EXHIBIT 10.14
TERMINATION AGREEMENT
This Termination Agreement ("Agreement") is made as of April 9, 2003
between CCC Information Services, Inc., a Delaware corporation ("CCC") having an
office at 000 Xxxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000, and Synergy 2000 Inc.,
a Delaware corporation ("Synergy") having an office at 00 Xxxxx Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 (Synergy and CCC each individually, a
"Party" and, collectively, the "Parties").
WITNESSETH:
WHEREAS, Synergy and CCC entered into to that certain Development,
License and Proprietary Rights Agreement dated as of December 31, 2001 (the
"Development Agreement"); and
WHEREAS, Synergy and CCC have now agreed to terminate the Development
Agreement and to settle any and all claims that either Party has against the
other arising out of the Development Agreement (other than as expressly provided
below) under the terms set forth herein.
NOW, THEREFORE, for good and valuable consideration and in
consideration of the mutual covenants and conditions herein set forth and with
the intent to be legally bound thereby, Synergy and CCC hereby agree as follows:
1. TERMINATION OF THE BUSINESS RELATIONSHIP BETWEEN THE PARTIES.
1.1 Except as otherwise specifically provided herein, the Development
Agreement is hereby terminated, and both Parties acknowledge and agree that
neither Party has any remaining rights or obligations under the Development
Agreement; EXCEPT THAT Articles IX, XI, and XII and Section 13.1 of the
Development Agreement shall survive this termination and are incorporated herein
by reference, and continue to be binding on the applicable Party (collectively,
the "Surviving Sections").
2. SYNERGY ACTIONS
2.1 TRANSFER OF THE SETTLEMENT ASSETS TO CCC.
(a) Synergy hereby irrevocably sells, assigns and transfers to
CCC all of Synergy's right, title and interest in and to (i) the Assets (as
defined in the Development Agreement) obtained by Synergy from CCC under the
Development Agreement and the Synergy Work Product (as defined in the
Development Agreement), (ii) any and all improvements on, upgrades, fixes, and
modifications to, and derivatives thereto, including without limitation the
Enhanced Source Code (as defined in the Development Agreement) and (iii) any and
all other assets and/or other proprietary rights owned, licensed or developed by
Synergy in connection with the work performed by Synergy under the Development
Agreement or the Consulting Agreement (collectively, the "Settlement Assets").
The Settlement Assets are hereby assigned to CCC, including, without limitation,
all patents, trademarks and copyrights, and all other proprietary rights, in and
to the Settlement Assets. Synergy covenants and agrees to execute and deliver
any and all other instruments, documents and certificates, and perform any
commercially reasonable acts required to accomplish and confirm vesting of
ownership of the Settlement Assets in CCC. In addition, specifically, but not as
a limitation, the Parties recognize that all work performed, or modifications,
improvements, and/or derivatives works, by CCC under the Development Agreement
and related documentation, which may have been granted or licensed to Synergy
thereunder, are hereby included in the Settlement Assets and are, among the
Parties, assigned, including without limitation the patents, trademarks and
copyrights, and all other proprietary rights, to CCC. Synergy hereby agrees that
it will comply with CCC's commercially reasonable instructions regarding
confirming or securing such rights.
(b) Without limitation, the rights returned to CCC shall
include the rights to (i) use, offer, market, publish, reproduce, distribute,
transmit, adapt, maintain, prepare derivative works, sell, sublicense or
otherwise exploit and encumber the Settlement Assets (including, without
limitation, all subsequent editions, revisions, supplements to, and versions of
the Settlement Assets, regardless of length, nature or state of development)
throughout the world in any form or medium and in any language, and (ii) to
license, sublicense or otherwise transfer to others the rights commensurate
herewith in connection with the Settlement Assets.
