PUBLIC VERSION
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, D.C.
`
`In the Matter of
`
`Inv. No. 337—TA—1 123
`
`
`
`
`CERTAIN CARBURETORS AND
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`PRODUCTS CONTAINING SUCH
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`CARBURETORS
`
`
`ORDER NO. 56:
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`INITIAL DETERMINATION GRANTING JOINT MOTION OF
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`COMPLAINANT WALBRO, LLC AND RESPONDENT GENERAC
`
`POWER SYSTEMS, INC. TO TERMINATE THE INVESTIGATION
`BASED ON SETTLEMENT AGREEMENT PURSUANT TO
`
`COMMISSION RULE 210.21(b)
`
`(June 4, 2019)
`
`On May 20, 2019, Complainant Walbro, LLC (“Walbro”) and Respondent Generac Power
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`Systems, Inc. (“Generac”) filed a joint motion (1123-043) to terminate the Investigation as to
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`Generac based on a settlement agreement.1 The Commission Investigative Staff (“Staff”) supports .
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`the joint motion.
`
`The Commission’s Rules provide that “[a]ny party may move at any time for an order to
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`terminate an investigation in whole or in part as to any or all respondents on the basis of settlement,
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`a licensing or other agreement .
`
`.
`
`. .” l9 C.F.R. § 210.21(a)(2); see also Certain Organizer Racks
`
`and Prods. Containing Same, Inv. No. 337-TA-466, Order No. 7 at 2 (Feb. 19, 2001). In the instant
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`proceeding, the motion to terminate is based upon a Settlement Agreement, which appears to
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`resolve the dispute between Walbro and Generac. A copy of said agreement is attached hereto as
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`Exhibit 1. Consistent with 19 CPR. § 210.21(b)(1), Walbro and Generac confirm that “[a]part
`
`‘
`
`1 In accordance with Commission Rule 210.21(b), Walbro and Generac filed a public version of the settlement
`agreement.
`'
`
`

`

`from this Settlement Agreement, there are no agreements, written or oral, express or implied
`
`between the Parties concerning the subject matter of the investigation.” (Mot. at 2.)
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`In any initial determination terminating an investigation by settlement agreement or
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`consent order, the administrative law judge is directed to consider and make appropriate findings
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`regarding the effect of the proposed settlement on the public health and welfare, competitive
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`conditions in the United States economy, production of like or directly competitive articles in the
`
`United States, and UnitedVStates consumers. 19 CPR. § 210.50(b)(2)§ Walbro and Generac assert
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`that “it is in the interest of the public and administrative economy to grant this motion [because]
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`Commission policy and the public interest generally favor termination by settlement.” (Mot. at ’2.)
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`Staff concurs. (Staff Resp. at 3 (“[T]he Staff submits that the public interest generally favors
`
`settlement to avoid needless litigation and to conserve public and private resources.”).) The
`undersigned agrees that termination of this Investigation does not impose any undue burdens on
`
`the public health and welfare, competitive conditions in the United States economy, production of
`
`like or directly competitive articles in the United States, or United States consumers.
`
`Accordingly, it is the undersigned’s Initial Determination that the joint motion (1123-043)
`
`to terminate this Investigation with respect to Generac based on a settlement agreement be granted.
`
`This Initial Determination, along with supporting documentation,
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`is hereby certified to the
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`Commission.
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`

`

`Pursuant
`
`to 19 C.F.R.§ 210.42(h),
`
`this
`
`Initial Determination shall become the
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`determination of the Commission unless a party files a petition for review of the Initial
`
`Determination pursuant to 19 C.F.R. § 210.43(a), or the Commission, pursuant to 19 C.F.R.
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`§ 210.44, orders, on its own motion, a review of the Initial Determination or certain issues herein.
`
`SO ORDERED.
`
`2?
`
`Charles E. Bullock
`
`Chief Administrative Law Judge
`
`

