EXHIBIT 10.1
AMENDED AND RESTATED
PRODUCT SUPPLY AGREEMENT
This AMENDED AND RESTATED PRODUCT SUPPLY AGREEMENT ("Agreement") is made
effective this 29th day of April, 1999, and is by and between XXXXX, X.X., a
French corporation ("XXXXX"), XXXXX NORTH AMERICA, INC. (formerly known as Xxxxx
Electrostatic, Inc.), a Connecticut corporation ("SAMES, N.A."), BINKS XXXXX
CORPORATION, a Delaware corporation ("BINKS"; BINKS, SAMES, N.A. and XXXXX are
hereinafter collectively referred to as "Seller"), and FANUC ROBOTICS NORTH
AMERICA, INC., a Delaware corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller and Buyer are parties to that certain Product Supply
Agreement dated May 29, 1998 (the "Prior Agreement");
WHEREAS, Seller and Buyer desire to amend and restate the Prior Agreement
as herein provided;
WHEREAS, Seller has agreed to supply the products listed on EXHIBIT A
attached hereto (collectively, the "Xxxxx Products" and individually, the "Xxxxx
Product") to Buyer, and Buyer has agreed to purchase and accept delivery of the
Xxxxx Products from Seller for a certain minimum period, on the terms and
conditions set forth herein;
WHEREAS, Buyer desires to become the distributor for Seller, and in said
capacity, to market and sell the Xxxxx Products to predetermined purchasers in a
predetermined market;
WHEREAS, Buyer desires a license to manufacture the Xxxxx Products
referenced as "Xxxx Machines" (liquid) on EXHIBIT A attached hereto (the "Xxxxx
Xxxx Machines");
WHEREAS, Buyer has agreed to supply the robotics equipment listed on
EXHIBIT C attached hereto (the "FRNA Paint Equipment") to Seller, and Seller has
agreed to accept delivery of the FRNA Paint Equipment from Buyer for use in
Seller's technology center in Grenoble, France, on the terms and conditions set
forth in Buyer's standard Bailment Agreement attached hereto as EXHIBIT C;
WHEREAS, Buyer has agreed to supply the paint products listed on EXHIBIT B
attached hereto (collectively, the "FRNA Paint Products" and individually, the
"FRNA Paint Product"), to Seller, and Seller has agreed to purchase and accept
delivery of the FRNA Paint Products from Buyer for a certain minimum period, on
the terms and conditions set forth herein;
WHEREAS, Seller desires a non-exclusive right and license to use, market
and sell the FRNA Paint Products;
WHEREAS, Seller and Buyer have agreed to provide each other with reasonable
product training as well as engineering and technical assistance in connection
with the Xxxxx Products, FRNA Paint Products and FRNA Paint Equipment;
WHEREAS, Buyer desires exclusive use of Seller's automotive laboratory
located on Capital Street in Livonia, Michigan, on the terms and conditions set
forth in the Agreement attached hereto as EXHIBIT D;
WHEREAS, Seller and Buyer desire to jointly participate in the development
of new products.
NOW, THEREFORE, in consideration of the mutual covenants of the parties
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Buyer and Seller agree as
follows:
SECTION 1. TERM.
(a) Subject to earlier termination as provided herein, and except with
respect to the "ACCUSTAT" and "AQUA" licenses described in Section 13, the term
of this Agreement shall commence on the date hereof and shall continue for three
years.
(b) This Agreement shall be automatically renewable for three one-year
terms, unless either party gives the other party written notice of its intention
not to renew the Agreement not less than one hundred and eighty (180) days prior
to the expiration of the initial term or any renewal term of this Agreement.
(c) Seller shall have the right to immediately cancel this Agreement
following either: (i) a breach by Buyer of any of its agreements or obligations
under this Agreement and such failure(s) to perform continues for at least
thirty (30) days after written notice thereof; or (ii) the insolvency or
bankruptcy of Buyer.
(d) Buyer shall have the right to immediately cancel this Agreement
following either: (i) the breach by Seller of any of its agreements or
obligations under this Agreement and such failure(s) to perform continues for at
least thirty (30) days after written notice thereof; or (ii) the insolvency or
bankruptcy of Seller.
