EXHIBIT 10-CC
AGREEMENT FOR THE TRANSFER OF EMPLOYEES
BY AND BETWEEN
NKK CORPORATION
AND
NATIONAL STEEL CORPORATION
DATED: MAY 1, 1995
AGREEMENT FOR THE TRANSFER OF EMPLOYEES
TABLE OF CONTENTS
-----------------
1 DEFINITIONS.................................................. 2
1.1 "Business Assistance".................................. 2
1.2 "Confidential Information"............................. 2
1.3 "Contract Year"........................................ 2
1.4 "Home Leave"........................................... 2
1.5 "Plant(s)"............................................. 2
1.6 "Proprietary Technology"............................... 3
1.7 "Reimbursable Expenses"................................ 3
1.8 "Reimbursable Expenses Cap"............................ 3
1.9 "Special Projects"..................................... 3
1.10 "Technical Assistance"................................. 3
1.11 "Technical Information"................................ 3
1.12 "Transferred Employee"................................. 4
1.13 "Works"................................................ 4
2. DESIGNATION OF TRANSFERRED EMPLOYEES......................... 4
------------------------------------
3. METHOD OF PROVIDING TECHNICAL AND BUSINESS ASSISTANCE........ 4
-----------------------------------------------------
4. TERM......................................................... 5
----
5. PAYMENTS..................................................... 5
--------
6. PERIOD OF EMPLOYMENT......................................... 8
--------------------
7. STATUS OF TRANSFERRED EMPLOYEE AS AN EMPLOYEE OF NSC......... 9
----------------------------------------------------
8. VACATION, SALARY CONTINUANCE PROGRAM, AND LEAVE POLICIES
--------------------------------------------------------
FOR TRANSFERRED EMPLOYEES.................................... 10
-------------------------
9. LICENSE...................................................... 11
-------
10. RESPONSIBILITIES............................................. 12
----------------
11. CONFIDENTIAL INFORMATION..................................... 14
------------------------
i
12. SPECIAL PROPRIETARY TECHNOLOGY AND PROJECTS.......... 15
-------------------------------------------
13. GENERAL CONDITIONS................................... 15
------------------
14. FORCE MAJEURE........................................ 16
-------------
15. ANNUAL REVIEW AND APPROVAL........................... 17
--------------------------
16. ASSIGNMENT........................................... 18
----------
17. RESOLUTION OF DISPUTES............................... 18
----------------------
18. NOTICE............................................... 19
------
19. SEVERABILITY......................................... 20
------------
20. COUNTERPARTS......................................... 20
------------
21. MODIFICATIONS........................................ 20
-------------
22. GOVERNING LAW........................................ 20
-------------
23. ENTIRE AGREEMENT..................................... 21
----------------
24. CAPTIONS............................................. 21
--------
EXHIBITS
--------
"A" Schedule for Family Death or Illness or Marriage of a Child
ii
AGREEMENT FOR THE TRANSFER OF EMPLOYEES
---------------------------------------
THIS AGREEMENT, by and between NKK CORPORATION, a Japanese corporation, having
its main office at 0-0-0, Xxxxxxxxxx, Xxxxxxx-xx, Xxxxx, Xxxxx (herein called
"NKK") and NATIONAL STEEL CORPORATION, a Delaware corporation having its
principal office at 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxxxxxx, XX 00000-0000, X.X.X.
(herein called "NSC"), is made effective May 1, 1995 (herein called "Effective
Date").
