Exhibit 10.3


 


FORM OF


NONCOMPETITION AGREEMENT


 


THIS
NONCOMPETITION AGREEMENT (the “Agreement”)
is made as of November 5, 2010 and effective as of the Closing Date (as
defined in the Merger Agreement (as defined below)) (the “Effective Date”) by and between
Primoris Services Corporation, a Delaware corporation (“Buyer”), and Employee,
an individual (“Seller”).


 


R E C I T A L S


 


A.            Buyer and Seller are parties
to an Agreement and Plan of Merger dated  as
of  November 5, 2010 (the “Merger
Agreement”), pursuant to which Buyer is acquiring all of the
outstanding shares of Rockford Holdings Corporation (the “Company”).  Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement.


 


B.            Seller beneficially owns a
material percentage of the equity interests of the Company and, as a result,
Seller will derive substantial financial benefit from the transactions
contemplated by the Merger Agreement.


 


C.            Following the consummation of
the transactions contemplated by the Merger Agreement, Buyer will engage in a business that provides, among other services, site development, heavy
civil construction, infrastructure construction projects, including highways
and bridges, oil and gas pipeline construction, directional drilling,
construction of industrial facilities, equipment installation, storage
facilities, process piping, engineering, project management, inspection
services, structural steel and maintenance services (the “Business”).


 


D.            It is a condition of Buyer’s
obligations to consummate the transactions contemplated by the Merger Agreement
that Seller execute and deliver to Buyer a noncompetition agreement
incorporating the terms and conditions set forth herein, in order to protect
the goodwill of the Business that is being acquired by Buyer under the Merger
Agreement.


 


NOW, THEREFORE, in consideration of the
covenants and agreements contained herein and in the Merger Agreement (but not
in consideration for any employment relationship or contract and not in the
context of any employment relationship or contract), and intending to be
legally bound hereby, the parties hereto agree as follows:


 


1.             Agreement
Not To Compete.


 


(a)           In order to protect the
business of Buyer and any of its Affiliates (as defined below), for a period of
five (5) years beginning on the Effective Date and ending on the date
which is five (5) years thereafter (the “Termination Date”):


 


(i)            Seller will not, within the
United States (the “Territory”), engage in, provide consulting services
to, be employed by or have any interest in (whether as a proprietor, partner,
director, officer, employee or stockholder) any corporation, general or


 

















 


limited partnership,
association, limited liability company, sole proprietorship, trust or other entity
or organization, other than Buyer or any of its Affiliates, which is engaged in
a business that directly competes with the Business;


 


(ii)           Seller will not, directly or
indirectly, at any time during the term of this Agreement (from the Effective
Date through the Termination Date): (A) employ, or permit any company or
business directly or indirectly controlled by Seller to employ, any person who
is employed by Buyer or any entity controlling, controlled by or under common
control with Buyer (an “Affiliate”);
(B) interfere with or attempt to disrupt the relationship, contractual or
otherwise, between Buyer or any of its Affiliates and any of their employees or
consultants; (C) solicit or in any manner seek to induce any employee or
consultant of Buyer or any of its Affiliates to terminate his or her employment
or engagement with Buyer or any of its Affiliates; or (D) within the
Territory, solicit any customers of Buyer or any of its Affiliates unless such
solicitation is not related to the Business; and


 


(iii)          Notwithstanding the
foregoing, Seller shall not be precluded from engaging in any activity in
Seller’s individual capacity relating or pertaining to services for
engineering, project management, inspection or consultation that is performed
directly for owners or customers that do not directly or indirectly compete
with the Business of the Buyer as described herein.


 


(b)           Notwithstanding Section 1(a) of
this Agreement, Seller shall not be precluded from purchasing or owning stock
in a publicly-held corporation if Seller’s holdings are less than two percent (2%) of the outstanding
capital stock of such corporation and will not be precluded from owning an
interest in Buyer.


 


2.             Acknowledgments
of Seller.  Seller hereby
acknowledges and agrees that:


 


(a)           this Agreement is necessary
for the protection of the legitimate business interests of Buyer and its
Affiliates, including but not limited to the protection of the goodwill of the
Company which Buyer is acquiring;


 


(b)           the restrictions contained
in this Agreement regarding geographical scope, length of term and types of
activities restricted are reasonable;


 


(c)           the execution and delivery
of this Agreement is a mandatory condition precedent to the consummation by
Buyer of the transactions provided for in the Merger Agreement;


 


(d)           Seller has no intention of
competing with Buyer or any of its Affiliates with respect to the Business
within the limitations set forth above;


 


(e)           as an owner of the Company
and through his ownership of the Company, Seller has received, either directly
or indirectly, adequate and valuable consideration for entering into this
Agreement.


 


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(f)            Buyer’s business is national
in nature and Buyer contracts with national clients requiring Buyer to do work
throughout the United States;


 


(g)           Seller acknowledges that the
Business of the Company is also national in nature; and


 


(h)           Seller acknowledges that
this Agreement is not entered into in consideration in whole or in part for any
employment relationship or employment contract which is effective for the
period after the Closing with Buyer or any Affiliate of Buyer including
Rockford Corporation.


