Exhibit 99.4(p)
STRATEGIC ALLIANCE AGREEMENT
THIS STRATEGIC ALLIANCE AGREEMENT, is made and entered into this _____ day
of January, 2000 (the "Alliance Agreement"), by and between WORLDWIDE DEDICATED
SERVICES, INC., a Delaware corporation ("WDS"), UPS LOGISTICS GROUP, INC., a
Delaware corporation ("Logistics"), which is a wholly owned subsidiary of United
Parcel Service of America, Inc. ("United Parcel") which is a wholly owned
subsidiary of United Parcel Service, Inc., a Delaware corporation ("UPS"),
XXXXXXX LEASING CORP., a Delaware corporation ("Xxxxxxx"), and XXXXXXX TRUCK
LEASING CORP., a Delaware corporation ("RTL", and together with WDS, Logistics
and Xxxxxxx sometimes referred to herein individually as a "Party" and
collectively as the "Parties").
W I T N E S S E T H:
WHEREAS, WDS is engaged in the business of providing vehicles, drivers,
dispatch services and route planning for customers;
WHEREAS, prior to the execution and delivery of this Alliance Agreement,
UPS Truck Leasing, Inc. ("UPS Truck Leasing"), a wholly owned subsidiary of
Logistics, had supplied WDS with vehicles and certain maintenance services used
in connection with its business;
WHEREAS, simultaneously with the execution and delivery of this Alliance
Agreement, Xxxxxxx and UPS have consummated the transactions under a Stock
Purchase Agreement (the "Stock Purchase Agreement"), pursuant to which UPS Truck
Leasing has been transferred to Xxxxxxx;
WHEREAS, prior to the execution and delivery of this Alliance Agreement,
Xxxxxxx had been engaged in a logistics management and dedicated logistics
business through Xxxxxxx Logistics, Inc. ("Xxxxxxx Logistics");
WHEREAS, simultaneously with the execution and delivery of this Alliance
Agreement, certain Affiliates of Xxxxxxx and Logistics have consummated an Asset
Purchase Agreement (the "Logistics Agreement"), pursuant to which an Affiliate
of Logistics has purchased substantially all of the assets of Xxxxxxx Logistics;
WHEREAS, WDS and Xxxxxxx have agreed to form a strategic alliance (the
"Alliance") that, based on the terms of this Alliance Agreement, will promote
the Logistics Group as the preferred provider of logistics management and
dedicated logistics services to customers of Xxxxxxx' truck leasing services and
will promote Xxxxxxx as the preferred provider of truck leasing and related
services to customers of WDS's dedicated logistics services; and
WHEREAS, WDS and Xxxxxxx are entering into this Alliance Agreement in order
to provide a flexible and effective framework to govern the Alliance, and
Logistics and RTL are
entering into this Agreement for the purpose of extending the brand licenses
referred to in Sections 4.5 and 4.6.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. The following defined terms used in this Alliance
Agreement will have the meanings specified below.
"Affiliate" shall mean, with respect to any Person, (i) any Person directly
or indirectly controlling, controlled by or under common control with such
Person, (ii) any officer, director, general partner, managing member or trustee
of such Person, or (iii) any Person who is an officer, director, general
partner, managing member or trustee of any Person described in clauses (i) or
(ii) of this sentence. For purposes of this definition, the term "control,"
(including, with correlative meanings, the terms "controlling," "controlled by"
or "under common control with") means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise. Notwithstanding any implication to the contrary contained in this
definition, for purposes of this Agreement, the following entities will not be
deemed to be Affiliates of Xxxxxxx: Xxxxxxx Systems, Inc.; Dover Downs
Entertainment, Inc.; Xxxxxxx, Inc.; and RPC, Inc.
"Alliance" shall have the meaning set forth in the recitals to this
Alliance Agreement.
"Business Day" shall mean any day other than a Saturday, Sunday or day on
which banks are authorized to be closed under the laws of the State of Georgia.
"Business Plan" shall mean the annual initial Business Plan and each
subsequent business plan, substantially in the form of Exhibit A hereto, as
revised from time to time during the Term in accordance with Article 4.
"Change in Control" shall mean (a) the consolidation or merger of the
subject corporation with or into any organization (other than a consolidation or
merger in which the subject corporation is the surviving corporation in such
consolidation or merger unless such consolidation or merger has the effect of an
acquisition of ownership referred to in (c) hereof), (b) the direct or indirect
sale, transfer or other disposition of all or substantially all of the subject
corporation's assets, in a single transaction or a series of related
transactions, (c) the direct or indirect acquisition by an entity, or group of
entities acting in concert, of beneficial ownership of more than 25% of the
outstanding voting securities of the subject corporation in a single
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transaction or a series of related transactions, excluding acquisitions by
Xxxxxxx family members, existing officers or directors of Xxxxxxx, or trusts
established by any of them.
"Committee Member" shall have the meaning set forth in Section 3.1 hereof.
"Joint Planning Committee" shall have the meaning set forth in Section 3.1
hereof.
"Logistics Group" shall mean Logistics and any directly or indirectly held
wholly-owned subsidiary of Logistics that provides Logistics Services as of the
date hereof.
"Logistics Services" shall mean and include the following services:
(i) Warehousing, building and/or leasing facilities, labeling,
receiving, inspection, sorting, parts kitting, order, returns and repairs
management, service parts management, supply chain engineering, inventory
management, and billing and receivables management;
(ii) Domestic and international intermodal or multimodal surface, air,
and sea transport management, pick-up and delivery of consignments, track and
trace inventory systems management, and export/import customs clearance; and
(iii) Software systems planning, development, management, application,
maintenance, upgrade, systems integration, and systems procedure related to
warehousing and transportation.
"Person" shall mean an individual, partnership, association, limited
liability company, corporation, joint venture, sole proprietorship, trust or
other entity.
"Xxxxxxx Group" shall mean Xxxxxxx and any directly or indirectly held
wholly-owned subsidiary of Xxxxxxx that provides Truck Leasing Services as of
the date hereof.
"Term" shall have the meaning set forth in Section 5.1 hereof.
"Territory" shall mean North America.
"Truck Leasing Services" shall mean and include long and short term vehicle
leasing, vehicle rental, vehicle maintenance, washing, emergency road services,
and ancillary services such as permitting, licensing and may include fueling and
fuel tax reporting (based on mutual agreement of the Parties), but shall not
include the provision of drivers for the vehicles.
ARTICLE 2
ALLIANCE SERVICES
2.1 Purpose. WDS and Xxxxxxx desire to enter into and create the Alliance
in order to achieve the following goals:
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(a) To provide Xxxxxxx with a stream of revenues from the provision of
Truck Leasing Services to WDS and its customers of Logistics Services.
