EXHIBIT 10.14
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:
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
“Confiden
