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NON-COMPETITION AND NON-SOLICITATION AGREEMENT

Dated as of October 24, 2023

By and among

GERALD T. BRENNAN

SANDRA L. BRENNAN

DEREK J. KOPP

(each, a "Restricted Party" and collectively, the "Restricted Parties")

in favor of

NEXFORD INDUSTRIAL HOLDINGS INC.

a Delaware corporation

("Buyer")

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This NON-COMPETITION AND NON-SOLICITATION AGREEMENT (this "Agreement") is made and entered into as of October 24, 2023 (the "Effective Date"), by and among Gerald T. Brennan, an individual residing in the State of Indiana ("G. Brennan"), Sandra L. Brennan, an individual residing in the State of Indiana ("S. Brennan"), and Derek J. Kopp, an individual residing in the State of Indiana ("Kopp," and together with G. Brennan and S. Brennan, each a "Restricted Party" and collectively, the "Restricted Parties"), in favor of Nexford Industrial Holdings Inc., a Delaware corporation ("Buyer").

RECITALS

WHEREAS:

A. Buyer, Pinnacle Metal Fabricators LLC, an Indiana limited liability company (the "Seller" or the "Company"), and Gerald T. Brennan, Sandra L. Brennan, and Derek J. Kopp, as the members of the Company (collectively, the "Members" or "Restricted Parties"), are parties to that certain Asset Purchase Agreement, dated as of September 5, 2023 (as it may be amended, restated, supplemented, or otherwise modified from time to time, the "Purchase Agreement"), pursuant to which Buyer is acquiring substantially all of the assets of the Company constituting the business of the Company (as so acquired, the "Acquired Business") for aggregate consideration of Thirty Million Dollars ($30,000,000) (the "Purchase Price"), subject to the terms, conditions, and adjustments set forth in the Purchase Agreement;

B. Gerald T. Brennan holds a sixty-five percent (65%) membership interest in the Company and serves as the Managing Member of the Company; Sandra L. Brennan holds a twenty percent (20%) membership interest in the Company; and Derek J. Kopp holds a fifteen percent (15%) membership interest in the Company and serves as Vice President of Operations of the Company. Each Restricted Party is receiving substantial consideration in connection with the transactions contemplated by the Purchase Agreement, including his or her respective pro rata share of the Twenty-Four Million Dollar ($24,000,000) closing cash payment (less the escrow holdback amount) and the opportunity to receive up to Six Million Dollars ($6,000,000) in earnout payments, all as more particularly described in the Purchase Agreement;

C. The Restricted Parties possess extensive and intimate knowledge of the Acquired Business, including its customers, suppliers, pricing, operations, trade secrets, and confidential business information. The Acquired Business involves custom metal fabrication—specifically, the design, engineering, fabrication, and installation of structural steel, aluminum, and stainless-steel components for commercial construction, infrastructure, and industrial original equipment manufacturer ("OEM") customers—and is headquartered at 1127 Industrial Parkway, Hammond, Indiana 46320. The restrictive covenants contained in this Agreement are essential to protect the goodwill of the Acquired Business being purchased by Buyer and are a material inducement for Buyer to enter into the Purchase Agreement and to consummate the transactions contemplated thereby. Buyer would not have entered into the Purchase Agreement or agreed to pay the Purchase Price absent the execution and delivery of this Agreement by each of the Restricted Parties;

D. The execution and delivery of this Agreement by each Restricted Party is a condition precedent to Buyer's obligation to consummate the closing under Section 8.2(g) of the Purchase Agreement, and each Restricted Party desires to execute and deliver this Agreement in order to facilitate the consummation of the transactions contemplated by the Purchase Agreement and to receive the substantial benefits arising therefrom;

E. Gerald T. Brennan is simultaneously entering into a Transition Services Agreement with Buyer dated as of the date hereof (the "TSA"), pursuant to which G. Brennan will provide certain transition services to Buyer following the Closing Date. Derek J. Kopp is simultaneously entering into an Employment Agreement with Buyer dated as of the date hereof (the "Kopp Employment Agreement"), pursuant to which Kopp will serve as Vice President of Operations of the Acquired Business following the Closing Date. The restrictive covenants contained in this Agreement are in addition to, and not in lieu of, any restrictive covenants contained in the TSA or the Kopp Employment Agreement, as applicable.

NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and agreements set forth herein, the consummation of the transactions contemplated by the Purchase Agreement, the substantial consideration being paid and delivered to each Restricted Party in connection therewith, and for other good and valuable consideration, the receipt, sufficiency, and adequacy of which are hereby acknowledged by each Restricted Party, the parties agree as follows:

ARTICLE I — DEFINITIONS

Section 1.1 — Defined Terms

As used in this Agreement, the following terms shall have the meanings set forth below:

"Acquired Business" means the business of custom metal fabrication (including the design, engineering, fabrication, and installation of structural steel, aluminum, and stainless-steel components for commercial construction, infrastructure, and industrial OEM customers) as conducted by the Company as of the Closing Date, including all assets, properties, rights, contracts, permits, and goodwill acquired by Buyer pursuant to the Purchase Agreement, and all operations, activities, and services conducted in connection therewith, as such business may be continued, modified, expanded, or supplemented by Buyer or its affiliates following the Closing Date.

"Business Employee" means any individual who (a) was employed by, or provided services (whether as an employee, independent contractor, consultant, or otherwise) to, the Company or the Acquired Business at any time during the twelve (12)-month period immediately preceding the Closing Date, or (b) is employed by, or providing services to, Buyer or its affiliates in connection with the Acquired Business at any time during the applicable Restricted Period. As of the Closing Date, the Acquired Business employs approximately seventy-four (74) full-time employees, consisting of approximately forty-two (42) shop floor production personnel, eighteen (18) field installation personnel, and fourteen (14) office, administrative, and management personnel.

"Business Relationship" means any customer, client, prospective customer, supplier, vendor, subcontractor, distributor, or other business relationship of the Acquired Business with whom the Company or the Acquired Business has conducted business, has been in active negotiations, or has maintained an ongoing commercial relationship at any time during the twenty-four (24)-month period immediately preceding the Closing Date or at any time during the applicable Restricted Period, including, without limitation, Ironclad Bridge & Infrastructure Co. and Calumet Steel Distributors Inc.

"Closing Date" means October 24, 2023, the date on which the closing of the transactions contemplated by the Purchase Agreement occurs.

"Competing Business" means any business, enterprise, venture, or activity (whether conducted by a corporation, limited liability company, partnership, sole proprietorship, joint venture, or other entity or person) that engages in, or is preparing or planning to engage in, custom metal fabrication, structural steel fabrication, aluminum fabrication, stainless-steel fabrication, or related metal component manufacturing, engineering, design, or installation for commercial construction, infrastructure, or industrial OEM end-markets, in each case that is competitive with the Acquired Business as conducted on the Closing Date or as conducted by Buyer or its affiliates at any time during the applicable Restricted Period.

"Confidential Information" means all non-public, proprietary, or confidential information relating to the Acquired Business, whether in written, oral, electronic, visual, or other form, that was known to, developed by, or in the possession of any Restricted Party at any time prior to or following the Closing Date, including, without limitation: (a) customer lists, customer preferences, customer contact information, and customer purchasing histories; (b) pricing data, pricing models, bid proposals, and cost structures; (c) fabrication processes, production methods, welding procedures, quality control protocols, and equipment specifications; (d) supplier terms, vendor agreements, and raw material sourcing arrangements; (e) backlog information (the Company's customer backlog as of the date of the Purchase Agreement being approximately Seven Million Two Hundred Thousand Dollars ($7,200,000)); (f) employee compensation data, benefits information, and organizational structures; (g) strategic plans, business plans, marketing plans, and financial projections; (h) trade secrets as defined under applicable law; (i) engineering drawings, shop drawings, design specifications, and technical data; and (j) any other information that derives economic value from not being generally known to the public or to competitors of the Acquired Business. Notwithstanding the foregoing, "Confidential Information" shall not include information that: (i) is or becomes generally available to the public other than as a result of a disclosure by a Restricted Party in violation of this Agreement; (ii) was available to the Restricted Party on a non-confidential basis from a source other than the Company or Buyer, provided that such source is not, to the knowledge of the Restricted Party, bound by a confidentiality obligation with respect to such information; (iii) was independently developed by the Restricted Party without the use of, or reference to, any Confidential Information; or (iv) is required to be disclosed by applicable law, regulation, or legal process, subject to the requirements of Section 2.4(b)(i).

"Kopp Employment Agreement" means the Employment Agreement dated as of October 24, 2023, by and between Buyer and Derek J. Kopp.

"Purchase Agreement" means the Asset Purchase Agreement dated as of September 5, 2023, by and among Buyer, the Company, and the Members, as it may be amended, restated, supplemented, or otherwise modified from time to time.

"Restricted Period" means (a) with respect to Gerald T. Brennan, the Brennan Restricted Period (as defined in Section 2.1(a)); (b) with respect to Sandra L. Brennan, the Sandra Brennan Restricted Period (as defined in Section 2.2(b)); and (c) with respect to Derek J. Kopp, the Kopp Restricted Period (as defined in Section 2.1(c)), in each case as the same may be extended pursuant to Section 4.3.

"Restricted Territory" means the geographic area described in Section 2.1(b).

"TSA" means the Transition Services Agreement dated as of October 24, 2023, by and between Buyer and Gerald T. Brennan, pursuant to which Gerald T. Brennan will provide certain transition services to Buyer following the Closing Date.

Section 1.2 — Purchase Agreement Definitions

Capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to such terms in the Purchase Agreement. To the extent that any term defined herein is also defined in the Purchase Agreement, the definition set forth in this Agreement shall control for purposes of this Agreement.

Section 1.3 — Interpretation

Unless the context otherwise requires: (a) references to "Articles," "Sections," and "Exhibits" refer to Articles, Sections, and Exhibits of this Agreement; (b) references to any agreement, instrument, or document include all exhibits, schedules, annexes, and attachments thereto; (c) the headings and captions in this Agreement are for convenience of reference only and shall not control or affect the meaning or construction of any provision hereof; (d) the words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation"; (e) the use of the singular shall include the plural, and vice versa; (f) all references to gender shall include all genders; (g) the words "herein," "hereof," "hereunder," "hereby," and other words of similar import refer to this Agreement as a whole and not to any particular provision; (h) "or" is not exclusive; (i) references to any statute or regulation refer to that statute or regulation as amended, supplemented, or restated from time to time, and to all rules, regulations, and guidance promulgated thereunder; and (j) references to "dollars" or "$" mean the lawful currency of the United States of America.

ARTICLE II — RESTRICTIVE COVENANTS

Section 2.1 — Non-Competition Covenant

(a) Gerald T. Brennan Non-Competition. Gerald T. Brennan agrees that during the period commencing on the Closing Date (October 24, 2023) and ending on the third (3rd) anniversary of the Closing Date (October 24, 2026) (the "Brennan Restricted Period"), he shall not, directly or indirectly, whether as an owner, partner, member, shareholder (other than as a passive holder of not more than two percent (2%) of the outstanding equity interests of any class of securities of a corporation or other entity that is listed on a national securities exchange or quoted on an automated quotation system), officer, director, employee, agent, consultant, advisor, independent contractor, lender, investor, representative, or in any other capacity whatsoever:

(i) engage in, manage, operate, control, participate in, consult with, render services for, or otherwise be connected with or have any interest in, a Competing Business within the Restricted Territory;

(ii) establish, open, organize, or operate any business, facility, office, fabrication shop, or other enterprise engaged in or intended to engage in a Competing Business within the Restricted Territory; or

(iii) acquire, directly or indirectly, any ownership, equity, partnership, membership, or other proprietary interest in any Competing Business that is located within the Restricted Territory or that serves, solicits, or targets customers located within the Restricted Territory.

