Non Competition Non Interference. (a) In consideration --------------------------------- of the purchase of the Shares by Purchaser, Seller shall not, and shall cause its Affiliates to not: (i) for the period from the Closing Date until the fifth (5th) anniversary of the Closing Date, solicit for the benefit of or fulfillment by Seller or any Person other than the Company the business of the type and character engaged in or competitive with that conducted by the Company on the Closing Date, of any Person which is a customer or client of the Company, or was its customer or client, at any time within the two (2) years prior to the Closing Date (each, a "Company Customer"), or attempt to hurt, hinder, diminish ---------------- or interfere with the relationship between the Company and any such Company Customer (including making any negative or disparaging statements or communications about the Company). (ii) for the period from the Closing Date until the fourth (4th) anniversary of the Closing Date, within the United States of America or any state, region or territory thereof, conduct, directly or indirectly, any business of the type and character engaged in or competitive with that conducted by the Company on the Closing Date, other than the business of such type that Logility, Inc., currently conducts with certain existing customers or clients of Logility, Inc., but including any services involving the management of software applications (other than Seller Software); provided, however, that: -------- ------- (A) if the business of any Person (other than any Company Customer) involves Seller Software licensed to or otherwise used by such Person, and such Person requests any Seller Entity to provide to it Application Service Provider Services related to such Seller Software which would otherwise cause Seller to violate the provisions of this Section 5.3(a)(ii), a Seller Entity may provide such Application Service Provider Services to such Person if: (1) Seller shall have given the Company the opportunity to provide the same services to such Person as follows: Seller shall, within three (3) Business Days or such shorter period as is consistent with the urgency of the request, have (w) given written notice to the Company of each request made to the Seller or any of its Affiliates to provide Application Service Provider Services to such Person, (x) given notice to such Person that such services are provided by the written Company, (y) recommended to such Person that it utilize the services of the Company and not the services of Seller or any of its Affiliates, and (z) used its commercially reasonable efforts to provide the Company with an opportunity to make a presentation to such Person for the provision of such services to it; and (2) within thirty (30) days from the date of receipt by the Company of the written notice referred to in clause (A)(1)(w) above, such Person has notified Seller that, despite Seller's notification and recommendation referred to in clause (A)(1) above, it requires that a specific Seller Entity perform such Application Service Provider Services in preference to the Company, or the Company has notified Seller in writing that it does not wish to provide such services to such Person; or (B) if the business of any Person (other than any Company Customer) involves Seller Software licensed to or otherwise used by such Person, and such Person requests any Seller Entity to provide to it Application Service Provider Services related to such Seller Software which would otherwise cause Seller to violate the provisions of this Section 5.3(a)(ii), a Seller Entity may provide such Application Service Provider Services to such Person if such Person pays less than $5,000 per month for such Application Service Provider Services; provided, however, that such Seller Entity shall first have used its -------- ------- commercially reasonable efforts to cause the provision of such Application Service Provider Services to be subcontracted to the Company, unless the Company shall have notified such Seller Entity, within five (5) Business Days of receipt by the Company of written notice by such Seller Entity to subcontract such services to the Company (including the terms and conditions applicable thereto), that it does not wish to provide such services; (C) if, at any time prior to the fourth (4/th/) anniversary of the Closing Date, the Company fails to provide the Services (as defined in that certain Equipment Rental and Services Agreement between Sprint Spectrum L.P. and the Company, dated June 21, 1999 (the "Company/Sprint Agreement"), excluding the ------------------------ deliveries of the software and hardware pursuant thereto), or such other services to be provided under a replacement agreement for the Company/Sprint Agreement, substantially in the form set forth in Exhibit L, and Sprint Spectrum --------- L.P. has not frustrated the Company's performance and is in material compliance with its obligations thereunder, then, if the Company shall not cure such failure within ten (10) Business Days following receipt by it of written notice thereof, Seller shall be entitled to provide such services to Sprint Spectrum L.P. or to enter into an agreement with a third party to provide such services to Sprint Spectrum L.P; or (D) Seller shall be entitled to lease or sublease its data processing facilities located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ or any part thereof to any Person (other than any Company Customer) and provide to any such