(c) As of the date hereof, CCC shall have the right to obtain
and hold in its own name any intellectual property rights in and to the
Settlement Assets and all copies and derivative works made therefrom (which
shall include, but not be limited to, the right to file patent, copyright and
trademark applications in the U.S. and throughout the world for the Settlement
Assets in the name of CCC as well as the right to xxx and collect damages based
on infringement of the rights granted herein). Synergy hereby agrees that CCC
may act as attorney-in-fact to execute any documents that CCC deems necessary to
record this grant with the U.S. Patent and Trademark Office, the U.S. Copyright
Office or elsewhere. Synergy agrees that it will execute any documents or take
any other actions as may reasonably be necessary, or as CCC may reasonably
request to help CCC establish, confirm and defend CCC's ownership of, and
intellectual property rights in and to, the Settlement Assets and all copies and
derivative works made therefrom. The costs of recording and registering
ownership rights in the Settlement Assets shall be borne solely by CCC.
(d) Within ten (10) days of the date hereof, Synergy shall
deliver to CCC a complete set of all complete and partial copies of the
Settlement Assets in all forms (including, without limitation, all Original
Source Code (as defined in the Development Agreement) and Enhanced Source Code
(as defined in the Development Agreement).
(e) Synergy further agrees that the confidentiality provisions
in Article XI of the Development Agreement shall not apply to CCC's use of any
Settlement Assets returned to CCC under this Section 2.1.
(f) Synergy represents and warrants that Synergy has not
assigned, sold or otherwise transferred its interests in the Settlement Assets
and that it has placed no other encumbrances of any nature whatsoever on the
Settlement Assets. Synergy further represents and warrants that CCC shall
receive no less than the same title in the Settlement Assets that Synergy
received from CCC pursuant to the terms of the Development Agreement.
(g) Synergy represents and warrants that the Settlement Assets
and use thereof, except to the extent developed or modified by CCC hereafter:
(i) do not and will not infringe upon, misappropriate, or otherwise violate the
intellectual property rights or other proprietary rights of any third party;
(ii) will not give rise to any claims for royalty payments of any kind unless
disclosed to CCC as of the Effective Date; (iii) will not give rise to any
obligations owed to third parties, and will be fully paid-up; (iv) will be free
of any computer virus, time bomb, worm, or other similar harmful, malicious, or
hidden program or data or software device on the Effective Date as is detectible
by use of a commercially released up to date virus detection software as used by
Synergy; and (v) will not be adversely affected by the advent of any date
sensitive event.
2.2 In addition to the obligations under Section 4.1 below, Synergy
agrees to treat all of CCC's Confidential Information (as defined in the
Development Agreement), the Settlement Assets, and any other products or
materials otherwise provided to Synergy under the Development Agreement, if any,
as required under Article XI of the Development Agreement.
3. CCC OBLIGATIONS
3.1 In addition to the obligations under Section 4.1 below, CCC agrees
to treat all of Synergy's Confidential Information (as defined in the
Development Agreement) other than the Settlement Assets, and any other products
or materials otherwise provided to Synergy under the Development Agreement, as
required under Article XI of the Development Agreement.
4. CONFIDENTIALITY
4.1 This Agreement is confidential to the Parties and their attorneys
and financial advisors. The Parties agree to use their best efforts to maintain
the confidentiality of the terms of this Agreement, except that either Party
shall be permitted to disclose all or a portion of the terms of this Agreement
on a need-to-know basis to the extent required by state or federal laws or
regulations, court order or the requirements of any exchange on which their
stock is traded. In such event, the Parties shall use their best efforts to: (i)
attempt to minimize the disclosure of information and (ii) seek to obtain
confidential treatment of the disclosed information to the fullest extent
permissible by applicable law. The Parties agree that in the event that any
disclosure allowed under this Section 4.1 is made public by any third party,
that neither Party will publicly comment further on such disclosure. Each Party
hereby acknowledges that as a publicly traded company, it is legally required to
issue press releases regarding its earnings at the end of each financial quarter
and each Party agrees that any disclosure regarding the terms of this Agreement
required, based on the reasonable opinion of outside counsel, in order for such
Party to comply with federal securities laws or NASDAQ shall not be a breach of
either this Section 4.1. Each Party agrees that in the event of such disclosure
that it will not comment further publicly.