(b) Restricted Territory. The "Restricted Territory" means the area within a one-hundred-fifty (150)-mile radius measured from 1127 Industrial Parkway, Hammond, Indiana 46320, which is the principal office and primary fabrication facility of the Acquired Business. Each Restricted Party acknowledges and agrees that this geographic scope is reasonable and appropriate given the regional nature of the Acquired Business's operations, the geographic distribution of the Acquired Business's customer base across the Midwest infrastructure and commercial construction end-markets, and the areas in which the Company has conducted business during the twenty-four (24)-month period prior to the Closing Date. Each Restricted Party further acknowledges that the Acquired Business regularly services customers, performs field installation work, and delivers fabricated components throughout the Restricted Territory, including in the States of Indiana, Illinois, Michigan, Ohio, Wisconsin, Kentucky, and portions of surrounding states.

(c) Derek J. Kopp Non-Competition. Derek J. Kopp agrees that during the period commencing on the Closing Date (October 24, 2023) and ending eighteen (18) months after the Closing Date (April 24, 2025) (the "Kopp Restricted Period"), he shall not, directly or indirectly, engage in, manage, operate, control, participate in, consult with, render services for, or otherwise be connected with or have any interest in, a Competing Business within the Restricted Territory, subject to the same scope, terms, and exceptions as described in Section 2.1(a) (including, for the avoidance of doubt, the passive investment exception for holdings of not more than two percent (2%) of publicly traded securities). Derek J. Kopp acknowledges and agrees that this non-competition covenant is in addition to, and not in lieu of, any restrictive covenants contained in the Kopp Employment Agreement, and that the provisions of this Section 2.1(c) and any comparable provisions of the Kopp Employment Agreement shall each be independently enforceable. In the event of any conflict between the non-competition restrictions set forth in this Section 2.1(c) and those set forth in the Kopp Employment Agreement, the more restrictive covenant (whether in terms of duration, scope, or geographic reach) shall govern.

(d) Sandra L. Brennan. Sandra L. Brennan is not subject to a non-competition covenant under this Agreement. For the avoidance of doubt, Sandra L. Brennan is and shall remain bound by the non-solicitation covenants set forth in Sections 2.2(b) and 2.3(b) of this Agreement and the confidentiality and non-disparagement covenants set forth in Sections 2.4 and 2.5 of this Agreement, each of which shall be fully enforceable in accordance with their respective terms.

Section 2.2 — Non-Solicitation of Business Relationships

(a) Gerald T. Brennan Non-Solicitation of Business Relationships. During the Brennan Restricted Period (commencing on the Closing Date and expiring on October 24, 2026), Gerald T. Brennan shall not, directly or indirectly, whether on his own behalf or on behalf of any other person or entity, solicit, contact, call upon, communicate with, or attempt to solicit, contact, call upon, or communicate with, any customer, client, prospective customer, supplier, vendor, or other Business Relationship of the Acquired Business for the purpose of, or with the intent of:

(i) inducing or encouraging such person or entity to cease doing business with, or to reduce the volume, scope, or nature of its business with, the Acquired Business or Buyer or any of Buyer's affiliates;

(ii) diverting or attempting to divert any business, revenue, orders, contracts, or opportunities from the Acquired Business or Buyer or any of Buyer's affiliates to any other person or entity, including a Competing Business; or

(iii) providing, selling, or offering to provide or sell any products or services that are competitive with, or substantially similar to, the products or services provided by the Acquired Business, whether or not such products or services were actually purchased by or provided to such Business Relationship by the Company prior to the Closing Date.

For purposes of this Section 2.2(a), "indirectly" shall include, without limitation, acting through, directing, authorizing, assisting, facilitating, or encouraging any family member, agent, representative, affiliate, or other person or entity to engage in the conduct described above.

(b) Sandra L. Brennan Non-Solicitation of Business Relationships. During the period commencing on the Closing Date (October 24, 2023) and ending on the second (2nd) anniversary of the Closing Date (October 24, 2025) (the "Sandra Brennan Restricted Period"), Sandra L. Brennan shall not, directly or indirectly, whether on her own behalf or on behalf of any other person or entity, solicit, contact, call upon, communicate with, or attempt to solicit, contact, call upon, or communicate with, any customer, client, prospective customer, supplier, vendor, or other Business Relationship of the Acquired Business for the purposes described in Section 2.2(a)(i), (ii), and (iii) above. The restrictions set forth in this Section 2.2(b) shall be interpreted and applied consistent with the terms and scope of Section 2.2(a), mutatis mutandis.

(c) Derek J. Kopp Non-Solicitation of Business Relationships. During the Kopp Restricted Period (commencing on the Closing Date and expiring on April 24, 2025), Derek J. Kopp shall not, directly or indirectly, whether on his own behalf or on behalf of any other person or entity, solicit, contact, call upon, communicate with, or attempt to solicit, contact, call upon, or communicate with, any customer, client, prospective customer, supplier, vendor, or other Business Relationship of the Acquired Business for the purposes described in Section 2.2(a)(i), (ii), and (iii) above. The restrictions set forth in this Section 2.2(c) shall be interpreted and applied consistent with the terms and scope of Section 2.2(a), mutatis mutandis. Derek J. Kopp acknowledges and agrees that this non-solicitation covenant is in addition to, and not in lieu of, any comparable restrictive covenants contained in the Kopp Employment Agreement.

Section 2.3 — Non-Solicitation and Non-Hiring of Employees

(a) Gerald T. Brennan. During the Brennan Restricted Period (commencing on the Closing Date and expiring on October 24, 2026), Gerald T. Brennan shall not, directly or indirectly, whether on his own behalf or on behalf of any other person or entity:

(i) solicit, recruit, hire, engage, retain, or enter into any arrangement with any Business Employee, or induce, encourage, entice, or attempt to induce, encourage, or entice any Business Employee to terminate, resign from, or reduce his or her employment, engagement, or relationship with Buyer, the Acquired Business, or any of Buyer's affiliates; or

(ii) assist, facilitate, advise, counsel, or cooperate with any other person or entity in doing or attempting to do any of the foregoing.

Notwithstanding the foregoing, the restrictions in this Section 2.3(a) shall not prohibit Gerald T. Brennan from placing or causing to be placed general solicitations of employment (including, without limitation, advertisements in newspapers, trade publications, job boards, or online employment platforms) that are not specifically directed at or targeted toward any Business Employee; provided, however, that Gerald T. Brennan shall not hire, engage, or retain any Business Employee who responds to any such general solicitation during the Brennan Restricted Period.

(b) Sandra L. Brennan. During the Sandra Brennan Restricted Period (commencing on the Closing Date and expiring on October 24, 2025), Sandra L. Brennan shall not, directly or indirectly, whether on her own behalf or on behalf of any other person or entity, solicit, recruit, hire, engage, or retain any Business Employee, or induce, encourage, entice, or attempt to induce, encourage, or entice any Business Employee to terminate, resign from, or reduce his or her employment, engagement, or relationship with Buyer, the Acquired Business, or any of Buyer's affiliates, or assist any other person or entity in doing or attempting to do any of the foregoing, subject to the same exceptions for general solicitations as set forth in Section 2.3(a); provided, however, that Sandra L. Brennan shall not hire, engage, or retain any Business Employee who responds to any such general solicitation during the Sandra Brennan Restricted Period.

(c) Derek J. Kopp. During the Kopp Restricted Period (commencing on the Closing Date and expiring on April 24, 2025), Derek J. Kopp shall not, directly or indirectly, whether on his own behalf or on behalf of any other person or entity, solicit, recruit, hire, engage, or retain any Business Employee, or induce, encourage, entice, or attempt to induce, encourage, or entice any Business Employee to terminate, resign from, or reduce his or her employment, engagement, or relationship with Buyer, the Acquired Business, or any of Buyer's affiliates, or assist any other person or entity in doing or attempting to do any of the foregoing, subject to the same exceptions for general solicitations as set forth in Section 2.3(a); provided, however, that Derek J. Kopp shall not hire, engage, or retain any Business Employee who responds to any such general solicitation during the Kopp Restricted Period. Derek J. Kopp acknowledges and agrees that this non-solicitation and non-hiring covenant is in addition to, and not in lieu of, any comparable restrictive covenants contained in the Kopp Employment Agreement, and that the provisions of this Section 2.3(c) and any comparable provisions of the Kopp Employment Agreement shall each be independently enforceable.

Section 2.4 — Confidentiality

(a) Obligations. Each Restricted Party agrees that, at all times from and after the Closing Date (and without limitation as to time), he or she shall hold in strict confidence and shall not, directly or indirectly, disclose, publish, disseminate, communicate, divulge, furnish, make accessible, or otherwise make available any Confidential Information to any third party without the prior written consent of Buyer. Each Restricted Party further agrees that he or she shall not use any Confidential Information for any purpose whatsoever other than: (i) in the case of Gerald T. Brennan, the performance of his obligations under the TSA during the term thereof; and (ii) in the case of Derek J. Kopp, the performance of his duties and obligations under the Kopp Employment Agreement during the term thereof. For the avoidance of doubt, no Restricted Party shall use any Confidential Information for the purpose of competing with, or assisting any other person or entity in competing with, the Acquired Business or Buyer. The obligations of each Restricted Party under this Section 2.4(a) shall survive the expiration of the applicable Restricted Period and shall continue indefinitely, except as otherwise provided in Section 2.4(b) below, or until such time as the applicable Confidential Information ceases to constitute Confidential Information as defined herein.

(b) Exceptions. The obligations set forth in Section 2.4(a) shall not apply to:

(i) Confidential Information that is required to be disclosed by applicable law, rule, regulation, governmental order, subpoena, civil investigative demand, or other compulsory legal process; provided, that the Restricted Party required to make such disclosure shall (A) provide Buyer with prompt advance written notice of such requirement (to the extent legally permitted) so that Buyer may seek an appropriate protective order, confidential treatment, or other appropriate remedy, (B) cooperate fully with Buyer, at Buyer's expense, in any effort by Buyer to obtain such protective order or other remedy, and (C) in the event that such protective order or other remedy is not obtained, disclose only that portion of the Confidential Information that is legally required to be disclosed, and shall use commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to the Confidential Information so disclosed;

(ii) Confidential Information that becomes generally available to the public other than through a disclosure by any Restricted Party or any person acting on behalf of or at the direction of any Restricted Party in violation of this Agreement or any other confidentiality obligation;

(iii) Confidential Information that is independently developed by the Restricted Party after the Closing Date without the use of, reference to, or reliance upon any Confidential Information, as demonstrated by contemporaneous written records of such independent development; and

(iv) Confidential Information that is lawfully obtained by the Restricted Party on a non-confidential basis from a third party who is not, to the knowledge of the Restricted Party, (A) bound by a confidentiality agreement with, or other contractual, legal, or fiduciary obligation of confidentiality to, Buyer, the Company, or any of their respective affiliates with respect to such information, or (B) otherwise prohibited from disclosing such information to the Restricted Party.

(c) Return of Materials. Upon the Closing Date (except to the extent that Gerald T. Brennan or Derek J. Kopp requires access to certain Confidential Information in connection with the TSA or the Kopp Employment Agreement, respectively), and in any event promptly upon written request by Buyer at any time, each Restricted Party shall return to Buyer all originals and copies of all documents, files, records, notes, memoranda, reports, analyses, data, software, media, and other materials (in whatever form or medium, whether physical or electronic) that contain, reflect, embody, or constitute Confidential Information, and shall not retain any copies, extracts, summaries, or other reproductions thereof in any form. Each Restricted Party shall certify in writing to Buyer that he or she has complied with the requirements of this Section 2.4(c) promptly following such return or destruction, as applicable.

