Unassociated Document


    Exhibit
      10.6

    


    MISCOR
      Fearon Non-Compete Agreement

     

    This
Non-Compete
      Agreement(“Agreement”)
is made and entered
      into this 16th day of January, 2008 (“Effective
      Date”), by and between MISCOR Group, Ltd., an Indiana corporation (“MISCOR” or
“Company”) and Joseph Fearon (“Fearon”).

     

    Recitals
      :

     

    A.           
      Since July 2005, American Motive Power, Inc. (“AMP”) has been engaged in the
      repair, remanufacturing and rebuilding of locomotive engines, as well as
      providing related goods and services to the railroad industry (as conducted
      on
      and prior to the date hereof, the “Business”), from its facility at 9431 Foster
      Wheeler Road, Dansville, New York.

     

    B.           
      Fearon has been the Chief Operating Officer of AMP since August
      2005.  Fearon has also been a shareholder of AMP since January
      2007.

     

    C.           
      Fearon is intimately familiar with the Business, including its operations,
      employees, suppliers and customers.

     

    D.           
      Pursuant to the AMP Stock Purchase Agreement (the “Stock Purchase Agreement”),
      executed January 16, 2008, MISCOR has purchased all of the outstanding stock
      of
      AMP.

     

    E.           
      MISCOR would not have been willing to enter into the Stock Purchase Agreement
      without the agreement of Fearon to execute this Agreement, along with the
      execution of a similar agreement by each of the other shareholders of
      AMP.

     

    F.           
      The consummation by MISCOR of the transactions contemplated by the Stock
      Purchase Agreement is in reliance upon the assurance of Fearon that he will
      comply fully with all of the terms and conditions of this
      Agreement.

     

    NOW,
      THEREFORE, in
      consideration of the promises and covenants herein exchanged and for other
      good
      and valuable consideration, the receipt and sufficiency of which are hereby
      acknowledged, the parties hereto agree as follows:

     

    1.           
      Consideration.  Fearon
      hereby acknowledges and
      agrees
      that his execution of this Agreement is
      a material inducement to MISCOR
      to consummate the transactions
      contemplated by the Stock
      Purchase Agreement.
Fearon
      further acknowledges and agrees that
      the consummation by MISCOR
      of the transactions contemplated by the
Stock Purchase
      Agreement, with the resulting
      significant benefits to Fearon,
      constitutes sufficient consideration
      to support the covenants set forth in this Agreement.

     

    2.           
      Term.  This
      Agreement shall commence on the Effective Date and continue so long as Fearon
      serves as an independent contractor for AMP and thereafter for period of time
      equivalent in length to the time Fearon serves as an independent contractor
      for
      AMP up to a maximum of three (3) years.

     

    3.           
      Covenants of Fearon.

     


    
      
        
        

      

      
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    (a)           
      Covenants Against Competition
      and Solicitation.  Fearon agrees that he will not, for the
      Prohibited Period (as defined below), without the express written consent of
      Company:

     

    (i)           
      Directly or indirectly, as a proprietor, officer, employee, partner,
      stockholder, consultant, agent, owner or otherwise, work for, render assistance
      or services to or otherwise participate in any business that competes with
      or
      engages in business substantially similar to the Business anywhere within the
      Prohibited Territory (as defined below);

    


    This
      non-compete provision shall not be enforced by the Company to prevent Fearon
      from engaging in the purchase or sale of railroad track, ties or any railroad
      equipment or services not directly competitive with the equipment or services
      offered by the Company.

    


    (ii)           
      Directly or indirectly, induce, hire or solicit or seek to induce, hire or
      solicit any person who was engaged with AMP as an employee, agent, independent
      contractor or otherwise at any time within one year before the Closing Date
      to
      end his or her engagement or employment with Company, other than as a result
      of
      a general solicitation not specifically directed at the employees of the AMP
      or
      at any specific employee of AMP; or other than those employees disclosed on
      Exhibit A to
      this Agreement.

