Exhibit 10.1
***: Certain material has been omitted pursuant to request for confidential
treatment. Such omitted material has been filed with the Securities and
Exchange Commission.
License Agreement
This Agreement made and entered as of with effect from the 30th day of November
2000 (the "Effective Date"), by and between NDC, Netzler & Dahlgren Co AB
("NDC"), a corporation organized and existing under the laws of the Kingdom of
Sweden with its principal office in SE-429 80 Saro, Sweden and NDC Automation,
Inc. ("NDCA"), a corporation organized and existing under the laws of the state
of Delaware in the United States of America, with its principal office in 3101
Latrobe Drive, Charlotte, North Carolina 28211, USA.
WHEREAS, NDC, as licensor, and NDCA, as licensee, are parties to that certain
Restated Master License Agreement dated as of December 1, 1995 (the "MLA") which
conferred upon NDCA the exclusive right to incorporate NDC AGVS Control
Components and Equipment and NDC AGVS Control Know-How into Automated Guided
Vehicle Systems and to market and sell same to original equipment manufacturers
located within the Territory; and
WHEREAS, NDCA owed the aggregate amount of 5,714,473 SEK to NDC pursuant to
transactions which NDCA engaged in with NDC under the provisions of the MLA
prior to June 30, 2000; and
WHEREAS, by reason of NDCA's inability to pay said amount, NDC agreed, instead
of declaring a breach under the MLA, to restructure NDCA's obligation to pay
such amount pursuant to the terms of a promissory note dated June 30, 2000 which
NDCA made and issued to NDC (the "Note"); and
WHEREAS, by reason of NDCA's failure to satisfy certain payment obligations
imposed upon it pursuant to the MLA with respect to various AGVS Control
Components and Equipment purchased by NDCA from NDC under the MLA subsequent to
June 30, 2000 (the "Trade Indebtedness"), NDC, if it chose to do so, would be
entitled to give notice of NDCA's breach of the MLA, and to terminate the MLA if
NDCA would not cure such breach within 30 days after the giving of such notice;
and
WHEREAS, by reason of NDCA's failure to make payment of various installments due
under the Note when the same became due, NDC, if it chose to do so, would be
entitled to declare the entire principal amount of the Note, together with all
accrued interest thereunder, to be immediately due and payable; and
WHEREAS, NDCA desires to incorporate NDC AGVS Control Components and Equipment
and NDC AGVS Control Know-How into Automated Guided Vehicle Systems and market
and sell same to End Users, which it would be entitled to undertake pursuant to
the terms of the standard form of nonexclusive cooperation agreement that NDC
enters into with its various partners around the world, but which NDCA is not
presently authorized to undertake under the MLA; and
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WHEREAS, in order to assist NDCA to continue and restructure its business
operations, NDC is willing to (a) forebear from declaring a breach of the MLA;
(b) forebear from accelerating the maturity of the Note; (c) reduce the amount
owed by NDCA pursuant to the Note and restructure NDCA's payment obligations
thereunder; (d) waive payment of the substantial initial fee that it usually
charges when it enters into a nonexclusive cooperation agreement; (e) reduce the
amount of the Trade Indebtedness and restructure NDCA's payment obligations with
respect thereto; and (f) amend and restate the terms of its business
relationship with NDCA in the manner hereinbelow set forth,
NOW, THEREFORE, in consideration of these premises, the covenants herein
exchanged, and other good and valuable consideration, the parties agree as
follows:
1 Definitions
For the purposes of this Agreement, the following words and phrases shall have
the meanings indicated below:
1.1 "AGVS" or "Automated Guided Vehicle System" shall mean a
combination of material handling vehicles, on-board and stationary
computers, and communication devices which work together to
perform some or all of the following functions: dispatching,
guiding, blocking, starting and stopping such vehicles, and
communicating the status of each said function, the vehicle's
load, and the vehicle's condition, so as to automatically move
material on those vehicles throughout a designated area.
1.2 "AGVS Control Components and Equipment" shall mean certain
electronic control and guidance products (hardware and software)
and equipment, as well as parts/components thereof, including
replacement parts, used in automated guidance vehicles, carriers
or systems, together with all modifications, improvements and
derivations thereof, now or hereafter manufactured, assembled, or
developed by or for NDC for the implementation, exploitation
and/or development of NDC AGVS Control Know-How.
1.3 "NDC AGVS Control Know-How" shall mean certain valuable,
confidential and proprietary electronic guidance systems and
processes and all know-how and technical information developed and
owned by NDC which is related to the design, manufacture,
installation and operation of Automated Guided Vehicle Systems.