WITNESSETH:
WHEREAS, NKK has had long experience and practices continuous improvement in
operating integrated steelworks and has accumulated a vast store of technology
and know-how in the field; and
WHEREAS, NKK has had long experience and has know-how with respect to
international financing, purchasing, dealing with international trading
companies and other special business practices; and
WHEREAS, in the past NKK has provided certain technical assistance and
consulting services to NSC regarding operation of its steelworks and has
provided certain business assistance to NSC, which NSC has found to be very
valuable; and
WHEREAS, NKK and NSC are desirous of recording and formalizing in binding form,
future arrangements for the provision by NKK of technical and business
assistance to NSC; and
WHEREAS, as an independent and unrelated matter, NKK and NSC have in the past
arranged for the transfer of certain employees from NKK to NSC and are desirous
of recording and
1
formalizing in binding form, similar arrangements for the transfer of employees
from NKK to NSC in the future, including arrangements for the payment of
salaries of such transferred employees and reimbursement arrangements related
thereto.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms shall have the following
meanings:
1.1 Business Assistance means consultation, advice, guidance, recommendations
and training given to NSC by Transferred Employees and by NKK personnel for
the purpose of assisting NSC with respect to financing means and methods,
purchasing, dealing with international trading companies and other aspects
of NSC's business.
1.2 Confidential Information means such Technical Information or business
information submitted by NKK to NSC in writing and stamped "Confidential".
1.3 Contract Year means each calendar year during the term of this Agreement;
provided, however, that the first Contract Year shall be the Initial Term
(as defined in Paragraph 4 hereof).
1.4 Home Leave means a period of time granted to a Transferred Employee to
return to Japan in accordance with Paragraph 8.2 hereof.
1.5 Plant(s) means Great Lakes Steel Division (GLD), Granite City Steel
Division (GCD), Midwest Steel Division (MWD), DNN Galvanizing Corporation,
Double G Coatings, Inc.,
2
and all other steel producing or processing plants or other facilities
which are now, or may be in the future, separately or jointly owned,
directly or indirectly, by NSC.
1.6 Proprietary Technology means all inventions, developments and trade
secrets (including, without limitation, all method, process and apparatus
inventions and developments, whether or not patented or patentable), and
all present and future improvements thereto, and other technology and
ancillary know-how which NKK owns, controls or otherwise has the right to
disclose and license.
1.7 Reimbursable Expenses means those costs and expenses incurred by NKK
as described in Paragraph 5.1 hereof.
1.8 Reimbursable Expenses Cap means the maximum amount of Reimbursable
Expenses in any Contract Year as described in Paragraph 5.2 hereof.
1.9 Special Projects means those projects to be worked on by NKK as described
in Paragraph 12.1 hereof.
1.10 Technical Assistance means consultation, advice, guidance, recommendations
and training given to NSC by Transferred Employees in the Plants and/or by
NKK personnel in the Works for the purpose of further developing and
improving the technology, equipment, facilities, operations and maintenance
practices of NSC.
1.11 Technical Information means any and all information regarding inventions,
developments, processes, equipment, technology, trade secrets and know-how,
whether written or oral, patentable or not patentable, developed or owned
by NKK, or which NKK otherwise has
3
the right to disclose and use, necessary in order to provide Technical
Assistance, including background information and data therefor.
1.12 Transferred Employee means a person formerly employed by NKK who becomes an
employee of NSC pursuant to this Agreement.
1.13 Works means the Fukuyama Works, the Keihin Works and/or other steel
producing or processing plants or other facilities of NKK.
2. DESIGNATION OF TRANSFERRED EMPLOYEES
Each Transferred Employee shall be designated by NKK, subject to the
approval of the management of NSC. The parties hereto shall agree from time
to time regarding the total number of Transferred Employees to be employed
at any given time by NSC. During the Initial Term (as defined in Paragraph
4 of this Agreement), it is anticipated that the Transferred Employees
shall consist of approximately forty (40) skilled engineers and other
personnel employed by NSC at the Plants and at NSC headquarters.
3. METHOD OF PROVIDING TECHNICAL AND BUSINESS ASSISTANCE
3.1 NKK shall provide Technical Assistance by means of and through Transferred
Employees and, to the extent reasonably practicable and as reasonably
requested by NSC through Transferred Employees, by means of and through NKK
engineers and other support personnel employed by NKK at the Works and at
NKK's headquarters. In addition, regular visitations shall be made by NSC
managers to the Works to assist in the provision of Technical Assistance.
To the extent reasonably practicable and as reasonably requested
4
by NSC, the Technical Assistance shall be appropriately documented by NKK
in written reports to NSC, including periodic reports with respect to the
status of each project.
