Exhibit 10.1
JOINT VENTURE AGREEMENT
THIS AGREEMENT, made and entered into this __1st___ day of August,
1991, by and between CATERPILLAR INDUSTRIAL INC., a corporation incorporated and
existing under the laws of the State of Ohio, having its principal office at
0000 Xxxxxxx Xxxx, Xxxxxx, Xxxx (hereinafter referred to as "Caterpillar"), and
THE XXXXXXX CORPORATION, a corporation incorporated and existing under the laws
of the State of New York, having its principal office at South Canal Street,
Greene, New York (hereinafter referred to as "Xxxxxxx").
WITNESSETH:
WHEREAS Caterpillar desires to enter the market for Class II
and Class III forklift trucks as rapidly as possible at the most advantageous
cost possible; and
WHEREAS Caterpillar agrees to fund creation of a
differentiated product line; and
WHEREAS Xxxxxxx has developed valuable Class II and Class III
forklift truck design technology; and
WHEREAS Xxxxxxx desires to increase utilization of its
manufacturing capacity to achieve greater manufacturing cost efficiencies; and
WHEREAS, the parties desire to incorporate and operate a joint
venture company to engage in the business of developing and designing products
to be manufactured by Xxxxxxx for sale to the joint venture company and marketed
through the dealer network of Caterpillar and its Affiliates and to national
account customers of the joint venture company; and
WHEREAS the parties desire to provide products and services to
the joint venture company at cost and share equally in profits of the joint
venture company; and
WHEREAS Xxxxxxx, during the period of joint ownership of the
joint venture by Caterpillar and Xxxxxxx, agrees to make available specified
industrial property for use by the joint venture in connection with the design
and development of those products.
NOW, THEREFORE, the parties hereto hereby agree as follows:
Article 1 Definitions
Each of the following terms when used in this Agreement, shall
have the meanings indicated:
1.1 "Affiliate" shall mean any person (individual, corporation,
partnership or other entity) that directly or indirectly controls
any party to this Agreement, any person at least fifty percent of
whose voting shares are beneficially owned by any party to this
Agreement, and any person directly or indirectly controlled by such
an affiliate.
1.2 "JVC": the joint venture company to be incorporated and jointly
owned by the parties in the manner provided in Article 2.
1.3 "JVC Shares": those shares of common stock of the JVC issued in
accordance with this Agreement.
1.4 "Products": those models and configurations of Class II and Class
III electric powered forklift trucks, set forth in Exhibit 1
hereto, including parts and attachments therefor, and those
additional products hereafter developed by the JVC at the direction
of its Board of Directors.
1.5 "Subsidiary": a corporation in which one hundred percent (100%) of
the voting interest (excluding qualifying shares) is directly or
indirectly beneficially owned, individually or in the aggregate, by
a party and/or one or more Subsidiaries of that party.
1.6 "Industrial Property" of a party or the JVC: patents, designs,
trade secrets, copyrights, know-how, information and technology
owned by such party or the JVC, or licensed by such party or the
JVC with the right to sublicense.
1.7 "manufacture": The fabrication, assembly or procurement of a
completed "Product", sub-assembly or component or any part thereof.
Article 2 Formation of JVC
2.1 Caterpillar and Xxxxxxx shall cause the JVC to be organized and
registered as a corporation under the laws of the State of Delaware
as soon as reasonably possible following the date of this
Agreement.
2.2 The Certificate of Incorporation and the Bylaws of the JVC shall
be, in form and substance, as agreed by the parties.
2.3 (a) The capital of the JVC shall consist of 2000 shares of $100.
par value, voting, fully paid and non-assessable common stock. Each
party agrees to purchase 1000 shares thereof.
(b) Caterpillar agrees to loan $1,000,000.00 in cash to the JVC to
be spent on development and engineering of the "Products". The loan
shall be evidenced by a JVC interest-free note having the following
characteristics: 50% of the principal shall be payable in six
months from the last launch (take order) date of the "Products" set
forth in Exhibit 1. The balance of the loan shall be repaid
eighteen months after the aforesaid launch (take order) date.
(c) Caterpillar agrees to loan $2,000,000.00 in cash to the JVC for
its initial "S G & A" expenses, such loan to be made in
installments as funds are required. The loan shall be evidenced by
one or more JVC notes having the following characteristics:
Interest shall be computed on the last day of each month at Chase
(New York) Bank's prime commercial lending rate plus 1%; repayment
of principal and payments of interest shall be made annually as JVC
cash flows permit and before repayment of any other loans from any
party other than the loan set forth in Article 2.3(b) above.
2.4 All shares issued by the JVC shall be in registered form.
2.5 No shares of the JVC in addition to those provided for in Article
2.3 may be authorized or issued except with the prior written
Agreement of the parties.
