Exhibit 10.10
EXHIBIT K
CONFIDENTIALITY AND
NONDISCLOSURE AGREEMENT
This Agreement, dated __________, 2000 (the "Effective Date"), is made
between APPLIED POWER INC., a Wisconsin corporation, with offices at 0000 X.
Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000 ("API"), and APW LTD., a Bermuda
corporation ("APW"), with offices at N22 X00000 Xxxxxxxxx Xxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxx 00000-0000.
WHEREAS, API owns and operates businesses generally known as its industrial
business (hereinafter "Industrial Businesses"), and electronics business, and
intends to spin off the electronics business (the "Electronics Business") to
APW;
WHEREAS, API is in the business of research, development, manufacture and
sale of industrial tools and electronics enclosures;
WHEREAS, APW will acquire API's Electronics Business in the upcoming spin-
off and will be in the business of research, development, manufacture and sale
of various electronics, enclosure and related products and engineered solutions
products;
WHEREAS, API and the Electronics Business (and now APW) are the respective
proprietary owners of confidential information concerning technical and other
confidential data (the "Proprietary Information");
WHEREAS, API and APW consider the Proprietary Information including that
held by their subsidiaries, to be valuable, confidential and not otherwise
available for disclosure;
WHEREAS, API and APW have entered into certain agreements to govern their
relationship after the spin-off as set forth in a Contribution Agreement, Plan
and Agreement of Reorganization and Distribution, including the exhibits,
schedules, instruments, and conveyances attached thereto, dated as of
__________, 2000 (the "Spin-off Agreements"). The Spin-off Agreements will
require that API and APW disclose information to one another which one or the
other safeguards as confidential (the "Spin-off Confidential Information"); and
WHEREAS, prior to the Spin-off certain of API's and APW's employees were
privy to information regarding API's and APW's business operations which one or
the other regards as confidential (the "General Confidential Information").
NOW THEREFORE, in consideration of the promises set forth herein, the
parties do hereby agree as follows:
1. Proprietary Information.
For a five year period, APW and API agree to treat the Proprietary
Information, General Confidential Information and Spin-off Confidential
Information as confidential and acknowledge that an equivalent of a fiduciary
and confidential relationship between API and APW is established.
APW and API agree to disclose the Proprietary Information, General
Confidential Information and Spin-off Information of the other only to such
employee(s), representatives, advisers, officers, directors and agents as
necessary and only if such persons agree to respect the fiduciary and
confidential relationship between API and APW. APW or API or any of their
respective employee(s), representatives, advisers, officers, directors and
agents shall not make any use or disclosure of the Proprietary Information
General Confidential Information and Spin-off Confidential Information to any
other third party without the owner's prior written consent.
2. Non-Confidential Information.
The provisions of Section 2 of this Agreement shall not apply to:
(a) information which at the time of disclosure is generally available to
the public in a published work; or
(b) information which after disclosure by either API or APW to the other
becomes published or generally available to the public, otherwise than
through any act or omission on the part of API or APW in violation of
this Agreement; or
(c) information which either API or APW can show was in its possession at
the time of disclosure by the other and which was not acquired directly
or indirectly from the other either prior to, on or after the Effective
Date; or
(d) information rightfully acquired from third parties who did not obtain
it under pledge of secrecy to either API or APW; or
(e) information required to be disclosed pursuant to a court, federal
regulatory agency, or state regulatory agency order, or required to be
disclosed pursuant to any federal or state statutory or regulatory
provision provided the disclosing party provides the other party with
five business days advance written notice of such disclosure.
3. Conflicts between this Agreement and Any Other Agreement(s).
API and APW agree that these confidentiality provisions are superseded by
corresponding provisions that are included in any of the Spin-off Agreements
entered into prior to or as of the Effective Date hereof.
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4. Remedies.
In an effort to resolve informally and amicably any claim or any
controversy arising out of or relating to the interpretation or performance of
this Confidentiality and Nondisclosure Agreement without resorting to
litigation, a party shall first notify the other of any difference or dispute
hereunder that requires resolution. API and APW each shall designate an
employee to investigate, discuss and seek to settle the matter between them. If
the two are unable to settle the matter within 30 days after such notification
(or such longer period as may be explicitly agreed upon), the matter shall be
submitted to a senior officer of API and APW, respectively, for consideration.
If settlement cannot be reached through the efforts of the senior officers
within an additional 30 days (or such longer period as may be agreed upon), the
parties shall consider mediation, arbitration or other alternative means to
resolve the dispute.
If the parties are unable to agree on an alternative dispute resolution
mechanism, either party may initiate legal proceedings to resolve such matter.
In the event of legal proceedings, API and APW agree that it is impossible
to measure in money the damages that may accrue to a party hereto by reason of a
failure to perform any of the obligations hereunder. Therefore, in the event of
any controversy concerning the rights or obligations under this Confidentiality
and Nondisclosure Agreement such rights or obligations shall be enforceable in a
court of equity by a decree of specific performance. Such remedy, however,
shall be cumulative and non-exclusive and it shall be in addition to any other
remedy which the parties may have.
5. Miscellaneous.
(a) Governing Law. This Agreement and the transactions contemplated hereby
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shall be construed in accordance with and governed by the internal laws of the
State of Wisconsin.
(b) Entire Agreement. This Agreement, the Contribution Agreement and the
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other Agreements and instruments executed and delivered pursuant to this
Agreement or the Contribution Agreement constitute the entire understanding of
the parties hereto with respect to the subject matter hereof, superseding all
negotiations, prior discussions and prior agreements and understandings relating
to such subject matter; provided, however, that the specific provisions of any
other agreement between the parties executed and delivered by the parties in
connection with the closing under the Contribution Agreement shall not be
superseded by this Agreement and to the extent any such other agreement is in
conflict herewith, such specific agreement shall control.
(c) Parties In Interest. Neither party may assign its rights or delegate
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any of its duties under this Agreement without prior written consent of the
other. This Agreement shall be binding upon, and shall inure to the benefit of,
the parties hereto and their respective successors and assigns. Nothing
contained in this Agreement, express or implied, is intended to confer upon any
third party any benefits, rights or remedies.
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(d) Effectiveness. This Agreement shall become effective at the Effective
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Date.
(e) Reformation and Severability. If any provision of this Agreement
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shall be held to be invalid, unenforceable or illegal in any jurisdiction under
any circumstances for any reason, (i) such provision shall be reformed to the
minimum extent necessary to cause such provision to be valid, enforceable and
legal and preserve the original intent of the parties, or (ii) if such provision
cannot be so reformed, such provision shall be severed from this Agreement. Such
holding shall not affect or impair the validity, enforceability or legality of
such provision in any other jurisdiction or under any other circumstances.
Neither such holding nor such reformation or severance shall affect or impair
the legality, validity or enforceability of any other provisions of this
Agreement to the extent that such other provision is not itself actually in
conflict with any applicable law.
(f) Titles and Headings. All titles and headings have been inserted solely
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for the convenience of the parties and are not intended to be a part of this
Agreement or to affect its meaning or interpretation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers this _____ day of __________, 2000.
APPLIED POWER INC.
By:___________________________________________
President and Chief Executive Officer
APW LTD.
By:___________________________________________
President and Chief Executive Officer
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