EXHIBIT 10.9
TECHNOLOGY LICENSE AGREEMENT
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THIS AGREEMENT, effective as of December 1, 1997 (referred to in this
Agreement as the "Effective Date"), is made between GILBARCO INC., a corporation
of Delaware having a place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (referred to in this Agreement as "GILBARCO," and TOKHEIM
CORPORATION, a corporation of Indiana having a place of business at ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (referred to in this Agreement as
"TOKHEIM").
WHEREAS, GILBARCO is the owner, by assignment, of U.S. Patent Nos. Re.
35,238 granted May 14, 1996 as a reissue of U.S. Patent No, 5,040,577 granted
August 20, 1991 entitled "Vapor Recovery System for Fuel Dispenser," and U.S.
Patent No. 5,355,915 granted October 18, 1994 entitled "Vapor Recovery
Improvements," and U.S. Patent No. 4,876,653 granted October 24, 1989 entitled
"Programmable Multiple Blender," and U.S. Patent No. 5,407,115 granted April 18,
1995 entitled "Printed Receipt Severing," and also is the owner of certain
inventions in vapor recovery and gasoline dispensing systems which are described
and claimed in those patents;
WHEREAS, TOKHEIM is a manufacturer of gasoline dispensing systems and
desires to obtain a license under GILBARCO's patents and to use its vapor
recovery and gasoline dispensing system technology;
WHEREAS, GILBARCO and TOKHEIM are currently parties to Civil Action No.
2:95CV00581 now pending in the United States District Court for the Middle
District of North
Carolina ("Lawsuit"), in which GILBARCO charges TOKHEIM with committing
infringement of GILBARCO's Patent Rights and acts of unfair competition in
violation of N.C.G.S. 75-1.1;
WHEREAS, GILBARCO and TOKHEIM desire to compromise and settle said
litigation pursuant to the terms of this Agreement, including the entry by the
Court of the Consent Judgment appended hereto as Exhibit A; and
WHEREAS, TOKHEIM desires to exploit products incorporating GILBARCO's
patented inventions and its technology.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
recited and other good and valuable consideration, the parties hereto agree as
follows.
ARTICLE I - DEFINITIONS
For the purpose of this Agreement, the following terms shall have the
following meanings:
1.1 "GILBARCO's Patent Rights" shall mean United States Patent No. Re.
35,238 granted May 14, 1996 as a reissue of United States Patent No. 5,040,577
granted August 20, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Patent No. 5,355,915 granted October 18,
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Patent No. 4,876,653 granted October 24, 1989, and United
States Patent No. 5,407,115 granted April 18, 1995, and all foreign counterpart
patents thereof, and all reissues, reexaminations, divisions, continuations, or
continuations-in-part of said patents.
1.2 "Vapor Recovery Licensed Product" shall mean a TOKHEIM vacuum-assist
vapor recovery system if the completed combination or any portion thereof is
claimed in
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GILBARCO's Patent Rights, including TOKHEIM's MaxVac(R) vapor recovery products.
Vapor Recovery Licensed Products may have any number of hoses, up to eight (8),
either active or inactive, per dispenser, and up to two (2) sides per dispenser.
1.3 "Electronic Blending Licensed Product" shall mean a TOKHEIM electronic
fuel blending system if the completed combination or any portion thereof is
claimed in GILBARCO's Patent Rights, including TOKHEIM's Model -REB, -B3 and -B5
electronic blender products. Electronic Blending Licensed Products may have any
number of hoses, up to eight (8), either active or inactive, per dispenser, and
up to two (2) sides per dispenser.
1.4 "Receipt Severing Licensed Product" shall mean a TOKHEIM printed
receipt severing device utilizing a blade, if the completed combination or any
portion thereof is claimed in GILBARCO's Patent Rights, including TOKHEIM's
present models of print severing receipt devices utilizing a peaked stationary
blade. Receipt Severing Licensed Products may have any number of hoses up to
eight (8) and up to two (2) sides per dispenser.