`

`EXHIBIT 1
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`

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`PUBLIC VERSION
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`SETTLEMENT AND LICENSE AGREEMENT
`
`This Settlement and License Agreement (“Agreement") is entered into as of the
`
`Effective Date by and between Walbro, LLC, a limited liability company organized under the
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`laws of Delaware, having a place of business at 6242 Garfield Avenue, Cass City, Michigan
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`48726 (“Walbr'o”) and Generac Power Systems, Inc, a Wisconsin Corporation with a place
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`of basiness located at S45W29290 Highway 59, Waukesh‘a, Wisconsin 53189 C‘Genera‘e").
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`Walbro and Generac may each be referred to as a “Party” and, collectively, as the “Parties.”
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`WHEREAS, Walbro is the owner of all right, title, and interest in the US. Patent Nos.
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`6,394,424 (the ‘424 Patent), 6,439,547 (the '54? Patent), 6,533,254 (the ’254 Patent), 6,540,212
`
`(the ’212 Patent) and 7,070,] 73 (the '173 Patent). Each of these patents is a “Walbro Patent”,
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`and collective, the patents are the “Walbro Patents”;
`
`WHEREAS, Wanro has filed a Complaint with the United States International Trade
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`Commission styled as In the Matter of Certain Carburetors and Products Containing Such
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`Carburetors, Inv. No. 337-TA-l 123 (“the Investigation");
`
`WHEREAS, Walbro, in its Complaint, alleged that Generac violated Section 337 of the
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`Tariff Act of 1930 (19 USC. § 1137) because Generac imported into the United States and/or
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`sold within the United states afier importation Generac‘s 33cc 4-Strolte Pump having a Ruixing
`H629 carburetor and DR Mini Tiller Cultivator Pilot-4C (Kl-Cycle) 40 cc having a Ruixing H629 '
`
`carburetor,
`
`'
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`WHEREAS, Generac denies that it has infringed the claim of any Wallaro Patent,
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`and denies that it is liable to Walbro for any infringement or the payment of damages. However,
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`Generate also acknowledges that it imported, or had imported, into the United States and/or sold,
`or had sold, and is selling, within the United states after importation the Generac Accused
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`Products;
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`- WHEREAS Walbro and Generac desire to enter into. a License for the Walbro Patents; and
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`WHEREAS, Walbro and Generac desire to simultaneously settle all claims and
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`counterclaims presented in, or that are related to, or that may be related to, the Investigation,
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`and also terminate the Investigation only with respect to the Generac Accused Products (as
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`defined below) or other products that Generac has previously made, used, or offered to sell.
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`NOW, THEREFORE, the Parties agree as follows:
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`oroavseaooztalmsmcas
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`Page 1 of 12
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`PUBLIC VERSION
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`1.
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`Ll.
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`1.2.
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`Definitions
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`“Effective Date" means the date the last Patty executes this Agreement.
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`“Generac Accused Products” shall mean Generac‘s 33cc 4-Stroice Pump having a
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`Ruixing H629- 1Y1 carburetor and DR Mini Tiller Cultivator Pilot-4C (4-Cycle) 40‘ cc having
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`a Ruixing H629-1C4 carburetor.
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`1.3.
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`“Licensee” means Genet-ac Power Systems, Inc. and all of its subsidiaries (including.
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`Country Homes Products, Inc, “Cl-lP"). also referred to as “Genome.”
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`1.4.
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`“Licensed Patents” means U.S. Patent Nos. 6,394,424 (the '424 Patent). 6,439,547 (the
`
`'54? Patent). 6,533,254 (the ’254 Patent). 6,540,212 (the ’212 Patent) and 7,070,173 (the ’l73
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`Patent) and any reissue or extension thereof which also may be referred to as the “Walhro
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`Patents.“
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`1.5.
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`“Licensed Products” means the Generac Accused Products and Subsequently
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`Identified Accused Products.
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`1.6.
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`“Subsequently Identified Products” means any product other than the Genome
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`Accused Products that Walbro later alleges and Generac agrees is covered by at at least one
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`claim of any of the Licensed Patents: during the period in which it incorporates a carburetor
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`that practices at least one claim of any of the Licensed Patents.
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`2.0.
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`License Grant
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`2.].
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`Subject to the terms and conditions of this Agreement, until expiration of each of the
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`Licensed Patents, Walbro grants a non» exclusive, non-transferable, irrevocable, perpetual.
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`worldwide, license to Licensee:
`
`(a)
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`To design, make, use, operate, sell, offer for sale, market, lease, distribute, exploit,
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`export, or import any Licensed Products; and
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`(b)
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`To have all or part of the Licensed Products. or portions thereof made or designed
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`by a third patty for the use, sale, offer for sale; marketing. leasing, exploitation, exportation.
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`importation, distribution or other transfer by or on behalf of‘ Licensee, provided that any
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`individual, separate component portions of a Licensed Product referred to herein are used,
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`sold, offered for sale, marketed, leased, exploited, exported, imported or distributed only
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`when contained within a Licensed Product.
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`I
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`2.2.
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`2.3.
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`Generacshall have no right to sublicense any of the Walbro Patents to any other entity
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`Commencing within 120 days after the Effective Date,
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`to the extent
`
`that Licensee
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`010-875M67JSIAMERlCAS
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`Page 2 of i2
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`