3.2 In the regular course of providing Technical Assistance, NKK shall transfer
to NSC complete information, instruction, assistance and license rights
with respect to all Proprietary Technology and Technical Information
disclosed by NKK to NSC for NSC's use in accordance with the terms and
conditions of this Agreement.
3.3 NKK shall provide its Business Assistance by means of and through
Transferred Employees consisting of skilled business managers and personnel
employed at NSC's headquarters, and skilled NKK business managers and other
personnel employed by NKK at NKK's headquarters.
4. TERM
The initial term of this Agreement shall commence on the Effective Date and
shall continue for one year and eight months thereafter until December 31,
1996 (the "Initial Term"). This Agreement may be extended for subsequent
Contract Year terms in accordance with Paragraph 15 hereof.
5 PAYMENTS
5.1 Subject to Paragraph 5.2 hereof, NSC shall reimburse NKK for the following
reasonable costs and expenses incurred by NKK in making certain payments to
or for the benefit of the Transferred Employees on behalf of NSC
("Reimbursable Expenses"):
5
(a) reasonable costs incurred under the payment equalization program referred
to in Paragraph 7.3 hereof; and
(b) reasonable costs incurred in relocating the Transferred Employee to the
United States and, upon conclusion of the Transferred Employee's employment
by NSC, in relocating the Transferred Employee back to Japan, including,
without limitation, all reasonable travel expenses and moving expenses
incurred by the Transferred Employee and his immediate family; and
(c) reasonable costs incurred for postage and shipments of documents to and
from Transferred Employees.
5.2 The total amount which NSC shall be obligated to pay to NKK for
Reimbursable Expenses during the Initial Term and during each Contract Year
after the Initial Term shall not exceed a maximum amount (the "Reimbursable
Expenses Cap"). For the purposes of determining whether or not the
Reimbursable Expenses Cap is reached, the amount of payroll taxes and
related taxes paid by NSC on behalf of each Transferred Employee with
respect to payments made by NKK to such Transferred Employee under its
payment equalization program, in excess of NSC's regular salary for each
such Transferred Employee, shall be deemed to be a Reimbursable Expense.
The Reimbursable Expenses Cap for the Initial Term shall be $11,666,667.
The amount of the Reimbursable Expenses Cap for each Contract Year after
the Initial Term shall be mutually agreed upon by the parties prior to the
commencement of such Contract Year, and shall be subject to the approval of
NSC's Board of Directors as described in Paragraph 15 hereof.
5.3 Promptly following its payment of any Reimbursable Expenses to Transferred
Employees, NKK shall submit an invoice to NSC for such Reimbursable
Expenses. Said invoice shall
6
set forth the Reimbursable Expenses incurred with respect to each
Transferred Employee in reasonable detail and with such supporting
documentation as NSC may reasonably require. Within thirty (30) days after
receipt of said invoice, NSC shall pay to NKK the amount of such invoice;
provided, however, that if the amount of any such invoice, when added to
the amount of all prior invoices for Reimbursable Expenses incurred in the
Contract Year, exceeds the Reimbursable Expenses Cap for such Contract Year
(the amount of such excess hereinafter being referred to as the "Excess
Amount"), then NSC shall be obligated to pay only the amount of such
invoice less the Excess Amount. In the event that any portion of such
invoice is questioned or disputed by NSC, NSC shall pay all amounts not in
question or dispute, and the parties shall expeditiously attempt to resolve
such questions or disputes in accordance with Paragraph 17 hereof. Each
invoice from NKK shall convert Yen to Dollars at the conversion rate in
effect on the date of such invoice, as published in the Wall Street
Journal, Currency Trading Exchange Rates for such date. In the event that
at any time NKK determines that an adjustment is required to any invoice
previously submitted for Reimbursable Expenses, whether because of an
error, omission or inability to calculate, then NKK may submit a new
invoice to NSC setting forth such adjustment in reasonable detail and with
such supporting documentation as NSC may reasonably require. If such
adjusted invoice calls for an additional payment by NSC (rather than a
credit), then NSC shall pay such adjusted invoice in accordance with the
procedures described above; provided, however, that the amount of such
adjusted invoice shall apply and be subject to the Reimbursable Expenses
Cap in effect at the time when the Reimbursable Expenses covered by such
adjusted invoice were incurred.
