Beste,
Graag had ik even gepolst naar de geldigheid van de volgende 2 concurrentiebedingen.
Bovendien zouden deze tegelijkertijd moeten gelden ...
1:
10.1 Each of the Sellers undertakes that he will not, directly or indirectly – be it through an Affiliated company, Related Persons, or any other person:
(a) carry on, fulfil an executive mandate in, invest, participate or have or acquire any interest in any business which is similar to the Targets’ business exercised by the Targets on Closing Date, except for a participation of less than 5% (five percent) in listed companies. This does not preclude the Sellers’ respective management companies to enter into the Management Agreements or Consultancy Agreements with xxx as set out in this Agreement;
(b) solicit or encourage any client, (sub)contractor, customer, supplier, banker or any undertaking with which a Target has a contract or relationship, to terminate the business relationship or to modify the terms and conditions in a way which is detrimental for any of the Targets;
(c) provide services to or be employed by (past or current) competitors, clients or suppliers of the Targets; or
(d) solicit, induce or recruit any employee, consultant or representative of a Target.
10.2 The undertakings set out in Clause 10.1 (a) and (c) are effective as from the Closing Date and will expire 1 (one) year after the Closing Date, whilst the undertakings set out in Clause 10.1 (b) and (d) are effective as from the Closing Date and will expire 3 (three) years after the Closing Date.
10.3 The undertakings set out in Clause 10.1 are geographically limited to Europe, Russia, Middle East (which includes Oman, UAE, Saudi Arabia, Qatar, Kuwait, Iraq, Iran and Egypt). For the purposes of this Clause 10, Targets’ business is to be understood as designing and developing software applications for fiscal metering installations, as well as designing, procuring, assembling, testing and commissioning of industrial automation packages and analysis equipment and related activities.
10.4 If the Purchaser becomes aware of any infringement of the provisions of this Clause 10 by any of the Sellers , it shall give a notice to the relevant Party urging it to cease any such infringement within 1 (one) week, unless the Purchaser can establish that the infringement has been continuing for more than 1 (one) month in which case this remedy period will not be applicable. In case of failure to comply with this injunction, the infringing Party will be liable to pay to the Purchaser (x) an amount of EUR 100,000 (one hundred thousand euros) to be paid for each violation committed by such Seller(s) and (y) additionally, an amount of EUR 10,000 (ten thousand euros) for each day the violation by such Seller(s) continues since the infringement notice, without the necessity to prove the actual damages or to have any judicial title and without prejudice to the Purchaser’s right to claim compensation for damages which exceed the amounts mentioned in this Clause 10.4 or to take any other legal action.
10.5 The Parties acknowledge that the provisions of this Clause 10 are reasonable and necessary to protect the legitimate interests of the Targets and the Purchaser. However, if any of the provisions of this Clause 10 would ever be held to exceed the limitations in duration, geographical area or scope or other limitations imposed by applicable Law or not be enforceable for any other reason, they shall not be nullified but the Parties will be deemed to have agreed to such provisions as conform with the maximum permitted by applicable Law, and any provision of this Clause 10 exceeding such limitations shall be automatically amended accordingly.
10.6 Any payments due pursuant to this Clause shall be reduced by any amount paid by a Seller for that particular infringement under the non-compete undertakings provided in the respective Management Agreements, Consultancy Agreements or the Shareholders’ Agreement, if applicable.
2:
14. NON-COMPETITION AND NON-SOLICITATION
14.1 The Consultant undertakes that it will not, directly or indirectly - either on its own account or jointly with or on behalf of any person or entity, other than the Company or a Group Company:
(a) carry on, fulfil an executive mandate in, invest, participate or have or acquire any interest in any business which is similar to the business of the Company, a Group Company or any of their (direct or indirect) shareholders, except for a participation of less than 5% (five percent) in listed companies;
(b) solicit or encourage any client, (sub)contractor, customer, supplier, banker or any undertaking with which the Company, a Group Company or any of their (direct or indirect) shareholders, has a contract or relationship, to terminate the business relationship or otherwise interfere with, disturb, or modify the terms and conditions of the relationship existing between the Company, a Group Company or any of their (direct or indirect) shareholders and any of its clients, (sub) contractors, customers, suppliers, bankers or any undertaking;
(c) solicit, induce or recruit any person employed by the Company or a Group Company in whatever capacity (be it as consultant, employee, self-employed or representative) to leave their employment, or take away such workers, or attempt to solicit, induce, recruit, encourage or take away workers of the Company or a Group Company, either for itself or for any other person or entity;
(d) provide services to or to be employed by (past or current) competitors, clients or suppliers of the Company.
14.2 The undertakings set out in Clause 14.1 are effective during the term of this Agreement and for a period of 6 (six) months following the End Date, unless otherwise agreed upon by the Parties in writing. The undertakings set out in Clause 14.1 are geographically limited to Belgium.
14.3 If the Company becomes aware of any infringement of the provisions of this Clause 14 by the Consultant, the Company shall give a notice to the Consultant urging it to cease any such infringement within 1 (one) week, unless the Company can establish that the infringement has been continuing for more than 1 (one) month in which case this remedy period will not be applicable. In case of failure to comply with this injunction, the Consultant will be liable to pay to the Company or any of the Group Companies (x) an amount of EUR 100,000 (one hundred thousand euro) to be paid for each violation committed by the Consultant and (y) additionally, an amount of EUR 10,000 (ten thousand euro) for each day the violation by the Consultant continues since the infringement notice, without the necessity to prove the actual damages or to have any judicial title and without prejudice to the Company’s right to claim compensation for damages which exceed the amounts mentioned in this Clause 14.3 or to take any other legal action.
14.4 The Parties acknowledge that the provisions of this Clause 14 are reasonable and necessary to protect the legitimate interests of the Company and its shareholders. However, if any of the provisions of this Clause 14 would ever be held to exceed the limitations in duration, geographical area or scope or other limitations imposed by applicable Law, they shall not be nullified but the Parties will be deemed to have agreed to such provisions as conform with the maximum permitted by applicable Law, and any provision of this Clause 14 exceeding such limitations shall be automatically amended accordingly.