[Trade Journal]
Publication: Verbatim Record of the Proceedings of the Temporary National Economic Committee
Washington , DC, United States
vol. 1, no. 12, p. 321-352, col. 1-3
VERBATIM RECORD
of the
Proceedings of the
TEMPORARY NATIONAL
ECONOMIC COMMITTEE
VOLUME 1
December 1, 1938 to January 20, 1939
CONTAINING
Economic Prologue
Automobile Patent Hearings
Glass Container Patent Hearings
Presentation on Patents by Department of Commerce
Published 1939 by
THE BUREAU OF NATIONAL AFFAIRS, INC.
WASHINGTON, D. C.
·
·
Appendix
______________
VERBATIM RECORD
of the Proceedings of the
Temporary National Economic Committee
Vol. 1, No. 12 WASHINGTON, D. C. Dec. 19, 1938
APPENDIX
MONDAY, DECEMBER 19, 1938.
THE OFFICE OF THE TEMPORARY NATIONAL ECONOMIC COMMITTEE MADE PUBLIC DECEMBER 19, 1938, TEXTS OF EXHIBITS RE-CEIVED IN EVIDENCE IN THE HEARINGS IN THE WEEK BEGINNING DECEMBER 12, NOT HERETOFORE PUBLISHED. A SUMMARYOF EXHIBITS INTRODUCED AT THE HEARINGS FOLLOWS:
Pamphlet, prepared by the Department of Justice for use of the Temporary National Economic Committee for use in connection with the study of patent practices in the glass container industry.
Referred to in Verbatim Record, Dec. 12, Page 194. The pamphlet consisted of 27 pages of text, illustrations and charts describing the process of manufacturing glass containers and giving certain general economic facts regarding that industry in the United States. This Exhibit No. 112, was printed in the appendix of the issue of Dec. 12.
Charts prepared by the Department of Justice indicating the major inter-company relationships in the glass container industry, Exhibit No. 113. Referred to in Verbatim Record, Page 196. Printed on Page 197 of Dec. 12 issue.
Schedule of royalty fees charged by the Hartford-Empire Company, Exhibit No. 114. Referred to in Verbatim Record Page 202, and printed on Page 203 of the Dec. 12 issue.
Schedule of receipts from royalties and license fees by the Hartford-Empire company, from 1923 to 1937 inclusive, Exhibit No. 115. Referred to in Verbatim Record, Page 202, and printed on Page 202 of the Page 204, Dec. 12 issue.
Chart showing percentage production in the output of the various products of the glass container industry, Exhibit No. 116. Referred to in Verbatim Record, Page 204. Printed on Page 205, Dec. 12 issue.
Chart contrasting the output of five large companies in the glass container industry as compared with the remaining companies. Exhibit No. 117. Referred to in Verbatim Record, Page 204. Printed on Page 204, Dec. 12 issue.
Photostatic reproduction of 17 pages of a license and lease agreement dated Aug. 2, 1935, from the Hartford-Empire Company to the Florida Glass Manufacturing Company of Jacksonville, Fla., Exhibit No. 118. Referred to in Verbatim Record, Page 206. Printed on Page 322, Dec. 12 issue.
Photostatic reproduction of 40 Pages of contract or general agreement between the Hartford-Empire Company and the Northwestern Glass Co. Exhibit No. 119. Referred to in Verbatim Record, Page 206. Printed on Page 326 of Dec. 12 issue.
Photostatic reproduction of 30 pages of a contract between the Hartford-Empire Company and the Laurens Glass Works, Inc., of Laurens, S. C., dated June 9, 1924, Exhibit No. 120. Referred to in Verbatim Record, Page 207. Printed on Page 333 of Dec. 12 issue.
Photostatic reproduction of 30 pages of a contract between the Hartford-Empire Company and the Whitall-Tatum Company of Millville , N. J., dated Jan. 21, 1935. Exhibit No. 121. Referred to in Verbatim Record, Page 208. Printed on Page 338 of this issue.
Agreement covering use of patented "Stackers and Conveyers", between the Hartford-Empire Company and the Owens-Illinois Glass Company, a printed pamphlet of 24 pages, Exhibit No. 122. Referred to in Verbatim Record, Page 208. Printed on Page 341 of this issue.
Letter of four typed pages, dated August 26, 1932. Addressed to S. S. Searcy, San Antonio, Texas, Attorney, by the Hartford-Empire Company, Exhibit No. 123. Referred to in Verbatim Record, Page 211. Discusses price policies of the Three Rivers Glass Company. Printed on Page 343 of this issue.
Memorandum as to the history and policies of the Hartford-Fairmont and Hartford-Empire Companies, dated March 26, 1928, taken from the files of the latter company. A photostatic reproduction of six pages. Exhibit No. 124. Referred to in Verbatim Record, Page 211. Printed on Page 343 of this issue.
A memorandum, "Policy of the Hartford-Empire Company," a pamphlet of 30 pages, dated Feb. 18, 1930. This pamphlet, taken from the files of the company, discusses the development of its patent and license policies and summarizes its attitude in such fields. Exhibit No. 125. Referred to in Verbatim Record, Page 216, and printed on Page 345 of this issue.
A letter dated April 1, 1935, taken from the files of the former Illinois Glass Company, Alton, Ill., addressed to Mr. R. H. Levis of that company and signed by Mr. W. E. Levis, discussing action taken at a directors meeting of the Hazel-Atlas Glass Company at Wheeling. Referred to in Verbatim Record, Page 250, as Exhibit No. 126. Page 252 of the Dec. 13 issue.
Schedule of Owens-Illinois Glass Company payments to and receipts from the Hartford-Empire Company, from 1924 to 1937. Exhibit No. 127. Referred to in Verbatim Record, Page 255. Printed on Page 275, of the Dec. 12 issue.
Letter dated Jan. 13, 1933, from Mr. William E. Levis, Owens-Illinois Glass Company, to Mr. F. Goodwin Smith of the Hartford-Empire Company, discussing applications for licenses for the making of beverage bottles. Exhibit No. 128. Referred to in Verbatim Record, Page 263. Printed on Page 275 of the Dec. 14th issue.
Letters exchanged between Aubrey L. Romine and the Owens-Illinois Glass Company, regarding the purchase of machinery for a glass manufactory, Exhibits Nos. 129 and 130, and letters from the company to Mrs. Len Smith of Los Angeles and to the Sparks Construction Company, New York City, regarding the sale or license of like machines, Exhibits Nos. 131 and 132. Printed on Pages 263 and 264, of the Dec. 14 issue.
Letters from Mr. William E. Levis dated Aug. 2, 1932, to Mr. R. H. Levis of the Illinois Glass Consolidated Corporation, Alton , Ill. , discussing sale of Owens-Illinois debentures and possible investment by the Illinois Company in common stocks of the Hazel-Atlas Glass Company and in the preferred stock of the Thatcher Manufacturing Company. Exhibit No. 133. Referred to in Verbatim Record, Page 264. Printed of Page 275 of the Dec. 14th issue.
Memorandum, dated April 12, 1930, stating that the Hartford-Empire and Owens-Illinois companies shared expenses of suits brought by the first company against competitors in the glass industry over alleged patent infringements. Exhibit No. 134. Referred to in Verbatim Record ,Page 265, and printed in this issue on Page 349.
Photostatic reproduction of six pages of a contract, July 1, 1932, between Hartford-Empire and Owens-Illinois, a license agreement on suctions inventions. Exhibit No. 139. Referred to in Verbatim Record, Page 269, and printed on Page 350 of this issue.
Summary by Chairman O'Mahoney
of the Temporary National Economic
Committee, of the evidence
educed as to the patent situation
in the glass container industry,
made public Dec. 15, following
the adjournment of the hearings.
IN so far as evidence has been presented to date, and without attempting to be inclusive, let me note a few points developed at these hearings into the patent situation in the glass container industry which have impressed me. I should stress that these points are not made critically nor with reference, at this time, to the economic and social advantages or disadvantages of the practices mentioned.
First, may I emphasize the Committee's appreciation of the candid quality of the testimony we have heard . Our best chance for a just solution of basic problems rests on this candor. In investigations, it is often difficult to get facts, not because of untruthfulness of witnesses, but because of what may be natural reluctance to be fully expressive in terms which we all can understand. Here, I have observed an intention on the part of witnesses to lay the cards on the table, and I believe this attitude is generated by a desire to assist the members of the Committee in understanding a broad economic problem which every one must acknowledge is, at best, difficult. Cooperation takes on real meaning when it is expressed in such concrete terms.
EFFECT ON COMPETITION
1. Here is an industry in which com-petition is substantially affected by patent control. Here is an industry — I say this without invidiousness — where the method of employing patents has resulted in a sort of private NRA.
2. This control is employed to adjust and allocate production. According to the witnesses, an overall industry over capacity is maintained , but is carefully supervised.
3. Although the witnesses expressly disavowed any attempt directly to regulate price, it is clear that indirectly, at least, prices are stabilized through production control and that prices are further stabilized through the practice of producers to follow the prices of the largest producer of particular classes of glass containers.
4. Through the refusal to grant licenses, persons desiring to enter the industry have not been allowed to do so by those in control of the patents.
5. As a result of litigation, rendered possible by the present state of the law of patents, certain producers have been eliminated from the business, or have been purchased wholly or in part, by large interests following litigation or other pressures. No comment is intended here with respect to the justification of the litigation or the other pressures.
6. It should be pointed out that persons with financial means and responsible connections have apparently been excluded from this industry.
The effect of this exclusion in some instances has been to limit the number of producers in given geographical areas.
A TEXAS CASE IS CITED
8. Those in control of patents are, as a result of the present state of the law, in a position to issue or refuse what amounts to a "certificate of convenience and necessity" to those who may desire to enter the industry. For example, we find that in one instance in Texas producers with Texas money, Texas raw material and Texas labor, were unable, because they could not secure a license from a corporation in Connecticut, to establish a Texas business. This incident tends to illustrate the extent to which development of natural resources of the West and South is hindered by artificial restraints.
9. The industry illustrates group or corporate control of patents as distinguished from their control by an individual. It should be pointed out that neither the corporate power nor the patent grant, both of which are privileges extended by public agencies, are subject to Federal supervision as such. I say this without intending to indicate whether or not there should be such supervision but simply to raise the question.
10. In some cases the evidence seems to indicate that the original intention of the patent grant as stated in the Constitution to promote the progress of science and useful arts has been obscured.
QUESTION OF POWER
The testimony elicited during these few days necessarily suggests many questions to those who have been following it. It may be asked, for example, whether or not patentees should be allowed to retain the power to attach restrictions as to production or price in any license that may issue for the use of devices protected by patent.
Another question is whether or not Congress should allow patents to issue upon basic processes many years after such processes have been in active use in an industry. Again, should there be any distinction in the treatment which Congress should accord to a natural person, an inventor, who himself develops a device and that which should be accorded to a group?
Those who have studied the patent law will probably be in general accord with the constitutional theory that patents like copyrights should be granted as a stimulus to industry and genius to "promote the progress of science and the useful arts," and I am sure the evidence which has been presented to this Committee will be widely studied throughout the country with a view to determining whether or not the present law does not lend itself toother purposes.
Perhaps I should say that this summary reflects only my own opinion. It should further be noted that the Department of Justice and other agencies are making additional patent studies, so that, of course, no conclusions are possible.
Appendix
(Exhibit No. 118)
(Received in evidence Dec. 12. Verbatim
Record Page 206)
License and lease No. M. F. 26 from
Hartford-Empire Company to
Antonio Scalise, doing business
as the Florida Glass Manufacturing
Company, dated August 2, 1935,
Miller Feeder No. 75.
PREAMBLE — THIS LICENSE AND LEASE, made this 2nd day of August, 1935, between the HARTFORD-EMPIRECOMPANY, a corporation organized under the laws of the State of Delaware and having a place of business at Hartford, Connecticut, hereinafter designated as LICENSOR, and Antonio Scalise, doing business as the Florida Glass Manufacturing Company and having a place of business at Jacksonville, Florida, herein-after designated as LICENSEE.
WITNESSETH: That whereas the Licensor owns or controls certain Letters Patent of the United States set forth in Schedule E annexed hereto and certain applications now pending for Letters Patent of the United States, relating to the manufacture of glassware, and
WHEREAS the Licensee is engaged in manufacturing glassware, having a plant for that purpose at Jacksonville, Florida, and desires to use machinery embodying inventions shown in said letters patent and patent applications in said business at said plant, which machinery is described in Schedule A annexed hereto, hereinafter termed "the leased machinery"
NOW, THEREFORE, in consideration of the covenants and royalties herein after set forth, it is hereby mutually agreed as follows:
SECTION 1. EXTENT OF LICENSE AND LEASE
The Licensor hereby leases to the Licensee and hereby licenses the Licensee to use the said leased machinery. PROVIDED, HOWEVER, that this license and lease is limited (not absolute) , and confers only the right to use said leased machinery in continental United States, and in the manner and for the purpose hereinafter set forth, and not otherwise.
It is agreed between the parties hereto that no obligation whatsoever rests upon or is assumed by the Licensor that other machinery and equipment of the Licensee or of others will operate successfully or efficiently in conjunction with the said leased machinery of the Licensor.
(Secs. 2-3 deleted)
SECTION 4. TERM
The term of this license and lease, unless sooner revoked or terminated as provided elsewhere herein, shall be for an initial period of Eight (8) years from the date of this license and lease, with privilege, if claimed by the Licensee in writing before the expiration of the said initial period, of one renewal for a supplemental period of Eight (8) years, upon all the conditions hereof, except as to installation and further renewal, and without additional license fee for such renewal.
SECTION 5. LICENSOR RETAINS TITLE
It is understood and agreed that the licensor and its successors and assigns, holds and at its own option, shall continue to retain throughout the term of this license and lease, complete title to said leased machinery.
SECTION 6. PLACE AND NATURE OF USE
Said leased machinery and all improvements thereon shall be used only for manufacturing the glassware defined as "Permitted Ware" in Schedule "C" annexed hereto, and only at said plant of Licensee located at Jacksonville, Florida, or at any other plant owned by the Licensee. Said leased machinery and all improvements thereon shall be used for delivering glass to only one forming machine, and not otherwise.
SECTION 7. PROHIBITION OF ASSIGNMENT
The said leased machinery shall be used only by the Licensee or its operatives. Neither the said leased machinery nor this license and lease shall be transferred, assigned or sub-let by the Licensee, except to the purchaser of the entire business of the Licensee. If either be otherwise transferred, assigned or sub-let, or if the Licensee discontinues for a period of more than one year the production of glassware under this license and lease, or is adjudicated bankrupt, or receiver is appointed over it, or if the Licensee makes any general transfer or assignment for the benefit of creditors, then and in any such case this license and lease may, at the option of the Licensor, be terminated.
