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Exhibit 10.49
EMPLOYEE LEASING AND OVERHEAD ALLOCATION AGREEMENT
THIS EMPLOYEE LEASING AND OVERHEAD ALLOCATION AGREEMENT ("Agreement")
is made in Massillon, Ohio as of this 8th day of March 1999, between REPUBLIC
ENGINEERED STEELS, INC., a Delaware corporation ("Republic") and BAR
TECHNOLOGIES, INC., a Delaware corporation ("BarTech").
PRELIMINARY RECITALS
WHEREAS, Republic and BarTech are leading producers of special bar
quality steel, i.e. higher quality hot-rolled and cold-finished carbon and alloy
steel bars used primarily in automotive and industrial equipment.
WHEREAS, in order to gain cost and operating efficiencies, Republic and
BarTech are currently sharing certain Shared Common Expenses (as hereinafter
defined), including, without limitation, expenses related to (i) sales and
marketing services, administrative services, and plant overhead services, and
(ii) the operation of certain common facilities;
WHEREAS, certain salaried employees of BarTech and Republic are
currently providing services to both BarTech and Republic;
WHEREAS, BarTech and Republic desire to more accurately allocate the
costs for such Shared Common Expenses between the two companies.
WHEREAS, BarTech wishes to terminate the employment of certain salaried
employees and thereafter to lease-back the employment services provided by these
employees and coincident with such termination all such salaried employees will
thereafter become employees of Republic.
WHEREAS, BarTech wishes to engage Republic, under the terms and
conditions stated in this Agreement, to provide BarTech with the administrative
services and common facilities as required by BarTech and such other services
currently rendered by certain of its salaried employees.
WHEREAS, Republic and BarTech believe and agree that the proper and
most accurate method to allocate the cost of the Shared Common Expenses and
other services rendered by Republic employees should be a proration of the
actual costs incurred by Republic based upon total periodic trade revenues of
Republic and BarTech.
In consideration of these mutual premises and the covenants contained
in this Agreement, the parties agree as follows:
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(x) Xxxxxxxx hereby agrees to furnish to BarTech, and BarTech
agrees to lease from Republic, the services of the personnel
necessary to fill the positions set forth on Schedule 1,
attached hereto and incorporated herein by reference. BarTech
acknowledges and agrees that the services rendered by such
Republic personnel shall be on a non-exclusive basis and that
such personnel may continue to render certain services to
Republic during the Term of this Agreement. BarTech shall have
the right to amend Schedule 1 upon reasonable notice to
Republic in order to change the level of services or the
number of employees provided to BarTech pursuant to this
Agreement; provided that parties agree to negotiate in good
faith a change in the fees payable to Republic hereunder
commensurate with the change in the employment services to be
rendered pursuant to this Agreement.
(b) To the extent practicable, Republic shall accommodate
BarTech's reasonable recommendations regarding the
discontinuation of services of any particular Republic
employee; provided, however, the determination to hire or
terminate any Republic employee shall be in Republic's sole
discretion. BarTech shall not be responsible for any of
Republic's financial obligations to any Republic employee
accruing after such discontinuation becomes effective by
reason of the services performed hereunder.
SECTION 2 - SHARED COMMON EXPENSES. During the term of this Agreement,
BarTech and Republic shall share common overhead expenses related to (i) sales
and marketing services, administrative services, and plant overhead services,
and (ii) the operation of certain common facilities, as further described on
Schedule 2 attached hereto and incorporated herein (collectively the "Shared
Common Expenses"). BarTech and Republic shall establish an accounting method
which assigns costs and expenses to various "cost centers." For purposes of this
Agreement, "Cost Centers" shall mean various services, facilities, groups of
employees, management and other functions, wherein such functions or facilities
are performed or used jointly by or for the benefit of both BarTech and Republic
(e.g., payroll and accounting).
SECTION 3 - TERM. With respect to the sharing of common overhead
expenses as set forth in Section 2 above, this Agreement shall be effective as
of October 1, 1998. With respect to the services leased by BarTech pursuant to
Section 1 above, this Agreement shall be effective as of January 1, 1999 (the
"Effective Date"). Subject to earlier termination pursuant to Section 12 below,
this Agreement shall remain in effect for a period of one (1) year from the
Effective Date and unless earlier terminated by either party, shall
automatically renew and be extended for additional terms of one (1) year each.
