Confidential Portions Omitted) PATENT LICENSE AND SETTLEMENT AGREEMENT
EXHIBIT 10.25
(Confidential Portions Omitted)
PATENT LICENSE AND SETTLEMENT AGREEMENT
This patent license and settlement agreement (“Agreement”), is made effective this 19th day of December, 2003 (the “Effective Date”), by and between Pitney Xxxxx Inc., a Delaware corporation, with its principal place of business at Xxx Xxxxxxxx Xxxx Xxxxxxxx, Xxxxxxxxxxx 00000-0000 (“PBI”) and Xxxxxx.xxx Inc., a Delaware corporation, with its principal place of business at 0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx 0000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000 (“Xxxxxx.xxx”). PBI and Xxxxxx.xxx shall each be referred to as a “Party” and collectively as the “Parties.” This Agreement is made with reference to the following facts:
A. WHEREAS, PBI and Xxxxxx.xxx have been, or are presently, involved in certain patent infringement Litigation (as defined in Section 1), in U.S. District Courts in Delaware, Texas and California.
D. WHEREAS, PBI and Xxxxxx.xxx desire to settle and compromise their disputes in the Litigation.
NOW, THEREFORE, the parties agree as follows:
The following terms shall have the following meanings when used in this Agreement:
1.1 PBI Patent(s). “PBI Patent(s)” shall mean all patents and published patent applications owned or controlled by PBI, now or in the future.
1.2 Licensed PBI Patents. “Licensed PBI Patents” shall mean
<redacted — Confidential Portions Omitted and Filed Separately with the
Commission>
1.3 Stamps Patent(s). “Stamps Patent(s)” shall mean all patents and published patent applications owned or controlled by Xxxxxx.xxx, now or in the future.
1.4 Licensed Stamps Patents. “Licensed Stamps Patents” shall mean
<redacted — Confidential Portions Omitted and Filed Separately with the
Commission>
1.8 Traditional Metering System. “Traditional Metering System” shall mean a postage evidencing system that employs (i) a specialized (i.e., not generally commercially available) printer that is dedicated to printing postage indicia and related functions; and (ii) storage of postage and generation of indicia/tokens, both within a local (i.e., located entirely at a customer facility) postal security device PSD, or similar device.
1.9 Other Metering System. “Other Metering System” shall mean a postage evidencing system that is not a Traditional Metering System.
1.13 Restricted List. The “Restricted List” means that list of entities, set forth on Exhibit G hereto.
1.16 Representatives. “Representatives” shall mean a Party’s directors, officers, employees, assigns, attorneys, agents, parent corporations or other entities controlling, controlled by or under common control with the Party.
1.17 Term. The “Term” of this Agreement shall be five (5) years from the Effective Date.
offer to sell, export and import and its respective end users to use Xxxxxx.xxx’s products and services in the Xxxxxx.xxx Field.
2.4 Assignment/License of PBI Patents or Stamps Patents.
2.4.1 If, after the Effective Date, any PBI Patents or Stamps Patents are assigned, as part of a spin off or otherwise, or exclusively licensed to a third party, they shall remain subject to the terms of this Agreement, including the rights of the Parties to make future Picks as provided in Section 3 below.
2.4.2 The parties further agree that, during the term of this Agreement, neither Party will assign or exclusively license such PBI Patents or Stamps Patents if the effect of such assignment or license would be to preclude either party from granting to the other Party, in connection with a Pick by the other Party, the type and scope of license defined in this Agreement.
