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Exhibit 10.29
AGREEMENT
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THIS AGREEMENT (the "Agreement") is made and entered into as of this
25th day of October, 1999, by and between Waterlink, Inc., a Delaware
corporation (the "Company"), and Xxxxxxxx X. Xxxxxxxxx ("Xxxxxxxxx") and is
effective as of the close of business on the earlier of the date of the
Company's 2000 Annual Meeting of Stockholders and January 31, 2000 (the
"Effective Date").
W I T N E S S E T H :
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WHEREAS, Xxxxxxxxx is employed by the Company as Chairman of the Board
pursuant to that certain Employment Agreement (the "Employment Agreement") dated
May 23, 1997 by and between Xxxxxxxxx and the Company; and
WHEREAS, Xxxxxxxxx desires to retire from his position of employment
with the Company effective on the Effective Date and the Company desires to
facilitate such retirement.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the adequacy and
receipt of which are hereby acknowledged, the parties agree as follows:
1. TERMINATION OF EMPLOYMENT. The Company and Xxxxxxxxx hereby agree that (i)
effective on the Effective Date (the "Retirement Date"), Xxxxxxxxx'x employment
with the Company will, without further action on the part of either party
hereto, terminate, including his positions as Chairman of the Board of the
Company and all positions he holds as of such date with any subsidiaries of the
Company and (ii) the Employment Agreement will be terminated effective as of the
Retirement Date, and as of and subsequent to such date will be of no further
force or effect.
2. COMPENSATION.
2.1 TERMINATION PAYMENT. As consideration for the termination
of the Employment Agreement, the Company shall pay to Xxxxxxxxx an
amount equal to $480,000, such amount to be payable to Xxxxxxxxx in
forty-eight (48) equal semi-monthly installments of $10,000 commencing
on the Retirement Date. The payments described in this Section 2.1 are
collectively referred to as the "Retirement Payment." In the event of
Xxxxxxxxx'x death prior to his receipt of the entire Retirement
Payment, the Company shall continue paying the Retirement Payment to
Xxxxxxxxx'x heirs or estate in the installments referred to in this
Section.
2.2 BENEFITS. The Company agrees to maintain in full force and
effect, for the continued benefit of Xxxxxxxxx (and, in the event of
his death, of his surviving spouse), until
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the earlier to occur of (i) October 31, 2002 (such period being
referred to herein as the "Payment Period") and (ii) the date upon
which Xxxxxxxxx commences full-time employment (the earlier of such
periods being referred to herein as the "Benefits Period"), all
benefits and perquisites provided to him prior to the Retirement Date
(other than disability benefits, which shall not be provided),
including all medical, dental, hospitalization, health and accident
insurance benefits, plans or programs in which Xxxxxxxxx (or, in the
case of his death, his surviving spouse) was entitled to participate
immediately prior to the Retirement Date (collectively, the "Medical
Programs"); provided, however, that if, upon Xxxxxxxxx'x commencement
of full-time employment during the Payment Period, he shall not be
eligible to immediately participate in such new employer's medical,
dental, hospitalization, health and accident insurance benefits or if
such programs shall exclude, or limit benefits with respect to
pre-existing conditions, then Xxxxxxxxx shall continue to be covered by
the Medical Programs until the earlier of (i) the conclusion of the
Payment Period and (ii) the date upon which Xxxxxxxxx may participate
in such new employer's programs without any such limitations or
restrictions. Neither the Payment Period nor the Benefits Period
extends any "COBRA" coverage period. In the event that Xxxxxxxxx'x
participation in any of the Company's benefits, plans or programs is
barred, the Company shall arrange to provide Xxxxxxxxx with benefits
substantially similar to those which Xxxxxxxxx would otherwise have
been entitled to receive under such plans and programs. In furtherance
and not in limitation of the foregoing, the Company agrees to continue
to pay to the lessor of the automobile presently leased by the Company
for Xxxxxxxxx'x use, during the Benefits Period, aggregate payments of
$1,000 per month, payable on the first day of each month during the
Benefits Period with respect to such automobile (plus maintenance and
insurance in accordance with current practices) and at the end of the
term of the lease for such automobile, allow Xxxxxxxxx to exercise the
Company's purchase option for such automobile. The Company shall also
maintain for Xxxxxxxxx, for a period of five (5) years after the
Retirement Date, a directors' and officers' liability insurance policy
not less favorable than any policy that the Company maintains for its
directors and executive officers in general.