Notwithstanding the foregoing, either party may terminate this Agreement upon
thirty (30) days prior written notice. The parties agree and acknowledge that
BarTech shall have terminated the employment of certain specialized personnel as
agreed upon by BarTech and Republic effective as of the close of business on
December 31, 1998 and that the same personnel shall become employees of Republic
as of the Effective Date. Unless otherwise set forth in an employment agreement,
Republic shall have no obligation to employ such personnel for any period of
time in excess of sixty (60) days.
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SECTION 4 - BARTECH PAYMENTS.
(a) Every month during the term of this Agreement,
BarTech shall pay Republic for the services rendered
to BarTech by Republic employees and the Shared
Common Expenses incurred by Republic on behalf of
BarTech in an amount equal in the aggregate to the
following:
(i) with respect to each position or service
provided by Republic to BarTech which are set
forth on Schedule 1, an amount equal to one
hundred percent (100%) of the total cost of
expense related thereto; plus
(ii) with respect to the Shared Common Expenses
incurred by Republic on behalf of BarTech,
an amount equal to: (i) the BarTech
Allocation Percentage (as hereinafter
defined) multiplied by (ii) all costs and
expenses, including salaries, benefits,
fixed overhead expenses and other general
administrative expenses charged to such Cost
Center for the applicable period. The
parties agree and acknowledge that the exact
allocation of expenses for the Cost Centers
is not capable of determination with
mathematical precision and that the
allocation set forth above is good faith
estimate of the cost actually incurred by
Republic on behalf of BarTech; plus
(iii) a monthly administrative services fee equal
to Two Thousand Five Hundred Dollars
($2,500.00) ("Administrative Fee").
(b) Within thirty (30) days after the end of each month,
Republic shall provide BarTech with an invoice for
the fees set forth in Section 4(a) above. Republic
must receive payment in full at its office no later
than thirty (30) days following the date on which
BarTech receives such invoice. Time is of the essence
in making such payments to Republic. Neither the
failure of BarTech to perform any covenant,
obligation, or term in this Agreement nor the
termination of this Agreement by either party shall
affect or limit Republic's obligations to pay the
salaries of the employees leased to BarTech pursuant
to this Agreement as required by law. However,
BarTech agrees that interest may accrue, at
Republic's option, on all overdue payments due
Republic hereunder at a rate equal to up to ten
percent (10%) per annum. Republic reserves the right,
in its sole discretion, to layoff or terminate some
or all of the employees leased to BarTech pursuant to
this Agreement.
(c) Republic shall determine, in its sole and absolute
discretion, the salary to be paid to each Republic
employee; provided that such salary shall in no event
be less than the current salary paid to such employee
by BarTech. Fringe benefits to be provided to said
employees shall be determined by
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Republic. In the event that seniority is a factor for
eligibility and/or vesting purposes in any benefit,
Republic employees shall be credited with their
service with BarTech prior to being employed by
Republic, unless such credit is inconsistent or
prohibited by any plan document governing such fringe
benefits. Notwithstanding anything herein to the
contrary, Republic hereby reserves the right to amend
or terminate any of the fringe benefits from time to
time, as determined by Republic in its sole and
absolute discretion.
(d) The "BarTech Allocation Percentage" shall equal the
following quotient (expressed as a percentage): the
amount of steel shipped to trade customers by BarTech
divided by the sum of the (i) the amount of steel
shipped to trade customers by BarTech, plus (ii) the
amount of steel shipped to trade customers by
Republic. The BarTech Allocation Percentage shall be
calculated monthly based on the shipments of the
parties for the current calendar month.
(e) Republic agrees to permit BarTech to offset the
amounts due Republic pursuant to this Section 5
against the amounts due Republic pursuant to Section
6 below.
SECTION 5 - REPUBLIC PAYMENTS.