1.4 "Customized AGVS" shall mean an Automated Guidance Vehicle System
comprised of NDC AGVS Control Components and Equipment and NDC
AGVS Control Know-How which incorporates such engineering
modifications therein as are necessary to comply with the unique
requirements and specifications of the End User who is purchasing
such system.
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1.5 "End User" shall mean the organization or entity which acquires
and utilizes a Customized AGVS or a vehicle equipped with a
Lazerway(R) Teach-In System for its own use in connection with the
operation of its business, and not for resale, leasing or
licensing to others.
1.6 "Lazerway Teach-In Control Components and Equipment" shall mean
the NDC AGVS Control Components and Equipment which have been
specifically designated by NDC for use in connection with Lazerway
Teach-In System installations.
1.7 "Lazerway Teach-In System" shall mean the combination of
components manufactured and sold by NDC under the trade name
"Lazerway Teach-In" consisting of certain Lazerway Teach-In
Control Components and Equipment and Teach-In Software which is
intended for installation in mass produced material handling
vehicles, e.g., forklift trucks.
1.8 "Teach-In Software" shall mean software specifically developed and
manufactured by NDC for use in vehicles equipped with the Lazerway
Teach-In System.
1.9 "NDC Current or Future Systems" shall mean the NDC System Seven
line of products and/or all future lines of NDC Automated Guidance
Vehicle System products manufactured and distributed by NDC in
addition to and/or in replacement of the NDC System Seven line of
products, except that the current and any future Lazerway Teach-In
System line of products including all Lazerway Teach-In Control
Components and Equipment and all Teach-In Software, shall not be
considered to be part of any NDC Current or Future Systems.
1.10 "NDC Current or Future Systems Customized AGVS" shall mean an
Automated Guidance Vehicle System comprised of NDC Current or
Future Systems AGVS Control Components and Equipment and NDC AGVS
Control Know-How, and which incorporates such engineering
modifications therein as are necessary to comply with the unique
requirements and specifications of the End User who is purchasing
such system.
1.11 "NDC System Seven" shall mean the lines of NDC Automated Guidance
Vehicle Systems marketed by NDC as of and after the date of this
Agreement under the trade name "NDC System Seven" including all
AGVS Control Components and Equipment (other than Lazerway
Teach-In Control Components and Equipment), all NDC AGVS Control
Know-How and all other vehicle control and navigation software and
hardware and stationary control software and hardware (other than
Teach-In Software) incorporated therein, and all definition tools
and equipment provided by NDC in connection therewith.
1.12 "NDC Older Technologies" shall mean all NDC AGVS products,
hardware and
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software not included in, and which were distributed by NDC prior
to, the NDC Current or Future Systems line of products.
1.13 "Territory" shall mean the United States of America, Canada and
Mexico.
1.14 Contract Year" shall mean each twelve month period during the Term
of this Agreement which commences on the Effective Date or an
anniversary of the Effective Date, as the case may be.
2 Rights Granted to NDCA; Restrictions and Limitations Thereon.
2.1 Manufacture and Sale of Customized AGVS. NDC hereby grants to NDCA
during the Term of this Agreement a non-exclusive,
non-transferable right and license, subject to the terms and
conditions set forth herein:
2.1.1 to design and manufacture within the Territory NDC Current
or Future Systems Customized AGVS and, in connection
therewith, to utilize all NDC AGVS Control Know-How and
incorporate therein all NDC Current or Future Systems AGVS
Control Components and Equipment;
2.1.2 to sell, install and maintain NDC Current or Future
Systems Customized AGVS to End Users located anywhere in
the world; and
2.1.3 to sell NDC Current or Future Systems Control Components
and Equipment and NDC AGVS Control Know-How to its NDCA's
sublicensees located within the Territory.
2.2 Sublicense of Right to Manufacture and Sell Customized AGVS. NDC
hereby grants to NDCA during the Term of this Agreement a
non-exclusive, non-transferable right and license, subject to the
terms and conditions set forth herein:
2.2.1 to grant sublicenses to manufacture NDC Current or Future
Systems Customized AGVS within the Territory to any
business entity located within the Territory that is not a
manufacturer, distributor or reseller of mass produced
material handling vehicles, i.e., vehicles and other
devices used for the transportation of materials, e.g.,
forklift trucks; and
2.2.2 to confer, as part of each such sublicense grant, the
sublicensee's right:
2.2.2.1 to employ in connection with the sublicensee's
manufacture of such NDC Current or Future
Systems Customized AGVS, all NDC AGVS Control
Know-How and to incorporate therein all NDC
Current or Future Systems AGVS Control
Components and Equipment; and
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2.2.2.2 to sell NDC Current or Future Systems Customized
AGVS to End Users located anywhere in the world.