Section 2.5 — Non-Disparagement

(a) Each Restricted Party agrees that, at all times from and after the Closing Date, he or she shall not, directly or indirectly, make, publish, communicate, or cause to be made, published, or communicated, any statement, comment, remark, or observation (whether written, oral, electronic, or in any other form or medium, including on social media platforms, internet forums, or in communications with members of the press or media) that is disparaging, defamatory, derogatory, or damaging to the reputation, goodwill, or business interests of Buyer, the Acquired Business, or any of Buyer's affiliates, parents, subsidiaries, or related entities, or any of their respective officers, directors, managers, employees, investors, agents, or representatives.

(b) Buyer agrees that, at all times from and after the Closing Date, it shall not, and shall cause its officers and directors not to, directly or indirectly, make, publish, communicate, or cause to be made, published, or communicated, any statement, comment, remark, or observation that is disparaging, defamatory, derogatory, or damaging to the reputation of any Restricted Party.

(c) Notwithstanding anything to the contrary in this Section 2.5, the non-disparagement obligations set forth above shall not restrict or prohibit any Restricted Party or Buyer from (i) making truthful statements that are required by applicable law, rule, regulation, or legal process (including testimony under oath), (ii) making truthful statements in connection with the enforcement of this Agreement or any other Transaction Document (as defined in the Purchase Agreement), or (iii) making truthful statements in response to a subpoena, civil investigative demand, or other compulsory legal process.

ARTICLE III — REASONABLENESS; ACKNOWLEDGMENTS

Section 3.1 — Acknowledgment of Reasonableness

Each Restricted Party acknowledges and agrees that:

(i) The restrictive covenants set forth in this Agreement are reasonable and necessary to protect the legitimate business interests and goodwill of the Acquired Business that Buyer is acquiring for aggregate consideration of Thirty Million Dollars ($30,000,000), including the customer relationships, supplier relationships, trade secrets, confidential business information, and going-concern value of the Acquired Business, and that the restrictive covenants are a material component of the consideration for the Purchase Price;

(ii) Each Restricted Party has received or is receiving substantial consideration in connection with the transactions contemplated by the Purchase Agreement, including his or her respective pro rata share of the Twenty-Four Million Dollar ($24,000,000) closing cash payment (less the escrow holdback amount) and the opportunity to receive up to Six Million Dollars ($6,000,000) in earnout payments, which such consideration constitutes adequate, independent, and sufficient consideration for each of the covenants, agreements, and obligations undertaken by each Restricted Party herein;

(iii) The scope (including the duration, geographic area, and nature and extent of the activity restrictions) of each covenant is reasonable in light of each Restricted Party's respective role in, knowledge of, and access to confidential information regarding, the Acquired Business, and that the restrictions imposed herein are no greater than necessary to protect Buyer's legitimate business interests;

(iv) Enforcement of the covenants contained in this Agreement will not impose an undue hardship on any Restricted Party or deprive any Restricted Party of the ability to earn a livelihood, and that each Restricted Party possesses skills, experience, and qualifications sufficient to permit him or her to earn a living in activities that do not violate the covenants contained herein; and

(v) Each Restricted Party has had adequate time and opportunity to consider the implications of the restrictive covenants contained herein and has had the opportunity to negotiate the terms thereof with Buyer.

Section 3.2 — Independent Covenants

The covenants and obligations contained in this Agreement are severable and independent of any other provisions of this Agreement and of any other obligations or agreements between or among any of the parties hereto. The existence of any claim or cause of action by any Restricted Party against Buyer or any of its affiliates, whether arising under the Purchase Agreement, the TSA, the Kopp Employment Agreement, this Agreement, or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants set forth herein and shall not excuse or justify any Restricted Party's breach of the obligations set forth in this Agreement.

Section 3.3 — Knowledge of the Business

Each Restricted Party acknowledges that Buyer is relying upon the restrictive covenants contained herein in connection with its acquisition of the Acquired Business and that such reliance is reasonable in light of the following:

(a) Gerald T. Brennan. Gerald T. Brennan is the founder of the Company and has been involved in the structural metals and metal fabrication industry for more than thirty (30) years. G. Brennan holds a sixty-five percent (65%) membership interest in the Company and has served as Managing Member since the Company's formation. G. Brennan possesses comprehensive and intimate knowledge of all aspects of the Acquired Business, including its customers, key customer contacts, pricing structures, bid strategies, cost structures, fabrication processes, production capabilities, equipment, suppliers, vendor relationships, employee skills and compensation, financial performance, strategic plans, and competitive positioning. G. Brennan has been the primary point of contact for many of the Acquired Business's largest and longest-standing customer relationships.

(b) Sandra L. Brennan. Sandra L. Brennan holds a twenty percent (20%) membership interest in the Company and has been actively involved in the bookkeeping and office administration functions of the Company. S. Brennan has knowledge of customer accounts, customer pricing and payment histories, accounts receivable and accounts payable data, financial information, and other operational and financial information relating to the Acquired Business.

(c) Derek J. Kopp. Derek J. Kopp holds a fifteen percent (15%) membership interest in the Company and has served as Vice President of Operations since 2012. Kopp possesses comprehensive knowledge of the Acquired Business's fabrication processes, production methods, equipment capabilities, quality control protocols, project management procedures, customer relationships (particularly with respect to technical and field installation matters), field crew management, and key employee skills, abilities, and compensation. Kopp has direct relationships with many of the Acquired Business's customers and has played a central role in the Company's operations and project execution.

ARTICLE IV — REMEDIES

Section 4.1 — Irreparable Harm

Each Restricted Party acknowledges and agrees that the restrictive covenants contained in this Agreement are of a special, unique, and extraordinary character, and that a breach or threatened breach of any such covenant by any Restricted Party would cause Buyer and the Acquired Business irreparable injury and damage that cannot be adequately compensated by monetary damages alone. Each Restricted Party further acknowledges that the harm resulting from any such breach would be difficult, if not impossible, to quantify and that monetary damages would be inadequate to make Buyer whole.

Section 4.2 — Injunctive Relief

In the event of any breach or threatened breach of any of the restrictive covenants contained in this Agreement, Buyer shall be entitled to seek and obtain temporary restraining orders, preliminary injunctions, permanent injunctions, and other equitable relief to restrain and enjoin such breach or threatened breach, in addition to any and all other remedies available to Buyer at law or in equity, without the necessity of (a) posting a bond, undertaking, or other security (each Restricted Party hereby waiving any requirement therefor), or (b) proving actual damages or the inadequacy of monetary damages (each Restricted Party hereby acknowledging and stipulating that the requirements for equitable relief are satisfied). Such equitable relief shall be in addition to, and not in lieu of, any other remedies available to Buyer at law or in equity, including the right to recover monetary damages. No single exercise of the right to seek equitable relief shall preclude any subsequent exercise of such right.

Section 4.3 — Extension of Restricted Period

If any Restricted Party violates any of the restrictive covenants contained in Article II of this Agreement, the applicable Restricted Period for such Restricted Party shall automatically be extended by a period of time equal to the duration of such violation (measured from the date on which the violation commenced through the date on which the violation is permanently ceased or cured), so that Buyer shall receive the full benefit of the bargained-for period of restriction. Each Restricted Party acknowledges that this extension provision is reasonable and necessary to ensure that Buyer receives the protection for which it bargained in connection with its acquisition of the Acquired Business.

Section 4.4 — Accounting of Profits

In addition to injunctive relief and monetary damages, in the event of a breach of any of the restrictive covenants contained in this Agreement, Buyer shall be entitled to an accounting of all profits, revenues, compensation, commissions, remuneration, or other benefits derived by the breaching Restricted Party, directly or indirectly, from any activity constituting a violation of this Agreement. Each Restricted Party agrees to cooperate fully with any such accounting and to provide Buyer with access to all books, records, and financial information reasonably necessary to conduct such accounting.

Section 4.5 — Indemnification

Each Restricted Party shall indemnify, defend, and hold harmless Buyer and its respective affiliates, parents, subsidiaries, officers, directors, managers, employees, agents, successors, and assigns (collectively, the "Buyer Indemnified Parties") from and against any and all losses, damages, liabilities, obligations, claims, demands, actions, suits, proceedings, judgments, penalties, fines, costs, fees, and expenses (including reasonable attorneys' fees, experts' fees, court costs, and other costs of investigation and litigation) (collectively, "Losses") arising out of, resulting from, or relating to any breach or violation of any covenant, obligation, or provision of this Agreement by such Restricted Party. The indemnification obligations set forth in this Section 4.5 are in addition to, and not in limitation of, any other indemnification rights or remedies available to Buyer under the Purchase Agreement or applicable law.

ARTICLE V — BLUE PENCIL / JUDICIAL MODIFICATION

Section 5.1 — Reformation

The parties intend that the restrictive covenants contained in this Agreement be enforced to the fullest extent permitted by applicable law. If any court or arbitral tribunal of competent jurisdiction determines that any provision, covenant, or restriction contained in this Agreement is unenforceable or invalid because it is overbroad, unreasonable, or excessive in scope, duration, geographic area, range of restricted activities, or otherwise, then such court or tribunal is hereby authorized, empowered, and requested to reform, modify, and construe such provision, covenant, or restriction by limiting and reducing it to the minimum extent necessary to render it valid and enforceable in accordance with the intent of the parties as expressed herein, and the remaining provisions of this Agreement shall remain in full force and effect without being impaired or invalidated in any way. Each Restricted Party acknowledges and agrees that a court exercising reformation authority under this Section 5.1 is consistent with the parties' intent and expectations at the time of execution of this Agreement.

Section 5.2 — Severability

If any provision, clause, or part of any provision of this Agreement is held to be invalid, illegal, void, or unenforceable by any court of competent jurisdiction, such holding shall not affect, impair, or invalidate any other provision, clause, or part of this Agreement, and the remainder of this Agreement shall remain in full force and effect. This Agreement shall be construed as if such invalid, illegal, void, or unenforceable provision had never been contained herein, and the parties shall negotiate in good faith to replace such provision with a valid, legal, and enforceable provision that achieves, to the greatest extent possible, the economic, business, and other purposes of the original provision.

ARTICLE VI — REPRESENTATIONS AND WARRANTIES OF THE RESTRICTED PARTIES

Each Restricted Party, severally and not jointly, represents and warrants to Buyer as follows:

Section 6.1 — Authority and Capacity

Such Restricted Party has full legal capacity and authority to execute, deliver, and perform his or her obligations under this Agreement. This Agreement constitutes the valid and binding obligation of such Restricted Party, enforceable against him or her in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity.

Section 6.2 — No Conflicts

The execution, delivery, and performance by such Restricted Party of this Agreement does not and will not (a) conflict with, violate, result in a breach of, or constitute a default (with or without notice or lapse of time or both) under any agreement, contract, instrument, obligation, commitment, arrangement, or understanding (whether written or oral) to which such Restricted Party is a party or by which he or she is bound, (b) violate any order, judgment, injunction, decree, stipulation, determination, or award entered by or with any governmental authority binding upon such Restricted Party, or (c) violate any applicable law, rule, or regulation.

