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EXHIBIT 10.18
CONSULTING, NON-COMPETITION AND
CONFIDENTIALITY AGREEMENT
This Consulting, Non-Competition and Confidentiality Agreement
(the
"AGREEMENT") is made as of the 5th day of November 2004 (the
"EFFECTIVE DATE"),
by and between Richard Harcke ("HARCKE") and Haynes Wire
Company, a Delaware
corporation ("BUYER").
PRELIMINARY STATEMENT
Prior to the date hereof, Sellers have engaged in the business
of
owning and operating a wire manufacturing business (the
"BUSINESS"). This
Agreement is made in connection with and as a condition to
consummation of the
transactions contemplated by a certain Asset Purchase Agreement
dated October
28, 2004, by and among Harcke, The Branford Wire and
Manufacturing Company, a
Connecticut corporation ("BRANFORD"), Carolina Industries, Inc.
a Connecticut
corporation ("CAROLINA INDUSTRIES") (Branford and Carolina
Industries together,
"SELLERS") and Buyer (the "ASSET PURCHASE AGREEMENT"). Under the
terms of the
Asset Purchase Agreement, Buyer has agreed to purchase, and
Sellers have agreed
to sell, the assets used in Sellers' operation of the Business.
Harcke has
acquired extensive knowledge about the conduct of the Business
as the owner and
operator of Sellers. This Agreement is entered into between
Buyer and Harcke to
protect the goodwill of the Business that is being sold to Buyer
by Sellers and
to protect against unfair competition by Harcke. All capitalized
terms not
herein defined have the meaning ascribed to them in the Asset
Purchase
Agreement.
AGREEMENT
In consideration of the premises and mutual covenants contained
in this
Agreement and as an inducement to Buyer to enter into the Asset
Purchase
Agreement, the parties hereby agree as follows:
I. CONSULTING
A. SERVICES. For a period of six (6) months from the Effective
Date,
Harcke will, at the request of the officers of Buyer from time
to time, provide
consulting services to Buyer or any affiliate of Buyer with
respect to all
aspects of the Business, including without limitation the
provision of advice on
business strategy and operations for the Business and management
advice and
consultation to the officers of Buyer (collectively, the
"SERVICES"). Harcke
shall provide the Services at such times as may be reasonably
requested by
Buyer.
II. NON-COMPETITION
A. AGREEMENT NOT TO COMPETE. To protect Buyer's interest in
the
goodwill acquired by Buyer from Sellers and to prevent unfair
competition, for a
period of seven (7) years from the Effective Date (the
"RESTRICTED PERIOD"),
except as provided in SECTION II(A) and subject to the
geographical limitations
set forth in SECTION II(B), Harcke shall not:
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1. Engage in any activity directly or indirectly, as an
owner,
consultant, independent contractor or otherwise in the Business
or any
related business that is competitive with Buyer, including
without
limitation any activity that is necessary or incident to the
conduct of
the Business or any related business in a manner similar to any
of the
business practices engaged in by either Seller during
Harcke's
ownership and operation of such Seller; provided, however,
nothing
contained in this Agreement shall prevent either Seller from
continuing
to sell the Excess Inventory (as such term is defined in the
Asset
Purchase Agreement);
2. Perform, on behalf of himself or any person or entity,
the
same or similar services as those performed by Harcke for either
Seller
prior to the date of this Agreement;
3. Hire or employ or attempt to hire or employ any person
who
on or after the date hereof, is an employee, manager, or officer
of
Buyer (each, an "EMPLOYEE"), or in any way cause or assist or
attempt
to cause or assist, or, directly or indirectly, seek to
solicit,
induce, bring about, influence, promote, facilitate, cause,
assist or
encourage any Employee to leave Buyer's employ or to accept
employment
with or otherwise perform services for on or on behalf of any
person or
entity that engages in, or otherwise competes with, the Business
or any
related business ("COMPETITOR"); or
4. Contact any customers or suppliers of Buyer, either
directly or indirectly, for himself or for others, so as to
(i)
directly or indirectly divert or influence or attempt to divert
or
influence any business of Buyer to a Competitor, or (ii)
directly or
indirectly solicit or provide services similar to those provided
by
Buyer, or (iii) otherwise directly or indirectly interfere in
any
fashion with Buyer's relationship with such customers or
suppliers, or
with the business or operations then being conducted by
Buyer.
B. GEOGRAPHICAL LIMITATIONS. The restrictions set forth in
SECTION
II(A) in this Agreement shall be applicable to the following
geographic areas
that can be enforced against Harcke during the Restricted
Period:
1. In North America;
2. In the United States of America;
3. In each State in which Sellers previously had operations
and/or conducted significant activities relating to the
Business, and
all contiguous states;
4. In the State of North Carolina;
5. In Henderson County, North Carolina, and all contiguous
counties; and
6. Within a fifty (50) mile radius of any location at which
Sellers conducted the Business.
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III. CONFIDENTIALITY
A. CONFIDENTIAL INFORMATION DEFINED. "CONFIDENTIAL INFORMATION"
as used
in this Agreement shall mean, collectively, any and all data and
information
about Buyer's or Sellers' businesses including, but not limited
to (i) all
information relating to selling or financing processes,
specifications and
procedures relating to the Business; (ii) customer lists and
other
customer-related information including names, addresses,
specifications or
requirements, purchase or delivery quantities, lines of credit,
and delivery,
financing, and auction schedules; (iii) supplier lists; (iv)
marketing plans and
concepts; and (v) sales, costs, profits, profit margins,
salaries and other
financial information pertaining to Buyer or either Seller;
provided, however,
that "Confidential Information" shall in no event include data
or information
that (a) was available to the p
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