(a) Every month during the term of this Agreement,
Republic shall pay BarTech for the Shared Common
Expenses incurred by BarTech on behalf of Republic in
an amount equal in the aggregate to the following:
(i) the Republic Allocation Percentage (as
hereinafter defined) multiplied by (ii) all costs and
expenses, including salaries, benefits, fixed
overhead expenses and other general administrative
expenses charged to such Cost Center for the
applicable period. The parties agree and acknowledge
that the exact allocation of expenses for the Cost
Centers is not capable of determination with
mathematical precision and that the allocation set
forth above is good faith estimate of the cost
actually incurred by BarTech on behalf of Republic.
(b) Within thirty (30) days after the end of each month,
BarTech shall provide Republic with an invoice for
the fees set forth in Section 5(a) above. BarTech
must receive payment in full at its office no later
than thirty (30) days following the date on which
Republic receives such invoice. Time is of the
essence in making such payments to BarTech. Republic
agrees that interest may accrue, at BarTech's option,
on all overdue payments due BarTech hereunder at a
rate equal to up to ten percent (10%) per annum.
(c) The "Republic Allocation Percentage" shall equal the
following quotient (expressed as a percentage): the
amount of steel shipped to trade
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customers by Republic divided by the sum of the (i)
the amount of steel shipped to trade customers by
BarTech, plus (ii) the amount of steel shipped to
trade customers by Republic. The Republic Allocation
Percentage shall be calculated monthly based on the
shipments of the parties for the current calendar
month.]
(d) BarTech agrees to permit Republic to offset the
amounts due BarTech pursuant to this Section 6
against the amounts due Republic pursuant to Section
5 above.
SECTION 6 - PLACE OF PERFORMANCE.
(a) All work and services to be performed for BarTech
shall be performed by Republic employees at BarTech
or Republic facilities identified by BarTech.
(b) To the extent that any work or services are performed
at BarTech facilities, BarTech shall comply with all
health and safety laws, regulations, ordinances,
directives, and rules imposed by controlling federal,
state and local government. BarTech shall promptly
report any accidents and injuries to Republic.
(c) BarTech agrees to comply within a reasonable period
of time, at its expense, with any specific and
reasonable health and safety directives from
Republic, Republic's workers' compensation carrier,
or any government agency having jurisdiction over
work place health and safety.
SECTION 7 - OBLIGATIONS.
(a) The parties acknowledge and agree that Republic is an
independent contractor, and that all of the personnel
assigned by Republic to provide services to BarTech
are employees of Republic and only of Republic.
Republic acknowledges that it is responsible for the
payment of federal, state and local payroll taxes,
workers' compensation insurance, unemployment
compensation, salaries and fringe benefits for its
employees and for the preparing and filing of all
returns and reports concerning all of its employees,
including without limitation the employees leased to
BarTech pursuant to this Agreement. Republic shall
indemnify and hold BarTech harmless for any penalty,
claim, liability, deficiency or damages, including,
without limitation reasonable attorneys fees, arising
as a result of Republic's failure to fulfill its
duties as set forth in the preceding sentence;
provided, however, BarTech expressly acknowledges,
however, that Republic shall not be liable for
BarTech's loss of business goodwill, lost profits or
other consequential, special or incidental damages.
At Republic's request, BarTech may assist in
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recruiting, hiring, evaluating, replacing,
supervising, disciplining and firing Republic
employees; however, Republic shall retain ultimate
control over such matters.
(b) In order to carry out its obligations hereunder,
Republic may designate one or more "on-site
supervisors" from among the employees assigned to
provide services to BarTech. The on-site supervisors
shall oversee administrative and managerial matters
relating to Republic's leased employees and shall be
under the direct supervision of the officers of
Republic. If Republic does not designate on-site
supervisors, Republic's leased employees who are
assigned to BarTech shall be responsible to the
officers of Republic. The on-site supervisors or the
management team shall determine the policies and
procedures to be followed by Republic's leased
employees regarding the time and performance of their
duties. BarTech shall cooperate with Republic in the
formation of such policies and procedures and shall
permit Republic to implement the same.