2.6 Each stock certificate issued during the term of this Agreement
shall bear the following words: "This certificate is held subject
to the terms of a joint venture agreement between Caterpillar
Industrial Inc. and The Xxxxxxx Corporation, dated August ________,
1991, a copy of which is on file at the head offices of Material
Handling Associates, Inc., and may not be transferred except in
compliance with the terms of said agreement."
2.7 Unless the parties otherwise agree in writing, each party, together
with such of its transferees as are permitted herein, shall hold
fifty percent (50%) of the JVC Shares during the term of this
Agreement.
Article 3 Primary Purpose and Objective
3.1 The primary purpose of the JVC shall be the development and design
of "Products" to be manufactured by
Xxxxxxx as follows:
(a) "Products" of designs and quality standards, approved
by Caterpillar and Xxxxxxx, to be manufactured
exclusively by Xxxxxxx and to be sold exclusively to the
JVC for resale exclusively to dealers of Caterpillar and
its Affiliates and national account customers of the JVC
for worldwide distribution under Caterpillar trademarks.
(b) The license of JVC Industrial Property to Xxxxxxx for
differentiation, manufacture and distribution by Xxxxxxx
of products. Such Industrial Property may be the same as
JVC products, less subsystems that the JVC, Caterpillar
and Xxxxxxx determine to be reasonable differentiation.
3.2 Xxxxxxx and Caterpillar each desire to have differentiated products
bearing their respective trademarks and distributed through their
respective dealer networks. Each party will continue to design,
develop, manufacture and market other products, including lift
trucks, independently.
3.3 The "Products" sold by the JVC shall be warranted by the JVC on the
terms that are competitive with warranties offered by others in
each market. Xxxxxxx shall not warrant "Products" sold to the JVC
but shall assign to the JVC any assignable warranties it has
received from its suppliers in connection with components of the
"Products".
3.4 (a) Except for a "Product" or part thereof defective in material or
workmanship in manufacture, JVC shall defend, indemnify and hold
harmless Caterpillar and Xxxxxxx, their Affiliates (excluding JVC
dealers), and their respective employees, officers and directors,
harmless against and from all claims, demands, liabilities, loss,
damage, cost and expense of whatsoever nature, including costs,
attorney's fees and expenses, which arise from claims of third
parties (including dealers) resulting from any injury to persons or
property damage claimed to have been caused by a "Product" or part
thereof.
(b) Xxxxxxx shall defend, indemnify and hold JVC, Caterpillar and
its Affiliates, and their respective employees, officers and
directors, harmless against and from all claims, demands,
liabilities, loss, damage, cost and expense of whatsoever nature,
including costs, attorney's fees and expenses, which arise from
claims of third parties (including dealers) resulting from any
injury to persons or property damage claimed to have been caused by
a defect in the material or workmanship in manufacture of a
"Product" or part thereof.
(c) Xxxxxxx and JVC agree to coordinate their respective defenses
to eliminate unnecessary duplicate legal expense and to provide a
coordinated defense against claims. Xxxxxxx and JVC agree not to
file cross-claims or third-party claims against each other and to
resolve such differences as would have been covered by such
cross-claims or third-party claims through alternative dispute
procedures.
(d) If Xxxxxxx and JVC are unable to resolve a dispute within 60
days through negotiation, they may, if mutually agreed, retain a
facilitator or mediator to conduct further discussion. If further
negotiation is unsuccessful after 120 days or such additional time
as they mutually agree, they shall submit the dispute to
non-binding arbitration using procedures and an arbitrator provided
by Endispute, Inc., Chicago, Illinois, or such other procedures or
arbitration services as they mutually agree. Xxxxxxx and JVC
further agree to pay on an equal basis for such facilitator,
mediator or arbitrator. In the event that such alternative dispute
procedures are unsuccessful to resolve the dispute, either party
may file a cause of action for contribution or indemnity. If the
jurisdiction in which the primary lawsuit or claim was pending
requires that such claims, cross-claims or third-party claims be
filed with the primary lawsuit, then the parties agree that the
arbitration hearing aforementioned shall be binding upon the
parties rather than advisory.
Article 4 Transfer of Shares
4.1 Either party may sell or otherwise transfer ownership of some or
all of its JVC Shares at any time to one or more of its
Subsidiaries without restriction, except such party shall cause any
such Subsidiary to undertake to perform all obligations of such
party under this Agreement, and such party shall remain liable for
the performance of all provisions of this Agreement. Caterpillar
may sell or otherwise transfer ownership of some or all of its JVC
Shares at any time to a joint venture comprised of Caterpillar or
an Affiliate and another person acceptable to Xxxxxxx upon the same
terms and conditions as to Subsidiary except that the transferring
party shall not remain liable for performance of any provision of
this Agreement. Xxxxxxx shall have the same right of transfer to a
joint venture as Caterpillar, should it wish to do so hereafter.
