MISCOR Walsh Non-Compete Agreement
Exhibit
10.5
MISCOR
Xxxxx Non-Compete Agreement
This
Non-Compete
Agreement(“Agreement”)
is made and
entered into this 16th day of January, 2008 (“Effective
Date”), by and between MISCOR Group, Ltd., an Indiana corporation (“MISCOR” or
“Company”) and Xxxx Xxxxx (“Xxxxx”).
Recitals
:
A.
Since July 2005, American Motive Power, Inc. (“AMP”) has been engaged in the
repair, remanufacturing and rebuilding of locomotive engines, as well as
providing related goods and services to the railroad industry (as conducted
on
and prior to the date hereof, the “Business”), from its facility at 9431 Xxxxxx
Xxxxxxx Road, Dansville, New York.
X.
Xxxxx has been the Vice President – Sales and Business Development of AMP since its
inception. Xxxxx has also been a shareholder of AMP since January
2007.
X.
Xxxxx is intimately familiar with the Business, including its operations,
employees, suppliers and customers.
D.
Pursuant to the AMP Stock Purchase Agreement (the “Stock Purchase Agreement”),
executed January 16, 2008, MISCOR has purchased all of the outstanding stock
of
AMP.
E.
MISCOR would not have been willing to enter into the Stock Purchase Agreement
without the agreement of Xxxxx to execute this Agreement, along with the
execution of a similar agreement by each of the other shareholders of
AMP.
F.
The consummation by MISCOR of the transactions contemplated by the Stock
Purchase Agreement is in reliance upon the assurance of Xxxxx that he will
comply fully with all of the terms and conditions of this
Agreement.
NOW,
THEREFORE, in
consideration of the promises and covenants herein exchanged and for other
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.
Consideration. Xxxxx
hereby acknowledges and
agrees
that his execution of this Agreement is
a material inducement to MISCOR
to consummate the transactions
contemplated by the Stock
Purchase Agreement.
Xxxxx
further acknowledges and agrees that
the consummation by MISCOR
of the transactions contemplated by the
Stock Purchase
Agreement, with the resulting
significant benefits to Xxxxx,
constitutes sufficient consideration
to support the covenants set forth in this Agreement.
2.
Term. This
Agreement shall commence on the Effective Date and continue for a period
of
three (3) years.
3.
Covenants of Xxxxx.
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(a)
Covenants Against Competition
and Solicitation. Xxxxx agrees that he will not, for the
Prohibited Period (as defined below), without the express written consent
of
Company:
(i)
Directly or indirectly, as a proprietor, officer, employee, partner,
stockholder, consultant, agent, owner or otherwise, work for, render assistance
or services to or otherwise participate in any business that competes with
or
engages in business substantially similar to the Business anywhere within
the
Prohibited Territory (as defined below);
This
non-compete provision shall not be enforced by the Company to prevent Xxxxx
from
engaging in the purchase or sale of railroad equipment or services not directly
competitive with the equipment or services offered by the Company.
(ii)
Directly or indirectly, induce, hire or solicit or seek to induce, hire or
solicit any person who was engaged with AMP as an employee, agent, independent
contractor or otherwise at any time within one year before the Closing Date
to
end his or her engagement or employment with Company, other than as a result
of
a general solicitation not specifically directed at the employees of the
AMP or
at any specific employee of AMP; or other than those employees disclosed
on
Exhibit A to
this Agreement.
(iii)
Either for himself or for any other person, firm, corporation or entity,
solicit, divert or accept, or attempt to solicit, divert or accept any persons
or entities which were customers or suppliers of AMP at any time within one
year
before the Closing Date with the intention that such persons not provide
goods
or services to, or decrease their supply of goods and services to, AMP. AMP
and
LMC currently have joint suppliers and vendors in several cases
For
purposes of this Agreement, the “Prohibited Territory” means anywhere within a
one thousand (1000) mile radius of AMP’s facility in Dansville, New York, unless
that geographic restriction is deemed to be of unreasonably broad scope,
and
therefore unenforceable, by a court of competent jurisdiction, in which case
the
next sentence shall define the Prohibited Territory. The Prohibited
Territory means anywhere within a five-hundred (500) mile radius of AMP’s
facility in Dansville, New York, unless that geographic restriction is deemed
to
be of unreasonably broad scope, and therefore unenforceable, by a court of
competent jurisdiction, in which case the next sentence shall define the
Prohibited Territory. The Prohibited Territory means anywhere within
a two-hundred-fifty (250) mile radius of AMP’s facility in Dansville, New
York.
The
term
“Prohibited Period” shall be defined as a period of three (3) years from and
after the Closing Date as defined in the Stock Purchase Agreement.
(b)
Reasonableness of
Covenants. Xxxxx acknowledges and agrees that the temporal,
geographic and other limitations contained in this Section 3 are reasonable
and
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necessary
for the proper protection of MISCOR’s investment in AMP and shall be enforceable to
the fullest
extent permitted by law.
(c)
Modification. In the event that any term, provision or covenant contained
in
this Section 3 is found to be unreasonable, and therefore unenforceable,
by a
court of competent jurisdiction, but would be valid and enforceable if any
part
thereof were deleted or otherwise modified, then the parties expressly agree
that a court may limit the application of, or modify any such term, provision
or
covenant and proceed to enforce such term, provision or covenant as so limited
or modified.
4.
