EXHIBIT 10(q)
XxXxxxxx'x Corporation
McDonald's Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000-0000
February 1, 2000
Xx.X. X. Xxxxxx
President
AlphaProTech, Ltd.
00 Xxxxxxxxx Xx., Xxxxx 000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Re: BUSINESS RELATIONSHIP/CONFIDENTIALITY AGREEMENT
Dear Xx. Xxxxxx:
AlphaProTech, Ltd. (the "Company") has expressed a desire to sell to
XxXxxxxx'x Corporation ("McD") certain proprietary products manufactured by the
Company and identified on Exhibit B ("Company Products") and to work with McD in
the future on one or more projects (each a "Project") to develop new products or
services (each a "Product") that may be used in the McDonald's System. As you
know, the "McDonald's System" is a comprehensive system for the ongoing
development, operation and maintenance of McDonald's restaurants and includes
among others, McD, its subsidiaries and affiliates, franchisees and suppliers.
1. CONTROLLING EFFECT OF AGREEMENT/AFFILIATES DEFINED.
(a) The rights and obligations of the Company and McD contained in this
letter will apply to all Projects and Products and will exclusively control
unless otherwise modified, supplemented or amended on an applicable "Project
Supplement" in the form of Exhibit A attached to this letter. Each signed
Project Supplement, if any, modifying, supplementing or amending the parties'
rights and obligations with respect to a particular Project or Product creates a
supplement to and forms a part of this agreement so that this letter and all
Project Supplements constitute a single agreement between McD and the Company
(collectively the "Agreement"). Notwithstanding anything to the contrary
contained herein, section 2, section 4 and section 5(b) of this Agreement
shall have no application to any Company Product unless McD first proposes a
technical improvement or Development which would be governed by a Project
Supplement executed by the parties at the time of any such proposal.
(b) As used herein, the term "Company Affiliates" includes all direct or
indirect subsidiaries and affiliates and all officers, directors, employees,
agents, consultants, independent contractors, representatives or others acting
on behalf of the Company and such direct or indirect subsidiaries and
affiliates. The term "McD Affiliates" includes all direct or indirect
subsidiaries and affiliates, all franchisees in and suppliers to the McDonald's
System, and all officers, directors, employees, agents, consultants, independent
contractors, representatives or others acting on behalf of McD and such direct
or indirect subsidiaries, affiliates, franchisees and suppliers.
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2. DEVELOPMENTS, PRIOR DEVELOPMENTS, IMPROVEMENTS.
(a) The Company agrees and will cause Company Affiliates to agree that (1)
McD will be the exclusive owner and will have all proprietary and intellectual
property rights to all Developments and Improvements; (2) McD or others
designated by McD will have a non-exclusive, irrevocable, perpetual,
royalty-free, worldwide license, with right of sublicense, to make, have made,
use, or sell all Prior Developments; and (3) McD will pay no separate
compensation for the Developments, Prior Developments or Improvements except as
set forth in Section 4 below. As used herein, the following terms have the
following meanings:
"Developments" means all Work Product, other than Prior Developments,
submitted by the Company and/or Company Affiliates to McD and/or McD
Affiliates in response to any request for proposals by McD and/or McD
Affiliates, or Work Product developed, created, discovered, conceived or
reduced to practice, individually by the Company and/or Company Affiliates
or jointly with McD and/or McD Affiliates, in connection with any Project
or Product.
"Work Product" includes, but is not limited to, all products, equipment,
compositions, processes, formulas, recipes, techniques, innovations,
discoveries, ideas, names, concepts, developments, writings, inventions,
technology improvements, trade secrets, trade names, trade marks, service
marks, designs and know-how related thereto and all intellectual property
and other proprietary rights, whether or not patentable, copyrightable or
otherwise subject to intellectual property protection.
"Prior Developments" means all Work Product of the Company or Company
Affiliates relating to a Project or any Product in the possession of or
owned by the Company or Company Affiliates prior to any contact,
discussion or other communication with McD or McD Affiliates relating to
such Project or Product provided that the Company establishes such prior
possession or ownership by contemporary documentation reasonably
acceptable to McD.
"Improvements" means modifications, alterations, changes, improvements,
enhancements, adaptations or derivative works of or to any Developments or
Prior Developments.
