Exhibit 10.19
EXECUTABLE COPY
EMPLOYEE TRANSFER AGREEMENT*
This Employee Transfer Agreement (the "Agreement") is made this 14th
day of July, 2000 (the "Effective Date") by and between Ford Motor Company, a
Delaware Corporation having its principal place of business at Xxx Xxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx, 00000 ("Ford") and Vastera Solutions Services
Corporation, a Delaware corporation with offices at 00000 Xxxxxxxx Xxxxx, Xxxxx
000, Xxxxxx, Xxxxxxxx 00000 ("Vastera"). Ford and Vastera referred to herein
individually as a "Party" and collectively as the "Parties".
RECITALS
A. Vastera is engaged in the business of providing solutions for
global trade management to clients ("Business");
B. Vastera plans to offer, or cause its Affiliates to offer, about
120 of the 135 employees who are engaged in providing customs services to Ford
or its Affiliates ("Ford Customs Employees") employment with Vastera or its
Affiliates over phased periods in order to assist Vastera in conducting the
Business. For ease of reference hereafter, the use of the term "Ford" shall be
deemed to include its Affiliates and the use of the term "Vastera" shall be
deemed to include its Affiliates, as the context may require. For purposes of
this Agreement, Affiliate means any individual, partnership, corporation,
limited liability company, trust, or other entity directly or indirectly,
through one or more intermediaries, controlling, controlled by or, under common
control with a Party.
X. Xxxx Customs Employees who decline Vastera's offer of employment
will remain Ford Customs Employees. Such employees will be seconded to Vastera
for a limited term and then be transitioned back to Ford pursuant to the terms
of the Salaried Employee Secondment Agreement executed contemporaneously
herewith as to U.S. based Ford Customs Employees ("U.S. Ford Customs
Employees"), and similar secondment agreements to be executed in the future with
respect to non-U.S. based Ford Customs Employees.
D. This Agreement sets forth the terms and conditions for the
employment of the Ford Customs Employees by Vastera.
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* Portions of this document have been omitted, with the precise position of
these omissions marked with an asterisk, pursuant to a request for confidential
treatment and such omitted portions have been filed separately with the U.S.
Securities and Exchange Commission.
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NOW, THEREFORE, in consideration of the premises and mutual promises
herein made, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. EMPLOYEE CENSUS.
Attached hereto as Schedule A is an employee census ("Employee Census").
The Employee Census sets forth:
(i) a list of selected persons actively employed by Ford who are
engaged in providing customs services by selected regions as of
the date of this Agreement ("Ford Customs Employees");
(ii) the Ford Service Date of each Ford Customs Employee;
(iii) the monthly base salary of each Ford Customs Employee.
2. EMPLOYMENT OFFER.
Vastera shall make offers of employment to Ford Customs Employees
according to the Transition Plan set forth in Schedule B attached hereto. The
offer will be contingent on the Ford Customs Employee meeting Vastera's
customary pre-employment screening procedures for health and drug testing and
accuracy of background information supplied by the Ford Customs Employee. For
non-U.S. Ford Customs Employees, the offer shall also be contingent on receiving
appropriate regulatory approvals, and where necessary, approvals of any
bargaining representatives of such employees. U.S. Ford Customs Employees who
accept Vastera's offer of employment by August 1, 2000, and non-U.S. Ford
Customs Employees who accept Vastera's offer of employment within thirty days of
the date of the offer and who transfer to Vastera, shall be known hereunder as
"Transferred Employees." The effective date of the Vastera employment shall be
the "Employment Date". Ford shall revise the Employee Census within thirty days
after the expiration of the applicable offer period to reflect those Ford
Customs Employees who accepted the Vastera offer of employment. A Ford Customs
Employee who declines the offer of employment by Vastera will be seconded to
Vastera pursuant to the terms of the applicable secondment agreements, and shall
be known hereunder as "Seconded Employees". No Transferred Employee shall be
required to serve any probationary period at Vastera. Transferred Employees
shall be required to execute a Vastera Employee Confidentiality and Intellectual
Property Agreement substantially in the form of Attachment C hereto. Transferred
Employees will be employed by Vastera "at will" as are all Vastera employees and
nothing in this Agreement shall be construed as an obligation by Vastera to
employ the Transferred Employees for a definite term. A Ford Customs Employee
who terminates service with Ford by quit, retirement or otherwise prior to the
Employment Date and who is subsequently employed by Vastera shall not be covered
by any of the provisions of this Agreement.