lessee or sublessee access to such facility, in each case, on terms consistent with a customary landlord/tenant relationship, provided that no part -------- of the rent or other consideration received by or on behalf of Seller or any of its Affiliates from such lessee or sublessee shall be tied to, or determined by reference to, the revenues or profits of any such lessee or sublessee; provided, -------- however, that if the business of any such lessee or sublessee is not of a type ------- or character competitive with that conducted by the Company on the Closing Date, Seller shall be entitled to tie or determine such rent or other consideration received from such lessee or sublessee to, or by reference to, the revenues or profits of any such lessee or sublessee. (b) Notwithstanding Section 5.3(a)(ii), Seller may, and may permit its Affiliates to, engage in activities which violate Section 5.3(a)(ii) of this Agreement if, it does so solely in connection with, or as a result of, the acquisition of all of the capital stock or other equity interests of a Person which is not an individual Person (the "Acquired Entity") and which is --------------- primarily engaged in (i) a business other than the business engaged in by the Company on the Closing Date or (ii) a business competitive with the business engaged in by the Company on the Closing Date, if (A) the activities of the Acquired Entity are incidental to the primary business of the Acquired Entity and do not result in net revenues in excess of forty percent (40%) of the net revenues of the Acquired Entity, and (B) Seller and its Affiliates continue to comply with this Section 5.3 (except that Seller and its Affiliates shall not be required to comply with Section 5.3(a)(ii) with respect to any Person who is a customer of the Acquired Entity on the date on which the Acquired Entity is acquired). (c) It is the desire and intent of the parties to this Agreement that the provisions of this Section 5.3 shall be enforced to the fullest extent permissible under the Laws and public policies applied in each jurisdiction in which enforcement is sought. If any particular provisions or portion of this Section 5.3 shall be adjudicated to be invalid or unenforceable, this Section shall be deemed amended to delete therefrom such provision or portion adjudicated to be invalid or unenforceable, such amendment to apply only with respect to the operation of such Section in the particular jurisdiction in which such adjudication is made. (d) The parties recognize that the performance of the obligations under this Section 5.3 by Seller is special, unique and extraordinary in character, and that in the event of the breach by Seller of the terms and conditions of this Section 5.3 to be performed by Seller, Purchaser and the Company shall be entitled, if it so elects, to seek damages for any breach of this Section 5.3, and/or to enforce the specific performance thereof by Seller or to enjoin Seller from performing services for any Person.
Appears in 1 contract
Non Competition Non Interference. (a) In consideration --------------------------------- of the purchase of the Shares by Purchaser, Seller shall not, and shall cause its Affiliates to not:
(i) for the period from the Closing Date until the fifth (5th) anniversary of the Closing Date, solicit for the benefit of or fulfillment by Seller or any Person other than the Company the business of the type and character engaged in or competitive with that conducted by the Company on the Closing Date, of any Person which is a customer or client of the Company, or was its customer or client, at any time within the two (2) years prior to the Closing Date (each, a "Company Customer"), or attempt to hurt, hinder, diminish ---------------- or interfere with the relationship between the Company and any such Company Customer (including making any negative or disparaging statements or communications about the Company).
(ii) for the period from the Closing Date until the fourth (4th) anniversary of the Closing Date, within the United States of America or any state, region or territory thereof, conduct, directly or indirectly, any business of the type and character engaged in or competitive with that conducted by the Company on the Closing Date, other than the business of such type that Logility, Inc., currently conducts with certain existing customers or clients of Logility, Inc., but including any services involving the management of software applications (other than Seller Software); provided, however, that: -------- -------:
(A) if the business of any Person (other than any Company Customer) involves Seller Software licensed to or otherwise used by such Person, and such Person requests any Seller Entity to provide to it Application Service Provider Services related to such Seller Software which would otherwise cause Seller to violate the provisions of this Section 5.3(a)(ii), a Seller Entity may provide such Application Service Provider Services to such Person if:
(1) Seller shall have given the Company the opportunity to provide the same services to such Person as follows: Seller shall, within three (3) Business Days or such shorter period as is consistent with the urgency of the request, have (w) given written notice to the Company of each request made to the Seller or any of its Affiliates to provide Application Service Provider Services to such Person, (x) given written notice to such Person that such services are provided by the written Company, (y) recommended to such Person that it utilize the services of the Company and not the services of Seller or any of its Affiliates, and (z) used its commercially reasonable efforts to provide the Company with an opportunity to make a presentation to such Person for the provision of such services to it; and