5.4 All payments to be made hereunder by NSC to NKK shall be in United States
Dollars by telegraphic transfer, and remitted into NKK's account at a bank
in Japan designated by NKK.
7
5.5 Subject to the provisions of Paragraph 5.6 hereof, NSC shall deduct from
the account of payments to NKK, the withholding tax, if any, required after
application of the Convention between Japan and the United States of
America for the Avoidance of Double Taxation and the Prevention of Fiscal
Evasion with Respect to Taxes and Income, and NSC shall send to NKK, on an
annual basis, a tax certificate showing the payment of such tax, as NKK may
reasonably request to obtain a credit for such tax.
5.6 NKK and NSC shall, as soon as possible after the date hereof, by mutual
agreement, devise appropriate arrangements regarding the withholding of
employee payroll and any other taxes imposed with respect to payments of
Reimbursable Expenses made by NSC to NKK.
5.7 NKK shall maintain complete and accurate books and records with respect to
the Reimbursable Expenses and other payments which may become due under
this Agreement. Such books and records shall be available for inspection
and audit by NSC or its representatives during normal business hours at any
reasonable time, from time to time during the term of this Agreement and
for a period of seven (7) years after payment of any invoice hereunder.
6. PERIOD OF EMPLOYMENT
Each Transferred Employee shall be employed by NSC for such period of time
to be agreed upon at the commencement of such employment by NSC and NKK;
provided, however, that if NKK so requests, and if sufficient, competent
Transferred Employees are provided so that NSC's rights and benefits under
this Agreement are not adversely affected, NSC shall permit the Transferred
Employee to cease such employment with NSC at a date earlier than the date
originally agreed upon so that the Transferred Employee
8
may return to the employ of NKK. However, for the purposes of planning and
scheduling, such period of employment by NSC shall generally be four years.
7. STATUS OF TRANSFERRED EMPLOYEE AS AN EMPLOYEE OF NSC
7.1 During their period of employment with NSC, the Transferred Employees shall
become full-time employees of NSC and shall be entitled to, and subject to,
all of the rights and obligations, respectively, of an employee of NSC, as
modified by Paragraphs 8 and 9 of this Agreement, including, without
limitation, entitlement to all employee benefits, bonuses and other
privileges accorded to, and compliance with all policies applicable to,
employees of NSC in equivalent or similar positions. The Transferred
Employees shall provide Technical and/or Business Assistance in the regular
course of performing their duties of employment for NSC, and shall perform
services exclusively for or on behalf of NSC while in the United States.
Transferred Employees shall be prohibited from executing contracts on
behalf of NKK in the United States.
7.2 NSC shall pay the base salary (including salary earned during paid
vacations, paid Home Leave and paid leave on account of family death or
illness) and any other amounts earned by and directly paid to a Transferred
Employee by check payable in U. S. Dollars to the order of such Transferred
Employee.
7.3 NKK reserves the right to make tax and other equalization payments or
benefits to any Transferred Employee, pursuant to the internal policies of
NKK regarding the compensation of its employees. Except as specifically
required by applicable law, neither NKK nor a Transferred Employee shall
have any obligation to disclose to any person, other than NSC, any facts
concerning the payment equalization program or payments to a Transferred
Employee made in connection therewith. NKK represents and warrants that
9
no Transferred Employee will pay to NKK any portion of the salary paid by
NSC to such Transferred Employee. NKK and NSC agree that any payments made
by NKK to the Transferred Employees pursuant to the payment equalization
program described in this paragraph shall constitute payment of
supplemental employment benefits made by NKK on behalf of NSC, shall be
included in Reimbursable Expenses and shall constitute taxable income to
the Transferred Employee receiving such payment.