(c) All Republic employees who are engaged in
Environmental Activities (as hereinafter defined) at
or in facilities, vessels or vehicles owned, operated
or occupied by BarTech shall conduct such
Environmental Activities under the policy,
supervision and direction of the Board of Directors
of BarTech. "Environmental Activities" shall mean the
handling, storage, maintenance, treatment, disposal,
emission, spill or release of substances or materials
regulated by Governmental Requirements (as
hereinafter defined). "Governmental Requirements"
shall mean all laws, ordinances, rules, statutes, and
regulations of the United States, of the state in
which each BarTech facility, vessel or vehicle is
located, and of any other political subdivision,
agency or instrumentality exercising jurisdiction
over a particular BarTech facility, vessel or
vehicle, which laws, ordinances, statutes, rules and
regulations govern, regulate, or otherwise pertain to
health, industrial hygiene or the environment,
including without limitation, the Comprehensive
Environmental Response Compensation and Liability Act
of 1980 ("CERCLA") (42 U.S.C. Section 9601 et.
seq.), the Resource, Conservation and Recovery Act of
1976 ("RCRA") (42 U.S.C. Section 6901 et. seq.), the
Toxic Substance Control Act ("TSCA") (15 U.S.C.
Section 2601 et. seq.), the Clear Water Act ("CWA")
(33 U.S.C. Section 1251 et. seq.), the Clear Air Act
("CAA") (42 U.S.C. Section 7401 et. seq..) as well as
any other federal, state or local "Superfund" or
"Superlien" statutes, laws or regulations.
SECTION 8 - BILLING INFORMATION. All invoices provided to either party
shall be accompanied by a detailed summary of information used to calculate the
amounts due thereunder, including, when applicable, detailed calculations
setting forth the new Allocation Percentage for each calendar month. In the
event that either fails to provide written notice to the other within thirty
(30) days of receipt of such invoice, such party shall be precluded from
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questioning the correctness of the invoice or the calculations used to support
the invoice. In addition and notwithstanding the foregoing, within ninety (90)
days after the end of each calendar year during the term of this Agreement, both
parties shall provide the other with a detailed statement of all revenues and
costs necessary to calculate the amounts due the other during the previous
calendar year, or portion thereof. If the annual report reveals any
underpayments by either party, the parties agree to make the appropriate
payments to the other within fifteen (15) days of notice thereof. Additionally,
BarTech shall provide periodic reports concerning the quality of performance of
each of Republic's employees, as BarTech deems necessary or as Republic may
reasonably request. BarTech and Republic shall also make available to each other
such other employee information in their possession as may be reasonably
requested from time to time by the other party.
SECTION 9 - INDEMNIFICATION.
(a) To the extent permitted by applicable law, BarTech
shall indemnify, defend, and hold Republic and its
officers, directors, employees, agents and
representatives harmless from all claims arising out
of the rendering of services for BarTech by Republic
employees and the incurrence of the Shared Common
Expenses on behalf of BarTech. BarTech shall
indemnify, defend, and hold Republic harmless from
all claims arising out of the incurrence of the
Shared Common Expenses on behalf of Republic.
(b) To the extent permitted by applicable law, such
indemnification shall extend to any and all
liabilities, expenses, costs, damages and/or losses
of any kind, including reasonable attorneys' fees and
all expenses in connection with defending against any
claim arising out of any and all acts or omissions in
connection with the performance of services rendered
for either party by the employees of the other party.
(c) To the extent permitted by applicable law and except
as set forth in Section 9(d) herein, BarTech shall
not, in the aggregate, xxx, make any claim or demand,
or otherwise seek any damages from Republic for any
injuries arising out of any and all acts or omissions
of any Republic employee in connection with the
performance of services rendered for BarTech in
excess of the total Administrative Service Fees
received by Republic pursuant to this Agreement.
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SECTION 10 - INSURANCE.
(a) Republic shall furnish and keep in full force and
effect, at all times during the term of this
Agreement, workers' compensation insurance covering
all of Republic's leased employees who are providing
services to BarTech hereunder. Republic shall furnish
BarTech with a "Certificate of Insurance" naming
BarTech as Certificate Holder. Republic shall also
obtain a policy providing disability insurance
coverage for the same employees.
(b) Republic shall maintain, at all times, the following
policies of insurance for actions arising out of acts
of Republic's leased employees occurring during the
course of their employment:
(i) general liability; and
(ii) automobile liability related to the use of
automobiles by employees while on the job.
(c) Each such policy shall provide liability coverage of
at least $1,000,000 per actionable occurrence.