1.5 "Licensed Products" shall mean Vapor Recovery Licensed Products,
Electronic Blending Licensed Products, Receipt Severing Licensed Products, and
TOKHEIM gasoline pumps or dispensers incorporating Vapor Recovery Licensed
Products, Electronic Blending Licensed Products, and Receipt Severing Licensed
Products, and Related Technology, if the completed combination or any portion
thereof is claimed in GILBARCO's Patent Rights.
1.6 "Related Technology" shall mean the inventions in vapor recovery
and gasoline dispensing systems which are described in GILBARCO's Patent Rights.
1.7 "Subsidiary" shall mean a firm, company, or corporation in which a
party owns or controls, directly or indirectly, at least a majority of the
voting stock or control.
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1.8 "Parent" shall mean a firm, company, or corporation which owns or
controls, directly or indirectly, at least a majority of the voting stock or
control of a party. For the purpose of this definition, the stock owned or
controlled by a particular firm, company or corporation shall be deemed to
include all stock owned or controlled, directly or indirectly, by any other
firm, company or corporation of which the particular firm, company or
corporation owns or controls, directly or indirectly, at least a majority of the
stock having the right to vote for directors thereof.
1.9 "Affiliate" shall mean a firm, company, or corporation as to which a
majority of the voting stock or control is owned or controlled, directly or
indirectly, by a Parent of the party.
ARTICLE II - GRANTS
2.1 Subject to the terms and conditions of this Agreement, and the entry
by the Court of the Consent Judgment appended as Exhibit A, GILBARCO hereby
grants to TOKHEIM for the term of this Agreement a nonexclusive, nontransferable
(except as provided herein) worldwide license under GILBARCO's Patent Rights to
make, have made, use, offer to sell and sell Licensed Products throughout the
world, together with the right to convey to direct and indirect purchasers of
such Licensed Products a nonexclusive license under GILBARCO's Patent Rights to
use such Licensed Products so purchased, and the right to grant sublicenses with
such grant to Subsidiaries. Affiliates and Parents of TOKHEIM, but no other
sublicensing right is granted.
ARTICLE III - ROYALTIES
3.1 As license fees for the transfer and license of GILBARCO's Patent
Rights and Related Technology, and for technical assistance and consulting
services provided by
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GILBARCO by mutual consent of both parties, until the expiration of the last of
GILBARCO's Patent Rights as set forth in Article V, paragraph 5.2 of this
Agreement, TOKHEIM shall make the following payments:
A. Three Million Dollars ($3,000,000) as a fixed royalty, payable in equal
quarterly installments over three (3) years (or twelve (12) quarterly
installments of $250,000 each), plus interest at a rate per annum equal to the
"prime rate" published by "The Wall Street Journal" at the time such payment is
due. Such interest shall accrue from the Effective Date of this Agreement. The
first of said installments shall be due and payable with the first quarterly
royalty report, and payment, if any, which is due after the Effective Date of
this Agreement, and each installment thereafter shall be due and payable with
each quarterly royalty report and payment, if any, due, pursuant to Article IV,
paragraph 4.2 of this Agreement (i.e., such installment payments shall be due
for the first such year on April 30, July 30 and October 30, 1998, and on
January 30, 1999; for the second such year on April 30, July 30 and October 30,
1999, and on January 30, 2000; and for the third such year on April 30, July 30
and October 30, 2000, and on January 30, 2001).
▇. ▇▇▇▇▇▇▇ acknowledges and agrees that the fixed royalty and installment
payments due under Article III, paragraph 3.1.A of this Agreement are
nonrefundable and shall be paid in full, regardless of any disputes or
disagreements which may arise at any time under this Agreement, including, but
not limited to, termination under Article V.
3.2 In addition to the fixed royalty payable to GILBARCO pursuant to
Article III, paragraph 3.1 above, TOKHEIM shall also pay GILBARCO the following
earned royalties, for each Licensed Product manufactured, used or sold by
TOKHEIM subsequent to the Effective
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Date of this Agreement:
A. (*1) per dispenser side for each dispenser side incorporating or
retrofitting a Vapor Recovery Licensed Product, or (*2) for each two sided
dispenser incorporating or retrofitting Vapor Recovery Licensed Products on both
sides.
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(*1) Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
(*2) Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
B. (*3) per dispenser side for each dispenser side incorporating or
retrofitting an Electronic Blending Licensed Product, or (*4) for each two sided
dispenser incorporating or retrofitting Electronic Blending Licensed Products on
both sides.