2.3 Upgrade of Lazerway Teach-In Equipped Vehicles. NDC hereby grants
to NDCA during the Term of this Agreement a non-exclusive,
non-transferable right and license, subject to the terms and
conditions set forth herein:
2.3.1 to upgrade, as and when requested to do so by an End User,
any Lazerway Teach-In Equipped Vehicle owned by such End
User by converting same to an NDC Current or Future
Systems Customized AGVS.
2.3.2 to purchase any Lazerway Teach-In Equipped Vehicle from
the manufacturer thereof or one of its
dealers/distributors, to convert same to an NDC Current or
Future Systems Customized AGVS and resell same to an End
User.
2.4 Maintenance, Upgrade and Support Services. NDC hereby grants to
NDCA during the Term of this Agreement a non-exclusive,
non-transferable right and license, subject to the terms and
conditions set forth herein, to provide maintenance and support
services for, sell spare parts for and upgrade all AGVS within the
Territory equipped with NDC Current or Future Systems Customized
AGVS or NDC Older Technologies.
2.5 Conditions, Restrictions and Limitations Pertaining to the
Licenses Granted Hereunder. The licenses granted to NDCA pursuant
to this Article 2 are subject to the following conditions,
restrictions and limitations:
2.5.1 The rights granted to NDCA hereunder with respect to the
various technologies embodied in the NDC Control
Components and Equipment, the NDC AGVS Control Know-How,
the NDC Current or Future Systems and the Lazerway
Teach-In System are limited solely to the employment of
such technologies in connection with the activities
permitted by the provisions of Sections 2.1, 2.2, 2.3 and
2.4 hereof. Except for such permitted activities, NDCA
shall not have the right to (a) employ or make any other
use of any part or all of such technologies, or (b)
distribute, supply or otherwise transfer to any person or
entity, by sale, license or otherwise, any right, title,
interest or entitlement in all or any part of such
technologies.
2.5.2 NDC shall refrain from selling AGVS Control Components and
Equipment directly to any NDCA sublicensee unless NDC
determines, in its sole discretion, that NDCA has failed
or refused to perform the obligations that it owes to its
sublicensee. In the event that NDC makes such a
determination, NDC, in order to preserve and protect its
reputation and good will, reserves the right to make
direct sales of AGVS Control Components and Equipment
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directly to the affected sublicensee. Such sales
activities by NDC shall not be deemed to be an assumption
by NDC of NDCA's rights and obligations as sublicensor
pursuant to NDCA's sublicense agreement with such
sublicensee.
2.5.3 The following terms, conditions, restrictions and
limitations shall apply to every sublicense granted by
NDCA pursuant to any of the provisions of Section 2.2
hereof:
2.5.3.1 NDCA shall not have the right to grant to any
person or entity any right to utilize Lazerway
Teach-In Systems or to sell vehicles equipped
with Lazerway Teach-In Systems.
2.5.3.2 NDCA shall pay a fee to NDC equal to ten percent
(10%) of any consideration given by the
sublicensee to NDCA as, or in substitution for,
a sublicense fee. Such fee shall be due and
payable 30 days after the receipt by NDCA of any
payment upon which such fee shall be based.
2.5.3.3 NDCA shall not grant any sublicense pursuant to
any of the provisions of this Agreement which
shall be for a term which ends later than the
last day of the Term of this Agreement.
2.5.4 All sales of NDC Older Technologies spare parts made by
NDC to NDCA shall be made in accordance with NDC's
published prices for such spare parts in effect at the
time of its acceptance of any purchase order therefor
issued by NDCA or any sublicensee of NDCA.
2.5.5 NDC's obligation to honor any order placed by NDCA or any
sublicensee of NDCA for NDC Older Technologies spare parts
shall be subject to the availability of such parts at the
time of receipt of such order. NDC shall have no
obligation to supply (by manufacturing or otherwise) any
NDC Older Technologies spare part which shall be out of
inventory at the time of NDC's receipt of a purchase order
pertaining thereto.
3 Assistance
It is the desire and intention of each of the parties that, without assistance
from NDC, NDCA shall commence the design, development, manufacture and
installation of NDC Current or Future Systems Customized AGVS as soon as
possible after the parties execute this Agreement. However, during the Term of
this Agreement NDC shall render such assistance as NDCA shall request. All of
such assistance shall be rendered by NDC, and shall be paid for by NDCA,
pursuant to NDC's published prices for consulting services in effect at the time
of each such request. Payment for such services shall become due and payable 30
days after NDCA's receipt of NDC's invoices pertaining thereto.
