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JOINT MARKETING AGREEMENT
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XXXXXXXX RUOTE SPA
-and-
ACCURIDE CORPORATION
Dated: November 16, 2000
JOINT MARKETING AGREEMENT
THIS JOINT MARKETING AGREEMENT (the "AGREEMENT") is made as of the 16th day of
November, 2000 by and between XXXXXXXX RUOTE SPA, a corporation having its
principal place of business at Xxx Xxxxxxxxxxxx 00, 00000 Xxxxxxx Xxxxxxxx
(Xxxxxx) Xxxxx, ("XXXXXXXX RUOTE") and ACCURIDE CORPORATION, a Delaware
corporation having its principal place of business at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxx, XXX ("ACCURIDE") (Xxxxxxxx and Accuride are hereinafter
referred to individually as a "party" and collectively as the "parties").
RECITALS
(A) Xxxxxxxx Ruote is a leading O.E.M. (Original Equipment Manufacturer) of
heavy vehicle steel wheels in Europe and Accuride is a leading O.E.M
(Original Equipment Manufacturer) of heavy wheels in North America.
(B) The parties have entered into a letter of understanding, dated as of August
4, 2000, which provides, among other things that the parties will enter
into this Agreement.
(C) The parties believe that this Agreement will provide opportunities for the
more successful competitive marketing of their products worldwide to their
mutual benefit, through enabling them, among other things, to provide a
single source for their customers global needs.
(D) In particular the parties believe that this Agreement will enable both
companies to compete on a global basis in the o.e. (original equipment)
market for heavy wheels and, in particular, to respond to the increasing
number of global tenders for such product.
(E) The parties intend to establish a Steering Committee to direct the joint
marketing efforts contemplated by this Agreement.
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NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
In this Agreement unless otherwise specified, reference to:-
(a) "Steering Committee" shall mean the Committee established under clause
3.3 below;
(b) the "Effective Date" means the date of this Agreement;
(c) "OEM" means Original Equipment Manufacturers
(d) "o.e." means original equipment. It shall be used in opposition to the
word "A.M." (Aftermarket) to indicate the specific destination of the
products, that is the market of original equipment products (o.e.)
opposed to the market of spare parts (A.M.).
(e) "A.M." means Aftermarket. It is used to indicate the destination of
the products to the market of spare parts in opposition to the o.e.
(original equipment) market
(f) a party means a party to this Agreement and includes its permitted
assignees and/or the successors in title to substantially the whole of
its undertaking;
(g) a person includes any person, individual, company, firm, corporation,
government, state or agency of a state or any undertaking (whether or
not having separate legal personality and irrespective of the
jurisdiction in or under the law of which it was incorporated or
exists);
(h) reference to recitals, clauses, paragraphs or schedules are to
recitals, clauses and paragraphs of and schedules to this Agreement.
The recitals and schedules hereto form part of the operative
provisions of this Agreement and references to this Agreement shall,
unless the context otherwise requires, include references to the
recitals and the schedules;
(i) writing shall include typewriting, printing, lithography, photography
and other modes of representing words in a legible form other than
writing stored in electronic or magnetic form or displayed on an
electronic or visual display screen or in other transitory form;
(j) words denoting the singular shall include the plural and vice versa
and words denoting any gender shall include all genders.
The index to and the headings in this Agreement are for information only and are
to be ignored in construing the same.
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2. JOINT MARKETING UNDERTAKING
2.1 PURPOSE
Each of Xxxxxxxx Ruote and Accuride agree to enter into mutually agreed
upon activities in order to meet the global needs of their OEM and A.M.
customers for heavy wheels and other agreed upon marketing objectives. The
activities to be undertaken shall be determined by the Steering Committee
as set forth in Section 3.3.
2.2 REASONABLE EFFORTS
Each of Xxxxxxxx Ruote and Accuride shall carry out the respective tasks
and discharge the respective responsibilities assigned to them as set out
below in furtherance of this Agreement to be implemented by them under the
auspices of this Agreement. Wherever the fulfilment or performance of any
obligation undertaken by either or both of the parties is dependent on the
decision of, or co-operation from, a third party none of the parties shall
be liable to the other if each of the parties shall have used their
respective best endeavours to secure a favourable decision from a such
third party or, as the case may be, obtain the required co-operation.