(b) To promote the Logistics Group as the preferred provider of
Logistics Services to the Xxxxxxx Group and their respective customers of
Truck Leasing Services.
(c) To promote Xxxxxxx as the preferred provider of Truck Leasing
Services to customers of WDS's dedicated Logistics Services.
(d) To work together to achieve growth in the Logistics Group's
Logistics Services business and Xxxxxxx' Truck Leasing Services business.
(e) To provide the customers of each of WDS and Xxxxxxx with the best
services and solutions to meet their truck leasing and logistics needs at
competitive rates.
1.2 Provision of the Truck Leasing Services.
(a) During the Term, Xxxxxxx will be the preferred provider of Truck
Leasing Services to WDS, and to the customers of WDS to whom WDS provides
Logistics Services, to the extent necessary to meet their respective
requirements for Truck Leasing Services. In connection with the foregoing,
and except as provided in Section 2.2(b) below, WDS will cause the members
of the Logistics Group to refer to Xxxxxxx all inquiries they receive from
logistics customers seeking Truck Leasing Services. Whenever reasonably
practicable, WDS shall promote the Alliance by referring to its "alliance"
or "partnership" with Xxxxxxx as the "preferred provider of Truck Leasing
Services" to the customers of WDS. Without limiting the generality of the
foregoing, unless otherwise agreed upon by the Xxxxxxx Committee Member,
proposals by WDS to customers seeking Logistics Services will include
references to Xxxxxxx as the preferred provider of Truck Leasing Services.
(b) Notwithstanding the provisions of Section 2.2(a) above, WDS shall
not be obligated under Section 2.2(a):
(i) to the extent a WDS customer has an existing obligation to a
provider of Truck Leasing Services other than Xxxxxxx that it is
unwilling to cancel or the cancellation of which would not be cost
effective;
(ii) where a provider of Truck Leasing Services other than
Xxxxxxx brings the customer to WDS;
(iii) where Xxxxxxx (or other member of the Xxxxxxx Group) is
unable or unwilling to provide the Truck Leasing Services;
(iv) where a significant benefit may be derived by a customer of
WDS from an alternative truck leasing solution, and Xxxxxxx has chosen
not to (or is unable to) deliver the customer's desired solution; or
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(v) where a WDS customer insists on an alternative truck leasing
solution, whether prior to or following discussions with Xxxxxxx.
With regard to Section 2.2(b)(iii) above, whether Xxxxxxx has an
existing facility in close enough proximity to properly service a WDS
customer at the time negotiations begin with such customer shall not be
determinative with respect to Xxxxxxx' ability to provide Truck Leasing
Services. If WDS offers a new business opportunity to Xxxxxxx (whether in
an area where Xxxxxxx does not have a facility in close enough proximity to
properly service the customer (as determined by WDS and Xxxxxxx or the
relevant customer) or otherwise), Xxxxxxx shall have seven Business Days to
(x) if applicable, determine whether it will commit to providing the
necessary facilities, and (y) notify WDS in writing of its determination to
provide such additional facilities and/or pursue negotiations with such
customer (it being understood that any failure of Xxxxxxx to so deliver
such written notice shall be deemed a decision by Xxxxxxx not to provide
Truck Leasing Services to such customer). Failure of Xxxxxxx to respond
within such seven Business Day period shall excuse WDS from its preferred
provider obligations with respect to such opportunity. For purposes of the
foregoing, the seven Business Day period shall begin once Xxxxxxx has been
given (or otherwise obtained) the following information concerning the
scope of the business opportunity in question: (A) the term of the relevant
commitment, (B) the number and type of vehicles involved, (C) the type of
cargo involved, (D) the frequency and duration of trips required to service
the business, (E) the expected mileage per vehicle and (F) if applicable,
notification that Xxxxxxx' existing facilities are not adequate.
(c) The Truck Leasing Services will be provided by Xxxxxxx to WDS and
its customers substantially in accordance with the terms of the contract
attached hereto as Exhibit B, with such changes as the Parties (or Xxxxxxx
and the customer, if applicable) shall mutually agree upon prior to the
execution of each contract to provide the Truck Leasing Services during the
Term. If the relevant parties cannot agree on changes requested by either
party with respect to a particular arrangement, the contract set forth as
Exhibit B shall govern the arrangement in question. All such contracts
shall be with WDS, and not with the customer, unless otherwise requested by
the relevant customer.
(d) The pricing for the provision of the Truck Leasing Services by
Xxxxxxx to WDS for the initial year of the Term shall be in accordance with
the pricing schedule attached hereto as Exhibit C. Following the initial
year, the Joint Planning Committee will oversee annual negotiation to
determine any adjustments to the pricing schedule for the subsequent years
during the Term, which adjustments will be based on changes in individual
cost components in accordance with the methodology set forth on Exhibit D
attached hereto. Notwithstanding the foregoing, in no event will the price
charged to WDS for Truck Leasing Services exceed the most favorable price
that Xxxxxxx charges to any third party for similar services. WDS and
Xxxxxxx will consider in good faith and discuss with each other from time
to time alternative pricing for Truck Leasing Services and Logistics
Services for the Parties to be competitive in bidding for certain projects.
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2.3 Dedicated Logistics.
(a) During the Term, WDS (directly or through its Affiliates) will be
the preferred provider of Logistics Services to members of the Xxxxxxx
Group, and to customers of the Xxxxxxx Group to whom members of the Xxxxxxx
Group provide Truck Leasing Services, to the extent necessary to meet their
respective requirements for Logistics Services. In connection with the
foregoing, and except as provided in Section 2.3(b) below, Xxxxxxx will
cause the members of the Xxxxxxx Group to refer to WDS all inquiries it
receives from its customers seeking Logistics Services. Whenever reasonably
practicable, members of the Xxxxxxx Group shall promote the Alliance by
referring to its "alliance" or "partnership" with the Logistics Group as
the "preferred provider of Logistics Services" to customers of the Xxxxxxx
Group.
(b) Notwithstanding the provisions of Section 2.3(a), no member of the
Xxxxxxx Group shall be obligated to comply with Section 2.3(a):
(i) to the extent the customer has an existing obligation to a
provider of Logistics Services other than WDS that it is unwilling to
cancel or the cancellation of which would not be cost effective;
(ii) where a provider of Logistics Services other than WDS brings
the customer to the Xxxxxxx Group;
(iii) where WDS (or other member of the Logistics Group) is
unable or unwilling to provide the Logistics Services;
(iv) where a significant benefit may be derived by a Xxxxxxx
Group customer from an alternative logistics solution, and WDS has
chosen not to (or is unable to) deliver the customer's desired
solution; or
(v) where a Xxxxxxx Group customer insists on an alternative
logistics solution (whether prior to or following discussions with
WDS).