SECTION 8. CHANGES, ADDITIONSAND IMPROVEMENTS
No changes and no additions other than reasonable and necessary repairs and other than necessary or proper safety appliances, shall be made in or to said leased machinery except by consent of both parties to this license and lease, or except as provided in Section 16 hereof for the event of injunction, and except as provided in this Section for improvements; and all changes and additions when made, shall become the property of the Licensor. Complete title to all patent rights at anytime possessed during the term of this license and lease by the Licensee covering such changes and additions shall be transferred to the Licensor.
In such event the Licensor will, upon written request of the Licensee, furnish to the Licensee with reasonable promptness, such parts as may be needed to apply the said improvements to the said leased machinery and at prices similar to those charged by Licensor for such parts to other similar licensees. Such improvements shall be used by the Licensee only in or upon the said leased machinery, and only during the term of this license and lease. All parts displaced from said leased machinery by the said improvements shall be returned to the Licensor.
The word "improvements" when used in this license and lease, shall be held to mean only (1) substitution of new parts for old parts of said leased machinery; or (2) changing old parts thereof; or (3) addition of new devices which are intended and adapted to become integral portions of such machinery and to perform only one or more of the original functions of such machinery; and not otherwise.
SECTION 9. ACCOUNTING.
The Licensee shall keep proper books of account during its entire operation under this license and lease, showing the length of time that said leased machinery is operated each day, and the number, kinds and sizes of glassware produced each day by said machinery, and all other facts necessary or advantageous for carrying out the purpose of this license and lease, together with a semi-annual statement showing the detailed cost of such production for the preceding six months, all in such form, within reasonable limits, as shall be specified by the Licensor.
Such books shall at all reasonable times be open to the inspection of the Licensor, or its duly authorized agents. The Licensee shall, on or before the tenth day of each month, furnish to the Licensor upon blanks provided by the latter, properly certified detailed statements giving in itemized form all the data mentioned in this Section , so far as may be required by the Licensor, for the preceding calendar month, except as to said costs of production, which shall be reported semi-annually, as above provided.
SECTION 10. ROYALTIES.
The Licensee shall pay to the Licensor during the term of this license and lease, royalties on all merchantable glassware produced by or with the aid of said leased machinery from the completion of its installation, at rates per gross, for the respective items of ware, as provided in Schedule "D" annexed hereto.
All of said royalties shall be paid monthly, at the Licensor's office in New York funds, on or before the fifteenth day of each month, for and upon all merchantable glassware manufactured by the Licensee under this license and lease, during the preceding calendar month.
SECTION 11. MINIMUM ROYALTY.
The said Licensee shall pay in royalties a minimum royalty under this license and lease of not less than Fifteen Hundred (1500) Dollars per year to be payable in New York funds, on or before the fifteenth day of January, for the year last preceding, during the entire term of this license and lease, including the said supplemental period, if entered upon, of Eight (8) years, subject to the provisions of Section 18.The first and last payments hereunder shall be prorated according to the number of months. during which such minimum royalty shall have actually been accruing in the first and last calendar years respectively.
SECTION 12. INSURANCE-TAXES-LIABILITY FOR INJURY.
The Licensee shall also at its own expense, procure and place in the hands of the Licensor good policies of insurance against fire to the amount of the full insurable value of said leased machinery, payable in case of loss to the Licensor; shall also pay all taxes assessed against said leased machinery, and shall hold and save the Licensor harmless against any and all damages and costs resulting from injury occurring to any of the said Licensee's employees or others on account of or in connection with said leased machinery, subsequent to the installation thereof.
SECTION 13. OPERATION OF MACHINERY.
The Licensee shall keep, use and operate said leased machinery and all parts thereof in a careful, safe, prudent, and proper manner; shall maintain the same in good order, damage by fire excepted as hereinafter set forth; shall not without consent of the Licensor, add to or subtract from such leased machinery as supplied by the Licensor, excepting necessary or proper safety appliances, or allow changes to be made therein, or interfere with the proper operation thereof, or remove or deface any plates, dates, numbers or inscriptions placed thereon by the Licensor.
Licensee shall make prompt repairs or renewals when the same are necessary, but shall not be required to purchase the necessary parts from Hartford, nor shall Hartford be obliged to furnish such parts.
(Sec. 14 deleted)
SECTION 15. ACKNOWLEDGING VALIDITY OF PATENTS.
(a) So long as this License remains in force, the Licensee agrees not to dispute the validity of the Letters Patent under which this License is granted, some of which are set forth in Schedule E annexed hereto, so far as these patents apply to the methods and machines which are hereby licensed to the Licensee.
(b) In case a final decree shall declare to be void all or substantially all of the Licensor's patents embodied in and relating to the said leased machinery, so that the Licensee is thereby evicted from all or substantially all of the benefits of this license and lease, then and in that case the Licensee may at its option revoke and terminate this license and lease, in which event the Licensee shall thereupon restore to the Licensor all of the said leased machinery and its appurtenances as provided in Section 19 hereof, and shall thereupon be relieved from paying further minimum royalties. PROVIDED, however, that until such revocation and restoration the Licensee shall continue to be bound by all the covenants and provisions of this license and lease.
SECTION 16. PROTECTION OF LICENSEE FROM INFRINGEMENT CLAIMS-LIABILITY FOR NON-PERFORMANCE
(a) The Licensor will at its own expense save and hold the Licensee harmless against damages and costs recovered in any suits or claims brought against the Licensee for alleged infringement of patents based on the use of the said leased machinery, but only to the extent of the royalties which shall have been paid by the Licensee during and for the period of infringement and before the judgment for such recovery, said period not to exceed, however, the twenty-four months immediately preceding such judgment. The Licensor shall, upon the written request of the Licensee, defend any such suits or claims, unless or until the Licensor shall elect to effect a settlement thereof. The Licensee shall promptly inform the Licensor of any such suit or claim, or any threat or probability thereof, coming to the knowledge of the Licensee, and shall, at the Licensor's expense, full and freely aid the Licensor in defending the same; and shall further promptly inform the Licensor of any infringement of the Licensor's patents coming to the knowledge of the Licensee.
(b) The Licensor shall have the right to intervene in and defend, as a party thereto, any suit brought against the Licensee during the term hereof which involves any contention that the making, selling or use of such leased machinery, or any improvement or part thereof, constitutes an infringement of any patent.
(c) In case the Licensor shall be delayed in the performance of, or be rendered unable to perform all or any part of this license and lease, by reason of strikes, unavoidable accident, the non-arrival of machines or materials, or if the installation or operation of said leased machinery shall be delayed or stopped by the process or order of any court of competent jurisdiction, the Licensor shall not be liable to the Licensee for any losses, delay or damage incurred thereby, except for damages recovered for infringement as set forth and limited above in this Section, PROVIDED, however, that if the right of the Licensee to use the said leased machinery, or any part thereof, shall be suspended by reason of an order, decree or injunction issued by any court of competent jurisdiction, then during the continuance of restraint by such order, decree or injunction, or until the Licensor shall have substituted other machinery or parts as hereinafter set forth, which said Licensor agrees to do as promptly as reasonably possible, the minimum royalty asset forth in Section 11 hereof shall be waived.
(d) In the event of such an order, decree or injunction being issued against any part or parts of said leased machinery, the Licensor reserves the right to substitute with reasonable promptness other machinery or parts for those involved in the injunction and at no cost or charge to the Licensee excepting any licensing fee or royalty which the Licensor may have to pay for the right to make, and license the Licensee to use, such other machinery or parts. The part or parts so substituted shall be of an efficiency substantially equal to that of the part or parts so involved in said order, decree, or injunction and shall immediately become subject to all the provisions of this license and lease.
(e) In the event that such order, decree or injunction shall become permanent against any part or parts of said machinery, and no substitution of machinery or parts shall have been made with reasonable promptness as above stated ,then in that event this license and lease shall cease and terminate in all its provisions.
SECTION 17. RIGHT OF REVOCATION.
In case the Licensee shall violate or fail to observe any of the conditions set forth in Sections 1, 3, 6, 7, 8, 9, 10, 11,12, 13, 15 , 20 and 21 of this license and lease, or shall cause the same to be violated, the Licensor shall have the right at its option, to revoke and terminate absolutely, this license and lease upon giving written notice to the Licensee of said revocation at least thirty (30) days before the time when such revocation is to take effect.
Except as provided in Sections 15, 16, 18 and 21, no termination or revocation whatsoever of this license and lease under any section hereof, nor the use of the remedy of injunction, accounting or repossession shall, however, affect or in anyway discharge the liability of the Licensee hereunder, to pay and to continue to pay to the Licensor, the minimum royalty provided by Section 11 hereof, for and during the entire term of this license and lease, including its supplemental eight-year period if entered upon, nor shall any royalties paid by said Licensee be returned.
SECTION 18. COMMUTATION OFMINIMUM ROYALTIES.
It is further agreed that in the event of such revocation set forth in Section 17,the Licensee, in lieu of said obligation therein provided to pay the said minimum royalties throughout said entire term, may at its option wholly discharge said obligation by paying to the Licensor within sixty days after said revocation, a lumpsum equal to fifty (50) per cent of the total minimum royalties which would under this license and lease be payable during the remainder of said term, including its said supplemental period if entered upon; and provided further, that the Licensee may at any time during said term, including said supplemental period, revoke and terminate this license and lease in its option, by giving written notice to the Licensor sixty (60) days beforehand of its intention so to revoke and by paying to the Licensor within said sixty days a lumpsum in discharge calculated as above set forth in this Section.
SECTION 19. RE-POSSESSION OFTHE MACHINERY.
Upon the termination of this license and lease at the end of its initial or supplemental period, or sooner as herein provided, the Licensee shall return to the Licensor the said leased machinery and all appurtenances thereof, covered by this license and lease, in good condition, reasonable wear and use excepted, by delivering the same properly crated and packed f. o. b. cars at any convenient freight station near the plant of the Licensee. If said Licensee shall fail so to deliver the machinery, the Licensor is hereby authorized to enter upon any premises where the said leased machinery maybe and take possession thereof and remove it.
SECTION 20. INSPECTION.
Duly authorized agents or employees of the Licensor shall at all reasonable times be allowed access to the said leased machinery for the purpose of inspecting the same and its operation and use, and the Licensee shall afford all reasonable facilities therefor.
SECTION 21. FIRE LOSS.
(a) In the event that the said leased machinery shall be damaged by fire so as to cause a suspension of production therewith the Licensee shall immediately give written notice to the Licensor as to the extent and nature of the damage to the said machinery and as to the plans and intentions of the Licensee relative to repairing the damage and resuming operations under this license and lease.
(b) In the event of such damage by fire, the Licensor, if so requested in the said notice, shall at its own expense, and to an extent not exceeding the amount of insurance received, provide the Licensee with the machinery or parts thereof necessary to repair or replace the damaged machinery or parts. The Licensee shall at its own expense promptly and diligently proceed to install the said machinery or parts thereof. From the time when said notice is received by the Licensor and thereafter during only such time, not exceeding six months, as may be necessary for providing and installing the said machinery or parts, the minimum royalty set forth in Section 11 hereof shall be waived.
(c) If the Licensee shall not within six (6) months after the occurrence of the fire rebuild or otherwise repair the damage and resume operation under this license and lease, or if the Licensee shall fail to resume the payment of royalties when due, then in any of these cases the Licensor shall have the right at its option to revoke and cancel this license and lease.
(Sect. 22 deleted)
SECTION 23. WAIVING OF CONDITIONS.
None of the terms of this license and lease shall be held to have been waived or altered unless such waiver or alteration is in writing, signed by an officer of the Licensor, expressly authorized thereto.
IN WITNESS WHEREOF each of the parties hereto has caused this license and lease to be executed in duplicate, in its name and behalf, as of the day and year first above written, the Hartford-Empire Company, by Arthur T. Safford, Jr., Secretary, and Antonio Scalise, doing business as the Florida Glass Manufacturing Company, Licensee, both thereto duly authorized.
SCHEDULE A.
Annexed to License and Lease No. M. F.26, Dated Aug. 2, 1935.
Description of machinery licensed and leased.
Miller Feeder No. 75 — A certain feeder located at the plant of Licensee known as the Miller Feeder, and to which will be attached Hartford-Empire number plate designating said feeder as Type No. 10, Serial No. 75.
(Schedule B deleted)
SCHEDULE C.
Annexed to License and Lease No. M. F. 26, Dated Aug. 2, 1935.
Specification of glassware which maybe made.
PERMITTED WARE.
The ware to be produced hereunder shall comprise (except as expressly excluded below under "Exclusions") all the articles named under this heading of Permitted Ware and made of the compositions of glass now commonly used for such articles, whether flint, blue, amber or green (but excluding opal), and not exceeding one hundred twenty-eight (128) ounces in weight.
1. Milk and cream bottles; PROVIDED, however, that Licensee shall not produce in any calendar year on any and all feeders licensed to it by Licensor more than Twenty-one Thousand (21,000) gross of such bottles, and PROVIDED further that the first and last year's production hereunder shall be prorated according to the number of months during which this License and Lease shall have been in effect in the first and last calendar years respectively.
2. Cheese jars for dairies.
3. Bottles for pressure beverages, not to include, however, bottles for carbonated water nor siphon bottles; PROVIDED that Licensee shall not produce in any one calendar year on any and all feeders licensed to it by Licensor more than a total of Seven Thousand (7,000) gross of these bottles, the manufacture of which is hereby permitted, and PROVIDED further that the first and last year's production hereunder shall be prorated according to the number of months during which this License and Lease shall have been in effect during the first and last calendar years respectively."
4. Bottles for proprietary medicines, but not to include prescription bottles.
5. Liquor ware.
6. Wines.
7. Beers.
8. Containers for foods, limited, however, to the following: (a) Mayonnaise; (b)Peanut Butter; (c) Honey; (d) Preserves; (e) Syrups.
Finishes having distinctive screw threads known as the "G" 70mm, and the 87 5/16 mm. wide-mouth Mason finishes capable of hermetically sealing on a sealing shoulder with regular standard Mason "G" and wide-mouth caps or on the top edges with glass or metal lids and screw thread bands shall not be formed on any of the articles the production of which is permitted above under the heading "Permitted Ware."
EXCLUSIONS.
The following articles are expressly excluded and shall not be produced under this license:
(a) Bulbs and tubing and cane all when for use in the manufacture of incandescent electric lamps or for any other permanently sealed enclosure for electrical purposes.