(b) The Company hereby grants and assigns and will cause Company
Affiliates to grant and assign to McD or any third party designated by McD, all
right, title and interest that the Company or Company Affiliates may have in the
Developments and the Improvements, including all proprietary and intellectual
property rights, including, but not limited to patent, copyright, trademark,
servicemark or trade secret rights, and all goodwill associated therewith. In
addition, the Company agrees and will cause Company Affiliates to agree to
promptly notify McD of all Developments, Prior Developments and Improvements
described in Section 2(a) above and sign, and cause Company Affiliates to sign,
at no charge, such documents, at any time reasonably required by McD, including
patent, copyright, trademark applications and assignments, to achieve such
intellectual property status as McD deems appropriate to protect, perfect,
register, record and maintain McD's rights in the Developments, Prior
Developments and Improvements.
(c) The Company agrees, represents and warrants and will cause Company
Affiliates to agree, represent and warrant that it or they, as applicable, are
the sole owners of all rights to the Prior Developments and Work Product (of the
Company and Company Affiliates) relating to each Project and Product, or have
the authorization of the owners of such rights so as to be able to convey the
rights to McD or to a third party designated by McD as set forth in this Section
2. The Company further agrees, represents and warrants and will cause Company
Affiliates to agree, represent and warrant that the use of
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any Prior Developments, Developments or Improvements will not violate or
infringe the proprietary or intellectual property rights of any person or
entity.
(d) Except as provided in Section 5 below, the Company and Company
Affiliates will have no rights to disclose, make, have made, use, sell or
otherwise exploit the Developments or any Improvements.
3. CONFIDENTIALITY.
(a) The Company agrees and will cause Company Affiliates to agree that all
McD Confidential Information (defined below) will be held in strict confidence,
pursuant to the specific provisions set forth in this Section 3.
(b) "McD Confidential Information" includes, but is not limited to, any
and all ideas, information, material, data, documents or other Work Product of
McD or McD Affiliates that have been furnished to the Company or Company
Affiliates by McD or McD Affiliates either orally, in writing, by inspection or
by means of computer, tape or other electronic, magnetic, mechanical or visual
media and that relate (1) to any proposed or actual Project or Product; (2) to
the business, assets, financial condition, operations, trade secrets, know-how
or prospects of McD or McD Affiliates; (3) to the McDonald's System; or (4) any
and all Developments and Improvements. "McD Confidential Information" also
includes any analyses, compilations, studies, summaries, extracts or other
documents or records (regardless of the format in which maintained) prepared by
Company or Company Affiliates which contain or otherwise reflect or are
generated from the foregoing information.
(c) The nature and contents of McD Confidential Information will not be
disclosed by the Company to others (except Company Affiliates, subject to the
conditions described below) or used in any manner except pursuant to the terms
of this Agreement without the prior written permission of McD. The Company
agrees to take all reasonable precautions necessary to keep McD Confidential
Information secret and confidential with no less than the degree of care it uses
in safeguarding its own confidential information and other proprietary
information. With respect to any McD Confidential Information provided to the
Company, the Company further agrees that each Company Affiliate given access to
such McD Confidential Information must have a legitimate need to know and must
agree to be bound by this Section 3.
(d) McD Confidential Information does not include any information or data
that (1) is already known by the Company or Company Affiliates (through no
improper action) prior to receipt, provided that the Company or Company
Affiliates, as the case may be, within 30 days of receipt of McD Confidential
Information advises McD in writing if any part or all of the McD Confidential
Information is already known to it or them and supplies McD with all relevant
documents to support its or their position; (2) becomes (through no improper
action) generally available to the public; (3) is independently developed by the
Company or Company Affiliates without the use of any McD Confidential
Information for a party other than McD or McD Affiliates provided, however, that
the Company or Company Affiliates, as the case may be, will have the burden of
establishing that whomever allegedly worked on the independent development did
not have direct or indirect access to any McD Confidential Information; or (4)
is approved for release by written authorization from McD.
(e) If the Company or any Company Affiliate is required by applicable law
or regulation or as a result of any judicial, administrative or governmental
proceeding to disclose any McD Confidential Information, the Company agrees and
will cause Company Affiliates to agree to provide McD with written notice of
such requirement promptly after learning of the same and to object to the
production on the grounds that the information requested is confidential.