When Xxxxxxx offers a new business opportunity to WDS, WDS shall have
seven Business Days to (x) determine whether it wishes to pursue
negotiations with the customer, (y) notify Xxxxxxx in writing of such
determination (it being understood that any failure of WDS to so notify
Xxxxxxx shall be deemed a determination not to pursue such negotiations,
and (z) if requested by the relevant customer, make appropriate personnel
available to begin negotiations). Failure of WDS to respond within such
seven Business Day period shall excuse Xxxxxxx from its preferred provider
obligations with respect to such opportunity. For purposes of this Section
2.3(b), the seven Business Day period shall begin once WDS has been given
(or otherwise obtained) reasonably sufficient information concerning the
scope of the business opportunity in question.
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ARTICLE 3
ORGANIZATION
3.1. Joint Planning Committee.
(a) WDS and Xxxxxxx hereby establish a committee to oversee the
Alliance (the "Joint Planning Committee"), the initial members of which
(the "Committee Members") shall be the individuals identified on Exhibit E
hereto. The Joint Planning Committee will at all times be composed of four
designees from WDS and four designees from Xxxxxxx. WDS shall designate one
WDS Committee Member to act as chairman of the Joint Planning Committee
(the "Chairman"). Any vacancy in the Joint Planning Committee created by a
Committee Member designated by WDS shall be filled as soon as is reasonably
practicable by WDS, and any vacancy created by a Committee Member
designated by Xxxxxxx shall be filled as soon as is reasonably practicable
by Xxxxxxx. Either such Party may change its representatives on the Joint
Planning Committee upon 30 days prior written notice to the other Party.
(b) Initially, the Joint Planning Committee will meet monthly to:
(i) discuss and resolve any issues relating to the provision of
Truck Leasing Services by Xxxxxxx to WDS and its customers;
(ii) discuss and resolve any issues relating to the provision of
Logistics Services by WDS to the Xxxxxxx Group and its customers;
(iii) develop and implement a Business Plan and approve any
changes thereto;
(iv) discuss and monitor the performance of WDS and Xxxxxxx
against the Business Plan;
(v) evaluate and plan joint marketing activities between WDS and
Xxxxxxx; and
(vi) design a cross-selling incentive plan and review revenues
generated by each such Party against the targets set forth in the
Business Plan.
(c) Initially, the Joint Planning Committee shall meet at least
monthly, or more frequently as WDS and Xxxxxxx agree, to review the status
of the Alliance's operations and strategies (as described above). Such
meetings are to be held alternately at WDS's principal place of business,
and at Xxxxxxx' principal place of business, or at such other place as the
Joint Planning Committee may establish. Meetings may be held by telephone
conference call or similar equipment if all Committee Members participating
in the meeting can hear each other, and be heard by each other, at the same
time. The Chairman shall be responsible for giving written notices of such
regular meetings (including descriptions of the matters to be considered at
such meetings) to all Committee
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Members at least seven days before each meeting. Any Committee Member may
call a special meeting of the Joint Planning Committee at any time by
giving at least seven days prior written notice of the meeting to all other
Committee Members. Such notice of meeting shall describe the matters to be
considered by the Joint Planning Committee in reasonable detail. A
Committee Member may waive the right to receive notice of a particular
meeting at any time before, during or after that meeting. No meeting of the
Joint Planning Committee will be effective to conduct business or to take
any action unless (i) there is present at least one WDS Committee Member
and one Xxxxxxx Committee Member, and (ii) a majority of the Committee
Members are present. The Chairman (or in his absence, his designee) shall
chair all meetings of the Joint Planning Committee. The Joint Planning
Committee may adopt such procedural rules as they deem appropriate for the
conduct of the Joint Planning Committee's business.
(d) Unless otherwise required or permitted by this Alliance Agreement,
the Joint Planning Committee shall act by resolutions passed unanimously by
the Committee Members present and voting at duly constituted meetings of
the Joint Planning Committee at which at least a majority of all Committee
Members are present and at which at least one WDS Committee Member and one
Xxxxxxx Committee Member are present. Xxxxxxx shall cause each Xxxxxxx
Committee Member to grant a revocable proxy to each other Xxxxxxx Committee
Member to vote at any meeting of the Joint Planning Committee at which such
Xxxxxxx Committee Member is not present or is present but cannot vote with
respect to such matter. WDS shall cause each WDS Committee Member to grant
a revocable proxy to each other WDS Committee Member to vote at any meeting
of the Joint Planning Committee at which such WDS Committee Member is not
present or is present but cannot vote with respect to such matter.
3.2 Access to Books and Records. Each of Xxxxxxx and WDS will create and
maintain accurate books and records regarding the provision of Truck Leasing
Services and Logistics Services, respectively, and of its respective obligations
under this Alliance Agreement. For purposes of ensuring compliance with this
Alliance Agreement, and for such other reasonable purposes in connection with
the consummation of the transactions contemplated by this Alliance Agreement,
WDS and Xxxxxxx shall each have the right, upon reasonable notice and during
normal business hours, to inspect, examine, and take extracts from or make
copies of such books and records maintained by the other Party. WDS and Xxxxxxx
shall each permit representatives of the other access to its place of business
upon reasonable notice and during normal business hours for the purpose of such
examinations.
ARTICLE 4
JOINT BUSINESS PLANNING
4.1. Purpose of Business Plan. The Business Plan will serve as a blueprint
for the business, activities and development of the Alliance and the targeted
financial impact of such business, activities and development on WDS and
Xxxxxxx. The Business Plan will focus on developing a joint marketing plan
driven by customers and market research to promote cross-selling of Xxxxxxx' and
the Logistics Group's services and will outline quarterly projections for
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revenue generated by cross-sales. In addition, it will outline a training
program by each of WDS and Xxxxxxx for the other Party's sales personnel. WDS
and Xxxxxxx agree that the Business Plan is not intended to be, nor will it be
construed as, an enforceable contract or legal agreement between the Parties,
except as provided in Section 5.2(a).
4.2. Business Plan Review. The Joint Planning Committee will have the
primary responsibility for formulating a mutually agreeable Business Plan each
year and then implementing it. Each Business Plan will encompass a one year
period.
4.3. Marketing Materials. The Joint Planning Committee (or a relevant
subcommittee formed thereby) will develop joint marketing materials to promote
the Alliance and the services of Xxxxxxx and the Logistics Group (including (a)
promotional and sales materials, brochures and advertising materials and (b)
press releases, speeches and other publicity attempts) to customers. Drafts of
any such materials may also be submitted by WDS or Xxxxxxx to the Joint Planning
Committee for its consideration and review. Copies of all such materials will be
approved by the Joint Planning Committee in advance of the distribution thereof
or of publication activities conducted or made with respect thereto.