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3. VASTERA PAY AND BENEFITS.
3.1 PAY. Vastera shall employ each Transferred Employee at a monthly base
salary * includes the Transferred Employee's written consent; Transferred
Employee's reduction in hours worked; Transferred Employee's performance
problems if the Transferred Employee has been informed of the problems and given
a reasonable opportunity to correct such performance problems; Transferred
Employee's voluntary change in job assignment; Transferred Employee's
involuntary demotion if he/she has been informed of the reasons supporting the
demotion and given a reasonable opportunity to correct or alter the reasons
supporting the demotion; a uniform pro rata pay reduction that affects at least
eighty percent (80%) of the entire Vastera workforce. Such pay protection will
remain in place for two years from the Employment Date and has no effect on the
Transferred Employee's at will status that remains unimpaired. In the event a
Transferred Employee's base salary is reduced for Cause, Ford may solicit such
employee for reemployment with Ford, notwithstanding any non-solicitation
agreement. . Transferred Employees shall be considered for annual performance
based merit increases and incentive compensation awards to the same extent as
Vastera employees.
3.2 BENEFITS. Vastera shall provide employee benefits and other programs to
Transferred Employees that are fully competitive with those benefits and
programs that are in effect at Ford for such employees immediately prior to the
Employment Date and which are the same as offered to Vastera employees at
comparable levels.
4. RECOGNITION OF FORD SERVICE.
* . Vastera shall permit the Transferred Employees to participate in
Vastera's welfare benefit programs (including but not limited to, health, life
and disability insurance programs) as provided hereunder effective as of the
Employment Date to the extent otherwise eligible under applicable agreements.
Vastera and Ford shall comply with the Health Insurance Portability Protection
Act and Ford shall provide any required COBRA notices to Transferred Employees.
5. VACATION.
For the balance of calendar year 2000, Vastera shall provide the
Transferred Employees with the same number of days of vacation remaining as of
the Employment Date as they had earned at Ford, so that for calendar year 2000,
the total vacation entitlement shall be the same as if the Transferred Employee
had remained at Ford. For calendar year 2001 and thereafter, * vacation
entitlement for Transferred Employees, according to the following schedule:
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* This portion of the document has been omitted pursuant to a request for
confidential treatment and such portion has been filed separately with the U.S.
Securities and Exchange Commission.
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COMBINED YEARS OF SERVICE EARNED VACATION
* *
6. FORD RETIREMENT PLANS.
6.1 DEFINED BENEFIT PLAN. Transferred Employees who were U.S. Ford Customs
Employees ("U.S. Transferred Employees") shall * under the following terms,
except as provided in Subsection (d) below:
(a) VESTING. U.S. Transferred Employees who are not *.
(b) GROUP I EMPLOYEES. U.S. Transferred Employees who have attained
retirement eligibility under the terms of *.
(c) GROUP II EMPLOYEES. U.S. Transferred Employees who are at least
age * as of the Employment Date and who have at least * of
credited service under *.
(d) GROUP III EMPLOYEES. U.S. Transferred Employees who are neither
Group I Employees or Group II Employees ("Group III Employees")
will *.
(e) RETIRED EMPLOYEE. A U.S. Ford Customs Employee who is otherwise
eligible may retire *.
(f) AMENDMENTS. Ford and Vastera shall amend their respective plans,
if necessary, to reflect the transition measures described above
to the extent permitted by law and provided such amendments do not
jeopardize the tax qualified status of such plans.
6.2 DEFINED CONTRIBUTION PLAN. Any U.S. Transferred Employee who is
participating in *. Ford and Vastera shall amend their respective plans to
reflect the transition measures described above.
7. ANNUAL INCENTIVE COMPENSATION PLAN.
Transferred Employees who are otherwise eligible to participate in the
Ford Annual Incentive Compensation Plan will receive an award for calendar year
2000
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* This portion of the document has been omitted pursuant to a request for
confidential treatment and such portion has been filed separately with the U.S.