4.2 Except as provided in Article 4.1 above, no party shall assign,
pledge, mortgage, hypothecate or otherwise encumber its JVC Shares,
wholly or in part.
4.3 The parties, as shareholders of the JVC, shall have preemptive
rights to acquire any additional JVC Shares which the JVC may issue
subsequent to its incorporation.
Article 5 Financing
5.1 If it is determined by the parties that, in accordance with sound
and prudent business practices, additional capital is required for
the JVC, such additional capital will be provided by Caterpillar
and Xxxxxxx, each of whom shall contribute in proportion to their
common stock equity in the JVC, and in like manner and on the same
terms and conditions, whether made in the form of additional
equity, loans or guarantees of loans authorized to be obtained by
the JVC, or otherwise.
5.2 Land, buildings, equipment, Industrial Property, if any, sold or
exchanged from time to time by any party to this agreement or their
Affiliates to the JVC, by way of contribution to capital or
otherwise, shall be valued as mutually agreed between Xxxxxxx and
Caterpillar prior to such sale or transfer. The parties may base
their agreed valuation on the opinion of one or more independent
experts or appraisers selected by Caterpillar and Xxxxxxx. The cost
of any such expert's or appraiser's services shall be borne by the
JVC.
Article 6 Board of Directors
6.1 Xxxxxxx and Caterpillar shall exercise their respective voting
rights in the JVC and shall take such other steps as are necessary
to ensure:
(a) that the Board of Directors of JVC shall consist of
six (6) members;
(b) that of such six (6) members, three (3) shall be
nominated by Caterpillar and three (3) shall be nominated
by Xxxxxxx, and that each party shall support the
election of members nominated by the other party, and
(c) that if either Xxxxxxx or Caterpillar wishes to
change any of its nominated members, with or without
cause, the other party shall vote accordingly; provided,
however, the party proposing the change shall indemnify
and hold the JVC and other party harmless for any and all
damages and other expenses that may arise from such
action.
6.2 In case of vacancy in the Board of Directors for any reason,
Xxxxxxx and Caterpillar agree to cause to be elected as a new
member a person nominated by the party who nominated the member
whose office is vacant.
Article 7 Accounting Matters
7.1 The parties, as shareholders, shall cause the Independent Public
Accountants of the JVC to be appointed or dismissed at a meeting of
shareholders. The initial Independent Public Accountants of the JVC
shall be Price Waterhouse, or Ernst & Young, as determined by
competitive bidding.
7.2 The accounting books and documents of the JVC shall be regularly
audited by the Independent Public Accountants of the JVC.
7.3 Annual financial statements, including a general balance sheet,
related statements of income, shareholders equity and cash flows,
audited by the Independent Public Accountants of the JVC, shall be
prepared and provided to the shareholders at the JVC's expense
within forty-five (45) days following the close of each fiscal year
of the JVC. Such annual financial statements, as audited, shall be
final and binding upon the parties as to the revenue, costs, fees,
expenses, losses and profits of JVC.
7.4 Unaudited interim financial statements (including a general balance
sheet, related statements of income, shareholders equity and cash
flows) shall be prepared and provided to the shareholders, at the
JVC's expense, on a monthly basis, within thirty (30) days
following the end of each interim fiscal month, unless otherwise
agreed by the parties.
7.5 Annual and interim financial statements shall be provided and
maintained in accordance with accounting principles generally
accepted in the United States of America, and shall contain such
statements and schedules, prepared in accordance with the
requirements of Xxxxxxx and Caterpillar, and copies of tax returns
and receipts for tax payments, as may be requested in writing by
Xxxxxxx or Caterpillar.
7.6 Either party may request an audit of the books and records of the
JVC ("shareholder's audit") by an independent auditor of its
selection, other than the Independent Public Accountants of the
JVC. Any shareholder's audit shall be at the expense of the
requesting party unless material error or fraud is found, in which
case such audit shall be at the expense of the JVC. In addition,
Caterpillar and Xxxxxxx, each through its duly authorized
representative, shall at all reasonable times have access to, and
the right to, examine the books of account and other documents and
records of the JVC.
Article 8 Operating Policies
8.1 As soon as reasonably possible following the date of this
Agreement, Xxxxxxx and Caterpillar shall, on an "as needed" basis,
agree upon, and reduce to writing, the financial policies and
practices to be adopted and followed by the JVC including, but not
limited to, those relating to dividends, loans to and from
affiliated companies, cash management systems, banking
arrangements, asset valuation, depreciation practices, accounting
and reporting practices, internal auditing policies and deferred
payment financing.
8.2 "Products" shall be subject to quality a assurance program
satisfactory to Caterpillar and Xxxxxxx, to be prepared and made
available to each of the parties.