2.3 STOCK OPTIONS. In connection with his employment with the
Company, Xxxxxxxxx has been granted stock options to purchase 100,000
shares (the "Option Shares") of the common stock of the Company (the
"Stock Options") under the Company's 1995 Stock Option Plan (the
"Plan") and pursuant to a Stock Option Agreement between Xxxxxxxxx and
the Company, dated June 15, 1996 (the "Stock Option Agreement").
Xxxxxxxxx shall be entitled to exercise all of the Stock Options until
the close of business on the second anniversary of the Retirement Date
(the "Sale Period") without regard to the vesting criteria otherwise
contained therein; provided, however, that Xxxxxxxxx shall not sell the
Option Shares purchased upon exercise of the Stock Options in an amount
exceeding 10,000 shares per week. The Company agrees that at all times
during the Sale Period, the acquisition by Xxxxxxxxx of the Option
Shares shall be registered under a registration statement on Form S-8
or other appropriate form (a "Registration Statement") filed with and
declared effective by the Securities and Exchange Commission (the
"SEC") and the Company shall take all action that may be necessary to
(i) cause the Registration Statement to remain
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effective and to otherwise comply with all applicable laws and
regulations and (ii) permit the sale by Xxxxxxxxx, without any
limitation as to volume (other than as set forth in this Section 2.3 or
which may be applicable to "affiliates" pursuant to Rule 144
promulgated under the Securities Act of 1933), of the Option Shares. To
the extent that a Registration Statement is not effective or does not
contain all information required to be disclosed therein at any time
during the Sale Period, the Sale Period shall be extended by the number
of days during such period that such Registration Statement was not
effective or did not contain all information required to be disclosed
therein.
3. CONFIDENTIAL INFORMATION.
3.1 Xxxxxxxxx hereby acknowledges that, in the course of his
employment by the Company, he has had access to secret and confidential
information which relates to or affects all aspects of the business and
affairs of the Company, its subsidiaries, affiliates or divisions, and
which are not available to the general public ("Confidential
Information"). Without limiting the generality of the foregoing,
Confidential Information shall include information relating to
inventions developments, specifications, technical and engineering
data, information concerning the filing or pendency of patent
applications, business ideas, trade secrets, products under
development, production methods and processes, sources of supply,
marketing plans, and the names of any customers or prospective
customers or of any persons who have or shall have traded or dealt with
the Company. Accordingly, Xxxxxxxxx agrees that he will not disclose or
furnish any Confidential Information to any person, firm, corporation
or other entity without the express prior written consent of the
Company. Notwithstanding the foregoing, the term Confidential
Information shall not include information or data which (i) is now or
hereafter in the public domain, other than as a result of the breach of
this Section 3 by Xxxxxxxxx, (ii) prior to the date of commencement of
Xxxxxxxxx'x employment by the Company was known to Xxxxxxxxx, (iii) is,
after the Retirement Date, lawfully acquired by Xxxxxxxxx from a third
party who, to Xxxxxxxxx'x knowledge, is not prohibited from disclosing
such data or information to Xxxxxxxxx or (iv) is required to be
disclosed by court order or other legal process. In the event that
Xxxxxxxxx receives a request or demand to disclose all or any part of
the Confidential Information under the terms of a subpoena or order
issued by a court of competent jurisdiction or otherwise, Xxxxxxxxx
agrees to (x) promptly notify the Company of the existence, terms and
circumstances surrounding such a request so that the Company may seek a
protective order or other appropriate relief or remedy and (y) if
disclosure of such information is required, disclose such information
and, subject to reimbursement by the Company of Xxxxxxxxx'x expenses,
cooperate with the Company in its efforts to obtain an order or other
reliable assurance that confidential treatment will be accorded to such
portion of the disclosed information which the Company so designates.
3.2 Xxxxxxxxx hereby acknowledges and agrees that any and all
models, prototypes, notes, memoranda, notebooks, drawings, records,
plans, documents or other material in physical form which contain or
embody Confidential Information, whether created or prepared by
Xxxxxxxxx or by others ("Confidential Materials"), which are in
Xxxxxxxxx'x
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possession or under his control, are the sole property of the Company.
Accordingly, Xxxxxxxxx hereby represents that Xxxxxxxxx has returned to
the Company all Confidential Materials and all copies thereof in his
possession or under his control and has not retained any copies of
Confidential Materials.
