EX 10.76.1
AGREEMENT
THIS AGREEMENT is made and entered into, on this
day of 1996, by and between EMERITUS CORPORATION, a
Washington corporation with its principal place of
business at 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX
00000 ("Emeritus") and SANYO ELECTRIC CO., LTD., a
Japanese corporation with its principal place of
business at 0-0 Xxxxxx-xxxxxxx 0-xxxxx, Xxxxxxxxx-xxx
Xxxxx-xx, 000, Xxxxx ("Sanyo").
RECITALS
A. Emeritus is in the business of developing,
owning and operating assisted living facilities,
independent living facilities and nursing home (the
"Senior Housing Business") throughout the United
States.
B. Sanyo and Emeritus are interested in jointly
entering the development, construction and/or operation
of the Senior Housing Business in Japan.
C. In order to enable Sanyo and Emeritus to
undertake a study for the Senior Housing Business in
Japan, and in order to facilitate the development of
such Senior Housing Business if both parties once reach
at an agreement to start the Senior Housing Business in
Japan, Emeritus has agreed to train a designee of Sanyo
(the "Sanyo Employee") and to permit him/her to gain
know-how and expertise concerning the Senior Housing
Business.
D. Emeritus and Sanyo are interested in
documenting the terms and conditions of said training
relationship and the rights which the Sanyo Employee
and Sanyo will have to use the know-how and expertise
gained by the Sanyo Employee.
NOW, THEREFORE, in consideration of the foregoing
premises and the mutual covenants of the parties set
forth herein, IT IS HEREBY AGREED AS FOLLOWS:
AGREEMENT
1. TRAINING OF SANYO EMPLOYEE. Emeritus does
hereby agree to train the Sanyo Employee, in accordance
with the "Training Program" which is attached hereto as
Exhibit A, at no expense to Sanyo except as expressly
provided herein. Such training shall commence on June
3,1996. Sanyo and Emeritus agree that it will be
mutually beneficial to train the Sanyo Employee in all
facets of American Senior Housing Business in America
for preparation for the joint Senior Housing Venture.
Emeritus will use its best efforts within the
capabilities of Emeritus to train the Sanyo Employee to
gain sufficient know how to operate the Joint Senior
Housing Business in Japan. Sanyo Employee, during
his/her training, shall be subject to the rules and
regulations of Emeritus applicable to Sanyo Employee,
provided, however, that Sanyo Employee shall in no
event be considered to be an employee of Emeritus.
Except as expressly provided herein, Sanyo Employee
shall have no obligations to Emeritus. It is understood
and agreed on by both parties that Sanyo Employee shall
not be required to take any office or job position in
Emeritus' organization nor to assume any responsibility
or liability for his/her performance during the
training. All of the salary and benefits of the Sanyo
Employee shall be paid by Sanyo. In addition,
Emeritus shall require the Sanyo Employee to be covered
by an appropriate liability insurance policy covering
Sanyo Employee with respect to any acts or omissions of
the Sanyo Employee taken in the course of the training,
provided, however, that Emeritus shall assist Sanyo in
determining and procuring adequate insurance coverage,
if so requested by Sanyo. All of the travel and living
expenses of the Sanyo Employee while residing in the
United States shall be paid by Sanyo. Emeritus further
retains the right to request that Sanyo replace the
Sanyo Employee if the parties hereto mutually agree
that Sanyo Employee is not capable or otherwise
suitable for the training. It is understood that upon
the expiration or earlier termination of this
Agreement, the Sanyo Employee shall terminate his/her
training with Emeritus and shall return to Japan and be
involved in the development and/or operation of the
Senior Housing Business.
2. ACCESS TO KNOW-HOW. During the course of
his/her training, Emeritus shall allow the Sanyo
Employee to have access to such know-how concerning the
Senior Housing Business as may be reasonably necessary
for the Sanyo Employee's training. In conjunction
therewith, the Sanyo Employee shall have the right to
share any such know how with Sanyo, subject to the
limitations set forth in Section 3 with respect to
Sanyo's right and the right of the Sanyo Employee to
use such know-how, provided, however, it is understood
and agreed that Sanyo shall have the right to use such
know-how for feasibility study for the Senior Housing
Business and/or in furtherance of the development,
construction and operation of the Senior Housing
Business between the parties. Sanyo acknowledges and
agrees that the Sanyo Employee shall not have the right
to disclose such know-how to any person or entity other
than Sanyo and other employees, officers, agents and
directors of Emeritus, without prior written consent of
Emeritus.
3. LIMITATION ON USE OF KNOW-HOW. Neither Sanyo
nor the Sanyo Employee
shall have the right to use any know-how of Emeritus
gained by the Sanyo Employee during the course of
his/her training with Emeritus for any purposes other
than conducting a feasibility study for the Senior
Housing Business and/or in furtherance of the .
development, construction and operation of the Senior
Housing Business for the parties business relationship.
Any breach of this Section 3, which will materially
harm Emeritus' right in such know-how, shall be grounds
for immediate termination of this Agreement and shall
entitle Emeritus to xxx for injunctive relief, it being
understood and agreed that is may suffer irreparable
damages from the use of such know-how of Emeritus in
violation of the terms hereof.