Securities and Exchange Commission.
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prorated for the full number of months employed by Ford in 2000. Awards for
calendar year 2000 shall be payable to the Transferred Employees in March, 2001.
8. U.S. PERFORMANCE BONUS PLAN.
U.S. Transferred Employees who are otherwise eligible to participate in
the U.S. Ford Performance Bonus Plan will receive an award for calendar year
2000 prorated for the full number of months employed by Ford in 2000. Awards for
calendar year 2000 shall be payable to the U.S. Transferred Employees in March,
2001.
9. STOCK OPTION PROGRAM.
Subject to approval of the Ford Compensation and Option Committee,
Transferred Employees who are eligible to participate in the Ford 1998 Long-Term
Incentive Plan or the Ford 1990 Long-Term Incentive Plan and who have
outstanding options under such plans shall be treated as if they were released
to join a successor employer, and accordingly, any outstanding option shall
continue to be exercisable for five years following the Employment Date unless
the option expires earlier.
10. FORD DEFERRED COMPENSATION PLAN.
Effective as of the Employment Date, the participation of Transferred
Employees in the Ford Deferred Compensation Plan ("FDCP") shall cease.
Transferred Employees shall continue to be able to manage their account balances
until the balances are distributed. Ford shall cause the FDCP to distribute any
remaining account balances valued as of March 15, 2001 to Transferred Employees
as soon as practical after the valuation date in a lump sum.
11. VEHICLE PROGRAMS.
11.1 U.S. LEASE AND EVALUATION PROGRAMS. Except as specifically provided
herein, participation of the U.S. Transferred Employees in Ford's U.S. Lease
Vehicle Program shall be terminated as of the Employment Date. U.S. Transferred
Employees who participate in such programs shall be given a reasonable period of
time after the Employment Date not to exceed sixty (60) days to purchase the
vehicles leased to them or to return them to Ford, or Ford's agents as provided
below ("Vehicle Transition Period"). During the Vehicle Transition Period, Ford
shall offer for sale to each lessee and assignee of such vehicles as are
presently leased to such lessee or assignee under the terms of Ford's Used
Vehicle Purchase ("B") Plans, or continue a lease under the terms of Ford
Credit's Red Carpet Lease Plan, subject to credit evaluation and dealer
acceptance. In the event a lessee or assignee of a lease vehicle declines to
purchase or continue to lease such vehicle within the Vehicle Transition Period,
the lessee shall return such vehicle to its original servicing garage. Vastera
shall collect the applicable lease fee from the U.S. Transferred Employee for
such lease vehicles during the Vehicle Transition Period. Vastera shall
reimburse Ford in cash on a monthly basis,
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within ten days of the last day of the month, an amount equal to the aggregate
amount of the monthly lease fees for lease vehicles owed by U.S. Transferred
Employees.
11.2 VEHICLE PURCHASE PLANS. All Vastera employees (including Transferred
Employees) shall be eligible to participate in Ford's Tier 1 Supplier ("X")
Vehicle Purchase and Lease Plan.
12. TRANSITION PAYMENT.
U.S. Transferred Employees who are at least * and have at least * of
credited service under the GRP, both as of the Employment Date, or who have at
least * of credited service under the GRP as of the Employment Date, shall be
eligible to receive * payable on * provided that such U.S. Transferred Employee
(i) continues to be employed by Vastera as of July 31, 2004 unless
such Transferred Employee was involuntarily separated by Vastera
other than a discharge; and
(ii) has not commenced a retirement benefit under the GRP.
Vastera and Ford shall work cooperatively and use reasonable efforts to
determine whether the * to eligible U.S. Transferred Employees, consistent with
applicable law. In the event a method is agreed by the Parties, Vastera shall
take the steps required to implement any such method prior to the date *. Ford
shall reimburse Vastera * within thirty days after receiving an invoice from
Vastera.
