AGREEMENT FOR
TRADEMARK ASSIGNMENT AND LICENSE-BACK
This AGREEMENT FOR TRADEMARK ASSIGNMENT AND LICENSE-BACK
("Agreement") is made and entered into as of this 17th day of November, 1997 by
and between Iveco Magirus Brandschutztechnik GmbH, a German corporation with
offices at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ("Assignor"), Figgie
International Inc., a Delaware corporation with offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇. ("FII"), and SKL Lift, Inc., a Delaware
corporation with offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇.▇.▇. ("SKL").
WHEREAS, Assignor is the owner of the rights to the trademark
"Snorkel" in numerous jurisdictions throughout the world (the "Assigned
Trademarks"), including without limitation the registrations and applications to
register set forth on Schedule A hereto; and
WHEREAS, Assignor acquired, among other things, its rights to the
Assigned Trademarks pursuant to an Agreement for the Acquisition of Specified
Assets Relating to the Simon Aerial Fire Platform Range, executed by and between
Assignor and Simon UK 1995 Limited on or about May 30, 1997 (the "Acquisition
Agreement"); and
WHEREAS, FII is the owner of the trademark "Snorkel" registered with
the United States Patent and Trademark Office as Registration Number 719,225 and
issued on August 1, 1961 (the "FII Trademark"); and
WHEREAS, the Snorkel division of FII's predecessor-in-interest,
A-T-O Inc., and Assignor's predecessor-in-interest, Simon Engineering ▇▇▇▇▇▇
Limited, entered into an Agreement dated as of June 1, 1977 (together with any
amendments thereto, the "License Agreement") pursuant to which each party
granted to the other the license to use the "Snorkel" name in certain specified
countries in connection with the marketing of certain specified products,
subject to the terms and conditions thereof; and
WHEREAS, FII or its predecessor-in-interest has been using the
"Snorkel" name continuously in connection with the manufacture, marketing and
sale of elevating work platforms and aerial fire-fighting platform apparatus;
and
WHEREAS, Assignor or its predecessor-in-interest has been using the
"Snorkel" name continuously in connection with the manufacture, marketing and
sale of fire trucks and parts thereof, including aerial fire-fighting platform
apparatus; and
WHEREAS, Assignor and FII desire to terminate the License Agreement
and replace it with this Agreement to provide for the parties' continued use of
the "Snorkel" name pursuant to the terms and conditions hereof; and
WHEREAS, FII and SKL (among others) have entered into an Asset
Purchase Agreement dated as of July 19, 1997 (the "Asset Purchase Agreement")
pursuant to which FII has agreed to sell to SKL and SKL has agreed to buy from
FII the business heretofore conducted by the Snorkel division of FII as a going
concern (the "Snorkel Business"); and
WHEREAS, pursuant to the Asset Purchase Agreement, FII has agreed to
assign to SKL, among other things, certain Intellectual Property (as defined in
the Asset Purchase Agreement) used in the Snorkel Business, including the FII
Trademark and such rights as FII possesses or acquires in the Assigned
Trademarks; and
WHEREAS, Assignor desires to sell, assign and transfer to FII, for
the benefit of and acquisition by SKL, Assignor's entire right, title and
interest in, to and under the Assigned Trademarks, in accordance with and
subject to the terms and conditions and as further set forth herein; and
WHEREAS, FII desires to purchase all of Assignor's right, title and
interest in, to and under the Assigned Trademarks for the benefit of and
acquisition by SKL, in accordance with and subject to the terms and conditions
and as further set forth herein;
NOW, THEREFORE, in consideration of the payments, representations,
warranties, covenants and other terms and conditions contained herein and in the
Asset Purchase Agreement, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
Termination and Release
Section 1.1. Termination and Release by Assignor. Assignor, for
itself and for all persons claiming through Assignor, including without
limitation any of its affiliates and subsidiaries and all directors, officers,
employees, agents, representatives, successors and assigns of any of the
foregoing, in each applicable case, whether direct or indirect (collectively,
the "Assignor Releasing Parties"), hereby (a) terminates the License Agreement
in its entirety as of the date first written above, which is the date upon which
the closing of the transactions contemplated by the Asset Purchase Agreement
takes place (the "Closing Date"), and (b) unconditionally and irrevocably
releases and forever discharges, from and after the Closing Date, FII, its
affiliates and subsidiaries and all of their respective directors, officers,
employees, agents, representatives, customers, predecessors, successors and
assigns, in each applicable case, whether direct or indirect (the "FII Released
Parties"), from any and all rights, claims, demands, judgments, obligations,
liabilities and damages, whether accrued or unaccrued, asserted or unasserted,
and whether known or unknown, which ever existed or now exist, including without
limitation claims for damages or injunctive relief, relating in any way to or
arising out of or in connection with the License Agreement or any of the FII
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Released Parties' use of the name "Snorkel" or "Snorkelift" or any variations or
derivations thereof anywhere in the world (each individually, a "Claim Against
FII Released Parties"). Assignor expressly intends that this release shall be
effective regardless of whether the basis for any Claim Against FII Released
Parties hereby released shall have been known to or anticipated by the Assignor
Releasing Parties. Assignor agrees that it will not, and it will cause each
other Assignor Releasing Party controlled by it not to, prosecute or otherwise
initiate any legal action with respect to any Claim Against FII Released Parties
against any of the FII Released Parties or be a party to or a participant in, or
voluntarily cooperate in, any Claim Against FII Released Parties by any third
party against any of the FII Released Parties.