4. NON-COMPETITION.
4.1 Xxxxxxxxx agrees that for a period commencing on the
Retirement Date and concluding upon the earlier to occur of (a) two (2)
years after the Retirement Date and (b) the date subsequent the
Retirement Date upon which the Company is in material breach of any
material provision of this Agreement (provided that Xxxxxxxxx notifies
the Company in writing of such breach and the Company does not cure
such breach within ten (10) days of the receipt of such notice from
Xxxxxxxxx), Xxxxxxxxx shall not own, manage, operate, control or
participate in the ownership, management, operation or control or be
employed by or connected in any manner with, any business, firm or
corporation which is or may be in competition with the business of the
Company, its subsidiaries, affiliates or divisions as such business is
constituted on the Retirement Date.
4.2 Anything to the contrary herein notwithstanding, the
provisions of this Section 4 shall not be deemed violated by the
purchase and/or ownership by Xxxxxxxxx of shares of any class of equity
securities (or options, warrants or rights to acquire such securities,
or any securities convertible into or exchangeable or exercisable for
such securities) (x) of the Company (or any successor thereto), (y)
representing (together with any securities which would be acquired upon
the exercise of any such options, warrants or rights or upon the
conversion of any other security convertible into or exchangeable or
exercisable for such securities) three percent (3%) or less of the
outstanding shares of any such class of equity securities of any issuer
whose securities are traded on a national securities exchange or listed
by NASDAQ, the National Quotation Bureau Incorporated or any similar
organization; provided, however, that Xxxxxxxxx shall not be otherwise
connected with or active in the business of the issuers described in
this Section 4.2 or (z) of any entity which is then employing
Xxxxxxxxx. Further, notwithstanding anything herein to the contrary, in
the event that Xxxxxxxxx identifies a potential acquisition, his
participation in which would violate the provisions of Section 4.1,
whether participating in the acquisition directly, or indirectly or as
an intermediary, or otherwise, Xxxxxxxxx shall present such potential
acquisition to the Company prior to presenting the acquisition to any
third party (including himself or any group in which he is a party). In
the event that the Company determines not to pursue the potential
acquisition, Xxxxxxxxx may pursue such acquisition, whether as a
participant or an intermediary. The Company will notify Xxxxxxxxx of
the Company's determination within fifteen days of its receipt of
notice thereof from Xxxxxxxxx. If the Company expresses an interest in
pursuing such acquisition Xxxxxxxxx shall deal with the Company
exclusively for forty-five (45) days after Xxxxxxxxx'x receipt of the
Company's determination notice to that effect so long as during such
period the Company is pursuing such acquisition in good faith. If no
definitive agreement for such acquisition is entered into within such
period, Xxxxxxxxx
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may pursue such acquisition, as a participant or as an intermediary
with parties other than the Company. Xxxxxxxxx'x participation in, as
an intermediary or otherwise, or consummation of such acquisition in
accordance with this Section 4.2 shall not be deemed to violate the
provisions of Section 4.1.
5. REMEDY FOR BREACH. Xxxxxxxxx hereby acknowledges that in the event of any
breach or threatened breach by him of any of the provisions of Sections 3 or 4
of this Agreement, the Company would have no adequate remedy at law and could
suffer substantial and irreparable damage. Accordingly, Xxxxxxxxx hereby agrees
that, in such event, the Company shall be entitled, and notwithstanding any
election by the Company to claim damages, to obtain a temporary and/or permanent
injunction to restrain any such breach or threatened breach or to obtain
specific performance of any such provisions, all without prejudice to any and
all other remedies which the Company may have at law or in equity.
6. REPRESENTATIONS AND WARRANTIES.
6.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company hereby represents and warrants that:
(a) It has the full power and authority to consummate
all transactions required of it by this Agreement. It has duly
authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement and
this Agreement, when duly authorized, executed and delivered
by Xxxxxxxxx will constitute a legal, valid and binding
obligation, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws now or hereafter in
effect relating to creditors' rights generally and by
equitable principles of general application (regardless of
whether considered in a proceeding in equity or at law) and
the discretion of the court before which any such proceeding
may be brought;
(b) Neither the execution and delivery of this
Agreement, the consummation of the transactions required of it
herein, nor the fulfillment of, or compliance with, the terms
and conditions of this Agreement will conflict with, or result
in, a breach of any of the terms, conditions or provisions of
its charter or by-laws or any material agreement or instrument
to which it is now a party or by which it is bound or
constitute a material default or result in an acceleration
under any of the foregoing, or result in the violation of any
law, rule, regulation, order, judgment or decree to which it
or its property is subject;
(c) There is no litigation pending or, to its
knowledge, threatened, which if determined adversely to it,
would adversely affect the execution, delivery or
enforceability of this Agreement, or its ability to perform
its obligations in accordance
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with the terms hereof, or which would have a material adverse
effect on its financial condition; and
(d) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
execution, delivery and performance by it of, or compliance by
it with, this Agreement.