5. MUTUAL GENERAL RELEASE
5.1 RELEASE. Upon execution of this Agreement, and as additional
consideration (with the exception of the promises set forth in this Agreement),
for good and valuable consideration set forth herein, each of the Parties, on
behalf of themselves, their successors, assigns, agents, representatives and
attorneys unconditionally mutually release, acquit, dismiss, forever discharge
and covenant not to xxx without limitation the other Party and its
representatives, agents, attorneys, shareholders, successors and assigns on each
and every right, claim, complaint, demand, cause of action, proceedings and
damages of whatsoever kind or nature that either Party now has, has had or might
have as of the date of this Agreement, relating to or arising out of the
Development Agreement and any act, transaction, or occurrence between the
Parties, including without limitation each and every claim for any type of
relief or remedy whatsoever based upon any theory whatsoever, whether known or
unknown at this time and specifically including, without limitation, all claims
and causes of action relating to or arising out of the Development Agreement and
the Parties' performance thereunder, including any and all claims for any
Delinquency Payments (as defined in the Development Agreement), breach of
contract, fraudulent inducement and any claims under federal or state statute or
regulation (collectively, "Claims"); EXCEPT THAT the Parties acknowledge and
agree that this mutual general release shall not apply to any Claims by either
Party arising after the date hereof out of any of the Surviving Sections
identified in Section 1.1 hereof. It is the intention of the Parties hereto to
extinguish all such Claims and, consistent with such Claims and consistent with
such intentions, the Parties waive their rights to the extent permitted by law,
to any benefits of the provisions of Section 1542 of the California Civil Code
or any other similar state law, federal law or principle of common law, which
may have the effect of limiting the release set forth above. Section 1542 of the
California Civil Code provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
The Parties hereto acknowledge that they may discover facts in addition
to or different from those that they now know or believe to be true with respect
to the subject matter of this release, but that it is their intention, to fully,
finally and forever settle and release any and all claims released hereby known
or unknown, suspected or unsuspected, which now exist, or heretofore existed,
and without regard to the subsequent discovery or existence of such additional
facts. The Parties further acknowledge and agree that this release is intended
to be a general release that encompasses any common law, contractual, or tort
claims or causes of action known and unknown they may have against each other,
their agents and representatives.
5.2 NO ADMISSION OF LIABILITY. It is expressly understood and agreed
that the terms hereof are contractual, not merely recitals; that the agreements
set forth herein and consideration transferred are to compromise doubtful and
disputed claims, avoid litigation, to avoid the costs and undesirable effects of
litigation, and buy peace; and that no payments made, nor releases, execution of
this Agreement or performance hereunder, nor other consideration given shall be
construed as an admission of liability, all liability being expressly denied.
6. INDEMNIFICATION
6.1 INDEMNIFICATION BY SYNERGY.Synergy shall indemnify and hold CCC and
CCC's Affiliates, as well as their respective employees, directors, successors
and assigns, harmless from and against all cost, liability, loss, damage,
expense or judgment resulting from, arising out of, or in connection with, any
claim, action or proceeding, in a court or otherwise (collectively, "Claims")
(i) making an allegation which, if true, would be a breach of any of Synergy's
obligations under this Agreement or any of the representations or warranties
made by Synergy under this Agreement or (ii) by any Synergy customer or licensee
with regard to the Settlement Assets or license or use thereof; PROVIDED THAT
Synergy shall have (x) the right to select counsel; (y) the right to direct and
control the litigation or proceedings; and (z) subject to the approval of CCC
and/or subject to a good faith settlement hearing before the tribunal in which
such action is brought, of which hearing CCC shall be given notice and an
opportunity to be heard, the right to settle the litigation on commercially
reasonable terms.
6.2 INDEMNIFICATION BY CCC. CCC shall indemnify and hold Synergy and
Synergy's Affiliates, as well as their respective employees, directors,
successors and assigns, harmless from and against all Claims making an
allegation which, if true, would be a breach of any of CCC's obligations under
this Agreement or any of the representations or warranties made by CCC under
this Agreement; PROVIDED THAT CCC shall have (x) the right to select counsel;
(y) the right to direct and control the litigation or proceedings; and (z)
subject to the approval of Synergy and/or subject to a good faith settlement
hearing before the tribunal in which such action is brought, of which hearing
Synergy shall be given notice and an opportunity to be heard, the right to
settle the litigation on commercially reasonable terms.
