MASTER AGREEMENT
BY AND BETWEEN
TMS, INC.,
MEASUREMENT INCORPORATED
AND
VSC TECHNOLOGIES LLC
DATED AS OF OCTOBER 10, 2002
MASTER AGREEMENT
MASTER AGREEMENT (the "Agreement"), dated as of the 10th day
of October, 2002, by and between TMS, Inc., an Oklahoma
corporation ("TMS"), Measurement Incorporated, a North Carolina
corporation ("MI"), and VSC Technologies, LLC, a Delaware limited
liability Company ("LLC").
W I T N E S S E T H:
WHEREAS, TMS and MI desire to commence a business
relationship on the terms and conditions provided herein and in
documents referred to herein;
NOW, THEREFORE, in consideration of the premises set forth
above, the agreements and benefits set forth herein and other
good and valuable consideration, the receipt of which is hereby
acknowledged, TMS, MI and LLC agree as follows:
ARTICLE I
DEFINITIONS
For purposes hereof, the following terms shall have the
meanings set forth below:
1.01 "LLC" shall mean VSC Technologies, LLC, a Delaware limited
liability company.
1.02 "LLC DMR License Agreement" shall mean that certain LLC DMR
License Agreement in the form attached hereto as Exhibit B to be
entered into by and between the LLC and TMS.
1.03 "MI DMR License Agreement" shall mean that certain MI DMR
License and Services Agreement in the form attached hereto as
Exhibit C to be entered into by and between MI and TMS.
1.04 "MI VSC License Agreement" shall mean that certain MI VSC
License and Services Agreement in the form attached hereto as
Exhibit D to be entered into by and among the LLC, TMS and MI.
1.05 "Operating Agreement" shall mean that certain Operating
Agreement for the LLC in the form attached hereto as Exhibit A to
be entered into by and between TMS and MI.
1.06 "TMS VSC License Agreement" shall mean that certain TMS VSC
License Agreement in the form attached hereto as Exhibit E to be
entered into by and between TMS and the LLC.
1.07 "Transactional Agreements" shall have the meaning stated in
Section 2.01 below.
ARTICLE II
TRANSACTIONS
2.01 Transactions. Contemporaneous herewith, the parties
shall execute the following agreements (the "Transactional
Agreements"):
(a) Operating Agreement (Exhibit A);
(b) LLC DMR License Agreement (Exhibit B);
(c) MI DMR License Agreement (Exhibit C);
(d) MI VSC License Agreement (Exhibit D); and
(e) TMS VSC License Agreement (Exhibit E).
ARTICLE III
CONFIDENTIALITY AND PUBLICITY
3.01 Confidentiality. It is anticipated that a party may
receive confidential information of another party ("Confidential
Information"). Accordingly, each party agrees as follows,
concerning the Confidential Information of another party, during
the pendency of this Agreement or any Transactional Agreement,
and for a period of five (5) years following date of the last
Transactional Agreement to terminate:
(a) The party receiving Confidential Information of a
disclosing party shall not reproduce or disclose such
Confidential Information in any form except with the prior
written consent of the disclosing party;
(b) Confidential Information shall remain the property
of the disclosing party and the party receiving such
Confidential Information shall use the Confidential
Information only for the purpose of performing its
obligations under this Agreement or any Transactional
Agreement, and shall return such Confidential Information
upon request of the disclosing party; and
(c) The receiving party shall use precautions in
protecting the Confidential Information of the disclosing
party at least as stringent as it uses to protect its own
proprietary and confidential information.
3.02 Scope of Confidential Information. It is understood
that the term Confidential Information does not include
information:
(a) which is independently developed by the receiving
party or lawfully received free of restriction from another
source having the right to so furnish such information; or
(b) after it has become generally available to the
public without breach of this Agreement by the receiving
party; or
(c) which at the time of disclosure to the receiving
party was known to such party free of restriction; or
(d) which the disclosing party agrees in writing is
free of such restrictions.
3.03. Publicity. Any press release or similar public
statement by either party concerning the relationship between the
parties or any products to be sold as a result of any
collaboration contemplated hereunder shall not be made without
the prior written consent and participation by the other party;
provided, however, that any party may make any such release or
announcement which is necessary or appropriate for the releasing
party or its affiliates to make in order to comply with
applicable laws or regulations, to include, without limitation,
any such release, announcement or filing: (a) required pursuant
to applicable state or federal securities laws or the rules or
requirements of the Securities and Exchange Commission or any
exchange upon which the stock of the releasing party is listed,
or (b) necessary in connection with any bid or proposal to a
customer.
3.04. Limitations on Confidentiality. The obligations
of a party regarding the nondisclosure of Confidential
Information of the other party specified above shall not apply,
and the party shall have no further obligations, with respect to
the Confidential Information, to the extent that such
Confidential Information is required to be disclosed by the party
to comply with applicable laws, a court order or governmental
regulations, provided that the party provides prior written
notice of such disclosure to the other party and takes reasonable
and lawful actions to avoid and/or minimize the extent of such
disclosure.