(e) Sections 8 and 18 of this Agreement shall survive termination of
this Agreement.
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SECTION 2. LIST OF XXXXX PRODUCTS AND INVENTORY; PURCHASES. Subject to the
terms and conditions of this Agreement, Buyer agrees to purchase from Seller,
and Seller agrees to sell to Buyer, the Xxxxx Products and all enhancements to
the Xxxxx Products (hereinafter collectively, the "Xxxxx Products") in the
minimum quantities set forth on EXHIBIT A hereto. Notwithstanding the terms and
conditions of Seller's standard warranty attached hereto as EXHIBIT F, if Buyer
experiences a problem with any particular Xxxxx Product, Seller shall use its
reasonable best efforts to cure such problem within sixty (60) days of written
notice to Seller. Further, if such problem is not reasonably cured by Seller
within sixty (60) days of written notice to Seller, Buyer may, in its sole
discretion, cancel the minimum quantity requirement for such Xxxxx Product. The
list of Xxxxx Products to be supplied by Seller hereunder may change from time
to time and any such changes shall be noted on a revised EXHIBIT A and such
revised EXHIBIT A shall be signed and dated by both Seller and Buyer. Buyer
agrees to purchase from Seller, and Seller agrees to sell to Buyer, on or before
August 1, 1999, existing inventory of Sames, N.A. (the "Xxxxx Inventory") at
current prices up to a maximum aggregate amount of $100,000. Any Xxxxx Inventory
purchased by Buyer shall be credited against Buyer's minimum quantity
commitments for Xxxxx Products set forth herein.
SECTION 3. PURCHASE PRICE; TERMS OF PAYMENT; DELIVERY OF XXXXX PRODUCTS AND
XXXXX INVENTORY.
(a) Seller agrees that its pricing of the Xxxxx Products listed under
the "Main Component" heading on EXHIBIT A hereto (hereinafter, the "Main
Component Products") to Buyer shall at all times be the lowest pricing of such
Main Component Products to any customer of Seller purchasing similar quantities
of Main Component Products.
(b) The Purchase Price of Xxxxx Products which are added to EXHIBIT A
as provided in Section 2 shall be mutually agreed upon at the time such Xxxxx
Products are added.
(c) From August 1, 1999, at Seller's request, Buyer shall pay in
advance to Seller an amount (in U.S. dollars) equal to the purchase price, as
defined in EXHIBIT A, for the remaining minimum commitment under the Prior
Agreement through March 1, 2000 (the "Prepayment") and such Prepayment shall
satisfy Buyer's purchase price for minimum quantities of Xxxxx Products through
May 31, 2000; provided, however, that the amount of such Prepayment shall not
exceed $1,500,000.. The purchase price for Xxxxx Products subject to the
Prepayment shall be subject to a discount of 4.875%. Buyer shall submit its
purchase order for the Xxxxx Products subject to the Prepayment within ten (10)
days of Seller's request for the Prepayment.
(d) The purchase price for Xxxxx Products other than the Xxxxx
Products subject to the Prepayment shall be paid by Buyer to Seller net in cash
(in U.S. dollars) within thirty (30) days of invoice receipt.
(e) The purchase price for any Xxxxx Product or Xxxxx Inventory is
exclusive of any delivery and installation charges and any taxes, excises or
other governmental charges
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applicable to the sale of the Xxxxx Products or the Xxxxx Inventory, which
amounts shall be for Buyer's account and added as separate items on Seller's
invoices.
(f) All Xxxxx Products originating from Grenoble, France are F.O.B.
Rochester Hills, Michigan, except Xxxx Machines with freight charges prepaid by
Xxxxx X.X. (Grenoble). All Xxxxx products manufactured and assembled by Sames,
N.A. will be F.O.B. Livonia, Michigan. All Xxxx Machines (liquid) will be F.O.B.
Grenoble, France.
(g) The delivery times for Main Component Products shall be within the
ranges set forth on EXHIBIT A hereto.
SECTION 4. MANUFACTURING AND MARKETING RIGHTS.