Section 1.2 Termination and Release by FII. FII, for itself and for
all persons claiming through FII, including without limitation any of its
affiliates and subsidiaries and all directors, officers, employees, agents,
representatives, successors and assigns of any of the foregoing, in each
applicable case, whether direct or indirect (collectively, the "FII Releasing
Parties"), hereby (a) terminates the License Agreement in its entirety as of the
Closing Date, and (b) unconditionally and irrevocably releases and forever
discharges, from and after the Closing Date, Assignor, its affiliates and
subsidiaries and all of their respective directors, officers, employees, agents,
representatives, customers, predecessors, successors and assigns, in each
applicable case, whether direct or indirect (the "Assignor Released Parties"),
from any and all rights, claims, demands, judgments, obligations, liabilities
and damages, whether accrued or unaccrued, asserted or unasserted, and whether
known or unknown, which ever existed or now exist, including without limitation
claims for damages or injunctive relief, relating in any way to or arising out
of or in connection with the License Agreement or any of the Assignor Released
Parties' use of the name "Snorkel" or any variations or derivations thereof
anywhere in the world (each individually, a "Claim Against Assignor Released
Parties"). FII expressly intends that this release shall be effective regardless
of whether the basis for any Claim Against Assignor Released Parties hereby
released shall have been known to or anticipated by the FII Releasing Parties.
FII agrees that it will not, and it will cause each other FII Releasing Party
controlled by it not to, prosecute or otherwise initiate any legal action with
respect to any Claim Against Assignor Released Parties against any of the
Assignor Released Parties or be a party to or a participant in, or voluntarily
cooperate in, any Claim Against Assignor Released Parties by any third party
against any of the Assignor Released Parties.
ARTICLE II
Transfer of Assets
Section 2.1. Assets Transferred Hereunder. Upon the terms and
subject to the conditions set forth herein, effective as of the Closing Date,
Assignor hereby sells, assigns and transfers to SKL, and SKL hereby acquires,
assumes and receives from Assignor, all of Assignor's right, title and interest
in, to and under the Assigned Trademarks,
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together with the goodwill of the business connected with the use thereof and
symbolized thereby and all causes of action, claims and demands and other rights
for, or arising from, any infringement, including past infringement, of the
foregoing, and all rights corresponding thereto throughout the world.
Section 2.2. Record Ownership. The parties hereto acknowledge that,
as of the date hereof, record ownership of the registrations and applications
comprising the Assigned Trademarks has not yet been updated to reflect
Assignor's acquisition thereof pursuant to the Acquisition Agreement. The
parties agree to cooperate, in as expeditious and economical a fashion as is
reasonably possible, in taking all actions and executing all instruments,
including those described below in Sections 2.3 and 2.4, necessary to create an
accurate chain of title with respect to the record ownership of all
registrations and applications comprising the Assigned Trademarks.
Section 2.3. Delivery of Assignment Instruments Prepared by SKL. To
the extent such instruments are provided to Assignor by SKL prior to the Closing
Date, Assignor shall, within three (3) business days following the Closing Date,
deliver to SKL executed instruments confirming the assignment of the Assigned
Trademarks from Assignor to SKL pursuant to this Agreement, each in a form
satisfactory for the filing and recordal thereof in the appropriate trademark
offices in each country set forth on Schedule A hereto. FII shall bear all
reasonable costs of filing and recording such assignments.