Subject to the foregoing, the Company or Company Affiliates may furnish that
portion of the McD Confidential Information that, in the written opinion of its
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counsel reasonably acceptable to McD, the Company or Company Affiliates are
legally required to disclose. In addition, the Company agrees and will cause
Company Affiliates to agree to exercise their best efforts to obtain
confidential treatment or a protective order with respect to such McD
Confidential Information and allow McD, in its sole discretion, to participate
in such action or proceeding.
(f) The Company agrees and will advise Company Affiliates and cause them
to agree that (1) McD or McD Affiliates may engage other parties to work with
McD or McD Affiliates on a Project or Projects in order to develop products or
services that are similar or identical to any Product or Products; and (2) any
information, ideas, material, documentation, Work Product or other matter,
including Developments, Prior Developments and Improvements, may be shared by
McD or McD Affiliates with such other parties. McD will cause such other parties
to be bound by confidentiality provisions similar to those contained herein.
(g) Upon termination of any Project or this Agreement as provided in
Section 6 below, the Company and Company Affiliates will immediately return to
McD all McD Confidential Information.
4. COSTS OF DEVELOPMENT.
All costs and expenses of development, research and testing that the
Company or Company Affiliates incur in connection with any Project or Product
(collectively "Development Costs") will be borne by the Company or Company
Affiliates and are not subject to any reimbursement by McD or McD Affiliates. In
addition, the Company understands and agrees and will cause Company Affiliates
to agree that no Development Costs will be incurred in reliance on securing an
Approved Supplier status (as described in Section 5) or any other business
relationship with McD or McD Affiliates. In the event, however, that McD
determines, in its sole discretion, that any of the Developments, Prior
Developments or Improvements are to be used in an Approved Product (as defined
in Section 5 below) and neither the Company nor any Company Affiliate is
designated as an Approved Supplier, McD agrees that upon the Company providing
adequate written supporting documentation, McD will pay the Company or a Company
Affiliate designated by the Company an amount not to exceed the lesser of 50% of
the Development Costs or $1,000.00 as reimbursement for such Development Costs.
5. APPROVED PRODUCTS/APPROVED SUPPLIERS.
(a) McD strives to maintain quality and uniformity throughout the
McDonald's System by identifying standards, procedures, specifications and
requirements (collectively "Standards") for the manufacture, distribution and
purchasing, preparation and service of goods, services, supplies, fixtures,
equipment and inventory. McD considers these Standards to be of critical
importance to the continued success of the McDonald's System and therefore
requires each XxXxxxxx'x restaurant to deal only with suppliers that have been
approved by McD (each an "Approved Supplier"). The Company is hereby designated
as an Approved Supplier of any Company Product.
(b) If, in McD's sole business judgment, a Project is successful, one or
more Products developed under that Project may be designated by McD as an
approved product (each an "Approved Product") for use in the McDonald's System.
If this occurs, McD will designate in writing, one or more Approved Suppliers to
manufacture, distribute, sell or provide the Approved Product within the
McDonald's System on an ongoing basis. Unless this Agreement is terminated
pursuant to Section 6 below, McD will consider in good faith the Company or a
Company Affiliate (designated by the Company) as a possible Approved Supplier
for the Approved Product. In determining whether the Company or any Company
Affiliate will be designated as such Approved Supplier, McD will consider, among
other things, the Company's or such Company Affiliate's (1) ability to
consistently manufacture the Approved Product to McD Standards; (2) production
and delivery capabilities for the Approved Product on a local or national
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basis; (3) ability to comply with any of the other requirements described below
in this Section 5; and (4) financial condition.
(c) As indicated above, the Company understands and agrees and will advise
Company Affiliates and cause them to agree that the selection of an Approved
Supplier by McD depends on a number of factors as determined by McD in its sole
discretion. There is no guarantee or assurance that the Company or any Company
Affiliates will ultimately be selected as an Approved Supplier, be the sole
Approved Supplier or that such Approved Supplier status, if granted, will
continue for any specific time period.