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4 Purchases of NDC AGVS Control Components and Equipment.
All sales of NDC Current or Future Systems AGVS Control Components and Equipment
shall be made in accordance with NDC's published prices for such components and
equipment in effect at the time of its acceptance of any purchase order therefor
issued by NDCA. NDC shall have the right to adjust its published prices not more
than once every 12 months during the Term of this Agreement by giving not less
than 60 days' notice of such adjustment in writing to NDCA.
4.1 Discounts NDCA shall be entitled to receive an OEM Discount with
respect to its purchases of NDC Current or Future Systems AGVS
Control Components and Equipment determined, as follows:
4.1.1 During the first two Contract Years of the Term of this
Agreement, the OEM Discount shall be *** off the published
unit price of each item of AGVS Control Components and
Equipment.
4.1.2 During the last 60 days of each Contract Year (except the
first Contract year and the last Contract year of the
Term), NDC shall determine, based upon the volume of
NDCA's purchases of NDC Current or Future Systems AGVS
Control Components and Equipment and such other factors as
NDC shall deem to be relevant, the OEM Discount to be
applicable to all purchases of NDC Current or Future
Systems AGVS Control Components and Equipment which NDCA
shall make during the immediately succeeding Contract
Year. NDC shall confer with NDCA's management in
connection with its determination of such OEM Discount
however, such determination shall be made solely by NDC in
the sole exercise of its discretion.
5 General Conditions
5.1 Terms of Delivery NDC shall use its best efforts to fill all
orders for NDC Current or Future Systems AGVS Control Components
and Equipment and all NDC Current or Future Systems and NDC Older
Technologies spare parts in the order in which NDC issues
confirmations of the purchase orders pertaining thereto. All
shipments of NDC Current or Future Systems AGVS Control Components
and Equipment and all NDC Current or Future Systems and NDC Older
Technologies spare parts shall be delivered ex works Saro
(Incoterms 2000) or such other shipping point as NDC shall
designate in writing. For manpower and engineering activities, the
terms of delivery shall be in accordance with the applicable
quotation and order confirmation.
5.2 Terms of Payment Payment for all shipments of NDC Current or
Future Systems AGVS Control Components and Equipment and all NDC
Current or Future Systems and NDC Older Technologies spare parts
shall be due and payable 60 days after the date of invoice.
Interest shall accrue and shall be payable on all invoiced amounts
not paid within such 60 day period at the rate of 1.5% per 30 day
period calculated from the 61st day after the invoice date until
the date when the unpaid amount clears NDC's
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bank account. NDC will promptly correct any inaccuracies in its
issued invoices. Unless NDCA gives notice to NDC of an alleged
error in any invoice within 20 days of the issuance thereof, such
invoice shall be presumed to be correct. All NDC Current or Future
Systems AGVS Control Components and Equipment and all NDC Current
or Future Systems and NDC Older Technologies spare parts shall
remain the exclusive property of NDC until full payment has been
received therefor.
5.3 Post-Termination Support of End Users In the event that this
Agreement shall be terminated pursuant to the provisions of
Section 5.14 or 5.15 hereof, (a) NDC shall provide such support as
may be necessary to any affected End User who shall have purchased
or contracted for the purchase of any NDC Current or Future
Systems Customized AGVS or Lazerway Teach-In System from; and (b)
the parties agree to negotiate in good faith to consummate a
binding agreement for the provision of warranty and spare part
supply service and support to all then existing End Users of NDC
Current or Future Systems Customized AGVS or Lazerway Teach-In
Systems installed by NDCA, any NDCA Subsidiary or any sublicensee
of NDCA or a NDCA Subsidiary.
5.4 Incorporation of Terms By Reference All provisions of the
General Conditions for the Supply of Plant and Machinery for
Export ECE 188 promulgated by the UNECE (March 1953) as amended
and supplemented by the 1992 Addendum thereto which do not
conflict with the provisions of this Agreement shall be
incorporated into and made a part of each purchase of NDC Current
or Future Systems AGVS Control Components and Equipment made by
NDCA hereunder.
5.5 Warranties - General NDC warrants that each item of NDC Current
or Future Systems AGVS Control Components and Equipment purchased
by NDCA hereunder shall:
5.5.1 be of good and merchantable quality and suitable for the
purpose specified by NDC in writing;
5.5.2 conform in all respects to the specifications established
for such item by NDC;
5.5.3 be free of any defect in workmanship or materials for a
period of 18 months after the date of shipment of such
item by NDC.