6.2 REPRESENTATIONS AND WARRANTIES OF XXXXXXXXX. Xxxxxxxxx
hereby represents and warrants that:
(a) He has the full power and authority to consummate
all transactions required of him by this Agreement. He has
duly authorized the execution, delivery and performance of
this Agreement, has duly executed and delivered this Agreement
and this Agreement, when duly authorized, executed and
delivered by the Company will constitute a legal, valid and
binding obligation, enforceable against him in accordance with
its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws now or hereafter in
effect relating to creditors' rights generally and by
equitable principles of general application (regardless of
whether considered in a proceeding in equity or at law) and
the discretion of the court before which any such proceeding
may be brought;
(b) Neither the execution and delivery of this
Agreement, the consummation of the transactions required of
him herein, nor the fulfillment of, or compliance with, the
terms and conditions of this Agreement will conflict with, or
result in, a breach of any of the terms, conditions or
provisions of any material agreement or instrument to which he
is now a party or by which he is bound or constitute a
material default or result in an acceleration under any of the
foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which he or his
property is subject;
(c) There is no litigation pending or, to his
knowledge, threatened, which if determined adversely to him,
would adversely affect the execution, delivery or
enforceability of this Agreement, or its ability to perform
his obligations in accordance with the terms hereof, or which
would have a material adverse effect on his financial
condition; and
(d) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
execution, delivery and performance by him of, or compliance
by him with, this Agreement.
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7. RELEASE.
7.1 Xxxxxxxxx, for himself and his heirs, personal
representatives and members of his immediate family, voluntarily
releases and forever discharges the Company, its affiliates, and its
and their respective officers, directors, employees, agents, advisors,
stockholders, successors and assigns, both individually and in their
official capacities with the Company and/or its affiliates, of and from
any and all actions or causes of action, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, covenants, claims, charges,
complaints, contracts, agreements, trespasses, damages, judgments,
commissions, executions, demands and promises whatsoever, in law or
equity, which Xxxxxxxxx, his heirs, executors, administrators,
successors and assigns may now have or hereafter can, shall or may have
for, upon, or by reason of any and all matters arising out of his
relationship with the Company and/or its affiliates, and including, but
not limited to, any claims regarding any alleged violation of Title VII
of the Civil Rights Act of 1964, the Employee Retirement Income
Security Act of 1974, the Age Discrimination in Employment Act of 1967
as amended, 42 U.S.C. Section 1981, Ohio Revised Code Section
4112.02(A) and (N), the Vocational Rehabilitation Act, the Equal Pay
Act of 1963, the National Labor Relations Act and any other alleged
violation of any local, state or federal statutory or common law,
regulation or ordinance, and/or public policy, contract or tort law,
having any bearing whatsoever on his relationship with the Company
and/or its affiliates, including, without limitation, the terms and
conditions and/or cessation of his employment or the termination of the
Employment Agreement; provided however, that notwithstanding the
foregoing provisions of this release, this release shall not apply to
and Xxxxxxxxx reserves the following (i) any rights, claims and causes
of action he may have arising out of or resulting from the
non-performance or breach of the terms and conditions of this Agreement
and the Stock Option Agreement between the Company and Xxxxxxxxx and
(ii) any right, claims and causes of action that Xxxxxxxxx may acquire
solely as a stockholder or option holder of the Company and only with
respect to matters arising after the Retirement Date; provided,
however, that Xxxxxxxxx may only join in, but may not initiate, any
stockholder class action or stockholder derivative lawsuit against, or
in the name of, as the case may be, the Company. This release is for
any relief, no matter how denominated, including but not limited to
wages, back pay, front pay, compensatory damages or punitive damages.
Xxxxxxxxx understands, acknowledges and agrees that by signing this
Agreement, he is waiving the right to recover in any proceeding he may
bring before the U.S. Equal Employment Opportunity Commission or in any
proceeding brought by the U.S. Equal Employment Opportunity Commission
on his behalf. Xxxxxxxxx further agrees that he will not file or permit
to be filed on his behalf any such claim.