13. EMPLOYEE WAGE AND BENEFIT LIABILITIES.
Ford shall pay, discharge and be responsible for (i) all salary arising
out of or relating to the employment of the Transferred Employees prior to the
Employment Date; (ii) any benefits arising under Ford employee benefit plans and
programs relating to claims incurred or events that took place prior to the
Employment Date, including benefits with respect to claims incurred prior to the
Employment Date but reported after the Employment Date; and (iii) worker's
compensation claims, damages, expenses, liabilities or administrative
responsibilities of any kind whatsoever, arising prior to the Employment Date
related to a specific incident which occurred prior to the Employment Date, but
was reported after the Employment Date. To the extent any workers' compensation
claims made within two years of the Employment Date relate to a compensable
injury that occurred prior to and after the Employment Date, Ford and Vastera
shall prorate the amount of such workers' compensation claim by service.
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* This portion of the document has been omitted pursuant to a request for
confidential treatment and such portion has been filed separately with the U.S.
Securities and Exchange Commission.
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Vastera shall pay, discharge and be responsible for (i) all salaries
arising out of or relating to the employment of the Transferred Employees after
the Employment Date; (ii) any benefits arising under the Vastera employee
benefit plans and programs relating to claims incurred or events that took place
after the Employment Date; and (iii) except as provided in the paragraph above,
worker's compensation claims, expenses, liabilities or administrative
responsibilities of any kind whatsoever reported after the Employment Date,
provided, however, that any workers' compensation claims, expenses, liabilities,
or administrative responsibilities of any kind made after two years from the
Employment Date shall be Vastera's sole responsibility, regardless of when the
compensable injury is first alleged to have occurred. Ford shall take such
action as is necessary to terminate each Transferred Employee's participation in
the employee benefit plans and programs of Ford as of the Employment Date except
those benefits as described above which continue after the Employment Date.
Transferred Employees may have opportunities to continue in certain of the Ford
employee benefit plans and programs on an individual basis by paying any
applicable premium as required by law or permitted by Ford.
14. COMMUNICATIONS.
Ford and Vastera will coordinate communications to the Ford Customs
Employees to ensure accurate and timely information regarding the available
benefits and other employment information.
15. NON-U.S. FORD CUSTOMS EMPLOYEES.
Notwithstanding anything herein to the contrary, transfer of certain of
the Non-U.S. Ford Customs Employees shall be subject to obtaining appropriate
regulatory approval and the agreement of any applicable labor union or Works
Council. It is recognized that to obtain the agreement of the regulatory
agencies and any Works Council that various transition measures may have to be
agreed to accommodate the transfer. Ford and Vastera shall jointly cooperate to
obtain any regulatory approval or Works Council approval and will implement any
transition measures that are mutually agreed.
16. FORD FACILITIES.
For a period of the time commencing on the Employment Date and
terminating no later than March 31, 2001, certain of the Transferred Employees
may remain located in Ford owned or leased facilities. Vastera agrees to pay
Ford a per-employee Standard Monthly General Overhead Expense in an amount equal
to * of each Transferred Employee's base monthly salary during such period with
respect to any Transferred Employee who occupies Ford owned or leased
facilities.
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* This portion of the document has been omitted pursuant to a request for
confidential treatment and such portion has been filed separately with the U.S.
Securities and Exchange Commission.
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17. INDEMNITY.
17.1 VASTERA INDEMNITY. Vastera shall indemnify Ford against and agrees to
hold it harmless from any and all damage, loss, claim, liability and expense
(including without limitation, reasonable attorney's fees and expenses in
connection with any action, suit or proceeding brought against Ford) incurred or
suffered by Ford solely arising out of (i) breach of any agreement made by
Vastera hereunder with respect to the Transferred Employees; (ii) employment
claims of Transferred Employees based on conditions or actions of Vastera which
arise or take place subsequent to the Employment Date; (iii) any claim by
Transferred Employees (or their dependents or beneficiaries), the Department of
Labor ("DOL"), or Internal Revenue Service ("IRS") arising out of or in
connection with the operation, administration, funding or termination of any of
Vastera's employee benefit plans or programs applicable to Transferred Employees
after the Employment Date or (iv) claims of Ford employees attributable to
conduct by Vastera or Vastera's agents, employees (including Transferred
Employees) or representatives acting under Vastera's authority, direction or
control. Vastera will not indemnify Ford over damage, loss, claim, liability or
expense attributable to conduct by Ford or Ford's agents, employees or
representatives with respect to Transferred Employees.
