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EXHIBIT 10.22
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MARKETING AND TECHNICAL ASSISTANCE AGREEMENT
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THIS AGREEMENT ENTERED INTO WITH EFFECT AS OF AND FROM THE FIRST DAY OF
OCTOBER, 1996, BETWEEN:
- LAFARGE, a corporation duly incorporated under the laws of France,
having its corporate office at 00, xxx xxx Xxxxxx-Xxxxxxxx 00000
XXXXX, herein acting and represented by Xx. Xxxx Xxxxxx Cloiseau, duly
authorized as he so declares,
AND
- LAFARGE CORPORATION, a corporation duly incorporated under the laws of
Maryland, USA, having its corporate office at 00000 Xxxxxxx Xxxxxx
Xxxxx, Xxxxxx, Xxxxxxxx 00000, XXX, herein acting and represented by
Xx. Xxxx Xxxxxxx, duly authorized as he so declares,
WHEREAS:
Lafarge is engaged in research and development with respect to manufacture and
sale of building materials, including gypsum products;
Lafarge has through many years of experience developed its means and expertise
in the fields of research and development, marketing, strategic planning, human
resources and communication techniques in relation to gypsum activities;
Lafarge Corporation, a company specialized in cement, ready-mix and aggregates
activities, has recently acquired two gypsum wallboard plants in the Northeast
region of the United States;
Lafarge Corporation having limited experience in gypsum activities, desires to
enter into a technical and marketing assistance agreement with Lafarge under
the conditions hereinafter described.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1 - DEFINITIONS
In this agreement, the following terms shall have the following definitions
unless the context clearly indicates otherwise:
- {Lafarge} means Lafarge and all its subsidiaries specialized in gypsum
activity.
- {Lafarge Corporation} means Lafarge Corporation including its two
United States wallboard plants and plants subsequently constructed or
acquired.
- {Division} means Lafarge Platres company.
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- {Products} means gypsum based products such as, but not limited to:
wallboard, wallboard complementary products (joint compounds,
accessories, ...), construction plasters, moulded products (cove,
cornices), industrial plasters (for sanitaryware, tableware, foundry,
dental applications, ...), gypsum based screeds as well as paper used
for wallboard manufacturing.
- {Subsidiaries} means any corporate entity of which Lafarge or Lafarge
Corporation as applicable owns more than 50% of the voting shares
and/or has the sole power to name more than 50% of the directors.
- {Territory} means the United States of America, and all its
territories and possessions.
- {Third parties} means any entity other than Lafarge and Lafarge
Corporation.
2 - SCOPE OF THE ASSISTANCE
Lafarge hereby agrees to assist Lafarge Corporation in the following fields:
- process and new product development
- marketing and strategic planning
- information technology
- training of personnel
- human resources and communication techniques
3 - PROCESS AND NEW PRODUCT DEVELOPMENT
Process and new product development shall include, for the purpose of this
agreement, application research in connection with the design and
development of new products and the design and development of processes for
the manufacturing of products.
3.1 Design and Development of New Products
Lafarge Corporation will have access to the expertise of Lafarge, including
technical support personnel with respect to technical developments. Lafarge
will assist Lafarge Corporation in product specification design and testing
trials for products registration.
Lafarge will provide Lafarge Corporation with reports, formulas,
specifications and written descriptions.
3.2 Design and Development of Industrial Processes
Lafarge Corporation will:
- have the management or technical support of Lafarge in the design and
management of capital projects
- have access to the expertise of Lafarge for technical audits of
Lafarge Corporation's production facilities and facilities to be
evaluated within the framework of acquisitions and new business
ventures
- be involved in the benchmarking at the Division level
- be provided by Lafarge with reports, formulas, specifications and
written descriptions
- have access to the database on equipment suppliers
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- have the possibility to attend meetings specific to the areas listed
above that will be organized by the Division
3.3 Filing of Patents
Any research and development conducted within the scope of this agreement
may lead to the filling of patents.
In order to avoid the inconveniences of co-ownership, such patents shall be
filed by Lafarge but Lafarge Corporation shall have a royalty-free,
perpetual, and exclusive license on these patents for its Territory with the
possibility and right of granting sub-licenses to U.S. subsidiaries. The
cost of filing such patents in the Territory shall be reimbursed by Lafarge
Corporation to Lafarge.
Lafarge Corporation covenants and agrees to execute promptly any and all
papers, certificates and documents and to perform whatever lawful acts may
be deemed necessary by Lafarge in connection with the filing of any such
patents in the Territory, or that may be necessary or desirable to effect
and maintain Lafarge rights in all such patents.
If Lafarge refuses to file a patent resulting from research and development
conducted within the scope of this agreement, Lafarge Corporation shall be
entitled to proceed with the filing of such patent in its Territory, subject
to the granting to Lafarge, at Lafarge request, of the royalty-free,
perpetual and exclusive license for France, and being then entitled to grant
sub-licenses to French subsidiaries. The costs associated with granting to
Lafarge such license for France shall be borne by Lafarge.