(a) Buyer shall be granted a non-exclusive right and license to
manufacture the Xxxxx Xxxx Machines (liquid) to automakers as provided in
subsection (b) below, subject to the terms and conditions of the Amended and
Restated License Agreement attached hereto as EXHIBIT H.
(b) Seller hereby grants Buyer the exclusive right to market and sell
the Xxxxx Products, to all automakers throughout North America and solely to
Ford, GM and Chrysler in South America. Seller and Buyer hereby acknowledge and
agree that where the automaker in South America is, for example, Ford/Volvo or
Daimler/Chrysler, Buyer's exclusive right under this Section 4(b), extends only
to customers whose name plate is either Ford, GM or Chrysler, unless otherwise
agreed by the parties hereto. While this Agreement is in effect, Seller shall
not grant any other person or entity the right to market and sell the Xxxxx
Products to all automakers throughout North America and to Ford, GM and Chrysler
in South America. The Seller reserves the right to market and sell the Xxxxx
product line for the sole purpose of replacing or upgrading existing equipment.
Buyer has the right to first refusal.
SECTION 5. LIST OF FRNA PAINT EQUIPMENT AND PRODUCTS; PURCHASES; MARKETING
RIGHTS.
(a) Seller agrees to purchase from Buyer, and Buyer agrees to sell to
Seller, the FRNA Paint Products set forth on EXHIBIT B attached hereto subject
to the terms and conditions of this Agreement. Buyer agrees to supply Seller
with the FRNA Paint Equipment set forth on EXHIBIT C attached hereto for use by
Seller at its technology center located in Grenoble, France (the "Technology
Center") subject to the terms and conditions of the Bailment Agreement attached
hereto as EXHIBIT D. The list of FRNA Paint Products may change from time to
time and any such changes shall be noted on a revised EXHIBIT B and such revised
EXHIBIT B shall be signed and dated by Seller and Buyer. Notwithstanding the
foregoing, Buyer shall be solely responsible for all costs associated with any
demonstrations conducted at the Technology Center for Buyer's exclusive use and
Buyer agrees to indemnify Seller for any damages resulting from all such
demonstrations.
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(b) Buyer hereby grants Seller a non-exclusive right to market FRNA
Paint Products only as part of a xxxx system and only in Europe.
SECTION 6. PURCHASE PRICE; TERMS OF PAYMENT; DELIVERY OF FRNA PAINT
EQUIPMENT AND PRODUCTS.
(a) The initial prices for FRNA Paint Products listed under the "Paint
Products" heading on EXHIBIT B attached hereto (hereinafter "FRNA Paint
Products") shall be those prices set forth on EXHIBIT B attached hereto;
provided, however, that pricing of FRNA Paint Products to Seller shall be the
lowest pricing of such FRNA Paint Products to any competitor of Seller
purchasing any such FRNA Paint Products where Seller is bidding with a direct
competitor of Seller.
(b) The purchase price for FRNA Paint Products which are added to
EXHIBIT B as provided in Section 5 shall be mutually agreed upon at the time
such FRNA Paint Products are added. The initial purchase price for FRNA Paint
Products is set forth on EXHIBIT B hereto.
(c) The purchase price for FRNA Paint Products shall be paid by Seller
to Buyer net in cash (in U.S. dollars) within thirty (30) days of invoice
receipt.
(d) The purchase price for any FRNA Paint Product is exclusive of any
delivery and installation charges or any taxes, excises or other governmental
charges applicable to the sale of the FRNA Paint Products, which amounts shall
be for Seller's account and added as separate items on Buyer's invoices.
(e) All FRNA Paint Products shall be shipped F.O.B. FANUC Robotics
North America, Inc., Rochester Hills, Michigan.
SECTION 7. PRODUCT TRAINING, ENGINEERING AND TECHNICAL ASSISTANCE.
(a) Buyer and Seller agree to provide each other, upon reasonable
request, with product training and engineering and technical assistance. The
nature, manner and costs associated with such training and assistance shall be
mutually agreed by the parties prior to the performance thereof.