17.2 FORD INDEMNITY. Ford shall indemnify Vastera against and agrees to hold
it harmless from any and all damage, loss, claim, liability and expense
(including without limitation, reasonable attorney's fees and expenses in
connection with any action, suit or proceeding brought against Vastera) incurred
or suffered by Vastera arising solely out of (i) breach of any agreement made by
Ford hereunder with respect to the Transferred Employees; (ii) employment claims
of Transferred Employees based on conditions or actions of Ford which arose or
took place prior to the Employment Date; (iii) any claim by Transferred
Employees (or their dependents or beneficiaries), the DOL, or IRS arising out of
or in connection with the operation, administration, funding or termination of
any of Ford's employee benefit plans or programs applicable to Transferred
Employees prior to the Employment Date or (iv) claims of Vastera employees,
including Transferred Employees, attributable to conduct by Ford or Ford's
agents, employees or representatives acting under Ford's authority, direction or
control.
17.3 INDEMNIFICATION PROCEDURES. With respect to a party's indemnity
obligations hereunder with respect to third-party claims, the following
procedures shall apply:
(a) NOTICE. Promptly after receipt by any entity entitled to
indemnification hereunder of notice of the commencement or
threatened commencement of any civil, criminal, administrative, or
investigative action or proceeding involving a claim in respect of
which the indemnitee will seek indemnification pursuant to the
terms and conditions herein, the indemnitee shall notify the
indemnitor of such claim in writing. No failure to so notify an
indemnitor shall relieve it of its obligations under this
Agreement except to the extent that it can demonstrate damages
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attributable to such failure. Within fifteen (15) days following
receipt of written notice from the indemnitee relating to any
claim, but no later than ten (10) days before the date on which
any response to a complaint or summons is due, the indemnitor
shall notify the indemnitee in writing if the indemnitor
acknowledges its responsibilities and obligations with respect to
such indemnification and elects to assume control of the defense
and settlement of that claim (a "Notice of Election").
(b) PROCEDURE FOLLOWING NOTICE OF ELECTION. If the indemnitor delivers
a Notice of Election relating to any claim within the required
notice period, the indemnitor shall be entitled to have sole
control over the defense and all negotiations for the compromise
or settlement of such claim; provided that (i) the indemnitee
shall be entitled to participate in the defense of such claim and
to employ counsel at its own expense to assist in the handling of
such claim, and (ii) the indemnitor shall obtain the prior written
approval of the indemnitee before entering into any settlement of
such claim or ceasing to defend against such claim. The indemnitor
shall not be required to indemnify the indemnitee for any amount
paid or payable by the indemnitee in the settlement of any claim
for which the indemnitor has delivered a timely Notice of Election
if such amount was agreed to without the written consent of the
indemnitor.
(c) PROCEDURE WHERE NO NOTICE OF ELECTION IS DELIVERED. If the
indemnitor does not deliver a Notice of Election relating to any
claim within the required notice period, the indemnitee shall have
the right to defend the claim in such manner as it may deem
appropriate, at the cost and expense of the indemnitor. The
indemnitor shall promptly reimburse the indemnitee for all such
costs and expenses.
18. DISPUTE RESOLUTION. If a dispute arises between the Parties relating to
this Agreement, the following procedure shall be implemented except that either
Party may seek injunctive relief from a court where appropriate in order to
maintain the status quo while this procedure is being followed:
18.1 INITIAL MEETING. The Parties shall hold a meeting promptly, attended by
persons with decision-making authority regarding the dispute, to attempt in good
faith to negotiate a resolution of the dispute; provided, however, that no such
meeting shall be deemed to vitiate or reduce the obligations and liabilities of
the Parties or be deemed a waiver by a Party hereto of any remedies to which
such Party would otherwise be entitled hereunder.
18.2 MEDIATION. If, within thirty (30) days after such meeting, the Parties
have not succeeded in negotiating a resolution of the dispute, they agree to
submit the dispute to mediation in accordance with the then-current Model
Procedure for Mediation of Business Disputes of the Center for Public Resources
and to bear equally the costs of
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the mediation.