(d) Each such policy shall insure BarTech, Republic and
Republic's employees who perform services for BarTech
against any and all claims of any nature whatsoever,
regardless of the type of injury alleged, arising
from any act attributable to any Republic employee.
(e) Each such policy shall be on an "occurrence" basis.
However, if an "occurrence" policy is not available,
Republic shall maintain an equivalent "claims made"
policy until the expiration of all statutes of
limitation applicable to any claim that could arise
under this Agreement by virtue of the acts of
Republic's leased employees.
(f) BarTech shall be named as an insured on all such
policies of insurance. All such policies shall
require the insurer to provide BarTech with notice of
impending cancellation, in the same manner as it is
required to provide such notice to Republic. If
Republic shall fail to pay any premium when due,
BarTech, in its sole discretion, may pay the same,
and Republic shall reimburse BarTech for the full
amount of such premium within five (5) business days
after BarTech's payment. If reimbursement is not made
within such period, BarTech may deduct the full
amount from the next payment(s) BarTech is required
to make to Republic under Section 4 hereunder.
(g) In the event that either party currently maintains a
policy of insurance covering employment practices
liability, such party shall continue to
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maintain such policy at all times during the term of
this Agreement at its own cost and take any steps
reasonably necessary to ensure that such policy be
amended or extended to cover the employees leased to
BarTech pursuant to this Agreement.
SECTION 11 - CONFIDENTIALITY. The parties agree and acknowledge that in
order to successfully provide the services as contemplated by this Agreement,
either party may from time to time disclose to the other its confidential and
proprietary information. The parties further agree and acknowledge that but for
this Agreement, neither would disclose such confidential and proprietary
information which had been developed at such party's expense and which contains
such party's trade secrets. Accordingly, the parties agree as follows with
respect to all confidential and proprietary information disclosed to the other
pursuant to this Agreement:
(a) Identification of Confidential Information. Confidential
information for the purposes of this Agreement shall mean any
information (i) identified by either party in writing as
confidential information and (ii) not generally known to the
public. The restrictions contained in this Section 11 shall
not be enforceable against a party and such party shall not be
liable for disclosures if such party can demonstrate that the
Confidential Information so disclosed: (i) is already known to
such party and has properly been obtained as of the date of
this Agreement, as shown by contemporaneous written records;
(ii) is already in the possession of the public or becomes
publicly available without breach hereof by such party; (iii)
is lawfully acquired by such party from a person not under any
confidentiality obligation to the other party with respect to
disclosure of any Confidential Information; (iii) is disclosed
to any third party by or with the permission of the other
party without confidentiality restrictions; or (iv) is
independently developed by such party as shown by
contemporaneous written records, and was not acquired directly
or indirectly from the other party.
(b) Nondisclosure. The parties agree not to disclose any
Confidential Information of the other to any third party
without the prior consent of the disclosing party.
(c) Non-Interference. The parties agree that the Confidential
Information that they receive from the other party constitutes
valuable business information which could be unfairly used in
competition with the other party and which could give such
party a competitive advantage in the marketplace that it
otherwise would not possess. Accordingly, the parties agree
that they will not, directly or indirectly, whether acting on
their own behalf or in any other capacity, in concert with, or
on behalf of, any third party or entity, use the Confidential
information to interfere in any way with the business
operations, business relationships, contract rights, or
business opportunities of the other party.
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(d) Breach. In the event of a breach or threatened breach of the
provisions of this Section 11, the parties agree that the
non-breaching party shall be entitled to injunctive relief
restraining and enjoining the other party from violating any
provision of this Section 11. In addition, the non-breaching
party shall be entitled to any and all additional and
alternative legal and equitable remedies available to it,
including the recovery of attorney's fees incurred in the
enforcement of this Agreement.
SECTION 12 - DEFAULT AND TERMINATION. Upon the occurrence of any event
of default, the non-defaulting party may, at its option, and without waiving its
rights under this Agreement or any other rights available at law or in equity,
including its rights to damages, terminate this Agreement effective immediately
upon the occurrence of an event of default or upon the lapse of the specified
period following an event of default.