    


    (iii)           
      Either for himself or for any other person, firm, corporation or entity,
      solicit, divert or accept, or attempt to solicit, divert or accept any persons
      or entities which were customers or suppliers of AMP at any time within one
      year
      before the Closing Date with the intention that such persons not provide goods
      or services to, or decrease their supply of goods and services to, AMP. AMP
      and
      LMC currently have joint suppliers and vendors in several cases

    


    For
      purposes of this Agreement, the “Prohibited Territory” means anywhere within a
      one thousand (1000) mile radius of AMP’s facility in Dansville, New York, unless
      that geographic restriction is deemed to be of unreasonably broad scope, and
      therefore unenforceable, by a court of competent jurisdiction, in which case
      the
      next sentence shall define the Prohibited Territory.  The Prohibited
      Territory means anywhere within a five-hundred (500) mile radius of AMP’s
      facility in Dansville, New York, unless that geographic restriction is deemed
      to
      be of unreasonably broad scope, and therefore unenforceable, by a court of
      competent jurisdiction, in which case the next sentence shall define the
      Prohibited Territory.  The Prohibited Territory means anywhere within
      a two-hundred-fifty (250) mile radius of AMP’s facility in Dansville, New
      York.

    


    The
      term
“Prohibited Period” shall be defined as a period equivalent in length to the
      time Fearon serves as an independent contractor for AMP up to a maximum of
      three
      (3) years.

    


    (b)           
      Reasonableness of
      Covenants.  Fearon acknowledges and agrees that the temporal,
      geographic and other limitations contained in this Section 3 are reasonable
      and

     


    
      
        
        

      

      
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    necessary
      for the proper protection of MISCOR’s investment in AMP and shall be enforceable to
      the fullest
      extent permitted by law.

     

    (c)           
      Modification.  In
      the event that any term, provision or covenant contained in this Section 3
      is
      found to be unreasonable, and therefore unenforceable, by a court of competent
      jurisdiction, but would be valid and enforceable if any part thereof were
      deleted or otherwise modified, then the parties expressly agree that a court
      may
      limit the application of, or modify any such term, provision or covenant and
      proceed to enforce such term, provision or covenant as so limited or
      modified.

    


    4.           
      Remedies for
      Breach.  Fearon acknowledges that Company’s remedy at law for
      any breach of Fearon’ obligations under Section 3 would be inadequate and
      specifically agrees that Company shall be entitled to injunctive relief against
      him, without the necessity of proof of actual damage or the posting of a bond,
      in addition to any other remedies available at law or in equity, including
      compensatory damages incurred by Company as a result of such violation and
      including costs, expenses and reasonable attorneys’ fees in enforcing any of its
      rights under Section 3.  The rights and remedies set forth in this
      Agreement shall be cumulative and not exclusive.

     

    5.           
      Miscellaneous.

     

    (a)           
      Notices.   Any
      notice
      required or permitted to be given under this Agreement shall be in writing
      and
      shall be deemed to have been duly given on the date delivered, if delivered
      in
      person, or on the date mailed, if mailed first-class, postage prepaid, certified
      mail, return receipt requested, at the address set forth below (or such other
      address as may be given by like notice):

     

    
      	 	
              If
                to Company:

            	 	 	 
	 	 	
              MISCOR
                Industrial Services, Inc.

            	 
	 	 	
              1125
                South Walnut Street

            	 
	 	 	
              South
                Bend, Indiana  46619

            	 
	 	 	
              Attn:

            	
              John
                A. Martell

            	 
	 	 	
              and

            	
              James
                M. Lewis

            	 
	 	 	 	 	 
	 	 	 	
              with
                a copy to:

            	 
	 	 	 	 	 
	 	 	 	
              Cahill/Wink
                LLP

            	 
	 	 	 	
              60
                Railroad Place, Suite 202

            	 
	 	 	 	
              Saratoga
                Springs, New York  12866

            	 
	 	 	 	
              Attn:  Stephen
                P. Wink, Esq.

            	 
	 	 	 	
                         Louis
                Gambino, Esq.

            	 
	 	 	 	 	 
	 	 	 	
              and
                a copy to:

            	 
	 	 	 	 	 
	 	 	 	
              Barnes
                & Thornburg LLP

            	 
	 	 	 	
              600
                1st Source Bank Center

            	 
	 	 	 	
              100
                North Michigan

            	 
	 	 	 	
              South
                Bend, Indiana  46601

            	 


    

    



    
      
        
        

      

      
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              Attn:  Richard
                L. Mintz, Esq.

            	 
	 	 	 	 	 
	 	
              If
                to Fearon:

            	
              Joseph
                Fearon

            	 
	 	 	
              455
                Dan’s Street

            	 
	 	 	
              Brownville,
                ME  04414

            	 
	 	 	 	 	 
	 	 	 	
              with
                a copy to:

            	 
	 	 	 	 	 
	 	 	 	
              Boylan,
                Brown, Code, Vigdor & Wilson, LLP

            	 
	 	 	 	
              2400
                Chase Square

            	 
	 	 	 	
              Rochester,
                NY  14604

            	 
	 	 	 	
              Attn:  Robert
                F. Mechur, Esq.