For the purpose of Section 2 and this 3, Emeritus' know-
how does not include
1) Information which is or becomes known public
through no fault of Sanyo; or
2) Information already known to Sanyo before the
disclosure; or
3) Information which is independently developed by
Sanyo without making use of the
confidential Information of Emeritus;
or
4) Information learned by Sanyo from a third party
entitled to disclose it; or
5) Information which has been approved for release
or use by written authorization of
Emeritus, or
6) Information which is disclosed pursuant to the
requirement of any governmental agency, court order or
any law or regulations requiring disclosure thereof,
provided that Emeritus shall be provided with prior
written notice of any such disclosure.
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4. DISPUTE RESOLUTION. The parties shall use their
best efforts to avoid any disputes by communicating
freely and openly about issues and by adhering to the
general principle that in a11 matters, each shall seek
what is fair and equitable for both parties. In the
event that any dispute shall occur, the parties agree
to resolve the dispute according to the following
steps:
(a) A person designated by Sanyo and a person
designated by Emeritus shall meet in an attempt to
resolve the problem. In preparation for such meetings,
each party will present to the other party at least
five days prior to the meeting a position statement
setting forth such party's analysis and proposed
resolution of the problem. The parties will use their
best efforts to resolve their differences.
(b) If the parties are unable to resolve their
differences, they may mutually agree to use non-binding
mediation in Honolulu to resolve the issues.
(c) If the parties are unable to agree on
mediation, the issue(s) will be submitted to
arbitration in accordance with the Rules of
Conciliation and Arbitration of the International
Chamber of Commerce (the "Rules") by one or more
arbitrators appointed in accordance with the rules.
(d) The arbitration shall be held in and
proceedings shall be conducted and reported in the
English language.
(e) If more than one arbitrator participates in
the proceeding, the arbitrators shall decide any matter
before them by majority vote in accordance with this
Agreement.
(f) The arbitrators shall proceed promptly and
diligently and render their decision as soon as
practicable. The decision of the arbitrators shall be
in writing in English and presented in separate finding
of fact and law. The award of the arbitrators shall be
final and binding on the parties from which no appeal
may be taken, and an order confirming the award or
judgment upon the award may be entered in any court
having jurisdiction. The award of the arbitrators may
include pre-award interest and equitable relief to the
extent the arbitrators deem appropriate. The award
shall include interest from the date of the award until
paid in full, at a rate to be fixed by the arbitrators.
(g) Each party shall pay their own costs and
expenses incurred by and in
connection with the arbitration, except the costs and
expenses of the arbitrator(s) shall be borne equally by
each party.
(h) Notwithstanding the initiation of an
arbitration proceeding, each party shall
continue to perform all duties and obligations under
this Agreement, without prejudice.
5. SCOPE OF THE AGREEMENT. This Agreement in no
way affects Sanyo ' s ability to
utilize its own or lawfully acquired or licensed third
party's information and/or know-how independent of the
joint business cooperation for Senior Housing Business
in Japan which is under negotiation by and between the
parties hereto.
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6. INDEMNITY. Each of Emeritus and Sanyo agrees
to indemnify, defend and hold harmless the other from
and against any and all costs, liabilities, damages and
expenses, including, but not limited to, reasonable
attorneys fees and costs which it may incur in the
event of the breach of its obligations hereunder.
7. NOTICE. Any notice, request or other
communication hereunder shall be sent
in English by registered airmail, telex, telegram or
facsimile (if followed immediately by a confirmation
copy sent by air mail) and shall be addressed to the
parties at the addresses set forth above c/o Xx. Xxxxx
Xxxxx and Xx. Xxxxxxxx in the case of notices to
Emeritus and c/o Xx. Xxxxxx and Xx. Xxxxxxxxx in the
case of notices to Sanyo. Each such notice, request or
other communication shall be deemed to be received and
effective when actually received or when delivery is
refused by the other party hereto.
8. ENTIRETY. This Agreement reflects the entire
understanding of the parties hereto with respect to the
subject matter hereof and supersedes all prior
negotiations, discussions or agreements; provided,
however, that this Agreement shall not be deemed to
supersede that Letter of Intent dated February 16,1996
which shall continue in full force and effect after the
date hereof. This Agreement may not be amended or
modified except by written instrument signed by the
parties hereto.
9. GOVERNING LAW. This Agreement shall be governed
by and construed in
accordance with the laws of the State of Washington.
10. SEVERABILITY. In the event any provision of
this Agreement is deemed to
be invalid or unenforceable, said determination shall
not affect the enforceability or validity
of the remaining terms hereof.
11. COUNTERPARTS. This Agreement may be executed
in counterparts, each of
which shall be deemed to be an original, but all of
which taken together shall constitute
but one and the same instrument.
12. TERM. This Agreement shall commence on June
3,1996 and shall continue
subject to the parties' diligently progressing towards
consummation of their joint venture agreement, until
terminated by (i) mutual agreement of the parties, (ii)
either party with or without cause on no less than
sixty (60) days written notice to the other party or
(iii) termination of Training Program. In the event of
the termination of this Agreement, the obligations of
Sanyo and the Sanyo Employee under Section 3 and the
obligations of Sanyo and Emeritus under Section 6 shall
survive such termination.
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IN WITNESS WHEREOF, the parties hereby execute
this Agreement as of the day and year first set forth
above.
EMERITUS CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Its: Vice President
By: /s/ X. Xxxxxx
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Its: Managing Director
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