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EXHIBIT 10.2
LICENSE AGREEMENT
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This Agreement is made and entered into as of the 4th day of May, 1998,
by and between Eagle Research Corporation, a West Virginia corporation with its
corporate offices at 000 Xxxxxxx Xxxx, Xxxxx Xxxxx, XX 00000 ("Eagle"), American
Meter Company, a Delaware corporation with its principal corporate offices at
000 Xxxxx Xxxx, Xxxxxxx, XX 00000-0000 ("AMCO"), and Metretek, Incorporated, a
Florida corporation ("Metretek") with its corporate offices at 000 Xxxxx Xxxxx,
Xxxxxxxxx, XX 00000. Eagle and Meter collectively shall be referred to
hereinafter as "AMCO". All references to Metretek hereinafter shall include
Metretek and its Affiliates.
WITNESSETH:
In consideration of the mutual covenants, conditions and agreements
herein contained, the parties agree as follows:
1. Definitions.
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A. "Action" shall have the meaning ascribed to it in Paragraph 18
of this Agreement.
B. "Advanced Function" shall mean SCADA, AMR, or any other
application or function that is different than the functions
or applications that are able to be performed by Metretek
systems as they exist of the Effective Date.
C. "Affiliate" shall mean an entity directly or indirectly
controlling, controlled by or under common control with a
party to this Agreement; and for these purposes, "control"
shall mean ownership of twenty percent (20%) or more of the
voting power.
D. "AMCO New Application" shall have the meaning ascribed to it
in Paragraph 14 of this Agreement.
E. "AMR" shall mean residential automated meter reading.
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F. "Application" shall mean any software program designed by
either party for use with Pantheon, but shall not include the
Pantheon Platform.
G. "Asset Purchase Agreement" shall mean the asset purchase
agreement between the Parties of even date herewith.
H. "Confidential Information" shall have the meaning ascribed to
it in Paragraph 25 of this Agreement.
I. "Converted Customers" shall have the meaning ascribed to it in
Paragraph 5.A of this Agreement.
J. "EM" stands for electronic measurement which is the remote
reading of time use histories or load profile data from
electronic correctors and pulse accumulator devices for the
purpose of billing energy usage measured by commercial gas and
electric meters.
K. "Effective Date" shall mean the date on which this Agreement
is entered into.
L. "Existing Customer" shall mean a customer of Metretek existing
on the Effective Date; provided that, an Existing Customer
shall be deemed a "New Customer" if a sale of an Advanced
Function to the Existing Customer occurs after the Effective
Date.
M. "Full Manufacturing Cost" shall mean the cost of materials
plus the cost of direct labor and the cost of factory overhead
in making a product. The calculation of Full Manufacturing
Cost shall not include selling expenses, research and
development costs or expenses or general and administrative
expenses.
N. "Initial Period" shall have the meaning ascribed to it in
Paragraph 15.B of this Agreement.
O. "Metretek Applications" shall have the meaning ascribed to it
in Paragraph 14 of this Agreement.
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P. "Most Favored Nation Basis" shall mean the lowest price at
which a party licenses or sells the relevant product in
comparable quantities to other customers during the Term;
provided, however, that the term "Most Favored Nation Basis"
when used with respect to the licensing of Pantheon shall not
include pricing afforded by AMCO to GE Capital Global Energy
Services pursuant to its agreement with AMCO.
Q. "New Customer" shall mean (i) a customer of Metretek existing
after the Effective Date that was not a customer of Metretek
prior to the Effective Date which buys Metretek manufactured
hardware in addition to Pantheon and which Metretek materially
assists in introducing and/or marketing to or (ii) an Existing
Customer that buys an Advanced Function after the Effective
Date.
R. "Pantheon" shall mean AMCO's proprietary software with such
trademark, including the Pantheon Platform, AMCO New
Applications, the phrase "Pantheon by American Meter" and all
other products listed in Exhibit B hereto. The Pantheon
Platform and such products and services may from time to time
during the term of this Agreement be added to or improved by
AMCO upon notice to Metretek; provided that, in the event
AMCO, or any assignee thereof, no longer offers backup support
services for Pantheon, Metretek shall have access to the
source code pursuant to the Escrow Agreement specified in
Exhibit D.
S. "Pantheon Platform" shall have the meaning ascribed to it in
Exhibit B.
T. "Parties" shall mean collectively Eagle, AMCO and Metretek.
U. "Prime Rate" shall mean the rate of interest from time to time
published by the Wall Street Journal, New York, New York, as
the "Prime Rate," presently designated under the category of
"Money Rates" and defined therein as the base rate on
corporate loans posted by at least 75% of the nation's 30
largest banks, as the same may fluctuate from
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time to time. In the event more than one "Prime Rate" shall be
so published, the "Prime Rate" for purposes hereof shall be
the highest such published "Prime Rate."