8. VACATION, SALARY CONTINUANCE PROGRAM, AND LEAVE POLICIES FOR TRANSFERRED
EMPLOYEES
8.1 For purposes of determining the amount of paid vacation and amount of any
payments under the Salary Continuance Program of NSC to which a Transferred
Employee is entitled, a Transferred Employee's prior service to NKK shall
be considered to be service to NSC.
8.2 Each Transferred Employee shall be granted paid Home Leave as follows:
once a year for a Transferred Employee whose spouse has not accompanied him
to the United States, and once every other year for a Transferred Employee
whose spouse has accompanied him to the United States. The period of such
paid Home Leave shall be 14 work days; provided, however, that 10 of such
14 work days shall be included in the period of a Transferred Employee's
paid vacation and shall not be in addition to such paid vacation; four of
such work days shall be in addition to the Transferred Employee's paid
vacation. In the event that a Transferred Employee who is entitled to Home
Leave under this provision is not entitled to 10 days paid vacation, such
Transferred Employee shall nevertheless be entitled to paid Home Leave of
14 work days.
10
8.3 In addition to paid vacation and paid Home Leave, a Transferred Employee
shall be entitled to a leave to return to Japan on account of family death,
major illness or the marriage of a child. The amount of leave time to which
such Transferred Employee shall be entitled shall be the period customarily
provided by NSC to its own employees plus four work days. In the event that
such leave satisfies the conditions provided in the Schedule attached
hereto as Exhibit "A", NSC shall bear the entire cost of such leave,
including, without limitation, all reasonable expenses for the trip to and
from Japan incurred by the Transferred Employee and his immediate family.
9. LICENSE
-------
9.1 NKK hereby grants and agrees to grant to NSC a perpetual, irrevocable,
royalty free right and license to use in the Plants all Proprietary
Technology and Technical Information which is disclosed to NSC for NSC's
use in accordance with the terms and conditions of this Agreement. Said
right and license to use the Proprietary Technology and Technical
Information shall survive the termination of this Agreement on a perpetual,
irrevocable, royalty free basis.
9.2 Ideas, inventions or improvements, if any, conceived by NSC relating to
the Technical Assistance, Proprietary Technology and Technical Information
disclosed by NKK to NSC under this Agreement shall be the property of NSC,
but NKK shall have a perpetual, irrevocable, royalty free right and license
to use any such ideas, inventions or improvements in the Works. Ideas,
inventions or improvements, if any, conceived by NKK relating to the
Technical Assistance, Proprietary Technology and technical information, if
any, disclosed by NSC to NKK in connection with NSC's obtaining Technical
Assistance, Proprietary Technology and Technical Information from NKK
hereunder, shall be the property of NKK, but NSC shall have a perpetual,
royalty free
11
right and license to use any such ideas, inventions or improvements in the
Plants. Said right and license of NKK and NSC to use such ideas, inventions
or improvements shall survive the termination of this Agreement on a
perpetual, irrevocable, royalty free basis.
9.3 Any ideas, inventions or improvements which are jointly conceived by NSC
and NKK relating to the Technical Assistance, Proprietary Technology and
Technical Information disclosed by NKK to NSC under this Agreement shall be
the joint property of NSC and NKK, and each of NSC and NKK shall have an
irrevocable, royalty free license from the other to use such ideas,
inventions and improvements and any patents issued thereon in any
facilities or operations of NSC and NKK and any of their respective
affiliates, and the right (but only with the prior written consent of the
other party) to sublicense any such ideas, inventions and improvements.
10. RESPONSIBILITIES
----------------
10.1 NKK shall use its best efforts to advise NSC of and to provide to NSC all
Proprietary Technology, Technical Assistance and Technical Information
which is available to NKK. NSC may request, and NKK shall provide, such
Technical Information in a form which will be accurate and complete,
utilizing, to NKK's knowledge, the best and most up-to-date information and
experience available to NKK, which is appropriate under the circumstances,
at the time of disclosure.