Section 6.3 — Adequate Consideration

Such Restricted Party acknowledges that he or she is receiving good, valuable, and adequate consideration for the covenants and obligations set forth in this Agreement, including, without limitation: (a) his or her respective pro rata share of the Purchase Price payable pursuant to the Purchase Agreement; (b) with respect to Gerald T. Brennan, the compensation and benefits provided under the TSA; (c) with respect to Derek J. Kopp, the compensation and benefits provided under the Kopp Employment Agreement; and (d) the other benefits arising under and in connection with the Purchase Agreement and the transactions contemplated thereby. Each Restricted Party acknowledges that the consideration described in this Section 6.3 is sufficient and adequate to support his or her obligations under this Agreement and that no additional consideration is required.

Section 6.4 — Voluntary Execution

Such Restricted Party has carefully read and fully understands the terms and conditions of this Agreement, including the nature, scope, and duration of the restrictive covenants contained herein. Such Restricted Party has had the opportunity to consult with independent legal counsel of his or her choosing, including counsel at Halverson Burke & Crane LLP, regarding the terms, conditions, and legal effect of this Agreement, and has in fact had the benefit of such counsel. Such Restricted Party is executing and delivering this Agreement voluntarily, knowingly, and of his or her own free will, without duress, coercion, or undue influence, and with a full understanding of the restrictions and obligations imposed hereby.

ARTICLE VII — GENERAL PROVISIONS

Section 7.1 — Governing Law

This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State, without giving effect to any choice or conflict of laws provision, rule, or principle (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. Each Restricted Party acknowledges that the Purchase Agreement is governed by the laws of the State of New York and agrees that it is appropriate for this Agreement to be governed by the same body of law.

Section 7.2 — Jurisdiction and Venue

Each Restricted Party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the state courts of the State of New York sitting in the County of New York (Borough of Manhattan) and the United States District Court for the Southern District of New York for the resolution of any action, suit, proceeding, dispute, or controversy arising out of or relating to this Agreement or the transactions contemplated hereby, and each Restricted Party agrees not to commence any action, suit, or proceeding relating to this Agreement except in such courts. Each Restricted Party hereby irrevocably and unconditionally waives (a) any objection that he or she may now or hereafter have to the laying of venue in any such court, (b) any claim that any such action, suit, or proceeding has been brought in an inconvenient forum, and (c) any right to removal of any such action, suit, or proceeding to any other court. Each Restricted Party agrees that service of process in any such action, suit, or proceeding may be made by delivery of a copy of the summons and complaint in accordance with the notice provisions set forth in Section 7.4 of this Agreement, or in any other manner permitted by applicable law.

Section 7.3 — Waiver of Jury Trial

EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, COUNTERCLAIM, OR CROSS-CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SUIT, OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 7.3.

Section 7.4 — Notices

All notices, requests, demands, claims, consents, waivers, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered by hand or by personal delivery, (b) one (1) business day after being sent by a nationally recognized overnight courier service (with evidence of delivery), (c) three (3) business days after being mailed by certified or registered mail, return receipt requested, postage prepaid, or (d) when sent by email (with confirmation of transmission and delivery receipt), in each case addressed to the applicable party at the following addresses (or at such other address as such party may designate from time to time in accordance with this Section 7.4):

If to Buyer:

Nexford Industrial Holdings Inc. 4200 West Lake Shore Drive, Suite 800 Chicago, Illinois 60604

Attention: Philip M. Stanhope, General Counsel

Email: pstanhope@nexfordindustrial.com

with a copy (which shall not constitute notice) to:

Calderwood & Harkness LLP 120 South LaSalle Street, Suite 4500 Chicago, Illinois 60603

Attention: Oliver Mackenzie

Email: omackenzie@calderwoodharkness.com

If to Gerald T. Brennan:

At his home address on file with the Company.

with a copy (which shall not constitute notice) to:

Halverson Burke & Crane LLP 350 North Meridian Street, Suite 1400 Indianapolis, Indiana 46204

Attention: Thomas A. Gilroy

Email: tgilroy@halversenburke.com

If to Sandra L. Brennan:

At her home address on file with the Company.

with a copy (which shall not constitute notice) to:

Halverson Burke & Crane LLP 350 North Meridian Street, Suite 1400 Indianapolis, Indiana 46204

Attention: Thomas A. Gilroy

Email: tgilroy@halversenburke.com

If to Derek J. Kopp:

At his home address on file with the Company.

with a copy (which shall not constitute notice) to:

Halverson Burke & Crane LLP 350 North Meridian Street, Suite 1400 Indianapolis, Indiana 46204

Attention: Thomas A. Gilroy

Email: tgilroy@halversenburke.com

Any party may change its address for the purpose of receiving notices by providing written notice of such change to the other parties in accordance with this Section 7.4.

Section 7.5 — Assignment

No Restricted Party may assign, transfer, delegate, or otherwise dispose of any of his or her rights or obligations under this Agreement without the prior written consent of Buyer, and any attempted assignment, transfer, delegation, or disposition without such consent shall be null, void, and of no force or effect. Buyer may freely assign, transfer, or delegate its rights and obligations under this Agreement, in whole or in part, to any affiliate of Buyer or to any successor in interest to all or substantially all of the assets or business of Buyer or the Acquired Business (including, without limitation, in connection with a merger, consolidation, reorganization, sale of assets, or other change of control transaction involving Buyer or the Acquired Business), without the consent of any Restricted Party, and upon any such assignment, the assignee shall succeed to and be substituted for Buyer hereunder with respect to the rights and obligations so assigned. Any permitted assignment shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and assigns.

Section 7.6 — Entire Agreement

This Agreement, together with the Purchase Agreement, the TSA (as to Gerald T. Brennan), and the Kopp Employment Agreement (as to Derek J. Kopp), and all exhibits, schedules, and annexes attached thereto, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, representations, warranties, and communications, whether written or oral, relating to the subject matter of this Agreement. No party has relied upon any representation, warranty, statement, or promise of any other party that is not expressly set forth in this Agreement or the other agreements referenced herein.

Section 7.7 — Amendment and Waiver

No amendment, modification, supplement, or restatement of any provision of this Agreement shall be valid or effective unless made in a writing signed by Buyer and the affected Restricted Party or Restricted Parties. No waiver of any provision of this Agreement, or of any breach or default thereof, shall be effective unless made in a writing signed by the party against whom enforcement of such waiver is sought. No waiver of any provision or breach shall be deemed a waiver of any other provision or any subsequent breach of the same or any other provision, nor shall any single or partial exercise of any right, power, or privilege under this Agreement preclude any further exercise thereof or the exercise of any other right, power, or privilege.

Section 7.8 — Third-Party Beneficiaries

Except as expressly provided in this Section 7.8, this Agreement is not intended to, and shall not, confer any rights, benefits, or remedies upon any person or entity other than the parties hereto and their respective permitted successors and assigns. Notwithstanding the foregoing, Buyer's affiliates, including, without limitation, Bramblewood Capital Partners, LP and each direct and indirect subsidiary of Buyer, are intended third-party beneficiaries of this Agreement and shall have the right to enforce the covenants, agreements, and obligations contained herein as if they were parties hereto. Each Restricted Party acknowledges that Buyer is entering into this Agreement for the benefit of Buyer and its affiliates, and that the Acquired Business may be operated by Buyer or any of its affiliates following the Closing Date.

Section 7.9 — Counterparts

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile, portable document format (.pdf), electronic signature (including via Brightwater Software, Ashford Health IT, or other similar electronic signature platform), or other electronic transmission shall be effective as delivery of a manually executed counterpart, and each party hereby agrees that electronic signatures shall be given the same legal force and effect as original ink signatures.

Section 7.10 — Relationship to Other Agreements

The covenants, restrictions, and obligations contained in this Agreement are in addition to, and not in substitution for, limitation of, or derogation from, any restrictive covenants, confidentiality obligations, non-competition provisions, non-solicitation provisions, or similar restrictions contained in the TSA, the Kopp Employment Agreement, or any other agreement between or among any Restricted Party and Buyer or any of Buyer's affiliates, whether entered into prior to, on, or after the date hereof. In the event of any conflict, inconsistency, or overlap between the restrictive covenants contained herein and those contained in the TSA, the Kopp Employment Agreement, or any other such agreement, the more restrictive covenant (whether in terms of duration, geographic scope, range of restricted activities, or otherwise) shall govern and shall be enforceable in accordance with its terms, and the less restrictive covenant shall also remain separately enforceable to the fullest extent permitted by applicable law.

Section 7.11 — Attorneys' Fees

In any action, suit, proceeding, or arbitration brought to enforce any provision of this Agreement, or arising out of or relating to a breach or threatened breach of this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party its reasonable attorneys' fees, experts' fees, court costs, and other costs and expenses of litigation or arbitration, in addition to any other relief to which such prevailing party may be entitled. For purposes of this Section 7.11, the "prevailing party" shall mean the party that substantially prevails on the merits of the claims or defenses asserted in such action, suit, proceeding, or arbitration, as determined by the court or arbitral tribunal having jurisdiction.

Section 7.12 — Construction

This Agreement has been negotiated by the parties hereto and their respective counsel, and shall not be construed against any party by reason of the fact that such party or its counsel drafted or prepared all or any portion of this Agreement. Each Restricted Party and Buyer acknowledge that all parties and their respective counsel have had the opportunity to review, comment upon, and negotiate the terms and conditions of this Agreement, and that the terms hereof reflect the mutual agreement of all parties. References herein to the Purchase Agreement and related transaction documents are for context, interpretation, and definitional purposes, and nothing herein shall be construed to amend, modify, or supersede any provision of the Purchase Agreement or any other transaction document.

EXHIBIT A — SUMMARY TABLE OF RESTRICTIVE COVENANTS

The following table sets forth a summary of the restrictive covenants applicable to each Restricted Party under this Agreement. This table is for reference purposes only and is qualified in its entirety by the terms and conditions of Article II.

Note: All Restricted Parties are subject to confidentiality obligations (indefinite duration) and non-disparagement obligations under Sections 2.4 and 2.5, respectively. The covenants set forth above are in addition to, and not in lieu of, any restrictive covenants contained in the Transition Services Agreement (as to Gerald T. Brennan) or the Kopp Employment Agreement (as to Derek J. Kopp).

[SIGNATURE PAGE FOLLOWS]

SIGNATURE PAGE TO NON-COMPETITION AND NON-SOLICITATION AGREEMENT

IN WITNESS WHEREOF, the undersigned have executed and delivered this Non-Competition and Non-Solicitation Agreement as of the date first written above.

RESTRICTED PARTIES:

________________________________________

Gerald T. Brennan

Date: ________

________________________________________

Sandra L. Brennan

Date: ________

________________________________________

Derek J. Kopp

Date: ________

BUYER (for acknowledgment and acceptance):

NEXFORD INDUSTRIAL HOLDINGS INC.