(a) TERMINATION BY REPUBLIC. The occurrence of any one or more of
the following events shall constitute an event of default and
grounds for termination of this Agreement by Republic:
(i) Upon written notice, if BarTech makes a general
assignment for the benefit of creditors, or, unless
otherwise prohibited by law, if a petition in
bankruptcy is filed by BarTech, or such a petition is
filed against and consented to by BarTech or not
dismissed within thirty (30) days of filing, or if a
xxxx in equity or other proceeding for the
appointment of a receiver of BarTech or other
custodian for BarTech's business or assets is filed
and consented to by BarTech, or if a receiver or
other custodian (permanent or temporary) of BarTech's
assets or property, or any part of BarTech's assets
or property, is appointed; or
(iii) Upon written notice, if BarTech violates any covenant
of confidentiality or non-competition obligation
contained in this Agreement or otherwise discloses,
uses, permits the use of, copies, duplicates,
records, transmits or otherwise reproduces any
materials, or information designated by Republic as
confidential without Republic's prior written
approval; or
(iii) If BarTech fails to perform or breaches any covenant,
obligation, or term in this Agreement and fails to
cure such non-compliance or deficiency within thirty
(30) days after Republic's written notice of such
non-compliance or deficiency.
(b) TERMINATION BY BARTECH. The occurrence of the following events
shall constitute an event of default and grounds for
termination of this Agreement by BarTech:
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(i) Upon written notice, if Republic makes a general
assignment for the benefit of creditors, or, unless
otherwise prohibited by law, if a petition in
bankruptcy is filed by Republic, or such a petition
is filed against and consented to by Republic or not
dismissed within thirty (30) days of filing, or if a
xxxx in equity or other proceeding for the
appointment of a receiver of Republic or other
custodian for Republic's business or assets is filed
and consented to by Republic, or if a receiver or
other custodian (permanent or temporary) of
Republic's assets or property, or any part of
Republic's assets or property, is appointed;
(ii) Upon written notice, if Republic violates any
covenant of confidentiality or non-competition
obligation contained in this Agreement or otherwise
discloses, uses, permits the use of, copies,
duplicates, records, transmits or otherwise
reproduces any materials, or information designated
by BarTech as confidential without BarTech's prior
written approval; or
(iii) If Republic fails to perform or breaches any
covenant, obligation, or term in this Agreement and
fails to cure such non-compliance or deficiency
within thirty (30) days after Republic's written
notice of such non-compliance or deficiency.
(c) The rights and obligations set forth in Sections 9 and 11
shall survive the termination or expiration of this Agreement
without limitation.
SECTION 13 - COMPLIANCE WITH LAWS. Both Republic and BarTech shall
comply with all applicable labor laws and laws regarding equal employment
opportunities, whether federal, state or local. Neither Republic nor BarTech
shall discriminate on the basis of national origin, race, color, religion, age,
handicap or sex.
SECTION 14 - GOVERNING LAW & ARBITRATION. This Agreement shall be
governed by and construed in accordance with the domestic laws of the State of
Ohio without giving effect to any choice or conflict of law provision or rule
(whether of the State of Ohio or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Ohio. Except
for any claim, controversy or dispute arising from or relating to this Agreement
for which a party is seeking, in whole or in part, any type of equitable remedy,
which may be brought against any of the parties in the courts of the State of
Ohio, County of Xxxxx, or, if it has or can acquire jurisdiction, in the United
States District Court for the Northern District of Ohio, any claim, controversy
of dispute arising from or relating to this Agreement shall be heard and
resolved exclusively by binding arbitration in Cleveland, Ohio, under the
then-prevailing Commercial Arbitration Rules of the American Arbitration
Association (an "Arbitration"). For any Arbitration, each party shall use good
faith efforts to choose one (1) arbitrator who is experienced in commercial
arbitration. If the parties cannot agree upon one (1) arbitrator within fifteen
(15) days after a claim is submitted to Arbitration, each party shall have
fifteen (15) days to choose one (1) arbitrator who is experienced in
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commercial arbitration, and such arbitrators shall collectively agree upon a
third arbitrator. The costs related to Arbitration, other than costs directly
attributable to either Republic or BarTech, shall be paid equally by the parties
provided, however, that if a claim presented to Arbitration by a party, or the
complete defense offered at Arbitration by a party, is not colorable or is
brought or offered solely to cause delay, obstruction or vexation, such party
shall be responsible for all of the other party's costs related to the
Arbitration, including reasonable attorney's fees. Any award of an Arbitration
may be entered into judgment in any court of competent jurisdiction. This
provision shall survive any termination of this Agreement. Process in any action
or proceeding referred to in this Section 14 may be served on any party anywhere
in the world.