8.3 Product safety and improvement are goals to which each of the
parties are, and the JVC must be, committed. To assist in achieving
these goals, Caterpillar and Xxxxxxx shall cause the JVC to be
informed about the performance and application of "Products", and
the JVC shall promptly correct any feature which may adversely
affect the proper or safe functioning of any "Product".
Article 9 Product Design and Manufacture
9.1 Xxxxxxx shall xxxxx a royalty-free, non-exlusive license to the JVC
to manufacture use and sell to Caterpillar's and its Affiliate's
dealers and national account customers of the JVC, "Products"
embodying or made by the use of Raymond's Industrial Property shown
in Exhibit 2. This license shall encompass all parts, components
and subsystems necessary to use and sell the "Products" and shall
include all updates, improvements, replacements and adjustments
which are developed for the purpose of maintaining the designs
owned by Xxxxxxx and used in the JVC "Products". This license shall
not apply to parts, components and subsystems which Xxxxxxx xxxxx
necessary for differentiation. The areas of differentiation for the
JVC's "Products" listed in Exhibit 1 are shown in Exhibit 2.
Xxxxxxx represents and warrants that the Xxxxxxx Industrial
Property listed in Exhibit 2, when combined with the contemplated
JVC Industrial Property, and Caterpillar Industrial Property listed
in Exhibit 3 is sufficient to produce "Products" listed in Exhibit
1.
9.2 The JVC shall grant a non-exclusive license to Xxxxxxx in
accordance with Article 3.1(b) to manufacture use and sell to
Xxxxxxx dealers products embodying or made by the use of the JVC's
Industrial Property. This license shall encompass all parts,
components and subsystems necessary to manufacture use and sell
"Products" developed by, or caused to be developed by, the JVC and
shall include all updates, improvements, replacements and
adjustments which are developed for the purpose of maintaining
future products sold at any time by the JVC and used in products
marketed by Xxxxxxx. Xxxxxxx shall pay a mutually agreed,
reasonable user fee for the license of JVC Industrial Property.
9.3 The JVC, Xxxxxxx and Caterpillar shall be jointly responsible for
updating, improving and maintaining their Industrial Property,
which is common to their respective products. The cost of
implementing changes for this purpose shall be borne by the party
or JVC, whoever initiates the change. These costs shall include,
but shall not be limited to, the cost of engineering review,
documentation change, handling, process creation, tooling creation
or modifications, inventory rework and scrap but shall exclude the
cost of changes to manuals, literature, service parts and other
aftermarket support. The JVC and Xxxxxxx shall have the right to
abandon commonality by exercising the right to refuse a requested
change.
9.4 As soon as feasibly possible following incorporation of the JVC,
Xxxxxxx and the JVC shall enter into a
contract, for the manufacture by Xxxxxxx of "Products" for the JVC.
9.5 Caterpillar shall grant a royalty-free, non-exclusive license to
the JVC to manufacture use and sell to Caterpillar's and its
Affiliates' dealers and national account customers of the JVC ,
"Products" embodying or made by the use of Caterpillar's Industrial
Property shown in Exhibit 3. This license shall encompass all
parts, components and subsystems necessary to manufacture use and
sell the "Products" shown in Exhibit 1 and shall include all
updates, improvements, replacements and adjustments which are
developed for the purpose of maintaining the designs owned by
Caterpillar and used in the JVC "Products".
9.6 The non-exclusive licenses to manufacture specified in Articles 9.1
and 9.5 shall terminate in the event ownership of the JVC Shares
are transferred in whole or in part to a person not i) a party, ii)
an Affiliate or subsidiary of a party or iii) a joint venture
company referred to in Article 4.1.
Article 10 Inventions
10.1 Inventions made during the term of this Agreement and relating to
technology described in Article 9 shall be owned as follows:
(a) Those conceived and made by Caterpillar personnel
shall be the sole property of Caterpillar, (b) Those
conceived and made by Xxxxxxx personnel shall be the sole
property of Xxxxxxx, (c) Those conceived and made by the
JVC personnel (including personnel of the parties working
for the JVC under contract) shall be the property of the
JVC who shall grant non-exclusive licenses to Xxxxxxx, in
accordance with Article 9.2, and to Caterpillar (upon
payment of a mutually agreed, reasonable user fee) and (d)
Those conceived and made jointly by personnel of two or
more of Xxxxxxx, Caterpillar and the JVC shall be jointly
owned by Xxxxxxx, Caterpillar and the JVC.
10.2 The sole owner of any such invention shall have the right to file
and prosecute patent applications therefor. The parties shall cause
the JVC to file and prosecute patent applications for inventions
the JVC owns in any country in which one of the parties desires an
application to be filed.