V. "Product" shall have the meaning ascribed to it in Paragraph
18 of this Agreement.
W. "Protocol" shall have the meaning ascribed to it in Paragraph
24.A of this Agreement.
X. "Relevant Market" shall mean utilities or other companies
engaged in the sale of natural gas at retail to the general
public to which Pantheon is sold to perform EM applications
relating to natural gas and electricity. The Relevant Market
shall in no event include industrial accounts, sales of AMR
applications to residential customers, or sales of Pantheon to
utilities to perform SCADA applications.
Y. "SCADA" stands for supervisory control and data acquisition
which is the reading of remote sensors, through a
communications network, in real time or near real time for the
purpose of controlling or managing utility or industrial
operations.
Z. "Term" shall have the meaning ascribed to it in Paragraph 2 of
this Agreement.
AA. "Termination Date" shall mean the date specified in Paragraph
22 of this Agreement.
2. Appointment.
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AMCO hereby appoints Metretek and its Affiliates as non-exclusive value
added reseller-distributor for Pantheon and all trademark, copyright
and other intellectual property rights associated with Pantheon
throughout the world to utilities, end users and other clients in the
Relevant Market beginning on the Effective Date and ending on the
Termination Date (the "Term"), and in such connection AMCO grants to
Metretek during the Term the following nonexclusive, nontransferable
license for Pantheon, AMCO New Applications and jointly owned
Application software in accordance with the terms and conditions of
this Agreement; provided, however, that copies of Pantheon shall be
made only by AMCO:
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A. the right to grant perpetual nonexclusive sublicenses of
Pantheon for use by utilities, end users and other clients in
the Relevant Market provided that AMCO shall promptly receive
full information regarding the identity of such sublicensees
and be fully paid by Metretek with respect to such
sublicensees in accordance with this Agreement;
B. the royalty-free right (except for the payment by Metretek of
third party software royalties to AMCO) based upon current
price list to use authorized copies of Pantheon for training
and demonstration purposes; and
C. the right to establish, maintain and terminate sublicense
agreements with clients and end users in the Relevant Market.
The prices, terms and conditions charged by Metretek with
respect to such sublicensees are the sole responsibility of
Metretek, provided only that such terms and conditions do not
conflict with any of the terms and conditions of this
Agreement and Metretek shall promptly pay the license fee
provided for in this Agreement. AMCO will provide Metretek
with a price schedule setting forth AMCO's suggested
sublicense fees for Pantheon.
3. Pricing of Pantheon
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A. Except as provided in Paragraphs 3.B and 12.D, AMCO shall
license Pantheon to Metretek on a Most Favored Nation Basis.
Exhibit A, as amended from time to time in accordance with
subparagraph B of this Paragraph 3, sets forth AMCO's current
list market price and AMCO's Most Favored Nation Basis prices.
At Metretek's request, but no more often than once each
calendar quarter, AMCO will verify that Metretek is receiving
Most Favored Nation Basis pricing by delivering a certificate
of the Chief Financial Officer of AMCO to such effect.
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B. Any increase of prices on the Pantheon price schedule shall be
effective upon no less than thirty (30) days notice of such
change; provided that, any outstanding quotation on the
effective date of the price change shall not be affected by
the price change for the period ending on the sixtieth (60th)
day following the issuance of such quotation. Any decrease of
prices on the Pantheon price schedule shall be effective
immediately.
C. Metretek shall maintain records of its Pantheon sublicenses
and usage in order to enable AMCO to appropriately charge
Metretek in accordance with AMCO's current discounted price
schedules. Metretek shall issue a purchase order itemized by
line item corresponding to Exhibit A. AMCO shall control all
licensing and activation of purchased products. AMCO (at
AMCO's sole expense) may conduct audits of Metretek records
relating to Pantheon at reasonable frequency and with
reasonable notice; provided that, if the results of such audit
demonstrate an error in the amounts reported to AMCO of
greater than ten percent (10%), Metretek shall pay for the
cost of such audit.
D. Any action taken by Metretek to attempt to circumvent the
pricing structure established by Exhibit A shall be considered
a breach of this Agreement; and Metretek shall use
commercially reasonable efforts in preventing any such actions
by its sublicensees.
4. Payment.
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AMCO shall submit monthly invoices with respect to outstanding Pantheon
sublicenses and usage in the preceding month. Payment of invoices shall
be due within thirty (30) days of invoice date. Interest shall be
charged at a rate equal to the Prime Rate per annum on late payments.