10.2 NSC shall be responsible for making the final decision as to whether or
not to adopt the contents of the Proprietary Technology, Technical
Assistance and Technical Information, and NKK shall not be held responsible
for any loss or damage that NSC may incur in connection with the
Proprietary Technology, Technical Assistance and Technical Information;
provided, however, that in the event such loss or damage is caused by the
12
gross negligence of NKK, then NKK may be liable to NSC for such loss or
damage in an amount not to exceed the amount of the Reimbursable Expenses
Cap in effect during the Contract Year in which such Proprietary
Technology, Technical Assistance and Technical Information was provided.
The foregoing sentence and Paragraph 10.3 hereof sets forth the entire
obligation of NKK with respect to any loss or damage that NSC may incur in
connection with the Proprietary Technology, Technical Assistance and
Technical Information.
10.3 In the event there is any claim, action or suit, or any claim arising out
of such action or suit, for infringement of any United States patent based
on the use of Proprietary Technology, Technical Assistance and/or Technical
Information by NSC or for actively inducing infringement or for
contributory infringement arising out of the performance of any act by NKK
under this Agreement, then representatives of NSC and NKK shall meet and
attempt in good faith to agree upon what actions, if any, NKK shall take
and what compensation, if any, NKK shall make to NSC in connection with
such patent infringement claim, action or suit. In the event the parties
are unable to reach such an agreement, then this matter shall be finally
settled by arbitration in accordance with Paragraph 17.2 hereof; provided,
however, that in no event shall NKK's liability to NSC in connection with
any one such patent infringement claim, action or suit arising during a
Contract Year exceed for each infringement one-third (1/3) of the
Reimbursable Expenses Cap in effect during the Contract Year in which such
Proprietary Technology, Technical Assistance or Technical Information
giving rise to such patent infringement claim, action or suit was initially
provided by NKK to NSC. In addition, in no event shall NKK's liability to
NSC in connection with all patent infringement claims, actions or suits
arising during a Contract Year exceed for all such infringements the total
amount of the Reimbursable Expenses Cap in effect during the Contract Year
in which such Proprietary
13
Technology, Technical Assistance or Technical Information giving rise to
such patent infringement claims, actions or suits was initially provided by
NKK to NSC.
11. CONFIDENTIAL INFORMATION
------------------------
11.1 NSC shall be free to use Confidential Information supplied to it by NKK
pursuant to this Agreement, subject to Paragraphs 11.2 and 11.3 hereof.
11.2 Neither NSC nor any NSC employee and/or agent shall use Confidential
Information supplied by NKK under this Agreement for purposes other than
for operation of the Plants, facilities, equipment and processes, and for
related purposes, such as engineering and construction at the Plants.
11.3 NSC and all NSC employees and agents shall keep all Confidential
Information confidential and shall not disclose or transfer Confidential
Information supplied by NKK to any third party, unless (i) reasonably
necessary for this Agreement to be carried out, (ii) with the prior written
consent of NKK, or (iii) NSC is obligated to do so by legal process. The
confidentiality and other obligations set forth in Paragraphs 11.2 and 11.3
hereof shall extend to any third party to whom Confidential Information is
disclosed or transferred by NSC or its employees or agents for the purpose
of carrying out this Agreement, and NSC shall be responsible for any breach
of such obligations by such third party.
11.4 NSC's obligation specified in Paragraphs 11.2 and 11.3 herein shall
continue only for a period of five (5) years from the date of disclosure of
the Confidential Information. The restrictions contained in Paragraphs
11.2 and 11.3 herein shall not extend to any such information (1) which is
already in the possession of NSC at the date of its disclosure by NKK to
NSC; (2) which at the time of disclosure is, or after disclosure becomes,
generally
14
known to the public or in the industry through no fault of NSC; (3) which
may thereafter become available to NSC from a third party who has no
existing obligation of confidentiality with NKK; or (4) which is not
Confidential Information.
12. SPECIAL PROPRIETARY TECHNOLOGY AND PROJECTS.
-------------------------------------------
12.1 The parties recognize and agree that from time to time during the term of
this Agreement NSC may request NKK to work on special projects (i) not
contemplated by the parties as being covered under this Agreement prior to
the commencement of the Initial Term or prior to the renewal of this
Agreement for a subsequent Contract Year in accordance with Paragraph 15,
as the case may be, and (ii) requiring a material amount of work by NKK
which cannot reasonably be performed by the Transferred Employees ("Special
Projects"). In such event, NKK shall use its best efforts to fulfill any
such request by NSC, on terms and conditions as are mutually agreeable to
the parties.