(2) within thirty (30) days from the date of receipt by the Company of the written notice referred to in clause (A)(1)(w) above, such Person has notified Seller that, despite Seller's notification and recommendation referred to in clause (A)(1) above, it requires that a specific Seller Entity perform such Application Service Provider Services in preference to the Company, or the Company has notified Seller in writing that it does not wish to provide such services to such Person; or
(B) if the business of any Person (other than any Company Customer) involves Seller Software licensed to or otherwise used by such Person, and such Person requests any Seller Entity to provide to it Application Service Provider Services related to such Seller Software which would otherwise cause Seller to violate the provisions of this Section 5.3(a)(ii), a Seller Entity may provide such Application Service Provider Services to such Person if such Person pays less than $5,000 per month for such Application Service Provider Services; provided, however, that such Seller Entity shall first have used its -------- ------- commercially reasonable efforts to cause the provision of such Application Service Provider Services to be subcontracted to the Company, unless the Company shall have notified such Seller Entity, within five (5) Business Days of receipt by the Company of written notice by such Seller Entity to subcontract such services to the Company (including the terms and conditions applicable thereto), that it does not wish to provide such services;
(C) if, at any time prior to the fourth (4/th/4th) anniversary of the Closing Date, the Company fails to provide the Services (as defined in that certain Equipment Rental and Services Agreement between Sprint Spectrum L.P. and the Company, dated June 21, 1999 (the "Company/Sprint Agreement"), excluding the ------------------------ deliveries of the software and hardware pursuant thereto), or such other services to be provided under a replacement agreement for the Company/Sprint Agreement, substantially in the form set forth in Exhibit L, and Sprint Spectrum --------- L.P. has not frustrated the Company's performance and is in material compliance with its obligations thereunder, then, if the Company shall not cure such failure within ten (10) Business Days following receipt by it of written notice thereof, Seller shall be entitled to provide such services to Sprint Spectrum L.P. or to enter into an agreement with a third party to provide such services to Sprint Spectrum L.P; or
(D) Seller shall be entitled to lease or sublease its data processing facilities located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ or any part thereof to any Person (other than any Company Customer) and provide to any such lessee or sublessee access to such facility, in each case, on terms consistent with a customary landlord/tenant relationship, provided that no part -------- of the rent or other consideration received by or on behalf of Seller or any of its Affiliates from such lessee or sublessee shall be tied to, or determined by reference to, the revenues or profits of any such lessee or sublessee; provided, -------- however, that if the business of any such lessee or sublessee is not of a type ------- or character competitive with that conducted by the Company on the Closing Date, Seller shall be entitled to tie or determine such rent or other consideration received from such lessee or sublessee to, or by reference to, the revenues or profits of any such lessee or sublessee.
(b) Notwithstanding Section 5.3(a)(ii), Seller may, and may permit its Affiliates to, engage in activities which violate Section 5.3(a)(ii) of this Agreement if, it does so solely in connection with, or as a result of, the acquisition of all of the capital stock or other equity interests of a Person which is not an individual Person (the "Acquired Entity") and which is --------------- primarily engaged in (i) a business other than the business engaged in by the Company on the Closing Date or (ii) a business competitive with the business engaged in by the Company on the Closing Date, if (A) the activities of the Acquired Entity are incidental to the primary business of the Acquired Entity and do not result in net revenues in excess of forty percent (40%) of the net revenues of the Acquired Entity, and (B) Seller and its Affiliates continue to comply with this Section 5.3 (except that Seller and its Affiliates shall not be required to comply with Section 5.3(a)(ii) with respect to any Person who is a customer of the Acquired Entity on the date on which the Acquired Entity is acquired).
(c) It is the desire and intent of the parties to this Agreement that the provisions of this Section 5.3 shall be enforced to the fullest extent permissible under the Laws and public policies applied in each jurisdiction in which enforcement is sought. If any particular provisions or portion of this Section 5.3 shall be adjudicated to be invalid or unenforceable, this Section shall be deemed amended to delete therefrom such provision or portion adjudicated to be invalid or unenforceable, such amendment to apply only with respect to the operation of such Section in the particular jurisdiction in which such adjudication is made.