ARTICLE IV
DISPUTE RESOLUTION
4.01 In General. Any disputes arising between the parties
relating to, arising out of or in any way connected with this
Agreement or any Transactional Agreement or any term or condition
hereof, or the performance by either party of its obligations
hereunder or thereunder, whether before or after termination of
this Agreement or any Transactional Agreement (a "Dispute"),
shall be addressed by mediation and, if necessary, litigation as
herein provided.
4.02 Mediation. Prior to commencing any litigation hereunder,
the parties shall seek an amicable settlement of the Dispute by
mediation. The mediation shall be administered by National
Arbitration and Mediation pursuant to its International
Intellectual Property Mediation Rules in effect at the time the
mediation is initiated by one of the parties hereto. If mediation
is not conclusive of the Dispute, then the parties or either
party may seek resolution by action brought in United States
District Court as hereinafter provided. Notwithstanding the
foregoing, the parties shall not be required to mediate a Dispute
in the event a party seeks injunctive relief.
4.03 Venue. If any Dispute is not resolved by mediation, then:
(a) in any action brought by TMS against either LLC or MI, such
action shall be brought in the United States District Court for
the Middle District of North Carolina, (b) in any action brought
by MI against either LLC or TMS, such action shall be brought in
the United States District Court for the Western District of
Oklahoma; (c) in any action brought by LLC against MI, such
action shall be brought in the United States District Court for
the Middle District of North Carolina, and (d) in any action
brought by LLC against TMS, such action shall be brought in the
United States District Court for the Western District of Oklahoma
ARTICLE V
MISCELLANEOUS
5.01 Notices. Any notice relating to this Agreement or any
Transactional Agreement, shall be deemed sufficiently given and
served for all purposes if given during normal business hours by
a telefax, Federal Express or other overnight delivery service or
hand delivery, addressed as follows:
If to TMS:
TMS, Inc.
206 West 6th Avenue
Stillwater, Oklahoma 74074
Attn: Deborah L. Klarfeld, President
Fax No.: (405) 742-1707
with copies to:
Phillips McFall McCaffrey McVay & Murrah, P.C.
One Leadership Square, Twelfth Floor
211 N. Robinson
Oklahoma City, Oklahoma 73102
Attn: Douglas A. Branch, Esq.
Fax No.: (405) 235-4562
If to MI:
Measurement Incorporated
423 Morris Street
Durham, North Carolina 27701
Attn: Henry H. Scherich, President
Fax No.: (919) 683-1531
with copies to:
Hutson Hughes & Powell, P.A.
Suite 1500, The Durham Centre
300 West Morgan Street
Durham, NC 27001
Attn: Stephanie Powell, Esq.
Fax No.: (919) 683-1276
Any notice shall be deemed given on the day of confirmed
receipt.
5.03 Governing Law. This Agreement and all Transactional
Agreements shall be governed by and construed in accordance with
the laws of the State of Delaware.
5.04 Entire Agreement. This Agreement, including the
Exhibits hereto, constitutes the sole and entire agreement of the
parties with respect to the subject matter hereof. All Exhibits
hereto are hereby incorporated herein by reference.
5.05 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
5.06 Amendments. This Agreement may not be amended or
modified, and no provisions hereof may be waived, without the
written approval of each party.
5.07 Severability. If any provision of this Agreement or
any provision of a Transactional Agreement which is not material
shall be declared void or unenforceable by any judicial or
administrative authority, the validity of any other provision and
of the entire agreement shall not be affected thereby, and the
terms and conditions hereof shall be thereafter construed as if
such invalid, illegal or unenforceable term or condition had
never been contained herein and the parties shall negotiate an
amendment to this Agreement or the pertinent Transactional
Agreement to accomplish as nearly as possible the original intent
of the severed provision.
5.08 Titles and Subtitles. The titles and subtitles used in
this Agreement are for convenience only and are not to be
considered in construing or interpreting any term or provision of
this Agreement.
IN WITNESS WHEREOF, TMS, MI and LLC have executed this
Agreement as of the day and year first above written.
TMS: TMS, INC.
an Oklahoma corporation
By: /s/ Deborah L. Klarfeld
-----------------------------------
Deborah L. Klarfeld, President
MI: MEASUREMENT INCORPORATED
a North Carolina corporation
By: /s/ Henry H. Scherich
-----------------------------------
Henry H. Scherich, Ph.D., President
LLC: VSC TECHNOLOGIES, LLC
By: Measurement Incorporated, Manager
By: /s/ Henry H. Scherich
-----------------------------------
Henry H. Scherich, Ph.D., President
By: TMS, Inc., Manager
By: /s/ Deborah L. Klarfeld
-----------------------------------
Deborah L. Klarfeld, President