Section 2.4. Delivery of Assignment Instruments Pursuant to
Acquisition Agreement. Assignor shall, as soon as reasonably possible after the
Closing Date, deliver to SKL executed instruments confirming the assignment of
the Assigned Trademarks to Assignor pursuant to the Acquisition Agreement, each
in a form approved by SKL and satisfactory for the filing and recordal thereof
in the appropriate trademark offices in each country set forth on Schedule A
hereto. Assignor shall bear all reasonable costs of filing and recording such
assignments.
ARTICLE III
Consideration
Section 3.1. Consideration. Within the later of three (3) business
days following the Closing Date or, to the extent any instruments are provided
to Assignor by SKL prior to the Closing Date pursuant to Section 2.3 hereof,
three (3) business days following receipt by SKL of executed copies of such
agreements, upon the terms and subject to the conditions set forth herein, in
consideration of the sale, assignment and transfer of the Assigned Trademarks
set forth under Article II hereof, FII shall pay to Assignor the sum of
US$100,000 by wire transfer of immediately available funds.
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ARTICLE IV
License-Back to Assignor
Section 4.1. Grant of License to Assignor. Subject to the terms and
conditions hereof, SKL hereby grants to Assignor and Assignor hereby accepts the
paid-up, royalty-free, irrevocable (except as set forth in Section 4.3 hereof),
exclusive (subject to the provisions of Section 4.5 below), perpetual license
(the "License") to use the Assigned Trademarks solely in connection with the
manufacture, marketing, sale, servicing and repair of aerial fire-fighting
platform apparatus (the "Products") within the Territory. As used herein, the
"Territory" shall include all countries throughout the world other than the
United States and Canada. This License includes the right to sublicense,
including without limitation such sublicense rights as are necessary for
Assignor to comply with sections 6.2 and 6.3 of the Acquisition Agreement.
Section 4.2. Registered User Appointments.
(a) SKL hereby agrees to appoint Assignor as a registered
user as the laws of the respective countries comprising the Territory may
require to enable Assignor to market the Products in each of such countries.
(b) SKL and Assignor hereby agree to perform all acts
necessary to give formal effect to the License and registered user appointments
agreed to hereunder. At its own expense, SKL shall submit to Assignor all
documentation which is necessary to give formal effect to any registered user
appointments. Assignor shall execute and return to SKL such documentation. SKL
shall then attend to the necessary recordal of such registered user
appointments.
Section 4.3. Quality Standards. Assignor acknowledges that the
Assigned Trademarks represent valuable goodwill among consumers and that it is
of great importance that the high standards and reputation previously
established in connection therewith be maintained. Accordingly, Assignor agrees
that the quality of any Products it manufactures, markets and sells under the
Assigned Trademarks will be consistent with the quality of Products currently
manufactured, marketed and sold by Assignor and its predecessors-in-interest.
SKL acknowledges that the Products currently manufactured, marketed and sold by
Assignor and its predecessors-in-interest satisfy the quality standards
hereunder.
Section 4.4. Protection of Assigned Trademarks. All use of the
Assigned Trademarks pursuant to this License, and the goodwill generated
thereby, shall inure to the benefit of SKL. Assignor shall not, during the term
of the License or thereafter: (i) challenge SKL's title or rights in and to the
Assigned Trademarks or the validity of the Assigned Trademarks in any
jurisdiction or challenge the validity of this License, or (ii) contest the fact
that Assignor's rights under this License are solely those of a licensee.
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Section 4.5. De Minimis Use. The License granted in Section 4.1
hereof is subject to the continued, non-exclusive right of SKL to use the
Assigned Trademarks in connection with a de minimis amount of sales of aerial
fire-fighting platform apparatus in the Territory, not to exceed a total of ten
(10) unit sales within the Territory per year; provided, however, that SKL will
not conduct any sales of aerial fire-fighting platform apparatus in the
Territory under the Assigned Trademarks without Assignor's prior written
consent, which shall not be unreasonably withheld, conditioned or delayed.