(d) The parties recognize that the performance of the obligations under this Section 5.3 by Seller is special, unique and extraordinary in character, and that in the event of the breach by Seller of the terms and conditions of this Section 5.3 to be performed by Seller, Purchaser and the Company shall be entitled, if it so elects, to seek damages for any breach of this Section 5.3, and/or to enforce the specific performance thereof by Seller or to enjoin Seller from performing services for any Person.
Appears in 1 contract
Non Competition Non Interference. (a) In consideration --------------------------------- of the purchase consummation by the Parent and Merger Sub of the Shares by Purchasertransactions contemplated hereby, Seller shall notthe Shareholder agrees that from the date of this Agreement until the seventh anniversary of the Closing Date (the "Non-competition Period"), and shall cause its Affiliates to the Shareholder will not:
(ia) for directly or indirectly engage in or have any interest in any sole proprietorship, partnership, corporation or business or any other person or entity (whether as an employee, officer, director, partner, agent, security holder, creditor, consultant or otherwise) that directly or indirectly (or through any affiliated entity) engages in competition with the period from Business. For these purposes, ownership of securities of not in excess of two percent (2%) of any class of securities of a public company shall not be considered to be competition with the Closing Date until Company or the fifth Surviving Corporation or any of its affiliates; or
(5thb) anniversary of persuade or attempt to persuade any potential customer or client to which the Closing DateCompany has made a presentation, or with which the Company has been having discussions, not to hire the Company or the Surviving Corporation, or to hire any other Person than the Company or the Surviving Corporation; or
(c) solicit for the benefit of or fulfillment by Seller himself or any Person other than the Company or the business of Surviving Corporation the type and character engaged in or competitive with that conducted by the Company on the Closing Date, Business of any Person which is a customer or client of the Company, or was its customer or client, at any time client within the two (2) years prior to the Closing Date (each, a "Company Customer"), or attempt to hurt, hinder, diminish ---------------- or interfere with the relationship between the Company and any such Company Customer (including making any negative or disparaging statements or communications about the Company).
(ii) for the period from the Closing Date until the fourth (4th) anniversary of the Closing Date, within the United States of America or any state, region or territory thereof, conduct, directly or indirectly, any business of the type and character engaged in or competitive with that conducted by the Company on the Closing Date, other than the business of such type that Logility, Inc., currently conducts with certain existing customers or clients of Logility, Inc., but including any services involving the management of software applications (other than Seller Software); provided, however, that: -------- -------
(A) if the business of any Person (other than any Company Customer) involves Seller Software licensed to or otherwise used by such Person, and such Person requests any Seller Entity to provide to it Application Service Provider Services related to such Seller Software which would otherwise cause Seller to violate the provisions date of this Section 5.3(a)(ii), a Seller Entity may provide such Application Service Provider Services to such Person if:
(1) Seller shall have given the Company the opportunity to provide the same services to such Person as follows: Seller shall, within three (3) Business Days or such shorter period as is consistent with the urgency of the request, have (w) given written notice to the Company of each request made to the Seller or any of its Affiliates to provide Application Service Provider Services to such Person, (x) given notice to such Person that such services are provided by the written Company, (y) recommended to such Person that it utilize the services of the Company and not the services of Seller or any of its Affiliates, and (z) used its commercially reasonable efforts to provide the Company with an opportunity to make a presentation to such Person for the provision of such services to it; and
(2) within thirty (30) days from the date of receipt by the Company of the written notice referred to in clause (A)(1)(w) above, such Person has notified Seller that, despite Seller's notification and recommendation referred to in clause (A)(1) above, it requires that a specific Seller Entity perform such Application Service Provider Services in preference to the Company, or the Company has notified Seller in writing that it does not wish to provide such services to such PersonAgreement; or