Lafarge covenants and agrees to execute promptly any and all papers,
certificates and documents and to perform whatever lawful acts may be deemed
necessary by Lafarge Corporation in connection with the filing of any such
patent in the Territory or that may be necessary or desirable to effect and
maintain Lafarge Corporation rights in all such patents.
3.4 Acquisition of Patents or Licenses
Should one of the parties hereto wish to acquire a patent or license related
to the subject of this agreement under a patent filed by a Third Party, it
will be allowed to do so directly but shall grant to the other party the
right of obtaining a license as provided in section 3.3 hereof, to the
extent that such patent and/or licenses can be lawfully licensed or
sub-licenses.
4 - MARKETING AND STRATEGIC PLANNING
Lafarge Corporation will have access to the database of Lafarge so as to
obtain information on:
- market positions of competitors in various countries
- information on competitor plants
- structure and trends of gypsum based products consumption in various
markets
- general information and trends on construction activity by country
- information on construction industry players by country (distributors,
applicators, contractors, licensers, administration)
- marketing strategies in various markets
- marketing strategies by product (commercial and under development)
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- other information related to the gypsum business
In additions, Lafarge Corporation will have access to reports, commercial
brochures and samples. Lafarge Corporation personnel will have the
possibility to attend meetings that will be organized by the Division on the
areas above listed.
5 - INFORMATION TECHNOLOGY (MIS)
Lafarge will provide Lafarge Corporation with technical support on the
implementation of software system as well as application support.
6 - TRAINING OF PERSONNEL
Upon request from Lafarge Corporation, the appropriate department(s) of
Lafarge, in order to facilitate the use by Lafarge Corporation of the
results of the research and development, will organize collective or
individual training sessions in connection with products, conception, design
and running of plants and marketing, according to terms and conditions to be
determined by the parties hereto.
Lafarge shall ensure that Lafarge Corporation technicians have free access
to Lafarge Technical Departments and to all documentation.
7 - HUMAN RESOURCES AND COMMUNICATIONS
Lafarge Human Resources Department shall, at the request of Lafarge
Corporation:
- provide Lafarge Corporation with technical personnel capable of
developing know-how in the field of production of the Products,
processes, equipment or plant design;
- provide Lafarge Corporation with plant managers, engineers and
technicians capable of ensuring that Lafarge Corporation gypsum plants
operate on the highest technical level;
- provide Lafarge Corporation with fully trained executives in other
management fields such as finance, M.I.S, planning and general
management for gypsum activities;
- provide job opportunities to Lafarge Corporation personnel either in
Lafarge corporate staff or gypsum plants or any subsidiary in France
or elsewhere;
- assist Lafarge Corporation in employee involvement programs and
internal communication for gypsum activities;
- provide Lafarge Corporation with information on remuneration and
fringe benefits systems, and job and performance measurement systems
that correspond to practices specific to the management of gypsum
activities;
A specific channel of internal communication will be established between
Lafarge Corporation and the Division for exchange of organization
announcements and internal publications distributed to gypsum activity
personnel.
8 - FEES AND EXPENSES
In consideration for the technical assistance to be received under this
agreement, Lafarge Corporation will pay to Lafarge an annual fee equal to
USD 1,000,000.
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This fee will be paid to Lafarge in quarterly installments no later than the
thirtieth day after the end of each calendar term.
Payments above will be invoiced by Lafarge to Lafarge Corporation in French
Francs converted from U.S. dollars at the average exchange rate for the
quarter. They will be effected by wire transfer to Lafarge in Paris France.
Lafarge Corporation shall pay all transportation and lodging expenses
incurred by any of its employees staying in France in application of article
6 (training).
Lafarge will supply annually to the President of Lafarge Gypsum and Lafarge
Corporation's management with information to assist in the preparation of a
marketing and technical assistance report which will be presented to the
Audit Committee of Lafarge Corporation.
9 - COMMENCEMENT DATE AND DURATION OF THIS AGREEMENT
This agreement is entered into for a period of two years beginning as of
October 1, 1996.
This agreement shall, after this two year period, be tacitly renewed from
year to year but each party may terminate this agreement at the end of each
annual period of renewal subject to a six month notice.
The parties acknowledge that it is likely that certain modifications to this
agreement will be necessary or desirable after two years of experience
thereunder, and the parties agree to negotiate such modifications, if any,
at least six months prior to the end of initial two year term.
10 - CONSULTANTS
The rights provided to Lafarge Corporation under this agreement include
access to Lafarge regular consultants for usual consultation but include
neither specific works requested from these consultants, nor any
interventions of any other consultants or outside organization, even if
proposed by Lafarge to Lafarge Corporation.