(b) Signal and optical ware.
(c) Ware intended and adapted for use where the heat resistance, physical strength, chemical resistance or electrical properties of such ware are of substantial value, provided such ware is made from glass having a linear coefficient of thermal expansion of less than .000006 per degree Centigrade, or containing more than five per cent boric oxide, or having an electric strength or thermal endurance or chemical resistance higher than a glass containing 80 per cent silica, 10 per cent sodium oxide, 5 per cent boric oxide and5 per cent calcium oxide.
(d) Ware intended and adapted forholding food in the process of cooking or sterilizing, other than ware intended and adapted for packages for storage and sale of goods or for transportation of goods .
(e) Mold-blown articles of glass insofar as the same are or may be used for electrical purposes or in connection with electric illumination.
(f) Ware which is pressed and not blown.
(g) Nursing bottles.
(h) Tumblers; fruit jars; lantern globes; gas globes; chimneys; vault lights; battery jars and battery containers; fish globes; display jars; tablet jars; insulators and drawn tube and cane.
Definition of Fruit Jars — The term "fruit jars," as used herein, shall mean fruit jars for domestic (household) use, which, as defined herein, shall mean generally the term as used in the glass industry — the intent being to include all kinds and sizes of the regular Mason jar with sealing shoulder with screw thread that fits regular Mason fruit jar caps; Lightning style fruit jars; and other sealing jars, intended to be shipped to the trade to be sold empty to the ultimate consumer, either with or without caps; but not to include jars manufactured for packers to be filled by them before selling to their trade.
(i) Marbles and Lithographers' balls.
(j) Vacuum bottles.
SCHEDULE D.
Annexed to License and Lease No. MF26, Dated August 2, 1935.
PROVIDED, however, that the following rates of royalty shall apply to milk and cream bottles —
The royalty rates on milk and cream bottles shall be twenty cents (20c) per gross for the one quart size; fifteen cents (15c) per gross for the one pint size; and twelve cents (12c) per gross for the one-half (1/2) pint size and ten cents (10c) per gross for the one-quarter (1/4) pint size, and for other sizes a royalty proportioned by weight of product to the royalty for the nearest size of bottle for which rates are specified in this paragraph.
The quart referred to above is the so-called United States standard quart containing thirty-two (32) fluid ounces, and the pint is of sixteen (16) fluid ounce capacity.
SCHEDULE E.
Annexed to License and Lease No. MF-26, Dated August 2, 1935.
LIST OF PATENTS.
1,326,460, Dec. 30, 1919; 1,382,993, June 28, 1921; 1,382,994, June 28, 1921; 1,414,561, May 2, 1922; 1,421,810, July 4, 1922; 1,473,587, Nov. 6, 1923; 1,516,220, Nov. 18, 1924; 1,519,885, Dec. 16,1924; 1,524,638, Jan. 27, 1925; 1,558,790, Oct. 27,1925; 1,564,909, Dec. 8. 1925; 1,573,742, Feb. 16, 1926; 1,574,709, Feb. 23, 1926; 1,574,739, Feb. 23, 1926; 1,588,393, June 8, 1926; 1,589,304, June 15, 1926; 1,590,924, June 29, 1926; 1,596,438, Aug. 17, 1926; 1,600,962, Sept. 21, 1926; 1,603,974, Oct. 19, 1926; 1,604,000, Oct. 19, 1926; 1,608,967, Nov. 30, 1926; 1,626.705, May 3, 1927; 1,628,324, May 10, 1927; 1,629.409, May 17, 1927; 1,631,107, May 31, 1927; 1,644,893, Oct. 11, 1927; 1,655,391, Jan. 3, 1928; 1,656,869, Jan. 17 , 1928; 1,662,436, March 13, 1928; 1,732,773, Oct. 22, 1929; 1,735,837, Nov. 12, 1929; 1,737,165, Nov. 26, 1929; 1,760,254, May 27, 1929; 1,760,255, May 27, 1929; 1,760,435, May 27, 1929; 1,781,340, Nov. 11, 1930; 1,788,413, Jan. 13, 1931; 1,816,309, July 28, 1931; 1,864,275, June 1, 1932; 1,864,276, June 21, 1932; 1,864,277, June 21, 1932; 1,864,278, June 21, 1932; 1,864,279, June 21, 1932; 1,873,021, Aug. 23, 1932; 1,873,022, Aug. 23, 1932.
It is recognized, however, that this Schedule E may not be complete in its recital of all the patents under which the License is granted.
February 6, 1936.
Florida Glass Manufacturing Company
Jacksonville, Florida
Gentlemen: After reviewing the milk royalties which you paid us for the twelve months ending December 31, 1935, we have decided to offer to you as a milk bottle licensee, the opportunity to apply as a royalty to your milk bottle production, our standard blown and pressed and blown ware rates instead of the present milk bottle rates. From our analysis of your royalty reports for this last year, this will result in a royalty saving to you.
The application of these rates will workout as follows:
The pressed and blown rate for quart milks is 20 cents per gross and the quart milk bottle weighs 25½ ounces. Taking the standard pressed and blown ware rate, a quart weighing 25½ ounces falls into the bracket "Over 20 oz. wt. and not exceeding 26 oz. wt.", and will carry a royalty of 18 cents per gross or 2 cents less than the royalty figured on the milk bottle rate.
For pints weighing 15½ ounces, the rate works out the same — 15 cents under each schedule; for half pints, the standard blown ware rate based on a 10 ounce weight is 1 cent more. So long, therefore, as your annual production retains the same general proportion of quarts, pints and half pints as in the past, we believe the offered rate will result in a decided advantage to you.
You of course will desire to check your own figures. Our figures as applied to your production, show that based on your 1935 figures, the offered rate will realize a royalty saving of $66.86.
If this change appears desirable to you, will you be good enough to sign both copies of this letter and return one of them to us for our files.
In consideration of the mutual advantages accruing to Hartford-Empire Company and Florida Glass Manufacturing Company from the foregoing change, Hartford and Florida agree that Schedule D of License and Lease No. M-26 and 27 dated August 2, 1935, is hereby amended by striking out the proviso in said Schedule commencing with the words, "Provided, however," and continuing through the words "fluid ounce capacity," inclusive. This change shall take effect as of January 1, 1936.
Yours very truly,
HARTFORD-EMPIRE COMPANY.
By (S) ARTHUR T. SAFFORD, JR.
Jacksonville, Florida,
February 10, 1936.
Florida Glass Manufacturing Company hereby enters in and agrees to the foregoing.
FLORIDA GLASS MANUFACTURING COMPANY.
By (S) A. SCALISE.
May 7, 1936
Florida Glass Manufacturing Co.
Jacksonville, Florida
Attention: Antonio Scalise
Gentlemen: We have decided to make an adjustment of our standard Feeder Royalty Rates for Blown and Pressed and Blown glassware in weights of One and One-half (12) Ounces or less as shown in the Schedule of your Feeder Royalties attached to both copies hereof.
It is understood that all other royalty rates now in force remain unchanged.
This adjustment is to become effective May 1, 1936, but will not go into effect until you sign this letter as requested below to show your acceptance of the adjustment and the conditions upon which it is made.
The same adjustment subject to the same conditions is being offered to all Licensees.
Therefore, please sign both copies of this letter, returning one copy to us for our files. This will then serve to amend your Feeder Royalty Rates to agree with the attached Schedule.
Very truly yours,
HARTFORD-EMPIRE COMPANY.
By (S) Arthur T. Safford, Jr.,
Secretary.
Jacksonville, Florida,
May 12, 1936.
Florida Glass Manufacturing Company hereby accepts the foregoing amendment subject to all the conditions thereof.
FLORIDA GLASS MANUFACTURING COMPANY
By (S) A. Scalise
Jacksonville, Florida,
May 12, 1936.
Schedule of Feeder Royalties attached to letter to Florida Glass Manufacturing Company dated May 7, 1936:
March 31, 1937.
Florida Glass Manufacturing Company,
Jacksonville, Florida.
Attention: Mr. Antonio Scalise
Gentlemen: In accordance with Mr. A. M. Pease's discussion with you when he visited you recently in Florida, it is in order to amend Schedule C of your Licenses and Leases Nos. MF-26 and 27 dated August 2, 1935, and covering Miller Feeders Nos. 75 and 76, and also to amend Schedule C of the Forming Machine Agreement of the same date.
The purpose of this amendment is to increase the limit on your production of milk and cream bottles and to add Orange Juice Bottles to your Field of Ware. Therefore, it is hereby agreed that Schedule C of the above agreements under the heading "Permitted Ware" shall be amended by rewriting paragraph 1 thereof as follows :
"1. Milk and Cream Bottles intended and adapted for use by dairies, PROVIDED, however, that Licensee shall not produce in any calendar year on any or all machines licensed to it by Licensor, more than Twenty-seven Thousand, Five Hundred (27,500) gross of such bottles."
Said Schedules C shall be further amended by the addition thereto of the following item:
"9. Orange Juice Bottles for dairies."
* * * * * *
Please sign both copies of this letter in the spaces provided below, returning one copy of the letter to us for our files.
This amendment is to take effect as of January 1st, 1937.
Very truly yours,
HARTFORD-EMPIRE COMPANY.
ARTHUR T. SAFFORD, JR.,
Secretary.
Jacksonville, Florida,
March 31st, 1937.
Florida Glass Manufacturing Company hereby concurs in and accepts the foregoing, subject to all conditions thereof.
FLORIDA GLASS MANUFACTURING COMPANY
By A. SCALISE.
(Exhibit 119)
(Received in Evidence, Dec. 12. Verbatim Reports, Page 206.)
General agreement between
Hartford-Empire Company and the
Northwestern Glass Company,
dated August 1, 1933.
September 6, 1938
Northwestern Glass Company
5801 Marginal Way
Seattle, Washington
Attention: Edw. S. Campbell, President
Gentlemen: According to the letter of Mr. A. M. Pease dated August 10, bleach bottles are to be added to your Field of Ware.
Therefore, it is agreed that schedule C of the General Agreement dated August 1 ,1933, shall be and is hereby amended under Permitted Ware by the addition to Item 5 — Miscellaneous — (Containers) of the following:
Bleach Bottles
If you would be good enough to sign both copies of this letter in the space provided below and return one copy to us, this will serve to formally amend the General Agreement in the above manner,
Very truly yours,
HARTFORD-EMPIRE COMPANY.
By (S) Arthur T. Safford, Jr.
Secretary
Seattle, Washington
September 1938
Northwestern Glass Company hereby agrees to and concurs in the foregoing.
NORTHWESTERN GLASS COMPANY
By (S) Edw. S. Campbell,
President
May 23, 1938.
Northwestern Glass Company
5801 East Marginal Way
Seattle, Washington
Attention: Edward S. Campbell,
President
Gentlemen:
Attention has been directed to the fact that O'Neill Feeder No. 15, formerly in operation at your plant, has been converted to a Meyer Feeder.
It is desired to make note of this change in the feeder construction in the contract and in our records, and rather than rewrite any of the papers relating to this feeder, the matter can best be covered by a simple amendment.
The type number of the feeder and the serial number should be changed from Type No. 33 and Serial No. 15 to Type No. 43 and Serial No. 3. One of the service men will install a new number plate in accordance with the change, or if one of our service men does not call at the plant in the next month or so, we will forward the plate directly to you to be substituted for the plate now on the feeder.
Before being changed, the feeder was covered by Individual License and Lease No. O-R-1, dated January 9, 1934. It is hereby agreed that said License and Lease shall be amended by changing the number thereof to MY-R-2 and by changing the description of the "glass feeding machine" to apply to one Meyer Feeder, Type No. 43. Serial No. 3.
Also it is agreed that Schedule A of the General Agreement, dated August 1, 1933, shall be amended in Paragraph 1 to apply to one O'Neill Feeder Type No. 33, Serial No. 16, and to 2 Meyer Feeders, Type No. 43, Serial Nos. 2 and 3.
Inasmuch as we have title to the feeder in question under the Bill of Sale dated August 1, 1933, and under Section 10 of the Agreement relating to changes, additions and improvements, no new Bill of Sale or amendment of the original Bill of Sale is necessary.
It would be appreciated if you would indicate your confirmation of and concurrence with the foregoing by signing both copies of this letter in the space provided below, returning one copy to us for our files.
Very truly yours,
HARTFORD-EMPIRE COMPANY.
ARTHUR L. SAFFORD, JR.,
Secretary
Seattle, Washington
Northwestern Glass Company hereby agrees to and concurs in the foregoing.
NORTHWESTERN GLASS COMPANY
By EDWARD S. CAMPBELL
President
May 7, 1936.
Northwestern Glass Company
Seattle, Washington.
Attention: Mr. Edward S. Campbell
Gentlemen: We have decided to make an adjustment of our standard Feeder Royalty Rates for Blown and Pressed and Blown glassware in weights of One and One-half (1 1/2) Ounces or less as shown in the Schedule of your Feeder Royalties attached to both copies hereof.
It is understood that all other royalty rates now in force remain unchanged, including the rates on Purely Pressed ware.
This adjustment is to become effective Mar 1, 1936, but will not go into effect until you sign this letter as requested below to show your acceptance of the adjustment and the conditions upon which it is made.
The same adjustment subject to the same conditions is being offered to all Licensees.
Therefore, please sign both copies of this letter returning one copy to us for our files. This will then serve to amend your Feeder Royalty Rates to agree with the attached Schedule.
Very truly yours,
HARTFORD-EMPIRE COMPANY.
By (S) Arthur T. Safford, Jr.
Seattle, Washington
May 12, 1936
Northwestern Glass Company hereby accepts the foregoing amendment subject to all the conditions thereof.
NORTHWESTERN GLASS COMPANY
By (S) Edward S. Campbell
(Note: Table at bottom of this page)
(No address named)
On July 16th Mr. A. Pease wrote to you stating that you would be permitted to manufacture certain bottles for spring water.
This letter is for the purpose of formally amending your license and lease agreement in accordance with the above-mentioned letter.
It is hereby agreed between Hartford-Empire Company and Northwestern Glass Company that the General Agreement dated August 1, 1933, as amended or modified by letters dated October 18, 1933, March 2, 1934, June 6, 1935, and June 17, 1935, shall be further amended by adding to Schedule C under the heading "Permitted Ware" the following item —
"(12) Bottles for spring water; PROVIDED, however, that such bottles shall not exceed one quart capacity"
Would you be good enough to indicate your concurrence in the foregoing by signing both copies of this letter in the space provided below, returning one copy to us for our files?