ARTICLE V
Simon-Snorkel Trademarks
Section 5.1. Ownership of Simon-Snorkel Trademarks. The parties
hereto agree and acknowledge that, as between the parties hereto, all rights of
ownership in and to the trademark "Simon-Snorkel" throughout the world,
including without limitation the registrations and applications to register set
forth on Schedule B hereto (the "Simon-Snorkel Trademarks"), shall remain with
Assignor. Notwithstanding the foregoing, Assignor hereby agrees that it will:
(i) immediately cease all use of the Simon-Snorkel Trademarks everywhere in the
world, other than in connection with aerial fire-fighting platform apparatus,
and (ii) as soon as reasonably possible after the date hereof, allow all
registrations and applications contained within the Simon-Snorkel Trademarks to
expire, lapse or become abandoned.
Section 5.2. Ownership of Snorkel Trademarks. The parties hereto
agree and acknowledge that, as between the parties hereto, all rights of
ownership in and to the trademark "Snorkel" throughout the world, including the
rights to secure registration thereof anywhere in the world, shall belong to
SKL. In light of the foregoing, Assignor hereby agrees that: (i) Assignor will
not oppose or otherwise inhibit SKL's attempted registration of the trademark
"Snorkel" anywhere in the world, (ii) in the event that SKL experiences any
problems in securing registration of the trademark "Snorkel" anywhere in the
world as a result of the existence of the Simon-Snorkel Trademarks or Assignor's
(or its predecessor's) use of any trademarks containing or comprising the word
"Snorkel," Assignor will cooperate with SKL, at SKL's expense, by taking any
actions and executing any instruments necessary to enable SKL to secure such
registration, and (iii) Assignor will refrain from applying for any additional
registrations for the trademark "Simon-Snorkel" or any other trademarks
containing or comprising the word "Snorkel" anywhere in the world.
Section 5.3. Release by Assignor. The Assignor Releasing Parties
hereby unconditionally and irrevocably release and forever discharge, from and
after the Closing Date, the FII Released Parties from any and all of the
Assignor Releasing Parties' rights, claims, demands, judgments, obligations,
liabilities and damages, whether accrued or unaccrued, asserted or unasserted,
and whether known or unknown, which ever existed, now
6
exist or hereafter exist, including without limitation claims for damages or
injunctive relief, relating in any way to or arising out of or in connection
with any of the FII Released Parties' use of the name "Snorkel" or "Snorkelift"
or any variations or derivations thereof in any of the countries set forth on
Schedule B hereto or any other country in which Assignor owns or has rights to
use the trademark "Simon-Snorkel" (each individually, a "Schedule B Claim
Against FII Released Parties"). Assignor expressly intends that this release
shall be effective regardless of whether the basis for any Schedule B Claim
Against FII Released Parties hereby released shall have been known to or
anticipated by the Assignor Releasing Parties. Assignor agrees that it will not,
and it will cause each other Assignor Releasing Party controlled by it not to,
prosecute or otherwise initiate any legal action with respect to any Schedule B
Claim Against FII Released Parties against any of the FII Released Parties or be
a party to or a participant in, or voluntarily cooperate in, any Schedule B
Claim Against FII Released Parties by any third party against any of the FII
Released Parties.
ARTICLE VI
Representations and Warranties; Disclaimers
Section 6.1. Representations and Warranties of Assignor. Assignor
hereby represents to FII and SKL that:
(a) it is a corporation organized to do business, validly
existing and in good standing under the laws of its jurisdiction of
creation;
(b) it has full corporate power and authority to enter into
this Agreement and to perform its obligations hereunder;
(c) this Agreement has been duly executed and delivered by
it and is a legal, valid and binding obligation of it enforceable against
it in accordance with its terms;
(d) the execution, delivery and performance of this
Agreement does not (i) contravene or constitute a default under any
agreement or instrument to which Assignor is a party or to which it or any
of its assets is subject, or (ii) require the consent of any third party
which has not been obtained;
(e) to the best of Assignor's knowledge, except as otherwise
indicated on Schedule A hereto, all registrations and applications for the
registration of the Assigned Trademarks are valid and subsisting and all
fees necessary to secure and maintain such applications and registrations
have been paid;
(f) to the best of Assignor's knowledge, Schedule A and
Schedule B together constitute a complete and accurate list of all
registrations of or applications
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for the registration of the trademarks "Snorkel" or "Simon-Snorkel" or any
derivations or variations thereof owned by Assignor anywhere in the world;
(g) to the best of Assignor's knowledge, it is the sole and
exclusive owner of the Assigned Trademarks, free and clear of any security
interests, liens and encumbrances and, except for the agreements set forth
on Schedule C hereto (copies of which are appended thereto), free and clear
of any licenses to third parties, settlement agreements, consents to use or
other agreements relating to or restricting Assignor's rights in or to the
Assigned Trademarks;
(h) to the best of Assignor's knowledge, no person or entity
other than Assignor has any claim of ownership with respect to the Assigned
Trademarks; and
(i) to the best of Assignor's knowledge, there are no
outstanding claims, litigations or judgments, or any pending or threatened
claims or litigations, relating to the Assigned Trademarks.