4.4 Cross Selling. WDS and Xxxxxxx will design a cross-selling incentive
plan in which their respective sales forces will participate. Sales personnel of
each such Party will receive training from the other Party and will be
encouraged to promote the Truck Leasing Services provided by Xxxxxxx and the
Logistics Services provided by WDS, as applicable. To that end, each of WDS and
Xxxxxxx will provide the other Party with direct access to its customers for the
purpose of promoting their Logistics Services and Truck Leasing Services,
respectively; provided, however, that all inquiries to Xxxxxxx from its
customers regarding Logistics Services will be directed to WDS, and all inquires
to WDS (or members of the Logistics Group) from its customers regarding stand
alone Truck Leasing Services will be directed to Xxxxxxx.
4.5. Use of the Logistics Group Marks.
(a) Logistics hereby grants to Xxxxxxx a non-exclusive, royalty free,
nontransferable license to use the Logistics Group Marks described on
Exhibit F hereto (the "UPS Marks") in the Territory (directly or through a
sublicense to the members of the Xxxxxxx Group, as necessary) during the
Term for the purpose of marketing, promoting and selling the Alliance and
the Logistics Services promoted to the customers of the Xxxxxxx Group in
accordance with the terms of this Alliance Agreement. Xxxxxxx shall cause
each member of the Xxxxxxx Group to properly display and use the UPS Marks
in accordance with this Alliance Agreement.
(b) (i) Logistics has the right, at all reasonable times, to inspect
the Xxxxxxx Group's relevant facilities and review the manner in which the
Xxxxxxx Group uses the UPS Marks so that Logistics may satisfy itself that
the UPS Marks are used in accordance with this Alliance Agreement;
provided, however, that Logistics will not exercise such right in a manner
which unreasonably interferes with the Xxxxxxx Group's normal business
operations.
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(ii) The Xxxxxxx Group shall adhere to the trademark usage
guidelines furnished by Logistics for the depiction of the UPS Marks
("Trademark Usage Guidelines") and any reasonable modifications or
amendments thereto. The guidelines set forth on Exhibit G hereto will
function as the current version of the Trademark Usage Guidelines. The
Xxxxxxx Group shall also adhere to the marketing communications
guidelines furnished by Logistics and any reasonable modifications or
amendments thereto (the "Marketing Communications Guidelines"), the
current version of which is attached hereto as Exhibit H. In the event
of a conflict between this Alliance Agreement on the one part and
either of the Trademark Usage Guidelines or Marketing Communications
Guidelines on the other part, this Alliance Agreement shall govern.
(iii) The Xxxxxxx Group shall include on all advertising and
promotional materials, packaging and labels bearing the UPS Marks the
following notice:
"[UPS Marks] is a registered trademark of United Parcel Service,
Inc. and its subsidiaries. Used under license."
[With respect to electronic presentations of the UPS Marks, this
notice may be contained on Xxxxxxx' web-site under "Legal Information"
or, if software, in the "About" box or where the Xxxxxxx' own
proprietary notices appear.]
(iv) Prior to any first use of the UPS Marks on advertising or
promotional materials by the Xxxxxxx Group, Xxxxxxx agrees to furnish
Logistics with samples of such advertising and promotional materials,
packaging and labels bearing any of the UPS Marks for trademark usage
approval (which approval shall not be unreasonably withheld).
The Xxxxxxx Group shall amend the future use of the UPS Marks in any
such advertising and promotional materials, packaging and labels if
the use of the UPS Marks are not approved by Logistics. Logistics will
have ten Business Days from the date of receipt to approve or object
to materials submitted for trademark usage approval. If no objection
is received by Xxxxxxx within such ten Business Days, such materials
will be deemed approved. Use of the UPS Marks by the Xxxxxxx Group
that is substantially identical to uses of the UPS Marks that have
previously been approved or that is being used for the same program
(with substantially similar presentation of the UPS Marks) as has
previously been approved do not require submission for approval.
(v) The Xxxxxxx Group must immediately cease using any previously
approved material from which Logistics withdraws its approval.
Logistics will not unreasonably rescind approval of any materials
previously approved.
(c) (i) The Xxxxxxx Group acquires and will acquire no rights, title
or interest in the UPS Marks or the goodwill associated with them, other
than the right to
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use the UPS Marks in accordance with this Alliance Agreement. In accepting
this Alliance Agreement, Xxxxxxx acknowledges (on behalf of the Xxxxxxx
Group) UPS's ownership of the UPS Marks, its validity and the goodwill
connected with it. The Xxxxxxx Group will not attack the UPS Marks, nor
assist anyone in attacking it. Xxxxxxx further agrees that the Xxxxxxx
Group will not make any application to register the UPS Marks, nor will
they use any confusingly similar trademark, service xxxx, trade name, or
derivation, during the term of this Alliance Agreement or thereafter. This
paragraph will survive the termination of this Agreement.
(ii) At the request and sole expense of Logistics, Xxxxxxx will
execute and will cause any relevant member of the Xxxxxxx Group to
execute, any papers or documents reasonably necessary to protect the
rights of UPS in the UPS Marks and execute and deliver such other
documents as may be reasonably requested by Logistics.
(iii) Logistics represents and warrants that as of the date
hereof the UPS Marks do not infringe upon any trademarks and are not
involved in any opposition, invalidation, cancellation or litigation
that would threaten the Xxxxxxx Group's use of the UPS Marks in
connection with the transactions contemplated by this Alliance
Agreement and, to Logistics' knowledge, no such action is threatened
with respect to the UPS Marks. In the event that such action occurs,
Logistics will cause UPS to vigorously protect the UPS Marks.
(d) Xxxxxxx shall promptly notify Logistics of any unauthorized use of
the UPS Marks that comes to the Xxxxxxx Group's attention. Logistics in its
reasonable discretion may take such action as may be required to prosecute
the infringement. In the event that Logistics decides that action should be
taken against such third parties, Logistics may take such action either in
its own name (or in the name of UPS or any subsidiary thereof), or
alternatively, Logistics may authorize Xxxxxxx to initiate such action in
Xxxxxxx' name but Xxxxxxx shall have no obligation to do so. In either
event, Xxxxxxx agrees and agrees to cause the relevant members of the
Xxxxxxx Group to cooperate fully with Logistics (or UPS or relevant
subsidiary thereof), at Logistics' expense, to whatever extent it is
necessary to prosecute such action, all expenses being borne by Logistics
and all damages that may be recovered being solely for the account of
Logistics.