Very truly yours,
HARTFORD-EMPIRE COMPANY.
A. T. Safford, Jr.
Secretary
JRH:RLB
Seattle, Washington, Aug. 5, 1935.
Northwestern Glass Company hereby agrees to and concurs in the foregoing.
NORTHWESTERN GLASS COMPANY
By Edward S. Campbell, Pres.
June 17, 1935
Northwestern Glass Company
Seattle
Washington
Attention Mr. Edward S. Campbell
Gentlemen:
Mr. Pease has referred to us the matter of providing for a further amendment in the General Agreement to include candy jars and soaps within the Permitted Ware of Schedule C.
Therefore, it is hereby agreed between Hartford-Empire Company and Northwestern Glass Company that the General Agreement dated August 1, 1933, as amended or modified by letters dated October 18, 1933, March 2, 1934 and June 6, 1935, shall be further amended by adding to Schedule C under the heading "Permitted Ware" the following items —
(10) Candy Jars
(11) Bottles for Soaps
Would you be good enough to indicate your concurrence in the foregoing by signing both copies of this letter in the space provided below, returning one copy to us for our files?
Very truly yours,
HARTFORD-EMPIRE COMPANY.
A. T. Safford, Jr.
Secretary
JRH:RLB
Seattle, Washington
June 21, 1935
Northwestern Glass Company hereby concurs in and agrees to the foregoing.
NORTHWESTERN GLASS COMPANY
By Edward S. Campbell
Pres.
June 6th, 1935
Northwestern Glass Company
Seattle
Washington
Attention Mr. Edward S. Campbell
Gentlemen:
In accordance with the letter of Mr. A. M. Pease dated June 4th, directed to Mr. Marsh, we are writing this letter to formally amend the General Agreement to add the items referred to in that letter.
Therefore, it is hereby agreed between Hartford-Empire Company and Northwestern Glass Company that the General Agreement dated August 1, 1933, shall be amended as to Schedule C by adding to said Schedule under the heading "Permitted Ware," the following items —
(7) Crystal Bath Salts
(8) Disinfectants and insecticides, not to include, however, chlorine bleach solutions, such as Purex and Clorox ,or other similar bleach solutions
(9) Bottle for Lubricating Oils
Would you be good enough to indicate your concurrence in the foregoing by signing both copies of this letter in the space provided below, returning one copy to us for our files?
Very truly yours,
HARTFORD-EMPIRE COMPANY.
A. T. Safford, Jr.
Secretary
JRH:RLB
Seattle, Washington 6/12/35
Northwestern Glass Company hereby concurs in and agrees to the foregoing.
NORTHWESTERN GLASS COMPANY
By Edward S. Campbell
Pres.
March 2, 1934.
Northwestern Glass Company
Seattle
Washington
Attention Mr. E. S. Campbell
Gentlemen:
Upon recent consideration of the requirement for payment of minimum royalties in your contract, it was decided that it might be of advantage to you to permit a "spread" of royalties on your feeders.
This would relieve you of the obligation to pay a minimum royalty on any feeder for any year in which the total earned or production royalties on all feeders equals or exceeds the total mini-mum royalties on all your feeders, irrespective of the amount of earned royalties on any particular feeder.
It, therefore, is agreed between Hartford-Empire Company and Northwestern Glass Company that the minimum royalties provided for in Section 13 of the General Agreement dated August 1, 1933, in any one year shall be payable only in the amount that the total production royalties payable under the terms of Section 12 of said Agreement on all feeders now or hereafter licensed under said Agreement are less than the total minimum royalties payable on such feeders under the terms of said Section 13.
The foregoing amendment shall take effect as of January 1, 1934.Would you be good enough to sign both copies of this letter and return one of them to us for our files?
Very truly yours,
HARTFORD-EMPIRE COMPANY.
A. T. Safford, Jr.
Secretary
JRH:RLB
Seattle, Washington
March — 1934.
Northwestern Glass Company agrees to and accepts the foregoing.
NORTHWESTERN GLASS COMPANY
By Edward S. Campbell
President.
October 18th, 1933.
Northwestern Glass Company,
Seattle, Washington.
Gentlemen :
Our Licensing Committee has recently concluded it to be advisable to reduce the royalty rates on purely pressed ware. In your case this will apply only to bowls for moth bait which is the only ware you are permitted to make by the purely pressed method.
Therefore, Hartford-Empire and Northwestern hereby agree that the General Agreement between Hartford-Empire Company and Northwestern Glass Company, dated August 1, 1933, shall be amended in respect to Schedule D thereof, by striking out the present paragraph entitled "Rates of Royalty" and inserting in place thereof the following:
(Table of Rates of Royalty at bottom of this page.)
This amendment shall take effect as of October 1, 1933.Would you be good enough to sign both copies of this letter in the space provided below and return one of them to us for our files?
Very truly yours,
HARTFORD-EMPIRE COMPANY,
A. T. Safford, Jr.,
Secretary.
ATS:RLB
Seattle, Washington,
October 24, 1933.
Northwestern Glass Company agrees to and concurs in the foregoing amendment.
NORTHWESTERN GLASS COMPANY,
By (Signed) Edward S. Campbell.
GENERAL AGREEMENT Between HARTFORD-EMPIRE COMPANY AND NORTHWESTERN GLASS COMPANY
This Agreement made and entered into this 1st day of August, 1933, between Hartford-Empire Company, a corporation of Delaware having its principal place of business at Hartford, Connecticut, (hereinafter called "Hartford") and Northwestern Glass Company, a corporation of Washington having its principal place of business at Seattle, Washington, (herein-after called "Northwestern").
WHEREAS Hartford is the owner of patents , patent applications and patent rights relating to glass-working machines and the manufacture of glassware, some of which are set forth in Schedule E annexed hereto, and is engaged in the development and the commercializing of inventions relating to such machinery and manufacture,
WHEREAS Northwestern is engaged in the manufacture of glassware and desires a certain license under Hartford's patents, patent applications and patent rights relating to the feeding of molten glass and the right to acquire certain of Hartford's equipment,
NOW, THEREFORE, in consideration of these premises and the covenants and royalties hereinafter set forth, the parties agree as follows —
Section 1 — Form of Individual License and Lease.
The Two (2) O'Neill and the One (1) Meyer Feeder described in Schedule A annexed hereto (hereinafter termed "original leased machines") are hereby agreed to be from the date hereof and are hereby leased and the use thereof licensed under this General Agreement. The leasing and licensing of said original leased machines, and the leasing and licensing of all Hartford Single Feeders furnished by Hartford to Northwestern under the terms of Section 2 below shall be evidenced for each of said machines and feeders by the issuance by Hartford to Northwestern of an individual license and lease in substantially the following form — +
NORTHWESTERN GLASS COMPANY
Feeder License and Lease No. ___
This License and Lease No. ___ made the ____, day of 19 ___, between Hartford-Empire Company (hereinafter called "Licensor"), a corporation of Delaware having its principal place of business at Hartford, Connecticut, and the Northwestern Glass Company (hereinafter called "Licensee"), a corporation of having its principal place of business at Seattle, Washington, in consideration of the mutual covenants herein set forth and referred to
WITNESSETH
That the Licensor hereby leases to the Licensee and licenses the Licensee to use a certain glass feeding machine described as follows —
This said License and Lease is made in pursuance of and with express reference to a certain General Agreement between Licensor and Licensee dated __________ 1933.
It is agreed between the parties hereto that the said machine shall be taken, in-stalled, held, licensed, leased, used, operated and returned subject to all the provisions of said General Agreement in so far as such provisions are by such Agreement made applicable to said machine and such provisions are expressly made a part of this License and Lease.
HARTFORD-EMPIRE COMPANY
By ____________________
In Presence Of
____________________
____________________
NORTHWESTERN GLASS COMPANY
By ____________________
____________________
____________________
Section 2 — Substitution of Hartford Single Feeders. Northwestern shall have the right, at any time during the term of this General Agreement, to substitute a Hartford Single Feeder for each of said original leased machines, and upon such substitution shall discontinue permanently the use of the original leased machine for which substitution was made. Upon such substitution Northwestern agrees to return at once to Hartford the original leased machine for which substitution was made. Thereupon it shall be relieved from any further obligations for royalties of any sort thereafter accruing upon the original leased machine so substituted for, discontinued and returned.
If Northwestern shall elect so to substitute a Hartford Single Feeder for one of said original leased machines then in that event Hartford shall furnish to Northwestern for each of said original leased machines substituted for, permanently discontinued and returned a Hartford Single Feeder substantially as described in Schedule A annexed hereto, and such Hartford Single Feeder shall be leased and the use thereof licensed under this General Agreement. The license fee payable for each such feeder shall not be in excess of the amount charged by Hartford to others and shall be payable according to Hartford's standard terms.
As soon as the Hartford Single Feeder shall be furnished by Hartford to North-western in accordance with the terms of this Section an individual license and lease in the form set forth in Section 1shall be executed , and such feeder shall become a "substituted leased machine," as that phrase is hereinafter used.
Section 3 — Preparation for Installation of the Hartford Single Feeder. Northwestern agrees, upon receiving drawings and lists showing locations and dimensions of the Hartford Single Feeder, to furnish and have ready proper floor space, foundations, connection between tank and forehearth, piping, shafting, tools, motor, power, and such other adjuncts and equipment as are required to the complete satisfaction of Hartford.
Section 4 Delivery and Installation of the Hartford Single Feeder. Hartford, as soon as reasonably possible, after the provisions of Section 3 shall have been complied with, shall furnish the Hartford Single Feeder to be obtained under the terms of Section 2 above f.o.b. rail shipment at place of manufacture, and shall aid in installing said feeder as provided in Schedule B annexed hereto. Northwestern agrees to proceed diligently with the installation of said feeder as soon as the same is furnished, and to accept it and pay royalties to Hartford as called for as to substituted leased machines by Sections 12 and 13 of this General Agreement.
Section 5 — Extent of Agreement. Hartford hereby leases to Northwestern and hereby licenses Northwestern to use the said original leased machines and said substituted leased machines; PROVIDED, however, that such leasing and licensing is limited (not absolute) and confers only the right to use said original leased machines and said substituted leased machines in continental United States and in the manner and for the purpose hereinafter set forth, and not otherwise.
It is agreed between the parties hereto that no obligation whatsoever rests upon or is assumed by Hartford that other machinery and equipment of Northwest-ern or of others will operate successfully or efficiently in conjunction with said original leased machines and said substituted leased machines of Hartford.
Section 6 — Title. It is understood and agreed that Hartford retains a complete title to all of said original leased machines and said substituted leased machines, and at its own option shall continue to retain complete title to such machines.
Section 7 — Term. The term of this General Agreement and of all individual licenses and leases issued hereunder for said original leased machines and substituted leased machines, unless sooner revoked or terminated as provided elsewhere herein, shall be for an initial period of eight years from the date of this General Agreement, including the privilege, if claimed by Northwestern in writing before the expiration of said initial period, of One (1) renewal for a supplemental period of Eight (8) years upon all the conditions hereof.
Section 8 — Place and Nature of Use. Said original leased machines and substituted leased machines and all improvements thereon shall be used only for manufacturing the glassware defined as Permitted Ware in Schedule C annexed hereto and to the extent and for sale only in the territory therein provided and only at the plant of Northwestern located at Seattle, Washington, or at any other plant owned by Northwestern. Each original leased machine and each substituted leased machine and all improvements thereon shall be used for delivering glass to only one forming machine at any one time.
Said original leased machines and said substituted leased machines shall be used only by Northwestern or its operatives.
Section 9 — Prohibition of Assignment. Said original leased machines or said substituted leased machines, the individual licenses and leases covering them, or this General Agreement shall not be transferred, assigned or sub-let by Northwestern, except to the purchaser of its entire business. If any of them be otherwise transferred, assigned or sub-let by Northwestern, or if Northwestern discontinues for a period of more than one (1) year the production of glassware under this General Agreement, or is adjudicated bankrupt, or if a receiver is appointed over it, or if Northwestern makes any general transfer or assignment for the benefit of creditors, then and in any such case this General Agreement and all individual licenses and leases hereunder, or any one or more of them, may, at the option of Hartford, be terminated.
Section 10 — Changes, Additions and Improvements. No changes and no additions, other than reasonable and proper repairs and other than necessary or proper safety appliances, shall be made in or to said original leased machines and said substituted leased machines, except by consent of both parties to this Agreement, or except as provided in Section 18 hereof for the event of injunction, and except as provided for in this Section for improvements; and all changes and additions when made to said original leased machines or to said substituted leased machines shall become the property of Hartford and fall within the provisions of this General Agreement. Complete title to all patent rights at any time possessed during the term of this General Agreement by Northwestern covering such changes and additions shall be transferred to Hartford.
Northwestern shall, during the term of this General Agreement, be given the benefit for the purposes set forth herein of any and all improvements for use in and upon said original leased machines and said substituted leased machines which may be devised, developed or acquired by Hartford if and when said improvements shall, with the express consent of Hartford, have been used commercially in the United States upon feeders of the same type as said original leased machines or said substituted leased machines in the making of glassware. In such event Hartford will, upon written request of Northwestern, furnish to Northwestern with reasonable promptness such parts as may be needed to apply the said improvements to said original leased machines or said substituted leased machines and at prices similar to those charged by Hartford to other similar licensees. Such improvements shall be used by Northwestern only in or upon said original leased machines or said substituted leased machines, and only during the term of this General Agreement.
The word "improvements," when used in this General Agreement, shall be held to mean only (1) Substitution of new parts for old parts of said original leased machines, or (2) Changing old parts thereof or (3) Addition of new devices which are intended and adapted to be-come integral portions of said machines and to perform only one or more of the original functions of said machines, and not otherwise.
Section 11 — Accounting. Northwestern shall keep proper books of account during its entire operation under this General Agreement showing the length of time that each of said original leased machines and each of said substituted leased machines is operated each day, and the number, kinds and sizes of glassware produced each day by said machines, and all other facts necessary or advantageous for carrying out the purpose of this General Agreement.
Such books shall at all reasonable times be open to the inspection of Hartford or its duly authorized agents. Northwestern shall, on or before the Tenth (10th) day of each month, furnish to Hartford, upon blanks provided for by the latter, properly certified detailed statements giving in itemized form all the data mentioned in this Section so far as may be required by Hartford for the preceding calendar month.
Section 12 — Royalties. Northwestern shall pay to Hartford during the term of this General Agreement royalties on all merchantable glassware produced by or with the aid of each of said original leased machines and said substituted leased machines at rates for the respective items of ware as provided in Schedule D annexed hereto. All of said royalties shall be paid monthly at Hartford's office in New York funds on or before the Fifteenth (15th) day of each month for and upon all merchantable glassware produced by Northwestern under this General Agreement during the preceding calendar month.