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`PUBLIC VERSION
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`determines that any Licensed Product practices any valid claim of the Licensed Patents, Licensee
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`will take reasorrabte steps to include such Licensed Patents, in any marking of such Licensed
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`Products consistent with the requirements of 35 0.5.0 §287(a).
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`3.0
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`Payment
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`3.2
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`Royalty. Unless a Generac supplier has already paid a license fee or is obligated to do
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`so, Licensee will pay Wulbro a running royalty :3ij for each Licensed Product having a rotary
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`valve carburetdr and [:I for each Licensed Product it sells afier the Effective Date having a
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`butterfly valve carburetor provided that no royalty shall be due for any carburetor for which a
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`stipulation has been executed by Walbro in which the carburetor is identified as noninfiinging in
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`the Joint Stipulation Regarding Noninfn'ngement dated October 31. 2018. The parties hereto agree
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`with the language specifically set forth in the Joint Stiplation Regarding Noninfiingement that
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`model number is not alone detcmtinativc of infringement or nonint‘ringeinent:~ Rather, the
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`configurations of any specific carburetor alone determines infidngement or noninfi'ingcment. The
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`running royalties shall be calculated and paid on all of Licensee’s: sales of Genome Accused
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`Products sold on or afier the Effective Date. The running royalties shall be calculated and paid on
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`all of Licensee‘s sales of Subseqently Identified Products alter the Effective Date from the date of
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`first sale. The duty to pay a royalty ends on the date the last of the Licensed Patents expirm or
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`when all claims alleged to be infringed are declared invalid or the patents are declared
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`unenforceable.
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`Form of Payment. The. payment shall be by ACE transfer to Walbro using the
`3.3
`following instructions:
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`010—87594303213MMEMA5
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`Page 3 of 12
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`PUBLIC VERSION
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`Swifl
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`ABA Recline No.
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`3.4
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`Dates of Payment: Effect of Payment. licensee will pay the royalties due under paragraph
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`3.2 to Walbro twice per year. The royalty shall be paid to Walbro on or before February 15 (for the period
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`of July l-December 3i of the preceding year) and August 15 (for the period of January 1 through June 30
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`of the current year) each year until January 14, 2023 or until the Licensed Patents are no longer in effect,
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`whichever is sooner, and made by ACH transfer as set forth in Section 3.3, unless Walbro notifies Genet-ac
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`of different ACH payment instructions. Payment of the royalty exhausts all claims that Walbro has against
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`Genome, its suppliers, custorners or end~users for making, using, offering for sale, selling and importing
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`into the [1.8. of the Licensed Products under the Walbro Patents for those products for which a'roy'alty has
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`been paid.
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`3.5
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`Royalty Audit. Licensee shall keep complete, true and accurate books and records which
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`shall contain all information that may be necessary to demonstrate Licensee’s compliance with
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`this Agreement, including without limitation, for the calculation of royalties, for a period of three
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`(3) years after the termination of this Agreement. Once per calendar year, and upon thirty (30)
`
`days written notice, walbro‘s independent auditor, may inspect Licensee’s books and records at
`Licensee‘s place of business to verify the amount of sales of Licensed Products. Any such audit
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`will be conducted duringnorrnal business hours by Walbro's independent and certified public
`accountant reasonably acceptable to Licensee and selected and paid for by Walbm. Licensee shall
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`cooperate in any such audit. In the event of any royalty underpayment, which underpayment has
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`not theretoforc been rectified, Licensee shall promptly pay all amounts overdue, plus interest in
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`the amount of five percent (5%) per annum.
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`If such underpayment was more than 10% of the
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`amount actually overdue,
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`then Licensee shall pay for
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`the fees and cost of the audit.
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`Notwithstanding the foregoing, any audit may not take place during a period of time between the
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`end of any fiscal quarter and forty-five days thereafter.
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`01 N759608fl3/AMERECAS
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`Page 4 of12
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`PUBLIC VERSION
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`3.6
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`Non-Refundable. The payments made pursuant to this Agreement arenot refiznd‘able for
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`any reason, including but not limited to whether any or all of the claims of any Walbro Patent is
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`held invalid or unenforceable.
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`osmrss-aoezmmeémm
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`Page 5 Mn
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`PUBLIC VERSION
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`4.0.
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`Releases and Termination of the Investigation
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`4.]
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`Release of Generac. Subject to the terms and cenditions set forth in this Agreement,
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`Walbro on behalf of itself, its successors and assigns, and any person or entity controlled by
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`Walbro, releases, acquits, and forever discharges Generac and every parent company or
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`subsidiary of Generate, and each of their respective current and former officers, directors.
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`shareholders, employees, agents, and downstream resellers, collectively referred to as the
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`“Genome Released Parties,“ from all claims and causes of action of any kind that Wall-ire
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`may now have against any or all ofthe Generac Released Parties, that arose on or before the
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`Effective Date, and relates to the making, using, importatiori, offering for sale, or sale, of the
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`Licensed Products and any other products.
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`4.2
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`Release of Walbro. In consideration of the terms and conditions set forth in this
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`Agreement, Generac, on behalf of itself, its successors and assigns, and any person or entity
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`controlled by Generac, releases, acquits, and forever discharges Walbro and every parent
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`company or subsidiary of Walbro, and each of their respective current and former officers,
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`directors, shareholders, employees, agents, and downstream resellers, collectively referred
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`to as the ”Walbro Released Parties," frorn all claims and causes of action of any kind that
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`Generac may now have against any or all of the Walbro Released Parties, that arose on or
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`before the Effective Date, and relates to the negotiation of this Agreement, and the
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`Investigation, up to the Effective Date.
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`4.3
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`Termination of the Investigation.3;
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`[:3 Walbro agrees to mew: to terminate the Investigation with respect to Generac and the
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`Generac Accused Products, and release all claims against The Home Depot, but only as it relates
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`to the sale of the Generac Accused Products; each of Walbro and Generac agree to timely execute
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`any papers necessary to accomplish the termination, including Generac's joining a mutually agreed
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`upon motion to terminate. Walbto covenants not to sue the Generac Released Parties for
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`infringement of any of the Licensed Patents or seek to enjoin the sale of the Licensed Products,
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`whether in an ITC investigation or otherwise. Walbro will assist Generac in the event that any of
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`its finished goods are barred from entry into the US. due to a general exclusion order excluding
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`products that infringe any of the Licensed Products.
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`Page 6 of 12
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`O Ill-8759606 2I3IAMERlCAS
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`