(e) In the event the Xxxxxxx Group violates the UPS Trademark Usage
Guidelines or the UPS Marketing Communications Guidelines and continues to
do so for a continuous 45 day period or for three periods of 30 days each
during a calendar year following written notice from Logistics, such
violation shall constitute a material breach of this Agreement and
Logistics may terminate this Agreement in accordance with Section 5.2
hereof.
(f) The Parties agree that a breach of this Section 4.5 may give rise
to irreparable injury to the non-breaching Party and its Group that cannot
be compensated for adequately by damages. Consequently, the Parties agree
that each Party shall be entitled, in addition to all other remedies
available, to injunctive and other equitable relief
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to prevent a breach of this Section 4.5 and to secure the enforcement of
the provisions of this Section 4.5 in any court of competent jurisdiction
in the United States or any state thereof (and the Parties agree to waive
any requirement for the posting of bond in connection with such remedy).
4.6. Use of the RTL Marks.
(a) RTL hereby grants to WDS a non-exclusive, royalty free,
nontransferable license to use the RTL Marks described on Exhibit I hereto
(the "RTL Marks") in the Territory (directly or through a sublicense to the
other members of the Logistics Group, as necessary) during the Term for the
purpose of marketing, promoting and selling the Alliance and the Truck
Leasing Services to the customers of WDS in accordance with the terms of
this Alliance Agreement. WDS shall properly display and use the RTL Marks
in accordance with this Alliance Agreement.
(b) (i) RTL has the right, at all reasonable times, to inspect WDS's
relevant facilities and review the manner in which WDS uses the RTL Marks
so that RTL may satisfy itself that the RTL Marks are used in accordance
with this Alliance Agreement; provided, however, that RTL will not exercise
such right in a manner which unreasonably interferes with WDS's normal
business operations.
(ii) WDS shall adhere to the trademark usage guidelines furnished
by RTL for the depiction of the RTL Marks ("Trademark Usage
Guidelines") and any reasonable modifications or amendments thereto.
The guidelines set forth on Exhibit J hereto will function as the
current version of the Trademark Usage Guidelines. WDS shall also
adhere to the marketing communications guidelines furnished by RTL and
any reasonable modifications or amendments thereto (the "Marketing
Communications Guidelines"), the current version of which is attached
hereto as Exhibit K. In the event of a conflict between this Alliance
Agreement on the one part and either of the Trademark Usage Guidelines
or Marketing Communications Guidelines on the other part, this
Alliance Agreement shall govern.
(iii) WDS shall include on all advertising and promotional
materials, packaging and labels bearing the RTL Marks the following
notice:
"[RTL Marks] is a registered trademark of Xxxxxxx Truck Leasing
Corp. Used under license."
[With respect to electronic presentations of the RTL Marks, this
notice may be contained on WDS' web-site under "Legal Information" or,
if software, in the "About" box or where WDS's own proprietary notices
appear.]
(iv) Prior to any first use of the RTL Marks on advertising or
promotional materials by WDS, WDS agrees to furnish RTL with samples
of such advertising and promotional materials, packaging and labels
bearing any of the
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XXX Xxxxx for trademark usage approval (which approval shall not be
unreasonably withheld).
WDS shall amend the future use of the RTL Marks in any such
advertising and promotional materials, packaging and labels if the use
of the RTL Marks are not approved by RTL. RTL will have ten Business
Days from the date of receipt to approve or object to materials
submitted for trademark usage approval. If no objection is received by
WDS within such ten Business Days, such materials will be deemed
approved. Use of the RTL Marks by WDS that is substantially identical
to uses of the RTL Marks that have previously been approved or that is
being used for the same program (with substantially similar
presentation of the RTL Marks) as has previously been approved do not
require submission for approval.
(v) WDS must immediately cease using any previously approved
material from which RTL withdraws its approval. RTL will not
unreasonably rescind approval of any materials previously approved.
(c) (i) WDS acquires and will acquire no rights, title or interest in
the RTL Marks or the goodwill associated with them, other than the right to
use the RTL Marks in accordance with this Alliance Agreement. In accepting
this Alliance Agreement, WDS acknowledges RTL' ownership of the RTL Marks,
its validity and the goodwill connected with it. WDS will not attack the
RTL Marks, nor assist anyone in attacking it. WDS further agrees that WDS
will not make any application to register the RTL Marks, nor will they use
any confusingly similar trademark, service xxxx, trade name, or derivation,
during the term of this Alliance Agreement or thereafter. This paragraph
will survive the termination of this Agreement.
(ii) At the request and sole expense of RTL, WDS will execute any
papers or documents reasonably necessary to protect the rights of RTL
in the RTL Marks and execute and deliver such other documents as may
be reasonably requested by RTL.
(iii) RTL represents and warrants that as of the date hereof the
RTL Marks do not infringe upon any trademarks and are not involved in
any opposition, invalidation, cancellation or litigation that would
threaten WDS's use of the RTL Marks in connection with the
transactions contemplated by this Alliance Agreement and, to RTL'
knowledge, no such action is threatened with respect to the RTL Marks.
In the event that such action occurs, RTL will vigorously protect the
RTL Marks.
(d) WDS shall promptly notify RTL of any unauthorized use of the RTL
Marks that comes to WDS's attention. RTL in its reasonable discretion may
take such action as may be required to prosecute the infringement. In the
event that RTL decides that action should be taken against such third
parties, RTL may take such action either in its own name, or alternatively,
RTL may authorize WDS to initiate such action in WDS'
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name but WDS shall have no obligation to do so. In either event, WDS agrees
to cooperate fully with RTL, at RTL' expense, to whatever extent it is
necessary to prosecute such action, all expenses being borne by RTL and all
damages that may be recovered being solely for the account of RTL.
(e) In the event WDS violates the RTL Trademark Usage Guidelines or
the RTL Marketing Communications Guidelines and continues to do so for a
continuous 45 day period or for three periods of 30 days each during a
calendar year following written notice from RTL, such violation shall
constitute a material breach of this Agreement and RTL may terminate this
Agreement in accordance with Section 5.2 hereof.
(f) The Parties agree that a breach of this Section 4.6 may give rise
to irreparable injury to the non-breaching Party and its Group that cannot
be compensated for adequately by damages. Consequently, the Parties agree
that each Party shall be entitled, in addition to all other remedies
available, to injunctive and other equitable relief to prevent a breach of
this Section 4.6 and to secure the enforcement of the provisions of this
Section 4.6 in any court of competent jurisdiction in the United States or
any state thereof (and the Parties agree to waive any requirement for the
posting of bond in connection with such remedy).
