Salaried Employee Secondment Agreement - Vastera Solutions Services Corp. and Ford Motor Co.
EXECUTABLE COPY
SALARIED EMPLOYEE SECONDMENT AGREEMENT*
This Secondment Agreement (the "Agreement") is made effective on
July 14, 2000 (the "Effective Date"), between Vastera Solutions Services
Corporation, a Delaware corporation with offices at 45025 Aviation Drive, Suite
200, Dulles, Virginia 20166 ("Vastera"), and Ford Motor Company, a Delaware
corporation, with offices at The American Road, Dearborn, Michigan 48121
("Ford"). Vastera and Ford referred to herein individually as a "Party" and
collectively as the "Parties".
RECITALS
A. Vastera is engaged in the business of providing solutions for
global trade management to clients ("Business");
B. Pursuant to the terms of a Stock Transfer Agreement among Ford,
Vastera and Vastera, Inc. dated as of July 14, 2000, Vastera acquired
substantially all of the assets related to the operation of Ford's customs
operations;
C. Vastera plans to offer, or cause its Affiliates to offer, about
120 of the 135 employees who are engaged in providing custom services to Ford or
its Affiliates ("Ford Customs Employees") employment with Vastera or its
Affiliates over phased periods in order to assist Vastera in conducting the
Business. Ford Customs Employees who decline Vastera's offer of employment will
remain Ford Customs Employees but will be seconded to Vastera for a limited
term, and then be transitioned back to Ford.
D. This Agreement sets forth the terms and conditions for seconding
the U.S. based Ford Customs Employees ("U.S. Ford Customs Employees").
NOW, THEREFORE, in consideration of the premises and mutual
promises herein made, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. TERM. The term of this Agreement shall commence on the Effective
Date and shall terminate on December 31, 2002. ("Term"). During the Term, this
Agreement may be terminated only upon mutual agreement between the Parties or by
a material breach by either Party after reasonable notice and an opportunity to
cure the breach.
2. ASSIGNMENT OF U.S. FORD CUSTOMS EMPLOYEES.
--------
* Portions of this document have been omitted, with the precise position of
these omissions marked with an asterisk, pursuant to a request for confidential
treatment and such omitted portions have been filed separately with the U.S.
Securities and Exchange Commission.
CONFIDENTIAL
<PAGE>
2
2.1 EMPLOYEE CENSUS. Attachment A attached hereto sets forth a list of
the U.S. Ford Customs Employees to be seconded to Vastera as of the
Effective Date, together with their base salary rate, any other targeted
or mandatory cash compensation, including without limitation, bonus
levels (based on 2000 target bonus range), job classification, FCG status
(as defined below) and scheduled rotation date and social security number
where applicable ("Seconded Employees"). The period during which Seconded
Employees are seconded to Vastera is referred to as the "Assigned
Period". During the Assigned Period, Ford shall make available to Vastera
the services of the Seconded Employees, on a full-time or part-time
basis.
2.2 VASTERA EMPLOYMENT. Seconded Employees may resign employment with
Ford according to Ford's policies. In the event of such resignation, Ford
will cooperate with Vastera in searching for and identifying appropriate
candidates for Vastera to hire to fill such positions. Vastera shall have
the right to hire any Seconded Employee and Ford shall not interfere with
Vastera's attempt to hire any Seconded Employee. If a Seconded Employee
desires to accept Vastera's offer of employment, Ford shall terminate
such employee on a date mutually agreed by the Parties. In such event,
the Seconded Employee shall be removed from Attachment A on Vastera's
hire date.
2.3 REPATRIATION TO FORD. Except as provided below or in Section 4.2,
prior to *, no Seconded Employee shall be repatriated to Ford. In the
event that there is an advancement, promotional or other career
development opportunity available for a Seconded Employee, and upon
mutual agreement between the Parties, a Seconded Employee may be released
from this Agreement and repatriated to Ford on a mutually agreeable date,
and Attachment A shall be modified accordingly. Notwithstanding anything
herein to the contrary, any Seconded Employee who is in the Ford College
Graduate Program ("FCG") as of the Effective Date shall be repatriated to
Ford on the scheduled rotation date and Attachment A shall be modified
accordingly. Nothing herein contained shall preclude Vastera from making
an offer of employment to a FCG. On or after *, if Ford wishes to remove
a Seconded Employee from Attachment A for placement at Ford, Ford shall
give Vastera prior written notice of its request for such removal
whereupon Ford and Vastera shall meet in good faith to determine the
timing of such removal after consideration of each Party's mutual needs,
such as Vastera's ability to replace the Seconded Employee and the timing
of Ford's placement opportunities. Once a date is mutually agreed, the
Seconded Employee shall be removed from Attachment A on the date the
Seconded Employee is repatriated to Ford.
----------
* This portion of the document has been omitted pursuant to a request for
confidential treatment and such portion has been filed separately with the U.S.
Securities and Exchange Commission.
CONFIDENTIAL
<PAGE>
3
3. LIAISONS. Each of Ford and Vastera shall appoint a liaison for
purposes of administering the terms of this Agreement. The names of the liaisons
shall be attached hereto as Attachment B. Either Party may change its liaison by
giving notice thereof to the other Party, and substituting a new Attachment B.
The Liaisons, by way of example but not limited to the following, will
coordinate benefit questions, leave requests, disciplinary issues, performance
concerns and personnel matters.