(d) If the Company or any Company Affiliate is designated as an Approved
Supplier for any Approved Product or any Company Product, the Company
understands and agrees and will advise Company Affiliates, as applicable, and
cause them to agree that (1) orders for the Approved Product or Company Product
come only from approved independent distribution centers, McDonald's restaurants
owned by independent franchisees or McD subsidiaries or affiliates, or other
approved parties (each a "Purchaser"); (2) a commitment to purchase any Approved
Product or Company Product will arise only at such time that a Purchaser issues
a written or electronic order for such Approved Product or Company Product
setting forth price, quantities and delivery, payment and other terms (a
"Purchase Order"); (3) McD does not operate any McDonald's restaurants and, as
such, does not directly order or purchase any goods or services for any
XxXxxxxx'x restaurant; (4) McD does not make any promises, commitments or
guarantees of sales or profit or that Approved Supplier status will continue for
any specific time period; and (5) McD is not responsible for and does not
guarantee payment of any past due invoices or delinquent accounts of any
Purchaser.
(e) If the Company or any Company Affiliate is designated as an Approved
Supplier for any Approved Product or Company Product, without disclaiming
implied remedies or limiting remedies for breach thereof, the Company represents
and warrants and will cause such Company Affiliate to represent and warrant that
such Approved Product or Company Product will (1) conform to McD's then current
Standards; (2) be merchantable; (3) be free from defects in design,
construction, workmanship, materials and packaging; (4) be fit and sufficient
for the purpose for which it is intended and/or which is stated on any
packaging, labeling or advertising; and (5) be equivalent in materials, quality,
fit, finish, workmanship, performance and design to samples, if any, submitted
to and approved by McD.
(f) If the Company or any Company Affiliates is designated as an Approved
Supplier for any Approved Product or Company Product, the Company agrees,
represents and warrants and will cause such Company Affiliate to agree,
represent and warrant that (1) the manufacture, use, distribution or sale of the
Approved Product or Company Product will not violate or infringe any proprietary
or intellectual property rights of any person or entity; (2) the Approved
Product or Company Product will be produced, packaged, tagged, labeled, packed,
shipped and invoiced in compliance with the applicable requirements of federal,
state and local laws, regulations, ordinances and administrative orders and
rules of the United States, its territories and all other countries in which the
Approved Product or Company Product is produced or delivered; (3) they will
strictly adhere to all applicable federal, state and local laws, regulations,
ordinances and administrative orders and rules of the United States, its
territories and all other countries in which the Approved Product or Company
Product is produced or delivered with respect to the operation of their
production facilities and their other business and labor practices, including
laws, regulations and prohibitions governing the working conditions, wages,
hours and minimum age of work force; (4) they will not discriminate based upon
gender, race, sexual orientation, national origin or any other basis prohibited
by law in their employment practices and that such Approved Product or Company
Product will not be produced or manufactured, in whole or in part, by child
labor or by convict or forced labor; (5) upon request from McD, they will
provide McD with specific information, in such detail as McD may reasonably
request, as to the location(s) and methods(s) of the manufacture of such
Approved Product; (6)
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upon reasonable notice and during regular business hours, McD, its designated
representatives and any independent inspectors approved by McD may inspect any
production facility at which such Approved Product or any components of such
Approved Product are being produced; (7) if McD determines that such Approved
Product or Company Product must be inspected prior to its shipment to the United
States or other country, such inspection will be performed at the sole expense
of the Company or such Company Affiliate by an independent inspector approved by
McD and any inspection or documentation thereof, and corrective actions, if any,
taken by the Company or such Company Affiliate with respect to such Approved
Product or Company Product will not be deemed an acceptance of any Approved
Product or Company Product, or a waiver or any nonconformities or defects in any
such Approved Product or Company Product and will not excuse any failure by the
Company or such Company Affiliate to deliver such Approved Product or Company
Product in accordance with this Agreement or the terms of any Purchase Order;
(8) they will strictly adhere to McD's current Employment Standards for
Suppliers, a copy of which will be provided by McD; (9) they will not use any
trade name, trademark, service xxxx or other intellectual property of McD, or
any other trade name, trademark or service xxxx incorporating the "Mc" or "Mac"
formative, in any manner whatsoever, including, without limitation, on or in
connection with any Approved Product or Company Product or other products or
services, without first obtaining the written consent of McD; and (10) they will
at all times remain in compliance with the Foreign Corrupt Practices Act, as it
may be amended from time to time.