(g) WDS shall have the right to extend the rights to use the RTL Marks
under this Section 4.6 to any members of the Logistics Group, in which
event WDS will assure compliance by such members with the terms of this
Section.
ARTICLE 5
TERM AND TERMINATION; REMEDIES
5.1 Term. This Alliance Agreement will commence on the date hereof and
shall remain in full force and effect for a period of five years (such period
together with any extensions as provided herein, the "Term"), unless terminated
earlier pursuant to Section 5.2 below. This Alliance Agreement will renew for
such additional terms as will be agreed upon by WDS and Xxxxxxx.
5.2 Termination. This Alliance Agreement may be terminated at any time
during the Term:
(a) by either WDS or Xxxxxxx in the event of a material breach by the
other Party of the terms of this Alliance Agreement or the Staffing
Services Agreement that is not cured within 30 days following written
notice of such breach (or as otherwise provided under Sections 4.5 and 4.6
hereof);
(b) by either WDS or Xxxxxxx in the event of a Change of Control of
the other Party;
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(c) by either WDS or Xxxxxxx in the event of the bankruptcy of the
other Party;
(d) by either WDS or Xxxxxxx if any of the performance goals set forth
on Exhibit L hereto are not met; or
(e) by either WDS or Xxxxxxx by notice to the other Party given within
30 days following the first anniversary of this Agreement, which
termination shall be effective 90 days following the giving of such notice
(but not earlier than 90 days following the first anniversary).
Termination under this Section 5.2 will not be deemed a waiver of any right
or remedy either Party may have for breach hereunder.
5.3 Specific Performance. In the event of a breach of this Alliance
Agreement, the aggrieved Party shall be entitled to seek specific performance or
other equitable relief in addition to any other remedies that may be available
to such Party.
ARTICLE 6
CONFIDENTIALITY/NON-COMPETITION
6.1 Confidential Information. In the performance of their respective
obligations under this Alliance Agreement, WDS, other members of the Logistics
Group and Xxxxxxx may disclose to each other certain confidential and
proprietary information relating to their respective businesses ("Confidential
Information"). All information exchanged by the Parties (including, for purposes
of this Article 6, any member of the Logistics Group that is not a Party hereto)
under this Alliance Agreement shall be considered Confidential Information
unless it is subject to any of the exceptions in Section 6.3.
6.2 Non-Disclosure. Each recipient of Confidential Information agrees that
it shall (and shall cause its respective officers, directors, employees, agents
and Affiliates to):
(a) make no use of any Confidential Information belonging to the other
Party except as necessary for the performance of its obligations under this
Alliance Agreement;
(b) not disclose to third parties any of the Confidential Information
belonging to the other Party without the prior written consent of such
Party;
(c) take such precautions as it normally takes with its own
confidential and proprietary information to prevent disclosure of
Confidential Information to third parties, and
(d) upon the expiration of the Term or earlier termination of this
Alliance Agreement, promptly return any Confidential Information and all
copies thereof (in
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whatever format) in its possession to the other Party (or, upon the written
request of the other Party, to destroy all such materials).
6.3 Exceptions. Notwithstanding any of the foregoing, the obligations under
Section 6.2 shall not apply to:
(a) any information which at the time of disclosure is publicly
available or public knowledge;
(b) any information which the receiving Party possesses at the time of
disclosure of the Confidential Information and which was not acquired,
directly or indirectly from the other Party;
(c) any information required by applicable law or court order to be
disclosed, but then only (i) to the extent such disclosure is so required;
and (ii) following written notice of such obligation to the affected Party;
and
(d) any information acquired from a third party who has a right to
disclose such information.
6.4 Non-Competition.
(a) Except as permitted in Section 6.4(c) below, during the Term and
for a period of two years following the end of the Term, (i) none of the
members of the Logistics Group and none of their respective Affiliates will
engage in the provision of Truck Leasing Services to any third party that
is not an Affiliate of such member in the Territory and (ii) none of the
members of the Xxxxxxx Group and none of their respective Affiliates will
engage in the provision of Logistics Services in the Territory to any third
party that not an Affiliate of such member.
(b) If either Party or its Affiliate (the "Bidding Party") anticipates
making an offer to a potential seller to acquire a business that has a
division or subsidiary, or certain customer contracts, the ownership of
which would violate Section 6.4(a) (a "Prohibited Business"), the Bidding
Party shall notify the other Party (the "Non-Bidding Party") sufficiently
in advance of the making of such offer to permit the Parties to discuss in
good faith a joint offer pursuant to which the Non-Bidding Party would
acquire the Prohibited Business. The Bidding Party will share with the
Non-Bidding Party all information in its possession regarding the
Prohibited Business, and the Bidding Party will assure that any
confidentiality agreement entered into by it in connection with such
transaction permits such sharing of information.
(c) In the event either Party or its Affiliate acquires a Prohibited
Business following the consultation required by Section 6.4(b) above, such
Party (the "Selling Party") agrees (i) to notify the other Party (the
"Non-Selling Party") in writing of such acquisition, including a reasonable
description of the Prohibited Business, (ii) to make the personnel,
facilities and books and records of the Prohibited Business fully available
to
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the Non-Selling Party and its representatives to the extent requested by
the Non-Selling Party, and (iii) to use commercially reasonable efforts to
sell or otherwise dispose of the Prohibited Business within one year from
the date of acquisition. Within 30 days of the delivery of the notice
described in clause (i) above, the Non-Selling Party shall have the right
to provide a written offer (the "Offer") to purchase the Prohibited
Business. For a period of 30 days following the delivery of the Offer, the
Selling Party will negotiate in good faith with the Non-Selling Party
regarding the Offer, and shall make such modifications to the Offer as are
agreed upon in such negotiations. If the Selling Party declines to accept
the Offer (as so modified), the Selling Party shall be free to sell the
Prohibited Business to any Person that is not an Affiliate of the Selling
Party (a "Bona Fide Purchaser"), subject to the remaining provisions of
this Section 6.4(c). Thereafter, the Selling Party shall promptly notify
the Non-Selling Party in writing (the "Third Party Notice") if the Selling
Party receives an offer to purchase the Prohibited Business that it wishes
to accept from any Bona Fide Purchaser (a "Third Party Offer"), which such
Third Party Notice shall include a reasonable description of the terms of
the Third Party Offer. If the purchase price (taking into account timing of
payment and form of consideration) under the terms of the Third Party Offer
is less than the purchase price under the terms of the Offer (as modified),
then, for a period of 20 days after receipt of the Third Party Notice by
the Non-Selling Party, the Non-Selling Party shall have the right to accept
the Third Party Offer. Thereafter, the Parties shall work as promptly as is
reasonably practicable to complete the acquisition of the Prohibited
Business on the terms and conditions of the Third Party Offer.