7.2 The Company voluntarily releases and forever discharges
Xxxxxxxxx of and from any and all actions or causes of action, suits,
debts, dues, sums of money, accounts, reckonings, bonds, bills,
covenants, claims, charges, complaints, contracts, agreements,
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trespasses, damages, judgments, commissions, executions, demands and
promises whatsoever, in law or equity, which the Company may now have
or hereafter can, shall or may have for, upon, or by reason of any and
all matters arising out of Xxxxxxxxx'x relationship with the Company
and/or its affiliates, and including as an officer, director, employee
and stockholder of the Company and/or its affiliates, and including,
but not limited to, all claims for officer loans and advances made to
Xxxxxxxxx; provided, however, that notwithstanding the foregoing
provisions of this release, the Company hereby reserves any rights,
claims and courses of action it may have arising out of or resulting
from breach of the terms and conditions of this Agreement. The Company
further agrees to defend, indemnify and hold Xxxxxxxxx absolutely
harmless from any and all claims asserted in the future by any person
arising out of, or in any way connected to, Xxxxxxxxx'x employment
relationship with the Company, excluding claims by Xxxxxxxxx or the
Company against the other with respect to this Agreement or the
Employment Agreement.
8. RIGHT TO CONSIDER AND REVOKE.
8.1 The Company agrees that Xxxxxxxxx may consider whether to
agree to the terms and conditions contained herein for a period of
twenty-one (21) days after the date the Company executes this
Agreement. Accordingly, Xxxxxxxxx may execute and return a
countersigned copy of this Agreement to the Company on or prior to
November 15, 1999 to acknowledge his understanding of and agreement
with the foregoing.
8.2 This Agreement will become effective, enforceable and
irrevocable seven (7) days after the date on which Xxxxxxxxx executes
it. During the seven-day period ending on such Date, Xxxxxxxxx may
revoke his agreement to accept the terms hereof by so indicating in
writing to the Company hereunder, whereupon this Agreement will
terminate and be of no force and effect.
9. NON-DISCLOSURE OF AGREEMENT. Xxxxxxxxx and the Company mutually agree not to
disclose, either directly or indirectly, any information whatsoever regarding
the existence or substance of this Agreement to any person or organization,
except as may be required by the securities laws or other relevant law. The
provisions of this Section 9 specifically exclude members of Xxxxxxxxx'x
immediate family, his and the Company's respective legal counsel and accountants
(each of which will be advised of the confidential nature, and the prohibition
on the disclosure of, terms and provisions of this Agreement) and include, but
are not limited to, members of the media, members of the financial community,
present and former employees (excluding current executive officers and directors
of the Company), customers and suppliers of, and lenders to, the Company, its
affiliates and other members of the public.
10. NON-DISPARAGEMENT. Xxxxxxxxx and the Company mutually agree not to make any
statements, in writing or otherwise, that may disparage the reputation or
character of the other party hereto (and, with respect to the Company and its
affiliates, its and their respective officers, directors,
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employees and agents), at any time from and after the date hereof for any reason
whatsoever, except in connection with any litigation or administrative
proceedings by or between Xxxxxxxxx and the Company. Xxxxxxxxx and the Company
each acknowledge that, to the date hereof, he or it, as appropriate, has not
made disparaging remarks regarding the other.
11. KNOWLEDGE AND CONSENT OF PARTIES. The parties hereto mutually warrant and
represent that they have read and understand this Agreement and that this
Agreement is executed voluntarily and without duress or undue influence on the
part of or on behalf of either party hereto. The parties hereby acknowledge that
they have been represented in negotiations and for the preparation of this
Agreement by counsel of their own choice; that they have read this Agreement;
and that they are fully aware of the contents of this Agreement and of the legal
effect of each and every provision hereof. It is acknowledged and agreed by each
of the parties to this Agreement that each of the parties has participated in
the drafting of this Agreement and that any claimed ambiguity should not be
construed for or against any such party on account of such drafting.
12. NOTICES. All notices and other communications hereunder shall be in writing
and shall be deemed to have been given if delivered personally or sent by
registered or certified mail (return receipt requested), postage prepaid, or by
telecopy (immediately followed by telephone confirmation of delivery of such
telecopy with the intended recipient of such notice and by notice in writing
sent promptly by registered or certified mail as provided above) to the parties
to this Agreement at the following addresses or at such other address for a
party as shall be specified by like notice:
To the Company: Waterlink, Inc.