`

`PUBLIC VERSION
`
`\
`
`Term and Termination
`
`This Agreement is effective as of the Effective Date, and shall continue for the entire
`
`5.0
`
`5.1
`
`life of the insole—expire of the Walbro Patent, or so long as any Walbro Patent may be lawfully
`
`asserted or enforced, unless terminated earlier.
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`5.2
`
`This Agreement may be terminated by mutual written agreement of the Parties.
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`6.0.
`
`Confidentiality
`
`6.1.
`
`Each Party agrees not
`
`to disclose this Agreement, or the terms or conditions
`
`contained herein, to any third party without the prior written consent of the other Party; except
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`that, on or afier the Effective Date:
`
`(i) Disclosure is permissible to the Staff Attorney and to meet the requirements of any ITC
`
`rule, including but not limited to Rule 210.2l ;.
`
`(ii) Disclosure is permissible to each party named in the [TC proceeding;
`
`(iii)Disclosure is permissible in response to a discovery request in litigation or in
`
`response to a proper subpoena provided that this Agreement is produced under a
`
`protective order or confidentiality agreement at the highest level of protection allowed
`
`in the protective orderor confidentiality agreement. Disclosure is also permitted if
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`required to comply with a court order, or order of‘the International Trade Commission;
`
`(iv)
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`Disclosure is permissible to enforce a Party‘s rights under this Agreement, or
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`otherwise as may be required by any law,
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`regulation, or rule of court,
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`state, local.
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`municipal or other agency or commission, including but not limited to any and all, laws.
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`statutes, regulations and/or requirements governing and/or applicable to publicly-traded
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`companies provided that any such disclosure be limited to the information that in good
`faith is believed to be necessary to satisfy such requirements}
`
`(v)
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`Disclosure is permitted if the disclosing Party provides the other Party with at
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`least fourteen (l 4) days‘ notice prior to the disclosure and reasonable steps are taken by
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`the disclosing Party to maintain the confidentiality of this Agreement; and
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`(vi)
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`Each Party may disclose this Agreement and its contents to the extent reasonably
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`necessary, on a confidential basis, to its current or future accountants, attorneys, advisers,
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`suppliers, and manufacturers.
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`Page 7 of 12
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`m0~8759606213IAMERlCA5
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`