10.3 In the event of jointly owned inventions, the parties hereto shall
agree which one of them shall be primarily responsible for filing
and prosecuting patent applications therefor. The filer shall keep
the others informed of the status of all such patent applications
and any resulting patents. The filing, prosecution and maintenance
costs of the jointly owned patent applications and resulting
patents shall be equally shared by the parties and the JVC. If a
party, as part owner of any such jointly owned invention, decides
not to participate in such costs in any country which another part
owner desires an application be filed, said another owner shall
have the right to do so at its own expense and in its name. The
filing person shall grant perpetual, non-exclusive licenses to the
two other persons whether parties or the JVC, as the case may be.
10.4 Patents and patent applications on such inventions shall be
licensed pursuant to Article 9 and 15.6.
Article 11 Marketing Arrangements
11.1 The JVC shall enter into agreements with Caterpillar's and its
Affiliates' dealers substantially identical to Caterpillar's
corresponding "Sales and Service Agreement - Lift Truck Products".
In this connection, Caterpillar shall cause the JVC to be granted a
royalty-free license to use appropriate trade and service marks of
Caterpillar, Inc., subject to unilateral cancellation of such
license by Caterpillar, Inc. at any time, upon 180 days' written
notice, in which event the JVC shall cease marketing "Products"
under those marks.
11.2 JVC will contract with Caterpillar to administer JVC agree ments
with Caterpillar's and its Affiliates' dealers. JVC shall reimburse
Caterpillar its costs for providing such services. Such
reimbursement shall be calculated and paid annually. CII Marketing
Expense is as follows: costs incurred by the North American
Commerical Division regions of Caterpillar and its Fleet Marketing
Group. Including labor and labor-related expenses (excluding
non-recurring bonuses, profit-sharing and any incentive pay);
indirect material and expenses including travel and entertainment,
leased automobiles, communications tolls, dealer advertising co-op
expense, customer visits, regional office lease costs and
shows/exhibits. The formula to calculate is as follows:
JVC Annual "Product" Gross Sales
------------------------------------------- x CII Marketing = Marketing Expense Charge to JVC
JVC & CII Annual "Product" Xxxxx Xx;es Expense
This charge is based on the prior fiscal
years sales and expenses and is to be calculated and paid
within the 1st QTR. of each year. The sales (JVC's and
CII's) are those made to Caterpillar's and its Affiliates'
Dealers and na tional account customers. The above formula
shall be applied pro rata to any partial fiscal year.
The following is an illustration of the marketing
expense calculation:
$15.4M (JVC)
------------------------- x $6.6M (Mktg. Expense) = $0.3M
$315.4M (JVC/CII) (Attributable to Dealers who sell JVC "Products")
Article 12 Confidentiality of Information
12.1 The parties mutually acknowledge that (a) each may from time to
time disclose proprietary information to the JVC, to each other, to
employees of the JVC and to employees of each other, and (b) the
JVC may from time to time disclose proprietary information to a
shareholder and to employees of a shareholder. Notwithstanding any
such disclosure, the parties hereto agree, and shall cause the JVC
to agree, that the proprietary information of Caterpillar shall
remain Caterpillar's proprietary information, the proprietary
information of Xxxxxxx shall remain Raymond's proprietary
information, and except as otherwise provided in this Agreement,
proprietary information developed by the JVC shall remain the JVC's
proprietary information. Neither the JVC nor any party to whom it
may be disclosed shall directly or indirectly disclose such
information to third parties or use proprietary information of
another in any manner, except as may be required for the
performance by the JVC of its corporate purposes or for the
fulfillment by a party of its obligations under this Agreement.
Prior to the disclosure of any such proprietary information to a
subcontractor, supplier or any other person or entity, the JVC or
the party shall first enter into a confidentiality agreement with
such person or entity, which confidentiality agreement must be
acceptable in form and substance to the party whose proprietary
information is being disclosed.
12.2 Proprietary information shall include all trade secrets, know-how
and information, whether or not patentable or copyrightable,
developed or acquired by a party, or the JVC, including without
limitation technical expertise and related experience and skills,
drawings, blueprints, specifications, catalogs, manuals, designs,
instructions, lists, descriptions of processes and other
engineering, technical, cost, economic and financial data,
engineering, design, manufacturing, procurement, marketing and
distribution information, testing and quality control information
and procedures, operating techniques, processes, and computer and
information programs. Information disclosed by either party, or the
JVC, shall not be deemed proprietary information to the extent such
information, either singularly or in a specific combination thereof
as the case may be, (1) is already in the receiving party's or the
JVC's possession, otherwise than under the terms of another
confidentiality agreement between or among the parties and the JVC
(b) is or becomes available to the general public through no act or
fault of the receiving party, or the JVC, or (c) is rightfully
disclosed to the receiving party or the JVC, by a third party.