18.3 APPOINTMENT OF MEDIATOR. The Parties will jointly appoint a mutually
acceptable mediator, seeking assistance in such regard from the Center for
Public Resources if they have been unable to agree upon such appointment within
twenty (20) days from the conclusion of the negotiation period.
18.4 ARBITRATION. The Parties agree to participate in good faith in the
mediation and negotiations related thereto for a period of thirty (30) days. If
the Parties are not successful in resolving the dispute through the mediation,
then the Parties agree to submit the matter to binding arbitration or a private
adjudicator.
18.5 GENERAL PROCEDURE. Mediation or arbitration shall take place in
Pittsburgh, Pennsylvania unless otherwise agreed by the Parties. Equitable
remedies shall be available in any arbitration. Punitive or exemplary damages
shall not be awarded. This clause is subject to the Federal Arbitration Act, 9
U.S.C.A. Section 1 ET SEQ.
18.6 ARBITRATION PROCEDURE. In the event of arbitration, the Parties agree
that the award of the arbitrator shall be (1) the sole and exclusive remedy
between them regarding any claims, counterclaims, or issues presented to the
arbitrator; (2) final and subject to no judicial review; and (3) made and shall
promptly be payable in U.S. dollars free of any tax, deduction, or offset. The
Parties further agree that any costs, fees, or taxes incident to enforcing the
award shall, to the maximum extent permitted bylaw, be charged against the Party
resisting such enforcement. The Parties hereto agree that judgment on the
arbitration award may be entered and enforced in any court of competent
jurisdiction. Each Party shall, except as otherwise provided herein, be
responsible for its own costs, including legal fees, incurred in the course of
any arbitration proceedings. The fees of the arbitrator shall be divided evenly
between the Parties.
19. MISCELLANEOUS.
19.1 FORCE MAJEURE. Either Party's delay or failure to perform (except for a
Party's payment obligation) shall be excused for so long as, and to the extent
that, it is prevented from performing any of its obligations under this
Agreement, in whole or in part, as a result of delays caused by fire, flood,
earthquake, elements of nature or acts of God, riots, civil disorders,
rebellions or revolutions in any country, or any other cause beyond the
reasonable control of such Party (a "Force Majeure Event"). The non-performing
Party shall promptly notify the other Party of the circumstances causing its
delay or failure to perform and of its plans and efforts to implement a
workaround solution. For as long as such circumstances prevail, the Party whose
performance is delayed or hindered shall continue to use reasonable efforts to
minimize the length and effect of delays and shall re-commence performance after
the cessation of the Force Majeure Event.
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19.2 BINDING NATURE AND ASSIGNMENT. This Agreement shall be binding on the
Parties hereto and their respective successors and assigns. Except as otherwise
provided in this Agreement, neither Party shall assign this Agreement or
delegate such Party's obligations hereunder without the prior written consent of
the other, except that either Party may assign this Agreement without the
consent of the other Party to an entity that acquires all, or substantially all,
of the business of the assigning Party (provided that such entity is not a
competitor of the other Party).
19.3 ENTIRE AGREEMENT, AMENDMENT, WAIVER. This Agreement, including the
Attachments referred to herein and attached hereto constitutes the entire
agreement between the Parties with respect to the subject matter hereof and
supersedes all prior agreements, whether written or oral, with respect to the
subject matter contained in this Agreement. No amendment or modification or
waiver of a breach of any term or condition of this Agreement shall be valid
unless in a writing signed by each of the Parties. The failure of a Party to
enforce, or the delay by either of them in enforcing, any of their respective
rights under this Agreement will not be deemed a continuing waiver or a
modification of any rights hereunder and a Party may, within the time provided
by applicable law and consistent with the provisions of this Agreement, commence
appropriate legal proceedings to enforce any or all of its rights.
19.4 NOTICES. All notices, requests, demands, and determinations under this
Agreement (other than routine operational communications), shall be in writing
and shall be deemed duly given (i) when delivered by hand, (ii) one (1) day
after being given to an express, overnight courier with a reliable system for
tracking delivery, or (iii) six (6) calendar days after the day of mailing, when
mailed by United States mail, registered or certified mail, return receipt
requested, postage prepaid, and addressed as follows:
In the case of Ford: Ford Motor Company
Xxx Xxxxxxxx Xxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Vice President, Material Planning
and Logistics
With copies to: Ford Motor Company
Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Assistant Tax Officer, Corporate
Finance
Ford Motor Company
Office of the General Counsel
Xxx Xxxxxxxx Xxxx, XXX Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Assistant General Counsel --
Transactions
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In the case of Vastera: Vastera Solutions Services Corporation
00000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
With copies to: Vastera, Inc.