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5. Fee Structure; Account Responsibility
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A. For licenses (in the case of AMCO) or sublicenses (in the case
of Metretek) of Pantheon to New Customers to perform EM
applications or for licenses (in the case of AMCO) or
sublicenses (in the case of Metretek) of Pantheon to Existing
Customers to perform EM applications as part of the expansion,
conversion or replacement of software capabilities in an
existing Metretek system ("Converted Customers"), the
following shall apply:
(i) If the license (or sublicense) fee
attributable to Pantheon is less than forty
thousand dollars ($40,000) (a) Metretek
shall be responsible for installing
Pantheon, managing the account and for
providing Pantheon front-line maintenance
and support to the customer and (b) Metretek
shall receive Most Favored Nation Basis
pricing on Pantheon; and
(ii) If the license (or sublicense) fee
attributable to Pantheon is forty thousand
dollars ($40,000) or more (a) AMCO shall be
responsible for installing Pantheon,
managing the account and for providing
Pantheon front-line maintenance and support
to the customer and (b) Metretek shall
receive a commission equal to (x) the
percentage discount from list prices
represented by Most Favored Nation Basis
pricing for Pantheon, multiplied by forty
thousand dollars ($40,000) plus (y) ten
percent (10%) of the license fee
attributable to Pantheon multiplied by the
portion of the license fee attributable to
Pantheon in excess of forty thousand dollars
($40,000); provided, however that if a
Converted Customer requests that Metretek be
responsible for installing Pantheon,
managing the account and for providing
Pantheon front-line maintenance and support
to the Converted Customer and if AMCO
consents to allow Metretek to assume
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such duties, the fee structure set forth in
this Paragraph 5.A(ii) shall be inapplicable
and the fee structure set forth in Paragraph
5.A(i) shall govern.
(iii) If the fee structure set forth in Paragraph
5.A(ii) is applicable, Metretek shall also
receive a commission in the amount of five
percent (5%) of the amount of any future
license fees attributable to Pantheon for
such customers for a period of eighteen (18)
months after the initial license fee.
B. For licenses of Pantheon to New Customers or Existing
Customers to perform SCADA or AMR applications, Metretek shall
receive a commission in the amount of five percent (5%) of the
license fee AMCO receives from such customer with respect to
the Pantheon license and AMCO shall be responsible for
installing Pantheon, managing the account and for providing
Pantheon front-line maintenance and support to the customer.
Metretek shall also receive a commission in the amount of five
percent (5%) of the value of any future license fees for
Pantheon AMCO receives from such customer for a period of
eighteen (18) months after the initial sale is completed.
6. Metretek Other Obligations.
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A. During the period beginning with the Closing Date and ending
one hundred twenty (120) days thereafter (the "Feasibility
Period"), Metretek (with the full cooperation of AMCO) shall
exercise its good faith commercial efforts to prove to
Metretek's reasonable satisfaction, based upon the results of
testing at Metretek customers acting as "beta" sites, the
capability and functionality of the operation of Pantheon in
connection with Metretek hardware products. If despite its
good faith commercial efforts, Metretek is unable to so prove
the capability and functionality of Pantheon during the
Feasibility
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Period, (i) Metretek shall as soon as possible, but not later
than the last day of the Feasibility Period, report the nature
of the remaining issues to AMCO; (ii) Metretek (with AMCO's
full cooperation) shall continue to exercise its good faith
commercial efforts to resolve the remaining issues; (iii) the
Feasibility Period shall be extended for such period necessary
to resolve such issues; and (iv) Metretek shall report to AMCO
at no less than thirty (30) day intervals during the
Feasibility Period (as so extended) on the status of any
remaining issues.
B. After the expiration of the Feasibility Period (either when
remaining issues with respect to the functionality and
capability of Pantheon within such period are resolved to
Metretek's reasonable satisfaction, provided such resolution
occurs within an eighteen (18) month period after the Closing
Date, or Metretek's failure to render timely and reasonably
adequate reports to AMCO required hereinabove in subparagraph
A of this Paragraph 6, Metretek shall only sell software
systems that utilize Pantheon to New Customers and Metretek
agrees that during the Term after the expiration of the
Feasibility Period, it will not sell, license, or otherwise
promote or market any products containing software
substantially similar to Pantheon, or software that performs
functions substantially similar to those performed by
Pantheon, including, without limitation, managing energy
management information, subject to a commercially reasonable
phase-in period with respect to sales material and outstanding
customer orders and quotes and jobs in process; provided,
however, nothing in this Paragraph 6 shall be construed to
prohibit Metretek from providing support or providing upgrades
or enhancements to Existing Customers for any Metretek
software products utilized by Existing Customers. After the
expiration of the Feasibility Period, Metretek shall, and
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shall cause its personnel to, utilize its good faith
commercial efforts to convert Existing Customers to Converted
Customers.