3. Additional Licensed Patents (Picks).
3.1 Pitney Picks. PBI may designate
<redacted — Confidential Portions Omitted and Filed Separately with the
Commission>
3.2 Xxxxxx.xxx Picks. Xxxxxx.xxx may designate
<redacted — Confidential Portions Omitted and Filed Separately with the
Commission>
3.3 The vesting periods for the Pitney Picks and the Xxxxxx.xxx Picks are as follows:
<redacted — Confidential Portions Omitted and Filed Separately with the
Commission>
3.4 Disputes Concerning Picks.
<redacted — Confidential Portions Omitted and Filed Separately with the
Commission>
4. Releases and Dismissal of Pending Litigation.
4.1 Release by PBI. PBI hereby releases and discharges Xxxxxx.xxx, its current Subsidiaries, and their respective Representatives from any and all claims, judgments, damages, actions, causes of action, liability, costs, expenses, controversies and trespasses of any kind, at law or in equity, known or unknown, arising from or related to any act of patent infringement committed by Xxxxxx.xxx (collectively “PBI Claims”), its current Subsidiaries and their respective Representatives on or before the Effective Date, including without limitation all claims or causes of action asserted in the Litigation. This release shall also apply to any suppliers, manufacturers, distributors, licensees, customers or users of Xxxxxx.xxx’s products or services with respect to PBI Claims arising from their manufacture, distribution, licensing, purchase or use of Xxxxxx.xxx’s products or services on or before the Effective Date.
4.2 Release by Xxxxxx.xxx. Xxxxxx.xxx hereby releases and discharges PBI, its current Subsidiaries, and their respective Representatives from any and all claims, judgments, damages, actions, causes of action, liability, costs, expenses, controversies and trespasses of any kind, at law or in equity, known or unknown, arising from or related to any act of patent infringement committed by PBI (collectively “Stamps Claims”), its current Subsidiaries and their respective Representatives on or before the Effective Date, including without limitation all claims or causes of action asserted in the Litigation. This release shall also apply to any suppliers, manufacturers, distributors, licensees, customers or users of PBI’s products or services with respect to Stamps Claims arising from their manufacture, distribution, licensing, purchase or use of PBI’s products or services on or before the Effective Date.
4.3 Section 1542 of the California Civil Code. Neither Party believes the releases set forth in Section 4 above constitute general releases within the meaning of California Civil Code Section 1542. Nevertheless, for the avoidance of doubt, the Parties each expressly waive any and all rights under Section 1542 of the California Civil Code, or any other federal, state, or local statutory rights or rules, or principles of common law or equity similar to Section 1542 (“similar provision”) with respect to any and all claims, judgments, damages, actions, causes of action, controversies and trespasses of any kind, at law or in equity, known or unknown, released by it in this Agreement. Thus, the Parties may not invoke the benefits of Section 1542 or any similar provision in order to prosecute or assert in any manner any claims, judgments, damages, actions,
causes of action, controversies and trespasses of any kind, at law or in equity, known or unknown that it has released under this Agreement. Section 1542 provides as follows:
A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. |
4.4 Dismissal of Actions. Within five (5) business days of the execution of this Agreement, the parties shall execute and cause to be filed with the United States District Court for the District of Delaware stipulated dismissals with prejudice, in substantially the form attached hereto as Exhibits D, E and F, to effect dismissal with prejudice of the Pending Litigation, with each Party to bear its own fees and costs. If for any reason the Court refuses to enter the stipulated dismissals, the Parties agree to take such other and further steps as are reasonably necessary to effect dismissal with prejudice of the Pending Litigation, with each Party to bear its own fees and cost.
<redacted — Confidential Portions Omitted and Filed Separately with the
Commission>
5.1 Pitney Covenant. During the Term of this Agreement, PBI agrees not to commence or maintain any patent litigation against Xxxxxx.xxx, its Subsidiaries, and their respective Representatives. PBI further agrees, during the Term of this Agreement, not to commence or maintain any patent litigation against any suppliers, manufacturers, distributors, licensees, customers or users of Xxxxxx.xxx’s products or services, but only to the extent such patent litigation arises out of Xxxxxx.xxx’s products or services where Xxxxxx.xxx could be liable for direct infringement, contributory infringement or inducement to infringe but for the licenses and/or covenants not to xxx granted in this Agreement.