            	 


    

    


    (b)           
      Assignment; Binding
      Effect. No party to this Agreement may assign this Agreement or such
      party’s right, duties and obligations hereunder without the prior written
      consent of the other party hereto; provided, that Company shall
      have the right to assign its rights hereunder to an Affiliate of
      Company.  Subject to the foregoing, this Agreement shall be binding
      upon and inure to the benefit of the parties to this Agreement and their heirs,
      personal and legal representatives, successors and assigns.  For
      purposes of this Agreement, “Affiliate” means a person or entity that directly
      or indirectly, through one or more intermediaries, controls, is controlled
      by,
      or is under common control with, another person or entity or which any person
      or
      entity owns or controls directly or indirectly 50% or more of the voting shares
      or of the value of such person or entity or has the ability to control the
      management or affairs of such person or entity.

     

    (c)           
      Severability.  If
      any provision of this Agreement shall be held invalid or unenforceable by any
      court of competent jurisdiction or as a result of legislative or administrative
      action, such holding or action shall be strictly construed and shall not affect
      the validity or affect any other provision of this Agreement.

     

    (d)Governing
      Law; Venue.  This
      Agreement shall be construed,
      interpreted and enforced in accordance with the laws of the State of
New York,
      without giving effect to principles of
      conflicts of laws.  The parties expressly agree that the Indiana state
      courts located in St. Joseph County, Indiana (or if there is exclusive federal
      jurisdiction, the United States District Court for the Northern District of
      Indiana) shall have exclusive jurisdiction and venue over any dispute arising
      out of this Agreement.  To the extent not otherwise subject to the
      jurisdiction of such courts, the Purchaser and each Shareholder hereby agrees
      to
      waive any objection to jurisdiction and to subject itself to the jurisdiction
      of
      such courts.  The parties also hereby agree to accept service of
      process by Federal Express or similar overnight courier to the applicable notice
      address set forth in Section 5(a).

    


    (e)           
      Waiver. The
      failure of any party to enforce at
      any time or for any period of time any of the provisions of this Agreement
      shall
      not be construed as a waiver of such provision or of the right of the party
      to
      enforce such provision.  The waiver of any breach or default or the
      failure to exercise any right shall not be deemed a waiver of any subsequent
      breach or default or waiver of the right to exercise any other
      right.

     


    
      
        
        

      

      
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    (f)           
      Entire Agreement and
      Amendment. This Agreement sets forth the entire understanding of the
      parties, there being no oral or other written agreements or understandings
      between them relating to the subject matter hereof, and supersedes and replaces
      all other prior agreements, understandings or letters of intent between the
      parties with regard to the subject matter of this Agreement.  No
      modification, amendment, waiver or release of any provision of this Agreement
      or
      of any right, obligation, claim or cause of action arising under this Agreement
      shall be valid or binding for any purpose unless in writing and duly executed
      by
      the party against whom the same is sought to be asserted.

     

    IN
      WITNESS WHEREOF, Company has caused this Non-Compete Agreement to be executed
      on
      its behalf by its authorized officer and Fearon has executed this Non-Compete
      Agreement on the date or dates indicated below, effective as of the Effective
      Date.

     

    
      	
              Joseph
                Fearon 

            	 	
              MISCOR
                Group, Ltd.

            
	 	 	 	 	 
	 	 	 	 	 
	
              Joseph
                Fearon

            	 	
              John
                A. Martell, President and CEO

            
	 	 	 	 	 
	
              Date:

            	 	 	
              Date:

            	 


    


    
      
        
        

      

      
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    EXHIBIT
      A

    


    Employees
      Intending to
      Transfer from AMP to an LMC Company

    


    Timothy
      Rawleigh-Maintenance

    


    Robert
      Clancy-Maintenance

    


    David
      Gates-Maintenance

    


    Andrew
      Bembower-Maintenance

    


    Jack
      Townsend-Maintenance

    


    Steven
      Burley-Shot
      Blast

    


    Scott
      Evans-Shot
      Blast

    


    Amy
      Adriance-Accounting
      Department

    


    Brittney
Rizzieri
-Accounting
      Department

     

     

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