EXHIBIT 10(9)
SECRECY AND SUPPLY AGREEMENT
This Agreement is made and entered into this ___ day of _____,
1999 by an between Illinois Tool Works Inc., a Delaware corporation
(hereinafter referred to as "ITW"), and Industrial Rubber Products,
Inc., a Minnesota corporation (hereinafter referred to as "IRP").
RECITALS
1. ITW and IRP have entered into a Purchase Agreement dated
March 25, 1999 (the "Purchase Agreement") pursuant to which IRP has
purchased from ITW substantially all of the assets of ITW Irathane
Systems ("Irathane"), a division of ITW.
2. After the Closing Date, as defined in the Purchase
Agreement, ITW intends to purchase from IRP, a truck suspension
part currently under development for use by the auto industry.
3. ITW has provided to IRP certain technical know-how and
patented processes in order to enable IRP to develop, a truck
suspension part which IRP sell exclusively to ITW, ITW will in turn
sell the truck suspension system to the automotive industry.
NOW THEREFORE, in consideration of the foregoing and for other
due and adequate consideration the sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. IRP agrees to sell and ITW agrees to buy a truck
suspension part which IRP is currently developing for exclusive
production and sale to ITW. The terms of which are governed by
paragraph 5 of this Agreement.
2. "ITW Confidential Information" shall mean all technical
and other information concerning the manufacturing, development and
formula of the suspension system, and information related thereto
as disclosed by ITW to IRP, in connection with the urathane
compound material being developed by Irathane, including the
formula that has been designated as "purls", except for any
information that is available publicly, as of the date of this
Agreement, or is otherwise in the possession of IRP or its
affiliates on the date hereof, or that becomes available publicly
after the ate of this Agreement through no fault of IRP. ITW
Confidential Information shall also include such financial
information, customer lists, and other information which is
disclosed by ITW to IRP to enable IRP to evaluate other business
opportunities with respect to ITW's business.
3. For a period of ten years from the date of this
Agreement, IRP shall not use ITW Confidential Information for any
purpose (except for the purposes of this Agreement) without written
approval from ITW. For the same period, IRP shall take due care so
as not to disclose ITW Confidential Information to any third party
(except any attorney having a fiduciary obligation to ITW) without
written approval from ITW, due care meaning the care taken by IRP
to protect its own confidential information of like character.
Nothing herein shall permit, or be construed as granting to IRP a
patent license to make, use or sell the Product to any one other
than ITW.
4. IRP acknowledges that money damages are not an adequate
remedy for a breach of this Agreement by IRP or its
representatives, and ITW shall be entitled to equitable relief,
including injunction and specific performance, as a remedy for such
a breach. IRP waives requirement for the securing or posting of a
bond in connection with such equitable relief and acknowledges that
equitable relief shall not be deemed to be the exclusive remedy for
a breach of this Agreement by IRP or its representatives but shall
be in addition to all other remedies available at law or equity to
ITW.
5. Once the Product is developed and ready for manufacture,
IRP shall (i) make available, free of cost, a reasonable number of
samples of the Products (including each variation thereof) for
ITW's inspection and approval, (ii) produce the Product in
quantities mutually agreed upon by IRP and ITW, (iii) sell the
Product to ITW at IRP's variable cost plus twenty percent (20%) and
(iv) continue to provide the Product to ITW for a period of ten
(10) years, and ITW shall purchase all of its requirements of the
Product from IRP for that same term.
6. ITW and IRP agree that ITW will be devoting a substantial
amount of capital to develop and enhance the market for the
Products. Accordingly, the parties acknowledge that ITW would be
severely damaged if IRP were to fail to deliver the Product or in
the event of the termination of this Agreement through no fault of
ITW. If ITW believes a breach has occurred hereunder then ITW
shall promptly notify IRP and IRP shall have thirty (30) days to
correct such breach before being in default hereunder. In the
event of breach of this Agreement, IRP agrees to furnish ITW with
the "purls" formula within ten (10) days of notice from ITW that
IRP is in default. If IRP (i) fails to perform any of its
obligations under this Agreement, (ii) becomes insolvent, or (iii)
for any reason is unable or unwilling to continue performing its
obligations hereunder (an "Event of Default")IRP shall within ten
(10) days of notice from ITW of the occurrence of such Event of
Default, return the "purls" formula to ITW, and ITW shall have the
right to manufacture the Product or to engage a third party to
manufacture the Product on ITW's behalf; in such event ITW shall
have no further obligation to IRP under this Agreement. IRP agrees
that it shall be responsible for any damages reasonably suffered by
ITW resulting from a failure to timely deliver such information to
ITW and no other damages.
7. The ITW Confidential Information shall not be copied or
reproduced in any form or stored in a retrieval system or data base
by IRP without prior written consent of ITW. All copies shall
contain notices indicating ITW's proprietary rights and the
confidentiality thereof, which may appear on the Information
provided by ITW.
8. At the written request of ITW, IRP shall return forthwith
the ITW Confidential Information and all copies thereof in any form
whatsoever under the control of IRP to ITW, and shall delete the
Information from all retrieval systems and data bases or destroy
same as directed by ITW. IRP shall furnish to ITW a certificate by
an officer of IRP that such deletion or destruction has been
carried out.
9. Except as may be separately provided in a written
agreement signed by IRP and ITW, IRP shall have no other or further
obligation to ITW, ITW shall have no other or further obligation to
IRP, and neither party shall have any liability for any failure to
discuss, negotiate, or undertake the possible arrangement noted
above or any similar or different arrangement.
10. Notice. All notices to be given hereunder shall be given
in writing by certified or registered mail, return receipt
requested, addressed to the respective parties at following
addresses. Either party may change its address for purposes of
this Contract by giving the other written notice of such change in
the manner provided in this paragraph.
ITW: Illinois Tool Works Inc.
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Senior Vice President & Secretary
IRP Industrial Rubber Products
0000 Xxxx 00xx Xxxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxx 00000
11. Assignability. Neither party may assign this Contract or
any part thereof to any third party either voluntarily or by
operation of law without prior written consent of the other, other
than to a wholly (directly or indirectly) owned affiliate. Any
attempted or purported assignment or transfer of this Contract by
either party without such consent shall be void.
12. Construction of Contract. This instrument constitutes
the entire contract between the parties and there are no
understandings, representations or warranties of any kind, express
or implied, not expressly set forth herein. A party's waiver of
any breach or failure to enforce any of the terms and conditions of
this Contract at any time shall not in any way affect, limit or
waive a parties right thereafter to enforce and compel strict
compliance with every term and condition hereof. This Contract
supersedes all prior agreement between the parties concerning the
subject matter hereof.
13. Disputes. Any dispute arising out of or in connection
with this Agreement, including any question regarding its
existence, validity or termination, shall be referred to and
finally resolved by arbitration under the Rules of the American
Arbitration Association, which Rules are deemed to be incorporated
by reference into this clause. The tribunal shall consist of three
arbitrators, two of them shall be nominated by the respective
parties. The place of arbitration shall be Chicago, Illinois.
14. Governing Law. This Contract and the obligations of the
parties hereto shall be governed and construed according to the
Uniform Commercial Code and the applicable law of the State of
Minnesota.
THE PARTIES have executed this Contract as of the date first
hereinabove written.
ILLINOIS TOOL WORKS INC.
By: s/ Xxxxxxx X. Xxxxxx
Its: General Manager, ITW PRC
INDUSTRIAL RUBBER PRODUCTS, INC.
By: s/ Xxxxxx X. Xxxxxx
Its: President