(b) Seller will employ, pay, supervise, direct and discharge all
Seller personnel providing the product training and engineering and technical
assistance hereunder. Seller will be solely responsible for the payment of
benefits and any other direct or indirect compensation for Seller personnel
assigned to perform the product training and engineering and technical
assistance hereunder. Seller also agrees to be responsible for the employees'
worker's compensation insurance, employment taxes and other employer liabilities
relating to such personnel.
(c) Buyer will employ, pay, supervise, direct and discharge all Buyer
personnel providing the product training and engineering and technical
assistance hereunder. Buyer will be solely responsible for the payment of
benefits and any other direct and indirect compensation for
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Buyer personnel assigned to perform the product training and engineering and
technical assistance hereunder. Buyer also agrees to be responsible for the
employees' worker's compensation insurance, employment taxes and other employer
liabilities relating to such personnel.
(d) Seller and Buyer hereby indemnify and agree to defend and hold
harmless each other, their respective affiliated corporations, and agents,
employees and representatives, from and against any liability, claim, demand,
loss, damage, cost and expense, including reasonable attorney's fees and
litigation costs, arising out of or in connection with the performance of the
product training and engineering and technical assistance hereunder which occurs
as a result of the gross negligence or willful misconduct of either Seller or
Buyer, or their respective employees, agents, contractors, or subcontractors.
SECTION 8. WARRANTY.
(a) The parties agree that all Xxxxx Products shall be subject to
Seller's standard warranty terms and conditions attached hereto as EXHIBIT F.
(b) In the event a customer of Buyer requires warranty terms and
conditions other than Seller's standard warranty terms and conditions, Seller,
in its sole discretion, may supply Xxxxx Products on such non-standard warranty
terms and conditions, provided, however, that such agreement to supply Xxxxx
Products on such non-standard warranty terms and conditions shall not be
unreasonably withheld and shall be consistent with the past practices of the
parties. Seller's refusal to supply Xxxxx Products on non-standard warranty
terms and conditions shall not constitute a Change in Control Breach (as
hereinafter defined).
(c) Seller agrees to provide Buyer with non-warranty service in
connection with Buyer's installed base of Seller's Xxxxx Products during the
term of this Agreement and shall charge Buyer for such service at the rate
charged to Seller's other automotive customers for similar non-warranty service.
(d) The parties agree that Seller shall directly warrant and service
all Xxxxx Products sold for the products listed on EXHIBIT G attached hereto.
(e) The parties agree that Buyer shall directly warrant and service
all FRNA Paint Equipment and FRNA Paint Products supplied or sold by Buyer
hereunder subject to Buyer's standard warranty terms and conditions attached
hereto as EXHIBIT L.
(f) The parties agree to indemnify each other for damages caused by
any breach of this Section 8.
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SECTION 9. AUTOMOTIVE LABORATORY. Buyer shall be granted an exclusive use
of Seller's automotive laboratory located on Capital Street in Livonia, Michigan
subject to the payments and other conditions described on EXHIBIT E attached
hereto. Seller represents and warrants that it has full authority to grant such
use and shall indemnify Buyer for damages caused by any breach of such
representation and warranty. Buyer and Seller agree to cooperate to allow
continued product validation and testing to be jointly completed at the Capital
Street laboratory.
SECTION 10. BUYER'S SPECIAL REMEDIES; LICENSES. If, following either a
"Binks change in control" or a "Xxxxx/Xxxxx, X.X. change in control" (as such
terms are defined below), Seller or their successor breaches the Agreement (a
"Change in Control Breach") and such Change in Control Breach is not cured
within thirty (30) days following written notice from Buyer to the other parties
hereto, Buyer shall be entitled to exercise either or both of the special
remedies set forth below:
(a) SPECIFIC PERFORMANCE. Buyer shall, in addition to all other
remedies, be entitled to specific performance or injunctive relief to enforce
the terms of this Agreement.