0000 Xxxxxxx Xxxxxx, X.X.
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: President
With copies to: Xxx Xxxxxx, Esq.
Benesch, Friedlander, Xxxxxx & Aronoff LLP
0000 XX Xxxxxxx Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
To Xxxxxxxxx: Xxxxxxxx X. Xxxxxxxxx
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxx, XX 00000
Telephone: (000) 000-0000
With a copy to: Xxxxx Xxxxxxxxx, Esq.
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Shereff, Friedman, Xxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
All such notices and communications shall be deemed to have been
received on the date of personal delivery, on the date that the telecopy is
confirmed as having been received or on the third business day after the mailing
thereof, as the case may be.
13. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the
parties hereto with respect to the matters contemplated herein and supersedes
all prior agreements or understandings among the parties related to such
matters. Xxxxxxxxx and the Company mutually agree to deliver all such other
documents and to do and perform all such other acts as may be reasonably be
required from time to time in connection with this Agreement.
14. BINDING EFFECT; THIRD PARTY BENEFICIARIES. Except as otherwise provided
herein, this Agreement shall be binding upon and inure to the benefit of the
Company and its successors and assigns and upon Xxxxxxxxx. "Successors and
Assigns" shall mean, in the case of the Company, any successor pursuant to a
merger, consolidation, or sale, or other transfer of all or substantially all of
the assets of the Company. The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to Xxxxxxxxx, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement. As used in this
Agreement, "Company" shall mean Waterlink, Inc. and any successor to its
business and/or assets.
15. NO ASSIGNMENT. This Agreement may not be assigned by Xxxxxxxxx, but
may be assigned by the Company to any affiliate thereof and to any successor to
its business or the purchaser of all or substantially all of its assets.
16. AMENDMENT OR MODIFICATION; WAIVER. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by all parties hereto. Except as otherwise
specifically provided in this Agreement, no waiver by either party hereto of any
breach by the other party hereto of any condition or provision of this Agreement
to be performed by such other party shall be deemed a waiver of a similar or
dissimilar provision or condition at the same or at any prior or subsequent
time.
17. ADMISSION; EVIDENCE. The execution of this Agreement shall not be deemed an
admission of any wrongdoing, liability or unlawful conduct on the part of
Xxxxxxxxx and/or the
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Company, its affiliates, divisions, officers, employees, agents, successors or
assigns. Neither this Agreement nor any portion hereof shall be admissible
evidence in any proceeding whatsoever involving any party other than Xxxxxxxxx,
the Company or their representatives or successors hereto.
18. FEES AND EXPENSES. The Company will reimburse Xxxxxxxxx for the reasonable
attorney's fees incurred by him in connection with the negotiation and
preparation of this Agreement. If either party institutes any action or
proceedings to enforce any rights the party has under this Agreement, or for
damages by reason of any alleged breach of any provision of this Agreement, or
for a declaration of each party's rights or obligations hereunder or to set
aside any provision hereof, or for any other arbitral or judicial remedy, each
party shall be responsible for its own costs and expenses incurred thereby,
including but not limited to, attorneys' fees and disbursements.
19. GOVERNING LAW; ARBITRATION. The validity, interpretation, construction,
performance and enforcement of this Agreement shall be governed by the internal
laws of the State of Ohio, without regard to its conflicts of law rules. Any
controversy or claim arising out of or relating to this Agreement, shall be
settled by arbitration in accordance with the rules of the American Arbitration
Association, and judgment upon such award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. The arbitration shall be held
in Canton, Ohio or such other place as may be agreed upon at the time by the
parties to the arbitration.
20. TITLES. Titles to the Sections and subsections in this Agreement are
intended solely for convenience and no provision of this Agreement is to be
construed by reference to the title of any Section.
21. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
which together shall constitute one agreement. It shall not be necessary for
each party to sign each counterpart so long as each party has signed at least
one counterpart.
22. SEVERABILITY. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms and provisions of
this Agreement in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first set forth above.
WATERLINK, INC.
By: /s/ T. Xxxxx Xxxx
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Name: T. Xxxxx Xxxx
Title: President
/s/ Xxxxxxxx X. Xxxxxxxxx
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Xxxxxxxx X. Xxxxxxxxx
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