11 - CONFIDENTIALITY
All parties commit themselves and their personnel not to divulge, in any
manner whatsoever, any technical or other information which is the subject
of this agreement and to preserve its confidential status, if any.
Lafarge Corporation hereby covenants and agrees that no information given by
or on behalf of Lafarge in the manner hereinabove described or otherwise,
shall be disclosed to anyone outside its respective organization without the
prior consent of Lafarge and that such information shall be disclosed only
to employees of Lafarge Corporation who are responsible for gypsum
operations, as the case may be, who have first been properly instructed to
maintain such information in confidence.
Such confidentiality shall be maintained in the event of termination of this
agreement as long as the most recent patent, in the case of patented
processes, and shall be maintained for five (5) years following its
termination in the case of non patented processes.
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Should Lafarge or Lafarge Corporation discover that the techniques on which
they are cooperating are being counterfeited, each party hereof agrees to
inform the other and to use their best efforts to stop such illegal actions.
Notwithstanding the foregoing, confidential information as described in this
article 12 shall not include information that:
(a) is or hereafter becomes publicly known, other than through the fault
of or breach of this agreement by the recipient of the information;
(b) is disclosed to the recipient by a third party in good faith and not
in breach of any agreement or other obligation of confidentiality;
(c) is required by law to be disclosed in connection with a judicial or
governmental action, investigation or other proceeding.
12 - LIABILITY
Notwithstanding the assistance or advice received by Lafarge Corporation
from Lafarge hereof in connection with this agreement, Lafarge Corporation
shall remain fully liable for the decisions and actions made within the
scope of this agreement.
13 - NOTICES
Any notice required to be given under this agreement shall be in writing and
shall be sent by certified or registered mail, or its equivalent, postage
prepaid, or sent by telex, addressed to each party as follows:
to Lafarge Lafarge
00, xxx xxx Xxxxxx-Xxxxxxxx
00000 Xxxxx
Xxxxxx
Attention: Direction des Affaires Juridiques
to Lafarge Corporation Lafarge Corporation
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
XXX
Attention: V.P Legal Affairs
14 - GOVERNING LAW
This agreement shall be interpreted and construed in accordance with the
laws of the Helvetic Confederation.
15 - ARBITRATION
All disputes, differences, or questions between the parties concerning the
construction, interpretation, and effect of this agreement or any clause
herein contained, or the rights and liabilities of the parties shall be
settled in the Canton of Geneva, in accordance with the Rules of Arbitration
of the Chamber of Commerce and Industry of Geneva dated January 1, 1992.
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16 - ASSIGNMENT
This agreement may not be assigned or transferred by Lafarge or Lafarge
Corporation without prior written consent of the other party. Such consent
shall not be unreasonably withheld.
17 - NO AFFILIATIONS
Nothing in this agreement shall be construed to create between the parties a
partnership, association, joint-venture, or agency.
18 - WAIVERS
Failure of any party to require strict performance of any term of this
agreement shall not affect that party's right to fully enforce the same, nor
shall any waiver of a default be construed to be a waiver of any succeeding
default.
19 - PROVISIONS SEVERABLE
If any term or provision of this agreement shall be held or adjudged
illegal, invalid or unenforceable by any court having jurisdiction, such
shall not affect the validity of any other term or provision hereof, and
such illegal, invalid or unenforceable term or provision shall be deemed to
be separate and shall be deleted from this agreement.
20 - BINDING AGREEMENT
This agreement shall be binding upon and inure to the benefit of the
parties, their successors and assigns to the extent that this agreement is
assignable by its terms.
21 - AUTHORITY TO CONTRACT; COUNTERPARTS
Each of the parties covenants that this agreement is executed under
authority duly granted by its Board of Directors or other entity having
power and capacity to grant such authority. This agreement has been signed
in two counterparts, each of which shall be deemed an original.
22 - COST OF LITIGATION
In the event of any dispute arising as the result of the breach or alleged
breach of any term of this agreement, and if such dispute is taken by any
party to court, the successful party in any such court action shall be
entitled in addition to any damages suffered, to receive all of the costs of
suit including, without limiting the generality of the foregoing, reasonable
attorney fees and experts fees, the cost of exhibits and the preparation
thereof, and all other costs incident to such litigation.
23 - HEADING
Caption headings are for convenience of reference only.
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24 - TERRITORY
The rights provided to Lafarge Corporation under this agreement shall be only
for use in the Territory.
In witness whereof, the parties have signed this agreement, this 6th day of
November 1996.
LAFARGE LAFARGE CORPORATION
by: /s/ XXXX-XXXXXX CLOISEAU BY: /s/ XXXX XXXXXXX
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Xxxx Xxxxxx Cloiseau Xxxx Xxxxxxx
Vice-President, Finance President & Chief Executive
Officer