C. If Metretek successfully converts at least twenty-five (25) of
its Existing Customers to Converted Customers each with a
license fee (in the case of AMCO) or sublicense fee (in the
case of Metretek) attributable to Pantheon in excess of twenty
five thousand dollars ($25,000) before the second (2nd)
anniversary of the expiration of the Feasibility Period, the
following shall apply to any such Converted Customer in excess
of twenty-five (25) until the end of such period:
(i) if the license (or sublicense) fee
attributable to Pantheon is less than forty
thousand dollars ($40,000), or if a customer
requests that Metretek be responsible for
installing Pantheon, managing the account
and for providing Pantheon front-line
maintenance and support to the customer and
AMCO agrees to allow Metretek to assume such
duties, Metretek shall receive an additional
discount of ten percent (10%) off the Most
Favored Nation Basis price otherwise payable
by Metretek for Pantheon pursuant to
Paragraph 3 of this Agreement for each
Converted Customer in excess of twenty-five
(25).
(ii) if the license (or sublicense) fee
attributable to Pantheon exceeds forty
thousand dollars ($40,000), the commission
payable to Metretek pursuant to Paragraph
5.A(ii)(b)(y) shall be one hundred ten
percent (110%) times the amount otherwise
payable to Metretek pursuant to such
Paragraph 5.A(ii)(b)(y).
D. Metretek shall assign to the marketing, installation and
maintenance of Pantheon adequate, trained personnel. After the
expiration of the Feasibility Period, Metretek shall
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cause its personnel to exercise their good faith commercial
efforts to generate Pantheon sales, including without
limitation, presenting Pantheon at appropriate industry trade
shows that Metretek decides to attend, keeping its
distribution channels supplied with sufficient marketing
materials, providing customary incentive programs for its
sales representatives regarding Pantheon, and in general using
its good faith commercial efforts to license Pantheon.
E. Metretek shall use its good faith commercial efforts to
develop and complete electronic components and related
equipment pertaining to both electronic temperature and
pressure correction (and not electronic temperature only) to
be integrated within certain rotary and turbine meters
manufactured by AMCO that AMCO designates. Metretek shall sell
such electronic components to AMCO at Full Manufacturing Cost
plus ten percent (10%). Metretek shall commence the design of
such product within sixty (60) days of the date of this
Agreement and complete the design to AMCO's satisfaction
within a commercially reasonable time.
7. Joint Obligations of Metretek and Amco.
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Metretek and AMCO will each provide all reasonable marketing assistance
and cooperation relating to Pantheon requested by the other party,
including but not limited to the following:
(i) Coordinating sales calls (including those on bids
outstanding as of the Effective Date); and
(ii) Cooperating and working together to market and sell
Pantheon to New Customers.
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8. AMCO Other Obligations.
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AMCO shall utilize its good faith commercial efforts to use Metretek's
measurement system and hardware as the preferred system with AMCO's
Pantheon resellers.
9. Pricing of Metretek Products to AMCO.
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A. AMCO (and its affiliates) shall be entitled to resell all
Metretek manufactured hardware throughout the Continental
United States and Canada and Metretek shall sell such hardware
to AMCO at the lower of (i) Most Favored Nation Basis pricing
less fifteen percent (15%) and (ii) Full Manufacturing Cost
plus twenty percent (20%).
B. At AMCO's request, but no more often than once each calendar
quarter, Metretek will verify that AMCO is receiving pricing
on Metretek manufactured hardware in accordance with Paragraph
9.A and 9.B by delivering a certificate of the Chief Financial
Officer of Metretek to such effect.
C. Any increase of prices shall be effective upon no less than
thirty (30) days notice of such change; provided that, any
outstanding quotation on the effective date of the price
change shall not be affected by the price change for the
period ending on the sixtieth (60th) day following the
issuance of such quotation. Any decrease of prices on Metretek
manufactured hardware shall be effective immediately.
D. Payment for Metretek manufactured hardware shall be governed
by the same provisions as set forth in Paragraph 4 with
relation to payment for Pantheon by Metretek.
10. Trademark, Copyright.
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AMCO hereby accords Metretek and its Affiliates the right to use the
name "Pantheon" and such other related AMCO trademarks, trade names,
copyrights, trade secrets and related
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intellectual property rights in connection with the Pantheon products.
Metretek agrees to use the trademark Pantheon solely in connection with
Pantheon and to identify the product as "Pantheon by American Meter" in
its product advertisements and labeling; and provided that, Metretek
shall have the right to indicate its connection to Pantheon in
advertising and labels such as "Licensed, Sold and Serviced by
Metretek". Metretek agrees to abide by all of AMCO's obligations
regarding the licensed software included in Pantheon, which obligations
are summarized in Exhibit C to this Agreement. Metretek will produce
and include the copyright notices and other restrictive and proprietary
legends from the original, on all copies, partial copies, and
derivative works, all of which shall be subject to the provisions of
this Agreement. AMCO warrants to Metretek that (i) AMCO is the sole
legal and beneficial owner of Pantheon and all intellectual property
rights associated therewith other than with respect to the third party
software embedded in Pantheon for which AMCO has a valid license; and
(ii) AMCO shall diligently prosecute and take all commercially
reasonable steps to maintain the intellectual property rights related
to Pantheon in full force and effect for the duration of this
Agreement.