3. MARKETING; JOINT BIDS; MANAGEMENT
3.1 MARKETING
Each of the parties shall earnestly and diligently co- operate in the joint
marketing, in such party's existing sales territory, of the other parties
products, primarily with the goal of making joint global bids to OEM's who
require heavy wheels. In that regard, each party will do the following:
(a) develop a basic understanding of each other's services and products;
(b) provide training to each other's personnel;
(c) issue a joint press announcement describing this relationship;
(d) seek joint or co-operative marketing opportunities, such as joint
sales presentations, joint proposals and shared public relations;
(e) exchange customer lists, including customer name, address, primary
contact and telephone number;
(f) identify and pre-qualify prospective customers, and determine the
suitability of the parties' products for customers and prospective
customers;
(g) generate interest in prospective customers for their respective
products;
(h) visit prospective customers;
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(i) introduce representatives of the other party to the decision- making
executives of prospective customers;
(j) participate in joint presentations and develop joint bids to customers
and prospective customers for the supply of their respective products;
(k) keep each other informed on progress with prospects, and on new
services and products;
(l) refer to the other's services or products in appropriate trade
advertising, marketing literature, new product announcements and
promotional materials;
(m) use commercially reasonable efforts to develop or maintain a capacity
to manufacture their respective products to satisfy demand;
(n) appoint two (2) senior persons employed or engaged by them and with
relevant industry experience to serve on the Steering Committee; and
(o) perform its activities under this Agreement and conduct its business
in a professional manner consistent with the business, good standing
and reputation of both parties.
3.2 JOINT BIDS AND SALES RECEIPTS
Each party shall be responsible for supplying products sold under contract,
pursuant either to a joint or individual bid, in its respective Territory,
and shall be entitled to the sales receipts therefrom without obligation to
share such receipts with or otherwise compensate the other for such sales.
3.3 STEERING COMMITTEE MEETINGS AND FUNCTION
The Steering Committee, by unanimous vote, shall agree upon the activities
to be undertaken pursuant to this Agreement. The Steering Committee shall
consist of two appointees of Xxxxxxxx and two appointees of Accuride, who
may be appointed and removed by the will of the party appointing them. The
Committee shall hold quarterly (or as otherwise agreed) meetings to discuss
the business relationship at a location to be determined by the Committee.
At these meetings, the parties will:
(a) discuss issues related to marketing support and marketing
communications;
(b) discuss and evaluate each of the marketing tasks and objectives set
forth in clause 3.1 of this Agreement;
(c) determine the most efficient methods to service the sales, or
potential sales, of the parties' products within and outside the
existing sales territories of the parties;
(d) schedule on-site visits of management and technical personnel in order
to avoid or minimise disruption of business operations or production
schedules; and
(e) co-ordinate and schedule meetings of each party's technical personnel.
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4. INDEMNIFICATION
4.1 INDEMNIFICATION OBLIGATION
Each party shall be responsible for its own activity against any third
party. In particular, each party shall be responsible for any losses,
damages, liability or expense arising out of its products. As a result,
each party (the "INDEMNITOR") shall indemnify, defend and hold harmless the
other and its officers, directors, employees and agents and their
respective successors, legal representatives, heirs and assigns (the
"INDEMNITEES"), against any liability, damage, loss, or expense (including
reasonable attorneys' fees and expenses of litigation) incurred by or
imposed upon the Indemnitees or any one of them in connection with any
third party claim, suits, actions, demands or judgements:
(a) as a result of or in connection with the conduct of the Indemnitor's
business, including actions taken or representations made by in
connection with its performance of this Agreement; or
(b) arising out of the condition, character or quality of any product or
service sold by the Indemnitor, including those based in any theory of
product liability, including, but not limited to, actions in the form
of tort, warranty, or strict liability, concerning any of the
Indemnitor's products or products made, used or sold by the
Indemnitor, its Subsidiaries.
