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EXHIBIT 10.1
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
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THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (the "Agreement") is entered
into by and between Oce Printing Systems U.S.A., Inc., a Delaware corporation,
Oce Printing Systems, G.m.b.H., a German corporation (collectively "OPS") and
Interscience Computer Corporation, a California corporation ("Interscience"), in
settlement of any and all claims between OPS and Interscience, including but not
limited to the claims and counterclaim made in the action pending in the Circuit
Court for Pinellas County, Florida, Circuit Civil Case No. 96-7077-CI-8 ("the
Florida Action"); in the action pending in the District of Maryland at Civil
Action No. CCB 00-000 ("xxx Maryland Action"); and in the interference
proceeding pending before the U.S. Patent Office at Interference No. 103692
("the Patent Action").
WHEREAS, Interscience and others commenced the Florida Action against OPS
and others to recover damages arising out of conduct with respect to sales and
service practices relating to certain high-speed printers;
WHEREAS, OPS and Xxxxxxx Xxxxxxx filed the Maryland Action against
Interscience for conduct arising out of Interscience's practice of United
States Patent No. 5,333,042, issued July 26, 1994, entitled "Cold Fusing Agent"
("the '042 Patent");
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WHEREAS, Interscience filed the Patent Action in the United States Patent
Office for conduct relating to the '042 Patent;
WHEREAS, OPS and Interscience have denied liability to each other and
maintained their respective claims to the '042 Patent; and
WHEREAS, it being the intention of the parties to settle and resolve all
disputes that are or may be asserted between them which relate to the subject
matter of the Florida Action, the Maryland Action and the Patent Action;
NOW, THEREFORE, in consideration of the matters referred to herein, and
intending to be legally bound, OPS and Interscience agree as follows:
1. The parties shall take all steps within their authority and control
(but not including any new litigation) to conclude the Maryland Action insofar
as it relates to the '042 Patent. The parties will cause the Patent Action to be
terminated in the manner agreed upon by their respective patent counsel. Each
party shall bear its own attorneys' fees, expenses and other costs. Furthermore,
OPS hereby assigns (without any warranty of assignment) to Interscience and
Interscience hereby accepts all of OPS's rights and obligations under the
contract between OPS and Xxxxxxx dated December 29, 1998, relating to the '042
Patent.
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2. Interscience acknowledges that it is no longer a class representative
in the Florida Action and that it will take no action to attempt to become a
class representative.
3. Interscience agrees that it will take all steps necessary to opt out
of any class, whether for litigation or settlement purposes, that may be finally
certified against OPS in the Florida Action. Interscience acknowledges that by
opting out of any such class finally certified against OPS, it will not share in
any potential monetary benefits that may be provided to the class in resolution
of the claims. Each party shall bear its own attorneys' fees, expenses and other
costs.
4. OPS agrees that henceforth it will not challenge the '042 Patent and
will transfer to Interscience the Xxxxxxx Application Serial Number 081 196090.
5. OPS shall order and Interscience shall deliver 5,000 cases of fusing
agent, for which OPS shall pay the current price of $72.00 per case, without
any canister deposit, and with a price reduction of $61,544.00 reflecting an
adjustment for former canister deposits. Accordingly, the net purchase price
shall be $298,456.00 for the 5,000 cases.
6. OPS agrees to, and following the execution of this Agreement, shall
pay Interscience the amount of $950,000.00 by wire transfer on or before
December 31, 1999.
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7. In consideration of OPS's release, described below, and the other
matters contained herein, Interscience releases and forever discharges OPS, its
officers, agents, employees, attorneys, parent corporations, subsidiaries,
related entities, affiliates, divisions, successors, persons acting on its
behalf in connection with the matters set forth above, and/or assigns, and any
and all other persons, firms, partnerships and corporations which are or might
be claimed to be liable to Interscience, its successors and assigns, of and from
any and all claims, counterclaims, rights, demands, costs, damages, losses,
liabilities, actions, and causes of action including attorneys' fees and court
costs of every nature and description, whether known or unknown, suspected or
unsuspected, foreseen or unforeseen, real or imaginary, actual or potential, and
whether arising in tort or contract or at law or in equity, under the common
law, state law, federal law, or any other law, or otherwise, including but not
limited to canister deposit claims and claims which have been or which might
have been asserted in the Florida Action, the Maryland Action and the Patent
Action, it being the intention of Interscience to effect a general release of
all such claims against OPS.