11. AMCO's Shipment.
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Upon receiving an order from Metretek specifying the customer and the
software options ordered, AMCO shall promptly send an invoice to
Metretek reflecting such order and shall promptly (subject to their
currently available version) create a customer copy of Pantheon, with
individually designated customer name and identification and ship the
version of Pantheon ordered in accordance with its normal delivery
schedule.
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12. Training.
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A. AMCO shall certify (or otherwise give its formal approval for)
to Metretek employees to develop Applications of the Pantheon
product using the standard Application tools built into
Pantheon and AMCO shall have the right to audit Applications
at random.
B. Qualified, trained personnel of AMCO shall provide initial
training and new release training at no cost to Metretek for
each new Pantheon release and at least once per year at a
location chosen by AMCO a class of at least five (5) and not
to exceed fifteen (15) Metretek designated employees. Metretek
shall pay all travel, meal and lodging expenses of such
personnel. AMCO may at its discretion provide such training on
video or training software; provided that a live question and
answer period shall supplement the prepared materials.
Metretek shall pay AMCO for any additional training at AMCO's
standard rates. The training obligations of AMCO in this
Paragraph 12.B set forth AMCO's training obligations vis-a-vis
Metretek in their entirety. In acknowledgment of the
foregoing, Metretek accepts responsibility for providing
long-term support training for its employees in connection
with Pantheon.
C. Metretek may use Pantheon for training and demonstration
purposes for reasonable periods at no cost to Metretek,
provided that Metretek shall pay AMCO for third party software
royalties.
D. AMCO shall license Metretek copies of Pantheon, AMCO New
Applications and jointly owned Application software to be used
for development or customer support purposes and not for
resale. Such licenses shall be at a fifty percent (50%)
discount from AMCO's list market price as set forth in Exhibit
A, as amended from time to time in accordance with Paragraph
3.B of this Agreement.
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13. Improvements.
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AMCO shall exercise its good faith commercial efforts to develop,
improve and support Pantheon. Metretek shall provide AMCO with key
market requirements, developments and specifications necessary to serve
the market. From time to time, AMCO or Metretek may request the expert
assistance of the other in developing changes to Pantheon to improve or
enhance such product. Such assistance shall be provided and paid for as
agreed to by the parties. All improvements or enhancements to the
Pantheon Platform shall be the sole property of AMCO.
14. New Applications.
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AMCO shall have the sole ownership of new Application software for
Pantheon developed solely by AMCO ("AMCO New Applications"). The
parties shall jointly own all Application software developed jointly by
them. Metretek shall have sole ownership of Application software
developed by Metretek ("Metretek Applications"), and Metretek shall
accord AMCO the rights to license and adapt and modify Metretek
Applications solely for use by end users. Metretek shall license
Metretek Applications to AMCO at discounts generally equal to the
discounts accorded Metretek by AMCO specified in Paragraph 3. AMCO
acknowledges that Metretek may offer customers pricing for Metretek
Applications that does not separately itemize Pantheon. Accordingly, if
such is the case, the parties shall engage in good faith discussions
regarding such pricing to AMCO which includes a reasonable
approximation of the Metretek Application value and the discounts
accorded Metretek by AMCO hereunder. Without regard to this Paragraph
14 and any other provision of this Agreement, Metretek shall not
develop modules to replace any module specified in Exhibit B to this
Agreement.
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15. Support Services.
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A. Each Party shall provide at its sole cost and expense the
front line primary support for Pantheon and products or
services into which Pantheon is integrated for all customers
for which such Party has account responsibility. Such
front-line support shall include all communication to all
customers for which such Party has account responsibility. In
the event of termination of this Agreement due to a default by
Metretek hereunder, AMCO shall in its sole discretion assume
Metretek's obligations to provide front line support or
continue to allow Metretek to provide front line support, and
in such latter instance, allow Metretek to retain the
information for the application development package necessary
to provide such front line support. AMCO shall provide backup
support as follows:
(i) reasonable telephone support (8:00 a.m. to 5:00 p.m,
Monday through Friday, E.S.T., excepting holidays)
for Metretek support personnel for matters that
cannot be resolved by Metretek support personnel; and
(ii) a two level Internet database/help desk for problems
and solutions with a response time for e-mail
inquiries to the help desk within twenty-four (24)
hours (business days) and integrator inquiries during
normal business hours within three (3) hours;
provided that, the Parties shall implement a method
of expedited response for true emergency problems
outside of normal business hours.