4.2 EXCEPTIONS
The indemnification obligation under clause 4.1 shall not apply to any
liability, damage, loss or expense to the extent that it is directly
attributable to the gross negligence or wilful misconduct of the
Indemnitees.
5. CONFIDENTIAL INFORMATION
5.1 CONFIDENTIAL INFORMATION
Each party shall hold in confidence, and shall use solely for purposes of
or provided in this Agreement any confidential or proprietary information
("CONFIDENTIAL INFORMATION") received by it from the other or derived from
Confidential Information received from the other, and shall protect the
confidentiality of such with the same degree of care that it exercises with
respect to its own information of like import, but in no event less than
reasonable care. This clause 5.1 shall survive termination of this
Agreement for a period of 5 years.
5.2 EXCEPTIONS
The obligations of clause 5.1 shall not apply to any portion of the
Confidential Information which:
(a) is now or which hereafter, through no act or failure to act on the
part of the receiving party, becomes generally known in the heavy
and/or light wheel industry;
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(b) is hereafter furnished to the receiving party by a third party without
obligation to keep such information confidential;
(c) is independently developed by the receiving party without the use of
the Confidential Information;
(d) is required to be disclosed pursuant to a legal, judicial or
administrative procedure or otherwise required by law;
(e) is already in the possession of, or known to, the receiving party
prior to its receipt; or
(f) is approved for release or use without restriction by written
authorization of an officer of the disclosing party.
Subject to the requirements of clause 5.1, hereof, the receiving party may
disclose appropriate portions of Confidential Information to its employees
who have a need to know the specific information in question, and to
subsidiaries, affiliates, representatives, agents, auditors, lenders and
regulators having a need or right to know. No Confidential Information
shall be disclosed to any third party by a receiving party without the
prior written consent of the other party.
5.3 RETURNING CONFIDENTIAL INFORMATION
In case of termination of this Agreement the parties shall immediately
cease to use all the Confidential Information and within thirty (30) days
shall return all materials of any kind containing Confidential Information
of the other party to that party.
5.4 INJUNCTION
Confidential Information has been and will continue to be of central
importance to the business of a disclosing party and its disclosure to or
use by others will cause immediate and irreparable injury to the disclosing
party, which may not be adequately compensated by damages and for which
there is no adequate remedy at law. In the event of any actual or
threatened misappropriation or disclosure of Confidential Information, the
receiving party agrees that the disclosing party will be entitled to an
injunction prohibiting such misappropriation or disclosure, and to specific
enforcement of the receiving party's obligations hereunder. The foregoing
rights to an injunction and specific performance will be cumulative and in
addition to every other remedy now or hereafter available to disclosing
party in law or equity or by statute.
5.5 LIMITATION OF LIABILITY
In no event shall either party be liable for any lost revenues or profits
or other special, indirect, consequential or punitive damages arising out
of this Agreement, even if that party has been advised of the possibility
of such damages, and regardless of whether any remedy set forth herein
fails of its essential purpose.
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6. FEES AND EXPENSES
Each party shall bear its own costs fees and expenses incurred in
negotiating, entering into and implementing this Agreement.
7. DISPUTE RESOLUTION
7.1 DISPUTES
All claims, disputes and other matters in controversy (herein called
"DISPUTE") arising directly or indirectly out of or related to this
Agreement, or the breach thereof, whether contractual or non-contractual,
and whether during the term or after the termination of this Agreement,
shall be resolved exclusively according to the procedures set forth in this
clause 7.