4. EMPLOYER MATTERS.
4.1 EMPLOYER DEFINITION. Ford shall be the employer of the Seconded
Employees for all purposes and Vastera shall not be considered the
employer for any purpose. Ford will instruct Seconded Employees to
conform to Vastera policies while at Vastera facilities regarding safety
and health, personal and professional conduct (including the wearing of
an identification badge or personal protective equipment and adhering to
plan regulations and general safety practices or procedures) generally
applicable to such facilities, which rules and regulations Vastera will
provide upon request, and otherwise conduct themselves in a businesslike
manner. Seconded Employees also shall be subject at all times to Ford's
policies and procedures. During the Assigned Period, Ford shall retain
responsibility for all payments and benefits due to the Seconded
Employees in connection with their work relating to the Business and
pro-rated for part-time seconded employment, including but not limited to
(i) the payment of Seconded Employees' base salary or other components
of pay (less any applicable withholding or other taxes or any amounts
deducted from such wages pursuant to normal payroll practices of Ford);
(ii) the provision of all other employee benefits generally provided by
Ford to other non-represented Seconded Employees; (iii) payment of all
federal, state, or local taxes withheld or otherwise required to be paid
with respect thereto, and (iv) the liability for statutory benefits,
including workers' compensation.
4.2 EMPLOYER RIGHTS. Ford shall have the right to terminate any of the
Seconded Employees. Ford shall have the right to change the salary and
job classification of the Seconded Employees upon reasonable notice to
Vastera. Although Ford shall remain responsible for performance
management and personnel development, Vastera and its management shall
have the right to assign to, and structure work for, Seconded Employees.
In the event that Vastera has a concern regarding a Seconded Employee
during the Assigned Period, including but not limited to a concern
regarding a Seconded Employee's performance or conduct, *. If the
identified concern is not cured to the satisfaction of Vastera *. Ford
shall comply with this request as soon as is reasonably practical, but
in no event more than thirty (30) days after receiving Vastera's notice
of removal. This procedure shall be accelerated or modified because of an
emergency situation or if the circumstances otherwise warrant. Ford shall
request Vastera to provide
----------
* This portion of the document has been omitted pursuant to a request for
confidential treatment and such portion has been filed separately with the U.S.
Securities and Exchange Commission.
CONFIDENTIAL
<PAGE>
4
information or documents with respect to the Seconded Employees job
performance and other matters, and Vastera shall cooperate with Ford in
providing such information or documents.
4.3 EMPLOYER REPRESENTATIONS. Ford represents and warrants that for
the Assigned Period, (i) the Seconded Employees shall be paid by Ford on
a salaried basis and be exempt from the wage and hour requirements of the
Fair Labor Standards Act ("FLSA") and any other similar or comparable
statute, law, ordinance, rule or regulation, whether federal, state or
local, (ii) shall not be subject to any collective bargaining agreement,
and (iii) shall be subject to Ford's annual Compensation Planning process
as set forth in Ford's policies and procedures.
4.4 ACKNOWLEDGMENT, NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT.
Seconded Employees shall be required to execute the Acknowledgment,
Non-Disclosure and Confidentiality Agreement attached hereto as
Attachment C. The Non-Disclosure and Confidentiality Agreement shall
contain the same terms as are contained in the agreement that employees
of Vastera are required to sign. In the event a U.S. Ford Customs
Employee refuses to sign the Acknowledgment, Non-Disclosure and
Confidentiality Agreement, the Parties shall discuss whether the U.S.
Ford Customs Employee shall be seconded or continue to be seconded under
the terms of this Agreement.
5. PAYROLL AND RELATED SERVICES. During the Assigned Period, Ford
shall provide payroll processing services for its Seconded Employees including,
but not limited to, the following: bi-weekly or monthly payroll, quarterly and
annual payroll tax deductions and filings, including deductions and payments for
income and Social Security tax requirements under local, state and federal laws;
personnel record maintenance, insurance withholdings; employee verification;
retirement plan processing and annual W-2 forms. Upon reasonable request or as
needed, Ford will provide assurances that all proper payments and reporting
requirements have been made.
6. EMPLOYEE BENEFIT PLANS.
6.1 IDENTIFICATION OF PLANS. During the Assigned Period, Ford shall
cover the Seconded Employees under the same employee benefit and fringe
benefit plans and arrangements generally offered to other salaried
employees of Ford at the same time, and the Seconded Employees shall
continue to accrue benefits under such plans. Seconded Employees shall be
ineligible to participate in any employee benefit plan or fringe benefit
program sponsored by Vastera. Requests for leave, reasonable
accommodation and other benefits provided by Ford policies or by federal,
state or local law will be coordinated through the Ford Liaison. Ford
reserves the right to modify, terminate or suspend any plan applicable to
any of the Seconded Employees.
CONFIDENTIAL
<PAGE>
5
6.2 ADMINISTRATION OF PLANS. During the Assigned Period, Ford shall
maintain, administer and manage all employee benefit and fringe benefit
plans and arrangements offered to the Seconded Employees.
7. REIMBURSEMENT. Ford shall be reimbursed monthly for the direct
wage and benefit costs for the Seconded Employees. For purposes of this Section
7, reimbursements for "direct wage and benefit costs" shall include:
(i) The base monthly salary, and any other type of cash
compensation paid by Ford to the Seconded Employees for
work performed during the Assigned Period, such as
overtime, bonuses, moving allowance, and any other cash
compensation not included in the Standard Monthly Group
Fringe cost (defined below), provided, however, that
reimbursement for the base monthly salary of a Seconded
Employee shall be limited to no more * increase over the
previous year's base monthly salary;
(ii) A per-employee Standard Monthly Group Fringe cost equal to
* of each Seconded Employee's base monthly salary wage;
(iii) A per-employee Standard Monthly General Overhead Expense
equal to * of each Seconded Employee's base monthly salary
but only with respect to a Seconded Employee who continues
to occupy Ford's owned or leased facilities from the
Effective Date until March 31, 2001;
(iv) Expenses incurred by Ford with respect to each Seconded
Employee which is not included in (i) through (iii) above
that arise as a result of the Seconded Employee's work for
Vastera, such as reserves for any workers' compensation
claims arising out of a work accident while the Seconded
Employee was performing work for Vastera during the
Assigned Period;
(v) Reasonable and necessary travel and business related
expenses incurred by Ford in furtherance of Vastera
business and paid or reimbursed to a Seconded Employee by
Ford as authorized by Ford's standard travel and business
expense reimbursement policy; and
(vi) All assessments, premiums or other taxes incurred and paid
by Ford with respect to the Seconded Employees.
