Exhibit 10.30
COOPERATION AGREEMENT
Made as of the 10th day of January, 1983, by and between Xxxxx
Xxxxxx, Inc., a Delaware corporation (the "Company") and Norton Company
("Norton").
W I T N E S S E T H
WHEREAS, as of this date, Norton has sold to the Company and the
Company has acquired from Norton, the business of Norton's Safety Products
Division (hereinafter referred to collectively as the "Division"), and
WHEREAS, Norton has retained liability for claims arising out of
products shipped by the Division prior to this date, and the Company has assumed
liability for claims arising out of products shipped by the Company after this
date; and
WHEREAS, the defense of products liability claims against Norton and
its predecessors in the businesses of the Division may require access by Norton
and/or its predecessors to the facilities, personnel and records of the Division
in the possession of the Company; and
WHEREAS, an adverse decision against Norton or any of its predecessors
in any such litigation may damage the reputation of the product and materially
affect the future business of the Company.
Now, THEREFORE, in consideration of these premises and other good and
valuable consideration, the Company and Norton agree as follows:
1. The Company will cooperate with Norton and any of Norton's
predecessors in the defense of products liability claims arising out of any
product shipped by the Division or a predecessor prior to the date of this
Agreement by using its best efforts to provide upon request the following
services:
a. Physical examination of product and the identification thereof as to source
and date of manufacture, and cause of failure, if any; and the furnishing
of reports and affidavits in connection therewith.
b. Assistance to trial counsel in preparing for the taking of discovery of the
opponent and evaluating opponent's responses' allowing discovery by
answering interrogatories, producing documents and giving depositions; and
providing supporting testimony at trial.
c. Such other technical and expert assistance which the Company has the
expertise to provide, and which,
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by reason of the sale of the Division to the Company, neither Norton nor
its predecessors has the capacity to provide.
2. In providing the services identified above; the Company will bear
the cost of the salaries of Company personnel, and shall be reimbursed by Norton
on the Company's demand, as the case may be, for all out-of-pocket costs
including travel expenses.
3. The Company and Norton acknowledge that there may be product
liability cases in which the claimant or claimants allege injury arising out of
exposure to some contaminant or harm-producing agent over a period of time, such
as without limitation, asbestos or one or more carcinogens, because of an
alleged defect in or failure of a product shipped by Norton before and by the
Company after this date, and in which the Company and Norton and in some cases a
predecessor of Norton are co-defendants. In such cases, in addition to the
services provided pursuant to paragraph 1 above, the Company and Norton will
directly, or indirectly through their respective insurance carriers; join in a
unified defense through the selection of a single counsel to represent the
Company, Norton, and if applicable, Norton's predecessors, if any (except that
the parties need not join in a unified defense if in good faith a party believes
that it has defenses or claims which conflict with or would
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make such joint defense inadvisable). The Company and Norton will share the cost
of defending such joint defense, pro rata, it being understood that no party
shall be responsible for fees incurred prior to the time it became, or after the
time it ceases to be, a party to the action in question. It is understood that
Norton may make arrangements with predecessor companies for the sharing of costs
and the Company may be a beneficiary of and party to such arrangements. Any
differences or disputes between the Company and Norton arising out of the
subject of this Agreement shall be resolved by arbitration in accordance with
the rules of the American Arbitration Association.
4. The Company and Norton each will use its best efforts to retain in
a reasonable manner in accordance with the then respective document retention
program from time to time in effect, all of their respective records pertaining
to the design, manufacture, marketing and sale of products (including, in the
case of the Company, documents delivered to it by Norton) in order that such
records may be readily retrieved for use by counsel in the defense of product
liability cases.
5. For the purpose of determining whether a product involved in a
liability case was shipped before or after this date, in the absence of other
evidence determinative of this question, the Company and Norton agree that all
products whose manufacturing date codes show manufacture in
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the Last month of 1982 (or in the case of products marked by quarter, the last
quarter of 1982) shall be deemed to have been in the inventory transferred to
the Company by Norton as of this date, and all inventory manufactured prior to
that date shall be deemed to have been shipped by Norton.
6. This Agreement may not be assigned by either party without the
consent of the other, except to an assignee or purchaser of all or substantially
all of the assets of the assigning party.
7. This Agreement shall be binding upon the successors and assigns of
the Company and of Norton.
8. Except as otherwise specifically set forth herein, nothing in this
Agreement, expressed or implied, is intended to confer on any person other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or other liabilities under or by reason of this
Agreement.
9. Nothing contained herein shall affect, impair, or modify the rights
or obligations of the parties and their respective affiliates under the
Agreement, dated December 14, 1982 (the "Purchase Agreement"), among the
Company, Norton and Xxxxx Xxxxxx Holdings PLC, in any respect, including,
without limitation, the rights and duties of the parties regarding
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indemnification under Article 13 of the Purchase Agreement, and to the extent
this Agreement is inconsistent with the Purchase Agreement, the Purchase
Agreement shall govern.
XXXXX XXXXXX, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Vice President
NORTON COMPANY
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Vice President
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