Remedies for
Breach. Xxxxx acknowledges that Company’s remedy at law for
any breach of Xxxxx’ obligations under Section 3 would be inadequate and
specifically agrees that Company shall be entitled to injunctive relief against
him, without the necessity of proof of actual damage or the posting of a
bond,
in addition to any other remedies available at law or in equity, including
compensatory damages incurred by Company as a result of such violation and
including costs, expenses and reasonable attorneys’ fees in enforcing any of its
rights under Section 3. The rights and remedies set forth in this
Agreement shall be cumulative and not exclusive.
5.
Miscellaneous.
(a)
Notices. Any
notice
required or permitted to be given under this Agreement shall be in writing
and
shall be deemed to have been duly given on the date delivered, if delivered
in
person, or on the date mailed, if mailed first-class, postage prepaid, certified
mail, return receipt requested, at the address set forth below (or such other
address as may be given by like notice):
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If
to Company:
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MISCOR
Industrial Services, Inc.
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0000
Xxxxx Xxxxxx Xxxxxx
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Xxxxx
Xxxx, Xxxxxxx 00000
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Attn: Xxxx
X. Xxxxxxx
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And Xxxxx
X. Xxxxx
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with
a copy to:
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Xxxxxx/Wink
LLP
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00
Xxxxxxxx Xxxxx, Xxxxx 000
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Xxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
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Attn: Xxxxxxx
X. Xxxx, Esq.
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Xxxxx Xxxxxxx, Esq.
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and
a copy to:
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Xxxxxx
& Xxxxxxxxx LLP
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600
1st Source Bank Center
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000
Xxxxx Xxxxxxxx
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Xxxxx
Xxxx, Xxxxxxx 00000
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Attn: Xxxxxxx
X. Xxxxx, Esq.
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If
to Xxxxx:
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Xxxx
Xxxxx
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0000
Xxxx Xxxxxx Xxxx
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Xxxx,
XX 00000
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with
a copy to:
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Boylan,
Brown, Code, Xxxxxx & Xxxxxx, LLP
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0000
Xxxxx Xxxxxx
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Xxxxxxxxx,
XX 00000
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Attn:
Xxxxxx X. Xxxxxx, Esq.
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(b)
Assignment; Binding
Effect. No party to this Agreement may assign this Agreement or such
party’s right, duties and obligations hereunder without the prior written
consent of the other party hereto; provided, that Company
shall
have the right to assign its rights hereunder to an Affiliate of
Company. Subject to the foregoing, this Agreement shall be binding
upon and inure to the benefit of the parties to this Agreement and their
heirs,
personal and legal representatives, successors and assigns. For
purposes of this Agreement, “Affiliate” means a person or entity that directly
or indirectly, through one or more intermediaries, controls, is controlled
by,
or is under common control with, another person or entity or which any person
or
entity owns or controls directly or indirectly 50% or more of the voting
shares
or of the value of such person or entity or has the ability to control the
management or affairs of such person or entity.
(c)
Severability. If
any provision of this Agreement shall be held invalid or unenforceable by
any
court of competent jurisdiction or as a result of legislative or administrative
action, such holding or action shall be strictly construed and shall not
affect
the validity or affect any other provision of this Agreement.
(d)Governing
Law; Venue. This
Agreement shall be construed,
interpreted and enforced in accordance with the laws of the State of
New York,
without giving effect to principles of
conflicts of laws. The parties expressly agree that the Indiana state
courts located in St. Xxxxxx County, Indiana (or if there is exclusive federal
jurisdiction, the United States District Court for the Northern District
of
Indiana) shall have exclusive jurisdiction and venue over any dispute arising
out of this Agreement. To the extent not otherwise subject to the
jurisdiction of such courts, the Purchaser and each Shareholder hereby agrees
to
waive any objection to jurisdiction and to subject itself to the jurisdiction
of
such courts. The parties also hereby agree to accept service of
process by Federal Express or similar overnight courier to the applicable
notice
address set forth in Section 5(a).
(e)
Waiver. The
failure of any party to enforce at
any time or for any period of time any of the provisions of this Agreement
shall
not be construed as a waiver of such provision or of the right of the party
to
enforce such provision. The waiver of any breach or default or the
failure to exercise any right shall not be deemed a waiver of any subsequent
breach or default or waiver of the right to exercise any other
right.
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(f)
Entire Agreement and
Amendment. This Agreement sets forth the entire understanding of the
parties, there being no oral or other written agreements or
understandingsbetween
them relating to the subject matter hereof, and supersedes and replaces all
other prior agreements, understandings or letters of intent between the parties
with regard to the subject matter of this Agreement. No modification,
amendment, waiver or release of any provision of this Agreement or of any
right,
obligation, claim or cause of action arising under this Agreement shall be
valid
or binding for any purpose unless in writing and duly executed by the party
against whom the same is sought to be asserted.
IN
WITNESS WHEREOF, Company has caused this Non-Compete Agreement to be executed
on
its behalf by its authorized officer and Xxxxx has executed this Non-Compete
Agreement on the date or dates indicated below, effective as of the Effective
Date.
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Xxxx
Xxxxx
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Xxxx
Xxxxx
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Xxxx
X. Xxxxxxx, President and CEO
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Date:
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Date:
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EXHIBIT
A
Employees
Intending to
Transfer from AMP to an LMC Company
Xxxxxxx
Xxxxxxxx-Maintenance
Xxxxxx
Xxxxxx-Maintenance
Xxxxx
Xxxxx-Maintenance
Xxxxxx
Xxxxxxxx-Maintenance
Xxxx
Xxxxxxxx-Maintenance
Xxxxxx
Xxxxxx-Shot
Blast
Xxxxx
Xxxxx-Shot
Blast
Xxx
Xxxxxxxx-Accounting
Department
Xxxxxxxx
Xxxxxxxx
-Accounting
Department
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