Article 13 Governmental Applications
13.1 Promptly after the execution of this Agreement, Caterpillar and
Xxxxxxx shall make such filings with the appropriate governmental
authorities for such validations, authorizations, licenses and
approvals of the relationship contemplated by this Agreement
("Authorizations") as may be necessary or desirable under any
applicable laws or regulations, and shall exert their utmost
efforts to obtain the Authorization as soon as possible.
13.2 Except for the obligation of each party to cooperate in the
diligent prosecution of any applications filed pursuant to Article
13.1, this Agreement shall remain wholly executory and conditional
until the Authorizations have become effective or have been
obtained in form and substance satisfactory to the parties hereto.
Article 14 Term
This Agreement shall remain in force as long as the JVC continues
to exist, unless earlier terminated as provided in Article 15.
Article 15 Termination
15.1 Anything in this Agreement to the contrary notwithstanding, this
Agreement shall terminate:
(a) If either party shall become or be adjudicated
bankrupt or insolvent or commit any act of bankruptcy or
insolvency (including the failure to pay debts as they
mature) or file a petition for or in bankruptcy,
insolvency, reorganization or a similar proceeding or
file an answer admitting the material facts alleged in
such a petition filed by another, or make an assignment
or attempted assignment for the benefit of creditors, or
otherwise avail itself of the benefit of any bankruptcy,
insolvency, reorganization or similar laws, or shall have
a receiver, liquidator or trustee appointed for it or any
of its assets, or shall have all or a substantial portion
of its assets taken by provisionary seizure or similar
proceedings, whether voluntary or involuntary, instituted
for its liquidation or dissolution.
(b) If either party for any reason shall at any time
default in any material respect in the performance of any
of its obligations under or otherwise commit any breach
of this Agreement, where such default or breach shall
have been notified in writing to the party claimed to be
in default and such default has not been remedied within
sixty (60) days after such written notice.
15.2 Any party may terminate this Agreement in its entirety if: (a)
performance of this Agreement shall become in any material respect
impossible or impracticable by virtue of any order, action,
regulation, interference or intervention of the federal or any
state government, or agency thereof, having the requisite
jurisdiction over the parties or the JVC. (b) the JVC operates at a
loss for three (3) consecutive years after launch of all "Products"
set forth in Exhibit 1.
15.3 Xxxxxxx may terminate if the JVC is required to cease marketing the
"Products" under Caterpillar, Inc. trademarks pursuant to Article
11.1.
15.4 In the event of any termination of this Agreement due to:
(a) any provision of Article 15.1, the bankrupt or
default ing party shall, at the option of the terminating
party,
(i) sell all its JVC shares to the terminating
party, or a third party designated by the
terminating party;
(ii) purchase all of the terminating party's shares,
or (iii) take all actions necessary to dissolve and
liquidate the JVC.
(b) any other reason, the parties shall take all actions
necessary to dissolve and liquidate the JVC.
15.5 In the event of a transfer of JVC Shares pursuant to Article 15.4,
the purchase price shall be the book value of the JVC Shares at
that time. The book value of the shares to be transferred shall be
determined by the JVC's Independent Public Accountants.
15.6 In the event of any termination of this Agreement, except for
patented Xxxxxxx or Caterpillar technology, Xxxxxxx and Caterpillar
hereby agrees to grant to the other and agrees to cause the JVC to
grant to both parties such license or licenses as may be necessary
to enable Caterpillar and Xxxxxxx after any termination of this
Agreement, to make, have made, use and sell throughout the world
"Products" for sale under their respective trademarks. Such license
or licenses shall be made available to Caterpillar and Xxxxxxx
without charge. Xxxxxxx and Caterpillar patented technology used in
the "Products" shall be made available at the option of the party
desiring the license, which shall provide for mutually acceptable,
reasonable consideration.
15.7 Termination of this Agreement shall not relieve the parties from
their covenants under Article 12 or from any other obligation of a
continuing nature.
Article 16 Notices
Any notice to be given or made hereunder shall be in writing, shall
be effective when received and shall be sent by certified or
registered airmail, return receipt requested, postage prepaid to
the following address or such other address specified by either
party by similar notice:
(a) If to Caterpillar, to the attention of the
Secretary at:
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxx 00000
(b) If to Xxxxxxx, to the attention of the
Secretary at:
Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000-0000
Article 17 Formation Costs and Expenses
17.1 Each party shall bear its own attorney fees and other expenses
incurred in connection with the Agreement and, except as provided
in Article 17.2 hereof, shall hold the other party and the JVC
harmless from any such expenses.