7.2 RESOLUTION
The parties shall attempt to settle any dispute, claim or controversy
arising out of this Agreement through consultation and negotiation in good
faith and in a spirit of mutual co-operation. The primary forum for the
settlement of matters arising hereunder shall be through the Steering
Committee provided for above which shall meet within fifteen (15) days of
notification of a dispute by one of them. If the dispute is not resolved
within five (5) days of such meeting (or sixteen (16) days should a meeting
of such persons have not occurred for any reason), either party may refer
the matter to the chief executives of each party. If the Steering Committee
fails to produce a solution accepted by the parties affected by the matter
in question then the following procedures shall be adhered to by the
parties:
(a) the respective chief executives of the affected parties shall attempt
to resolve the dispute by meeting fully briefed on the issues and
discussing the possible solutions and if possible agreeing on a
solution or procedure for a solution (which may include one of the
further steps set out below). The chief executives shall be obliged to
meet for this purpose within thirty (30) days of notification of
dispute;
(b) if a meeting of chief executives does not lead to a solution. any one
of such chief executives may require that the dispute shall be
mediated by an international expert of standing and repute in the
field of the subject matter of the dispute, selected from a panel of
mediators proposed by the Centre for Dispute Resolution (CEDR) in the
United Kingdom. The parties agree to co-operate and participate with
the mediation process by making available, promptly and adequately
resourced and available senior executives and adhering to the
processes proposed by such mediator. Costs of the mediator shall be
borne equally by the parties to the dispute; other costs shall be
borne by the party incurring them. The mediator shall be selected by
agreement, not to be delayed or withheld;
(c) if agreement or solution is not reached within ninety (90) days of
commencement of mediation process or if agreement is not reached on
the selection of a mediator, the matter in dispute shall be referred
for final solution by arbitration in London, England under the
arbitration rules of the International Chamber of Commerce by a single
arbitrator agreed between the parties or failing such agreement within
thirty (30) days, by a panel of three arbitrators, of whom one shall
be appointed by
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Xxxxxxxx Ruote, one shall be appointed by Accuride, and the third
shall be appointed by the other two, save that if no agreement is
reached by them on the third within thirty (30) days, the third shall
be appointed by the President (or equivalent officer) for the time
being of the International Chamber of Commerce.
7.3 NO PUNITIVE DAMAGES, FEES
Under no circumstances shall the arbitrator(s) have any authority to award
punitive damages. Judgement on the arbitrator's award may then be entered
in any court which has proper jurisdiction. The prevailing party shall be
entitled to reimbursement of attorneys' and other fees incurred in
satisfying its judgement.
7.4 RIGHTS OF PARTIES
The use of any of the above procedures shall not be construed under the
doctrine of laches, waiver or estoppel to affect adversely the right of
either party, and nothing in this section shall prevent either party from
resorting to judicial proceedings if:
(a) good faith efforts to resolve the dispute under these procedures have
been unsuccessful; or
(b) interim relief from a court is necessary to prevent serious and
irreparable injury to one party or to others.
8. COMMUNICATION AND NOTICES
All communication between the parties shall be in English. All notices,
requests, demands and other communications required or permitted hereunder
shall be deemed to have been duly given if delivered or mailed by certified
or registered airmail with postage prepaid or sent by telex, telegram,
cable or facsimile or other electronic transmission (confirmed by such
airmail, provided that the failure so to confirm shall not affect the
validity of such communications) addressed as follows:
IF TO XXXXXXXX RUOTE:
Address: Xxx Xxxxxxxxxxxx 00
00000 Xxxxxxx Xxxxxxxx (Xxxxxx)
Xxxxx
Fax No: 00-000-000-0000
For the Xxxxxxxxx Xxxxxxxx, Deputy General
attention of: Manager
IF TO ACCURIDE:
Address: 0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax No: (000) 000-0000
For the Xxxxx X. Xxxxxxxxx
attention of: Senior Vice President & General Counsel
A party shall notify the other party to this Agreement of a change to its
name, relevant addressee, address or fax number.
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9. DURATION
9.1 INITIAL PERIOD
This Agreement shall commence as of the Effective Date and expire upon the
third (3rd) anniversary of the Effective Date ("INITIAL PERIOD"), unless
sooner terminated as provided in clause 9.3.
9.2 EXTENSIONS
This Agreement shall be automatically extended for additional two (2) year
periods following the Initial Period. In the event that a party intends not
to extend this Agreement at the end of the Initial Period or an extension
of the Initial Period ("EXTENDED PERIOD"), it shall give the other party
notice of such intention not later than three (3) months prior to the
expiration of the Extended Period then in effect.
9.3 OTHER
Either party may terminate this Agreement at any time by giving one hundred
eighty (180) days advance notice of termination in writing to the other.