AMCO shall use commercially reasonable efforts to respond
promptly to all requests for support and remedy all support
requests within a reasonable time so as to minimize a
customer's inability to use the product as licensed.
B. In consideration of AMCO's provision of backup support,
Metretek shall pay AMCO support fees equal to twelve percent
(12%) of the fees payable to Metretek in connection
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with sublicensees of Pantheon. AMCO shall not increase or
otherwise modify its fee for the provision of backup support
hereunder until the first anniversary of the Effective Date
(the "Initial Period"). After the Initial Period, AMCO may
increase or otherwise modify its fee for the provision of
backup support hereunder, but solely in response and to the
extent of any increase in third party fees charged to AMCO
related to the provision of backup support, upon 30 days'
written notice to Metretek. Support fees shall be invoiced on
a monthly basis payable within thirty (30) days of the invoice
date. Interest shall be charged at the Prime Rate on late
payments. AMCO shall also provide on-site customer service at
Metretek's request. Such service shall be paid to AMCO by
Metretek at AMCO's standard rates.
C. Metretek shall be required to pay AMCO for backup support with
respect to any Metretek customer which is using Pantheon
whether or not such customer contracts with Metretek for front
line support.
16. Source Code Escrow
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If Metretek so elects, AMCO and Metretek shall enter into the form of
Escrow Agreement specified in Exhibit D hereto, which shall provide
that in an Event of Default (as such term is defined in such Exhibit
D), the Pantheon source code shall be transferred to Metretek solely
for its internal use in servicing Pantheon licensed to Metretek
customers. For these purposes, an Event of Default will include a sale
of the Pantheon business to a third party where the third party does
not assume AMCO's obligations under this Agreement.
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17. Warranty.
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AMCO warrants that it has and will maintain all rights necessary to
grant to Metretek the rights specified in this Agreement. AMCO warrants
that its performance under this Agreement does not and will not
conflict with any other agreement or obligation. AMCO warrants that
Pantheon does not and will not contain any disabling or harmful code
and will handle data, computations and processing without error
regarding millennial dates (E.G., Year 2000); provided that, the
warranty set forth in this sentence shall not include the license
management code which is included in Pantheon. AMCO warrants that
Pantheon shall operate substantially in conformity with the
documentation distributed with each version of Pantheon for all periods
in which AMCO provides backup support services for Pantheon pursuant to
Paragraph 15 of this Agreement. During the warranty period, AMCO shall
determine to either repair or replace defective software at its sole
option and at AMCO's sole expense. AMCO shall not be responsible or
liable for any failure caused by Metretek Application or modifications
made to Pantheon by Metretek, its agents or Metretek customers or for
Pantheon's failure to meet the requirements of Metretek customers. AMCO
MAKES NO OTHER EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING BUT
NOT LIMITED TO ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE, WARRANTIES OF MERCHANTABILITY OR WARRANTIES RELATED TO THE
PERFORMANCE OF THE PRODUCT.
18. Infringement Indemnity
----------------------
AMCO shall indemnify, defend and hold Metretek and its respective
officers, directors, employees and agents harmless against any claim,
suit, or other proceeding ("Action") brought against Metretek based
upon or arising out of an allegation that Pantheon, any AMCO New
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Application, or any other product licensed by AMCO to Metretek under
this Agreement ("Product") is not owned by AMCO, conflicts with any
AMCO agreement or permit, or infringes upon any patent, copyright,
trademark, or other proprietary right of a third party, provided that
AMCO is promptly notified in writing of such Action. AMCO shall pay all
damages awarded, settlement amounts, and all costs and expenses
associated with such Action, including Metretek's reasonable attorneys'
fees. If the use of any Product is enjoined or if AMCO believes that
such use may be enjoined, AMCO shall, at its option and expense, either
promptly procure the right for Metretek to continue use of such Product
or, if the performance thereof will not thereby be materially adversely
affected, promptly replace or modify such Product so that it becomes
noninfringing. If none of the foregoing are reasonably feasible
regarding the remedy for an injunction, AMCO shall refund to Metretek
the aggregate payments made for the infringing Product.
19. Limitation of Liability.
------------------------
Except as provided in Paragraph 18, AMCO's liability for any claim
related to this Agreement, regardless of the form of action (whether in
contract or tort, including negligence or statute) will in no event
exceed the fees payable to AMCO attributable to the client or end user
giving rise to the claim; and in no event will AMCO be liable for any
indirect, special, consequential or punitive damage, including lost
profits or savings even if Metretek has advised AMCO of the possibility
of such damage. Metretek's liability for any claim related to this
Agreement or the performance of its obligations hereunder will in no
event exceed the amount of the license fees attributable to the client
or end-user transaction giving rise to the claim; and in no event shall
Metretek be liable for any indirect, special, consequential damages or
the like or punitive
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damages, including lost profits or savings even if AMCO has advised
Metretek of the possibility of such damage.