Notwithstanding the foregoing provisions of this Section 6.4, no sale or
disposition of a Prohibited Business shall be required if (x) the annual
revenues from such the Prohibited Business do not exceed $5,000,000, or (b)
the Selling Party is not able to obtain an acceptable Third Party Offer
using commercially reasonable efforts, in which event the Selling Party may
operate the Prohibited Business through the normal termination dates
contained in any relevant contracts, without extensions or renewals and
without soliciting new business that would violate the terms of Section
6.4(a).
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
Each Party hereby represents and warrants that it has all necessary
corporate power and authority to execute and deliver this Alliance Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by such Party of
this Alliance Agreement, and the consummation by such Party of the transactions
contemplated hereby, have been duly authorized by all necessary corporate
action, and no other corporate proceedings on the part of such Party are
necessary to authorize this Alliance Agreement or to consummate the transactions
contemplated hereby. This Alliance Agreement has been duly executed and
delivered by such Party and, assuming the due authorization, execution and
delivery by the other Party, constitutes a legal, valid and binding obligation
of such Party enforceable against it in accordance with its terms.
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ARTICLE 8
INDEMNIFICATION
8.1 Indemnification. Each Party hereto agrees to indemnify, defend and hold
harmless the other Party and their respective Affiliates, subsidiaries,
officers, directors, employees and agents (any such Person, an "Indemnitee")
from and against any and all claims, losses, damages, fines, penalties, costs
and expenses (including reasonable legal and accounting fees) (collectively,
"Losses") which may be imposed upon or incurred by or asserted against the
Indemnitee as a result of or arising out of (a) the breach by such Party (the
"Indemnifying Party") of any representation or warranty contained in this
Alliance Agreement, (b) the failure of the Indemnifying Party to perform any
covenant or agreement required to be performed by such Party under the terms of
this Alliance Agreement, or (c) caused by the gross negligence or willful
misconduct of the Indemnifying Party, any members of its Group, or the agents or
employees of any thereof.
8.2 Procedures.
(a) Subject to Section 8.2(b) below, if an Indemnified Party shall
claim a right to payment pursuant to this Article 8, such Indemnified Party
shall send written notice of such claim to the Indemnifying Party. Such
notice shall specify the basis for such claim. As promptly as possible
after the Indemnified Party has given such notice, such Indemnified Party
and the Indemnifying Party shall establish the merits and amount of such
claim (by mutual agreement, litigation, arbitration or otherwise) and,
within five business days of the final determination of the merits and
amount of such claim, the Indemnifying Party shall pay to the Indemnified
Party immediately available funds in an amount equal to such claim as
determined hereunder.
(b) Promptly after receipt by an Indemnified Party of notice by a
third party of any complaint or the commencement of any action or
proceeding with respect to which such Indemnified Party may be entitled to
receive payment from the other party for any Losses, such Indemnified Party
shall notify the Indemnifying Party within 20 days of such complaint or of
the commencement of such action or proceeding; provided, however, that the
failure to so notify the Indemnifying Party shall relieve the Indemnifying
Party from liability under this Alliance Agreement with respect to such
claim only if, and only to the extent that, such failure results in the
forfeiture by the Indemnifying Party of rights and defenses otherwise
available to the Indemnifying Party with respect to such claim. The
Indemnifying Party shall have the right, upon written notice delivered to
the Indemnified Party within 30 days thereafter (which written notice must
include a binding acknowledgment of the Indemnifying Party that such claim
constitutes an indemnifiable Loss hereunder), to assume the defense of such
action, including the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of the fees and disbursements of such
counsel. If the Indemnifying Party declines to assume the defense of the
action within such 30-day period, then such Indemnified Party may employ
counsel to represent or defend it in any such action and the Indemnifying
Party shall pay the reasonable fees and disbursements of such counsel as
incurred; provided, however, that the Indemnifying Party shall not be
required to pay
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the fees and disbursements of more than one counsel for all Indemnified
Parties in any jurisdiction in any single action or proceeding. In any
action with respect to which indemnification is being sought hereunder, the
Indemnified Party or the Indemnifying Party, whichever is not assuming the
defense of such action, shall have the right to participate in such
litigation and to retain its own counsel at such party's own expense. The
Indemnifying Party or the Indemnified Party, as the case may be, shall at
all times use reasonable efforts to keep the Indemnifying Party or the
Indemnified Party, as the case may be, reasonably apprised of the status of
the defense of any action the defense of which they are maintaining and to
cooperate in good faith with each other with respect to the defense of any
such action.
ARTICLE 9
MISCELLANEOUS
9.1 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 any other Party, except for actions
expressly provided for in this Alliance Agreement or pursuant to agreements
entered into between the Parties.
9.2 Force Majeure. No Party shall be responsible or liable to the others
for failure or delay in its performance of this Alliance Agreement due to war,
fire, accident or other casualty, or any labor disturbance or act of God or the
public enemy, or any other contingency beyond such Party's reasonable control
("Force Majeure Event"). In addition, in the event of the applicability of this
Section 9.2, the Party affected by such Force Majeure Event shall use all
commercially reasonable efforts to eliminate, cure and overcome any of such
causes and resume performance of its obligations.
9.3 Governing Law. This Alliance Agreement shall be construed in accordance
with, and governed by, the laws of the State of New York.
9.4 Severability. Should any part of this Alliance Agreement or any of the
provisions hereof for any reason be declared to be invalid, such decision or
determination shall not in any way affect the validity of the remaining portions
of this Alliance Agreement, all of which shall remain in full force and effect
as if the portion declared to be invalid had not been contained herein at the
time of the execution of this Alliance Agreement.
9.5 Headings; Number. The subject headings of this Alliance Agreement are
included for purposes of convenience only, and shall not affect the construction
or interpretation of any of its provisions. Whenever the context so requires,
the singular shall include the plural and the plural shall include the singular.
9.6 Assignment. This Alliance Agreement shall be binding on, and shall
inure to the benefit of, each of the Parties and their respective successors and
permitted assigns. No Party shall be permitted to assign its rights or
obligations under this Alliance Agreement (whether by
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merger, operation of law or otherwise) without the express written consent of
the other Parties, except that (a) Xxxxxxx may assign its interest to a
wholly-owned subsidiary of Xxxxxxx and (b) WDS may assign its interest to UPS or
any wholly-owned subsidiary of UPS, so long as in the case of any such
assignment under clause (a) or (b), the assignee agrees in writing to be bound
by the terms of this Alliance Agreement, the assignee retains its wholly-owned
status during the Term and the assignor remains primarily liable for all
obligations hereunder.