 


3.             Extension;
Equitable Relief; Fees and Expenses.


 


(a)           If Seller is determined by a
court of competent jurisdiction to have violated the provisions of Section 1
hereinabove, the term described therein will be extended by that number of days
which is equal to the aggregate number of days during which, at any time,
Seller committed any such violation.


 


(b)           Seller stipulates and agrees
that any breach of this Agreement by Seller will result in immediate and
irreparable harm to Buyer and its Affiliates, the amount of which will be
extremely difficult to ascertain, and that Buyer could not be reasonably or
adequately compensated by damages in an action at law.  For these reasons, Buyer or any of its
Affiliates shall have the right to obtain such preliminary, temporary or
permanent mandatory or restraining injunctions, orders or decrees as may be
necessary to protect Buyer or any of its Affiliates against, or on account of,
any breach by Seller of the provisions of Section 1(a) of this
Agreement without the proof of any actual damage caused to Buyer or any of its
Affiliates.  Such right to equitable
relief is in addition to all other legal remedies Buyer or any of its
Affiliates may have to protect its rights.


 


(c)           Each party shall bear its
own attorneys’ fees and expenses in any suit or proceeding initiated in
connection with this Agreement.


 


4.             Severability.  The covenants, provisions and paragraphs of
this Agreement are severable.  In the
event that any portion of this Agreement is held to be illegal or
unenforceable, in whole or in part, the same will not affect any other portion
of this Agreement, and the remaining covenants, provisions and paragraphs or
portions thereof, to the extent enforceable, shall, nevertheless, be binding
and enforceable.  In furtherance and not
in limitation of the foregoing, if any durational or geographic restriction or
restriction on business activities covered under this Agreement shall be found
by any court of competent jurisdiction to be overly-broad, and thus illegal or
unenforceable, Seller and Buyer intend that such court will enforce this
Agreement in any less broad manner the court may find appropriate by construing
such overly-broad provisions to cover only that duration, geographic area or
business activities which may be enforceable. 
The parties expressly agree that this Agreement shall be given the
construction that renders its provisions valid and enforceable to the maximum
extent permitted by law and/or equity.


 


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5.             Amendments.  No supplement, modification, amendment or
waiver of the terms of this Agreement shall be binding on the parties hereto
unless executed in writing by the party to be bound thereby.  No waiver of any of the provisions of this
Agreement shall be deemed to or shall constitute a waiver of any other
provisions hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided.  Any failure to insist upon strict compliance
with any of the terms and conditions of this Agreement shall not be deemed a
waiver of any such terms or conditions.


 


6.             Successors
In Interest.  This
Agreement shall be binding upon and shall inure to the benefit of the
successors, assigns, estates, heirs and personal representatives of the parties
hereto (provided that the restrictions themselves shall not apply to the
successors, assigns, estates, heirs and personal representatives of
Seller).  Neither party may assign his or
its rights or obligations hereunder without the prior written consent of the
other party hereto.  Notwithstanding the
foregoing, Buyer may assign its rights hereunder to any Affiliate or to any
successor in interest to the entire business of Buyer or to substantially all
of the assets of Buyer.


 


7.             Governing
Law.  This Agreement shall be
governed by and shall be construed in accordance with the laws of the State of
Delaware without regard to the conflicts or choice of law provisions of any
jurisdiction.


 


8.             Consent to
Jurisdiction.  Each party
hereto hereby irrevocably submits to the exclusive venue in state or federal
court in Orange County, California for the purposes of any suit, action or
proceeding arising out of or relating to this Agreement, and (b) hereby
waives, and agrees not to assert in any such suit, action or proceeding, any
claim that it is not personally subject to the jurisdiction of such court, that
the suit, action or proceeding is brought in an inconvenient forum or that the
venue of the suit, action or proceeding is improper. Each party hereto consents
to process being served in any such suit, action or proceeding by mailing a
copy thereof via certified mail, return receipt requested, to such party at the
address in effect for notices to it under Section 9 and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing in this Section 8 shall affect or limit any right
to serve process in any other manner permitted by law.


 


9.             Notices.  All notices or other communications given
pursuant to this Agreement shall be given in accordance with Section 9.7
of the Merger Agreement and, in the case of the Seller, shall be delivered as
follows:


 


Employee
Address and Phone Number


 


10.           Counterparts.  This Agreement may be executed in one or more
counterparts, all of which when taken together shall comprise one instrument.


 


11.           Headings.  The headings used in this Agreement are for
convenience only and are not to be considered in construing or interpreting
this Agreement.


 


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[Signature page follows.]


 


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IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
day and year first above written.


 


 


	
  BUYER:

  	
  Primoris Services Corporation,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SELLER:

  	
   

  
	
   

  	
   

  
	
   

  	
  Employee

  



 


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