20. AMCO's Rates.
-------------
AMCO shall have the right to review and amend its standard labor rates
with notice to Metretek.
21. Noncompetition.
---------------
A. Metretek (including its Affiliates) agrees not to:
(i) during the term of this Agreement after the
expiration of the Feasibility Period, sell any other
software product that is designed for the principal
purpose of managing energy measurement information
subject to a commercially reasonable phase-in
referred to in Paragraph 6 hereof; and
(ii) hire any of AMCO's Automated Systems Business Unit
employees or software developers, engineers or
consultants until after the fifth (5th) anniversary
of the Termination Date (except as permitted by the
Asset Purchase Agreement).
B. AMCO (and its Affiliates) agrees not to (i) during the term of
this Agreement sell Pantheon or any other software product
that is designed for the principal purpose of managing energy
measurement information to any Existing Customer or New
Customer; and (ii) hire any of Metretek's employees during the
period of this Agreement until after the fifth (5th)
anniversary of the Termination Date.
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22. Termination.
------------
Unless previously terminated in accordance herewith, this Agreement
shall remain in force and effect initially five (5) years until the
fifth (5th) anniversary of the Effective Date (the "Termination Date").
Thereafter, and unless previously terminated in accordance herewith,
the Agreement shall be automatically renewed for two (2) year periods
unless either party shall notify the other of its intent to terminate
this Agreement at least ninety (90) days prior to any possible
Termination Date. Either party shall have the right to terminate this
Agreement upon a material breach by the other party of any one of its
obligations or covenants contained herein upon not less than sixty (60)
days prior written notice to the other specifying the nature of such
breach, and the failure by the breaching party to remedy such breach
within sixty (60) days after receiving said notification. Termination
of this Agreement by either party for any reason shall not affect any
order or proposal which has been consummated or is outstanding prior to
the Termination Date. Notwithstanding any termination of this
Agreement, Metretek's and AMCO's rights and obligations (including but
not limited to fees for backup support services) with respect to any
Pantheon sublicenses prior to the Termination Date, and any Pantheon
sublicenses arising out of any order or proposal which is pending on
the Termination Date shall continue. Without limitation of the
preceding sentence, fees for backup support services shall continue for
the longer of the term of the sublicense or as long as the sublicensee
continues to use Pantheon.
23. Arbitration.
------------
Any unresolved dispute under this Agreement shall be determined by
arbitration. The moving party shall notify the other party of the
matter in dispute and appoint one (1) arbitrator and notify the other
of such appointment, and such other party shall appoint one (1)
arbitrator within
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ten (10) days after such notice. If the party so notified fails to
appoint an arbitrator, the party making the request shall be entitled
to designate two (2) arbitrators. The two (2) arbitrators shall elect a
third. The written decision of the majority of the arbitrators shall be
binding and shall be enforceable in any court of competent
jurisdiction. The arbitration shall be conducted in Washington, D.C. in
accordance with the rules of the American Arbitration Association.
24. Protocol and Information Exchange.
----------------------------------
A. Metretek hereby grants AMCO a nonexclusive, nontransferable
license to all relevant protocol, drivers and code
(collectively, "Protocol") for the sole purpose of developing
software interfaces and drivers for Pantheon applications.
Such new software interfaces and drivers developed by AMCO
shall be deemed AMCO New Applications under this Agreement and
may be used for all Pantheon customers of AMCO, including
other value added resellers-distributors. In no event shall
AMCO utilize the Protocol, or any part thereof, in the
manufacture or design of any hardware devices.
B. In order to aid the parties in the performance of their
obligations under this Agreement, within thirty (30) days of
the Effective Date, Metretek shall provide AMCO with a list of
Existing Customers.
25. Nondisclosure.
--------------
A. The Parties agree, both during the term of this Agreement and
for a period of three (3) years after the Termination Date,
and of all licenses granted hereunder, to hold confidential
information which is confidential to the other ("Confidential
Information"), as more fully described below. The Parties
agree not to disclose or make each other's confidential
information available, in any form, to any third party,
excluding such party's
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agents or representatives, or to use each other's confidential
information for any purpose other than as specified in this
Agreement. Each party agrees to take all reasonable steps to
ensure that Confidential Information is not disclosed or
distributed by its employees or agents (who have access to
same because of and only on a need to know basis) in violation
of any provisions of this Agreement. A party's Confidential
Information shall include Pantheon's, Metretek Applications'
and AMCO Applications' design, software tool suppliers, the
Pantheon price list, customers, Protocol, Metretek price list,
Metretek costs, Metretek customers, Metretek hardware and
software and other information clearly marked as Confidential,
but shall not include information which:
(i) is or becomes a part of the public domain through no
act or omission of any Party;
(ii) was in the other party's lawful possession prior to
such access or to the disclosure of same and has not
been obtained by such other party either directly or
indirectly from the party hereto granting such access
or making such disclosure, all of which is so
documented by such other party;
(iii) is lawfully disclosed to the other party by a third
party without restriction on such disclosure; or
(iv) with respect to information that is the same as or
substantially identical to the Confidential
Information as is independently developed and is so
documented by the other party. The contents of this
Agreement may not be disclosed unless both parties
consent to such disclosure in writing.