8. PAYMENT. Within fifteen (15) days after the end of each
calendar month during the Assigned Period, Ford shall render an invoice to
Vastera in such form and containing such detail as Vastera shall reasonably
require, for direct wage and benefit costs which Ford has incurred with
respect to the Seconded Employees and which were not previously invoiced.
This amount shall be payable to Ford by the fifteenth day of the following
month. Vastera shall have a right to audit the
----------
* This portion of the document has been omitted pursuant to a request for
confidential treatment and such portion has been filed separately with the U.S.
Securities and Exchange Commission.
CONFIDENTIAL
<PAGE>
6
invoices and related records of Ford upon reasonable notice during normal
business hours, at a place mutually agreed by the Parties.
9. WORKERS' COMPENSATION AND UNEMPLOYMENT INSURANCE. Ford shall
continue to provide Workers' Compensation and Unemployment Compensation coverage
for all of the Seconded Employees at all times during the term of this
Agreement.
10. WORK ENVIRONMENT.
10.1 COMPLIANCE WITH ALL HEALTH AND SAFETY LAWS. The Parties shall
comply with all applicable, national, federal, state and local health and
safety laws, regulations, ordinances, directives, and rules for Seconded
Employees working on their respective premises.
10.2 COMPLIANCE WITH EMPLOYMENT LAWS. The Parties shall comply with all
applicable national, federal, state and local employment laws, including,
but not limited to, wage and hour, overtime, discrimination laws, and/or
local ordinances.
11. STAFFING OF VASTERA FOREIGN AFFILIATES. In the event Vastera or an
Affiliate forms another Affiliate for the purpose of conducting the Business in
a country other than the United States ("Vastera Foreign Affiliate"), if
requested by Vastera, Ford agrees to use its commercially reasonable efforts to
cause any of its Affiliates that do business in the same country or region
("Ford Foreign Affiliates"), or where appropriate under national law, will
recommend to the Ford Foreign Affiliate, to enter into a secondment arrangement
with the Vastera Foreign Affiliate with respect to certain employees of the Ford
Foreign Affiliate who refuse offers of Vastera employment, on terms and
conditions substantially similar to the terms expressed in this Secondment
Agreement, modified only to reflect variances in local law. For purposes of
Section 7, REIMBURSEMENT, the per-employee Standard Monthly Group fringe cost
shall be determined with reference to Ford's Standard Group Monthly Fringe cost
with respect to such country, where applicable, or a comparable statement of
labor costs and expressed as a percentage of base monthly salary. For purposes
of this Agreement, "Affiliate" means any individual, partnership, corporation,
limited liability company, trust, or other entity directly or indirectly,
through one or more intermediaries, controlling, controlled by or, under common
control with a Party.
12. INTELLECTUAL PROPERTY ASSIGNMENT
12.1 ASSIGNMENT. Seconded Employees are employees of Ford. As a result,
all intellectual property rights in inventions, that are conceived or
first reduced to practice, and in original works of authorship created by
each of them, during the period of their employment with Ford and that
relate to Ford's business, are the property of Ford under the terms of
their employment agreements and by law. Under this Agreement, Ford agrees
to assign to Vastera all of Ford's intellectual
CONFIDENTIAL
<PAGE>
7
property rights in any inventions conceived or first reduced to practice
and in original works of authorship created by any of the Seconded
Employees, during the period each is seconded and that relate to
Vastera's business. Such assignment or rights shall not preempt,
supersede or otherwise interfere with Ford practicing rights received
under license from Vastera in accordance with other agreements between
the Parties. Ford further agrees to execute all assignment and other
transfer documents as may be necessary to cause the above assignment of
intellectual property rights to be legally formalized. All such documents
shall be prepared by Vastera at Vastera's expense, and provided to Ford
with at least thirty (30) days notice.
12.2 FORD'S IP WARRANTY. Ford warrants that it has the right to make
the assignment to Vastera of intellectual property rights in the
inventions and works of authorship created by Seconded Employees.
12.3 WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY.
(A) EXCEPT TO THE EXTENT OF THE WARRANTY MADE ABOVE, FORD MAKES NO
OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED. BY WAY OF
EXAMPLE BUT NOT OF LIMITATION, FORD MAKES NO REPRESENTATIONS OR
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. FORD
SHALL IN NO EVENT BE LIABLE TO VASTERA, ITS SUCCESSORS, OR A THIRD PARTY
FOR ANY DAMAGES, WHETHER DIRECT OR INDIRECT, SPECIAL OR GENERAL,
CONSEQUENTIAL OR INCIDENTAL, ARISING FROM ANY LOSS CLAIMED AS A RESULT OF
VASTERA'S USE OF THE INTELLECTUAL PROPERTY RIGHTS ASSIGNED HEREUNDER .
(B) FORD MAKES NO WARRANTY OR REPRESENTATION THAT THE INTELLECTUAL
PROPERTY RIGHTS ASSIGNED HEREUNDER CAN BE USED FOR ANY PARTICULAR
FUNCTION OR THAT VASTERA HAS THE ABILITY TO USE THEM. FORD ASSUMES NO
RESPONSIBILITY FOR THE SAFETY, QUALITY, DESIGN, SPECIFICATIONS,
COMPLETENESS, ACCURACY OR OTHER CHARACTERISTICS OF THE PERFORMANCE,
OUTPUT OR END PRODUCT RESULTING FROM THE USE OF THE INTELLECTUAL PROPERTY
RIGHTS ASSIGNED HEREUNDER.