Section 6.2. Representations and Warranties of FII. FII hereby
represents to Assignor and SKL that:
(a) it is a corporation organized to do business, validly
existing and in good standing under the laws of its jurisdiction of
creation;
(b) it has full corporate power and authority to enter into
this Agreement and to perform its obligations hereunder;
(c) this Agreement has been duly executed and delivered by
it and is a legal, valid and binding obligation of it enforceable against
it in accordance with its terms; and
(d) the execution, delivery and performance of this
Agreement does not contravene or constitute a default under any agreement
or instrument to which it is a party or to which it or any of its assets is
subject.
Section 6.3. Representations and Warranties of SKL. SKL hereby
represents to Assignor and FII that:
(a) it is a corporation organized to do business, validly
existing and in good standing under the laws of its jurisdiction of
creation;
(b) it has full corporate power and authority to enter into
this Agreement and to perform its obligations hereunder;
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(c) this Agreement has been duly executed and delivered by
it and is a legal, valid and binding obligation of it enforceable against
it in accordance with its terms; and
(d) the execution, delivery and performance of this
Agreement does not contravene or constitute a default under any agreement
or instrument to which it is a party or to which it or any of its assets is
subject.
Section 6.4. Disclaimers of Warranty. It is expressly acknowledged
by the parties hereto that neither FII nor SKL is making any representations or
warranties, express or implied, that Assignor's use of the Assigned Trademarks
pursuant to the License will not infringe upon the rights of any third parties.
ARTICLE VII
Indemnity
Section 7.1. Indemnity by Assignor. Assignor agrees to defend and to
indemnify and hold harmless each of FII and SKL from and against any claims,
demands, causes of action, suits, judgments, damages or losses (including
reasonable attorneys' fees and court costs) arising out of any breach or alleged
breach of any of Assignor's obligations, representations and warranties
contained in this Agreement, provided that FII or SKL, as the case may be, gives
Assignor prompt notice of the assertion of any such claim, demand, cause of
action or suit. Assignor agrees to defend and to indemnify and hold SKL harmless
from and against any claims, demands, causes of action, suits, judgments,
damages or losses (including reasonable attorneys' fees and court costs) arising
out of or resulting in any way from or in connection with Assignor's conduct of
its business or use of the Products under the Assigned Trademarks.
Section 7.2. Indemnity by FII. FII agrees to defend and to indemnify
and hold harmless each of Assignor and SKL from and against any claims, demands,
causes of action, suits, judgments, damages or losses (including reasonable
attorneys' fees and court costs) arising out of any breach or alleged breach of
any of FII's obligations, representations and warranties contained in this
Agreement, provided that Assignor or SKL, as the case may be, gives FII prompt
notice of the assertion of any such claim, demand, cause of action or suit.
Section 7.3. Indemnity by SKL. SKL agrees to defend and to indemnify
and hold harmless each of Assignor and FII from and against any claims, demands,
causes of action, suits, judgments, damages or losses (including reasonable
attorneys' fees and court costs) arising out of any breach or alleged breach of
any of SKL's obligations, representations and warranties contained in this
Agreement, provided that Assignor or FII, as the case may be, gives SKL prompt
notice of the assertion of any such claim, demand, cause
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of action or suit.
ARTICLE VIII
Miscellaneous
Section 8.1. Notices. All notices required to be given under this
Agreement shall be in writing and shall be sent by hand, by facsimile, by
certified or registered mail, return receipt requested, postage prepaid, or by
overnight courier, as follows:
If to FII: Figgie International Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attn: General Counsel
with copies to: Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to SKL: SKL Lift, Inc.
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇. ▇▇▇▇▇ Stiff, President and CEO
with copies to: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇.▇.▇.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to Assignor: Iveco Magirus Brandschutztechnik GmbH
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
Fax: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, General Manager
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with copies to: Iveco SpA
▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇
Fax: ▇▇-▇▇-▇▇-▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Assistant General Counsel
or to such other person or place as may be designated by notice of one party to
another, and all notices shall be deemed effective when received. The attorney
for any party may give notices under this Agreement on behalf of such party.