SECTION 15 - ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties. No amendment of any provision of this Agreement
shall be valid unless the same shall be in writing and signed by the parties to
this Agreement. No waiver by any party of any default, misrepresentation, or
breach of warranty or covenant under this Agreement, whether intentional or not,
shall be deemed to extend to any prior or subsequent default, misrepresentation,
or breach of warranty or covenant under this Agreement or affect in any way any
rights arising by virtue of any prior or subsequent occurrence.
SECTION 16 - NO THIRD-PARTY BENEFICIARIES. This Agreement shall not
confer any rights or remedies upon any person other than the parties and their
respective successors and permitted assigns.
SECTION 17 - HEADINGS. Headings in this Agreement are for convenience
only and shall not be used to interpret or construe its provisions.
SECTION 18 - COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
together shall constitute one and the same instrument.
SECTION 19 - SEVERABILITY. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions of
this Agreement or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction.
SECTION 20 - CONSTRUCTION. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement.
SECTION 21 - NO PARTNERSHIP OR JOINT VENTURE. Republic does not, in any
way or for any purpose, become a partner of BarTech in the conduct of BarTech's
business or otherwise, or a joint venturer or member of a joint enterprise with
BarTech by reason or connection with this Agreement.
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SECTION 22 - EMPLOYMENT AGREEMENTS. The parties agree and acknowledge
that with respect to employees of BarTech that currently have valid and binding
employment agreements with BarTech, this Agreement shall be subject to BarTech
obtaining the appropriate consents to the novation and/or assignment of such
employment agreement. Unless otherwise set forth in a written employment
agreement, nothing contained herein shall be construed to guarantee employment
for any individual for any specific period or length of time, or to modify,
limit, or waive the right of either party to terminate employment with or
without cause or notice; employment for such employees shall at all times remain
at will.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
REPUBLIC
ENGINEERED STEELS, INC.,
a Delaware corporation
By:
-------------------------------------
Signature
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Print Name
Its:
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Title
BAR TECHNOLOGIES, INC.,
a Delaware corporation
By:
-------------------------------------
Signature
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Print Name
Its:
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Title
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SCHEDULE 1
Employment Positions
Casting Supervisor Manager, Utilities & Environmental
Chief Chemist Manager, Warehouse
Compressed Air & Steam Supervisor Mechanical Engineer
Electrical Engineer Melter
Electronics Technician Metallurgical Engineer
Fuel/Environmental Engineer Metallurgical Practices Engineer
General Manager Operations Coordinator
Instrumentation Engr./Maint. Planner P-30 Coordinator
Intern Primary Operations Metallurgist
Lab Technician Process Control Engineer
Ladle Met Supervisor Process Engineer
Load Coordinator/Dispatcher Process Metallurgist
Maintenance Coordinator Production Controller
Maintenance Engineer Project Engineer
Maintenance Supervisor Purchased Fuel Administrator
Manager, Billet Yard Purchaser
Manager, Continuous Casting Quality Assurance Technician
Manager, Maintenance Roller
Manager, Manufacturing Services Scrap Coordinator
Manager, Mill Scrapyard Supervisor
Manager, Primary Operations Tech. Shipper
& Development Shipping Supervisor
Manager, Process Controls Supervisor Electrical Maintenance
Manager, Product End Supervisor, Electronic Technicians
Manager, Production Supervisor, Product End
Planning & Inventory Control Supervisor, System Development & Outside Processing
Manager, Project Engineering Supervisor, Warehouse
Manager, Roll Shop and Systems Technician
Roll Build-Up
Manager, Safety Services
Manager, Shop Operations
Manager, Traffic
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15
SCHEDULE 2
Shared Common Expenses:
Purchasing
Safety
Environmental
Quality
Technical Services
Production Planning
Human Resources
Information Technology
Executive Management
Finance and Accounting
Sales and Marketing
Customer Service
Headquarters Expense
Advertising
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