By: ________

Name: Marcus R. Haverford

Title: Chief Executive Officer

Date: October 24, 2023

Restricted Party	Non-Compete Duration	Non-Compete Territory	Non-Solicit (Business Relationships) Duration	Non-Solicit (Employees) Duration
Gerald T. Brennan	3 years (Closing Date through October 24, 2026)	150-mile radius from 1127 Industrial Parkway, Hammond, IN 46320	3 years (Closing Date through October 24, 2026)	3 years (Closing Date through October 24, 2026)
Sandra L. Brennan	N/A	N/A	2 years (Closing Date through October 24, 2025)	2 years (Closing Date through October 24, 2025)
Derek J. Kopp	18 months (Closing Date through April 24, 2025)	150-mile radius from 1127 Industrial Parkway, Hammond, IN 46320	18 months (Closing Date through April 24, 2025)	18 months (Closing Date through April 24, 2025)

NON-COMPETITION AND NON-SOLICITATION AGREEMENT
Dated as of October 24, 2023
By and among
GERALD T. BRENNAN
SANDRA L. BRENNAN
DEREK J. KOPP
(each, a "Restricted Party" and collectively, the "Restricted Parties")
in favor of
NEXFORD INDUSTRIAL HOLDINGS INC.
a Delaware corporation
("Buyer")
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This NON-COMPETITION AND NON-SOLICITATION AGREEMENT (this "Agreement") is made and entered into as of October 24, 2023 (the "Effective Date"), by and among Gerald T. Brennan, an individual residing in the State of Indiana ("G. Brennan"), Sandra L. Brennan, an individual residing in the State of Indiana ("S. Brennan"), and Derek J. Kopp, an individual residing in the State of Indiana ("Kopp," and together with G. Brennan and S. Brennan, each a "Restricted Party" and collectively, the "Restricted Parties"), in favor of Nexford Industrial Holdings Inc., a Delaware corporation ("Buyer").
RECITALS
WHEREAS:
A. Buyer, Pinnacle Metal Fabricators LLC, an Indiana limited liability company (the "Seller" or the "Company"), and Gerald T. Brennan, Sandra L. Brennan, and Derek J. Kopp, as the members of the Company (collectively, the "Members" or "Restricted Parties"), are parties to that certain Asset Purchase Agreement, dated as of September 5, 2023 (as it may be amended, restated, supplemented, or otherwise modified from time to time, the "Purchase Agreement"), pursuant to which Buyer is acquiring substantially all of the assets of the Company constituting the business of the Company (as so acquired, the "Acquired Business") for aggregate consideration of Thirty Million Dollars ($30,000,000) (the "Purchase Price"), subject to the terms, conditions, and adjustments set forth in the Purchase Agreement;
B. Gerald T. Brennan holds a sixty-five percent (65%) membership interest in the Company and serves as the Managing Member of the Company; Sandra L. Brennan holds a twenty percent (20%) membership interest in the Company; and Derek J. Kopp holds a fifteen percent (15%) membership interest in the Company and serves as Vice President of Operations of the Company. Each Restricted Party is receiving substantial consideration in connection with the transactions contemplated by the Purchase Agreement, including his or her respective pro rata share of the Twenty-Four Million Dollar ($24,000,000) closing cash payment (less the escrow holdback amount) and the opportunity to receive up to Six Million Dollars ($6,000,000) in earnout payments, all as more particularly described in the Purchase Agreement;
C. The Restricted Parties possess extensive and intimate knowledge of the Acquired Business, including its customers, suppliers, pricing, operations, trade secrets, and confidential business information. The Acquired Business involves custom metal fabrication—specifically, the design, engineering, fabrication, and installation of structural steel, aluminum, and stainless-steel components for commercial construction, infrastructure, and industrial original equipment manufacturer ("OEM") customers—and is headquartered at 1127 Industrial Parkway, Hammond, Indiana 46320. The restrictive covenants contained in this Agreement are essential to protect the goodwill of the Acquired Business being purchased by Buyer and are a material inducement for Buyer to enter into the Purchase Agreement and to consummate the transactions contemplated thereby. Buyer would not have entered into the Purchase Agreement or agreed to pay the Purchase Price absent the execution and delivery of this Agreement by each of the Restricted Parties;
D. The execution and delivery of this Agreement by each Restricted Party is a condition precedent to Buyer's obligation to consummate the closing under Section 8.2(g) of the Purchase Agreement, and each Restricted Party desires to execute and deliver this Agreement in order to facilitate the consummation of the transactions contemplated by the Purchase Agreement and to receive the substantial benefits arising therefrom;
E. Gerald T. Brennan is simultaneously entering into a Transition Services Agreement with Buyer dated as of the date hereof (the "TSA"), pursuant to which G. Brennan will provide certain transition services to Buyer following the Closing Date. Derek J. Kopp is simultaneously entering into an Employment Agreement with Buyer dated as of the date hereof (the "Kopp Employment Agreement"), pursuant to which Kopp will serve as Vice President of Operations of the Acquired Business following the Closing Date. The restrictive covenants contained in this Agreement are in addition to, and not in lieu of, any restrictive covenants contained in the TSA or the Kopp Employment Agreement, as applicable.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and agreements set forth herein, the consummation of the transactions contemplated by the Purchase Agreement, the substantial consideration being paid and delivered to each Restricted Party in connection therewith, and for other good and valuable consideration, the receipt, sufficiency, and adequacy of which are hereby acknowledged by each Restricted Party, the parties agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Defined Terms
As used in this Agreement, the following terms shall have the meanings set forth below:
"Acquired Business" means the business of custom metal fabrication (including the design, engineering, fabrication, and installation of structural steel, aluminum, and stainless-steel components for commercial construction, infrastructure, and industrial OEM customers) as conducted by the Company as of the Closing Date, including all assets, properties, rights, contracts, permits, and goodwill acquired by Buyer pursuant to the Purchase Agreement, and all operations, activities, and services conducted in connection therewith, as such business may be continued, modified, expanded, or supplemented by Buyer or its affiliates following the Closing Date.
"Business Employee" means any individual who (a) was employed by, or provided services (whether as an employee, independent contractor, consultant, or otherwise) to, the Company or the Acquired Business at any time during the twelve (12)-month period immediately preceding the Closing Date, or (b) is employed by, or providing services to, Buyer or its affiliates in connection with the Acquired Business at any time during the applicable Restricted Period. As of the Closing Date, the Acquired Business employs approximately seventy-four (74) full-time employees, consisting of approximately forty-two (42) shop floor production personnel, eighteen (18) field installation personnel, and fourteen (14) office, administrative, and management personnel.
"Business Relationship" means any customer, client, prospective customer, supplier, vendor, subcontractor, distributor, or other business relationship of the Acquired Business with whom the Company or the Acquired Business has conducted business, has been in active negotiations, or has maintained an ongoing commercial relationship at any time during the twenty-four (24)-month period immediately preceding the Closing Date or at any time during the applicable Restricted Period, including, without limitation, Ironclad Bridge & Infrastructure Co. and Calumet Steel Distributors Inc.
"Closing Date" means October 24, 2023, the date on which the closing of the transactions contemplated by the Purchase Agreement occurs.
"Competing Business" means any business, enterprise, venture, or activity (whether conducted by a corporation, limited liability company, partnership, sole proprietorship, joint venture, or other entity or person) that engages in, or is preparing or planning to engage in, custom metal fabrication, structural steel fabrication, aluminum fabrication, stainless-steel fabrication, or related metal component manufacturing, engineering, design, or installation for commercial construction, infrastructure, or industrial OEM end-markets, in each case that is competitive with the Acquired Business as conducted on the Closing Date or as conducted by Buyer or its affiliates at any time during the applicable Restricted Period.
"Confidential Information" means all non-public, proprietary, or confidential information relating to the Acquired Business, whether in written, oral, electronic, visual, or other form, that was known to, developed by, or in the possession of any Restricted Party at any time prior to or following the Closing Date, including, without limitation: (a) customer lists, customer preferences, customer contact information, and customer purchasing histories; (b) pricing data, pricing models, bid proposals, and cost structures; (c) fabrication processes, production methods, welding procedures, quality control protocols, and equipment specifications; (d) supplier terms, vendor agreements, and raw material sourcing arrangements; (e) backlog information (the Company's customer backlog as of the date of the Purchase Agreement being approximately Seven Million Two Hundred Thousand Dollars ($7,200,000)); (f) employee compensation data, benefits information, and organizational structures; (g) strategic plans, business plans, marketing plans, and financial projections; (h) trade secrets as defined under applicable law; (i) engineering drawings, shop drawings, design specifications, and technical data; and (j) any other information that derives economic value from not being generally known to the public or to competitors of the Acquired Business. Notwithstanding the foregoing, "Confidential Information" shall not include information that: (i) is or becomes generally available to the public other than as a result of a disclosure by a Restricted Party in violation of this Agreement; (ii) was available to the Restricted Party on a non-confidential basis from a source other than the Company or Buyer, provided that such source is not, to the knowledge of the Restricted Party, bound by a confidentiality obligation with respect to such information; (iii) was independently developed by the Restricted Party without the use of, or reference to, any Confidential Information; or (iv) is required to be disclosed by applicable law, regulation, or legal process, subject to the requirements of Section 2.4(b)(i).
"Kopp Employment Agreement" means the Employment Agreement dated as of October 24, 2023, by and between Buyer and Derek J. Kopp.
"Purchase Agreement" means the Asset Purchase Agreement dated as of September 5, 2023, by and among Buyer, the Company, and the Members, as it may be amended, restated, supplemented, or otherwise modified from time to time.
"Restricted Period" means (a) with respect to Gerald T. Brennan, the Brennan Restricted Period (as defined in Section 2.1(a)); (b) with respect to Sandra L. Brennan, the Sandra Brennan Restricted Period (as defined in Section 2.2(b)); and (c) with respect to Derek J. Kopp, the Kopp Restricted Period (as defined in Section 2.1(c)), in each case as the same may be extended pursuant to Section 4.3.
"Restricted Territory" means the geographic area described in Section 2.1(b).
"TSA" means the Transition Services Agreement dated as of October 24, 2023, by and between Buyer and Gerald T. Brennan, pursuant to which Gerald T. Brennan will provide certain transition services to Buyer following the Closing Date.
Section 1.2 — Purchase Agreement Definitions
Capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to such terms in the Purchase Agreement. To the extent that any term defined herein is also defined in the Purchase Agreement, the definition set forth in this Agreement shall control for purposes of this Agreement.
Section 1.3 — Interpretation
Unless the context otherwise requires: (a) references to "Articles," "Sections," and "Exhibits" refer to Articles, Sections, and Exhibits of this Agreement; (b) references to any agreement, instrument, or document include all exhibits, schedules, annexes, and attachments thereto; (c) the headings and captions in this Agreement are for convenience of reference only and shall not control or affect the meaning or construction of any provision hereof; (d) the words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation"; (e) the use of the singular shall include the plural, and vice versa; (f) all references to gender shall include all genders; (g) the words "herein," "hereof," "hereunder," "hereby," and other words of similar import refer to this Agreement as a whole and not to any particular provision; (h) "or" is not exclusive; (i) references to any statute or regulation refer to that statute or regulation as amended, supplemented, or restated from time to time, and to all rules, regulations, and guidance promulgated thereunder; and (j) references to "dollars" or "$" mean the lawful currency of the United States of America.
ARTICLE II — RESTRICTIVE COVENANTS
Section 2.1 — Non-Competition Covenant
(a) Gerald T. Brennan Non-Competition. Gerald T. Brennan agrees that during the period commencing on the Closing Date (October 24, 2023) and ending on the third (3rd) anniversary of the Closing Date (October 24, 2026) (the "Brennan Restricted Period"), he shall not, directly or indirectly, whether as an owner, partner, member, shareholder (other than as a passive holder of not more than two percent (2%) of the outstanding equity interests of any class of securities of a corporation or other entity that is listed on a national securities exchange or quoted on an automated quotation system), officer, director, employee, agent, consultant, advisor, independent contractor, lender, investor, representative, or in any other capacity whatsoever:
(i) engage in, manage, operate, control, participate in, consult with, render services for, or otherwise be connected with or have any interest in, a Competing Business within the Restricted Territory;
(ii) establish, open, organize, or operate any business, facility, office, fabrication shop, or other enterprise engaged in or intended to engage in a Competing Business within the Restricted Territory; or
(iii) acquire, directly or indirectly, any ownership, equity, partnership, membership, or other proprietary interest in any Competing Business that is located within the Restricted Territory or that serves, solicits, or targets customers located within the Restricted Territory.
(b) Restricted Territory. The "Restricted Territory" means the area within a one-hundred-fifty (150)-mile radius measured from 1127 Industrial Parkway, Hammond, Indiana 46320, which is the principal office and primary fabrication facility of the Acquired Business. Each Restricted Party acknowledges and agrees that this geographic scope is reasonable and appropriate given the regional nature of the Acquired Business's operations, the geographic distribution of the Acquired Business's customer base across the Midwest infrastructure and commercial construction end-markets, and the areas in which the Company has conducted business during the twenty-four (24)-month period prior to the Closing Date. Each Restricted Party further acknowledges that the Acquired Business regularly services customers, performs field installation work, and delivers fabricated components throughout the Restricted Territory, including in the States of Indiana, Illinois, Michigan, Ohio, Wisconsin, Kentucky, and portions of surrounding states.
(c) Derek J. Kopp Non-Competition. Derek J. Kopp agrees that during the period commencing on the Closing Date (October 24, 2023) and ending eighteen (18) months after the Closing Date (April 24, 2025) (the "Kopp Restricted Period"), he shall not, directly or indirectly, engage in, manage, operate, control, participate in, consult with, render services for, or otherwise be connected with or have any interest in, a Competing Business within the Restricted Territory, subject to the same scope, terms, and exceptions as described in Section 2.1(a) (including, for the avoidance of doubt, the passive investment exception for holdings of not more than two percent (2%) of publicly traded securities). Derek J. Kopp acknowledges and agrees that this non-competition covenant is in addition to, and not in lieu of, any restrictive covenants contained in the Kopp Employment Agreement, and that the provisions of this Section 2.1(c) and any comparable provisions of the Kopp Employment Agreement shall each be independently enforceable. In the event of any conflict between the non-competition restrictions set forth in this Section 2.1(c) and those set forth in the Kopp Employment Agreement, the more restrictive covenant (whether in terms of duration, scope, or geographic reach) shall govern.
(d) Sandra L. Brennan. Sandra L. Brennan is not subject to a non-competition covenant under this Agreement. For the avoidance of doubt, Sandra L. Brennan is and shall remain bound by the non-solicitation covenants set forth in Sections 2.2(b) and 2.3(b) of this Agreement and the confidentiality and non-disparagement covenants set forth in Sections 2.4 and 2.5 of this Agreement, each of which shall be fully enforceable in accordance with their respective terms.
Section 2.2 — Non-Solicitation of Business Relationships
(a) Gerald T. Brennan Non-Solicitation of Business Relationships. During the Brennan Restricted Period (commencing on the Closing Date and expiring on October 24, 2026), Gerald T. Brennan shall not, directly or indirectly, whether on his own behalf or on behalf of any other person or entity, solicit, contact, call upon, communicate with, or attempt to solicit, contact, call upon, or communicate with, any customer, client, prospective customer, supplier, vendor, or other Business Relationship of the Acquired Business for the purpose of, or with the intent of:
(i) inducing or encouraging such person or entity to cease doing business with, or to reduce the volume, scope, or nature of its business with, the Acquired Business or Buyer or any of Buyer's affiliates;
(ii) diverting or attempting to divert any business, revenue, orders, contracts, or opportunities from the Acquired Business or Buyer or any of Buyer's affiliates to any other person or entity, including a Competing Business; or
(iii) providing, selling, or offering to provide or sell any products or services that are competitive with, or substantially similar to, the products or services provided by the Acquired Business, whether or not such products or services were actually purchased by or provided to such Business Relationship by the Company prior to the Closing Date.
For purposes of this Section 2.2(a), "indirectly" shall include, without limitation, acting through, directing, authorizing, assisting, facilitating, or encouraging any family member, agent, representative, affiliate, or other person or entity to engage in the conduct described above.
(b) Sandra L. Brennan Non-Solicitation of Business Relationships. During the period commencing on the Closing Date (October 24, 2023) and ending on the second (2nd) anniversary of the Closing Date (October 24, 2025) (the "Sandra Brennan Restricted Period"), Sandra L. Brennan shall not, directly or indirectly, whether on her own behalf or on behalf of any other person or entity, solicit, contact, call upon, communicate with, or attempt to solicit, contact, call upon, or communicate with, any customer, client, prospective customer, supplier, vendor, or other Business Relationship of the Acquired Business for the purposes described in Section 2.2(a)(i), (ii), and (iii) above. The restrictions set forth in this Section 2.2(b) shall be interpreted and applied consistent with the terms and scope of Section 2.2(a), mutatis mutandis.
(c) Derek J. Kopp Non-Solicitation of Business Relationships. During the Kopp Restricted Period (commencing on the Closing Date and expiring on April 24, 2025), Derek J. Kopp shall not, directly or indirectly, whether on his own behalf or on behalf of any other person or entity, solicit, contact, call upon, communicate with, or attempt to solicit, contact, call upon, or communicate with, any customer, client, prospective customer, supplier, vendor, or other Business Relationship of the Acquired Business for the purposes described in Section 2.2(a)(i), (ii), and (iii) above. The restrictions set forth in this Section 2.2(c) shall be interpreted and applied consistent with the terms and scope of Section 2.2(a), mutatis mutandis. Derek J. Kopp acknowledges and agrees that this non-solicitation covenant is in addition to, and not in lieu of, any comparable restrictive covenants contained in the Kopp Employment Agreement.
Section 2.3 — Non-Solicitation and Non-Hiring of Employees
(a) Gerald T. Brennan. During the Brennan Restricted Period (commencing on the Closing Date and expiring on October 24, 2026), Gerald T. Brennan shall not, directly or indirectly, whether on his own behalf or on behalf of any other person or entity:
(i) solicit, recruit, hire, engage, retain, or enter into any arrangement with any Business Employee, or induce, encourage, entice, or attempt to induce, encourage, or entice any Business Employee to terminate, resign from, or reduce his or her employment, engagement, or relationship with Buyer, the Acquired Business, or any of Buyer's affiliates; or
(ii) assist, facilitate, advise, counsel, or cooperate with any other person or entity in doing or attempting to do any of the foregoing.
Notwithstanding the foregoing, the restrictions in this Section 2.3(a) shall not prohibit Gerald T. Brennan from placing or causing to be placed general solicitations of employment (including, without limitation, advertisements in newspapers, trade publications, job boards, or online employment platforms) that are not specifically directed at or targeted toward any Business Employee; provided, however, that Gerald T. Brennan shall not hire, engage, or retain any Business Employee who responds to any such general solicitation during the Brennan Restricted Period.
(b) Sandra L. Brennan. During the Sandra Brennan Restricted Period (commencing on the Closing Date and expiring on October 24, 2025), Sandra L. Brennan shall not, directly or indirectly, whether on her own behalf or on behalf of any other person or entity, solicit, recruit, hire, engage, or retain any Business Employee, or induce, encourage, entice, or attempt to induce, encourage, or entice any Business Employee to terminate, resign from, or reduce his or her employment, engagement, or relationship with Buyer, the Acquired Business, or any of Buyer's affiliates, or assist any other person or entity in doing or attempting to do any of the foregoing, subject to the same exceptions for general solicitations as set forth in Section 2.3(a); provided, however, that Sandra L. Brennan shall not hire, engage, or retain any Business Employee who responds to any such general solicitation during the Sandra Brennan Restricted Period.
(c) Derek J. Kopp. During the Kopp Restricted Period (commencing on the Closing Date and expiring on April 24, 2025), Derek J. Kopp shall not, directly or indirectly, whether on his own behalf or on behalf of any other person or entity, solicit, recruit, hire, engage, or retain any Business Employee, or induce, encourage, entice, or attempt to induce, encourage, or entice any Business Employee to terminate, resign from, or reduce his or her employment, engagement, or relationship with Buyer, the Acquired Business, or any of Buyer's affiliates, or assist any other person or entity in doing or attempting to do any of the foregoing, subject to the same exceptions for general solicitations as set forth in Section 2.3(a); provided, however, that Derek J. Kopp shall not hire, engage, or retain any Business Employee who responds to any such general solicitation during the Kopp Restricted Period. Derek J. Kopp acknowledges and agrees that this non-solicitation and non-hiring covenant is in addition to, and not in lieu of, any comparable restrictive covenants contained in the Kopp Employment Agreement, and that the provisions of this Section 2.3(c) and any comparable provisions of the Kopp Employment Agreement shall each be independently enforceable.
Section 2.4 — Confidentiality
(a) Obligations. Each Restricted Party agrees that, at all times from and after the Closing Date (and without limitation as to time), he or she shall hold in strict confidence and shall not, directly or indirectly, disclose, publish, disseminate, communicate, divulge, furnish, make accessible, or otherwise make available any Confidential Information to any third party without the prior written consent of Buyer. Each Restricted Party further agrees that he or she shall not use any Confidential Information for any purpose whatsoever other than: (i) in the case of Gerald T. Brennan, the performance of his obligations under the TSA during the term thereof; and (ii) in the case of Derek J. Kopp, the performance of his duties and obligations under the Kopp Employment Agreement during the term thereof. For the avoidance of doubt, no Restricted Party shall use any Confidential Information for the purpose of competing with, or assisting any other person or entity in competing with, the Acquired Business or Buyer. The obligations of each Restricted Party under this Section 2.4(a) shall survive the expiration of the applicable Restricted Period and shall continue indefinitely, except as otherwise provided in Section 2.4(b) below, or until such time as the applicable Confidential Information ceases to constitute Confidential Information as defined herein.
(b) Exceptions. The obligations set forth in Section 2.4(a) shall not apply to:
(i) Confidential Information that is required to be disclosed by applicable law, rule, regulation, governmental order, subpoena, civil investigative demand, or other compulsory legal process; provided, that the Restricted Party required to make such disclosure shall (A) provide Buyer with prompt advance written notice of such requirement (to the extent legally permitted) so that Buyer may seek an appropriate protective order, confidential treatment, or other appropriate remedy, (B) cooperate fully with Buyer, at Buyer's expense, in any effort by Buyer to obtain such protective order or other remedy, and (C) in the event that such protective order or other remedy is not obtained, disclose only that portion of the Confidential Information that is legally required to be disclosed, and shall use commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to the Confidential Information so disclosed;
(ii) Confidential Information that becomes generally available to the public other than through a disclosure by any Restricted Party or any person acting on behalf of or at the direction of any Restricted Party in violation of this Agreement or any other confidentiality obligation;
(iii) Confidential Information that is independently developed by the Restricted Party after the Closing Date without the use of, reference to, or reliance upon any Confidential Information, as demonstrated by contemporaneous written records of such independent development; and
(iv) Confidential Information that is lawfully obtained by the Restricted Party on a non-confidential basis from a third party who is not, to the knowledge of the Restricted Party, (A) bound by a confidentiality agreement with, or other contractual, legal, or fiduciary obligation of confidentiality to, Buyer, the Company, or any of their respective affiliates with respect to such information, or (B) otherwise prohibited from disclosing such information to the Restricted Party.
(c) Return of Materials. Upon the Closing Date (except to the extent that Gerald T. Brennan or Derek J. Kopp requires access to certain Confidential Information in connection with the TSA or the Kopp Employment Agreement, respectively), and in any event promptly upon written request by Buyer at any time, each Restricted Party shall return to Buyer all originals and copies of all documents, files, records, notes, memoranda, reports, analyses, data, software, media, and other materials (in whatever form or medium, whether physical or electronic) that contain, reflect, embody, or constitute Confidential Information, and shall not retain any copies, extracts, summaries, or other reproductions thereof in any form. Each Restricted Party shall certify in writing to Buyer that he or she has complied with the requirements of this Section 2.4(c) promptly following such return or destruction, as applicable.