(b) LICENSE. Buyer shall be granted a limited license, effective upon
the failure to timely cure a Change in Control Breach, to make, use or sell any
of the Xxxxx Product solely in conjunction with the sale of Buyer's products and
in accordance with the terms and conditions of this Agreement. The term of the
license shall be coterminous with this Agreement. In connection with such
license, Buyer agrees (i) not to compete with Seller in the sale of the Xxxxx
Products other than in conjunction with the sale of Buyer's products, (ii) not
to copy or disclose to third parties (except as described below), and to return
to Seller all data, drawings, specifications, technical information, know-how
and similar information concerning the Xxxxx Products (the "Confidential Product
Information") following the expiration of such license, (iii) not to use, in any
manner, any of Seller's trademarks in connection with Buyer's manufacture, use
or sale of the Xxxxx Products, and (iv) to pay Seller a monthly royalty equal to
the sum of the products obtained by multiplying the number of each of the Xxxxx
Products sold during the previous month by the respective price Seller last
charged Buyer for such Xxxxx Product by the respective royalty rate listed on
EXHIBIT A hereto. The Confidential Product Information shall be placed in escrow
following the execution and delivery of this Agreement, pursuant to the Escrow
Agreement attached hereto a EXHIBIT H. Following the effective date of the
license, Buyer shall be allowed to disclose the Confidential Product Information
to third parties solely for the purpose of manufacturing the Xxxxx Products
provided that such third parties sign and deliver to Seller a mutually agreeable
limited license and confidentiality agreement which shall, without limitation,
prohibit such third parties from disclosing the Confidential Product Information
and from using such information for any purpose other than producing the Xxxxx
Products for Buyer. The Buyer's license and any license of a third party
supplier shall automatically terminate upon Buyer's breach or such supplier's
breach of the respective agreements, which breach is not cured within thirty
(30) days following written notice from Seller or their successor, and Seller
shall be entitled to specific performance or injunctive relief enforcing such
agreements. The terms of such license shall be in accordance with the Amended
and Restated License Agreement which is attached hereto as EXHIBIT I.
Notwithstanding the foregoing, Buyer's license to manufacture, use and
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sell Xxxxx Xxxx Machines (liquid) under the Amended and Restated License
Agreement shall be limited in scope pursuant to the terms of Section 4 of this
Agreement.
(c) BINKS CHANGE IN CONTROL. "Binks Change in Control" shall mean the
merger or acquisition of Binks Xxxxx Corporation with or by a third party.
(d) XXXXX/XXXXX, X.X. CHANGE IN CONTROL. "Xxxxx/Sames, N.A. Change in
Control" shall mean the merger or acquisition of Binks Sames France, S.A. and
Xxxxx North America, Inc. with or by a third party.
SECTION 11. SELLER'S SPECIAL REMEDIES. If Buyer breaches this Agreement and
such breach is not cured within thirty (30) days following written notice from
Seller or their successor to Buyer, Seller or their successor, as the case may
be, shall, in addition to all other remedies, be entitled to specific
performance or injunctive relief to enforce the terms of this Agreement.
SECTION 12. RELEASE OF BINKS. If, following a Xxxxx/Xxxxx, X.X. Change in
Control, Xxxxx and Sames, N.A. retain non-exclusive rights to the Products that
are subject to the license granted to Buyer under Section 10 hereof and such
rights are sufficient to allow Xxxxx and Xxxxx, X.X. to perform the licensor's
obligations under such license, the parties hereby acknowledge and agree that
Binks shall, as of the effective date of the Xxxxx/Sames, N.A. Change in
Control, no longer be a party to this Agreement, the License Agreements attached
hereto as EXHIBIT I and EXHIBIT J, respectively, and the Escrow Agreement
attached hereto as EXHIBIT H and shall have no further rights or obligations in
to and under this Agreement, the License Agreements and the Escrow Agreement,
with the exception of the obligation of Binks not to interfere with Buyer's
exclusive right to purchase "ACCUSTAT" and "AQUA" Xxxxx Products under this
Agreement.
SECTION 13. ACCUSTAT/ AQUA/ ACCUBELL LICENSES.
(a) Buyer covenants and agrees to purchase all Xxxxx Products
referenced as "ACCUSTAT" and "AQUA" on EXHIBIT A hereto exclusively from Seller
and Seller hereby grants Buyer an exclusive right to purchase such "ACCUSTAT"
and "AQUA" Xxxxx Products, whether stand-alone or as a component of another
product or system, coterminous with this Agreement.