`

`PUBLIC VERSION
`
`(vii)
`
`Each Party may disclose this Agreement to a third party as part of’a financial
`
`transaction of the Party related to a corporate refinancing, the sale or merger of the Party,
`
`or the sale of substantially all of the Party's assets or stock.
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`(viii) This Agreement may be attached as an exhibit to any jointly filed motion of the
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`’ Parties in the Investigation, however any financial terms will be maintained as confidential
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`business information under the Protective Order.
`
`7.0
`
`Infringement Actions. Walbro shall have the sole discretion to determine whether any
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`third party (except for customers of Licensee's linemen Products) is infringing the Licensed
`
`Patents, and shall have the sole discretion and right to file suit for infringement relating to the
`
`Licensed Patents.
`
`8.0 Warranties and Responsibilities
`
`8.1. Walbro represents and warrants that: (a) it has the right, power and authority to enter
`
`into this Agreement and to fully perform its obligations hereunder; (b) the making of this
`
`Agreement by it does not and will not conflict with any agreement between it and any other
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`Party; (e) the person executing this Agreement on behalf of Walbro is duly authorized to do
`‘30; (d) no consent, approval or authorization of any third party is required in order for Walbro
`
`to enter into. execute or perform this Agreement; and (e) aside From Generac Accused
`
`Products, Walbro is not aware of any existing product manufactured or sold by Generac that
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`practices the Licensed Patents.
`
`8.2.
`
`Generac represents and warrants that: (a) it has the right, power and authority to enter
`
`into this Agreement and to fully perform its obligations hereunder; (b) the making of this
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`Agreement by it does not and will not conflict with any agreement between it and any other
`
`party; (c) the person executing this Agreement on behalf of Generac is duly authorized to do
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`so; and (d) no consent. approval or authorization of any third party is required in order for
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`Generac to enter into, execute or perform this Agreement.
`
`A
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`8.3
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`Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR- THAT
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`PORTION OF ANY LOSS, CLAIM, EXPENSE, OR DAMAGE DETERMINED TO BE
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`CAUSED BY, CONTRIBUTED BY, 0R ARISING OUT OF, THE ACTS 0R OMISSIDNS
`
`OF THE OTHER PARTY 0R THIRD PARTIES, WHETHER NEGLIGENT 0R
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`leHiWMOBZ/lllAMERlC-AS
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`Page 8 of 12
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`PUBLIC VERSION
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`OTHERWISE. LIABILITY FOR ALL CLAINIS WHETHER IN CONTRACT, TORT
`
`(INCLUDING SOLE OR CONCURRENT NEGLIGENCE), OR OTHERWISE, ARISING
`
`FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT
`
`OF ROYALTIES PAID BY LICENSEE TO WALBRO HEREUNDER.
`
`8.4
`
`Limitation of Indirect Damages.
`
`IN NO EVENT SHALL EITHER PARTY BE
`
`LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY SPECIAL,
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`INCIDENTAL, CONSEQUENTIAL. MULTIPLE, OR OTHER SUCH INDIRECT
`
`DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUES OR
`
`PROFITS), WHETHER ARISING OUT OF OR AS A RESULT OF BREACH OF
`
`CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY
`
`OR OTHERWISE EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
`
`DAMAGES.
`
`9.0 Miscellaneous Provisions
`
`9.]
`
`Assignment of Agreement. The Parties shall not assign or otherwise transfer this
`
`Agreement, or any ponion thereof, except that the Parties may assigi or delegate this Agreement
`
`in whole, without the consent of the other Party, in the event of a merger, reorganization, re-
`
`financing, or sale of all or substantially all of its assets of the Party, or by operation of law.
`
`9.2
`
`Assignment of Patents. Walbro may assign or grant any exclusive right under the Walbro
`
`Patents, but only provided that such assignment or grant is made subjecl to the terms of this
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`Agcemcnt.
`
`9.3
`
`Patent Validity Challenges. Licensee agrees that on or aficr the date of the execution of
`
`this Agreement, ii will not on its own initiative take, encourage, authorize or cooperate with any
`
`action (including voluntarily providing any information and/or documents) to challenge the
`
`validity of the Licensed Patents in any tn'bunal, except (1) in the event that Walbro asserts or files
`
`any claim ofinfringement against Licensee, (2) as compelled by law, (3) and/or as otherwise stated
`
`in this Agreement. If Licensee does challenge the validity of any Licensed Patent in any tribunal
`
`in violation of this section, then this License shall terminate as to each such Licensed Patent
`
`immediately upon the initiation of such challenge to its validity.
`
`9.4
`
`Limitations Not Set Forth. Neither Party makes any representations, extends any
`
`warranties, of any kind, assumes any reoponsi‘oilily or obligations whatever, or confers any
`
`0108 TSWWJIAMERICAS
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`Page 9 of II
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`