12.2 In the event that it is necessary for NKK to send personnel employed by
NKK or its affiliates from Japan to the Plants or to NSC's headquarters
temporarily (i) to assist in the providing of Technical Assistance or (ii)
to work on Special Projects, then NSC and NKK shall mutually agree on the
scope of the work to be performed by such personnel and the number and type
of such personnel. NSC shall compensate NKK for providing such personnel in
accordance with the Technical Assistance Agreement between the parties
dated June 25, 1990.
13. GENERAL CONDITIONS
------------------
13.1 All communications and transfer of information under this Agreement shall
be accomplished in the English language; provided, however, that
communications and
15
transfer of information between (i) Transferred Employees and (ii) NKK
engineers and other support personnel employed by NKK in Japan may be
accomplished in the Japanese language, and NKK shall provide to NSC through
the Transferred Employees such English translations as may be reasonably
requested by NSC.
13.2 Upon request of NKK, NSC shall furnish NKK with technical data, drawings
or any other information as deemed necessary in order for this Agreement to
be effectively carried out. NSC shall also, from time to time, furnish to
NKK any additional data or other information reasonably requested by NKK in
connection with the Technical Assistance, Confidential Information,
Proprietary Technology, Business Assistance, or any other matter which is
the subject of this Agreement. With respect to such information furnished
by NSC, NKK shall be subject to the same secrecy and other obligations that
NSC has assumed under this Agreement relative to Confidential Information
received from NKK.
13.3 Nothing in this Agreement shall be construed to prevent or inhibit the
acquisition of technical assistance technology or business assistance by
NSC from any third party.
13.4 The failure of either party to strictly enforce any rights set forth in
this Agreement, or granted at law or in equity, shall in no way be
construed to be a waiver of such right, nor affect the validity of this
Agreement or any part thereof, or the right thereafter to enforce each and
every right and provision.
14. FORCE MAJEURE
-------------
Neither party hereto shall be liable for delay or failure in performing any
of its duties or obligations under this Agreement caused in whole or in
part by force majeure conditions, such as acts of God, wars, riots, fires,
explosions, breakdowns or accidents; compliance
16
with governmental rules or regulations or other governmental requirements;
strikes, lockouts or other labor difficulties; lack or shortages of labor,
materials, utilities, energy sources or transportation facilities; or any
other like cause or any other unlike cause beyond the reasonable control of
the party whose performance is affected thereby; provided, however, that
NSC shall have no obligation to make payments for any performance by NKK
scheduled for any year of this Agreement which is prevented by force
majeure, and the Reimbursable Expenses Cap shall be equitably reduced. If a
party is affected by such a force majeure, the affected party shall give
prompt written notice to the other party of any anticipated or actual delay
or inability to perform, and of the cause and anticipated extent thereof.
The affected party shall take all reasonable action to remove the force
majeure as soon as practicable, and shall give prompt written notice to the
other party of the cessation of the force majeure and of its ability to
resume performance of its duties and obligations under this Agreement.
15. ANNUAL REVIEW AND APPROVAL
--------------------------
15.1 This Agreement and any extension of the term of this Agreement from one
Contract Year to a subsequent Contract Year is subject to the approval of
NKK and the approval of NSC's Board of Directors. Any such approval by
NSC's Board of Directors must be given by a majority of those Directors who
are not then and never have been employed by NKK.