(g) If the Company or a Company Affiliate is designated as an Approved
Supplier for any Approved Product or Company Product, the Company agrees and
will cause such Company Affiliate to agree to obtain and maintain, at its
expense, a policy or policies of commercial general liability insurance covering
liabilities relating to the Approved Products or Company Products, including but
not limited to products and completed operations coverage, with a broad form
vendor's endorsement naming McD or such other party designated by McD, in such
amounts and with such companies and containing such other provisions
satisfactory to McD. All such policies will provide that the coverage thereunder
will not be terminated or any material changes made without at least 30 days
prior written notice to McD. Certificates of insurance evidencing such coverage
will be promptly submitted to McD. Approval of any of these insurance policies
by McD will not relieve the Company of any obligation contained herein,
including the Company's defense and indemnity requirements set forth below, even
for claims in excess of the policy limits. Notwithstanding the foregoing, upon
receipt of written approval from McD, the Company may elect to self-insure for
all or part of its insurance requirements under this Section 5.
(h) If the Company or any Company Affiliate is designated as an Approved
Supplier for any Approved Product or Company Product, the Company agrees, and
will cause such Company Affiliate to agree that in addition all other remedies
available to any Purchaser, such Approved Product or Company Product may be
rejected by such Purchaser and abandoned, returned or held at the Company's or
such Company Affiliate's expense and risk, when such Approved Product or Company
Product (1) is not produced, sold, shipped and/or delivered in compliance with
the terms of this Agreement or the applicable Purchase Order; (2) violates or
allegedly violates federal, state and local laws, regulations, ordinances and
administrative orders and rules of the United States, its territories and all
other countries in which the Approved Product or Company Product is produced or
delivered; or (3) infringes or allegedly infringes any patent, trademark,
service xxxx, trade name, copyright, trade secret or other intellectual or
proprietary right.
6. TERMINATION.
(a) Each Project or this entire Agreement (including any Approved Supplier
designation under Section 5 herein) may be terminated at any time by either
party with or without cause; such termination to be effective immediately upon
receipt of written notice by the other party.
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(b) Notwithstanding any termination pursuant to this Section 6, the
representations, warranties, obligations, undertakings, agreements and covenants
of the Company and Company Affiliates contained in Sections 2, 3, 5, and 7 of
this Agreement will survive.
7. INDEMNIFICATION.
(a) The Company agrees and will cause Company Affiliates to agree, to
protect, defend, indemnify and hold harmless McD, McD Affiliates and any
Purchaser (each an "Indemnified Person") from and against any and all losses,
claims, actions, suits or proceedings and any related judgments, damages,
amounts paid in settlement, and any other expenses, costs or fees (including
reasonable counsel fees, disbursements costs of investigation) (each a "Loss"),
arising from or in any way relating to a Project or Product or Company Product,
including but not limited to (1) any actual or alleged infringement or
misappropriation of any patent, trademark, tradename, service xxxx, copyright,
trade secret or other intellectual or proprietary right or any actual or alleged
unfair competition relating to any Developments, Prior Developments,
Improvements or Approved Products or Company Products; (2) the death of or
injury to any person, damage to any property, or any other damage or loss, by
whomsoever suffered, resulting or claimed to result, in whole or in part, from
any actual or alleged defect in an Approved Product or Company Product, whether
latent or patent, including actual or alleged improper construction and/or
design, or actual or alleged failure of such Approved Product or Company Product
to comply with any Standards or with any express or implied warranties of the
Company or any Company Affiliates, or any claim of strict liability (or like
theory of law) tort relating to any an Approved Product or Company Product; (3)
violation of any federal, state or local laws, regulations, ordinances or
administrative orders or rules of the United States or any other country, or
political subdivisions thereof, in which any Approved Product or Company Product
is produced, shipped or delivered; (4) defects or alleged defects involving the
packaging, tagging, labeling, packing, shipping and/or invoicing of any Approved
Product or Company Product; (5) failure to warn or inadequate warnings and/or
instructions relating to an Approved Product or Company Product; (6) improper or
defective displays, assembly or installation of an Approved Product or Company
Product; and (7) the actual or alleged breach by the Company or any Company
Affiliates of any of its or their representations, warranties, obligations,
undertakings, agreements and covenants given under or pursuant to this Agreement
(collectively "Obligations") or any Purchase Order.
