ANY WAY THE RIGHTS TO INDEMNIFICATION
UNDER THIS SECTION WITH RESPECT TO ANY ACTION, SUIT OR PROCEEDING ARISING OUT
OF, OR RELATING TO, ANY EVENT OR ACT OR OMISSION OCCURRING OR FACT OR
CIRCUMSTANCE EXISTING BEFORE THE AMENDMENT, TERMINATION OR OTHER ELIMINATION.
(F)
CONTINUATION OF RIGHT TO INDEMNIFICATION.
ALL RIGHTS TO INDEMNIFICATION
UNDER THIS SECTION WILL CONTINUE AS TO A PERSON WHO HAS CEASED TO BE A DIRECTOR
OR OFFICER, WILL INURE TO THE BENEFIT OF THE HEIRS, EXECUTORS, ADMINISTRATORS
AND THE ESTATE OF THAT PERSON, AND WILL BE DEEMED TO BE A CONTRACT BETWEEN THE
COMPANY AND EACH SUCH PERSON.
THIS SECTION SHALL BE BINDING UPON ANY SUCCESSOR
TO THE COMPANY, WHETHER BY WAY OF MERGER, CONSOLIDATION, LIQUIDATION,
DISSOLUTION OR OTHERWISE.
18
(G)
SAVINGS CLAUSE.
IF THIS SECTION OR ANY PORTION OF IT IS INVALIDATED ON
ANY GROUND BY ANY COURT OF COMPETENT JURISDICTION, THEN THE COMPANY WILL
NEVERTHELESS INDEMNIFY PERSONS SPECIFIED IN THIS SECTION TO THE FULL EXTENT
PERMITTED BY ANY APPLICABLE PORTION OF THIS SECTION THAT HAS NOT BEEN
INVALIDATED.
5.12
AVERAGE COST SAVINGS.
(A)
PURCHASING COMMITTEE.
THE COMPANY WILL ESTABLISH A STEERING COMMITTEE
(THE "PURCHASING COMMITTEE") DESIGNED TO (I) MANAGE PURCHASING DECISIONS ON
BEHALF OF THE COMPANY AND (II) REPORT TO THE BOARD OF DIRECTORS ON THE COMPANY'S
PROGRESS IN REALIZING ON COST SAVINGS OBJECTIVES SET FORTH IN THIS SECTION 5.12
AND THE BUSINESS PLAN.
EACH OF THE COMPANY, INTERNATIONAL AND MONACO SHALL
APPOINT ONE MEMBER OF THE PURCHASING COMMITTEE.
THE INITIAL APPOINTMENTS BY
EACH MEMBER SHALL BE DIRECTOR-LEVEL APPOINTEES OF SUCH MEMBER.
(B)
EFFORTS BY THE MEMBERS.
THE MEMBERS SHALL USE THEIR COMMERCIALLY
REASONABLE EFFORTS TO ACHIEVE THE AVERAGE COST SAVINGS SUFFICIENT TO MEET THE
PERIODIC TARGETS SET FORTH IN SECTION 5.12(E) BELOW.
(C)
PURCHASING EFFORTS BY INTERNATIONAL.
INTERNATIONAL SHALL USE ITS
COMMERCIALLY REASONABLE EFFORTS TO PERMIT THE COMPANY TO BE ENTITLED TO MAKE
PURCHASES ON THE SAME PRICES AND TERMS AS INTERNATIONAL AND ITS AFFILIATES UNDER
SUPPLY AGREEMENTS ENTERED INTO BY INTERNATIONAL (OR ITS AFFILIATES) RELATING TO
THE SUPPLY OF COMPONENT PARTS USED BY THE BUSINESS.
INTERNATIONAL SHALL ALSO
USE ITS COMMERCIALLY REASONABLE EFFORTS TO SPECIFICALLY ADDRESS THE PURCHASING
NEEDS OF THE COMPANY IN ITS FUTURE NEGOTIATIONS WITH SUPPLIERS OF COMPONENT
PARTS.
(D)
MEASUREMENT OF AVERAGE COST SAVINGS.
AS SOON AS REASONABLY PRACTICABLE,
BUT IN NO EVENT MORE THAN 10 BUSINESS DAYS, AFTER EACH MEASUREMENT DATE, THE
PURCHASING COMMITTEE SHALL SUBMIT TO THE BOARD OF DIRECTORS (I) ITS
DETERMINATION OF THE ACTUAL PER UNIT COST FOR EACH CHASSIS AND (II) ITS
CALCULATION OF THE AVERAGE COST SAVINGS AS OF SUCH MEASUREMENT DATE.
FOR
AVOIDANCE OF DOUBT, ANY CALCULATION OF THE AVERAGE COST SAVINGS SHALL BE MADE
ACCORDING TO THE PROCEDURES AND METHODOLOGIES WHICH SHALL BE AGREED BY THE
PARTIES IN WRITING.
THE BOARD OF DIRECTORS SHALL USE ITS COMMERCIALLY
REASONABLE EFFORTS TO APPROVE A FINAL MEASUREMENT OF THE AVERAGE COST SAVINGS AS
SOON AS PRACTICABLE AFTER ITS RECEIPT OF THE CALCULATION OF THE PURCHASING
COMMITTEE.
IF THE BOARD OF DIRECTORS APPROVES THE MEASUREMENT