7. GENERAL TERMS AND CONDITIONS
7.1 AMENDMENTS. No change, amendment or modification of any provision
of this Agreement or waiver of any of its terms will be valid unless set forth
in writing and signed by the Party to be bound thereby.
7.2 GOVERNING LAW; JURISDICTION. This Agreement shall be interpreted,
construed and enforced in accordance with the laws of the State of Illinois,
without reference to its conflicts of law principles. Each Party hereby
irrevocably consents to the exclusive jurisdiction and venue of the federal and
state courts located in Xxxx County, Illinois.
7.3 WAIVERS. The failure of either Party to insist upon or enforce
strict performance by the other Party of any provision of this Agreement or to
exercise any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same shall be
and remain in full force and effect.
7.4 NOTICES. Any notice, approval, request, authorization, direction or
other communication under this Agreement shall be given in writing, shall
reference this Agreement, and shall be deemed to have been delivered and given:
(a) when delivered personally; (b) three (3) business days after having been
sent by registered or certified U.S. mail, return receipt requested, postage and
charges prepaid; or (c) one (1) business day after deposit with a commercial
overnight courier, with written verification of receipt. All communications will
be sent to the addresses set forth below or to such other address as may be
designated by a Party by giving written notice to the other Party pursuant to
this Section 7.4.
If to Synergy: If to CCC:
SYNERGY 2000, INC. CCC INFORMATION SERVICES, INC.
00 Xxxxx Xxxxxxx Xxx., Xxxxx 000 000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000 Xxxxxxx, Xxxxxxxx 00000
Attention: President Attention: General Counsel
With copy to:
Xxxxxx & Xxxxxxx
233 South Xxxxxx Drive
Suite 5800 Sears Tower
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
7.5 REPRESENTATION AND WARRANTY. Both Parties represent and warrant
that there have been no assignments or other transfers of any interest in any
claim that either Party may have against the other Party, and both Parties agree
to indemnify and hold the other Party harmless from any liability, claims,
demands, damages, costs, expenses and attorneys' fees incurred by either Party
as a result of any person successfully asserting any such assignment or
transfer.
7.6 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties and supersedes (except as provided herein) any and all prior
agreements or understandings between the Parties with respect to the subject
matter hereof. Except as provided herein, neither Party shall be bound by, and
each Party specifically objects to, any term, condition or other provision or
other condition that is different from or in addition to the provisions of this
Agreement (whether or not it would materially alter this Agreement) and which is
proffered by the other Party in any purchase order, correspondence or other
document, unless the Party to be bound thereby specifically agrees to such
provision in writing.
7.7 HEADINGS. The headings used in this Agreement are for convenience
only and are not to be construed to have legal significance.
7.8 SEVERABILITY. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed or if any
such provision is held invalid by a court with jurisdiction over the Parties to
this Agreement, such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance with
applicable law, and the remainder of this Agreement shall remain in full force
and effect.
7.9 COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed
in multiple counterparts, all of which, taken together, shall constitute one and
the same instrument. Each Party shall be authorized to rely upon the signatures
of the other which are delivered by facsimile as constituting a duly authorized,
irrevocable, actual, current delivery of this Agreement with original ink
signatures; PROVIDED HOWEVER, that any Party that delivers a facsimile signature
to the other, covenants and agrees that it shall deliver an executed original of
the same within five (5) days after delivery of such facsimile signature.
7.10 BANKRUPTCY. If a proceeding is commenced by or against either
Party hereto for relief under bankruptcy or similar laws, the Party by or
against whom the proceeding is commenced agrees not to attack this Agreement as
a preference and further agrees that, if this Agreement is attacked by a third
party as a preference, it shall use its best efforts to ensure that this
Agreement is approved by any bankruptcy or similar court, including without
limitation, filing a motion for approval of this Agreement by such court.
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be executed by duly authorized officers or representatives as of
the date first above written.
Synergy 2000, Inc. CCC Information Services, Inc.
By: /s/ XXX XXXXXX, XX. By: /s/ XXXX X. XXXXXXX
Name: Xxx Xxxxxx, Xx. Name: Xxxx X. Xxxxxxx
Title: President Title: Executive Vice President
and Chief Financial Officer