(b) Buyer hereby grants Seller a non-exclusive and royalty free
license for the respective lives of Buyer's linear potentiometer patents subject
to the terms of the License Agreement which is attached hereto as EXHIBIT I, and
Seller hereby agrees to supply to Buyer, on an exclusive basis, "ACCUSTAT" and
"AQUA" Xxxxx Products during the period of such license.
(c) Buyer covenants and agrees to purchase all Xxxxx Products
referenced as "ACCUBELL" on EXHIBIT A hereto on a non-exclusive basis from
Seller and Seller hereby grants Buyer a non-exclusive right to purchase such
"ACCUBELL" Xxxxx Products.
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(d) Buyer covenants and agrees to purchase all spare parts for all
Xxxxx Products exclusively from Seller at current published automotive prices.
SECTION 14. PRODUCT DEVELOPMENT. Seller and Buyer hereby agree to jointly
participate in the development of new products to be identified by marketing and
product development representatives of Seller and Buyer. Prior to commencement
of any joint product development project, Seller and Buyer shall mutually agrees
as to the ownership rights, costs, and use of such product.
SECTION 15. FORCE MAJEURE. Neither Buyer nor Seller shall be responsible
for any loss resulting from the non-fulfillment of any terms of this Agreement
caused by riots, wars, acts of enemies, national emergencies, strikes, floods,
fires, acts of God, or by any other cause not within the control of the party
whose performance is interfered with which by the exercise of reasonable
diligence such party is unable to prevent.
SECTION 16. INDEPENDENT CONTRACTOR. Seller and Buyer are each acting as an
independent contractor and not as a partner, joint venturer, or agent the other
in connection with the execution and performance of this Agreement. Nothing in
this Agreement will be deemed or construed to create between the parties a
partnership, association, joint venture, franchise or agency. Neither party is
in any way the legal representative of the other party, and neither party has
any authority to assume or create any obligation on behalf of the other.
SECTION 17. TERMS AND CONDITIONS OF SALE.
(a) All purchases of Xxxxx Products and Xxxxx Inventory under this
Agreement shall be made under the terms and conditions of sale set forth on
EXHIBIT K attached hereto.
(b) All purchases of FRNA Paint Products under this Agreement shall be
made under the terms and conditions of sale set forth in EXHIBIT L attached
hereto.
(c) Seller and Buyer expressly understand and agree that the terms and
conditions set forth in this Agreement and in any Exhibit hereto supersede any
terms and conditions printed on any Buyer purchase order for Xxxxx Products
delivered to Seller or Seller purchase order for FRNA Paint Products delivered
to Buyer to the extent the terms and conditions of this Agreement and the
Exhibits hereto and the terms and conditions of such Buyer purchase order or
Seller purchase order may be inconsistent with each other.
SECTION 18. CONFIDENTIALITY; SOLICITATION; RESTRICTIONS ON USE.
(a) Seller and Buyer covenant and agree that for a period of five (5)
years from the date of disclosure to either party each will keep confidential
and will not disclose to any third party, any information marked confidential,
or if transmitted visually or verbally is identified as confidential at the time
of such disclosure and reduced to writing information marked confidential
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within fifteen (15) days, of Seller or Buyer, including, but not limited to,
data, drawings, specifications and other technical information, including any
and all items deposited with the escrow agent under the Escrow Agreement
attached hereto as EXHIBIT G (the "Confidential Information"), furnished
directly or indirectly to either party. Confidential Information will not
include information which (i) was heretofore in the public domain or becomes a
part of the public domain through no fault or negligence on the part of Seller
or Buyer, (ii) is received by Seller or Buyer in good faith from a third party
who has the right to disclose such information, or (iii) Seller or Buyer is
legally obligated to disclose.
(b) Seller and Buyer agree that the Confidential Information shall not
become the property of the other party and shall be used solely for the purpose
of fulfilling the parties' respective obligations hereunder.