17.2 The parties shall cause the JVC to reimburse each of them for all
reasonable and necessary out of pocket costs and expenses, as
recorded by each of them, incurred on and after August 1, 1991,
associated with the design or development of "Products", production
facilities, processes, procedures and systems for the JVC and
incorporation of the JVC. Reimbursable expenses shall include,
without limitation, payment of incorporation fees, legal expenses,
consultants' fees, costs related to securing the Authorizations and
other government approvals and privileges, the cost of otherwise
uncompensated services rendered to or on behalf of JVC, and other
incidental expenses.
Article 18 Miscellaneous
18.1 Any disagreement with respect to this Agreement or the operation of
the JVC which is not resolved by the Board of Directors of the JVC
shall be presented to the chief operating or executive officers of
Xxxxxxx and Caterpillar sitting in arbitration of the matter. If
the disagreement is not resolved within ninety (90) days from the
date of presentation or such additional period as may be mutually
agreed, then a failure to resolve the disagreement shall be deemed
to have occurred. No legal proceeding involving such disa greement
shall be instituted by a party prior to such a failure of the
arbitrators to resolve any disagreement.
18.2 Except as otherwise provided herein, neither this Agreement, nor
any right or obligation hereunder, shall be assigned, by operation
of law or otherwise, by or on behalf of a party without the prior
written consent of the other party.
18.3 No amendment of the Agreement shall be effective or binding on any
party unless it is reduced to writing, specifies that it is an
amendment hereof and is executed by duly authorized representatives
of the parties.
18.4 There shall be no waiver of any right under this Agreement unless
such waiver is in writing signed by a duly authorized
representative of the party charged therewith. The waiver by any
party hereto of any right granted hereunder, or arising from any
breach of this Agreement by any other party hereto, shall not
constitute, or be deemed to constitute, a waiver of any other
similar or dissimilar right.
18.5 This Agreement shall not cause any party hereto, or the JVC, to be
the legal representative or agent of the other party, or of the
JVC, nor shall any party, or the JVC, have the right or authority
to assume, create or incur any liability or obligation of any kind,
express or implied, against, in the name of, or on behalf of, the
other party, or the JVC.
18.6 In no event shall the JVC engage in any activity if, under the laws
or regulations of the United States of America, such activity would
result in the imposition of any penalty upon, or the loss of any
privilege by, the JVC, Xxxxxxx, Caterpillar or any of their
Affiliates.
18.7 The headings to articles of this Agreement are intended merely to
facilitate reference, do not form a part of this Agreement, and
shall not affect the interpretation hereof.
18.8 This Agreement constitutes the entire understanding between the
parties with respect to the subject matter set forth herein and
supersedes and cancels all previous agreements, negotiations,
commitments and representations, if any, between the parties
concerning the subject matter of this Agreement.
18.9 The parties hereto agree to cause the JVC to be bound by the terms
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed, in duplicate originals, by their respective authorized representatives
as of the day and year first above written.
CATERPILLAR INDUSTRIAL, INC. THE XXXXXXX CORPORATION
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxx Xxxxxxxxx
--------------------------- -------------------------------
President President
CATERPIL.AGR.080191
EXHIBIT 1
INITIAL JVC PRODUCTS
Initial "Products" of the JVC will be as follows:
REACH TRUCK:
Model A (similar to Xxxxxxx model 021):
- Max. elevated Height 282 in.
- Capacity (single deep) 3000 and 4000 lb.
- Voltage 36V.
- Reach carriage Single Deep, Deep-Reach
- Operator orientation Side-stance
Model B (similar to Xxxxxxx model 031):
- Max. Elevated Height 330 in. (approx.)
- Capacity (single deep) 3000, 4000 and 4500 lb.
- Voltage 36V.
- Reach carriage Single deep, Deep-Reach
- Operator orientation Side-stance
ORDERPICKER:
Model A (similar to Xxxxxxx model 152):
- Max. Elevated Height 315 in. (approx.)
- Capacity 3000 lb.
- Voltage 24V.
- Masts Two and Three Stage
Model B (similar to Xxxxxxx model 162):
- Max. Elevated Height 315 in. (approx.)
- Capacity 3000 lb.
- Voltage 36V.
- Masts Two and Three Stage
WALKIE:
Model A (similar to Xxxxxxx model 111):
- Capacity 6000 lb.
- Type Pedestrian
Model B (similar to Xxxxxxx model 112):
- Capacity 6000 lb.
- Type Stand-on End Control Rider
Model C (similar to Xxxxxxx model 113):
- Capacity 6000 lb.
- Type Stand-on Center Control Rider
Model D (similar to Xxxxxxx model 114):
- Capacity Tow Tractor
- Type Stand-on Center Control Rider
Model F (similar to Xxxxxxx model 19):
- Capacity 6000 lb.