15.2 In order for this Agreement to be extended from one Contract Year to a
subsequent Contract Year, NKK and NSC's management shall, prior to December
1 of the current Contract Year (other than December 1, 1995), agree upon
(i) the proposed Reimbursable Expenses Cap for the subsequent Contract Year
and (ii) the proposed Technical Assistance, Business Assistance, and other
information and consulting services to be provided and Technical
Information and Proprietary Technology to be disclosed in the
17
subsequent Contract Year. NSC's Board of Directors must approve the
extension of this Agreement, including the Reimbursable Expenses Cap, for
the subsequent Contract Year at the NSC Board of Directors Meeting held in
December of each year. At such Board of Directors Meeting, NSC's management
shall present its report and evaluation concerning the extension of this
Agreement. In order that the Board of Directors may make an informed
decision concerning this Agreement, NKK shall provide in a timely manner
such reports and summaries as may be reasonably requested by NSC of the
Technical Assistance, Business Assistance, and other information and
consulting services provided and to be provided by NKK and Technical
Information and Proprietary Technology disclosed and to be disclosed by NKK
under this Agreement (including the costs estimated to be incurred by NKK
in providing such Technical and Business Assistance and services and
disclosing such Technical Information and Proprietary Information for the
relevant Contract Year).
16. ASSIGNMENT
----------
The rights and obligations of either party hereto shall not be assignable
without the prior written consent of the other party.
17. RESOLUTION OF DISPUTES
----------------------
17.1 The parties agree to work in good faith to resolve all questions, disputes
or differences which may arise out of or in connection with this Agreement.
17.2 If both parties are unable to resolve such questions, disputes or
differences, they shall be finally settled by arbitration in accordance
with the rules of conciliation and arbitration set out by the American
Arbitration Association, without recourse to judicial decision, and
18
both parties shall be bound by the decision so noted. Such arbitration
shall be held in Chicago, Illinois and shall be conducted in the English
language.
18. NOTICE
All notices, requests and other communications which shall or may be
given hereunder shall be made by registered airmail, telecopy or telegram
and shall be addressed as follows:
To NKK: NKK Corporation
Attention: Manager
North American Business Section
Steel Division
0-0-0 Xxxxxxxxxx
Xxxxxxx-xx, Xxxxx
Xxxxx
Telecopy No. 01181332148426
To NSC: National Steel Corporation
Attention: President and
Chief Executive Officer
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000-0000
Telecopy No. 000-000-0000
and to
National Steel Corporation
Attention: Vice President and
General Counsel
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000-0000
Telecopy No.: 000-000-0000
or to such other address as either party may from time to time
designate. Such notice shall take effect upon receipt thereof; provided,
however, that such notice shall be deemed to have been received upon
expiration of ten (10) days from the date of sending in the case
19
of mail, and twenty-four (24) hours from the hour of sending in the case of
telecopy or telegram.
19. SEVERABILITY
In case any one or more of the provisions contained herein shall,
for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement, but this Agreement shall be
construed as if such invalid, illegal or unenforceable provision or
provisions had never been contained herein.
20. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
21. MODIFICATIONS
The provisions of this Agreement shall not be modified or amended
except by an instrument in writing signed by or on behalf of the parties
hereto.
22. GOVERNING LAW
This Agreement shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of Delaware,
without giving effect to the principles of conflicts of laws thereto.
20
23. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties as to the
subject matter hereof, and it supersedes all prior or contemporaneous
agreements, whether written or oral, including, without limitation, the
Agreement for the Transfer of Employees dated November 1, 1984. The parties
agree and acknowledge that said Agreement for the Transfer of Employees
shall be deemed terminated as of the Effective Date, and that neither party
has any liability or obligations to the other thereunder.
24. CAPTIONS
All captions contained in this Agreement are solely for reference purposes
and are of no legal force and effect.
NKK CORPORATION NATIONAL STEEL CORPORATION
By: By:
----------------------------- ----------------------------
Title: Title:
-------------------------- -------------------------
Date: Date:
--------------------------- --------------------------
21
SCHEDULE FOR FAMILY DEATH OR ILLNESS
------------------------------------
OR MARRIAGE OF A CHILD
----------------------
Return Trip Authorized For:
-------------------------------
Death or Critical Illness of: Transferred
------------------------------- Employee Spouse Children
----------- ------ --------
Spouse Yes N/A Yes
Transferred Employee's Parent Yes Yes Yes
Spouse's Parent Yes Yes Yes
Children Yes Yes Yes
Marriage of a Child Yes Yes No
Exhibit "A"