(Bd) if persuade or attempt to persuade any employee of the business Company or the Surviving Corporation, or any individual who was its employee during the two years prior to the date of this Agreement, to leave the Company's or the Surviving Corporation's employ, or to become employed by any Person (person other than any the Company Customer) involves Seller Software licensed to or otherwise used by such Person, and such Person requests any Seller Entity to provide to it Application Service Provider Services related to such Seller Software which would otherwise cause Seller to violate the provisions of this Section 5.3(a)(ii), a Seller Entity may provide such Application Service Provider Services to such Person if such Person pays less than $5,000 per month for such Application Service Provider ServicesSurviving Corporation; provided, howeverPROVIDED, that such Seller Entity shall first have used its -------- ------- commercially reasonable efforts to cause in the provision of such Application Service Provider Services to be subcontracted to event that the Company, unless Executive's employment with the Company shall have notified such Seller Entity, within five (5) Business Days of receipt is terminated by the Company of written notice by such Seller Entity to subcontract such services to the Company (including the terms and conditions applicable thereto), that it does not wish to provide such services;
(C) if, at any time prior to the fourth (4/th/) anniversary of the Closing Date, the Company fails to provide the Services without Cause (as defined in that certain Equipment Rental and Services Agreement between Sprint Spectrum L.P. and the Shareholder Employment Agreement) the Non-competition Period shall terminate one year after the termination of the Executive's employment by the Company, dated June 21, 1999 (the "Company/Sprint Agreement"), excluding the ------------------------ deliveries of the software and hardware pursuant thereto), or such other services to be provided under a replacement agreement for the Company/Sprint Agreement, substantially in the form set forth in Exhibit L, and Sprint Spectrum --------- L.P. has not frustrated the Company's performance and is in material compliance with its obligations thereunder, then, if the Company shall not cure such failure within ten (10) Business Days following receipt by it of written notice thereof, Seller shall be entitled to provide such services to Sprint Spectrum L.P. or to enter into an agreement with a third party to provide such services to Sprint Spectrum L.P; or
(D) Seller shall be entitled to lease or sublease its data processing facilities located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ or any part thereof to any Person (other than any Company Customer) and provide to any such lessee or sublessee access to such facility, in each case, on terms consistent with a customary landlord/tenant relationship, provided that no part -------- of the rent or other consideration received by or on behalf of Seller or any of its Affiliates from such lessee or sublessee shall be tied to, or determined by reference to, the revenues or profits of any such lessee or sublessee; provided, -------- however, that if the business of any such lessee or sublessee is not of a type ------- or character competitive with that conducted by the Company on the Closing Date, Seller shall be entitled to tie or determine such rent or other consideration received from such lessee or sublessee to, or by reference to, the revenues or profits of any such lessee or sublessee.
(b) Notwithstanding Section 5.3(a)(ii), Seller may, and may permit its Affiliates to, engage in activities which violate Section 5.3(a)(ii) of this Agreement if, it does so solely in connection with, or as a result of, the acquisition of all of the capital stock or other equity interests of a Person which is not an individual Person (the "Acquired Entity") and which is --------------- primarily engaged in (i) a business other than the business engaged in by the Company on the Closing Date or (ii) a business competitive with the business engaged in by the Company on the Closing Date, if (A) the activities of the Acquired Entity are incidental to the primary business of the Acquired Entity and do not result in net revenues in excess of forty percent (40%) of the net revenues of the Acquired Entity, and (B) Seller and its Affiliates continue to comply with this Section 5.3 (except that Seller and its Affiliates shall not be required to comply with Section 5.3(a)(ii) with respect to any Person who is a customer of the Acquired Entity on the date on which the Acquired Entity is acquired).
(c) . It is the desire and intent of the parties to this Agreement that the provisions of this Section 5.3 SECTION 11.1 shall be enforced to the fullest extent permissible under the Laws laws and public policies applied in each jurisdiction in which enforcement is sought. If any particular provisions or portion of this Section 5.3 SECTION 11.1 shall be adjudicated to be invalid or unenforceable, this Section shall be deemed amended to delete therefrom such provision or portion thereof adjudicated to be invalid or unenforceable, such amendment to apply only with respect to the operation of such Section in the particular jurisdiction in which such adjudication is made.
(d) . The parties recognize that the performance of the obligations under this Section 5.3 SECTION 11.1 by Seller the Shareholder is special, unique and extraordinary in character, and that in the event of the breach by Seller the Shareholder of the terms and conditions of this Section 5.3 SECTION 11.1 to be performed by Sellerperformed, Purchaser and the Company Parent and/or the Surviving Corporation shall be entitled, if it so elects, to seek institute and prosecute proceedings in any court of competent jurisdiction, either in law or in equity, to obtain damages for any breach of this Section 5.3SECTION 11.1, and/or or to enforce the specific performance thereof by Seller the Shareholder or to enjoin Seller the Shareholder from performing services for any Personsuch other person, firm or corporation.