10. GENERAL
10.1 AGREEMENT
The provisions of this Agreement shall be binding upon and shall survive
for the benefit of the parties and their respective successors and
permitted assigns, subject, however, to the provisions regarding assignment
set out below.
10.2 SEVERABILITY
In the event that any provision or any portion of any provision contained
in this Agreement is unenforceable, the remaining provisions and, in the
event that a portion of any provision is unenforceable, the remaining
portion of such provision, shall nevertheless be carried into effect.
10.3 NO WAIVER
The failure of either party to enforce at any time or for any period of
time the provisions of this Agreement shall not be construed as a waiver of
such provision or of the right of such party thereafter to enforce each and
every such provision of this Agreement.
10.4 FURTHER ASSURANCES
Each party shall perform all such acts and execute and deliver all such
instruments, documents and writings as may be reasonable required to give
full effect to this Agreement.
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10.5 AMENDMENT
Except as otherwise provided herein, this Agreement can only be modified
by written agreement duly signed by persons authorized to sign agreements
on behalf of Xxxxxxxx and Accuride.
10.6 ASSIGNMENT
This Agreement shall be binding on the parties hereto, but shall not be
assignable by either party without the consent of the other party, which
consent shall not be unreasonably withheld, except that no consent shall
be required in the event of a transfer of substantially the entire
business of either party to which this Agreement pertains.
10.7 CHOICE OF LAW
This Agreement is made under and shall be governed by and construed in
accordance with the laws of the United Kingdom.
10.8 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
will be deemed an original, but all of which constitute but one and the
same instrument.
10.9 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof, and supersedes and replaces all
prior or contemporaneous understandings or agreements, written or oral,
regarding such subject matter. This Agreement will be fairly interpreted
in accordance with its terms and without any strict construction in favor
of or against either party.
10.10 FORCE MAJEURE
Neither party will be liable to the other for delays in or partial or
total failure of performance due to causes beyond such party's reasonable
control, including, but not limited to mandatory law, acts of God, acts or
omissions of civil or military authority, any rule, regulation or orders
issued by any governmental authority or by any officer, department, agency
or instrumentality thereof, fires, floods, epidemics, war, embargo, riots
or national company strikes or lockouts and other causes beyond the
control of the affected party.
10.11 HEADINGS
The headings and captions in this Agreement are used for convenience only
and are not to be considered in construing or interpreting this Agreement.
10.12 NO RIGHTS IN THIRD PARTIES
This Agreement is made for the benefit of the parties, and not for the
benefit of any third parties unless otherwise agreed to by the parties.
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10.13 NOTICES
All notices required hereunder must be in writing and delivered either in
person or by a means evidenced by a delivery receipt, to the address first
set forth above or as otherwise notified in writing. Such notice will be
effective upon receipt.
10.14 RELATIONSHIP OF THE PARTIES
No employees, consultants, contractors, or agents of one party are agents,
employees, franchisees of the other party, nor do they have any authority
to bind the other party by contract or otherwise to any obligation. No
party will represent to the contrary, either expressly, implicitly, or
otherwise. No partnership (as that term is understood in law) is or is
intended to be created by this Agreement or as a result of its
implementation.
10.15 TRANSLATION
This Agreement may be translated into the Italian language for the
convenience of the parties, provided, however, that in all events the
English language text of this Agreement, as executed by or on behalf of
each party hereto, shall constitute the governing text.
10.16 NON-EXCLUSIVE
Nothing in this Agreement is intended to prevent or prohibit either of the
parties from (i) entering into any commercial or other business
relationship with any other person or entity which may conflict with the
purposes of this Agreement, or (ii) expanding its or its Subsidiaries'
existing sales territory of its products into the existing sales territory
of the other party, or otherwise competing with the other party in the
sale of heavy wheels or otherwise.
IN WITNESS whereof this Agreement has been entered into the day and year first
above written.
XXXXXXXX RUOTE SPA
By: /s/ X. Xxxxxx Magnetto
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Its: Managing Director
ACCURIDE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Its: President
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