Section 2.5 — Non-Disparagement
(a) Each Restricted Party agrees that, at all times from and after the Closing Date, he or she shall not, directly or indirectly, make, publish, communicate, or cause to be made, published, or communicated, any statement, comment, remark, or observation (whether written, oral, electronic, or in any other form or medium, including on social media platforms, internet forums, or in communications with members of the press or media) that is disparaging, defamatory, derogatory, or damaging to the reputation, goodwill, or business interests of Buyer, the Acquired Business, or any of Buyer's affiliates, parents, subsidiaries, or related entities, or any of their respective officers, directors, managers, employees, investors, agents, or representatives.
(b) Buyer agrees that, at all times from and after the Closing Date, it shall not, and shall cause its officers and directors not to, directly or indirectly, make, publish, communicate, or cause to be made, published, or communicated, any statement, comment, remark, or observation that is disparaging, defamatory, derogatory, or damaging to the reputation of any Restricted Party.
(c) Notwithstanding anything to the contrary in this Section 2.5, the non-disparagement obligations set forth above shall not restrict or prohibit any Restricted Party or Buyer from (i) making truthful statements that are required by applicable law, rule, regulation, or legal process (including testimony under oath), (ii) making truthful statements in connection with the enforcement of this Agreement or any other Transaction Document (as defined in the Purchase Agreement), or (iii) making truthful statements in response to a subpoena, civil investigative demand, or other compulsory legal process.
ARTICLE III — REASONABLENESS; ACKNOWLEDGMENTS
Section 3.1 — Acknowledgment of Reasonableness
Each Restricted Party acknowledges and agrees that:
(i) The restrictive covenants set forth in this Agreement are reasonable and necessary to protect the legitimate business interests and goodwill of the Acquired Business that Buyer is acquiring for aggregate consideration of Thirty Million Dollars ($30,000,000), including the customer relationships, supplier relationships, trade secrets, confidential business information, and going-concern value of the Acquired Business, and that the restrictive covenants are a material component of the consideration for the Purchase Price;
(ii) Each Restricted Party has received or is receiving substantial consideration in connection with the transactions contemplated by the Purchase Agreement, including his or her respective pro rata share of the Twenty-Four Million Dollar ($24,000,000) closing cash payment (less the escrow holdback amount) and the opportunity to receive up to Six Million Dollars ($6,000,000) in earnout payments, which such consideration constitutes adequate, independent, and sufficient consideration for each of the covenants, agreements, and obligations undertaken by each Restricted Party herein;
(iii) The scope (including the duration, geographic area, and nature and extent of the activity restrictions) of each covenant is reasonable in light of each Restricted Party's respective role in, knowledge of, and access to confidential information regarding, the Acquired Business, and that the restrictions imposed herein are no greater than necessary to protect Buyer's legitimate business interests;
(iv) Enforcement of the covenants contained in this Agreement will not impose an undue hardship on any Restricted Party or deprive any Restricted Party of the ability to earn a livelihood, and that each Restricted Party possesses skills, experience, and qualifications sufficient to permit him or her to earn a living in activities that do not violate the covenants contained herein; and
(v) Each Restricted Party has had adequate time and opportunity to consider the implications of the restrictive covenants contained herein and has had the opportunity to negotiate the terms thereof with Buyer.
Section 3.2 — Independent Covenants
The covenants and obligations contained in this Agreement are severable and independent of any other provisions of this Agreement and of any other obligations or agreements between or among any of the parties hereto. The existence of any claim or cause of action by any Restricted Party against Buyer or any of its affiliates, whether arising under the Purchase Agreement, the TSA, the Kopp Employment Agreement, this Agreement, or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants set forth herein and shall not excuse or justify any Restricted Party's breach of the obligations set forth in this Agreement.
Section 3.3 — Knowledge of the Business
Each Restricted Party acknowledges that Buyer is relying upon the restrictive covenants contained herein in connection with its acquisition of the Acquired Business and that such reliance is reasonable in light of the following:
(a) Gerald T. Brennan. Gerald T. Brennan is the founder of the Company and has been involved in the structural metals and metal fabrication industry for more than thirty (30) years. G. Brennan holds a sixty-five percent (65%) membership interest in the Company and has served as Managing Member since the Company's formation. G. Brennan possesses comprehensive and intimate knowledge of all aspects of the Acquired Business, including its customers, key customer contacts, pricing structures, bid strategies, cost structures, fabrication processes, production capabilities, equipment, suppliers, vendor relationships, employee skills and compensation, financial performance, strategic plans, and competitive positioning. G. Brennan has been the primary point of contact for many of the Acquired Business's largest and longest-standing customer relationships.
(b) Sandra L. Brennan. Sandra L. Brennan holds a twenty percent (20%) membership interest in the Company and has been actively involved in the bookkeeping and office administration functions of the Company. S. Brennan has knowledge of customer accounts, customer pricing and payment histories, accounts receivable and accounts payable data, financial information, and other operational and financial information relating to the Acquired Business.
(c) Derek J. Kopp. Derek J. Kopp holds a fifteen percent (15%) membership interest in the Company and has served as Vice President of Operations since 2012. Kopp possesses comprehensive knowledge of the Acquired Business's fabrication processes, production methods, equipment capabilities, quality control protocols, project management procedures, customer relationships (particularly with respect to technical and field installation matters), field crew management, and key employee skills, abilities, and compensation. Kopp has direct relationships with many of the Acquired Business's customers and has played a central role in the Company's operations and project execution.
ARTICLE IV — REMEDIES
Section 4.1 — Irreparable Harm
Each Restricted Party acknowledges and agrees that the restrictive covenants contained in this Agreement are of a special, unique, and extraordinary character, and that a breach or threatened breach of any such covenant by any Restricted Party would cause Buyer and the Acquired Business irreparable injury and damage that cannot be adequately compensated by monetary damages alone. Each Restricted Party further acknowledges that the harm resulting from any such breach would be difficult, if not impossible, to quantify and that monetary damages would be inadequate to make Buyer whole.
Section 4.2 — Injunctive Relief
In the event of any breach or threatened breach of any of the restrictive covenants contained in this Agreement, Buyer shall be entitled to seek and obtain temporary restraining orders, preliminary injunctions, permanent injunctions, and other equitable relief to restrain and enjoin such breach or threatened breach, in addition to any and all other remedies available to Buyer at law or in equity, without the necessity of (a) posting a bond, undertaking, or other security (each Restricted Party hereby waiving any requirement therefor), or (b) proving actual damages or the inadequacy of monetary damages (each Restricted Party hereby acknowledging and stipulating that the requirements for equitable relief are satisfied). Such equitable relief shall be in addition to, and not in lieu of, any other remedies available to Buyer at law or in equity, including the right to recover monetary damages. No single exercise of the right to seek equitable relief shall preclude any subsequent exercise of such right.
Section 4.3 — Extension of Restricted Period
If any Restricted Party violates any of the restrictive covenants contained in Article II of this Agreement, the applicable Restricted Period for such Restricted Party shall automatically be extended by a period of time equal to the duration of such violation (measured from the date on which the violation commenced through the date on which the violation is permanently ceased or cured), so that Buyer shall receive the full benefit of the bargained-for period of restriction. Each Restricted Party acknowledges that this extension provision is reasonable and necessary to ensure that Buyer receives the protection for which it bargained in connection with its acquisition of the Acquired Business.
Section 4.4 — Accounting of Profits
In addition to injunctive relief and monetary damages, in the event of a breach of any of the restrictive covenants contained in this Agreement, Buyer shall be entitled to an accounting of all profits, revenues, compensation, commissions, remuneration, or other benefits derived by the breaching Restricted Party, directly or indirectly, from any activity constituting a violation of this Agreement. Each Restricted Party agrees to cooperate fully with any such accounting and to provide Buyer with access to all books, records, and financial information reasonably necessary to conduct such accounting.
Section 4.5 — Indemnification
Each Restricted Party shall indemnify, defend, and hold harmless Buyer and its respective affiliates, parents, subsidiaries, officers, directors, managers, employees, agents, successors, and assigns (collectively, the "Buyer Indemnified Parties") from and against any and all losses, damages, liabilities, obligations, claims, demands, actions, suits, proceedings, judgments, penalties, fines, costs, fees, and expenses (including reasonable attorneys' fees, experts' fees, court costs, and other costs of investigation and litigation) (collectively, "Losses") arising out of, resulting from, or relating to any breach or violation of any covenant, obligation, or provision of this Agreement by such Restricted Party. The indemnification obligations set forth in this Section 4.5 are in addition to, and not in limitation of, any other indemnification rights or remedies available to Buyer under the Purchase Agreement or applicable law.
ARTICLE V — BLUE PENCIL / JUDICIAL MODIFICATION
Section 5.1 — Reformation
The parties intend that the restrictive covenants contained in this Agreement be enforced to the fullest extent permitted by applicable law. If any court or arbitral tribunal of competent jurisdiction determines that any provision, covenant, or restriction contained in this Agreement is unenforceable or invalid because it is overbroad, unreasonable, or excessive in scope, duration, geographic area, range of restricted activities, or otherwise, then such court or tribunal is hereby authorized, empowered, and requested to reform, modify, and construe such provision, covenant, or restriction by limiting and reducing it to the minimum extent necessary to render it valid and enforceable in accordance with the intent of the parties as expressed herein, and the remaining provisions of this Agreement shall remain in full force and effect without being impaired or invalidated in any way. Each Restricted Party acknowledges and agrees that a court exercising reformation authority under this Section 5.1 is consistent with the parties' intent and expectations at the time of execution of this Agreement.
Section 5.2 — Severability
If any provision, clause, or part of any provision of this Agreement is held to be invalid, illegal, void, or unenforceable by any court of competent jurisdiction, such holding shall not affect, impair, or invalidate any other provision, clause, or part of this Agreement, and the remainder of this Agreement shall remain in full force and effect. This Agreement shall be construed as if such invalid, illegal, void, or unenforceable provision had never been contained herein, and the parties shall negotiate in good faith to replace such provision with a valid, legal, and enforceable provision that achieves, to the greatest extent possible, the economic, business, and other purposes of the original provision.
ARTICLE VI — REPRESENTATIONS AND WARRANTIES OF THE RESTRICTED PARTIES
Each Restricted Party, severally and not jointly, represents and warrants to Buyer as follows:
Section 6.1 — Authority and Capacity
Such Restricted Party has full legal capacity and authority to execute, deliver, and perform his or her obligations under this Agreement. This Agreement constitutes the valid and binding obligation of such Restricted Party, enforceable against him or her in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity.
Section 6.2 — No Conflicts
The execution, delivery, and performance by such Restricted Party of this Agreement does not and will not (a) conflict with, violate, result in a breach of, or constitute a default (with or without notice or lapse of time or both) under any agreement, contract, instrument, obligation, commitment, arrangement, or understanding (whether written or oral) to which such Restricted Party is a party or by which he or she is bound, (b) violate any order, judgment, injunction, decree, stipulation, determination, or award entered by or with any governmental authority binding upon such Restricted Party, or (c) violate any applicable law, rule, or regulation.
Section 6.3 — Adequate Consideration