Appears in 1 contract
Non Competition Non Interference. (a) In consideration --------------------------------- For a period of 36 months after the purchase of Closing, the Shares by Purchaser, Seller Parent shall not, and shall cause each of its Affiliates not to not:
(i) for directly or indirectly, own, manage, operate, control, be employed by or participate in the period from ownership, management, operation or control of, or be connected in any manner with, any business of the type and character, or otherwise compete, with the Business, as conducted by the Company and the Subsidiaries as of the Closing Date until ("COMPETITIVE ACTIVITIES"); (ii) persuade or attempt to persuade any potential customer or client to which the fifth (5th) anniversary Company or any of the Closing DateSubsidiaries has made a presentation, or with which the Company or any of the Subsidiaries has had discussions, not to hire the Company or such Subsidiary, or to hire another company; or (iii) solicit for the benefit of or fulfillment by Seller Parent or any Person other than the Company or any of the Subsidiaries the business of the type and character engaged in or competitive with that conducted by the Company on the Closing Date, of any Person with respect to the Competitive Activities which is a customer or client of the CompanyCompany or any of the Subsidiaries, or was its customer or client, at any time client within the two (2) years prior to the Closing Date date of this Agreement or take any action to disparage the Company or any of the Subsidiaries or otherwise seek to interfere with the contractual arrangements and relationships of the Company and the Subsidiaries with such Person with respect to the Competitive Activities. Competitive Activities shall not, and shall not be deemed to, include any activities currently engaged in by the Seller Parent or any Affiliates of the Seller Parent (eachother than the Seller, a the Company and the Subsidiaries) in the ordinary course of their respective businesses (collectively, "Company CustomerPERMITTED GOODS AND SERVICES"), and the Seller or attempt any Affiliate of the Seller may sell any Permitted Goods and Services to hurt, hinder, diminish ---------------- or interfere with the relationship between the Company and any such Company Customer (including making any negative or disparaging statements or communications about the Company)Person notwithstanding anything contained in this Agreement.
(iib) for Notwithstanding anything to the period from the Closing Date until the fourth (4thcontrary in Section 5.15(a), Section 5.15(a) anniversary of the Closing Date, within the United States of America or any state, region or territory thereof, conduct, directly or indirectly, any business of the type and character engaged in or competitive with that conducted by the Company on the Closing Date, other than the business of such type that Logility, Inc., currently conducts with certain existing customers or clients of Logility, Inc., but including any services involving the management of software applications (other than Seller Software); provided, however, that: -------- -------
(A) if the business of any Person (other than any Company Customer) involves Seller Software licensed to or otherwise used by such Personshall not be, and such Person requests any Seller Entity shall not be deemed to provide to it Application Service Provider Services related to such Seller Software which would otherwise cause Seller to violate have been, breached as a result of: (i) the provisions acquisition of this Section 5.3(a)(ii), a Seller Entity may provide such Application Service Provider Services to such Person if:
(1) Seller shall have given the Company the opportunity to provide the same services to such Person as follows: Seller shall, within three (3) Business Days or such shorter period as is consistent with the urgency of the request, have (w) given written notice to the Company of each request made to the Seller or any of its Affiliates to provide Application Service Provider Services to such Personby a Person that engages in Competitive Activities, (x) given notice to so long as the Competitive Activities do not represent more than 10% of the revenues of such Person that such services are provided and its Affiliates; (ii) the acquisition by the written Company, (y) recommended to such Person that it utilize the services of the Company and not the services of Seller or any of its Affiliates, and (z) used its commercially reasonable efforts to provide the Company with an opportunity to make a presentation to such Person for the provision of such services to it; and
(2) within thirty (30) days from the date of receipt by the Company of the written notice referred to in clause (A)(1)(w) above, such Person has notified Seller that, despite Seller's notification and recommendation referred to in clause (A)(1) above, it requires that a specific Seller Entity perform such Application Service Provider Services in preference to the Company, or the Company has notified Seller in writing that it does not wish to provide such services to such Person; or