(C) EXCEPT TO THE EXTENT OF THE WARRANTY PROVIDED ABOVE, NOTHING
CONTAINED HEREIN SHALL BE CONSTRUED AS CONFERRING BY IMPLICATION,
ESTOPPEL OR OTHERWISE THE INDEMNIFICATION OF VASTERA BY FORD AGAINST ANY
CLAIM OF INFRINGEMENT OF OTHER THIRD PARTY INTELLECTUAL PROPERTY RIGHTS,
WHETHER OR NOT THE EXERCISE OF ANY RIGHT GRANTED HEREIN NECESSARILY
EMPLOYS OR
CONFIDENTIAL
<PAGE>
8
REQUIRES THE PRACTICE OF ANY SUCH EXISTING OR SUBSEQUENTLY CREATED THIRD
PARTY INTELLECTUAL PROPERTY RIGHTS.
13. INDEMNITY.
13.1 COMPANY INDEMNITY. Vastera shall indemnify Ford against and agrees
to hold it harmless from any and all damage, loss, claim, liability and
expense (including without limitation, reasonable attorneys' fees and
expense in connection with any action, suit or proceeding brought against
Ford) incurred or suffered by Ford arising out of (i) breach of any
agreement made by Vastera hereunder with respect to the Seconded
Employees or (ii) employment claims of the Seconded Employees or Vastera
employees that arise during the Assigned Period based on conditions at
Vastera over which Vastera has sole control or any actions of Vastera or
Vastera employees acting under Vastera's authority, direction or control
with respect to the Seconded Employees.
13.2 EMPLOYER INDEMNITY. Ford shall indemnify Vastera against and
agrees to hold it harmless from any and all damage, loss, claim,
liability and expense (including without limitation, reasonable
attorneys' fees and expenses in connection with any action, suit or
proceeding brought against Vastera) incurred or suffered by Vastera
arising out of (i) breach of any agreement made by Ford with respect to
the Seconded Employees; (ii) employment, payroll or other claims of
Seconded Employees based on any action or omission on the part of Ford or
any employee of Ford, including any Seconded Employee, except where the
Seconded Employee was under Vastera's authority, direction or control; or
(iii) any claim by Seconded Employees (or their dependents or
beneficiaries), to the Pension Benefit Guaranty Corporation ("PBGC"), the
Department of Labor ("DOL"), or Internal Revenue Service ("IRS"), or
comparable federal or national agencies in the United States, arising out
of or in connection with the operation, administration, funding or
termination of any of the employee benefit plans or programs applicable
to the Seconded Employees that arise prior to, during or after the
Assigned Period.
13.3 INDEMNIFICATION PROCEDURES. With respect to a Party's indemnity
obligations hereunder with respect to third-party claims, the following
procedures shall apply:
(a) NOTICE. Promptly after receipt by any entity entitled to
indemnification hereunder of notice of the commencement or
threatened commencement of any civil, criminal,
administrative, or investigative action or proceeding
involving a claim in respect of which the indemnitee will
seek indemnification pursuant to the terms and conditions
herein, the indemnitee shall notify the indemnitor of such
claim in writing. No failure to so notify an indemnitor
shall relieve it of its obligations under this Agreement
except to the extent that it can demonstrate damages
CONFIDENTIAL
<PAGE>
9
attributable to such failure. Within fifteen (15) days
following receipt of written notice from the indemnitee
relating to any claim, but no later than ten (10) days
before the date on which any response to a complaint or
summons is due, the indemnitor shall notify the indemnitee
in writing if the indemnitor acknowledges its
responsibilities and obligations with respect to such
indemnification and elects to assume control of the defense
and settlement of that claim (a "Notice of Election").
(b) PROCEDURE FOLLOWING NOTICE OF ELECTION. If the indemnitor
delivers a Notice of Election relating to any claim within
the required notice period, the indemnitor shall be
entitled to have sole control over the defense and all
negotiations for the compromise or settlement of such
claim; provided that (i) the indemnitee shall be entitled
to participate in the defense of such claim and to employ
counsel at its own expense to assist in the handling of
such claim, and (ii) the indemnitor shall obtain the prior
written approval of the indemnitee before entering into any
settlement of such claim or ceasing to defend against such
claim. The indemnitor shall not be required to indemnify
the indemnitee for any amount paid or payable by the
indemnitee in the settlement of any claim for which the
indemnitor has delivered a timely Notice of Election if
such amount was agreed to without the written consent of
the indemnitor.
(c) PROCEDURE WHERE NO NOTICE OF ELECTION IS DELIVERED. If the
indemnitor does not deliver a Notice of Election relating
to any claim within the required notice period, the
indemnitee shall have the right to defend the claim in such
manner as it may deem appropriate, at the cost and expense
of the indemnitor. The indemnitor shall promptly reimburse
the indemnitee for all such costs and expenses.
14. DISPUTE RESOLUTION. If a dispute arises between the Parties
relating to this Agreement, the following procedure shall be implemented except
that either Party may seek injunctive relief from a court where appropriate in
order to maintain the status quo while this procedure is being followed:
14.1 INITIAL MEETING. The Parties shall hold a meeting promptly,
attended by persons with decision-making authority regarding the dispute,
to attempt in good faith to negotiate a resolution of the dispute;
provided, however, that no such meeting shall be deemed to vitiate or
reduce the obligations and liabilities of the Parties or be deemed a
waiver by a Party hereto of any remedies to which such Party would
otherwise be entitled hereunder.
14.2 MEDIATION. If within thirty (30) days after such meeting the
Parties have not succeeded in negotiating a resolution of the dispute,
they agree to submit the dispute to mediation in accordance with the
then-current Model Procedure for
CONFIDENTIAL
<PAGE>
10
Mediation of Business Disputes of the Center for Public Resources and to
bear equally the costs of the mediation.
14.3 APPOINTMENT OF MEDIATOR. The Parties will jointly appoint a
mutually acceptable mediator, seeking assistance in such regard from the
Center for Public Resources if they have been unable to agree upon such
appointment within twenty (20) days from the conclusion of the
negotiation period.
