers, partners, employees or agents.
(iv) From and after the date of this Agreement, none of the Seller Restricted Parties will, directly or indirectly, on his, her or its own more behalf or in combination with others, purchase, own or hold an economic interest, whether as an owner, partner, shareholder, agent, employee, consultant or (without limitation by the specific enumeration of the foregoing) otherwise, in any of the Leased Real Property other than fifty percent (50%as specifically set forth on §3(cc) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionDisclosure Schedule.
(dv) The Parties, on their own behalf and on behalf of other Persons within the scope of the covenants set forth in this §6(e), recognize that the territorial, time and scope limitations of this §6(e) are reasonable and necessary for the protection of such Parties, Affiliates and Persons, and in the event that any such territorial, time or scope limitation is ruled unreasonable by a court of competent jurisdiction, the Parties agree to empower and urge the court to reduce any such territorial, time or scope limitations to reasonable and enforceable limits under the circumstances, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed. In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo breach of subsection (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliatesi) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliatesii) (a “New Business Opportunity”)above, the New Business Proponent time period of the breached covenant shall notify be extended for the Board in writing period of such intention breach. Each of the Parties shall be entitled to all rights and provide remedies at law and in equity in connection with any breach of this §6(e).
(vi) The Parties acknowledge that payment of the Board with sufficient detail regarding Purchase Price by the New Business Opportunity Buyer, the sale of the Acquired Assets by the Acquired Asset Entities and the other representations, warranties, and covenants herein contained other mutual promises set forth herein constitute good and valid consideration for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority covenants of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee Parties in accordance with the terms of this Agreement§6(e).
Appears in 1 contract
Sources: Asset Purchase Agreement (Talecris Biotherapeutics Holdings Corp.)
Restrictive Covenants. CHCI hereby covenants and agrees until the Closing Date, not to do any of the following without Vaxxinator’s prior written consent (which consent shall not be unreasonably withheld, conditioned, or delayed):
(a) Neither HHC nor its Affiliates shallissue any debt, directly equity or indirectly other securities except in connection with any outstanding convertible securities of CHCI or the transactions contemplated herein;
(b) borrow money or incur any indebtedness for money borrowed outside of the ordinary course;
(c) except in connection with the CHCI Finder’s Fee, make any loans, expenditures, advances or other payments except in the ordinary course of business other than to Vaxxinator pursuant to the payment of professional fees or expenses in connection with or ancillary to the transactions contemplated herein;
(d) declare or pay any dividends or distribute any of CHCI’s properties or assets to shareholders or otherwise;
(e) alter or amend CHCI’s constating documents in any manner which may adversely affect the success of the transactions contemplated herein, except as required to give effect to the matters contemplated herein;
(f) except as otherwise permitted or contemplated herein, enter into any transaction or material contract which is not in the ordinary course of business or engage in any business enterprise or activity materially different from that carried on by or through CHCI as of the date hereof;
(g) provide any Affiliate or agentguarantee in respect of the obligations of any person;
(h) increase the compensation, whether as principalin any form, agent, owner, investor, lender, shareholder, member, partner, manager, for any director, officer, employeeemployee or consultant of CHCI, consultant, or in provided that the entering into of any other capacity, during customary indemnity agreements with the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(b) Neither ▇▇▇▇▇▇ nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf directors of or for the benefit of ▇▇▇▇▇▇ or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict ▇▇▇▇▇▇ or its Affiliates from directly or indirectly engagingCHCI, in any manner a form acceptable to Vaxxinator acting reasonably, shall not be considered an increase in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):compensation for these purposes; or
(i) acquiring less than an aggregate of five percent (5%) of agree to do any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the gross revenues of such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than twenty percent (20%) of the total consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, ▇▇▇▇▇▇ and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a definitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by ▇▇▇▇▇▇ American Insurance Company and ▇▇▇▇▇▇ Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by ▇▇▇▇▇▇▇ Insurance Agency, LLC, ▇▇▇▇▇▇▇ Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of providing primary risk protection), regardless of whether the subject matter of such reinsurance (or other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement);
(vii) developing or selling products that would constitute part of the Restricted Business to the extent ▇▇▇▇▇▇ or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(viii) entering into and consummating an agreement with any Person with respect to a merger, share exchange or other business combination transaction immediately following which the beneficial owners of the voting capital stock of ▇▇▇▇▇▇ or such Affiliate immediately prior to the consummation of such transaction do not beneficially own more than fifty percent (50%) of the combined voting power of the outstanding voting capital stock entitled to vote generally in the election of directors (or Persons performing a similar function) of the entity resulting from such transactionforegoing.
(d) In the event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of any Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of ▇▇▇▇▇▇ and its Affiliates) (a “New Business Opportunity”), the New Business Proponent shall notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to assess whether the Company and its Subsidiaries would like to pursue such opportunity rather than allowing the New Business Proponent to pursue it. If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within three (3) years following the date the New Business Opportunity has been presented to the Board takes actions in good faith, subject to commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it and the New Business Opportunity shall be deemed to constitute the Business or Restricted Business, as applicable. If a majority of the Board determine that the Company and its Subsidiaries will not pursue the New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be bound by all of his or her or its other duties and obligations to the Company and its Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the terms of this Agreement.
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Sources: Business Combination Agreement