5.2 Xxxxxx.xxx Covenant. During the Term of this Agreement, Xxxxxx.xxx agrees not to commence or maintain any patent litigation against PBI, its Subsidiaries, and their respective Representatives. Xxxxxx.xxx further agrees, during the Term of this Agreement, not to commence or maintain any patent litigation against any suppliers, manufacturers, distributors, licensees, customers or users of PBI’s products or services, but only to the extent such patent litigation arises out of PBI’s products or services where PBI could be liable for direct infringement, contributory infringement or inducement to infringe but for the licenses and/or covenants not to xxx granted in this Agreement.
5.3 No effect on Unlicensed Infringement. Notwithstanding the covenants not to xxx set forth Sections 5.1 and 5.2 above, unlicensed infringement occurring during the Term of this
Agreement is not released and damages for such infringement shall accrue during the Term of this Agreement. The covenants not to xxx in Sections 5.1 and 5.2 shall toll any application of the doctrine of laches, equitable estoppel or the statute of limitations.
6.1 By PBI: <redacted — Confidential Portions Omitted and Filed Separately with the Commission>
6.2 By Xxxxxx.xxx: <redacted — Confidential Portions Omitted and Filed Separately with the Commission>
7. Representations and Warranties.
7.1 Each Party represents and warrants that (i) it has the full right and authority to enter into this Agreement; (ii) the terms of this Agreement, and the Parties entering into and performance of this Agreement do not conflict with any prior agreements or obligations of such Party; <redacted - Confidential Portions Omitted and Filed Separately with the Commission> .
<redacted — Confidential Portions Omitted and Filed Separately with the Commission>
7.4 Except as otherwise provided in this Section 7, neither Party makes any representations or warranties of any kind, including, without limitation, any representations or warranties concerning the validity, enforceability, or infringement of any patent licensed hereunder or concerning the infringement, non-infringement or other characteristics of any product or service subject to this Agreement.
8.1 Survival of Licenses; Assumption of Rights and Obligations. If either Party undergoes a Change of Control (whether with an entity from the Restricted List or otherwise), the licenses, releases, covenants not to xxx and other rights granted to the acquired Party under this Agreement prior to the Change of Control shall survive, and be assumed by the acquirer, provided the acquirer agrees in writing to assume all rights and obligations under the Agreement as if an original party to the Agreement. Following a Change of Control, any future Picks by the Party not undergoing the Change of Control may be made only from those patents or patent applications that: (i) were owned or controlled by the acquired Party prior to the Change of Control or (ii) have one or more named inventors who were employees or consultants of the acquired Party on or before the date of the Change of Control.
8.2 Certain Transactions Not A Change of Control. Notwithstanding anything to the contrary herein, the transfer by one Party of any rights and obligations under this Agreement as part of any internal restructuring (re-incorporation or the like) shall be permitted and shall not be considered a Change of Control invoking the provisions of Section 8.3.
8.3 Restricted List Change of Control. Any Change of Control by a Party in favor of one of the entities on the Restricted List (Exhibit G) taking place before the expiration of the Sunset Period shall be subject to the following provisions:
8.3.1 Unexercised Picks Expire. Any unexercised Picks, whether vested or not yet vested, of the acquired Party only, expire upon the Change of Control.
8.3.2 Limits to Covenants Not to Xxx. The Covenant Not to Xxx granted by the non-acquired Party (i) shall be deemed amended to be limited to activity in the acquired Party’s Field; and (ii) does not impact any previously existing litigation or disputes between any entity on the Restricted List and the non-acquired Party. The Covenant Not to Xxx granted by the acquired Party shall be deemed limited to those patents or patent applications that: (x) were owned or controlled by the acquired Party prior to the Change of Control or (y) have one or more named inventors who were employees or consultants of the acquired Party on or before the date of the Change of Control.
12-Month Period Following | Multiple of Base Postage | |
Change of Control | Value | |
1st | 2 x Base Postage Value | |
2nd | 4 x Base Postage Value | |
3rd | 8 x Base Postage Value | |
<redacted — Confidential Portions Omitted and Filed Separately with the Commission> |
<redacted — Confidential Portions Omitted and Filed Separately with the Commission> |
|
For the final 12-month period that includes the expiration of the Sunset Period, the payment due, if any, shall be prorated based on the portion of that 12-month period that occurs prior to the expiration of the Sunset Period. No payments shall be required with respect to any postage printed after expiration of the Sunset Period. Any payments under this paragraph shall be due sixty (60) days after the close of the applicable 12-month period.