14.4 ARBITRATION. The Parties agree to participate in good faith in the
mediation and negotiations related thereto for a period of thirty (30)
days . If the Parties are not successful in resolving the dispute through
the mediation, then the Parties agree to submit the matter to binding
arbitration or a private adjudicator.
14.5 GENERAL PROCEDURE. Mediation or arbitration shall take place in
Pittsburgh, Pennsylvania unless otherwise agreed by the Parties.
Equitable remedies shall be available in any arbitration. Punitive or
exemplary damages shall not be awarded. This Section is subject to the
Federal Arbitration Act, 9 U.S.C.A. Section 1 ET SEQ.
14.6 ARBITRATION PROCEDURE. In the event of arbitration, the Parties
agree that the award of the arbitrator shall be (1) the sole and
exclusive remedy between them regarding any claims, counterclaims, or
issues presented to the arbitrator; (2) final and subject to no judicial
review; and (3) made and shall promptly be payable in U.S. dollars free
of any tax, deduction, or offset. The Parties further agree that any
costs, fees, or taxes incident to enforcing the award shall, to the
maximum extent permitted by law, be charged against the Party resisting
such enforcement. The Parties hereto agree that judgment on the
arbitration award may be entered and enforced in any court of competent
jurisdiction. Each Party shall, except as otherwise provided herein, be
responsible for its own costs, including legal fees, incurred in the
course of any arbitration proceedings. The fees of the arbitrator shall
be divided evenly between the Parties.
15. MISCELLANEOUS.
15.1 FORCE MAJEURE. Either Party's delay or failure to perform (except
for a Party's payment obligation) shall be excused for so long as, and to
the extent that, it is prevented from performing any of its obligations
under this Agreement, in whole or in part, as a result of delays caused
by fire, flood, earthquake, elements of nature or acts of God, riots,
civil disorders, rebellions or revolutions in any country, or any other
cause beyond the reasonable control of such Party (a "Force Majeure
Event"). The non-performing Party shall promptly notify the other Party
of the circumstances causing its delay or failure to perform and of its
plan and efforts to implement a workaround solution. For as long as such
circumstances prevail, the Party whose performance is delayed or hindered
shall continue to use reasonable efforts to minimize the length and
effect of
CONFIDENTIAL
<PAGE>
11
delays and shall re-commence performance after the cessation of the Force
Majeure Event.
15.2 BINDING NATURE AND ASSIGNMENT. This Agreement shall be binding on
the Parties hereto and their respective successors and assigns. Except as
otherwise provided in this Agreement, neither Party shall assign this
Agreement or delegate such Party's obligations hereunder without the
prior written consent of the other, except that either Party may assign
this Agreement without the consent of the other Party to an entity that
acquires all, or substantially all, of the business of the assigning
Party (provided that such entity is not a competitor of the other Party).
15.3 ENTIRE AGREEMENT, AMENDMENT, WAIVER. This Agreement, including the
Attachments referred to herein and attached hereto constitutes the entire
agreement between the Parties with respect to the subject matter hereof
and supersedes all prior agreements, whether written or oral, with
respect to the subject matter contained in this Agreement. No amendment
or modification or waiver of a breach of any term or condition of this
Agreement shall be valid unless in a writing signed by each of the
Parties. The failure of a Party to enforce, or the delay by either of
them in enforcing, any of their respective rights under this Agreement
will not be deemed a continuing waiver or a modification of any rights
hereunder and a Party may, within the time provided by applicable law and
consistent with the provisions of this Agreement, commence appropriate
legal proceedings to enforce any or all of its rights.
15.4 NOTICES. All notices, requests, demands, and determinations under
this Agreement (other than routine operational communications), shall be
in writing and shall be deemed duly given (i) when delivered by hand,
(ii) one (1) day after being given to an express, overnight courier with
a reliable system for tracking delivery, or (iii) six (6) calendar days
after the day of mailing, when mailed by United States mail, registered
or certified mail, return receipt requested, postage prepaid, and
addressed as follows:
In the case of Ford: Ford Motor Company
One American Road, 11th Floor
Dearborn, Michigan 48126
Attention: Vice President, Material Planning
and Logistics
With copies to: Ford Motor Company
One American Road
Dearborn, Michigan 48126
Attention: Assistant Tax Officer, Corporate
Finance
Ford Motor Company
CONFIDENTIAL
<PAGE>
12
Office of the General Counsel
One American Road, WHQ Suite 320
Dearborn, Michigan 48126
Attention: Assistant General Counsel --
Transactions
In the case of Vastera: Vastera Solutions Services Corporation
45025 Aviation Drive
Suite 200
Dulles, Virginia 20190-5602
Attention: General Counsel
With copies to: Vastera, Inc.
45025 Aviation Drive
Dulles, Virginia 20190-5602
Attention: Vastera designated Liaison
Any Party may from time to time change its address or designee for
notification purposes by giving the other prior written notice of the new
address or designee and the date upon which it will become effective.
15.5 COUNTERPARTS. This Agreement may be executed in several
counterparts, all of which taken together shall constitute one single
agreement between the Parties hereto.
15.6 SEVERABILITY. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed or
if any such provision is held invalid by an arbitrator or a court with
jurisdiction over the Parties, such provision shall be deemed to be
restated to reflect as nearly as possible the original intentions of the
Parties in accordance with applicable law. The remainder of this
Agreement shall remain in full force and effect.
15.7 CONSENTS AND APPROVAL. Except where expressly provided as being in
the discretion of a Party, where agreement, approval, acceptance,
consent, or similar action by either Party is required under this
Agreement, such action shall not be unreasonably delayed or withheld.
15.8 SURVIVAL. Any provision of this Agreement which contemplates
performance or observance after any termination or expiration of this
Agreement (in whole or in party) shall survive any termination or
expiration of this Agreement and continue in full force and effect.
15.9 THIRD PARTY BENEFICIARIES. This Agreement is entered into solely
between, and may be enforced only by, Ford and Vastera. This Agreement
shall not be deemed to create any rights in third parties, including
employees, suppliers and
CONFIDENTIAL
<PAGE>
13
customers of a Party, or to create any obligations of a Party to any such
third parties.
