RELEASE AND SETTLEMENT AGREEMENT
THIS RELEASE AND SETTLEMENT AGREEMENT ("Agreement") is made effective on
the 1st day of March, 2001 ("Effective Date") between Xerox Corporation, a New
York corporation with offices at Fairport, New York ("Xerox"), Set Electronique
S.A., a French corporation with offices at Wissous, France ("SE"), and Accent
Color Sciences, Inc., a Connecticut corporation with offices at East Hartford,
Connecticut ("ACS").
RECITALS:
WHEREAS, SET Electronique France S.A., a French corporation with offices at
Wissons, France ("SET"), entered into a certain Product Development and
Distribution Agreement with ACS effective August 27, 1997 ("Distribution
Agreement"); and
WHEREAS, on or about February 16, 1999, SET was subject to a share purchase by
Xerox Document Services SNC, a partnership with its principal office at 000-000
Xxx x'Xxxxxxxxxxxxx, Xxxxx ("XXX"), as represented by the affiliated company
Xerox The Document Company S.A.S., a French corporation, such share purchase
resulting in SE, becoming a wholly owned subsidiary of XDS; and
WHEREAS, ACS and SE desire to ratify the assignment to SE of all rights and
obligations of SET under the terms of the Distribution Agreement effective with
the share purchase described herein; and
WHEREAS, ACS and SE have each asserted certain claims against the other
respectively with respect to the Distribution Agreement; and
WHEREAS, each party disputes the validity of the claims and amounts alleged to
be due and owing by the other party; and
WHEREAS, the parties desire to settle any and all claims each may have against
the other, in the manner and upon the terms and conditions herein provided:
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parities hereby agree as follows:
I. DEFINITIONS
1. Closing. "Closing" shall mean March 1, 2001, or such other date as the
parties mutually agree.
2. Distribution Agreement. "Distribution Agreement" shall mean the
Distribution Agreement together with certain amendments to the Distribution
Agreement entered into by ACS and SE from time to time, such amendments
including (without limitation) the July 21, 1999 letter from Xxxxx Xxxxxxx
of SE.
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3. Products. "Products" shall have the same meaning as set forth in the
Distribution Agreement, namely the ACS-SET Truecolor System and other ACS
products listed in Exhibits A through C, including Spares, Consumables and
all modifications, improvements, enhancements, additions, updates, releases
and versions thereof. All other defined terms in this Section shall have
the meaning ascribed to them in the Distribution Agreement.
4. Xerox Company. "Xerox Company" shall mean Xerox Corporation, Xerox Limited,
Fuji Xerox Co., Ltd., Modi Xerox Co., Ltd., Xerox The Document Company
S.A.S., SE, XDS, and any entity which is owned or controlled directly or
indirectly by Xerox Corporation or by any of the foregoing.
II. OBLIGATIONS OF THE PARTIES
1. Xerox Obligations.
(a) Payment. At the Closing and concurrently with receipt of an
executed release from ACS in the form attached hereto as Attachment A,
Xerox will electronically transfer (wire) the amount of three hundred
eighty-one thousand five hundred eighty-five dollars ($381,585.00) to
ACS. The foregoing payment constitutes Xerox's sole liability with
respect to this Agreement.
2. ACS Obligations.
(a) Release. At the Closing, ACS will deliver to each of Xerox and SE
an original executed release in the form attached hereto as Attachment
A ("Xerox Company Release").
(b) Technical Support. Commencing with the Closing Date, ACS will
continue to provide SE, at ACS' then current charges, telephone
technical support, service and software support with respect to
Products during the period continuing for seven (7) years after the
date of delivery of the last ACS-SET Truecolor System to SE. If a
technical problem cannot be resolved by telephone technical support,
ACS will provide on site technical support to SE at ACS' then current
charges, plus reasonable costs of travel, food and lodging actually
incurred by ACS and preapproved in writing by SE.
III. TERMINATION OF DISTRIBUTION AGREEMENTS
1. Distribution Agreement. Upon the Closing Date, the Distribution Agreement
will be deemed terminated in its entirety by mutual agreement of ACS and
SE, provided that ACS' obligations under the Distribution Agreement with
respect to any and all Products delivered in accordance with the
Distribution Agreement as of the effective termination date will survive
such termination. Except with respect to such surviving provisions and the
technical support identified in Section 11.2(b), neither party shall have
any further liability under the Distribution Agreement.
2. Product Development and Distribution Agreement. In addition, the Product
Development and Distribution Agreement executed by the parties effective
August 27, 1997, will be deemed terminated in its entirety by
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mutual agreement of ACS and SE as of the Closing Date, and neither party
shall have any further liability thereunder.
IV. GENERAL
1. Admission of Liability. The parties acknowledge and agree that neither the
execution nor delivery of this Agreement or of any document to be executed
or delivered pursuant to this Agreement nor the taking of any action(s)
taken or to be taken pursuant to this Agreement shall constitute or be
construed as an admission of any liability by any party.