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(*3) Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
(*4) Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
C. (*5) per dispenser side for each dispenser side incorporating or
retrofitting a Receipt Severing Licensed Product, or (*6) for each two-sided
dispenser incorporating or retrofitting Receipt Severing Licensed Products on
both sides.
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(*5) Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
(*6) Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
3.3 Royalties and payments provided for in this Agreement in Article III,
paragraphs 3.1 and 3.2, when overdue, shall bear interest at a rate per annum
equal to two percent (2%) in excess of the "prime rate" published by "The Wall
Street Journal" at the time such payment is due, and for the time period until
payment is received by GILBARCO.
3.4 The earned royalties accrued or paid by TOKHEIM under the terms of
Article III, paragraph 3.2 of this Agreement shall also be nonrefundable.
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ARTICLE IV - ACCOUNTING PROVISIONS
4.1 Records
TOKHEIM shall keep or cause to be kept, in accordance with generally
accepted accounting principles, books, records and accounts covering its
operations applicable to this Agreement and containing all information necessary
for the accurate determination of amounts payable hereunder. TOKHEIM also agrees
to permit a mutually agreed to, certified public accountant, which agreement
shall not be unreasonably withheld by TOKHEIM, to inspect, at GILBARCO's
expense, at reasonable intervals and during regular business hours, such books,
records and accounts as may be necessary to determine the completeness and
accuracy of reports required to be made hereunder. Such certified public
accountant shall agree to keep all TOKHEIM information confidential. In the
event such inspection reveals that the reports provided by TOKHEIM pursuant to
Article 4.2 below understate the number of Licensed Products sold by an amount
which is five percent (5%) or more, then TOKHEIM shall bear the cost of such
inspection.
4.2 Reports and Payment
A. As promptly as practicable and within thirty (30) days after the end
of each calendar quarter, any part of which is within the term of this
Agreement, TOKHEIM shall deliver to GILBARCO a report in writing, certified by
an officer of TOKHEIM, setting forth the number and type of Licensed Products
sold during such calendar quarter by TOKHEIM. Such report shall be made whether
or not TOKHEIM has made any sales during such quarter. TOKHEIM agrees to
accompany each such report with payment of the royalties, if any, due to
GILBARCO for TOKHEIM's sales during the period for which such report is made.
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▇. ▇▇▇▇▇▇▇ shall also provide GILBARCO an annual summary within sixty
(60) days after the completion of each of TOKHEIM's fiscal years, prepared by an
independent accounting firm which at the time shall be used by TOKHEIM as its
auditors attesting to the number of Licensed Products sold by TOKHEIM in that
fiscal year. The examination of books and records and preparation of this annual
report shall be at the expense of TOKHEIM.
ARTICLE V - TERM AND TERMINATION
5.1 Term
The term of this Agreement shall be from the Effective Date until the
expiration or lapsing of the last of GILBARCO's Patent Rights as set forth below
in this Article V, paragraph 5.2 of this Agreement.
5.2 Royalty Payments and Termination of Patents
A. Royalty Payments and Expiration or Lapse of Patents
TOKHEIM's obligation to GILBARCO for earned royalty payments for Vapor
Recovery Licensed Products in this Agreement under Article III, paragraph 3.1
shall cease with the last to lapse or expire of GILBARCO's U.S. Patent Nos. Re.
35,238 and 5,355,915, i.e., October 18, 2011; TOKHEIM's obligation to GILBARCO
for earned royalty payments for Electronic Blending Licensed Products in this
Agreement under Article III, paragraph 3.1 shall cease with the lapse or
expiration of GILBARCO's U.S. Patent No. 4,876,653, i.e., October 24, 2006;
TOKHEIM's obligation to GILBARCO for earned royalty payments for Receipt
Severing Licensed Products in this Agreement under Article III, paragraph 3.1
shall cease with the lapse or expiration of GILBARCO's U.S. Patent No.
5,407,115, i.e., April 18, 2012.