`

`PUBLIC VERSION
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`right by implication. estOppel 0r otherwise, other than the rights and warranties expressly
`
`granted in this Agreement. Nothing contained in this Agreement shall be construed as. limiting
`
`the rights which the Parties have outside the scope of the covenants, immunities. and releases
`
`granted hereunder, or contractually restricting the right of either Party to make, have made,
`
`use, lease, license, sell, offer for sale, import, distribute, or otherwise dispose of any particular
`
`product not subject to the covenants herein.
`
`,
`
`9.5
`
`Notice. All notices, reporting and other communications hereunder shall be in writing
`
`and shall be deemed given (a) when received, it delivered personally, via overnight courier,
`or via facsimile. or (b) five (5) business days after mailing, if mailed by registered or certified
`mail, return receipt requested, to the Parties at the following addresses (or such addresses as
`
`they may hereafier specify by a notica complying herewith):
`
`For Walbro:
`
`-
`
`Copies to:
`
`Ed Duplaga
`Vice President, General Counsel
`and Secretary
`Walbro LLC
`6242 Garfield Avenue
`Cass City, MI 48729
`Telephonezgsg—svénoss
`Emaikedu la awwalbroggm
`
`'
`
`Richard W. Hol’fmann
`Reining Ethington; PC
`755 W. Big Beaver Rd., Suite 1850
`Troy, MI 48084
`/
`Telephone:
`(248) 689—3500
`Email:
`"W
`
`For Generac:
`
`Copies to:
`
`,
`Raj Kanuru
`Sr. Vice President, General Counsel
`Generate Power Systems, Inc.
`S45W29290 Hwy 59
`-Waul<esha WI 53189
`Telephone: (262)644-481 1
`Email: raj.kanum@generac.com
`
`’
`
`Steven M. Auvil
`Squire Patton Boggs (US) LLP
`4900 Key Tower, l2? Public Square
`Cleveland, Ohio 44} 14
`Telephone: (216) 479-8500
`Email:
`stevennuvilg’z'bsguiregbeom
`
`9,6
`Changes in Address. The Parties agree to notify the other Party in writing of any changes
`in address or attorney identified herein.
`
`9.7
`
`Choice of Law; Venue. The Parties agree that any controversy or claim arising out of or
`
`relating to this Agreement. or the breach thereof, shall be interpreted, enforced, and governed by
`
`01M769u60823/AMERICAS
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`Page 10 of 12
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`PUBLIC VERSION
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`the laws of the State of Michigan, without regard to its principles of conflicts of laws The Parties
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`agree that any and all disputes arising under this Agreement shall he presented in the state or
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`federal court located within the geographic area defined by the Eastern District of Michigan, as
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`appropriate, and that both Parties consent to such court’s jurisdiction and waive any right to contest
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`personal jurisdiction or venue in such courts.
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`9.8
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`Integration. This Agreement contains the entire and only understanding between the
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`Parties with respect to the subject matter hereof and supersedes any prior or collateral agreements.
`negotiations and communications in connection with the subject matter covmed herein, whether
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`oral or written, and any warranty, representation, promise, or. condition in connection therewith
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`not incorporated herein shall not be binding upon either Party. The Parties ages that
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`this
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`Agreement sets forth the entire agreement and understanding between the Parties as to the subject
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`.
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`matter hereof and merges all prior discussions between them; Neither of the Parties shall be bound
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`by any warranties, understandings, or representations other than asexpreesly provided herein.
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`9.9
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`Severability. The Parties agree that if any particular provision of this Agreement is
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`judicially determined to be invalid. illegal or unenforceable in any respect for any reason, the
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`remainder of this Agreement shall remain in full force and effect and the prevision(s) in question
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`shall be reformed so as to as nearly as possible achieve the purpose ofthe provision(s) in question.
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`9.10
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`Effect on Successor and Assigns. To the extent this Agreement
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`is assignable, this
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`Agreement shall bind and inure to the benefit of the Parties hereto, and their successors and as'signs.
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`9.11
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`No Joint Venture. In all matters relating to this Agreement, the Parties are independent