15.10 CHOICE OF LAW. This Agreement and performance under it shall be
governed by and construed in accordance with the laws of the State of
Michigan without regard to its choice of law principles.
15.11 NEGOTIATED TERMS. The Parties agree that the terms and conditions
of this Agreement are the result of negotiations between the Parties and
that this Agreement shall not be construed in favor of or against any
Party by reason of the extent to which any Party or its professional
advisors participated in the preparation of this Agreement.
15.12 TITLES AND HEADINGS. Titles and headings of Sections of this
Agreement are for convenience only and will not affect the construction
of any provision of this Agreement.
15.13 NO INDIVIDUAL AUTHORITY. Neither Party shall, without the express,
prior written consent of the other Party, take any action for or on
behalf of or in the name of the other Party, assume, undertake, or enter
into any commitment, debt, duty or obligation binding upon the other
Party, except for actions taken pursuant to agreements entered into
between such Party or its Affiliates and any other Party.
15.14 PARENT GUARANTY. In connection with this Agreement, Ford and
Vastera, Inc. have executed a Parent Guaranty, attached hereto as
Attachment D.
16. HSR ACT. Both Parties' obligations under this Agreement are
subject to the termination or expiration of any HSR Act waiting period
applicable to the Stock Transfer Agreement among Ford, Vastera and Vastera, Inc.
dated as of even date herewith. "HSR Act" is defined as the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and the related regulations and
published interpretations.
17. SEC. Both Parties' obligations under this Agreement are subject to
the receipt by Vastera of written approval or concurrence from the United States
Securities and Exchange Commission of its treatment of the transactions
contemplated by the Stock Transfer Agreement among Ford, Vastera, and Vastera,
Inc. dated as of even date herewith as a business combination applying the
purchase method of accounting under generally accepted accounting principles,
provided that the foregoing condition precedent shall be deemed waived by both
Parties in the event that no such written approval or concurrence has been
received by Vastera within sixty (60) days of the Effective Date.
IN WITNESS WHEREOF, the Parties hereto have duly executed this
Agreement as of the day and year first above written.
CONFIDENTIAL
<PAGE>
14
FORD MOTOR COMPANY VASTERA SOLUTIONS SERVICES
CORPORATION
By: /s/ Frank Taylor By: /s/ Arjun Rishi
---------------------------- -------------------------------
Title: Title:
------------------------- ----------------------------
<PAGE>
ATTACHMENT A*
Employee Census
---------------
* This portion of the document has been omitted pursuant to a request for
confidential treatment and such portion has been filed separately with the U.S.
Securities and Exchange Commission.
<PAGE>
ATTACHMENT B
LIAISONS
Ford: David Rich
*
Vastera: Gary Boone
*
---------------
* This portion of the document has been omitted pursuant to a request for
confidential treatment and such portion has been filed separately with the U.S.
Securities and Exchange Commission.
<PAGE>
ATTACHMENT C
Acknowledgment, Non-Disclosure and Confidentiality Agreement
<PAGE>
VASTERA
SECONDED FORD EMPLOYEE ACKNOWLEDGEMENT,
CONFIDENTIALITY
AND
INTELLECTUAL PROPERTY AGREEMENT
This Ford Employee Acknowledgement, Confidentiality and Intellectual Property
Agreement ("Agreement") is made by and between Vastera, Inc. ("Vastera"), a
Delaware corporation, and ______________________________________________________
_________"Ford Employee"). SECONDED FORD EMPLOYEE NAME (PLEASE PRINT)
WHEREAS, Vastera will have the use of Seconded Ford Employee's services with
Ford Motor Company's permission ("Ford") for a defined duration while the Ford
Employee remains a Ford employee subject to Ford's policies, procedures,
benefits and control and such Ford Employee will not be entitled to any Vastera
benefits or other forms of compensation; and
WHEREAS the Seconded Ford Employee will have access to Vastera's confidential
and trade secret information during the course of the secondment and Vastera
desires to ensure that its confidential and trade secret remain protected from
improper use or disclosure; and
WHEREAS, Vastera possesses information which has commercial value in the
business of Vastera, including trade secrets, processes, designs, concepts,
know-how, techniques, notes, marketing plans, strategies, forecasts, financial
and cost information, customer lists and other similar types of information not
generally known to the public ("Proprietary Information"); and
WHEREAS, Vastera is engaged in the development, marketing and sale of a broad
range of professional services on an international basis. Any Vastera developed
technology and activities constitute valuable assets, including the Proprietary
Information of Vastera and of third parties to which Ford Employee will gain
access during his secondment with Vastera; and
WHEREAS, the parties acknowledge the necessity of a relationship of trust and
confidence between Ford Employee and Vastera not only with respect to the duties
of Ford Employee pertaining to the discharge of his work-related functions, but
also the duty of Ford Employee to protect the Proprietary Information of
Vastera.
NOW THEREFORE, in consideration of the promises, terms, and conditions hereof,
the Ford Employee and Vastera agree as follows:
1.1 All Proprietary Information and other rights in connection therewith
shall be the sole property of Vastera and its successors and assigns. Ford
Employee hereby promises to assign and does assign to Vastera all right, title
and interest he has, may have, or subsequently may acquire in such Proprietary
Information. Ford Employee covenants to Vastera that he will execute, upon
request, any documentation, including assignments, required to vest exclusive
title to Proprietary Information in the name of Vastera.
1.2 At all times during Ford Employee's secondment and for the one (1) year
period following any termination of his secondment, Ford Employee will keep in
confidence the Proprietary Information of Vastera. Except as may be necessary in
the ordinary course of performing the duties of Ford Employee on behalf of
Vastera or Ford, Ford Employee will not use or disclose any Proprietary
Information or any matter related to the Proprietary Information without
Vastera's prior written consent. The obligations under this paragraph are
continuing and shall survive Ford Employee's termination of secondment with
Vastera, including the obligation of Ford Employee to decline employment, for a
period of one (1) year following any termination of secondment, by a third party
which by its nature will result in disclosure of Proprietary Information
belonging to Vastera.