00000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Vastera designated Liaison
Any Party may from time to time change its address or designee for
notification purposes by giving the other prior written notice of the new
address or designee and the date upon which it will become effective.
19.5 COUNTERPARTS. This Agreement may be executed in several counterparts, all
of which taken together shall constitute one single agreement between the
Parties hereto.
19.6 SEVERABILITY. In the event that any provision of this Agreement conflicts
with the law under which this Agreement is to be construed or if any such
provision is held invalid by an arbitrator or a court with jurisdiction over the
Parties, such provision shall be deemed to be restated to reflect as nearly as
possible the original intentions of the Parties in accordance with applicable
law. The remainder of this Agreement shall remain in full force and effect.
19.7 CONSENTS AND APPROVAL. Except where expressly provided as being in the
discretion of a Party, where agreement, approval, acceptance, consent, or
similar action by either Party is required under this Agreement, such action
shall not be unreasonably delayed or withheld.
19.8 SURVIVAL. Any provision of this Agreement that contemplates performance
or observance after any termination or expiration of this Agreement (in whole or
in part) shall survive any termination or expiration of this Agreement and
continue in full force and effect.
19.9 THIRD PARTY BENEFICIARIES. This Agreement is entered into solely between,
and may be enforced only by, Ford and Vastera. This Agreement shall not be
deemed to create any rights in third parties, including employees, suppliers and
customers of a Party, or to create any obligations of a Party to any such third
parties.
19.10 CHOICE OF LAW. This Agreement and performance under it shall be governed
by and construed in accordance with the laws of the State of Michigan without
regard to its choice of law principles.
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19.11 NEGOTIATED TERMS. The Parties agree that the terms and conditions of this
Agreement are the result of negotiations between the Parties and that this
Agreement shall not be construed in favor of or against any Party by reason of
the extent to which any Party or its professional advisors participated in the
preparation of this Agreement.
19.12 TITLES AND HEADINGS. Titles and headings of Sections of this Agreement
are for convenience only and will not affect the construction of any provision
of this Agreement.
19.13 NO INDIVIDUAL AUTHORITY. Neither Party shall, without the express, prior
written consent of the other Party, take any action for or on behalf of or in
the name of the other Party, assume, undertake, or enter into any commitment,
debt, duty or obligation binding upon the other Party, except for actions taken
pursuant to agreements entered into between such Party or its Affiliates and any
other Party.
19.14 PARENT GUARANTY. In connection with this Agreement, Ford and Vastera,
Inc. have executed a Parent Guaranty, attached hereto as Schedule D.
20. HSR ACT.
Both Parties' obligations under this Agreement are subject to the
termination or expiration of any HSR Act waiting period applicable to the Stock
Transfer Agreement among Ford, Vastera and Vastera, Inc. dated as of even date
herewith. "HSR Act" is defined as the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and the related regulations and published
interpretations.
21. SEC.
Both Parties' obligations under this Agreement are subject to the receipt
by Vastera of written approval or concurrence from the United States Securities
and Exchange Commission of its treatment of the transactions contemplated by the
Stock Transfer Agreement among Ford, Vastera, and Vastera, Inc. dated as of even
date herewith as a business combination applying the purchase method of
accounting under generally accepted accounting principles, provided that the
foregoing condition precedent shall be deemed waived by both Parties in the
event that no such written approval or concurrence has been received by Vastera
within sixty (60) days of the Effective Date.
IN WITNESS WHEREOF, the Parties hereto have duly executed this
Agreement as of the day and year first above written.
FORD MOTOR COMPANY VASTERA SOLUTIONS SERVICES
CORPORATION
CONFIDENTIAL
14
By: /s/ Xxxxx Xxxxxx By: /s/ Arjun Rishi
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Title: Title:
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CONFIDENTIAL