(b) Promptly after receipt by an Indemnified Person of notice of any claim
or the commencement of any action, suit or proceeding (collectively
"Proceeding") or within a reasonable period of time after the discovery of facts
that an Indemnified Person believes will likely give rise to a claim for
indemnification from the Company or a Company Affiliate (the "Indemnitor")
hereunder, the Indemnified Person will notify the Indemnitor in writing, giving
reasonable detail of the claim or the commencement of the Proceeding. Failure to
give, or any deficiency in, any such notice will not relieve the Indemnitor of
its indemnification obligations hereunder, except and only to the extent that
such failure or deficiency materially prejudiced the ability of the Indemnitor
to minimize the Loss. In each case, the Indemnified Person will be entitled to
retain counsel and control the defense of the indemnified claim or Proceeding.
In its defense of any such claim or Proceeding, the Indemnified Person will act
reasonably and in accordance with its good faith business judgment with respect
thereto, and will not settle or compromise any third party claim or Proceeding
without the consent of the Indemnitor, which consent will not unreasonably be
withheld. Alternatively, in the case of a third party demand, claim or
Proceeding, the Indemnitor, at the request of the Indemnified Person, will
assume the defense of any such demand, claim or Proceeding, employing counsel
reasonably satisfactory to the Indemnified Person. In such a circumstance, the
Indemnitor will not settle or compromise any such demand, claim or Proceeding
without the consent of the Indemnified Person, which consent will not be
unreasonably withheld. In any circumstance involving a third party demand, claim
or Proceeding in which an indemnity requirement as set forth in this Section 7
is determined not to be enforceable under applicable law, the Indemnitor and
Indemnified Person will contribute to the payment of any Loss for which
indemnification is not available, in proportion to the comparative degree of
culpability of the Indemnitor and the Indemnified Person.
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8. ENTIRE AGREEMENT/WAIVER/ASSIGNMENT.
This Agreement contains the entire agreement of the parties regarding the
subject matter hereof and supersedes all prior oral or written agreements,
understandings and negotiations regarding the same including but not limited to
any confidentiality and development agreements or business relationship letters.
This Agreement may not be changed, modified, amended, supplemented (each an
"Alteration") or waived except by a written instrument to be signed by an
authorized representative of each party hereto, in the case of an Alteration, or
by an authorized representative of the party waiving compliance herewith, in the
case of a waiver. In addition, the Company agrees and will cause Company
Affiliates to agree that no Purchase Order may eliminate or otherwise limit any
of the Obligations of the Company under this Agreement. No failure or delay by
McD in exercising any right, power or privilege hereunder will operate as a
waiver thereof, nor will any single or partial exercise thereof preclude any
other further exercise thereof or the exercise of any other right, power or
privilege hereunder. The Company may not assign or delegate any of its rights or
obligations hereunder without the prior written consent of McD and any attempted
assignment or delegation without consent will be null and void. If any portion
or portions of this Agreement are for any reason invalid or unenforceable, the
remaining portion or portions are nevertheless valid and enforceable.
9. CHOICE OF LAW/INJUNCTIVE RELIEF.
(a) THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO THE
CONFLICTS OF LAWS PROVISIONS. THE COMPANY HEREBY SUBMITS AND WILL CAUSE ALL
COMPANY AFFILIATES TO SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL
AND/OR STATE COURTS OF ILLINOIS IN CONNECTION WITH ALL SUITS, ACTIONS,
PROCEEDINGS OR OTHER DISPUTES RELATING TO THIS AGREEMENT, THE PARTIES' BUSINESS
RELATIONSHIP, OR ANY OTHER AGREEMENT BETWEEN THE PARTIES OR THE COMPANY
AFFILIATES OR McD AFFILIATES RELATING TO THE SUBJECT MATTER HEREIN (COLLECTIVELY
"ACTIONS"). THE COMPANY AGREES (AND WILL CAUSE COMPANY AFFILIATES TO AGREE) TO
(1) SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF THE ILLINOIS COURTS; (2)
WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTIONS TO THE
JURISDICTION AND/OR VENUE OF THE ILLINOIS COURTS; AND (3) WAIVE ALL RIGHTS TO
TRIAL BY JURY IN ANY ACTION. THE COMPANY FURTHER AGREES (AND WILL CAUSE COMPANY
AFFILIATES TO AGREE) THAT PROCESS MAY BE SERVED ON THEM BY MAILING THE SAME TO
THEM BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, WITH THE SAME EFFECT AS THOUGH
SERVED UPON THEM PERSONALLY.