Section 13 — Minimum Royalty. Northwestern shall pay in royalties a minimum royalty of Fifteen Hundred Dollars ($1500) per year upon each original leased machine and each substituted leased machine, which royalty shall be payable in New York funds on or before the fifteenth (15th) day of January for the year last preceding during the entire term of this General Agreement, including the said supplemental period, if entered upon, of Eight (8) years, subject to the provisions of Section 20.
The first and last payment of the minimum royalty shall be prorated according to the number of months during which such minimum royalty shall have actually been accruing in the first and last calendar years respectively. For each substituted leased machine the minimum royalty shall commence to accrue as of the same date when the minimum royalty of the original leased machine for which it is substituted shall cease, as provided in Section 2 above.
Section 14 — Insurance, Taxes and Employees Liability. Northwestern shall also, at its own expense, procure and place in the hands of Hartford good policies of insurance against fire to the amount of the full replacement value of said original leased machines and said substituted leased machines payable in case of loss to Hartford.
Northwestern shall also pay all taxes assessed against the original leased machines and the substituted leased machines and shall hold and save Hartford harmless against any and all damages and costs resulting from injury occurring to any of Northwestern's employees or others on account of or in connection with said original leased machines or said substituted leased machines.
Section 15 — Operation of Machinery. Northwestern shall keep, use and operate said original leased machines and said substituted leased machines and all parts thereof in a careful, safe, prudent and proper manner; shall maintain the same in good order, damage by fire excepted, as hereinafter set forth; shall not, without consent of Hartford, and except as provided below in this Section, add to or subtract from said original leased machines or said substituted leased machines, excepting necessary or proper safety appliances, or allow changes to be made therein or interfere with the proper operation thereof or remove or deface any plates, dates, numbers or inscriptions placed thereon by Hartford.
Northwestern shall promptly notify Hartford of the need of any repairs or renewals of said substituted leased machines and Northwestern shall at its own expense effect such repairs and renewals, purchasing the necessary renewal parts from Hartford; PROVIDED, however, that as to said original leased machines Northwestern shall make prompt repairs or renewals when the same are necessary, but shall not be required to purchase the necessary parts from Hartford or shall Hartford be obliged to furnish such parts.
As to renewal parts for said substituted leased machines Hartford agrees to furnish them promptly at prices not in excess of the prices charged by responsible outside parties for parts of similar design, material and workmanship. If Hartford declines or neglects so to furnish such parts Northwestern may procure them elsewhere.
Section 16 — Inherent Defects. Hartford shall remedy and make good, without charge, any inherent defects appearing in the materials of each one of the substituted leased machines during one year from the date of its installation.
Section 17 — Acknowledging Validity of Patents.
(a) So long as this General Agreement remains in force Northwestern agrees not to dispute the validity of the Letters Patent under which licenses are herein granted, some of which are set forth in Schedule E annexed hereto, so far as these patents apply to the methods and machines which are hereby licensed to Northwestern.
(b) In case a final decree shall declare to be void all or substantially all of Hartford's patents embodied in and relating to the original leased machines or the substituted leased machines so that Northwestern is thereby evicted from all or substantially all of the benefits of this General Agreement, then and in that case Northwestern may, at its option, revoke and terminate this General Agreement, in which event Northwestern shall thereupon restore to Hartford all of the original leased machines and said substituted leased machines and their appurtenances as provided in Section 21 hereof, and shall thereupon be relieved from paying further royalties, minimum or otherwise, thereafter accruing; PROVIDED, however, that until such revocation and restoration Northwestern shall continue to be bound by all the covenants and provisions of this General Agreement.
Section 18 — Protection of Northwestern from Infringement Claims-Liability for Non-Performance.
(a) Hartford will, at its own expense, save and hold Northwestern harmless against damages and costs recovered in any suit or claims brought against North-western for alleged infringement of patents based on the use of the original leased machines or the substituted leased machines, but only to the extent of the royalties which shall have been paid by Northwestern during and for the period of infringement and before the judgment for such recovery — said period not to exceed, however, the Twenty-four (24) months immediately preceding such judgment. Hartford, shall, upon written request of Northwestern, defend any such suits or claims unless or until Hartford shall elect to effect a settlement thereof. Northwestern shall promptly inform Hartford of any such suit or claim or any threat or probability thereof coming to the knowledge of Northwestern and shall, at Hartford's expense, fully and freely aid Hartford in defending the same, and shall further promptly inform Hartford of any infringement of Hartford's patents coming to the knowledge of Northwestern.
(b) Hartford shall have the right to intervene in and defend as a party thereto any suit brought against Northwestern during the term hereof which involves any contention that the making, selling or use of the original leased machines or the substituted leased machines or any improvement or part thereof constitutes an infringement of any patents.
(c) In case Hartford shall be delayed in the performance of or be rendered unable to perform all or any part of this General Agreement by reason of strikes, unavoidable accident, the non-arrival of machines or materials, or if the installation of said substituted leased machines or the operation of the said original leased machines or the substituted leased machines shall be delayed or stopped by the process or order of any court of competent jurisdiction, Hartford shall not be liable to Northwestern for any loss, delay or damage incurred thereby, except for damages recovered by infringement, asset forth and limited above in this Section; PROVIDED, however, that if the right of Northwestern to use any original leased machine or any substituted leased machine or any part thereof shall be suspended by reason of an order, decree or injunction issued by any court of competent jurisdiction then during the continuance of restraint by such order, decree or injunction or until Hartford shall have substituted other machinery or parts, as hereinafter set forth, which Hartford agrees to do as promptly as reasonably possible, the royalties applicable to each machine, the use of which is so suspended, shall be waived.
(d) In the event of such an order, decree or injunction being issued against any original leased machine or any substituted leased machine or any part or parts thereof Hartford reserves the right to substitute with reasonable promptness other machines or parts for those involved in that injunction, and at no cost or charge to Northwestern. The part or parts so substituted shall be of an efficiency substantially equal to that of the part or parts so involved in said order, decree or injunction , and shall immediately become subject to all the provisions of this General Agreement.
(e) In the event that such order, decree or injunction shall become permanent against any original leased machine or any substituted leased machine or any part or parts thereof and no substitution of machinery or parts shall have been made with reasonable promptness, as above stated, then in that event this General Agreement shall cease and terminate in all its provisions as to the particular leased machine or substituted leased machine against which such order, decree or injunction shall become permanent.
Section 19 — Right of Revocation. Incase Northwestern shall violate, fail to observe or refuse to perform any of the conditions set forth in Sections 2, 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 22 and 23 of this General Agreement, or shall cause the same to be violated, Hartford shall have the right, at its option, to revoke and terminate absolutely this General Agreement, or any individual license and lease issued hereunder as to any original leased machine or any substituted leased machine, upon giving written notice to Northwestern of said revocation at least Thirty (30) days before the date when such revocation takes effect. Except as provided in Sections 17, 18, 20 and 23, no termination or revocation whatsoever of this General Agreement under any Section hereof nor the use of the remedy of injunction, accounting or re-possession shall, however, affect or in any way discharge the liability of Northwestern hereunder to pay and to continue to pay to Hartford the minimum royalty provided by Section 13 hereof for and during the entire term of this General Agreement, including its supplemental Eight (8) year period, if entered upon; nor shall any royalties paid by Northwestern be returned.
Section 20 — Commutation of Minimum Royalties. It is further agreed that in the event of such revocation set forth in Section 19 Northwestern in lieu of said obligations therein provided to pay the said minimum royalties throughout said entire term may, at its option, wholly discharge said obligation by paying to Hartford within Sixty (60) days after said revocation takes effect, a lumpsum equal to Fifty per cent (50% ) of the total minimum royalties which would under this General Agreement be payable during the remainder of its term, including its said supplemental period, if entered upon, and provided further, that Northwestern may at any time during said term, including said supplemental period, revoke and terminate this General Agreement in its option by giving written no-tice to Hartford Sixty (60) days before-hand of its intention so to revoke and by paying to Hartford within said Sixty (60) days a lump sum in discharge calculated as above set forth in this Section.
Section 21 — Re-Possession of Machinery. Upon the termination of this General Agreement, at the end of its initial or supplemental period, or sooner, as herein provided, Northwestern shall return to Hartford the original leased machines and the substituted leased machines and all appurtenances thereof covered by this General Agreement or any individual license and lease hereunder in good condition, reasonable wear excepted, by delivering the same properly crated and packed f . o . b. cars at any convenient freight station near the plant of Northwestern in which said leased machinery is located. If Northwestern shall fail so to deliver the machinery Hartford is hereby authorized to enter upon any premises where the original leased machines and the substituted leased machines may be and take possession thereof and remove them.
Section 22 — Inspection. Duly authorized agents or employees of Hartford shall at all reasonable times be allowed access to the original leased machines or the substituted leased machines for the purpose of inspecting the same and its operation and use and Northwestern shall afford all reasonable facilities therefor.
Section 23 — Fire Loss.
(a) In the event that the original leased machines or the substituted leased machines shall be damaged by fire so as to cause a suspension of production therewith Northwestern shall immediately give written notice to Hartford as to the extent and nature of the damage to the machines and as to the plans and intentions of Northwestern relative to repairing the damage and resuming operations under this General Agreement.
(b) In the event of such damage by fire, Hartford, if requested in said notice, shall, at its own expense, and to an extent not exceeding the amount of insurance received, provide Northwestern with the machinery or parts thereof necessary to repair or replace the damaged machinery or parts. Northwestern shall, at its own expense, promptly and diligently proceed to install the said machinery or parts thereof. From the time when said notice is received by Hartford and thereafter during only such time not exceeding Six (6) months as may be necessary for providing and installing the said machines or parts the minimum royalty set forth in Section 13 hereof as to the particular original leased machine or substituted leased machine damaged shall be waived.
(c) If Northwestern shall not, within Six (6) months after the occurrence of the fire, rebuild or otherwise repair the damage and resume operation under the General Agreement, or if Northwestern shall fail to resume the payment of royalties when due, then in any of these cases Hartford shall have the right, at its option, to revoke and cancel this General Agreement.
Section 24 — Waiving of Conditions. None of the terms of this General Agreement shall be held to have been waived or altered unless such waiver or alteration is in writing, signed by an officer of Hartford expressly authorized thereto.
IN WITNESS WHEREOF the parties have hereunto set their hands and seals, acting herein by their respective officers duly authorized therefor.
HARTFORD-EMPIRE COMPANY,
By Roger M. Eldred,
General Manager.
Attest:
Arthur T. Safford, Jr.
Secretary.
NORTHWESTERN GLASS
COMPANY,
By Edward S. Campbell,
President.
Attest:
Joseph M. Gangler,
Secretary.
SCHEDULE A
Annexed to General Agreement between Hartford-Empire Company and Northwestern Glass Company, Dated August 1, 1933.
MACHINES COVERED BY AGREEMENT
1. The Two (2) O'Neill Feeders and the One (1) Meyer Feeder now located on the tank at the plant of Northwestern. To the two O'Neill Feeders, after the execution of this Agreement, will be attached Hartford-Empire Company number plates designating these feeders as Type No. 33 and Serial No. 15 and 16 respectively. To the Meyer Feeder likewise will be attached a plate designating this feeder as Type No. 43 and Serial No. 2.
2. The Hartford Single Feeder equipped with parts shown below adapted to cover range of ware specified elsewhere in this contract, Class 144:
Shear Cam Plunger Lever
Plunger Cam Spout Casing
Drop Guide Tube Clamp
Ring Holder Plunger Chuck
Tube Holder Shear Shanks
Orifice Support
Not including the following parts —
Spout Arch Blocks
Orifice Ring Plunger
Tube Shear Blades
Spout Cover
One plain sub base.
One set metal parts forehearth front section.
One set clay parts for forehearth front section.
One interceptor mechanism.
One drive mechanism excepting motor, but including chains and sprockets adapted to cover range of ware specified elsewhere in this contract.
One machine synchronizer.
One set single feeder operating tools.
SCHEDULE B
Annexed to General Agreement between Hartford-Empire Company and Northwestern Glass Company, dated August 1, 1933.
INSTALLATION OF HARTFORD SINGLE FEEDERS
(1) Hartford will furnish free of charge to Northwestern such general supervision as Hartford may deem necessary in connection with the installation of the Hartford Single Feeders.
(2) Hartford will, if requested in writing a competent by Northwestern, furnish machinist to direct and assist in the said installation.
(3) Hartford will, if requested in writing by Northwestern, furnish a competent operator to instruct Northwestern's operators in the operation of the said machinery for a period not exceeding Two (2)weeks from the time the said machinery is installed.
(4) Northwestern will pay to Hartford the entire cost incurred by Hartford under (2) and of instructions under (3), including the traveling and living expenses of the men furnished, plus ten per cent (10%) of the entire cost.
SCHEDULE C
Annexed to General Agreement between Hartford-Empire Company and dated Northwestern Glass Company, August 1, 1933.
Specification of Glassware Which May Be Made.
PERMITTED WARE
The ware to be produced hereunder shall not be sold, shipped to or distributed in or to any place outside of the territory consisting of the States of Washington, and Montana and of Oregon, Idaho, Alaska, and such ware shall comprise only(except as expressly excluded below) the articles named under this heading of Permitted Ware and made of the compositions of glass now commonly used for such articles, whether flint, blue, amber or green (but excluding opal), and not exceeding One hundred twenty-eight (128) ounces in weight, said articles to be either blown or pressed and blown, except as provided in item 6 herein:
(1) Beers and wines.
(2) Flasks and liquor ware.
(3) Food and food condiments for the following purposes:
(a) Vinegar; (b) Cider; (c) Syrup; (d) Olive Oil; (e) Salad dressings, including mayonnaise; (f) Flavoring extracts and seasonings; (g) Relishes; (h) Olives; (i) Oysters and clams; (j) Preserves; (k) Pickles; (1) Peanut Butter; (m) Salmon Eggs; (n) Fruits; (o) Fish; (p) Honey; (q) Cheese; (r) Catsup;(s) Coffee; (t) Chicken; (u) Horse Radish.
(4) Beverage Bottles:
(a) Sodas; (b) Fruit Juices.
(5) Miscellaneous — paste, vaseline, polishes, paint, shellac, ammonia, bluing, glue, ink and glass floats; Jars for machine parts.
(6) Bowls for moth bait, whether blown, pressed and blown, or purely pressed.