(c) The parties covenant and agree not to solicit the hiring of any
officer, director or employee of the other party during the term of this
Agreement and for a period of two (2) years following the termination of this
Agreement. Notwithstanding the foregoing, Buyer shall have the right to solicit
and employ those employees of Seller identified on EXHIBIT L hereto (the
"Employees') and Seller shall cooperate and encourage such employees to accept
employment with Buyer. Seller shall be responsible and liable for any salary,
wages, bonuses, commissions, accrued vacations, or sick-leave time, profit
sharing or pension benefits, as well as any actions or causes of action,
including, but not limited to, unemployment compensation claims and worker's
compensation claims and claims for race, age and sex discrimination and sexual
harassment that any of its employees assert in connection with their employment
or separation from Seller, or both. Seller shall further be responsible for all
rights of Seller's employees under the Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA). It is understood by Buyer and Seller that
Buyer will not assume or accept any of Seller's employment benefit plans or
other employment benefit obligations of Seller. Seller, and not Buyer, shall be
responsible for liabilities and claims for employee benefits under Seller's
employee benefit plans or with regard to any severance or layoff benefits that
are claimed to arise as a result of the transactions contemplated herein. Seller
shall indemnify Buyer for damages caused by the breach of this Section 18(c).
The parties covenant and agree that the terms and conditions of that certain
February 1998 Mutual Confidentiality and Non-Disclosure Agreement shall remain
effective with respect to the Employees.
(d) Seller agrees that all stand-alone robotic systems shall be
handled by a FANUC Ltd. subsidiary or affiliate unless otherwise agreed by the
parties hereto.
SECTION 19. NOTICE. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given to any
party (i) upon delivery to the address of such party specified below if
delivered in person or by prepaid courier, or (ii) upon dispatch if transmitted
by facsimile transmission, in any case to the parties at the following addresses
or telecopy numbers, as the case may be:
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If to Buyer, at:
FANUC ROBOTICS NORTH AMERICA, INC.
0000 X. Xxxxxx Xxxx
Xxxxxxxxx Xxxxx, XX 00000
Attention: Corporate Counsel
Facsimile Number: (000) 000-0000
If to Seller, at:
BINKS XXXXX CORPORATION
0000 Xxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Facsimile Number: (000) 000-0000
With a copy to:
Xxx X. Xxxxxx, Esq.
Xxxxxx Price Xxxxxxx & Kammholz
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Facsimile Number: (000) 000-0000
SECTION 20. ASSIGNMENT. This Agreement may not be assigned by either party
without the prior written consent of the other party. Notwithstanding the
foregoing, the parties hereby acknowledge and agree that a Binks Change in
Control or a Xxxxx/Sames, N.A. Change in Control, as the case may be, shall be
considered a permitted assignment under this Agreement; provided that in the
event Seller, collectively or individually, sells, merges, or transfers any
material portion of its assets, including, without limitation, its rights under
this Agreement, to a robotic competitor of Buyer, Buyer shall have the right to
terminate this Agreement.
SECTION 21. CHOICE OF LAW; BINDING EFFECT . This Agreement and the rights
and obligations of the parties hereto shall be governed and construed in
accordance with the laws of the State of Illinois applicable to agreements to be
executed and performed wholly within Illinois, and shall inure to the benefit of
the and be binding upon the parties hereto and their respective successors and
permitted assigns.
SECTION 22. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the
entire agreement between the parties, and may not be altered, modified,
terminated or discharged except in a writing signed by both parties.
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SECTION 23. SEVERABILITY; WAIVER. Should any covenant or provision of this
Agreement be determined to be void and unenforceable, in whole or in part, it
shall not be deemed to affect or impair the validity of any other covenant or
provision or any part thereof, and such covenant or provision or part thereof
shall be deemed modified to the extent required to permit enforcement. Any
waiver by either party hereto of any breach of any kind or character whatsoever
by the other party, whether such waiver be direct or implied, shall not be
construed as a continuing waiver of or consent to any subsequent breach of this
Agreement on the part of the other party.
SECTION 24. EXECUTION; COUNTERPARTS. This agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
FANUC ROBOTICS NORTH AMERICA, INC. BINKS XXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
-------------------------------- -----------------------------------
Its: President Its: President
------------------------------- ----------------------------------
XXXXX NORTH AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Its: President
----------------------------------
XXXXX, X.X.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Its: President
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