(b) The Company recognizes and acknowledges that its failure or the
failure of Company Affiliates to comply with any of the representations,
warranties, obligations, undertakings, agreements and covenants under this
Agreement will cause McD and McD Affiliates material and adverse harm for which
there is no adequate remedy at law. Accordingly, the Company agrees and will
cause Company Affiliates to agree that, in addition to any other remedies that
may be available, McD and McD Affiliates will be entitled to immediate
injunctive relief against the breach or threatened breach of any representation,
warranty, obligation, undertaking, agreement or covenant by the Company or any
Company Affiliates, without proof of actual damages and without posting any bond
or other security.
Please indicate the Company's acceptance of this Agreement by signing two copies
of this letter and returning one copy to McD.
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ALPHA PRO TECH, LTD. XXXXXXXX'X CORPORATION
By :___________________________ By :____________________________
X. X. Xxxxxx Xxxxx Xxxx
President Vice President
Insurance
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EXHIBIT A
PROJECT SUPPLEMENT
This document constitutes a Project Supplement as referred to the in the
Agreement dated February 1, 2000 between Alpha ProTech, Ltd. (the "Company")
and XxXxxxxx'x Corporation ("McD").
Capitalized terms used herein but not defined will have the meanings given to
them in the Development Agreement, as supplemented.
1. DESCRIPTION OF THE PROJECT[S] AND/OR PRODUCT[S].
2. OTHER PROVISIONS.
[ALL SPECIFIC PROVISIONS RELATING TO A PARTICULAR PROJECT OR PRODUCT THAT DIFFER
FROM THE LANGUAGE IN THE MASTER LETTER OR OTHER PROJECT SUPPLEMENTS WILL BE
LISTED HERE I.E. OWNERSHIP, COSTS OF DEVELOPMENTS ETC.]
Except as provided herein, all of the rights and obligations of the Company and
McD as set forth in the Agreement are hereby ratified and confirmed.
XXXXXXXX'X CORPORATION COMPANY
By: _____________________________ By: _______________________________
Its: ____________________________ Its: ______________________________
Date: ___________________________ Date: _____________________________
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EXHIBIT B
COMPANY PRODUCTS
The Company currently manufactures and sells the following proprietary
products using patented materials, designs and processes: AquaTrak (Registered)
and AquaTrak Black (Registered) shoe covers; (b) aprons; (c) sleeve protectors;
and, (d) eye xxxxxxx
These proprietary products manufactured by the Company in any color, using any
material and containing any McD trademark, tradename or logo shall be referred
to herein as a "Company Product.".
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FIRST AMENDMENT TO
BUSINESS RELATIONSHIP/CONFIDENTIALITY AGREEMENT
This First Amendment to Business Relationship/Confidentiality Agreement ("First
Amendment") by and between Alpha Pro Tech, Ltd. ("Company") and XxXxxxxx'x
Corporation ("McDonald's") is dated as of June 12, 2001.
WHEREAS, Company and McDonald's have entered into a Business
Relationship/Confidentiality Agreement dated as of February 1, 2000 (the
"Agreement").
WHEREAS, the Company and McDonald's desire to amend the Agreement;
NOW THEREFORE, in consideration of the premises, mutual promises and
covenants herein set forth and other good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, the Company and McDonald's
agree that the Agreement is hereby amended as follows:
1. Exhibit B to the Agreement shall be deleted in its entirety and
replaced with the revised attached Exhibit B:
All other terms and provisions of the Agreement are hereby reaffirmed and
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have duly caused this Second
Amendment to be executed as of the date indicated above.
ALPHA PRO TECH, LTD. XXXXXXXX'X CORPORATION
By: /s/ X.X. Xxxxxx By: /s/ Xxxxx Xxxx
-------------------------------- ----------------------------
X.X. Xxxxxx Xxxxx Xxxx
President Vice President
Insurance
EXHIBIT B
The Company currently manufactures and sells the following proprietary products
using patented materials, designs and processes: (a) AquaTrak (registered) and
AquaTrak Black (registered) shoe covers; (b) aprons; (c) sleeve protectors; (d)
eye xxxxxxx; and (e) safety mitts/gloves.
The above-described products, in any color and using any material, shall be
deemed Company Products and shall be owned by the Company.