5.6 Obligation to Repair or Replace NDC shall:
5.6.1 repair or replace, at NDC's option, free of charge to
NDCA, any item of NDC Current or Future Systems AGVS
Control Components found to be defective during the
above-stated warranty period which NDCA returns at its own
expense to NDC;
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5.6.2 bear all freight, packaging and insurance costs of sending
to NDCA a repaired or replaced item found to be defective
by NDC, provided, that, NDCA shall bear all costs with
respect to items that NDC in good faith shall determine
not to be covered within any of the warranty provisions
set forth above, in which event NDC shall provide NDCA
with an estimate of the cost to repair, and after
approval, return to NDCA the repaired item.
5.6.3 not be obligated to repair or replace any item of NDC
Current or Future Systems AGVS Control Components and
Equipment that has been modified or installed in an
Automated Guidance Vehicle System which has been
configured with components which are not authorized by NDC
for use with its NDC Current or Future Systems AGVS
Control Components and Equipment.
5.7 Warranties - Intellectual Property Except as otherwise provided
in Section 5.8 hereof, NDC warrants that no unit, item or
component of NDC Current or Future Systems AGVS Control Components
and Equipment or NDC AGVS Control Know-How acquired by NDCA
hereunder shall infringe upon the intellectual property rights of
any third party, including without limitation, claims of copyright
infringement, trademark infringement, false designation of origin,
disparagement, violation of patent or shop rights, piracy or
plagiarism.
5.8 Warranties - Software Except to the extent that NDC may
otherwise provide pursuant to its then current standard terms and
conditions of sale, all software residing or incorporated in any
NDC Current or Future Systems AGVS Control Components and
Equipment shall be licensed or sold "as is" without any warranty
as to performance, merchantability or fitness for a particular
purpose; and the entire risk as to performance shall be assumed by
the licensee or purchaser thereof.
5.9 Limitation of Liability NDC's liability for damages resulting
from shipment of defective items, late shipment or failure to
ship, shall be limited to the purchase price of defective, late or
unavailable items. In no event shall NDC be liable for
consequential, incidental or remote damages, tardiness or failure
to ship. NDCA acknowledges that (a) the AGVS Control Components
and Equipment, NDC AGVS Control Know-How and all software residing
or incorporated therein have been designed to function with one
another; (b) any combination or attempted combination of AGVS
Control Components and Equipment, NDC AGVS Control Know-How and/or
the software residing or incorporated therein with other control
know-how, control components and equipment and/or software may
result in incompatibilities which will hinder, prevent or degrade
the performance thereof; and (c) any such combination or attempted
combination shall void all warranties made by NDC hereunder.
5.10 Spare Parts
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5.10.1 NDC will supply NDC Current or Future Systems spare parts
or compatible replacement parts for not less than the
number of years published from time to time in the NDC
Buyers Guide for the part or parts in question.
5.10.2 NDC will not actively promote direct spare part sales to
End Users, and if contacted by an End User, NDC will refer
the End User to NDCA, provided, however, that:
5.10.2.1 if NDC shall be obligated by applicable law to
respond to an End User's request for delivery of
a spare part if such part is a standard NDC
product, listed in its published price-list
and/or it is a hardware product without any
specific application software, NDC shall comply
with such request.
5.10.2.2 if NDC determines, in its sole discretion, that
NDCA has failed or refused to perform the
obligations that it owes to its End User, NDC,
in order to preserve and protect its reputation
and good will, reserves the right to make direct
sales of spare parts directly to the affected
End User.
5.11 Exchange of Information During the Term of this Agreement, NDC
shall furnish to NDCA all relevant information on any
improvements, inventions or experience relating to the application
of any NDC AGVS Control Know-How or NDC AGVS Control Components
and Equipment to Automatic Guided Vehicle Systems whenever such
information shall be, in NDC's judgment, relevant and useful to
NDCA, provided that the disclosure of such information by NDC
shall not violate any obligation of confidentiality which NDC may
have to another party. During the term of this Agreement, NDCA
shall furnish to NDC all information which may be relevant to the
development or improvement of NDC AGVS Control Know-How" or NDC
AGVS Control Components and Equipment.