- Type Stand-on End Control Rider
EXHIBIT 2
XXXXXXX INDUSTRIAL PROPERTY
REACH TRUCK
Available industrial property shall include all internal hydraulic components
and bracketry and all standard options relating to Xxxxxxx model 021 and 031
Reach Trucks (except as identified below). Items specifically included are:
1. "Brand X" Reach Truck frame, lift system, control handle, and control
handle mechanism.
2. Four point suspension system with spring loaded caster design.
3. All model 031 and 021 front ends, including all masts and attachments (but
excluding certain overhead guard styling features) which are available as
standard options on the Xxxxxxx products which are in production at the
time of first shipment of JVC "Products".
4. All patents relating to the design of the mast and load handler, for which
an application has been made or granted, as of the date of first shipment
of the Initial JVC "Product(s)" on which the patent is used.
5. The transmission from the new Xxxxxxx model 031.
6. Steering geometry (patent nos. 4,754,837 and 4,813,512) and foreign
derivatives and implementing designs from the model 031.
7. Tracqualizer XX xxxxxx.
8. Hydraulic pumps and motors (36 volt) from the Xxxxxxx Reach Truck models
21 and 31 (except 31 traction motor) which are in production at the time
of first shipment of JVC Reach Truck "Products".
Items specifically excluded, not available to the JVC, are:
1. Certain overhead guard styling features.
2. Control handles other than the brand "X" handle.
3. All external, non-structural covers.
4. Transmissions from the model 20 and 21.
5. All miscellaneous items excluded on page 3.
ORDERPICKER
Except as identified below the available industrial property shall include the
tractor frame with internal bracketry, hydraulic components, standard masts, and
standard platform from the Xxxxxxx model 152 and 162 orderpickers. Also included
are all standard options available on standard Xxxxxxx orderpickers at the time
of first shipment of JVC orderpickers. This will include the following which are
in production at the time of first shipment of the JVC Orderpicker "Products":
1. 24 and 36 volt lift, traction, and auxiliary motors, hydraulic pumps,
related valving and plumbing from Xxxxxxx models 152 and 162.
2. Standard transmission (Hurth 300)
3. Wire guidance (5.2 and 6.25 KHz) and line drivers
4. Electronic steer and power steering
5. All standard three stage and two stage masts (up to 315" EH)
The following is a listing of industrial property not available to the JVC:
1. All external, non-structural covers.
2. The styling and appearance of the lift/lower/traction control handle.
3. The overhead guard design and light package.
4. Side gates
5. intellispeed TM
6. All miscellaneous items excluded on page 3.
WALKIE
The Xxxxxxx Transitor models 111, 112, 113, 114, and the model 19 Elf as offered
at the time of first shipment of the equivalent JVC product. Excluded items are
those set forth as miscellaneous items on page 3.
PATENTS
Other patents, their foreign derivatives, and the knowhow to apply the teachings
therefrom:
4,813,512 Idler Wheel Assemblies
4,762,203 Lift Truck Lowering System
4,754,837 Lift Truck Steering Apparatus
4,721,187 Lift Truck Mast Structure
4,534,433 Material Handling Vehicle
4,307,329 Wire Guidance Method and Apparatus
3,778,080 Lift Truck Load Wheel Arrangement
3,738,665 Hydraulic Seals
3,424,475 Lift Truck Suspension System
3,392,797 Steering and Suspension Systems for Motorized Lift
3,389,325 System to Disconnect A Motor Responsive to Low
Batt Voltage
3,370,337 Ball Bearing Manufacturing Method
3,370,333 Ball Bearing Manufacturing Method
3,332,728 Hardened Racewire Ball Bearing
3,280,933 Disc Brake Arrangements For Industrial Truck
3,275,926 Direct Current Control Systems
3,259,365 Rack and Pinion Load Manipulator
MISCELLANEOUS
Included items are:
1. Battery Pullers
2. Battery Stand
3. Optional (large waist size) safety belts
4. All stability and performance information relevant to the appli- ation of
JVC "Products".
5. General hardware common to other Xxxxxxx products such as bearings,
bushings, fasteners, gears, hoses, fittings, connectors, and wire.
Excluded items are:
1. Xxxxxxx manuals, publications, and product literature
2. Tires: red Ray-DLTM
3. Xxxxxxx orange paint
4. Xxxxxxx trademarks and logos
5. intellidrive TM traction controller
6. intellidrive2 TM controls and associated designs, patents, know how, and
components.
7. Designs relating to Xxxxxxx products other than those specifically
indentified above.
CATERPILLAR INDUSTRIAL PROPERTY - EXHIBIT 3
Patents, designs, computer programs and data, drawings and specifications, trade
secrets, know-how, analytical and test methods and information and technology as
applied to:
Microcommand integrated traction/steering/implement control systems including
controllers, software, motors, sensors, instrumentation and DC-DC converters.
Integral Hydraulic Power Steering Systems.
Industrial design (styling and ergonomics)