There are also specifically excluded, without however, being limited to the Exclusions mentioned below, all the articles included within the following list:
1. Bulbs and tubing and cane all when for use in the manufacture of incandescent electric lamps or for any other permanently sealed enclosure for electrical purposes
2. Signal and optical ware.
3. Ware intended and adapted for use where the heat resistance, physical strength, chemical resistance or electrical properties of such ware are of substantial value, provided such ware is made from glass having a linear coefficient of thermal expansion of less than .000006 per degree Centigrade, or containing more than five per cent boric oxide, or having an electric strength or thermal endurance or chemical resistance higher than a glass containing 80% silica; 10% sodium oxide; 5% boric oxide and 5% calcium oxide.
4. Ware intended and adapted for holding food in the process of cooking or sterilizing, other than ware intended and adapted for packages for storage and sale of goods or for transportation of goods.
5. Mold-blown articles of glass in so far as the same are or may be used for electrical purposes or in connection with electric illumination.
6. Ware which is pressed and not blown, except as provided in item 6 under Permitted Ware.
7. Tumblers; lantern globes; gas globes; chimneys; vault lights; battery jars and battery containers; fish globes; display jars; tablet jars; insulators and drawn tube and cane.
8. Fruit Jars for Domestic (Household) Use.
"Fruit jars for domestic (household) use," shall mean generally the term as used in the glass industry the intent being to include all kinds and sizes of the regular Mason jar with sealing shoulder with screw thread that fits regular Mason fruit jar caps; Lightning style fruit jars; and other sealing jars, intended to be shipped to the trade to be sold empty to the ultimate consumer, either with or without caps; but not to include jars manufactured for packers to be filled by them before selling to their trade.
9. Marbles and Lithographers balls.
10. Vacuum Bottles.
11. Milk Bottles and Nursing Bottles.
SETTLEMENT AGREEMENT
This Agreement made this 1st day of August, 1933, between Hartford-Empire Company, a corporation of Delaware having its principal place of business at Hartford, Connecticut, (hereinafter called "Hartford"), and Northwestern Glass Company, a corporation of Washington, having its principal place of business at Seattle, Washington, (hereinafter called "Northwestern"),
WITNESSETH
WHEREAS Hartford is engaged in the manufacture of glass-working machinery and in the licensing of machinery and methods for the manufacture of glassware, and further, owns many inventions, applications for letters patent and patents of the United States relating to the manufacture of glassware, and
WHEREAS Northwestern is engaged in the manufacture of glassware, and prior to the date hereof has used certain glass feeding machines which Hartford claims infringe certain patents of Hartford,
WHEREAS Northwestern desires to effect a settlement for its past infringing uses of Hartford's patents.
NOW, THEREFORE, in consideration of these premises and the covenants and payments hereinafter set forth, the parties agree as follows —
Section 1— Payment of Damages.
(a) Northwestern hereby agrees to pay to Hartford the sum of Fifteen Hundred Dollars ($1,500), said sum to be paid in Three (3) installments of Five Hundred Dollars ($500) each — the first of said installments being due upon the execution of this Settlement Agreement, the second of said installments being due October 1, 1933, and the third and last of said installments being due December 31, 1933. Northwestern will execute a note payable to Hartford for the sum of Fifteen Hundred Dollars ($1,500), payable in the amounts and at the times herein specified.
(b) In the event that Northwestern shall fail to pay any of its installments when the same shall become due Hartford shall be entitled to revoke the General Agreement between Hartford-Empire Company and Northwestern Glass Company of even date herewith, or any individual license and lease issued there under and to take possession of the machinery covered by said agreement or by any of said individual licenses and leases in the manner provided for in Sections 19 and 21thereof; PROVIDED, however, that this right of revocation and repossession shall in no way affect any other remedy Hartford may have for the collection of any of said installments.
Section 2 — Release. Hartford hereby releases Northwestern from any and all claims and demands by Hartford in law or equity for profits and/or damages arising from infringement occurring prior to the date hereof of patents of Hartford in so far as said infringement consisted in the making, using or selling by Northwestern of Three (3) certain glass feeding machines, Two (2) being known as O'Neill Feeders and One (1) as a Meyer Feeder, said Feeders being more specifically described in Schedule A of the Agreement referred to above.
Section 3 — Transfer of Feeder Inventions. Northwestern hereby sells, assigns and transfers to Hartford all its right, title and interest to and in any inventions, applications for letters patent of the United States and United States patents now owned or controlled by it and relating to the feeding of molten glass.
Furthermore, Northwestern, at the request of Hartford will execute such further documents as shall be necessary to vest title to such inventions, patent applications and patents in Hartford.
IN WITNESS WHEREOF the parties have hereunto set their hands and seals, acting herein by their respective officers duly authorized therefor.
HARTFORD-EMPIRE COMPANY
By Roger M. Eldred,
General Manager
Attest
Arthur T. Safford, Jr.
Secretary
NORTHWESTERN GLASS COMPANY
By Edward S. Campbell
President
Attest
Jos. M. Gangler
Secy.
BILL OF SALE
In consideration of the sum of One Dollar ($1.00) and other valuable considerations, receipt of which is hereby acknowledged, Northwestern Glass Company, a corporation of Washington having its principal place of business at Seattle, Washington, hereby agrees to sell, assign and transfer and does by these presents sell, assign and transfer to Hartford-Empire Company of Hartford, Connecticut, all right, title and interest to and in Three(3) certain glass feeders. Two (2) being known as O'Neill Feeders and One (1) as a Meyer Feeder now located in its plant at Seattle, Washigton [sic] Washington.
To said O'Neill Feeders, in accordance with an Agreement of even date herewith, shall be affixed Hartford-Empire Company number plates designating these feeders as Type No. 33, Serial No. 15 and 16, and likewise to said Meyer Feeder will be attached a plate designating this feeder as Type No. 43 and Serial No. 2.
IN WITNESS WHEREOF said Northwestern Glass Company, by its President duly authorized therefor, hereunto sets, itshand and seal this 1st day of August, 1933.
NORTHWESTERN GLASS COMPANY
By Edward S. Campbell
President
Attest
Jos. M. Gangler, Secy.
[Original of note sent to Northwestern 2/5/34]
Seattle, Washington
7/24, 1933
For value received, the Northwestern Glass Company promises to pay to Hartford-Empire Company, or order, at its place of business at 333 Homestead Avenue, Hartford, Connecticut, the sum of Fifteen Hundred Dollars ($1500), without interest. Said principal sum is to be paid in Three (3) installments of Five Hundred Dollars ($500) each — the payment of the first of which shall be made upon the execution of a certain Settlement Agreement between Northwestern and Hartford, and the payment of the second installment to be made on the first day of October, 1933, and the payment of the third and last installment to be made on December 31, 1933.
It is expressly understood and agreed that on failure to pay any one of said installments when due the entire unpaid balance of said principal sum shall mature and become payable in full in Thirty (30) days from date such unpaid installment becomes due.
NORTHWESTERN GLASS COMPANY
By ___________________
President
In Presence Of
___________________
(Exhibit No. 120)
Received in Evidence, Dec. 12. Printed
in Verbatim Record. Page 207)
License and lease No. HSF-20, from
Hartford-Empire Company to
Laurens Glass Works, Inc., dated
June 9, 1924; renewed June 9, 1932.
LICENSE AND LEASE NO. HSF-20 made this ninth day of June, 1924, between the HARTFORD-EMPIRE COMPANY, a corporation organized under the laws of the State of Delaware, and having a place of business at Hartford, Connecticut, hereinafter designated as LICENSOR, and the Laurens Glass Works, Inc., a corporation organized under the laws of the State of South Carolina, and having a place of business at Laurens, South Carolina, hereinafter designated as LICENSEE,
WITNESSETH: That whereas the Licensor is the owner of certain Letters Patent of the United States and of certain applications now pending for Letters Patent of the United States, relating to the manufactures of glassware, and WHEREAS the Licensee is engaged in manufacturing glassware, having a plant for that purpose at Laurens, South Carolina, and desires to use machinery embodying inventions shown in said letters patent and patent applications in said business at said plant:
NOW, THEREFORE, in consideration of the covenants and royalties hereinafter set forth, and a license fee of Twenty-five hundred (2,500) Dollars to be paid by said Licensee to said Licensor in the following manner, Twelve hundred and fifty (1250) Dollars to be paid upon the execution and delivery of this license and lease, and the balance of Twelve hundred and fifty (1250) Dollars within sixty (60) days after the "Single Feeder" described in Schedule "A" annexed hereto, hereinafter termed the leased machinery, is ready for shipment to Licensee; and in consideration of the covenants of the parties hereinafter set forth, it is hereby mutually agreed as follows:
SECTION 1. EXTENT OF LICENSE
AND LEASE
(a) The Licensor hereby leases to the Licensee and hereby licenses the Licensee to use the said leased machinery. PROVIDED, HOWEVER, that this license and lease is limited (not absolute), and confers only the right to use said leased machinery in continental United States, and in the manner and for the purpose hereinafter set forth, and not otherwise.
(b) It is agreed between the parties hereto, that no obligation whatsoever rests upon or is assumed by the Licensor that other machinery and equipment of the Licensee or of others will operate successfully or efficiently in conjunction with the said leased machinery of the Licensor.
SECTION 2. PREPARATION FOR
INSTALLATION.
The Licensee agrees, upon receiving drawings and lists showing locations and dimensions of said leased machinery, to furnish and have ready proper floor space, foundations, connection between tank and forehearth, piping, shafting, tools, motor, power and such other adjuncts and equipment as are required, to the complete satisfaction of the Licensor.
SECTION 3. DELIVERY AND
INSTALLATION
(a) The Licensor, as soon as reasonably possible after the provisions of Section 2have been complied with, shall deliver said leased machinery f. o. b. at place of manufacture, and shall install said leased machinery as provided in Schedule "B" annexed hereto.(b) The Licensee agrees to proceed diligently with the installation of said leased machinery as soon as the same is delivered, and to accept the machinery and pay royalties to the Licensor as called for by Sections 10 and 11 of this license and lease.
SECTION 4. TERM
The term of this license and lease, unless sooner revoked or terminated as pro-vided elsewhere herein, shall be for an initial period of Eight (8) years from the date of this license and lease, with privilege, if claimed by the Licensee inwriting before the expiration of the said initial period, of one renewal for a supplemental period of Eight (8) years, upon all the conditions hereof, except as to installation and further renewal, and without additional license fee for such renewal.
SECTION 5. LICENSOR RETAINS
TITLE
It is understood and agreed that the Licensor and its successors and assigns, retains, and at its own option, shall continue to retain throughout the term of this license and lease, complete title to said leased machinery.
SECTION 6. PLACE AND NATURE
OF USE.
(a) Said leased machinery and all improvements thereon shall be used only for manufacturing the glassware defined in Schedule "C" annexed hereto, and only at said plant of Licensee located at Laurens, South Carolina, or at any other plant owned by the Licensee.
(b) Said leased machinery and all improvements thereon shall be used for delivering glass to only one forming machine, and not otherwise.
SECTION 7. PROHIBITION OF
ASSIGNMENT.
The said leased machinery shall be used only by the Licensee or its operatives, and only at the plant or plants aforesaid. Neither the said leased machinery nor this license and lease shall be transferred. assigned or sub-let by the Licensee, except to the purchaser of the entire business of the Licensee. If either be otherwise transferred, assigned or sub-let, or if the Licensee discontinues for a period of more than one year the production of glassware under this license and lease, or becomes bankrupt, or a receiver is appointed over it, or if the Licensee makes any general transfer or assignment for the benefit of creditors, then and in any such case this license and lease may, at the option of the Licensor, be terminated.
SECTION 8. CHANGES, ADDITIONS
AND IMPROVEMENTS
(a) No changes and no additions other than reasonable and necessary repairs and other than necessary or proper safety appliances, shall be made in or to said leased machinery except by consent of both parties to this license and lease, or except as provided in Section 16 hereof for the event of injunction, and except as provided in this Section for improvements; and all changes and additions when made, shall become the property of the Licensor. Complete title to all patent rights at any time possessed during the term of this license and lease by the Licensee covering such changes and additions shall be transferred to the Licensor.
(b) The Licensee shall, during the term of this license and lease, be given the benefit, for the purposes set forth in Section 6, of any and all improvements for use in and upon said leased machinery, which may be devised, developed or acquired by the Licensor, if and when said improvements shall with the express consent of the Licensor, have been used commercially in the United States upon said leased machinery in the making of glassware. In such event the Licensor will, upon written request of the Licensee, furnish to the Licensee with reasonable promptness, such parts as may be needed to apply the said improvements to the said leased machinery and at prices similar to those charged by Licensor for such parts to other similar licensees. Such improvements shall be used by the Licensee only in or upon the said leased machinery, and only during the term of this license and lease. All parts displaced from said leased machinery by the said improvements shall be returned to the Licensor.
The word "improvement" when used in this license and lease, shall be held to mean only (1) substitution of new parts for old parts of said leased machinery; or (2) changing old parts thereof; or (3) addition of new devices which are intended and adapted to become integral portions of such machinery; and not otherwise.
SECTION 9. ACCOUNTING.
(a) The Licensee shall keep proper books of account during its entire operation under this license and lease, showing the length of time that said leased machinery is operated each day, and the number, kinds and sizes of glassware produced each day by said machinery, and all other facts necessary or advantageous for carrying out the purpose of this license and lease, together with a semi-annual statement showing the detailed cost of such production for the preceding six months, all in such form, within reasonable limits, as shall be specified by the Licensor.
(b) Such books shall at all reasonable times be open to the inspection of the Licensor, or its duly authorized agents. The Licensee shall, on or before the fifteenth day of each month, furnish to the Licensor upon blanks provided by the latter, properly certified detailed statements giving in itemized form all the data mentioned in this Section, so far as may be required by the Licensor, for the preceding calendar month, except as to said costs of production, which shall be reported semi-annually, as above provided.
SECTION 10. ROYALTIES.
(a) The Licensee shall pay to the Licensor during the term of this license and lease, royalties on all merchantable glassware produced by or with the aid of said leased machinery from the completion of its installation, at rates per gross, for the respective items of ware, as provided in Schedule "D" annexed hereto.
(b) All of said royalties shall be paid monthly, at the Licensor's office, in New York funds, on or before the fifteenth day of each month, for and upon all glassware manufactured by the Licensee under this license and lease, during the preceding calendar month.
SECTION 11. MINIMUM ROYALTY.