9. After-Acquired Entities and Spun-Off Products/Subsidiaries.
This Agreement shall commence as of the Effective Date and shall expire at the end of the Term. This Agreement may not otherwise be terminated, except by subsequent written agreement of the Parties.
11. Confidentiality of Agreement & Governmental Filings.
<redacted — Confidential Portions Omitted and Filed Separately with the
Commission>
12.3 Dispute Resolution. In the event of any dispute arising under this Agreement, a Party wishing to initiate legal action shall give notice of the dispute to the other Party hereunder and the Parties shall thereafter mediate the dispute, in good faith, before a mutually agreeable neutral mediator. If a mediator cannot be agreed upon, then each Party shall designate an individual to assist in locating a mediator; whereby the two designated individuals cooperate to select a neutral mediator. If the dispute is not resolved within 45 days of such notice then either Party may initiate legal action. The U.S. District Court for the District of Delaware shall retain jurisdiction to enforce the terms of this Agreement and all litigation arising under this Agreement shall be brought in that Court.
12.4 Governing Law. This Agreement shall be governed by and construed under the laws of the State of Delaware, U.S.A., without reference to its conflict of law principles or choice of law rules.
To PBI:
Deputy General Counsel Intellectual Property & Technology Law Pitney Xxxxx Inc. XX Xxx 0000 00 Xxxxxxxxx Xxxxx Xxxxxxx, XX 00000 |
and |
President — Marketing Global Mailstream Solutions Pitney Xxxxx Inc. 0 Xxxxxxxx Xxxx Xxxxxxxx, XX 00000 |
To Xxxxxx.xxx:
Xxxxxx.xxx Inc. 0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx 0000 Xxxxx Xxxxxx, Xxxxxxxxxx 00000 Attn: General Counsel |
and |
Xxxxxx.xxx Inc. 0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx 0000 Xxxxx Xxxxxx, Xxxxxxxxxx 00000 Attn: Chief Executive Officer |
12.12 Attorneys’ Fees to Prevailing Party.
<redacted — Confidential Portions Omitted and Filed Separately with the Commission>
PBI: | ||||||
Pitney Xxxxx Inc. | ||||||
By: | Attest: | |||||
Name: | By: | |||||
Its: | Name: | |||||
Dated: | , 2003 | Dated: | , 2003 | ||||
Xxxxxx.xxx: | ||||||
Xxxxxx.xxx Inc. | ||||||
By: | Attest: | |||||
Name: | By: | |||||
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Its: | Name: | |||||
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Dated: | , 2003 | Dated: | , 2003 | ||||
EXHIBIT A
LICENSED PBI PATENTS
<redacted — Confidential Portions Omitted and Filed Separately with the Commission>
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EXHIBIT B
LICENSED STAMPS PATENTS
<redacted — Confidential Portions Omitted and Filed Separately with the
Commission>
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EXHIBIT C
PRESS MATERIALS
(Press Release and Q&A Materials)
<redacted — Confidential Portions Omitted and Filed Separately with the
Commission>
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EXHIBIT D
PROPOSED STIPULATED DISMISSAL WITH PREJUDICE – PITNEY I
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
) | ||||||
PITNEY XXXXX INC, | ) | C.A. 99-381 (JJF) | ||||
Plaintiff, | ) | |||||
) | ||||||
v. | ) | |||||
) | ||||||
XXXXXX.XXX INC. | ) | |||||
Defendant. | ) | |||||
Whereas the parties, Pitney Xxxxx Inc. and Xxxxxx.xxx, Inc., have entered into a Patent License and Settlement Agreement effective December , 2003 (the “Settlement Agreement”), the parties, through their respective counsel, stipulate, subject to the approval of the Court, that:
1. All claims and counterclaims in this action are dismissed, with prejudice.
2. Each party will bear its own fees and costs in this action.
3. The Court shall retain jurisdiction of this matter for purposes of enforcing the Settlement Agreement.
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Dated: December , 2003 | Dated: December , 2003 | |
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Xxxx X. Xxxxxxxxxx (#1014) Xxxxxx X. Xxxxx (#3778) MORRIS, NICHOLS, ARSHT & XXXXXXX 0000 X. Xxxxxx Xxxxxx X.X. Xxx 0000 Xxxxxxxxxx, XX 00000 Telephone: (000) 000-0000 |
Xxxx X. Xxxxxxxxx (#1088) Xxxx X. Xxxx (#3362) YOUNG XXXXXXX STARGATT & XXXXXX LLP The Brandywine Building 0000 Xxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxxx, XX 00000 Telephone: (000) 000-0000 |
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Xxxxx X. Xxxxxx Xxxxxxx X. Xxxx A. Xxxxx Xxxxx FISH & NEAVE 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, XX 00000 Telephone: (000) 000-0000 |
Xxxx X. Xxxxxxxxxx Xxxxxx X. Xxxxx IRELL & XXXXXXX LLP 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000 Xxx Xxxxxxx, XX 00000 Telephone: (000) 000-0000 |
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Xxxxxx X. Xxx XXXXXX XXXX & XXXXXXXXX LLP 000 Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Telephone: (000) 000-0000 |
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Attorneys for Plaintiff Pitney Xxxxx Inc. |
Attorneys for Defendant Xxxxxx.xxx, Inc. |
IT IS SO ORDERED. | ||||||
Dated: | , 0000 | |||||
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XXXXXX XXXXXX DISTRICT JUDGE |
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EXHIBIT E
PROPOSED STIPULATED DISMISSAL WITH PREJUDICE – PITNEY III
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
) | ||||||
XXXXXX.XXX INC, | ) | C.A. 02-042 (JJF) | ||||
Plaintiff, | ) | |||||
) | ||||||
v. | ) | |||||
) | ||||||
PITNEY XXXXX INC. | ) | |||||
Defendant. | ) | |||||
Whereas the parties, Pitney Xxxxx Inc. and Xxxxxx.xxx, Inc., have entered into a Patent License and Settlement Agreement effective December , 2003 (the “Settlement Agreement”), the parties, through their respective counsel, stipulate, subject to the approval of the Court, that:
1. All claims and counterclaims in this action are dismissed, with prejudice.
2. Each party will bear its own fees and costs in this action.
3. The Court shall retain jurisdiction of this matter for purposes of enforcing the Settlement Agreement.
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Dated: December , 2003 | Dated: December , 2003 | |
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Xxxx X. Xxxxxxxxxx (#1014) Xxxxxx X. Xxxxx (#3778) MORRIS, NICHOLS, ARSHT & XXXXXXX 0000 X. Xxxxxx Xxxxxx X.X. Xxx 0000 Xxxxxxxxxx, XX 00000 Telephone: (000) 000-0000 |
Xxxx X. Xxxxxxxxx (#1088) Xxxx X. Xxxx (#3362) YOUNG XXXXXXX STARGATT & XXXXXX LLP The Brandywine Building 0000 Xxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxxx, XX 00000 Telephone: (000) 000-0000 |
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Xxxxx X. Xxxxxx Xxxxxxx X. Xxxx A. Xxxxx Xxxxx FISH & NEAVE 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, XX 00000 Telephone: (000) 000-0000 |
Xxxx X. Xxxxxxxxxx Xxxxxx X. Xxxxx IRELL & XXXXXXX LLP 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000 Xxx Xxxxxxx, XX 00000 Telephone: (000) 000-0000 |
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Xxxxxx X. Xxx XXXXXX XXXX & XXXXXXXXX LLP 000 Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Telephone: (000) 000-0000 |
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Attorneys for Defendant Pitney Xxxxx Inc. |
Attorneys for Plaintiff Xxxxxx.xxx, Inc. |
IT IS SO ORDERED. | ||||||
Dated: | , 0000 | |||||
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XXXXXX XXXXXX DISTRICT JUDGE |
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EXHIBIT F
PROPOSED STIPULATED DISMISSAL WITH PREJUDICE – PITNEY IV
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
) | ||||||
PITNEY XXXXX INC, | ) | C.A. 02-1660 (JJF) | ||||
Plaintiff, | ) | |||||
) | ||||||
v. | ) | |||||
) | ||||||
XXXXXX.XXX INC. | ) | |||||
Defendant. | ) | |||||
Whereas the parties, Pitney Xxxxx Inc. and Xxxxxx.xxx, Inc., have entered into a Patent License and Settlement Agreement effective December , 2003 (the “Settlement Agreement”), the parties, through their respective counsel, stipulate, subject to the approval of the Court, that:
1. All claims and counterclaims in this action are dismissed, with prejudice.
2. Each party will bear its own fees and costs in this action.
3. The Court shall retain jurisdiction of this matter for purposes of enforcing the Settlement Agreement.
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Dated: December , 2003 | Dated: December , 2003 | |
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Xxxx X. Xxxxxxxxxx (#1014) Xxxxxx X. Xxxxx (#3778) MORRIS, NICHOLS, ARSHT & XXXXXXX 0000 X. Xxxxxx Xxxxxx X.X. Xxx 0000 Xxxxxxxxxx, XX 00000 Telephone: (000) 000-0000 |
Xxxx X. Xxxxxxxxx (#1088) Xxxx X. Xxxx (#3362) YOUNG XXXXXXX STARGATT & XXXXXX LLP The Brandywine Building 0000 Xxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxxx, XX 00000 Telephone: (000) 000-0000 |
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Xxxxx X. Xxxxxx Xxxxxxx X. Xxxx A. Xxxxx Xxxxx FISH & NEAVE 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, XX 00000 Telephone: (000) 000-0000 |
Xxxx X. Xxxxxxxxxx Xxxxxx X. Xxxxx IRELL & XXXXXXX LLP 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000 Xxx Xxxxxxx, XX 00000 Telephone: (000) 000-0000 |
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Xxxxxx X. Xxx XXXXXX XXXX & XXXXXXXXX LLP 000 Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Telephone: (000) 000-0000 |
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Attorneys for Plaintiff Pitney Xxxxx Inc. |
Attorneys for Defendant Xxxxxx.xxx, Inc. |
IT IS SO ORDERED. | ||||||
Dated: | , 0000 | |||||
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XXXXXX XXXXXX DISTRICT JUDGE |
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EXHIBIT G
RESTRICTED LIST
The following 23 entities:
<redacted - Confidential | ||
Portions Omitted and Filed | <redacted - Confidential | |
Separately with the | Portions Omitted and Filed | |
Commission> | Separately with the Commission> | |
Additionally, the following entity categories: |
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Any postal authority |
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Any private/public mail or parcel carrier |
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Any mailing equipment manufacturer or distributor with more than $200 million in annual gross revenues including parent, subsidiary and controlled entities |
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EXHIBIT H
REDACTED COPY OF THIS AGREEMENT
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SCHEDULE A
PBI PATENTS (US PATENTS AND PUBLISHED APPLICATIONS ONLY) WITH
PRIOR OUTSTANDING RESTRICTIONS
<redacted — Confidential Portions Omitted and Filed Separately with the Commission> |
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SCHEDULE B
STAMPS PATENTS (US PATENTS AND PUBLISHED APPLICATIONS ONLY)
WITH PRIOR OUTSTANDING RESTRICTIONS
<redacted — Confidential Portions Omitted and Filed Separately with the Commission> |
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SCHEDULE C
ASSIGNMENTS BY PBI WITHIN FIVE (5) YEARS PRIOR TO THE
EFFECTIVE DATE
<redacted — Confidential
Portions Omitted and Filed
Separately with the
Commission>
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SCHEDULE D
ASSIGNMENTS BY XXXXXX.XXX WITHIN FIVE (5) YEARS PRIOR TO THE
EFFECTIVE DATE
<redacted — Confidential Portions Omitted and Filed Separately with the
Commission>
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