9.7 Entire Agreement. This Alliance Agreement constitutes the entire
agreement among the Parties regarding the subject matter hereof, and supersedes
all prior agreements, negotiations or understandings between them concerning the
subject matter hereof.
9.8 Amendments. This Alliance Agreement may not be amended, supplemented or
modified except in a writing signed by the Parties hereto.
9.9 Waiver. No waiver of any default hereunder by either Party or any
failure to enforce any rights hereunder shall be deemed to constitute a waiver
of any subsequent default with respect to the same or any other provisions
hereof.
9.10 Notices. Any notice required or permitted to be given hereunder shall
be made in writing and shall be given to the Party to receive such notice by (i)
hand delivery, (ii) first-class registered or certified mail, postage prepaid,
return receipt requested, (iii) overnight courier service, postage prepaid or
(iv) telecopy with evidence of confirmation of transmission, in each case at the
address or telecopy number set forth below:
To WDS or Logistics: UPS Logistics Group, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Legal Manager
Telefax No.: (000) 000-0000
With copies to: UPS Legal Department
00 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Legal Counsel
Telefax No.: (000) 000-0000
and to: King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxx III
Telefax No.: (000) 000-0000
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To Xxxxxxx or RTL: Xxxxxxx Leasing Corp.
0000 Xxxxxxx Xxxx
Xxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telefax No.: (000) 000-0000
With a copy to: Xxxxxxx Leasing Corp.
0000 Xxxxxxx Xxxx
Xxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx
Telefax No.: (000) 000-0000
Either Party may change the information specified herein for the receipt of
notices by giving written notice to the other Party in accordance with the
provisions of this Section 9.10.
9.11 Counterparts. This Alliance Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which taken
together will constitute one and the same instrument.
9.12 Third Party Beneficiaries. This Alliance Agreement is for the sole
benefit of the Parties hereto and no third party may claim any right, or enforce
any obligation of the Parties, hereunder.
9.13 Relationship. The Parties intend to create an independent contractor
relationship and nothing contained in this Alliance Agreement will be construed
to make either (i) WDS or any member of the Logistics Group, or any Affiliates
of any of the foregoing, on the one hand, or (ii) Xxxxxxx or any Affiliates of
Xxxxxxx on the other hand, partners, principals, agents or employees of the
other. Neither WDS and Logistics nor Xxxxxxx and RTL will have any right, power
or authority, express or implied, to bind the other.
9.14 Dispute Resolution. Any controversy, claim or question of
interpretation arising out of or relating to this Alliance Agreement (including
without limitation a claimed breach of any of the provisions hereof) that is not
resolved by the Parties (a "Dispute"), shall be resolved in accordance with the
provisions of this Section 9.14:
(a) Initially, any such Dispute may be submitted by either Party to
the Joint Planning Committee for resolution, by delivering written notice
of such Dispute, including a brief description thereof, to the Chairman of
the Joint Planning Committee, with a copy to the other Party. The Joint
Planning Committee shall work in good faith to resolve such Dispute
(including by calling a meeting or meetings of the Joint Planning
Committee, as reasonably necessary); provided, however, that if the Joint
Planning Committee cannot resolve such Dispute within 30 days of its
receipt of the notice described in this subsection (a), such Dispute shall
be resolved in accordance with subsection (b) below.
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(b) If the Dispute is not resolved in accordance with subsection (a)
above, the Chief Financial Officer of Xxxxxxx (the "Xxxxxxx CFO") and the
Chief Financial Officer of the Transportation Management Group of Logistics
(the "Logistics CFO") shall meet in good faith to resolve such Dispute. If
the Xxxxxxx CFO and the Logistics CFO are unable to resolve such Dispute
within 60 days following the notice described in subsection (a) above, such
Dispute may be submitted by either Party to binding arbitration in
accordance with the remaining provisions of this Section 9.14.
(c) If the Dispute is not resolved in accordance with subsection (b)
above, the Dispute shall be finally settled by arbitration in the City of
Washington, D.C. under the then-effective Commercial Arbitration Rules of
the American Arbitration Association as modified by this Alliance
Agreement, and judgment on the award rendered by the arbitrators may be
entered in any court having jurisdiction. The award rendered by the
arbitrators shall be final and binding on the Parties and not subject to
further appeal. Such arbitration can be initiated by written notice by
either Party (after compliance with the escalation provisions of
subsections (a) and (b) above) to the other Party, which notice shall
identify the claimant's selected arbitrator. The Party receiving such
notice shall identify its arbitrator within five Business Days following
its receipt of such notice. The arbitrator selected by the claimant and the
arbitrator selected by the respondent shall, within five Business Days of
their appointment, select a third neutral arbitrator. In the event that
they are unable to do so, either Party may request the American Arbitration
Association to appoint the third neutral arbitrator. The arbitrators shall
have the authority to award any remedy or relief that a court in New York
could order or grant, including, without limitation, specific performance
of any obligation created under this Alliance Agreement, the awarding of
punitive damages, the issuance of injunctive or other provisional relief,
or the imposition of sanctions for abuse or frustration of the arbitration
process. The arbitration awards will be in writing and specify the factual
and legal basis for the award.
(d) It is the intent of the Parties that any arbitration shall be
concluded as quickly as practicable (but, barring extraordinary
circumstances, in any event not more than 20 days after the date the third
arbitrator is selected). Unless the Parties otherwise agree, once
commenced, the hearing on the disputed matters shall be held four days a
week until concluded with each hearing date to begin at 9:00 a.m. and to
conclude at 5:00 p.m. The arbitrators shall use their best efforts to issue
the final award or awards within a period of five Business Days after
closure of the proceedings. Failure of the arbitrators to meet the time
limits of this Section 9.14 shall not be a basis for challenging the award.
(e) The arbitrators shall instruct the non-prevailing party to pay all
costs of the proceedings, including the fees and expenses of the
arbitrators and the reasonable attorneys' fees and expenses of the
prevailing party. If the arbitrators determine that there is not a
prevailing party, each party shall be instructed to bear its own costs and
to pay one-half of the fees and expenses of the arbitrators.
(f) Notwithstanding the foregoing, nothing contained herein shall
prevent either Party from seeking injunctive relief in any court.
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IN WITNESS WHEREOF, the Parties have caused this Alliance Agreement to be
signed as of the date first above written.
WORLDWIDE DEDICATED SERVICES, INC.
By:
-------------------------------
Name:
Title:
UPS LOGISTICS GROUP, INC.
By:
-------------------------------
Name:
Title:
XXXXXXX LEASING CORP.
By:
-------------------------------
Name:
Title:
XXXXXXX TRUCK LEASING CORP.
By:
-------------------------------
Name:
Title:
