Common use of Noncompete and Nonsolicitation Clause in Contracts

Noncompete and Nonsolicitation. As an inducement to Buyer to enter into this Agreement and consummate the transactions contemplated hereby, Seller agrees as follows: (a) In consideration of the Purchase Price, during the period from the Closing Date to and including the fifth (5th) anniversary of the Closing Date (the "Noncompete Period"), Seller shall not engage, nor have any affiliation (as ----------------- defined below) with any Person which engages in the business of providing, offer for sale, or solicit sales for, or offer or provide, any products or services currently provided and/or sold by the Companies or any of them, in the conduct of the Business, or any products or services which the Companies or any of them currently have plans to sell or provide in the conduct of the Business, including without limitation, the providing of crane and other lifting equipment, earth moving equipment and/or small tools anywhere for the first thirty (30) months after the Closing Date in the states of Texas, Louisiana and Oklahoma and for the second thirty (30) months after the Closing Date within 300 miles of Houston, Texas (a "Similar ------- Business"); provided that nothing contained herein shall be construed to -------- prohibit Seller from purchasing (i) up to an aggregate of two percent (2%) of any class of the outstanding voting securities of any Person whose securities are listed on a national securities exchange or traded in the NASDAQ National Market System (a "Public Company") (including, for purposes of calculating the -------------- percentage of such securities which may be purchased by Seller, the securities of such Public Company then owned by all Affiliates of Seller to the extent such Persons are acting in concert or other constitute a "group" for purposes of Section 13(d)(iii) of the Securities Exchange Act of 1934), if none of the Companies nor their Affiliates has an active role in the management of such Public Company. For purposes of this Section 14, the term "affiliation" shall mean any direct or indirect interest in a Person whether as an officer, director or employee, investor, partner, stockholder, sole proprietor, trustee, consultant, agent, representative, broker, promoter or otherwise; and (b) During the Noncompete Period, Seller and each of them shall not, and shall not permit any of their Affiliates to, call on, service or solicit any customer, supplier, lessee or other business relation of the Companies or any of them on behalf of a Similar Business or in any way interfere with the relationship between such customer, supplier, lessee or business relation of the Companies or any of them, or interfere with or attempt to interfere with any officers, employees, representatives or agents, direct or indirect, of Buyer or its Affiliates relating to the Acquired Assets or relating to a Similar Business affiliated with Buyer or induce or attempt to induce any of them to leave the employ of Buyer or of any Affiliate of Buyer or violate the terms of their contracts with any of them or hire any of the employees of the Companies which are hired by Buyer or any of its Affiliates. (c) Notwithstanding anything in this Section 14 to the contrary, if at any time, in any judicial proceeding, any of the restrictions stated in this Section 14 are found by a final order of a court of competent jurisdiction to be unreasonable or otherwise unenforceable under circumstances then existing, Seller agrees that the period, scope or geographic area, as the case may be, shall be reduced to the extent necessary to enable the court to enforce the restrictions to the extent such provisions are allowable under law, giving effect to the agreement and intent of the parties that the restrictions contained herein shall be effective to the fullest extent permissible. Seller acknowledges and agrees that money damages may not be an adequate remedy for any breach or threatened breach of the provisions of this Section 14, and that, in such event, Buyer or its successors or assigns may, in addition to any other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance, injunctive and/or other relief. In order to enforce or prevent any violations of the provisions of this Section 14 (including the extension of the Non-Compete Period applicable to Seller by a period equal to the length of court proceedings necessary to stop such violation); provided that Seller is found to have been in violation of the provisions of this Section 14. Any injunction shall be available without the posting of any bond or other security. In the event of an alleged breach or violation by Seller of any of the provisions of this Section 14, the Non-Compete Period will be tolled until such alleged breach or violation is resolved; provided that if Seller is found to have not violated the provisions of this Section 14, then the Non-Compete Period will not be deemed to have been tolled with respect to Seller. Seller agrees that the restrictions contained in this Section 14 are reasonable in all respects.

Noncompete and Nonsolicitation. (a) As an inducement to Buyer the Purchaser to enter into this Agreement and consummate the transactions contemplated hereby, Seller each of the Sellers, each of the Current Owners and each of Xxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx (each, individually, a "Noncompete Party" and, collectively, the "Noncompete Parties") ---------------- ------------------ hereto agrees as follows: (ai) In Each of Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx acknowledges and agrees (A) that he will be a direct and/or indirect beneficiary of the payment of the Purchase Price to be paid to the Sellers hereunder as the direct and/or indirect beneficiary of certain of the Current Owners and/or the holder of Phantom Stock under the Phantom Stock Plan and (B) that in the course of his several years of management of and employment with the Sellers that he has become familiar with the trade secrets and other confidential information of the Sellers and that his services have been special, unique and of extraordinary value to the Sellers. Therefore, in further consideration of the payment of the Purchase PricePrice to the Sellers hereunder, during the period from the Closing Date to and including the fifth (5th) anniversary of the Closing Date (the "Noncompete Period"), Seller the Noncompete Parties shall not engage, nor have any ----------------- affiliation (as ----------------- defined below) with any Person Person, anywhere in the world which engages in the business of providing, offer for sale, or solicit sales for, or offer or provide, any products or services currently provided and/or sold by the Companies or any of them, in the conduct of the Business, or any products or services which the Companies or any of them currently have plans to sell or provide in the conduct of the Business, including without limitation, the providing of crane and other lifting equipment, earth moving equipment and/or small tools anywhere for the first thirty (30) months after the Closing Date in the states of Texas, Louisiana and Oklahoma and for the second thirty (30) months after the Closing Date within 300 miles of Houston, Texas Businesses (a "Similar ------- BusinessCompetitive Entity"); provided that nothing ------------------ -------- contained herein shall be construed to -------- prohibit Seller any Noncompete Party from purchasing (i) up to an aggregate of two percent (2%) % of any class of the outstanding voting securities of any Person whose securities are listed on a national securities exchange or traded in the NASDAQ National Market System national market system (a "Public Company") (including, for purposes of calculating the -------------- percentage of -------------- such securities which may be purchased by Sellerany Seller or Applicable Current Owner, the securities of such Public Company then owned by all Affiliates of Seller such Noncompete Party to the extent such Persons are acting in concert or other otherwise constitute a "group" for purposes of Section 13(d)(iii13(d)(3) of the Securities Exchange Act of 1934Act), if none of the Companies nor their Affiliates has Noncompete Party does not have an active role in the management of such Public Company, (it being understood that the exercise of voting rights with respect to any such voting securities, in and of itself, shall not constitute such a role). For purposes of this Section 148.03, the term "affiliation" shall mean any direct or indirect ------------ ----------- interest in or involvement with a Person Person, whether as an officer, director or director, employee, investor, partner, stockholder, sole proprietor, trustee, consultant, agent, representative, broker, promoter or otherwise; and (bii) During during the Noncompete Period, Seller and each of them Noncompete Party shall not, and shall not permit any of their its or his Affiliates toto (i) induce or attempt to induce any employee of the Purchaser or any of its Affiliates to leave the employ of the Purchaser or such Affiliate, (ii) hire directly or through an Affiliate any person who is or was an employee of the Purchaser or any of its Affiliates within the six-month period prior to the date of hire, other than persons who were involuntarily terminated by the Purchaser or its Affiliates, or (iii) call on, service or solicit any customer, supplier, lessee or other business relation of the Companies Purchaser or any of them its Affiliates on behalf of a Similar Business Competitive Entity or in any way interfere with the relationship between any such customer, supplier, lessee or business relation of the Companies Purchaser or any of them, or interfere with or attempt to interfere with any officers, employees, representatives or agents, direct or indirect, of Buyer or its Affiliates relating to the Acquired Assets or relating to a Similar Business affiliated with Buyer or induce or attempt to induce any of them to leave the employ of Buyer or of any Affiliate of Buyer or violate the terms of their contracts with any of them or hire any of the employees of the Companies which are hired by Buyer or any of its Affiliates. (cb) Notwithstanding anything in this Section 14 8.03 to the contrary, if ------------ at any time, in any judicial proceeding, any of the restrictions stated in this Section 14 8.03 are found by a final order of a court of competent jurisdiction to ------------ be unreasonable or otherwise unenforceable under circumstances then existing, Seller each of the Noncompete Parties agrees that the period, scope or geographic geographical area, as the case may be, shall be reduced to the extent necessary to enable the court to enforce the restrictions to the extent such provisions are allowable under law, giving effect to the agreement and intent of the parties Parties that the restrictions contained herein shall be effective to the fullest extent permissible. Seller Each of the Noncompete Parties acknowledges and agrees that money damages may not be an adequate remedy for any breach or threatened breach of the provisions of this Section 14, 8.03 and that, in such event, Buyer the Purchaser or its ------------ successors or assigns may, in addition to any other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance, injunctive and/or other relief. In relief in order to enforce or prevent any violations of the provisions of this Section 14 8.03 (including the extension of ------------ the Non-Compete Noncompete Period applicable to Seller such Noncompete Party by a period equal to the length of court proceedings necessary to stop such violation); provided that Seller such Noncompete Party is found to have been in -------- violation of the provisions of this Section 148.03. Any injunction shall be ------------ available without the posting of any bond or other security. In the event of an alleged breach or violation by Seller any Noncompete Party of any of the provisions of this Section 148.03, the Non-Compete Noncompete Period will be tolled for it or him until such ------------ alleged breach or violation is resolved; provided that if Seller it or he is found to -------- have not violated the provisions of this Section 148.03, then the Non-Compete Noncompete ------------ Period will not be deemed to have been tolled with respect to Sellertolled. Seller Each of the Noncompete Parties agrees that the restrictions contained in this Section 14 8.03 are reasonable in all ------------ respects. (c) Each of Xxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx hereby acknowledge and agree that, as a result of the consummation of the transactions contemplated herein, he will receive significant financial benefits as an indirect beneficiary of certain of the Current Owners and as a holder of Phantom Stock under the Phantom Stock Plan.

Noncompete and Nonsolicitation. As an inducement to Buyer the ------------------------------ Purchasers to enter into this Agreement and consummate the transactions contemplated hereby, Seller each of the Current Owners agrees as follows: (a) In the Current Owners acknowledge and agree that they will be the direct and/or indirect beneficiaries of the Distribution Amount to be paid to the Current Owners hereunder and that in the course of their several years of management of and employment with the Company that they have become familiar with the trade secrets and other confidential information of the Company and its Subsidiaries and that their services have been special, unique and extraordinary value to the Company and its Subsidiaries. Therefore, in further consideration of the Purchase PriceDistribution Amount, during the period from the Closing Date to and including the fifth (5th) anniversary of the Closing Date (the "Noncompete Period"), Seller ----------------- the Current Owners shall not engage, nor have any affiliation (as ----------------- defined below) with any Person Person, anywhere in the world which engages in the business of providing, offer for sale, or solicit sales for, or offer or provide, any products or services currently provided and/or sold by the Companies or any of them, in the conduct of the Business, or any products or services which the Companies or any of them currently have plans to sell or provide in the conduct of the Business, including without limitation, the providing of crane and other lifting equipment, earth moving equipment and/or small tools anywhere for the first thirty (30) months after the Closing Date in the states of Texas, Louisiana and Oklahoma and for the second thirty (30) months after the Closing Date within 300 miles of Houston, Texas rentals (a "Similar ------- BusinessCompetitive Entity"); provided that ------------------ -------- nothing contained herein shall be construed to -------- prohibit Seller any Current Owner from purchasing (i) securities of the Company or (ii) up to an aggregate of two percent (2%) % of any class of the outstanding voting securities of any Person whose securities are listed on a national securities exchange or traded in the NASDAQ National Market System national market system (a "Public Company") (including, for purposes of calculating the -------------- percentage of such securities which may be purchased by Sellerany Current Owner, the securities of such Public Company then owned by all Affiliates of Seller such Current Owner to the extent such Persons are acting in concert or other otherwise constitute a "group" for purposes of Section 13(d)(iii13(d)(3) of the Securities Exchange Act of 1934), if none of the Companies nor their Affiliates has Current Owner does not have an active role in the management of such Public Company, (it being understood that the exercise of voting rights with respect to any such voting securities, in and of itself, shall not constitute such a role). For purposes of this Section 148.03, the term "affiliation" shall mean any direct or indirect interest in a Person Person, whether as ------------ an officer, director or director, employee, investor, partner, stockholder, sole proprietor, trustee, consultant, agent, representative, broker, promoter or otherwise; and (b) During the Noncompete Period, Seller and each of them shall not, and shall not permit any of their Affiliates to, call on, service or solicit any customer, supplier, lessee or other business relation of the Companies or any of them on behalf of a Similar Business or in any way interfere with the relationship between such customer, supplier, lessee or business relation of the Companies or any of them, or interfere with or attempt to interfere with any officers, employees, representatives or agents, direct or indirect, of Buyer or its Affiliates relating to the Acquired Assets or relating to a Similar Business affiliated with Buyer or induce or attempt to induce any of them to leave the employ of Buyer or of any Affiliate of Buyer or violate the terms of their contracts with any of them or hire any of the employees of the Companies which are hired by Buyer or any of its Affiliates. (c) Notwithstanding anything in this Section 14 to the contrary, if at any time, in any judicial proceeding, any of the restrictions stated in this Section 14 are found by a final order of a court of competent jurisdiction to be unreasonable or otherwise unenforceable under circumstances then existing, Seller agrees that the period, scope or geographic area, as the case may be, shall be reduced to the extent necessary to enable the court to enforce the restrictions to the extent such provisions are allowable under law, giving effect to the agreement and intent of the parties that the restrictions contained herein shall be effective to the fullest extent permissible. Seller acknowledges and agrees that money damages may not be an adequate remedy for any breach or threatened breach of the provisions of this Section 14, and that, in such event, Buyer or its successors or assigns may, in addition to any other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance, injunctive and/or other relief. In order to enforce or prevent any violations of the provisions of this Section 14 (including the extension of the Non-Compete Period applicable to Seller by a period equal to the length of court proceedings necessary to stop such violation); provided that Seller is found to have been in violation of the provisions of this Section 14. Any injunction shall be available without the posting of any bond or other security. In the event of an alleged breach or violation by Seller of any of the provisions of this Section 14, the Non-Compete Period will be tolled until such alleged breach or violation is resolved; provided that if Seller is found to have not violated the provisions of this Section 14, then the Non-Compete Period will not be deemed to have been tolled with respect to Seller. Seller agrees that the restrictions contained in this Section 14 are reasonable in all respects.