The said Licensee shall pay in royalties, a minimum royalty under this license and lease of not less than fifteen Hundred (1,500) Dollars per year, to commence ninety (90) days after said leased machinery is ready to ship to Licensee, and to be payable in New York funds, on or before the fifteenth day of January, for the year last preceding, during the entire term of this license and lease, including the said supplemental period, if entered upon, of Eight (8) years, subject to the provisions of Section 18. The first payment hereunder shall be prorated according to the number of months during which such minimum royalty shall have actually been accruing in the first calendar year.
SECTION 12. INSURANCE.
The Licensee shall also at its own expense, procure and place in the hands of the Licensor good policies of insurance against fire to the amount of the full insurable value of said leased machinery; payable in case of loss to the Licensor; shall also pay all taxes assessed against said leased machinery, and shall hold any save the Licensor harmless against any and all damages and costs resulting from injury occurring to any of the said Licensee's employees or others on account of or in connection with said leased machinery, subsequent to the installation thereof.
SECTION 13. OPERATION OF
MACHINERY.
The Licensee shall keep, use and operate said leased machinery and all parts thereof in a careful, safe, prudent, and proper manner; shall maintain the same in good order, damage by fire excepted as hereinafter set forth; shall not, without consent of the Licensor, add to or subtract from such leased machinery as supplied by the Licensor, excepting necessary or proper safety appliances, or allow changes to be made therein, or interfere with the proper operation thereof, or remove or de-face any plates, dates, numbers or in-
·
·
scriptions placed thereon by the Licensor. The Licensee shall promptly notify the Licensor of the need of any repairs or re-newals of said leased machinery, and theLicensee shall at its own expense effectsuch repairs and renewals, purchasing thenecessary renewal parts from the Licensor.The Licensor agrees to furnish promptlysuch renewal parts at prices not in excessof the prices charged by responsible out-side parties for parts of similar design,material and workmanship. If the Licen-sor declines or neglect so to furnishsuch parts, the Licensee may pro-cure them elsewhere , but they shallnot be installed on such machineryuntil they have been inspected andapproved by a representative of theLicensor. The Licensee shall pay for thetime and expenses of such representative."SECTION 14. INHERENT DEFECTS.The Licensor shall remedy and makegood without charge, any inherent de-fects appearing in the materials of saidleased machinery, during one year fromdate of installation .SECTION 15. ACKNOWLEDGINGVALIDITY OF PATENTS.(a) Licensee hereby acknowledges thevalidity of any and all patents that maybe issued upon the said patent applica-tions of the Licensor and of any and allother patents now or during the term ofthis license and lease , owned, controlledEor leased by the Licensor, covering orrelating to the said leased machinery, orto the methods or processes performedbythe said leased machinery, and waivesall rights to justify any breach of thislicense and lease on the Licensee's partby denying the validity of such patents ,or any of them, excepting as to the claimor claims of said patent or patents whichmay be final decree of a court of compe-tent jurisdiction, within the judicial cir-cuit wherein said plant is located, in-cluding appellate courts if appeal istaken, have been declared void , this ex-ception being limited to the particularclaim or claims thus declared void.(b) In case such final decree shall de-clare to be void all or substantially allof the Licensor's patents embodied in andrelating to the said machinery , so thatthe Licensee is thereby evicted from allor substantially all of the benefits of this.license and lease, then and in that casethe Licensee may at its option revoke andterminate this license and lease, in whichevent the Licensee shall thereupon re-store to the Licensor all of the said leasedmachinery and its appurtenances as pro-vided in Section 19 hereof, and shall bethereupon relieved from paying furtherminimum royalties. PROVIDED , how-ever, that until such revocation andrestoration the Licensee shall continue tobe bound by all the covenants and pro-visions of this license and lease .SECTION 16. PROTECTION OF LI-CENSEE FROM INFRINGEMENTCLAIMS(a) The Licensor will at its own expensesave and hold the Licensee harmlessagainst damages and costs recovered inany suits or claims brought against theLicensee for alleged infringement of pat-ents based on the use of the said leasedmachinery, but only to the extent of theroyalties which shall have been paid bythe Licensee during and for the periodof infringement and before the judgmentfor such recovery, said period not to ex-ceed, however, the twenty-four monthsimmediately preceding such judgment.The Licensor shall , upon the written re-quest of the Licensee, defend any suchsuits or claims, unless or until the Li-censor shall elect to effect a settlementthereof. The Licensee shall promptly in-form the Licensor of any such suit orclaim , or any threat or probability thereof,coming to the knowledge of the Licensee,and shall, at the Licensor's expense, fullyand freely aid the Licensor in defendingthe same; and shall further promptly in-form the Licensor of any infringement ofthe Licensor's patents coming to theknowledge of the Licensee.(b) The Licensor shall have the rightto intervene in and defend, as a partythereto, any suit brought against the Li-censee during the term hereof which in-volves or in any way affects the validityof any patent embodied in said leasedmachinery or in any improvement thereoffurnished by the Licensor.(c) In case the Licensor shall be de-layed in the performance of, or berendered unable to perform all or any partof this license and lease , by reason ofstrikes, unavoidable accident, the non-arrival of machines or materials , or if theinstallation or operation of the said leasedmachinery shall be delayed or stopped bythe process or order of any court of com-petent jurisdiction, the Licensor shall notbe liable to the Licensee for any loss ,delay or damage incurred thereby, exceptfor damages recovered for infringementas set forth and limited above in thisSection , PROVIDED, however, that if theright of the Licensee to use the said leasedmachinery, or any part thereof, shall besuspended by reason of an order, decreeor injunction issued by any court of com-petent jurisdiction, then during the con-tinuance of restraint by such order, decreeor injunction , or until the Licensor shallhave substituted other machinery or partsas hereinafter set forth, which said Li-censor agrees to do as promptly as reason-ably possible, the minimum royalty as setforth in Section 11 hereof shall be waived .(d) In the event of such an order, de-or injunction being issued againstany part or parts of said leased machi-nery, the Licensor reserves the right tosubstitute with reasonable promptnessother machinery or parts for those in-volved in the injunction and at no cost orcharge to the Licensee excepting any li-cense fee or royalty which the Licensormay have to pay for the right to make,and license the Licensee to use , such othermachinery or parts. The part or parts sosubstituted shall be of an efficiency sub-stantially equal to that of the part orparts so involved in said order, decree orinjunction and shall immediately becomesubject to all the provisions of this licenseand lease.cree(e) In the event that such order, decreeor injunction shall become permanentagainst any part or parts of said leasedmachinery, and no substitution of machi-nery or parts shall have been made withreasonable promptness as above stated ,then in that event this license and leaseshall cease and terminate in all its pro-visions, and if the said event occurs duringthe first Three (3) years of the term ofthis license and lease, the Licensee shallbe entitled to receive back the said licensefee of Twenty-five hundred (2,500) Dollarspaid by it, after deducting therefrom suchproportion thereof as the elapsed timeunder this license and lease shall bearto the said Three years.SECTION 17. RIGHT OF REVOCATION(a) In case the Licensee shall violateor fail to observe any of the conditionsset forth in Sections 1 , 3 , 6, 7, 8, 9, 10,11, 12, 13 , 20 and 21 of this license andlease , or shall cause the same to be vio-lated, the Licensor shall have the rightat its option, to revoke and terminate ab-solutely, this license and lease upon givingwritten notice to the Licensee of said re-vocation at least thirty (30) days beforethe time when such revocation is to takeeffect.(b) Except as provided in Sections 15,16, 18 and 21 , no termination or revoca-tion whatsoever of this license and leaseunder any Section hereof, nor the use ofthe remedy of injunction , accounting orre-possession shall, however, affect or inany way discharge the liability of theLicensee hereunder, to pay and to con-tinue to pay to the Licensor, the minimumroyalty provided by Section 11 hereof,for and during the entire term of thislicense and lease , including its supple-mental eight year period if entered upon,nor shall any royalty paid by said Licenseebe returned.SECTION 18. COMMUTATION OFMINIMUM ROYALTIESIt is further agreed that in the eventof such revocation set forth in Section 17,the Licensee , in lieu of said obligationtherein provided to pay the said minimumroyalties throughout said entire term , mayat its option wholly discharge said obliga-tion by paying to the Licensor withinsixty days after said revocation , a lumpsum equal to fifty (50) per cent of thetotal minimum royalties which would un-der the license and lease be payable duringthe remainder of said term , including itssaid supplemental period if entered upon ;and provided further, that the Licenseemay at any time during said term , includ-ing said supplemental period, revoke andterminate this license and lease in its op-tion , by giving written notice to theLicensor sixty (60) days beforehand of itsintention so to revoke and by paying tothe Licensor within said sixty days a lumpsum in discharge calculated as above setforth in this Section.SECTION 19 .RE-POSSESSION OFTHE MACHINERY .Upon the termination of this licenseand lease at the end of its initial or sup-plemental period , or sooner at herein pro-vided, the Licensee shall return to theLicensor the said leased machinery andall appurtenances thereof, as covered bythis license and lease , in good condition,reasonable wear and use excepted , by de-livering the same properly crated andpacked f. o . b. cars at any convenien
·
·
freight station near the plant of the Li-censee. If said Licensee shall fail so todeliver the machinery, the Licensor ishereby authorized to enter upon anypremises where the said leased machinerymay be and take possession thereof andremove it.SECTION 20. INSPECTIONDuly authorized agents or employees ofthe Licensor shall at all reasonable timesbe allowed access to the said leased ma-chinery for the purpose of inspecting thesame and its operation and use, and theLicensee shall afford all reasonable facil-ities therefor.SECTION 21. FIRE LOSS(a) In the event that the said leasedmachinery shall be damaged by fire so asto cause a suspension of production there-with the Licensee shall immediately givewritten notice to the Licensor as to theextent and nature of of the damage to thesaid leased machinery, and as to the plansand intentions of the Licensee relative torepairing the damage and resuming opera-tions under this license and lease.(b) In the event of such damage byfire the Licensor, if so requested inthe saidnotice, shall at its own expense and to anextent not exceeding the amount ofinsur-ance received , provide the Licensee withthe machinery or parts thereof necessaryto repair or replace the damaged machin-ery or parts. The Licensee shall at itsown expense promptly and diligently pro-ceed to install the said machinery or partsthereof. From the time when said noticeis received by the Licensor and thereafterduring only such time, not exceeding sixmonths as may be necessary for providingand installing the said machinery or parts,the minimum royalty set forth in Section11 hereof shall be waived.(c) If the Licensee shall not withinsix (6) months after the occurrence ofthe fire rebuild or otherwise repair thedamage and resume operation under thislicense and lease ; or if the Licensee shallfail to resume the payment of royaltieswhen due, then in any of these cases theLicensor shall have the right at its optionto revoke and cancel this license and lease.SECTION 22. BUREAU OF STATISTICSIf the Licensor shall undertake toestablish and conduct a bureau for thecollection, preservation and use of datarelating to the operations and purposesof its licenses and leases, then in thatcase the expense of maintaining such abureau shall be defrayed by proportionateassessments to be made by the Licensormonthly upon its Licensees. The pro-portion to be assessed upon the Licenseeshall be the same as the proportion whichthe number of such licenses and leasesheld by this Licensee at the time of mak-ing such assessments shall bear to thetotal number of sirilar licenses andleases then held by all the Licensees ofthe Licensor in the United States. ThisLicensee hereby agrees to pay the amountso assessed upon it for each month withinfifteen days from the date of receivingstatements therefor from the Licensor.SECTION 23. WAIVING THECONDITIONS.None of the terms of this license andlease shall be held to have been waivedor altered unless such waiver or altera-tion is in writing, signed by an officerof the Licensor, expressly authorizedthereto.SCHEDULE A.Annexed to License and Lease No.HSF-20, Dated June 9, 1924, betweenHartford-Empire Company and Lau-rens Glass Works, Inc., of Laurens,S. C.LIST OF MACHINERY AND ACCESSO-RIES FURNISHED. SINGLE FEEDERNO. 38-1 Hartford Single Feeder equipped withparts shown below adapted to cover rangeof ware specified elsewhere in this con-tract, (Class 144) Shear Cam, PlungerCam, Drop Guide, Ring Holder, TubeHolder, Orifice Support, Plunger Lever,Spout Casing, Tube Clamp, Needle Chuck,Shear Shanks.Not includingthe following parts : Spout,Orifice Ring, Tube, Spout Cover, ArchBlocks , Needle , Shear Blades .1 Plain Sub-Base-Class 144.1 Set Metal Parts for Forehearth-Class144.1 Set Clay Parts for Forehearth-Class144.1 Interceptor Mechanism-Class 144.1 Drive Mechanism excepting Motor , butincluding Chains and Sprockets adaptedto cover range of ware specified elsewherein this contract-Class 144.1 Machine Synchronizer-Class 144.1 Set Single Feeder Operating Tools-Class 144.SCHEDULE BInstallation of Machinery:1. The Licensor will furnish free ofcharge to the Licensee such general super-vision as the Licensor may deem necessaryin connection with the installation of theleased machinery set forth in Schedule"A" annexed hereto .2. The Licensor will , if requested inwriting by the Licensee, furnish a com-petent machinist to direct and assist inthe said installation.3. The Licensor will , if requested inwriting by the Licensee, furnish a com-petent operator to instruct the Licensee'soperators in the operation of the saidmachinery for a period not exceeding twoweeks from the time the said machineryis installed.4. The Licensee will pay to the Licensorthe entire cost of installation under (2)and of instructions under (3) , includingthe traveling and living expenses of themen furnished , plus 10% of the said entirecost.SCHEDULE C.Specification of glassware which maybe made.PERMITTED WARE.The ware to be produced hereundershall comprise (except as expressly ex-cluded below under "Exclusions") all thearticles named under this heading ofPermitted Ware and made of the com-positions of glass now commonly used forsuch articles, whether white, blue, amberor green, and not exceeding thirty (30)ounces in weight.Blown bottles, in so far as the sameare included within the classes of glass-ware now commonly known in the glassindustry as Pressure Ware for (a) arti-ficially carbonated drinks, such as sodas,ginger ales, mineral waters and othersoft drinks ; (b) malt beverages, such asBevo, Pablo and other beer substitutes ;(c) uncharged waters , such as Poland,Pluto and similar waters.Laurens Glass Works, Inc., by (signed)Albert Dial, Pres. Mgr.; Hartford-EmpireCompany by (signed) F. Goodwin Smith,1st Vice Pres.EXCLUSIONSThe following articles are expressly ex-cluded and shall not be produced underthis license :(a) Bulbs and tubing and cane allwhenfor use in the manufacture of incandes-cent electric lamps or for any other per-manently sealed enclosure for electricalpurposes.(b)(c)Signal and optical ware .Ware intended and adapted for usewhere the heat resistance , chemical re-sistance or electrical properties of suchware are of substantial values, providedsuch ware is made from glass having alinear coefficient thermal expansion of lessthan .000006 per degree Centigrade, orcontaining more than five per cent boricoxide , or having an electric strength orthermal endurance or chemical resistancehigher than a glass containing 80% silica;10% sodium oxide ; 5% boric oxide and5% calcium oxide.(d) Ware intended and adapted forholding food in the process of cooking orsterilizing, other than ware intended andadapted for packages for storage and saleof goods or for transportation of goods.(e) Mold-blown articles of glass in sofar as the same are or may be used forelectrical purposes or in connection withelectric illumination.(f) Ware which is pressed and notblown.(g) Milk bottles and nursing bottles.(h) Tumblers; fruit jars; lanternglobes; gas globes ; chimneys; vault lights ;battery jars and battery containers; fishglobes; display jars ; tablet jars; insulatorsand drawn tube and cane.