Such Restricted Party acknowledges that he or she is receiving good, valuable, and adequate consideration for the covenants and obligations set forth in this Agreement, including, without limitation: (a) his or her respective pro rata share of the Purchase Price payable pursuant to the Purchase Agreement; (b) with respect to Gerald T. Brennan, the compensation and benefits provided under the TSA; (c) with respect to Derek J. Kopp, the compensation and benefits provided under the Kopp Employment Agreement; and (d) the other benefits arising under and in connection with the Purchase Agreement and the transactions contemplated thereby. Each Restricted Party acknowledges that the consideration described in this Section 6.3 is sufficient and adequate to support his or her obligations under this Agreement and that no additional consideration is required.
Section 6.4 — Voluntary Execution
Such Restricted Party has carefully read and fully understands the terms and conditions of this Agreement, including the nature, scope, and duration of the restrictive covenants contained herein. Such Restricted Party has had the opportunity to consult with independent legal counsel of his or her choosing, including counsel at Halverson Burke & Crane LLP, regarding the terms, conditions, and legal effect of this Agreement, and has in fact had the benefit of such counsel. Such Restricted Party is executing and delivering this Agreement voluntarily, knowingly, and of his or her own free will, without duress, coercion, or undue influence, and with a full understanding of the restrictions and obligations imposed hereby.
ARTICLE VII — GENERAL PROVISIONS
Section 7.1 — Governing Law
This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State, without giving effect to any choice or conflict of laws provision, rule, or principle (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. Each Restricted Party acknowledges that the Purchase Agreement is governed by the laws of the State of New York and agrees that it is appropriate for this Agreement to be governed by the same body of law.
Section 7.2 — Jurisdiction and Venue
Each Restricted Party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the state courts of the State of New York sitting in the County of New York (Borough of Manhattan) and the United States District Court for the Southern District of New York for the resolution of any action, suit, proceeding, dispute, or controversy arising out of or relating to this Agreement or the transactions contemplated hereby, and each Restricted Party agrees not to commence any action, suit, or proceeding relating to this Agreement except in such courts. Each Restricted Party hereby irrevocably and unconditionally waives (a) any objection that he or she may now or hereafter have to the laying of venue in any such court, (b) any claim that any such action, suit, or proceeding has been brought in an inconvenient forum, and (c) any right to removal of any such action, suit, or proceeding to any other court. Each Restricted Party agrees that service of process in any such action, suit, or proceeding may be made by delivery of a copy of the summons and complaint in accordance with the notice provisions set forth in Section 7.4 of this Agreement, or in any other manner permitted by applicable law.
Section 7.3 — Waiver of Jury Trial
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, COUNTERCLAIM, OR CROSS-CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SUIT, OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 7.3.
Section 7.4 — Notices
All notices, requests, demands, claims, consents, waivers, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered by hand or by personal delivery, (b) one (1) business day after being sent by a nationally recognized overnight courier service (with evidence of delivery), (c) three (3) business days after being mailed by certified or registered mail, return receipt requested, postage prepaid, or (d) when sent by email (with confirmation of transmission and delivery receipt), in each case addressed to the applicable party at the following addresses (or at such other address as such party may designate from time to time in accordance with this Section 7.4):
If to Buyer:
Nexford Industrial Holdings Inc. 4200 West Lake Shore Drive, Suite 800 Chicago, Illinois 60604
Attention: Philip M. Stanhope, General Counsel
Email: pstanhope@nexfordindustrial.com
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 120 South LaSalle Street, Suite 4500 Chicago, Illinois 60603
Attention: Oliver Mackenzie
Email: omackenzie@calderwoodharkness.com
If to Gerald T. Brennan:
At his home address on file with the Company.
with a copy (which shall not constitute notice) to:
Halverson Burke & Crane LLP 350 North Meridian Street, Suite 1400 Indianapolis, Indiana 46204
Attention: Thomas A. Gilroy
Email: tgilroy@halversenburke.com
If to Sandra L. Brennan:
At her home address on file with the Company.
with a copy (which shall not constitute notice) to:
Halverson Burke & Crane LLP 350 North Meridian Street, Suite 1400 Indianapolis, Indiana 46204
Attention: Thomas A. Gilroy
Email: tgilroy@halversenburke.com
If to Derek J. Kopp:
At his home address on file with the Company.
with a copy (which shall not constitute notice) to:
Halverson Burke & Crane LLP 350 North Meridian Street, Suite 1400 Indianapolis, Indiana 46204
Attention: Thomas A. Gilroy
Email: tgilroy@halversenburke.com
Any party may change its address for the purpose of receiving notices by providing written notice of such change to the other parties in accordance with this Section 7.4.
Section 7.5 — Assignment
No Restricted Party may assign, transfer, delegate, or otherwise dispose of any of his or her rights or obligations under this Agreement without the prior written consent of Buyer, and any attempted assignment, transfer, delegation, or disposition without such consent shall be null, void, and of no force or effect. Buyer may freely assign, transfer, or delegate its rights and obligations under this Agreement, in whole or in part, to any affiliate of Buyer or to any successor in interest to all or substantially all of the assets or business of Buyer or the Acquired Business (including, without limitation, in connection with a merger, consolidation, reorganization, sale of assets, or other change of control transaction involving Buyer or the Acquired Business), without the consent of any Restricted Party, and upon any such assignment, the assignee shall succeed to and be substituted for Buyer hereunder with respect to the rights and obligations so assigned. Any permitted assignment shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and assigns.
Section 7.6 — Entire Agreement
This Agreement, together with the Purchase Agreement, the TSA (as to Gerald T. Brennan), and the Kopp Employment Agreement (as to Derek J. Kopp), and all exhibits, schedules, and annexes attached thereto, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, representations, warranties, and communications, whether written or oral, relating to the subject matter of this Agreement. No party has relied upon any representation, warranty, statement, or promise of any other party that is not expressly set forth in this Agreement or the other agreements referenced herein.
Section 7.7 — Amendment and Waiver
No amendment, modification, supplement, or restatement of any provision of this Agreement shall be valid or effective unless made in a writing signed by Buyer and the affected Restricted Party or Restricted Parties. No waiver of any provision of this Agreement, or of any breach or default thereof, shall be effective unless made in a writing signed by the party against whom enforcement of such waiver is sought. No waiver of any provision or breach shall be deemed a waiver of any other provision or any subsequent breach of the same or any other provision, nor shall any single or partial exercise of any right, power, or privilege under this Agreement preclude any further exercise thereof or the exercise of any other right, power, or privilege.
Section 7.8 — Third-Party Beneficiaries
Except as expressly provided in this Section 7.8, this Agreement is not intended to, and shall not, confer any rights, benefits, or remedies upon any person or entity other than the parties hereto and their respective permitted successors and assigns. Notwithstanding the foregoing, Buyer's affiliates, including, without limitation, Bramblewood Capital Partners, LP and each direct and indirect subsidiary of Buyer, are intended third-party beneficiaries of this Agreement and shall have the right to enforce the covenants, agreements, and obligations contained herein as if they were parties hereto. Each Restricted Party acknowledges that Buyer is entering into this Agreement for the benefit of Buyer and its affiliates, and that the Acquired Business may be operated by Buyer or any of its affiliates following the Closing Date.
Section 7.9 — Counterparts
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile, portable document format (.pdf), electronic signature (including via Brightwater Software, Ashford Health IT, or other similar electronic signature platform), or other electronic transmission shall be effective as delivery of a manually executed counterpart, and each party hereby agrees that electronic signatures shall be given the same legal force and effect as original ink signatures.
Section 7.10 — Relationship to Other Agreements
The covenants, restrictions, and obligations contained in this Agreement are in addition to, and not in substitution for, limitation of, or derogation from, any restrictive covenants, confidentiality obligations, non-competition provisions, non-solicitation provisions, or similar restrictions contained in the TSA, the Kopp Employment Agreement, or any other agreement between or among any Restricted Party and Buyer or any of Buyer's affiliates, whether entered into prior to, on, or after the date hereof. In the event of any conflict, inconsistency, or overlap between the restrictive covenants contained herein and those contained in the TSA, the Kopp Employment Agreement, or any other such agreement, the more restrictive covenant (whether in terms of duration, geographic scope, range of restricted activities, or otherwise) shall govern and shall be enforceable in accordance with its terms, and the less restrictive covenant shall also remain separately enforceable to the fullest extent permitted by applicable law.
Section 7.11 — Attorneys' Fees
In any action, suit, proceeding, or arbitration brought to enforce any provision of this Agreement, or arising out of or relating to a breach or threatened breach of this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party its reasonable attorneys' fees, experts' fees, court costs, and other costs and expenses of litigation or arbitration, in addition to any other relief to which such prevailing party may be entitled. For purposes of this Section 7.11, the "prevailing party" shall mean the party that substantially prevails on the merits of the claims or defenses asserted in such action, suit, proceeding, or arbitration, as determined by the court or arbitral tribunal having jurisdiction.
Section 7.12 — Construction
This Agreement has been negotiated by the parties hereto and their respective counsel, and shall not be construed against any party by reason of the fact that such party or its counsel drafted or prepared all or any portion of this Agreement. Each Restricted Party and Buyer acknowledge that all parties and their respective counsel have had the opportunity to review, comment upon, and negotiate the terms and conditions of this Agreement, and that the terms hereof reflect the mutual agreement of all parties. References herein to the Purchase Agreement and related transaction documents are for context, interpretation, and definitional purposes, and nothing herein shall be construed to amend, modify, or supersede any provision of the Purchase Agreement or any other transaction document.
EXHIBIT A — SUMMARY TABLE OF RESTRICTIVE COVENANTS
The following table sets forth a summary of the restrictive covenants applicable to each Restricted Party under this Agreement. This table is for reference purposes only and is qualified in its entirety by the terms and conditions of Article II.
Note: All Restricted Parties are subject to confidentiality obligations (indefinite duration) and non-disparagement obligations under Sections 2.4 and 2.5, respectively. The covenants set forth above are in addition to, and not in lieu of, any restrictive covenants contained in the Transition Services Agreement (as to Gerald T. Brennan) or the Kopp Employment Agreement (as to Derek J. Kopp).
[SIGNATURE PAGE FOLLOWS]
SIGNATURE PAGE TO NON-COMPETITION AND NON-SOLICITATION AGREEMENT
IN WITNESS WHEREOF, the undersigned have executed and delivered this Non-Competition and Non-Solicitation Agreement as of the date first written above.
RESTRICTED PARTIES:
________________________________________
Gerald T. Brennan
Date: ________
________________________________________
Sandra L. Brennan
Date: ________
________________________________________
Derek J. Kopp
Date: ________
BUYER (for acknowledgment and acceptance):
NEXFORD INDUSTRIAL HOLDINGS INC.
By: ________
Name: Marcus R. Haverford
Title: Chief Executive Officer
Date: October 24, 2023
Restricted Party | Non-Compete Duration | Non-Compete Territory | Non-Solicit (Business Relationships) Duration | Non-Solicit (Employees) Duration
Gerald T. Brennan | 3 years (Closing Date through October 24, 2026) | 150-mile radius from 1127 Industrial Parkway, Hammond, IN 46320 | 3 years (Closing Date through October 24, 2026) | 3 years (Closing Date through October 24, 2026)
Sandra L. Brennan | N/A | N/A | 2 years (Closing Date through October 24, 2025) | 2 years (Closing Date through October 24, 2025)
Derek J. Kopp | 18 months (Closing Date through April 24, 2025) | 150-mile radius from 1127 Industrial Parkway, Hammond, IN 46320 | 18 months (Closing Date through April 24, 2025) | 18 months (Closing Date through April 24, 2025)

NON-COMPETITION AND NON-SOLICITATION AGREEMENT

GERALD T. BRENNAN

SANDRA L. BRENNAN

DEREK J. KOPP

NEXFORD INDUSTRIAL HOLDINGS INC.

RECITALS

WHEREAS:

SIGNATURE PAGE TO NON-COMPETITION AND NON-SOLICITATION AGREEMENT

RESTRICTED PARTIES:

NEXFORD INDUSTRIAL HOLDINGS INC.

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