MISCOR Coll Non-Compete Agreement
Exhibit
10.4
MISCOR
Coll 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 Xxxxxx Xxxx (“Coll”).
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.
B.
Coll has been the Chief Financial Officer of AMP since its
inception. Coll has also been a shareholder of AMP since January
2007.
C.
Coll 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 Coll 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 Coll 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. Coll
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.
Coll
further acknowledges and agrees that
the consummation by MISCOR
of the transactions contemplated by the
Stock Purchase
Agreement, with the resulting
significant benefits to Coll,
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 Coll.
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(a)
Covenants Against Competition
and Solicitation. Coll 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);
(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. Coll acknowledges and agrees that the temporal,
geographic and other limitations contained in this Section 3 are reasonable
and
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
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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. Coll acknowledges that Company’s remedy at law for any
breach of Coll’ 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 Coll:
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Xxxxxx
Xxxx
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00
Xxxxxx Xxxx
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Xxxxxxx
Xxxxx, 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 proviion 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.
(f)
Entire Agreement and
Amendment. This Agreement sets forth the entire understanding of the
parties, there being no oral or other written agreements or understandings
between 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
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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 Coll has executed this Non-Compete
Agreement on the date or dates indicated below, effective as of the Effective
Date.
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Xxxxxx
Xxxx
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Xxxxxx
Xxxx
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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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