SCHEDULE D
Annexed to License and Lease No. H. S.F.-20, dated June 9, 1924, between Hart-ford-Empire Company and Laurens GlassWorks, Inc., of Laurens, S. C.RATES OF ROYALTY
·
·
ovember 24, 1924. Laurens Glass Works, Inc. Laurens, S. C. Gentlemen: I thank you for your let-ter of the 22nd and in reply let me saythat we hereby grant to you an extensionof the field of ware specified in your li-censes from us, HSF-20 and HSF-21 asfollows :You are authorized to make under thesaid licenses a total of not over 4000 grossper calendar year under both of said li-censes, of panel bottles not exceeding 14E ounces in weight. The said bottles are tobe sold chiefly to the Globe Medicine Com-pany or to the Standard Drug Company,or both, both of Spartansburg, S. C. Butyou are also authorized , until further no-tice , to sell a part of such total of 4000gross per year to small users of such bot-tles in your vicinity.I trust this will be satisfactory to you.Sincerely yours ,HKS-GPGeneral Counsel.August 22, 1929Laurens Glass Works, Inc.,Laurens, South Carolina.Gentlemen :This letter, upon your acceptance be-low, constitutes a formal confirmation ofthe agreement reached by Mr. Easterbyand Mr. Eldred in regard to additionalfields of ware for Laurens.It is now agreed that Hartford SingleFeeder Licenses and Leases No. HSF-20,HSF-21 , HSF-65, and HSF-99 betweenHartford-Empire Company and the Lau-rens Glass Works, Inc., are amended insuch a fashion as to include the followingware within Schedule C-"Specificationof Glassware Which May Be Made"-ofall the above-mentioned licenses.2.1. Flasks and Liquor Bottles .Blown Jars for (a) Mayon-naise (b) Shrimps (c) SaladDressings (d) Pickles .Very truly yours,HARTFORD-EMPIRE COMPANY-ByF. Goodwin Smith, Pres't.August 22, 1929. The foregoing amend-ment is hereby accepted and agreed to.LAURENS GLASS WORKS, INC.-By C.D. Easterby, Pres.March 1, 1933Mr. E. D. Easterby, PresidentLaurens Glass WorksLaurens, South CarolinaDear Mr. Easterby :TheMr. Pease advised you on February24th of our willingness to broaden yourField of Ware in certain respects .various kinds of ware which you are per-mitted to make appear to be scatteredthrough numerous papers so we considerit advisable to incorporate your entirePermitted Ware into one paper.Therefore, will you note your concur-rence in the form provided below on bothcopies of this letter and return one ofthem to me for our files?Hartford-Empire Company and Lau-rens Glass Works hereby agree thatSchedule C of Licenses and Leases Nos.-9, 1924HSF-20 dated JuneHSF-21 dated June9, 1924HSF-65 dated Auguest 10, 1925HSF-99 dated July12, 1926are hereby amended with respect toSchedule C thereof so that said ScheduleC shall now read as follows-Specification of glassware which maybe made.PERMITTED WAREThe ware to be produced hereundershall comprise (except as expressly ex-cluded below under "Exclusions") all thearticles named under this heading ofPermitted Ware and made of the com-positions of glass now commonly usedfor such articles , whether white, blue ,amber or green, and not exceeding Sev-enty-two (72) ounces in weight.1. Blown jars in so far as the same areincluded within the classes of glasswarenow commonly known in the glass in-dustry as Pressure Ware for-"(a) Artificially carbonated drinks , suchas sodas , ginger ales, mineral watersand other soft drinks(b) Malt beverages, such as beer andbeer substitutes(c) Uncharged waters, such as Poland,Pluto and similar waters .2. Panel Bottles ; Provided that a totalof not over Four Thousand (4,000) gross ofsuch Panel Bottles (not exceeding Four-teen (14) ounces in weight) shall be pro-duced in any one calendar year upon allfeeders licensed by Licensor to Licensee ,and that such bottles shall be sold chieflyto the Globe Medicine Company or to theStandard Drug Company, or both , of Spar-tansburg, South Carolina.3. Flasks and Liquor Bottles.4. Blown jars for mayonnaise, shrimps ;salad dressings ; pickles and peanut butter.5. Bottles for vinegars ; ciders and sy-rups; Provided, however, that the Licenseeshall not produce an aggregate of overTen Thousand (10,000) gross of such bot-tles in any one calendar year under alllicenses and leases outstanding betweenit and the Licensor.Very truly yours,HARTFORD-EMPIRE COMPANYA. T. Safford , Jr. , Secretary.Laurens, S. C. , March 11th , 1933.Laurens Glass Works hereby concurs inand agrees to the foregoing amendment .LAURENS GLASS WORKS , (Signed)E. S. Easterby, President .ATS :RLBLaurens Glass Works,Laurens,South Carolina.Attention Mr. E. D. EasterbyGentlemen :This letter, upon your acceptance, willformally amend your Licenses and Leasesby the addition of Shoo Fly Flasks to yourField of Ware in accordance with theletter of Mr. Pease dated October 24, 1933.Therefore, would you please note yourconcurrence in the form provided belowon both copies of this letter and returnone ofthem to us for our files?It is hereby agreed between Hartford-Empire Company and Laurens Glass Com-pany that Licenses and Leases Nos.HSF-20 , HSF-21 , HSF-65 and HSF-99 (allamended March 1st, 1933) shall each beamended in respect to Schedule C-Speci-fication of Glassware Which May BeMade by the addition thereto of the fol-lowing:"6. Blown Shoo Fly Flasks for CastorOil and Turpentine , not exceeding Four(4) ounces in capacity ."JRH :RLBVery truly yours ,HARTFORD-EMPIRE COMPANY,A. T. Safford, Jr.Laurens, S. C., November 1st, 1933,Laurens Glass Works hereby concurs inand agrees to the foregoing amendment.LAURENS GLASS WORKS, By (Signed)W. D. Easterby, President .March 2, 1934.Laurens Glass Works, Laurens, S. C.Attention Mr. E. D. EasterbyGentlemen:Upon recent consideration of the re-quirement in your Licenses and Leasesfor the payment of minimum royalties ,it was decided that it might be of advan-tage to you to permit a "spread" of roy-alties on your feeders.This would relieve you of the obliga-tion to pay any minimum royalties in anyyear in which the production royaltiesequal or exceed the minimum royalties onall your feeders.It, therefore , is hereby agreed betweenHartford-Empire Company and LaurensGlass Works that the minimum royaltiesprovided for in Section 11 of Licenses andLeases Nos.-HSF-20 dated June 9, 1924HSF-21 dated Jnne 9, 1924HSF-65 dated August 10, 1925HSF-99 dated July 12, 1926and in any subsequent License and Leasecovering a feeder, shall be payable onlyin the amount in which the productionroyalties payable under Section 10 of saidLicenses and Leases for any one year onall feeders, are less than the total of theminimum royalties for such feeders speci-fied in Section 11 of said Licenses andLeases.This agreement shall be effective as ofJanuary 1 , 1934.Would you be good enough to sign bothcopies of this letter and return one ofthem to us for our files?Very truly yours ,HARTFORD-EMPIRECOMPANY ,A. T. Safford , Jr., Secretary .Laursens, S. C. , March 7, 1934.Laurens Glass Works concurs in and ac-cepts the foregoing .LAURENS GLASS WORKS , By(Signed) E. D. Easterby, President.Laurens Glass Works , Inc. ,Laurens, South Carolina.May 7, 1936.Attention : E. D. Easterby , PresidentGentlemen: We have decided to makean adjustment of our standard FeederRoyalty Rates for Blown and Pressed andBlown glassware in weights of One andOne-half (12) Ounces or less as shownin the Schedule of your Feeder Royaltiesattached to both copies hereof.It is understood that all other royaltyrates now in force remain unchanged .This adjustment is to become effectiveMay 1 , 1936, but will not go into effectuntil you sign this letter as requested be-low to show your acceptance of the ad
·
·
justment and the conditions upon which it is made. The same adjustment subject to the same conditions is being offered to all Licensees. Therefore, please sign both copies of this letter, returning one copy to us for our files. This will then serve to amend your Feeder Royalty Rates to agree with the attached Schedule. Very truly yours, HARTFORD-EMPIRE COMPANY By (S) Arthur T. Safford, Jr., Secretary. Laurens, S. C., May 9, 1936.-Laurens Glass Works, Inc., hereby accepts the foregoing amendment subject to all the conditions thereof. LAURENS GLASS WORKS, INC., By (S) E. D. Easterby, President. Schedule of Feeder Royalties attached to letter to Laurens Glass Works, Inc., dated May 27, 1936. Rates of Royalty The weights below specified are the weights of the finished artcles - Blown or Pressed and Blown:
(Exhibit No. 121)
(Received in evidence Dec. 12, page 208)
The contract between the Hart-ford-Empire Company and theWhitall Tatum Company ofMillville, New Jersey, coveringroyalties.January 21 , 1935.Whitall Tatum Company,Millville, New Jersey.Attention Mr. George S. BaconGentlemen:To carry out the changes in lehr roy-alties which Mr. Pease mentioned in hisletter to you of January 10th, an amend-ment to your General Lehr Agreementdated September 19, 1933 is necessary.For this purpose this letter will be sufficient, and we should be obliged if you would note your concurrence in the form provided below and return one copy of this letter (of which two are enclosed) to us for our files. Therefore, Hartford-Empire Company and Whitall Tatum Company hereby agree, in consideration of the mutual ad-vantages accruing to each, that the Gen-eral Lehr Agreement of September 19,1933 shall be amended , effective as ofJanuary 1 , 1935, by rewriting Section 9thereof to read as follows-"SECTION 9"Royalties-Minimum Royalty-Reports"(a) Whitall Tatum shall pay to Hart-ford during the term of this General LehrAgreement a royalty of Two and One-halfDollars ($2.50) per machine for each day,or any part thereof, during which each ofsaid leased machines is used. Such royaltyshall be paid monthly at Hartford's officein New York funds on or before the fif-teenth day of each month for the use ofsaid leased machines during the precedingcalendar month."(b) Whitall Tatum shall pay a mini-mum royalty under this General Lehragreement of not less than Four HundredDollars ($400) per year on each machine,payable in New York funds at Hartford'soffice on or before the fifteenth day ofJanuary for the year last preceding dur-ing the entire term of this General LehrAgreement.
"PROVIDED that in the event Whitall Tatum shall pay in any one year under paragraph (a) of this Section 9 royalties in the sum equal to or exceeding Four Hundred Dollars ($400) , multiplied by the number of machines under license for that year, no royalties shall be payable under this paragraph (b) for that year. "(c) Whitall Tatum shall, on or before the tenth day of each month, furnish to Hartford, upon blanks provided by the latter, a properly certified statement showing the number of days that the leased machines are operated during the preceding calendar month ."
Very truly yours, HARTFORD-EMPIRE COMPANY JRH:RLB A. T. Safford, Jr. Secretary Millville, New Jersey Jan. 26, 1935 Whitall Tatum Company hereby con-curs in and agrees to the foregoing amend-ment.
WHTALL TATUM COMPANY By George S. Bacon Vice-President
GENERAL LEHR AGREEMENT Between HARTFORD-EMPIRE COMPANY And WHITALL TATUM COMPANY THIS AGREEMENT made this 19th day of September, 1933, by and between Hart-ford-Empire Company, a corporation or-ganized under the laws of the State ofDelaware and having its principal placeof business at Hartford, Connecticut,(hereinafter called "Hartford") , and Whit-all Tatum Company, a corporation or-ganized under the laws of the State ofNew Jersey and having its principal placeof business at Millville, New Jersey, (here-inafter called "Whitall Tatum"),WHEREAS the parties hereto entered
into a certain Supplemental Lehr Agree-ment dated October 1 , 1925 , which pro-vided for the licensing of lehrs by Hart-ford to Whitall Tatum,WHEREAS pursuant to said Agreementcetrain lehrs have been licensed by Hart-ford to Whitall Tatum under certainLicenses and Leases.WHEREAS the parties have entered intoa certain general Feeder Agreement ofeven date herewith providing for thelicensing of Hartford Single Feeders toWhitall Tatum, andWHEREAS the parties wish to cancelsaid supplemental Lehr Agreement andsaid Licenses and Leases and to enter anew agreement with respect to the Licens-ing and leasing of said lehrs,NOW, THEREFORE, in consideration ofthese premises and the covenants androyalties hereinafter set forth, the partiesagree as follows-Section 1-Cancellation of OutstandingAgreement and Licenses(a) The Supplemental Lehr Agreementbetween Whitall Tatum and Hartford-Empire Company dated October 1 , 1925, ishereby cancelled .(b) The following Licenses and Leases,dated as below, and covering HartfordLehrs as specified , are hereby cancelled -
SECTION 2-FORM OF LICENSE AND LEASE . The Hartford Lehrs referred to in Sec-tion 1 above, to-wit Nos. 32, 82, 83, 110,111, 114, 115, 157, 142, 166, 180 , 184, 185,186, 199 , 200, 233 , 234, 232, 239, 249, andfurther described in Schedule A annexedhereto, (hereinafter called "leased ma-chines") are hereby agreed to be fromthe date hereof and are hereby leasedand the use thereof licensed under thispresent General Lehr Agreement by Hart-ford to Whitall Tatum, and shall here-after be entirely subject to the termsof this General Lehr Agreement, andshall no longer be subject to the agree-ments or licenses and leases above namedin Section 1.The leasing and licensing of all thelehrs above designated shall be furtherevidenced for each of said leased ma-chines by the issuance by Hartford toWhitall Tatum of an individual license
·
·
LEFT OFF PAGE 335 [not finished]