<PAGE>
1.3 The Ford Employee will not take any documents or data from Vastera's
premises, or reproductions thereof, which relates to Proprietary Information,
except in connection with Ford Employee's performance of work-related duties.
Upon termination of the secondment, Ford Employee shall immediately deliver to
Vastera all documents and data of any nature pertaining to work with Vastera,
including copies thereof, and any Proprietary Information which the Ford
Employee has in his possession.
1.4 Ford Employee shall promptly disclose to Vastera any and all
improvements, inventions, whether or not patentable or copyrightable,
trademarks, formulas, processes, techniques, know-how and data, conceived, made,
reduced to practice or learned by Ford Employee either alone or with others,
during his secondment with Vastera. All such improvements, inventions, formulas,
processes, techniques, know-how, and data are hereinafter referred to as
"Inventions".
1.5 Ford Employee agrees that any Inventions made by Ford Employee whether
solely or together with others, during the term of his secondment, made with
Vastera's equipment, supplies, facilities, trade secrets, or time; or that
relate at the time of conception or reduction to practice to the business of
Vastera or Vastera's actual or demonstrably anticipated research or development;
or that result from any work performed by Ford Employee for Vastera, shall be
deemed to be a "work made for hire" as defined in Section 101 (b) of the
Copyright Act and belong solely to Vastera, and Ford Employee promises to and
hereby does assign to Vastera, without further compensation, all right, title
and interest he has, may have, or subsequently may acquire in such Inventions.
1.6 Ford Employee shall assist Vastera in obtaining patents or copyrights
on all Inventions, designs, improvements, and discoveries deemed patentable or
copyrightable by Vastera and the Ford Employee shall execute all documents,
including assignments, oaths and declarations, and do all things necessary to
obtain patent/copyright certificates on behalf of Vastera so as to vest Vastera
with full and exclusive title thereto, and to protect the Inventions from
infringement by others.
1.7 For purposes of this Agreement, an Invention is deemed made during the
term of secondment of Ford Employee if the Invention was conceived or first
reduced to practice during that period. Ford Employee agrees that any
application for a patent or copyright filed within one year of termination of
secondment under this Agreement shall be presumed to relate to an Invention made
during the term of this Agreement unless the Ford Employee can provide clear
evidence to the contrary and the parties hereto agree in writing.
1.8 Ford Employee agrees that Vastera shall have full discretion to
determine whether to keep such Invention as a trade secret subject to the
protections in this Agreement.
1.9 Ford Employee has identified on Appendix A, attached hereto and made a
part of this Agreement by reference, all Inventions or improvements relevant to
the subject matter of secondment by Vastera or business of Vastera that has been
conceived, made, or first reduced to practice by Ford Employee, alone or jointly
with others, prior to Ford Employee's secondment by Vastera, and which Ford
Employee desires to remove from the operation of this Agreement. Ford Employee
represents and warrants that such list is complete. If there is no such list on
Appendix A, Ford Employee represents that Ford Employee claims no such
Inventions and improvements exist at the time of signing this Agreement.
1.10 Ford Employee acknowledges that he will in good faith refrain from
conduct that would deprive Vastera of the employment benefits of performance by
Ford Employee.
2. Ford Employee acknowledges his secondment duties will provide access to
and/or possession of trade secrets and other confidential and Proprietary
Information of Vastera and shall provide Ford Employee with intimate knowledge
of Vastera's technology and operations. Accordingly, any Ford Employee
activities or employment that could constitute a breach of Section 1 of this
Agreement will cause irreparable harm to Vastera. If Ford Employee continues to
engage in such harmful activities or employment, Vastera may seek other
equitable relief as may be appropriate.
3. Ford Employee represents that during the period of his secondment by
Vastera, he will not, without the Vastera's prior written consent, engage in any
employment or business activity other than for Vastera which
2
<PAGE>
prevents him from properly performing his duties as a seconded Ford Employee of
Vastera or which presents a conflict of interest, as determined by Vastera with
the exception of assignments which may be given by Ford to the seconded Ford
Employee with Vastera's consent. Ford Employee further agrees that during the
period of his secondment by Vastera and for a period of one (1) year after his
date of termination of secondment by Vastera, Ford Employee will not, directly
or indirectly, (i) solicit, hire or otherwise induce any Vastera employee to
leave Vastera's employ, or (ii) solicit the business of any client or customer
of Vastera (other than on behalf of Vastera or Ford Motor Company).
4. Ford Employee acknowledges that his secondment with Vastera is
terminable at the sole discretion of Ford Motor Company but he may request a
change of assignment as provided by Ford's policies and procedures. Ford
Employee further acknowledges his understanding that no representation, express
or implied, is intended to be made by Vastera of continued secondment by reason
of execution of this Agreement. Unless otherwise agreed to in writing, Ford
Employee is, and shall remain, a terminable-at-will Ford Employee subject to
Ford's policies, procedures, benefits and requirements.
5. Ford Employee acknowledges that the Vastera has received, and in the
future will receive from third parties, confidential or proprietary information
("Third Party Information") subject to a duty on Vastera's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. During the term of secondment and thereafter, Ford Employee will hold
Third Party Information in the strictest confidence and will not disclose (to
anyone other than Vastera personnel who need to know such information in
connection with their work for Vastera) or use, except in connection with Ford
Employee's work for Vastera, Third Party Information unless expressly authorized
by an officer of Vastera in writing.