Section 8.2. Expenses. Whether or not the transactions contemplated
by this Agreement are consummated, each party shall pay its own expenses
incurred in connection with the negotiation, drafting, execution and performance
of this Agreement.
Section 8.3. Assignment. All the terms of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
Section 8.4. Schedules. The schedules referred to in this Agreement
are incorporated by reference herein and shall constitute a part of this
Agreement.
Section 8.5. No Third Party Beneficiaries. It is the intention of
the parties to this Agreement that no third party shall receive a benefit under
this Agreement nor be entitled to ▇▇▇ to enforce any part of this Agreement.
Section 8.6. Entire Agreement. This Agreement constitutes and
contains the entire agreement between the parties hereto and supersedes and
cancels any and all preexisting agreements and understandings between the
parties relating to the subject matter hereof.
Section 8.7. Interpretation. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and do
not constitute a part of this Agreement. The word "or" shall be deemed to be
inclusive unless the context otherwise requires. Unless otherwise indicated
herein or the context otherwise requires, the singular shall include the plural.
Section 8.8. Severability. In the event that any term, provision,
covenant or restriction of this Agreement is held to be invalid, illegal or
unenforceable by a competent court in any jurisdiction, then the validity,
legality and enforceability of the remaining terms, provisions, covenants or
restrictions, or of such term, provision, covenant or restriction in any other
jurisdiction, shall not in any way be affected or impaired thereby.
Section 8.9. Further Assurances. Each of the parties hereto agrees
to do any and all things, including the execution of any other documents,
necessary or appropriate in
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order to perform its obligations hereunder and to cause the transactions
contemplated hereby to be consummated.
Section 8.10. Amendments. Neither this Agreement nor any provision
hereof may be modified or amended except with the prior written consent of all
parties hereto.
Section 8.11. Governing Law. IT IS EXPRESSLY AGREED BY THE PARTIES
THAT THIS AGREEMENT, INCLUDING ITS CONSTRUCTION, INTERPRETATION AND PERFORMANCE,
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
THE CONFLICTS OF LAWS PROVISIONS THEREOF.
Section 8.12. Alternative Dispute Resolution. Any controversy, claim
or dispute arising out of or related to this Agreement or the breach or alleged
breach hereof which cannot be resolved by the parties (a "Dispute") will be
submitted by the parties for mediation in the City of New York, New York, United
States, by either the Judicial Arbitration and Mediation Service or another
mediation service mutually acceptable to the parties. By mutual agreement,
however, the parties may (i) postpone mediation until they have each completed
some specified but limited discovery regarding the Dispute, and/or (ii) replace
mediation with some other form of alternative dispute resolution ("ADR"), such
as neutral fact-finding or a mini-trial. Any Dispute which the parties cannot
resolve through mediation or another form of ADR within sixty (60) days will be
submitted to arbitration by the American Arbitration Association in the City of
New York, New York, United States, in accordance with the international
commercial arbitration rules then in effect of the American Arbitration
Association (the "AAA Rules") by three (3) arbitrators appointed in accordance
with the AAA Rules. The decision of the arbitrators shall be final and binding,
and judgment on the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof. The award rendered by the arbitration board
shall include costs of arbitration, reasonable attorneys' fees and reasonable
costs for expert and other witnesses. The parties shall be entitled to discovery
as provided in the AAA Rules. All proceedings shall be held in English and a
transcribed record of the proceedings shall be prepared in English; provided,
however, that each party shall be entitled to engage a translator, at such
party's expense, to participate in and translate at all proceedings of the
arbitration. Nothing in this Agreement shall prevent either party from seeking
injunctive relief (or any other provisional remedy or equitable relief) from any
court having jurisdiction over the parties and the subject matter of the dispute
to protect their respective intellectual property rights.
Section 8.13. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which taken
together shall constitute a single agreement.
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IN WITNESS WHEREOF, each undersigned has caused this Agreement to be
duly executed by its respective authorized representative as of the date above
first written.
IVECO MAGIRUS
BRANDSCHUTZTECHNIK GMBH
("Assignor")
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Company Secretary
FIGGIE INTERNATIONAL INC.
("FII")
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
SKL LIFT, INC.
("SKL")
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President - Finance and
CFO
13