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`contractors. Neither Party will represent that it has any authority to assume orcreate any obligation,
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`express or implied, on behalf of the other Party.
`
`9.12 Condition of Binding Agreement; Amendments. This Agreement shall not be binding
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`upon the Parties until it has been signed below by or on behalf of each Party. The Parties agree
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`that no oral modifications to this Agreement shall be legally binding on either Party.‘ This
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`Agreement may only be amended in writing, signed by the Parties. The waiver or failure of either
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`Party to exercise in any respect any right provided for such Party herein shall not be deemed a
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`waiver of any further tight hereunder.
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`9.13
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`Interpretation. The headings and designated sections of this Agreement are inserted for
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`convenience of reference only and are not intended to bee part of or to affect the meaning or
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`interpretation of this Agreement. The Parties have participated jointly in the negotiation, of this
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`01087596082131AMERlCAS
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`Page ii of 12
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`PUBLIC VERSION
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`Agreement. In the event an ambiguity or question of intent or interpretation arises, the Agreement
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`shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall
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`arise favoring or disfavoring any Party by virtue ofthe authorship of any of the provisions of this
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`Agreement.
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`9.14 Waiver. No relaxation, forbearance, delay or negligence by any Party in enforcing any of
`the terms and conditions of this Agreement, or the gaming of time by any Partyto another, shall
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`operate as a waiver or prejudice, affect or restrict the rights, powers, or remedies of any Party
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`hereto.
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`9.15 Counterparts and Facsimile. This Agreement may be executed on facsimile or scanned
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`copies in multiple counterparts, each ofwhioh shall be deemed an original and all ofwhich together
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`shall constitute one and the same Agreement.
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`IN WITNESS WHEREOF,
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`the Parties have executed this Agreement through their duly
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`authorized representatives as of“ the Effective Date set forth above:
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`WALBRO LLC.
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`NAME :va/54g? [W//
`TITLE m” flu:c‘zgaf é/v’effigy/ZWW/
`DATE:
`
`
` (“21492 L2 aux /
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`lé'a
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`J?
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`GENERAC POWER SYSTEMS, WC.
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`3 %fl /
`NAME: fl lei #m/Jiagw;
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`
`0108759-666213MME RICAS
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`Page 12 of I2
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`61’?
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`CERTAIN CARBURETORS AND PRODUCTS
`CONTAINING SUCH CARBURETORS
`
`Inv. No. 337-TA-1123
`
`'
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`Certificate of Service — Page 1
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`1, Lisa R. Barton, hereby certify that the attached ORDER NO. 56 has been served by
`hand upon the Commission Investigative Attorney, Vu Bui, Esq., and the following parties as
`indicated, on June 4, 2019.
`
`
`
`
`Lisa R. Barton, Secretary
`US. International Trade Commission
`500 E Street SW, Room 112
`
`Washington, DC 20436
`
`
`
`On Behalf of Complainant Walbro, LLC:
`
`Richard W. Hoffmarm, Esq.
`REISING ETHINGTON, PC
`755 W. Big Beaver Rd., Suite
`Troy, MI 48084
`
`.
`
`ia Express Delivery
`,
`E] Via First Class Mail
`D‘Other'
`
`C] Other'
`
`.On Behalf of Lowe’s Com anies Inc.: _
`Joshua B. Pond, Esq.
`' D V a Hand Delivery
`KILPATRICK TOWNSEND & STOCKTON LLP
`.
`’
`ia Express Delivery
`607 14TH Street, NW, Suite 900
`1:] Via First Class Mail
`Washington, DC 20005
`El Other‘
`On Behalf of Res - ondent Amazon.com Inc.: _
`Stefani E. Shanberg, Esq.
`» ia Hand Delivery
`MORRISON & FOERSTER LLP
`Via Express Delivery
`425 Market Street
`_
`CI Via First Class Mail
`San FranCISco, CA 94105
`III Oth- .
`On Behalf of Res ondent MTD Products Inc.: _
`Kathryn L. Clune, Esq.
`C]
`’ ia Hand Delivery
`CROWELL & MORING LLP
`I Via Express Delivery
`1001 Pennsylvania Avenue, NW '
`E] Via First Class Mail
`Washington, DC 20004-2595
`
`‘
`
`»
`
`