6. Ford Employee represents that during his secondment by Vastera, Ford
Employee will not improperly use or disclose any confidential information or
trade secrets, if any, of any former Vastera employee or any other person to
whom Ford Employee has an obligation of confidentiality, and Ford Employee will
not bring onto the premises of Vastera any unpublished documents or any property
belonging to any former Vastera employee or any other person to whom Ford
Employee has an obligation of confidentiality unless consented to in writing by
that former Vastera employee or person. Ford Employee will use in the
performance of his duties only information which is generally known and used by
persons with training and experience comparable to his own, which is common
knowledge in the industry or otherwise legally in the public domain, or which is
otherwise provided or developed by Vastera.
7. Ford Employee represents that he is not bound by any prior agreement or
arrangement, or subject to any judgment, decree or order of any court or
administrative agency, which would conflict with the obligation of Ford Employee
to diligently promote and further the interests of Vastera's business as now or
hereafter conducted.
8.1 This Agreement is binding upon and inures to the benefit of Ford
Employee and Vastera, and their respective heirs, executors, administrators,
successors and assigns.
8.2 The parties intend that each provision of this Agreement shall be
construed and interpreted in such a manner as to be effective and valid under
applicable law. If any provision in this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remaining
provisions hereof shall nevertheless continue in full force without being
impaired or invalidated in any manner.
8.3 If any of the covenants contained in Sections 1 or 3 are held to be
unenforceable because of the duration or scope of such provision, the parties
agree that the court making the determination shall have the power to reduce the
duration and/or scope of such provision and, in its reduced form, the provision
shall be enforceable.
8.4 Any notices to be given by either party to the other may be effected
either by personal delivery in writing or by first-class mail, postage prepaid.
Each party may change its address by written notice to the other party in
accordance with this paragraph. Notices delivered personally shall be deemed
communicated as of the date of actual receipt; mailed notices shall be deemed
communicated as of the date which is three business days after being deposited
in the U.S. mail.
3
<PAGE>
8.5 Ford Employee services are personal and unique, and because Ford
Employee may have access to and become acquainted with the Proprietary
Information of Vastera, Vastera shall have the right to enforce this Agreement
and any of its provisions by injunction, specific performance or other equitable
relief, without bond and without prejudice to any other rights and remedies that
Vastera may have for a breach of this Agreement.
8.6 All promises and covenants contained herein shall survive termination
of the secondment and any affirmative assistance covenanted to be performed on
the part of Ford Employee shall be performed beyond the date of termination of
secondment but Vastera will pay all reasonable costs for such affirmative
assistance to perfect intellectual property rights.
8.7 Any controversy or claim arising out of or relating to this Agreement,
or the breach thereof, shall be settled by binding arbitration in accordance
with the commercial rules of the American Arbitration Association and judgment
on the award rendered may be entered into any court having jurisdiction thereof.
Arbitration hearings shall be heard by a sole arbitrator in Fairfax, Virginia or
in such other location as Vastera and the Ford Employee may agree.
8.8 If any action at law or equity is deemed necessary by Vastera to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs, and disbursements in addition to
any other relief to which he may be entitled.
8.9 This Agreement supersedes any and all other agreements, discussions and
understandings, either oral or in writing, between the parties with respect to
the secondment of Ford Employee by Vastera and contains all of the covenants and
agreements between these parties with respect to that employment. Each party to
this Agreement acknowledges that no representations, inducements, promises, or
agreements, orally or otherwise, have been made by any party, or anyone acting
on behalf of any party, which are not embodied herein, and that no other
agreement, statement, or promise not contained in this Agreement shall be valid
and binding. Any modification of this Agreement will be effective only if it is
in writing signed by the parties hereto.
8.10 Nothing in this Agreement, express or implied, is intended to confer
any rights or remedies under this Agreement on any persons other than the
parties hereto and their respective successors and assigns.
8.11 This Agreement shall be governed by and construed in accordance of the
laws of the Commonwealth of Virginia.
I HAVE READ THIS AGREEMENT CAREFULLY AND AGREE TO ITS TERMS. I HAVE COMPLETELY
FILLED OUT AND SIGNED EXHIBIT "A" TO THIS AGREEMENT.
EXECUTED THIS __________ DAY OF _______________________, 200________.
FORD EMPLOYEE NAME: __________________________________________________________
(PLEASE PRINT)
HOME ADDRESS: ________________________________________________________________
________________________________________________________________
FORD EMPLOYEE SIGNATURE: _____________________________________________________
4
<PAGE>
EXHIBIT A
TO FORD EMPLOYEE ACKNOWLEDGEMENT, CONFIDENTIALITY
AND INTELLECTUAL PROPERTY AGREEMENT
Vastera, Inc.
45025 Aviation Drive, Suite 300
Dulles, Virginia 20166
Attn: Human Resources
1. The following is a complete list of all Inventions or improvements
requested to be identified by Section 1.9 of the Ford Employee
Acknowledgement, Confidentiality and Intellectual Property Agreement
that have been made or conceived or first reduced to practice by me
alone or jointly with others prior to my secondment by Vastera:
_____ NO INVENTIONS OR IMPROVEMENTS
_____ See below:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
_____ Due to confidentiality agreements with prior or current
employers, I cannot disclose certain inventions that would
otherwise be included on the above-described list.
_____ Additional sheets attached.
2. I propose to bring to my secondment by Vastera the following devices,
materials and documents of a former employer or other person to whom I
have an obligation of confidentiality that are not generally available
to the public, which materials and documents may be used in my
secondment pursuant to the express written authorization of my former
employer or such other person (a copy of which is attached hereto):
_____ NO MATERIAL
________________________________________________________________________________
FORD EMPLOYEE NAME (Please Print)
__________________________________________________ _________________________
FORD EMPLOYEE SIGNATURE DATE
________________________________________________________________________________
TO BE COMPLETED BY VASTERA HUMAN RESOURCES:
___ NO DISCLOSURE: FILE IN PERSONNEL FILE ______________________________
(BY: HR REP) DATE
___ DISCLOSURE: FORWARD TO VASTERA'S GENERAL COUNSEL _________________________
(BY: HR REP) DATE
5