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B. Royalty Payments and Invalidity or Unenforceability of Patents
In the event any of the foregoing patents are found to be invalid, void or
unenforceable by a final decision of a court from which no appeal may be taken,
TOKHEIM's obligations to pay earned royalties for that patent under the
appropriate Paragraph of Article III, paragraph 3.2 shall cease. In no event
shall this Paragraph affect TOKHEIM's obligation to pay the fixed royalty, or
any of the installment payments due, under Article III., paragraph 3.1 of this
Agreement.
5.3 Termination
A. GILBARCO, at its option, may terminate the License granted by it under
this Agreement if TOKHEIM fails to make any of the payments due under this
Agreement, or defaults in the performance of any material obligation and if the
default has not been remedied within ninety (90) days after written notice by
GILBARCO to TOKHEIM describing the default, except that in the case of a default
GILBARCO may not terminate if the matter is being arbitrated pursuant to Article
XI.
▇. ▇▇▇▇▇▇▇ shall inform GILBARCO of any filing of a voluntary petition of
bankruptcy, or another party's filing of an involuntary petition of bankruptcy,
in writing within thirty (30) days of the filing of such a petition. Such
filing shall be a material breach of this Agreement and shall entitle GILBARCO,
at its sole discretion, to immediately terminate this Agreement as of the
effective date of the filing of such petition.
ARTICLE VI - GOVERNING LAW
This Agreement shall be governed and interpreted in accordance with the
laws of the State of North Carolina, except to the extent that North Carolina's
conflict of law rules would
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indicate the application of the law of another state or country. TOKHEIM
further consents to the jurisdiction over it of the State and federal courts of
North Carolina for the purpose of resolving any disputes, claims or
controversies arising out of this Agreement, other than any disputes, claims or
controversies which are subject to adjudication by the arbitration provisions of
Article XI of this Agreement.
ARTICLE VII-ENFORCEMENT OF GILBARCO'S PATENT RIGHTS
7.1 TOKHEIM shall promptly notify GILBARCO and provide evidence and
documentation of any infringement by another of GILBARCO's Patent Rights in the
United States, insofar as such rights relate to Licensed Products hereunder. If
such evidence and documentation establishes that a third party is actually
infringing any of GILBARCO's Patent Rights in the United States to the
substantial detriment of TOKHEIM, while TOKHEIM is paying earned royalties to
GILBARCO pursuant to the provisions of this Agreement and is not in material
breach of any term or condition hereof, and if GILBARCO within a period of six
(6) months after receiving such written notice of infringement and such evidence
and documentation of actual infringement from TOKHEIM fails to institute legal
action against such unlicensed third party to enjoin such unlicensed activities,
or fails to reasonably satisfy TOKHEIM that such unlicensed activities will
cease, TOKHEIM shall have the right, at its expense, to institute legal action
against such unlicensed third party and to retain any royalties or other damages
collected as a result of such legal action, provided that TOKHEIM shall keep
GILBARCO fully and promptly advised with respect to such legal action and, in
particular, all challenges to the validity and enforceability of GILBARCO's
Patent Rights, and shall permit GILBARCO to join such
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action, at GILBARCO's expense, if GILBARCO so desires. If GILBARCO is required
to join such legal action under the rules of the jurisdiction, GILBARCO will do
so at TOKHEIM's expense.
7.2 The existence of any known or suspected infringement by another of
GILBARCO's Patent Rights shall not entitle TOKHEIM to cease the payment of
earned royalties pursuant to the terms of ARTICLE III.
ARTICLE VIII - GENERAL TERMS AND CONDITIONS
8.1 Relationship of the Parties
This Agreement does not constitute a partnership agreement, nor does it
create a joint venture or agency relationship between the Parties. Neither Party
shall hold itself out contrary to the terms of this Paragraph. Neither Party
shall be liable to any third party for the representations, acts or omissions of
the other party.
8.2 Notices
Unless otherwise expressly provided for, all notices required under this
Agreement must be in writing and must be delivered personally or sent by
certified mail (postage prepaid and return receipt requested) to the other Party
at the address set forth below (or to any other address given by either Party to
the other Party in writing):
For GILBARCO:
GILBARCO INC.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attn: Office of the General Counsel
For TOKHEIM:
TOKHEIM CORPORATION
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Office of the General Counsel
In the case of mailing, the effective date of delivery of any notice shall be
considered to be ten (10) days after proper mailing.
