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EXHIBIT 10.83
THIS INDEMNIFICATION AGREEMENT, dated as of January 12,
1999, (hereinafter referred to as the "Agreement"), is entered
into by and among TPSS Acquisition Corporation, an Ohio
corporation (hereinafter referred to as "Purchaser"), and Xxxxxxx
Xxxxxxxx, having an address at 0000 Xxxxxxxx Xxxx, Xxxxxx, Xxxx,
(hereinafter referred to as the "Shareholder").
RECITALS:
A. WHEREAS, Xxxxxxx Xxxxxxxx, as Trustee of Self-
Determination of Trust dated December 5, 1985 and as amended July
31, 1992, is the sole shareholder of Toledo Pickling & Steel
Sales, Inc. ("Toledo Pickling");
B. WHEREAS, Toledo Pickling is selling substantially all
of its assets to Purchaser pursuant to a certain Asset Purchase
Agreement ("Asset Purchase Agreement") dated as of December 31,
1998, by and between Toledo Pickling, as seller, and Purchaser,
as buyer, and, pursuant to the terms and conditions of such Asset
Purchase Agreement, Purchaser is assuming certain liabilities of
Toledo Pickling,
C. WHEREAS, Purchaser, as a condition to the purchase of
the assets pursuant to the Asset Purchase Agreement, shall not
assume certain liabilities detailed in Schedule 3.21 of the Asset
Purchase Agreement,
D. WHEREAS, Shareholder, as a condition to the sale of the
assets pursuant to the Asset Purchase Agreement, seeks
indemnification with regard to certain contracts which
Purchaser specifically is not assuming on Schedule 3.21 of the
Asset Purchase Agreement,
NOW, THEREFORE, in consideration of the premises, the mutual
promises and covenants hereinafter set forth and other good and
valuable consideration, the receipt and adequacy of which is
hereby acknowledged, Shareholder and Purchaser hereby agree as
follows:
1. Recitals. The recitals set forth above are hereby
incorporated as terms and provisions hereof.
2. Indemnification. Subject to the terms of this Agreement,
Purchaser shall indemnify and hold harmless Shareholder, in his
individual capacity, any liability he personally has solely with
regard to any contract or lease in Schedule 3.21 (which is
attached and fully incorporated herein) of the Asset Purchase
Agreement that Purchaser is not assuming. Shareholder shall
provide notice to Purchaser of any claim, suit or other action,
whether brought or threatened, immediately upon becoming aware of
such action. In the event of any claim, suit or other action
brought or threatened against Shareholder, Purchaser, in its sole
discretion, shall have the right to determine whether it shall
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personally defend such action itself or reimburse Shareholder for
his reasonable costs and expenses related to his defense of such
claim, suit or other action. Shareholder shall not compromise or
settle such litigation without the express, written approval of
Purchaser.
3. Best Efforts. In the event that Purchaser is required to
defend Shareholder under the terms of this Agreement,
Shareholder shall exercise his best efforts to fully assist and
cooperate with Purchaser in such undertaking in his capacity of
an officer of Toledo Pickling and as an employee of TPSS
Acquisition Corporation.
4. Representation of Shareholder. Shareholder hereby
represents that he has not personally guaranteed, in writing or
otherwise, any of the contracts or leases that are a part of
Schedule 3.21 of the Asset Purchase Agreement, except items
number 2 and 23 as noted thereon.
5. Confidentiality of Agreement. Shareholder acknowledges that
the existence and content of this Agreement is confidential as
between the parties hereto and Toledo Pickling, whose
confidentiality shall not be breached provided that disclosure
may be made to Shareholder's attorneys, accountants, financial
advisors and lenders. Except as provided herein, Shareholder
warrants that he shall not disclose, in any manner, to any
individual or entity, including, but not limited to the parties
set forth on Schedule 3.21 of the Asset Purchase Agreement, the
existence of this Agreement nor the terms or content contained
herein. Should Shareholder be required to disclose this
Agreement or any of the terms hereunder by subpoena or receipt of
subpoena of a court of competent jurisdiction, he shall first
notify Purchaser immediately upon notice of such a court order,
and allow Purchaser to defend such order if it so chooses.
Should Shareholder fail to comply with any of the material terms
under this paragraph the entirety of this Agreement shall become
null and void.
6. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
7. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this
Agreement may be waived, amended, supplemented or
otherwise modified except by a written instrument
executed by Purchaser and Shareholder.
(b) Purchaser shall not by any act (except by a
written instrument pursuant to Section 7(a)
hereof), be deemed to delay, indulge, omit or
otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any
breach of any of the terms and conditions hereof.
No failure to exercise, nor any delay in
exercising on the part of Purchaser, any right,
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power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall
preclude any other or further exercise thereof or
the exercise of any other right, power or
privilege. A waiver by Purchaser of any right or
remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which
Purchaser would otherwise have on any future
occasion.
(c) The rights and remedies herein provided are
cumulative, may be exercised singly or
concurrently and are not exclusive of any other
rights or remedies provided by law.
8. Section Headings. The section headings used in this
Agreement are for convenience of reference only and are not to
affect the construction hereof or be taken into consideration in
the interpretation hereof.
9. Successors and Assigns. This Agreement shall be binding
upon the successors and assigns of Purchaser and shall inure to
the benefit of Purchaser and its successors and assigns.
Shareholder may not assign any of his rights or obligations under
this Agreement.
10. Governing Law; Submission to Jurisdiction; Venue. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS) OF THE
STATE OF OHIO. THE PARITES HEREBY SUBMIT TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF OHIO AND THE UNITED
STATES DISTRICT COURT LOCATED IN THE SOUTHERN DISTRICT OF OHIO,
AND WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS UPON THEM AND
CONSENT THAT ALL SUCH SERVICE OF PROCESS BE MADE BY CERTIFIED
MAIL AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5)
BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE
U.S. MAILS, POSTAGE PREPAID. THE PARTIES HEREBY WAIVE ANY
OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO
VENUE OF ANY ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION SHALL AFFECT
THE RIGHT OF THE PARTIES AND/OR ANY OF THEIR AFFILIATES TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE
RIGHTS OF THE PARTIES AND/OR ANY OF THIER AFFILIATES TO BRING
ANY ACTION OR PROCEEDING AGAINST THE OTHER SHAREHOLDER OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION. THE PARTIES
HEREBY AGREE THAT THE EXCLUSIVE AND APPROPRIATE FORUMS FOR ANY
DISPUTE HEREUNDER ARE THE COURTS OF THE STATE OF OHIO AND THE
UNITED STATES DISTRICT COURT LOCATED IN THE SOUTHERN DISTRICT OF
OHIO AND AGREE NOT TO INSTITUTE ANY ACTION IN ANY OTHER FORUM.
THE PARTIES HEREBY WAIVE ANY RIGHT TO HAVE A JURY
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PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY
DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL
WITHOUT A JURY.
11. Counterparts. This Agreement may be executed in one or more
counterparts, all of which together shall constitute a binding
and enforceable agreement with respect to each party. Signatures
received via facsimile shall be effective and binding on the
parties hereto.
IN WITNESS WHEREOF, this Agreement has been duly executed by each
party hereto as of the date and year first above written.
TPSS ACQUISITION CORPORATION
/s/Xxxxxxx Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx Xxxxxxxx Xxxxxxx X. Xxxxxx