`

`On Behalf of Respondents Techtronic Industries Co.
`
`
`
`
`Ltd. Of Hong Kong d/b/a Techtronic Industries Power
`
`E ' ment and The Home De n at Inc.:
`
`
`
`Sean C. Cunningham, Esq.
`DLA PIPER LLP (US)
`fl Via Express Delivery
`
`
`
`401 B Street, Suite 1700
`D Via First Class Mail
`
`
`
`San Diego, CA 92101
`[:1 Other:
`
`
`
`
`On Behalf of Respondents Kmart Corporation and
`Sears Roebuck and Coman :
`
`
`
`1! Via Express Delivery
`E1 Via First Class Mail
`
`
`
`
`
`
`
`On Behalf of Respondent Zhejiang Ruixing Carburetor
`
`Manufacturin Co. Ltd. and Thunderba Products:
`
`
`P. Andrew Riley, Esq.
`1a Hand Delivery
`
`MEI & MARK LLP
`ia Express Delivery
`
`
`[3 Via First Class Mail
`818 18th Street, NW, Suite 410
`
`
`
`D Other'
`Washington, DC 20006
`
`On Behalf of Res a ondent Generac Power S stems Inc.: -—
`Steven M. Auvil, Esq.
`[I V a Hand Delivery
`
`SQUARE PATTON BOGGS (US) LLP
`ia Express Delivery
`
`4900 Key Tower, 127 Public Square
`El Via First Class Mail
`
`
`Cleveland, OH 44114
`C] Other'
`
`On Behalf of Res n ondent Walmart Inc.:
`' _
`Rett Snotherly, Esq.
`E] I ia Hand Delivery
`
`LEVI & SNOTHERLY, PLLC
`a Via Express Delivery
`
`
`1101 Connecticut Avenue, NW, Suite 450
`El Via First Class Mail
`
`
`Washington, DC 20036
`
`On Behalf of Res n ondent Cabela’s LLC: _
`
`Kecia J. Reynolds, Esq.
`El
`ia Hand Delivery
`
`
`PHILLSBURY WINTHROP SHAW PITTMAN LLP
`, Via Express Delivery
`
`1200 Seventeenth St., NW
`D Via First Class Mail
`
`Washington, DC 20036
`El 0 her'
`
`Eric S. Namrow, Esq.
`MORGAN, LEWIS & BOCKIUS LLP
`1 111 Pennsylvania Avenue, NW
`Washington, DC 20004-2541
`
`El Other:
`
`
`
`
`
`
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`
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`
`
`
`
`
`
`
`
`
`
`CERTAIN CARBURETORS AND PRODUCTS ‘
`CONTAINING SUCH CARBURETORS
`
`Inv. No. 337-TA—1123
`
`Certificate of Service — Page 2
`
`ia Hand Delivery
`
`
`
`
`
`
`
`
`
`
`
`
`On Behalf of Res . ondent Tractor Sun 1 Com an : '—
`Daniel E. Yonan, Esq.
`l Via Hand Delivery
`
`
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`u Via Express Delivery
`
`
`
`1100 New York Avenue, NW
`C] Via First Class Mail
`
`
`Washington, DC 20005
`C] Other'
`
`
`
`

`

`CERTAIN CARBURETORS AND PRODUCTS
`CONTAINING SUCH CARBURETORS
`
`Certificate of Service — Page 3
`
`Inv. No. 337-TA-1'123
`
`On Behalf of Res u ondent Menards Inc.:
`
`
`
`
`
`
`
`
`
`Jeffrey L. Eichen, Esq.
`E] V. - Hand Delivery
`
`
`DRINKER BIDDLE & REATH LLP
`
`‘
`ia Express Delivery
`
`222 Delaware Avenue, Suite 1410
`
`
`El Via First Class Mail
`
`
`Wilmington, DE 19801
`
`
`
`D Other:
`
`
`
`
`
`Paul M. Bartkowski, Esq.
`
`
`ADDUCI, MASTRIANI & SCHAUMBERG, LLP
`ia Express Delivery
`
`
`1133 Connecticut Ave, NW, 12th Floor 100
`D Via First Class Mail
`
`
`
`Washington, DC 20036
`, El Other:
`
`
`
`
`Huayi Mechanical and Electrical Co., Ltd.
`No. 32, Xinghuo Industrial Zone,
`
`
`,
`ia Express Delivery
`Fuding City, Fujian Province 355200,
`
`PR. China
`
`
`
`
`ia Hand Delivery
`
`El Via First Class Mail
`
`
`
`
`Fuding YOuyi Trade Co., Ltd.
`_
`1a Hand Delivery
`
`
`No. 176, Yuhu Community, Taimushan Town,
`ia Express Delivery
`
`
`Fuding, Ningde, Fuj‘ian, 355203
`' First Class Mail
`
`
`China
`
`
`
`Feldmann, Eng. & M