(B) if the business of any Person (other than any Company Customer) involves Seller Software licensed to or otherwise used by such Person, and such Person requests any Seller Entity to provide to it Application Service Provider Services related to such Seller Software which would otherwise cause Seller to violate the provisions of this Section 5.3(a)(ii), a Seller Entity may provide such Application Service Provider Services to such Person if such Person pays less than $5,000 per month for such Application Service Provider Services; provided, however, that such Seller Entity shall first have used its -------- ------- commercially reasonable efforts to cause the provision of such Application Service Provider Services to be subcontracted to the Company, unless the Company shall have notified such Seller Entity, within five (5) Business Days of receipt by the Company of written notice by such Seller Entity to subcontract such services to the Company (including the terms and conditions applicable thereto), that it does not wish to provide such services;
(C) if, at any time prior to the fourth (4/th/) anniversary of the Closing Date, the Company fails to provide the Services (as defined in that certain Equipment Rental and Services Agreement between Sprint Spectrum L.P. and the Company, dated June 21, 1999 (the "Company/Sprint Agreement"), excluding the ------------------------ deliveries of the software and hardware pursuant thereto), or such other services to be provided under a replacement agreement for the Company/Sprint Agreement, substantially in the form set forth in Exhibit L, and Sprint Spectrum --------- L.P. has not frustrated the Company's performance and is in material compliance with its obligations thereunder, then, if the Company shall not cure such failure within ten (10) Business Days following receipt by it of written notice thereof, Seller shall be entitled to provide such services to Sprint Spectrum L.P. or to enter into an agreement with a third party to provide such services to Sprint Spectrum L.P; or
(D) Seller shall be entitled to lease or sublease its data processing facilities located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ or any part thereof to any Person (other than any Company Customer) and provide to any such lessee or sublessee access to such facility, in each case, on terms consistent with a customary landlord/tenant relationship, provided that no part -------- of the rent or other consideration received by or on behalf of Seller or any of its Affiliates from such lessee or sublessee shall be tied to, or determined by reference to, the revenues or profits of any Person whose business includes Competitive Activities, so long as the Competitive Activities do not represent a material part of the business of such lessee Person; (iii) the ownership by Seller or sublesseeany of its Affiliates of an aggregate of not more than 5% of any class of stock of a Person engaged, directly or indirectly, in Competitive Activities; provided, -------- however, that if such stock is listed on a national securities exchange or is quoted on the business National Market System of NASDAQ or (iv) the ownership by Seller or any of its Affiliates of less than 10% in value of any such lessee or sublessee is not instrument of a type ------- or character competitive with that conducted by the Company on the Closing Date, Seller shall be entitled to tie or determine such rent or other consideration received from such lessee or sublessee to, or by reference to, the revenues or profits of any such lessee or sublessee.
(b) Notwithstanding Section 5.3(a)(ii), Seller may, and may permit its Affiliates to, engage in activities which violate Section 5.3(a)(ii) of this Agreement if, it does so solely in connection with, or as a result of, the acquisition of all of the capital stock or other equity interests Indebtedness of a Person which is not an individual Person (the "Acquired Entity") and which is --------------- primarily engaged engaged, directly or indirectly, in (i) a business other than the business engaged in by the Company on the Closing Date or (ii) a business competitive with the business engaged in by the Company on the Closing Date, if (A) the activities of the Acquired Entity are incidental to the primary business of the Acquired Entity and do not result in net revenues in excess of forty percent (40%) of the net revenues of the Acquired Entity, and (B) Seller and its Affiliates continue to comply with this Section 5.3 (except that Seller and its Affiliates shall not be required to comply with Section 5.3(a)(ii) with respect to any Person who is a customer of the Acquired Entity on the date on which the Acquired Entity is acquired)Competitive Activities.
(c) It is the desire and intent of the parties to this Agreement that the provisions For purposes of this Section 5.3 shall be enforced to 5.15, the fullest extent permissible under the Laws and public policies applied in each jurisdiction in which enforcement is sought. If any particular provisions or portion of this Section 5.3 shall be adjudicated to be invalid or unenforceable, this Section term "Affiliates" shall be deemed amended to delete therefrom such provision or portion adjudicated to be invalid or unenforceable, such amendment to apply only with respect to the operation of such Section in the particular jurisdiction in which such adjudication is made.
(d) The parties recognize that the performance not include any director of the obligations under this Section 5.3 by Seller is special, unique and extraordinary in character, and that in the event (including a non-executive Chairman of the breach by Seller Board) who is not an employee of the terms and conditions of this Section 5.3 to be performed by Seller, Purchaser and the Company shall be entitled, if it so elects, to seek damages for any breach of this Section 5.3, and/or to enforce the specific performance thereof by Seller or to enjoin Seller from performing services for any Personnot under the control of the Seller.
Appears in 1 contract