8. In further consideration of OPS's release describe below, and the
other matters contained herein, Interscience releases and forever discharges
Siemens Nixdorf Printing Systems, L.P., Siemens Credit Corporation, Siemens
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Nixdorf Information Systems Inc., and Siemens-Nixdorf Informationssysteme AG,
their officers, agents, employees, attorneys, parent corporations,
subsidiaries, related entities, affiliates, divisions, successors, persons
acting on its behalf in connection with the matters set forth above, and/or
assigns, and any and all other persons, firms, partnerships and corporations
which are or might be claimed to be liable to Interscience, its successors and
assigns, of and from any and all claims, counterclaims, rights, demands, costs,
damages, losses, liabilities, actions, and causes of action for conduct after
April 1, 1996, including attorneys' fees and court costs of every nature and
description, whether known or unknown, suspected or unsuspected, foreseen or
unforeseen, real or imaginary, actual or potential, and whether arising in tort
or contract or at law or in equity, under the common law, state law, federal
law, or any other law, or otherwise, it being intention of Interscience to
effect a general release of all such specified claims.
9. In consideration for Interscience's release, described above, and the
other matters contained herein, OPS releases and forever discharges
Interscience, its officers, agents, employees, attorneys, parent corporations,
subsidiaries, affiliates, related entities, divisions, predecessors,
successors, persons acting on its behalf in connection with the matters set
forth above, and/or assigns, and any and all other
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persons, firms, partnerships and corporations which are or might be claimed to
be liable to OPS, its successors and assigns, of and from any and all claims,
counterclaims, rights, demands, costs, damages, losses, liabilities, actions,
and causes of action including attorneys' fees and court costs of every nature
and description, whether known or unknown, suspected or unsuspected, foreseen
or unforeseen, real or imaginary, actual or potential, and whether arising in
tort or contract or at law or in equity, under the common law, state law,
federal law, or any other law, or otherwise, including but not limited to
canister deposit claims and claims or counterclaims which have been or which
might have been asserted in the Florida Action, the Maryland Action and the
Patent Action, it being the intention of OPS to effect a general release of all
such claims against Interscience.
10. OPS and Interscience further covenant and agree that this Agreement
is intended to cover not only all known claims arising out of, or in any way
related to the Florida Action, the Maryland Action and the Patent Action, but
also any claims in the future, arising out of, or in any way relating to the
issues raised by those Actions, not now known or anticipated, which may develop
later, and that no further lawsuits shall be filed by either party against the
other arising out of the subject matter of the three Actions or this Agreement.
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11. OPS and Interscience further understand and agree that they will not
enter or file suit against the released parties herein with respect to the
claims mentioned above. OPS and Interscience further agree that, in addition to
other relief, either party shall be entitled to reasonable attorneys' fees,
costs and the expenses of litigation incurred in defending any action filed in
breach of this provision.
12. OPS and Interscience deny liability of any sort with respect to the
claims and counterclaims made in the three Actions. This Agreement is made as a
compromise of the disputed claims between OPS and Interscience, to avoid
further expense and to terminate finally and completely the controversies
between the parties. Interscience further understands, covenants and agrees
that the payment of the above-mentioned cash consideration does not constitute
any admission of liability by OPS or any other persons, firms or partnerships,
with regard to the three Actions.
13. It is further understood, and agreed, that this Agreement is the full
and complete agreement between OPS and Interscience and that there are no other
agreements, covenants, promises, or arrangements other than those set forth
herein. It is further agreed that this Agreement will be construed in
accordance with and governed by Delaware law.
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14. This Agreement may be executed in counterparts, all of which together
shall constitute one and the same instrument. The facsimile signature of any
party shall be effective as an original signature.
In witness whereof and intending to be legally bound, Oce Printing Systems
U.S.A., Inc., Oce Printing Systems, G.m.b.H., and Interscience Computer
Corporation have caused this Agreement and Mutual Release to be executed by
their duly authorized representatives, on this 29th day of December, 1999.
ATTEST: OCE PRINTING SYSTEMS U.S.A., INC.
OCE PRINTING SYSTEMS, G.m.b.H.
/s/ Xxxxx X. [illegible] By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Counsel
ATTEST: INTERSCIENCE COMPUTER CORPORATION
/s/ [illegible] By: /s/ Xxxxxx Xxxxxxxx
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