5.12 Preservation of Confidentiality During the Term of this
Agreement and for a five year period after its expiration:
5.12.1 NDCA agrees to preserve in secrecy all of the detailed
information, including but not limited to NDC AGVS Control
Know-How supplied to NDCA by NDC, and any other
information, however acquired, relating to NDC's
manufacturing and assembly procedures, trade secrets,
practices, techniques and processes, and agrees to take
all reasonable steps which may be necessary or desirable
to assure NDC that the employees of NDCA and others who
may have access to NDCA's business affairs will maintain
the foregoing in secrecy. NDC hereby authorizes NDCA to
make disclosures of detailed information supplied to it by
NDC only to the extent necessary and appropriate to
satisfy the legitimate business needs of End Users who
purchase Customized NDC Current or Future Systems AGVS or
Lazerway
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Teach-In Systems from NDCA, provided, however, that such
information shall continue to be considered confidential
and such disclosure shall in no way waive NDC's right to
prevent unauthorized disclosure thereof. The foregoing
obligation of NDCA shall not apply to any such detailed
information, trade secrets, practices, techniques or
processes which have been introduced into and have become
a part of the public domain, provided, that such
introduction shall not have occurred by reason of a
violation of the terms of this Agreement by NDCA, or any
officer, director or employee of NDCA. The actions of NDC
in supplying information pursuant to this Agreement or any
other agreement containing a similar preservation of
secrecy clause shall not be deemed to constitute an
introduction of such information into public domain.
5.12.2 NDC agrees to preserve in secrecy information relating to
NDCA's manufacturing and assembly procedures, trade
secrets, practices, techniques and processes related to
the employment of NDC AGVS Control Know-How by NDCA, and
agrees to take all reasonable steps which may be necessary
or desirable to assure NDCA that the employees of NDC and
others who may have access to NDC's business affairs will
maintain the foregoing in secrecy.
5.13 Term This Agreement shall be valid and shall continue in full
force and effect for an initial term of 10 years from the
Effective Date hereof (the " Initial Term"), unless sooner
terminated in accordance with the provisions of this Section or
Sections 5.14 or 5.15. After the expiration of the Initial Term,
this Agreement shall be renewed for additional successive one year
terms (each, a "Renewal Term" and all considered together with the
Initial Term, the "Term"), unless either party notifies the other
in writing of its intent not to renew the Agreement or unless it
is otherwise terminated. To be effective, notification of
non-renewal must be sent to a party at least six months prior to
the end of the then current Initial Term or Renewal Term.
5.14 Termination This Agreement may be terminated at any time prior
to the expiration of its then current term by an agreement in
writing between the parties; or
5.14.1 Termination by NDC NDC may terminate this Agreement
immediately or upon the giving of notice as hereinbelow
provided upon occurrence of any of the following specified
events:
5.14.1.1 Failure of NDCA to pay any amount due to NDC
within the time provided for such payment by the
applicable provision of this Agreement.
5.14.1.2 a breach of any of the provisions of this
Agreement, or failure to perform any of the
obligations imposed, under this Agreement upon
NDCA.
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5.14.1.3 In the event that any warranty or representation
made by NDCA in or pursuant to this Agreement
proves false or misleading in any material
respect.
5.14.1.4 In the event a petition in bankruptcy is filed
by or against NDCA or an assignment of its
assets is made for the benefit of creditors, and
such petition is not dismissed, or such
assignment is not cancelled within 60 days
thereafter.
5.14.1.5 In the event that NDCA shall assign, or attempt
to assign its interest in this Agreement in
violation of Section 5.21 hereof, NDC shall be
entitled to terminate this Agreement immediately
upon giving notice of such termination to NDCA.
5.14.1.6 In the event that NDCA shall undergo a "change
of control," NDC shall be entitled to terminate
this Agreement immediately upon giving notice of
such termination to NDCA. For purposes of this
Agreement, the term "change of control" shall
mean a sale or transfer out of the ordinary
course of NDCA's business of all or
substantially all of its assets without having
received NDC's prior written consent thereto, or
the acquisition of ownership of or the right to
vote a block of voting securities of NDCA by a
single person, an entity or a group of persons
or entities acting in concert, in a single
transaction or related series of transactions,
which block of voting securities is equal to or
greater than the block of voting securities
owned or voted, directly or indirectly, by the
following persons, their successors or assigns:
Dr. Goran Netzler, Jan Jutander, Anders Dahlgren
and Arne Nilsson.
5.14.1.7 In the event that NDCA shall fail for any reason
to timely pay any amount which it shall owe to
NDC pursuant to the terms of Sections 5.25
and/or 5.26 hereof, NDC shall be entitled to
terminate this Agreement on the fifth day after
giving notice of such termination to NDCA,
unless the entire amount then due and owing
shall be paid within such five day period.