8.3 Waiver and Amendment
No waiver, amendment or modification of this Agreement shall be effective
unless in writing and signed by the party against whom the waiver, amendment or
modification is sought to be enforced. No failure or delay by either Party in
exercising any right power or remedy under this Agreement shall operate as a
waiver of the right, power or remedy. No waiver of any term, condition or
default of this Agreement shall be construed as a waiver of any other term,
condition or default.
8.4 Assignment
TOKHEIM may not assign any rights or obligations under this Agreement
without GILBARCO's prior written consent except that the respective rights and
obligations of TOKHEIM under this Agreement shall be assignable without the
consent of GILBARCO, but subject to prior notice, to any person or entity who
acquires all of that portion of TOKHEIM's business to which this Agreement
relates, in which event the assignee shall enjoy the benefits of, and be bound
by the respective rights and obligations of TOKHEIM hereunder. Any other
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assignment of this Agreement or the rights hereunder by TOKHEIM shall be void
and of no effect unless consented to in writing by GILBARCO. GILBARCO has the
right to assign this Agreement and to assign its rights under this Agreement,
in whole or in part, at any time and without TOKHEIM's consent.
8.5 Entire Agreement
This Agreement constitutes the complete and final agreement between the
parties, and supersedes all prior negotiations and agreements between the
parties concerning its subject matter. The interpretation of this Agreement may
not be explained or supplemented by any course of dealing or performance, or by
usage of trade.
8.6 Patent Marking
TOKHEIM agrees to ▇▇▇▇ every device manufactured by or sold by it under
this Agreement in accordance with the statutes of the United States relating to
marking of patented articles.
8.7 Heading
The section and paragraph headings of this Agreement are intended as a
convenience only, and shall not affect the interpretation of its provisions.
8.8 Singular and Plural Terms
Where the context of this Agreement requires, singular terms shall be
considered plural, and plural terms shall be considered singular.
8.9 Severability
If any provision of this Agreement is finally held by a court of competent
jurisdiction to be unlawful, the remaining provisions of this Agreement shall
remain in full force and effect, unless as a result of such unlawful provision
there is a material failure of consideration as to a
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party and such party is unwilling to waive such failure.
ARTICLE IX -- WARRANTIES
9.1 GILBARCO represents and warrants that it owns GILBARCO's Patent Rights
and that such rights are not the subject of any encumbrance, lien or claim of
ownership by any third party.
9.2 TOKHEIM understands, acknowledges and agrees that, except as
specifically provided herein, GILBARCO DOES NOT MAKE ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, A
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), IN RESPECT OF
THE GILBARCO'S PATENT RIGHTS AND RELATED TECHNOLOGY, FOR ANY PRODUCTS PRODUCED
BY OR FOR TOKHEIM, OR ANY OTHER SUBJECT MATTER HEREOF.
ARTICLE X -- CONFIDENTIALITY OF AGREEMENT
The terms and conditions of this Agreement shall be kept confidential by
both parties hereto and shall not be disclosed by either party without the prior
written consent of the other, except as may be required by law or by order of a
court, or as required by the provisions of any license agreement to which
GILBARCO is a party, provided, however, TOKHEIM may disclose the terms and
conditions of this Agreement to Nuovo ▇▇▇▇▇▇▇'▇ counsel, pursuant to the
Protective Order in this case as "Confidential Counsel Only" without prior
written consent of GILBARCO. Nothing in this Paragraph, however, shall preclude
either party from announcing
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that an agreement has been reached between the parties settling the disputes
between them and that GILBARCO has granted and TOKHEIM has received a license
under GILBARCO's Patent Rights and to use its Related Technology.
ARTICLE XI -- ARBITRATION
11.1 Provision for Arbitration
Any controversy or claim arising out of or relating to this Agreement, or
breach thereof, if not otherwise settled by the parties, shall be settled by
expedited binding arbitration in accordance with the Rules of the American
Arbitration Association, and judgment upon any award rendered by the
arbitrators may be entered in any court having jurisdiction thereof, provided,
however, that the arbitrators shall not have the power to either amend this
Agreement in any respect, or to arbitrate any issue of the validity,
enforceability or infringement of GILBARCO's Patent Rights. The arbitration
award shall then have the same force and effect as if the award and decision
were made and entered by a court. The arbitration proceedings shall be conducted
in Greensboro, North Carolina, and shall be conducted by an arbitrator who shall
be experienced in the field to which the issues relate and approved by both
Parties and who shall have no financial interest or relation to the subject
matter or the Parties hereto.