B. Metretek may disclose Pantheon's design and software tool
suppliers to its customers provided that they sign a
nondisclosure agreement with Metretek naming AMCO as the
beneficiary thereof prior to their use or access to Pantheon
and agreeing to a minimum
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the nondisclosure requirements specified in this Paragraph.
Metretek and its customers may not decompile, disassemble or
reverse engineer Pantheon. Metretek's sole obligation with
respect to Metretek customers shall be to promptly notify AMCO
so that AMCO may take such actions as it determines are
appropriate.
C. In the event of a breach or threatened breach of this
Paragraph 25, the Parties agree that the damage may not be an
adequate remedy; therefore, in addition to any other legal or
equitable remedies, either party shall be entitled to
injunctive relief against such breach.
26. General.
--------
A. This Agreement (including any Exhibits attached hereto) shall
constitute the entire agreement between the parties and all
prior and collateral agreements, understandings or
representations of any kind with respect to the subject matter
hereof are hereby terminated.
B. Any modification or waiver of any provision of this Agreement
shall be binding only if set forth in writing and signed by
both parties and shall be effective only to the extent set
forth in such modification or waiver.
C. Any notice required or permitted under the terms of this
Agreement shall be in writing and delivered in person or
mailed and will be deemed given when either mailed or
personally delivered to
If to AMCO:
Eagle Research Corporation
General Manager
000 Xxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000
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AMCO
000 Xxxxx Xxxx
Xxxxxxxx Xxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx
With a copy to:
Xxxxxxx & Berlin, Chtd.
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxxxxx
If to Metretek:
Metretek, Incorporated
000 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000.
Attn: Xxxxxx XxXxx, CEO
Xxxxxx Natural Gas Services, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: W. Xxxxxxx Xxxxxx, President
With a copy to:
Kegler, Brown, Hill & Xxxxxx
Capitol Square, Suite 1800
00 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxx
D. The relationship between the parties hereto before and during
the term of this Agreement shall be that of vendor and vendee.
Neither AMCO nor Metretek, or their respective agents and
employees shall (i) under no circumstances be, nor shall they
hold themselves out to be, agents, employees or
representatives of the other; (ii) enter into contracts or
commitments in the name of or on behalf of the other; or (iii)
be liable for any personal injury or property damage caused by
or resulting from any act of the other, their respective
employees, agents or representatives. Each party shall
indemnify and hold the
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other harmless from and against any liability, damage, costs
or expenses resulting from personal 8 injury or physical
property damage caused by the gross negligence or willful
misconduct of the other and, in the case of Metretek, its sale
of Pantheon, and, in the case of AMCO, its sale of Metretek
products.
E. Except for an assignment to an Affiliate, neither parties'
rights pursuant to this Agreement may be assigned or otherwise
transferred without the consent of the other.
F. From time to time, AMCO or Metretek may develop statements
regarding this Agreement, the relationship between the
Parties, and the Pantheon sales results (the "Statements").
The Statements shall be mutually agreed upon by the Parties
writing and following such agreement may be disclosed by
either Party without restriction, subject to any restrictions
on confidential information as set forth in Paragraph 25 of
this Agreement.
G. References herein to the Exhibits shall be as they are
modified from time to time.
H. This Agreement may be executed in one or more counterparts,
each of which shall for all purposes be deemed to be an
original and all of which shall constitute the same
instrument.
27. Governing Law.
--------------
This Agreement shall be construed and enforced in accordance with the
laws of the Commonwealth of Pennsylvania, without reference to such
commonwealth's conflict of law principles.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
METRETEK, INCORPORATED AMERICAN METER COMPANY
BY: /s/ Xxx X. XxXxx BY: /s/ Xxxxx X. Xxxxxxx
---------------------------- --------------------------------
TITLE: President TITLE: President and CEO
------------------------- -----------------------------
DATE: May 4, 1998 DATE: May 4, 1998
------------------------- ------------------------------
EAGLE RESEARCH CORPORATION
BY: /s/ Xxxxx X. Xxxxxxx
--------------------------------
TITLE: Vice President
-----------------------------
DATE: May 4, 1998
------------------------------
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