5.14.2 Prior to termination of this Agreement by reason of an
event specified in Section 5.14.1.1 - 5.14.1.4 or
5.14.1.7, NDC shall send a written notice to NDCA,
specifying the event of default and indicating its
intention to terminate this Agreement. NDCA shall have 30
days (five days in the case of an event specified in
Section 5.14.1.7) from the date said notice is properly
given to NDCA within which to cure any such default. In
the event NDCA fails to cure any such default within said
thirty days period, this Agreement shall terminate upon
the expiration of said thirty days.
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5.14.3 NDC's exercise of any right of termination under this
Section does not constitute a waiver of other right and
remedies available to it.
5.15 Termination by NDCA NDCA shall have the right to terminate this
Agreement upon the occurrence of any of the following events:
(a) In the event any warranty or representation made by NDC in
this Agreement proves false or misleading in any material
respect.
(b) NDC's breach of any of the provisions of, or failure to
perform any of the obligations imposed upon it under this
Agreement.
5.15.1 Prior to termination of this Agreement by reason of an
event specified in this paragraph, NDCA shall send a
written notice to NDC, specifying the event of default and
indicating its intention to terminate this Agreement. NDC
shall have thirty days from the date said notice is
properly given to NDC, within which to cure any such
default. In the event NDC fails to cure any such defect
within said thirty days period, this Agreement shall
terminate upon the expiration of said thirty days.
5.16 Notice to the Parties Any notice required to be delivered under
this Agreement shall be delivered by guaranteed overnight delivery
service (e.g., Fed Ex), facsimile transmission (with confirmed
answer-back) or e-mail addressed to the parties at their
respective addresses first above-written, or to such other address
as either party may designate by notice given to the other in
accordance with the provisions of this Section. Such notice will
be effective on the date upon which it is sent if it is delivered
by facsimile or by e-mail, and on the date of receipt, if
delivered by overnight delivery service.
5.17 Arbitration Any dispute, controversy, or claim arising out of or
relating to this Co-operation Agreement, or breach thereof, either
directly or indirectly, which cannot be settled amicably between
the parties, shall be finally decided by arbitration. The
arbitration shall be conducted in accordance with the rules of
conciliation and arbitration of the International Chamber of
Commerce. The arbitration hearing shall take place in London. The
costs of the arbitration shall be borne equally by the parties,
provided that each party shall pay its own counsel and expert
witness fees.
5.18 Modifications, Improvements, Etc. to Intellectual Property All
modifications and improvements to, and all derivations of any NDC
AGVS Control Components and Equipment and the NDC AGVS Control
Know-How shall remain or become the sole and exclusive property of
NDC, whether made or discovered by NDC or NDCA. NDCA shall have
the right to utilize all such modifications, improvements and
derivations within the scope of and during the Term of this
Agreement.
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<PAGE>
5.19 Force Majeure All transactions between the parties are subject
to fire, strikes, lockouts, accidents, inability or delays in
transportation, any national or local law affecting importation of
any item. Acts of God, or causes above and beyond the reasonable
control of either party shall absolve the performing party of any
liability to the other or any of their respective customers.
5.20 Agency This Agreement shall not be construed to give rise to any
agency relationship between NDC and NDCA.
5.21 Assignment This Agreement shall be binding upon the parties
hereto and their respective successors and assigns; however,
neither party may assign this Agreement without the prior express
written consent of the other party and any such purported
assignment in violation of this Section shall be null and void.
5.22 Severability If any provision of this Agreement is held illegal,
invalid, or unenforceable, that provision shall be severed from
the whole and will not affect the legality or enforceability of
the remainder of the Agreement.
5.23 Governing Law This Agreement shall be governed by and in
accordance with the laws of the State of North Carolina, United
States of America pertaining to the enforcement of contracts
executed within and to be performed in said jurisdiction.
5.24 Entire Agreement; Supersession of Prior Agreements This
Agreement contains the entire and complete understanding of the
parties and is intended to be the final statement of all terms and
conditions herein contained. This Agreement replaces all prior
agreements, courses of dealing, statements and representations
made by or between the parties including, but not limited to the
Restated Master License Agreement between the parties dated as of
December 1, 1995. Any provision, modification, or amendment to
this Agreement must specify with certain particularity each
addition, change, or modification and be a duly authorized
representative of each party hereto.