11.2 Commencement
GILBARCO or TOKHEIM may commence an arbitration proceeding under this
Section by giving written notice to the other party, which notice shall set
forth the matters to be arbitrated. The other party shall respond within thirty
(30) days upon receipt of such notice. Thereafter the arbitrator shall be
selected in accordance with the Rules of the American
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Arbitration Association and the provisions of Article XI, paragraph 11.1 above.
11.3 Expenses and Costs
Until a determination hereunder, the parties shall share equally in the
payment of the expenses of the arbitrator. As part of any award, the arbitrator
may award the payment of arbitration expenses to the prevailing party.
11.4 Rules of Procedure
In the event that the Rules of the American Arbitration Association do not
cover a question arising during arbitration, then the laws of the United States
of America and the State of North Carolina pertaining to arbitration shall
apply. The arbitrators shall provide for discovery, pursuant to the Federal
Rules of Civil Procedure and the Federal Rules of Evidence, for a reasonable
period following the selection of the arbitrator, with questions relating to
such discovery determined by the arbitrator.
ARTICLE XII - FORCE MAJEURE
12.1 Neither Party shall be responsible to the other for failure to
perform any of the obligations (other than the obligation to pay money) imposed
by this Agreement, provided such failure shall be caused directly by fire,
explosion, lightening, windstorm, earthquake, subsidence of soil, failure or
destruction, in whole or in part, of machinery or equipment or failure of supply
of materials, discontinuity in the supply of power, governmental interference,
civil commotion, riot, war, strikes, labor disturbance, transportation
difficulties, labor shortage or by any cause beyond the reasonable control of
the Party in question.
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ARTICLE XIII - RELEASE AND SETTLEMENT
13.1 In consideration of the promises and covenants contained herein, the
parties hereto agree as follows:
A. Release by GILBARCO. Subject to the provisions of this Agreement
--------------------
and the entry of the Consent Judgment appended as Exhibit A, GILBARCO hereby
releases and forever discharges TOKHEIM, together with its directors, officers,
agents, stockholders, as well as its/their heirs, assigns, suppliers and
successors, from any and all claims, demands, liabilities, actions or causes of
action of whatsoever kind or nature which GILBARCO has or may have as a result
of or arising out of the subject matter of GILBARCO's Patent Rights and/or the
Lawsuit. Subject to the provisions of this Agreement and the entry of the
Consent Judgment appended as Exhibit A, it is the intent of the parties that
GILBARCO hereby releases any and all claim which it believes it has or may have
against TOKHEIM and/or its officers, directors, shareholders, agents, heirs or
its successors in interest at any time prior to and including the date of the
execution of this Agreement that it has or may have as a result of or arising
out of the subject matter of the GILBARCO Patent Rights and/or the Lawsuit.
B. Release by TOKHEIM. Subject to the provisions of this Agreement
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and the entry of the Consent Judgment appended as Exhibit A, Tokheim hereby
releases and forever discharges GILBARCO and its agents, as well as its heirs
and assigns, from any and all claims, demands, liabilities, actions or causes of
action of whatsoever kind or nature which they may have arising out of the
subject matter of the Lawsuit and/or GILBARCO'S Patent Rights. Subject to the
provisions of that Agreement and the entry of the Consent Judgment appended as
Exhibit A, it is the intent of the parties that TOKHEIM releases GILBARCO and
its agents, heirs
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and assigns from any and all claims which it has or may have at any time prior
to and including the date of the execution of this Agreement that it has or may
have as a result of or arising out of the subject matter of the GILBARCO Patent
Rights and/or the Lawsuit.
GILBARCO INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: President, Gilbarco N.A.
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DATED: 2/11/98
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TOKHEIM CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Title: Executive Vice President, Finance and Administration
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DATED: 2/4/98
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