5.25 Reduction and Restructuring of Note NDC hereby agrees to reduce
NDCA's aggregate indebtedness under the Note from 5,714,473 SEK to
4,523,957 SEK (the "Restructured Principal"). Such Restructured
Principal, together with interest thereon computed on the unpaid
balance thereof at the rate of 4.5% per annum between the date of
this Agreement and March 31, 2001, and thereafter at the rate of
9.0% per annum, shall be paid by NDCA in 16 monthly installments
of principal and interest, as set forth in Schedule A annexed
hereto. In the event that NDCA shall fail for any reason to pay
any installment of Restructured Principal and/or interest when the
same shall become due, (a) the entire unpaid balance of
Restructured Principal, together with all accrued but unpaid
interest thereon, shall become immediately due and payable five
days after NDC gives notice of its election to accelerate the
maturity of
14
<PAGE>
such indebtedness; and (b) NDCA shall be obligated to pay the
reasonable counsel fees incurred by NDC in connection with any
action or proceeding that NDC shall commence to collect or
otherwise enforce its rights with respect to such indebtedness.
5.26 Repurchase of Inventory and Extension of Time for Payment of Trade
Indebtedness NDC hereby agrees to repurchase up to 500,000 SEK
of NDCA's inventory of NDC AGVS Control Components and Equipment.
The actual items of inventory which shall be repurchased by NDC
shall be determined by mutual negotiation between the parties.
NDCA owes NDC the aggregate amount of 1,176,739 SEK (the "Trade
Debt") with respect to purchases of NDC AGVS Control Components
and Equipment which it made subsequent to June 30, 2000, of which
390,283 SEK is past due as of November 6, 2000. NDC hereby agrees
to reduce the total amount of the Trade Debt by the aggregate
amount of the repurchased inventory, and to restructure NDCA's
obligation to pay such reduced Trade Debt, as follows: the entire
amount of the Trade Debt, as reduced by the amount of the
repurchased inventory, shall be due and payable without interest
on April 1, 2001. In the event that NDCA fails to pay such amount
in full on or before said date, interest shall accrue on, and
shall be due and payable with respect to, the unpaid balance
thereof at the rate of 18% per annum from April 1, 2001 through
the date of full payment of such unpaid balance and accrued
interest.
5.27 Extension of Term of Letter of Credit NDCA has advised NDC that
Summit Business Capital Corp. ("Summit") has given notice to NDCA
that the $450,000 working capital line of credit loan granted by
Summit's predecessor in interest (the "Loan") will not be renewed,
and that the Loan shall terminate on January 31, 2001. Said Loan
is collateralized by a $450,000 letter of credit issued on behalf
of NDC by Merita-Nordenbanken Group (the "Bank") for the benefit
of Summit (the "Letter of Credit"). NDC has been advised that NDCA
is attempting to secure a three month extension of the Loan
through April 30, 2001. In the event that Summit is willing to
grant such extension if the Letter of Credit is extended through
said date, NDC shall cause the Bank to amend the Letter of Credit
to provide for such extension.
[the balance of this page has been left blank intentionally]
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<PAGE>
5.28 Limitation on Rights Granted to NDCA Hereunder The only rights
which NDCA may exercise hereunder are those that have been
expressly granted to it pursuant to the terms and conditions of
this Agreement. All other rights have been expressly reserved by,
and may only be exercised by, NDC.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by the
signatures of their respective duly authorized officers or representatives as of
and with effect from, the Effective Date.
NDC, Netzler & Dahlgren Co AB
By: /s/ Jan Jutander
-------------------------------------------
NDC Automation, Inc.
By: /s/ Claude Imbleau
-------------------------------------------
<PAGE>
Schedule A
Payment of Restructured Note Indebtedness
<TABLE>
<CAPTION>
Amount of Restructured Amount of Interest Total Amount
Installment Principal Included Included in Installment of Installment
Payment Date In Installment (in SEK) (in SEK) (in SEK)
------------ ------------------------ ----------------------- -----------------
<S> <C> <C> <C>
April 1, 2001 952,412 163,785 1,116,197
April 30, 2001 238,103 26,787 264,890
May 31, 2001 238,103 25,001 263,104
June 30, 2001 238,103 23,989 262,092
July 31, 2001 238,103 22,144 260,247
August 31, 2001 238,103 19,644 257,747
September 30, 2001 238,103 17,858 255,961
October 31, 2001 238,103 16,072 254,175
November 30, 2001 238,103 14,286 252,389
December 31, 2001 238,103 12,500 250,603
January 31, 2002 238,103 10,715 248,818
February 28, 2002 238,103 8,334 246,437
March 31, 2002 238,103 7,143 245,246
April 30, 2002 238,103 5,357 243,460
May 31, 2002 238,103 3,572 241,675
June 30, 2002 238,103 1,786 239,889
TOTALS 4,523,957 378,973 4,902,930
</TABLE>