2. Covenant Not to Xxx. Except for actions to enforce this Agreement, each of
the parties agrees not to file or cause to be filed any complaint (or any
motion or document in the nature of a complaint) with any court,
arbitrator, agency, commission, department or other tribunal in any
jurisdiction against the other party (or its affiliates, shareholders,
directors, officers, employees, agents, attorneys, insurers or
representatives) with respect to any claims included within the Xerox
Company Release. In the event that a lawsuit is brought to enforce any of
the provisions of this Agreement, the prevailing party shall be entitled to
recover its reasonable attorneys' fees from the other party.
3. Non-Assignment of Claims. ACS represents and warrants (a) that it holds all
right, title and interest in and to all of the claims to be released
pursuant to the Xerox Company Release and that it has not assigned or
otherwise transferred any right, title or interest in any such claims; (b)
that it has no knowledge of any third party claims against Xerox Company
arising out of or related to goods and services provided in connection with
ACS' performance under the Distribution Agreement; and (c) that in the
event any such claim arises, ACS shall use best efforts to achieve prompt
resolution thereof. Xerox represents and warrants that it holds all right,
title and interest in and to all of the claims to be released pursuant to
the ACS Release and that it has not assigned or otherwise transferred any
right, title or interest in any such claims.
4. Indemnification. ACS hereby agrees to indemnify, defend and hold Xerox,
Xerox Companies, and their respective officers, affiliates, employers,
directors, principals, agents and representatives harmless from and against
any and all liabilities, liens, claims, damages, costs and expenses,
together with reasonable attorneys' fees incurred in connection with a
breach of any of its obligations hereunder.
5. Waiver. No waiver of any portion of this Agreement shall be valid unless
such waiver is in writing, is signed by the waiving party and specifically
designates the breach waived. The waiver by any party in any particular
instance of any such party's rights hereunder shall not be considered as a
continuing waiver of similar or other rights or breaches.
6. Severability. If any term, provision, covenant or condition of this
Agreement is held to be invalid, void or otherwise unenforceable to any
extent by any court of competent jurisdiction, the remainder of this
Agreement shall not be affected thereby, and each term, provision, covenant
or condition of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
7. No Joint and Several Liability. Nothing in this Agreement shall be deemed
to create joint and several liability among any of the parties hereto.
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8. Binding Effect. This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and
assigns.
9. Costs and Expenses. In the event that any party hereto shall default in the
performance or observance (herein called the "Defaulting Party") of the
Defaulting Party's duties or obligations under this Agreement, the
Defaulting Party shall pay any and all costs and expenses (including,
without limitation, reasonable attorneys' fees and disbursements) incurred
by the other party in enforcing or attempting to enforce the duties and
obligations of the Defaulting Party hereunder.
10. Captions. The captions in this Agreement are for convenience of reference
only and shall not be considered in the construction or interpretation of
any term or provision hereof.
11. Enforceability. Each of the parties hereto represents and declares that the
person executing this Agreement on behalf of such party, together with all
Attachments and Exhibits, is duly empowered and authorized to do so and
that this Agreement and Exhibits are each a legal, valid and binding
obligation of such party, enforceable in full accordance with its terms.
12. Controlling Language. This Agreement shall be in English only, which
language shall be controlling in all respects. All documents exchanged
under this Agreement shall be in English only.
13. Governing Law. This Agreement shall be governed by, construed and enforced
in accordance with the laws of the State of New York without regard to its
conflict of laws principals.
14. Entire Agreement. This Agreement, including the Recitals and together with
the Xerox Company Release, constitutes the entire agreement between the
parties hereto relating to the settlement of the claims described herein.
No amendment, modification or waiver of this Agreement or any provisions of
this Agreement shall be valid unless the same shall be in writing and
signed by each party hereto. There are no understandings, agreements or
representations or warranties, express or implied, not specified herein.
15. Counterparts. This Agreement may be executed in counterparts and each
counterpart shall be deemed to constitute a correct and true original of
the Agreement.
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XEROX CORPORATION ACCENT COLOR SCIENCES
By:/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx X. Xxxxxx Name: Xxxxxx Xxxxx
Title: VP/GM Title: Chief Financial Officer
SET ELECTRONIQUES S.A.
By: /s/ Xxxx Certy
Name: Xxxx Certy
Title: Director
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ATTACHMENT A
XEROX COMPANY RELEASE
FOR THE CONSIDERATION set forth in a certain Release and Settlement Agreement,
dated March 1, 2001, between Xerox Corporation, a New York corporation with
offices at Fairport, New York ("Xerox"), Set Electronique S.A., a French
corporation with offices at Wissous, France ("SE"), and Accent Color Sciences,
Inc., a Connecticut corporation with offices at East Hartford, Connecticut
("ACS"), the receipt of which is hereby acknowledged, ACS, for itself and for
its successors and assigns, hereby remises, releases and forever discharges
Xerox, Xerox Companies, their respective successors and assigns and its
affiliates, officers, employees, directors, principals, agents and
representatives ("Releasees"), of and from any and all manner of action and
actions, causes and causes of actions, suits, debts, accounts, sums of money,
covenants, contracts, promises, agreements, damages, judgments, executions,
claims and demands whatsoever, in law or in equity, which ACS ever had, now has
or which ACS or its successors and assigns, can, shall or may have against
Releasees, for, upon or by reason of any matter, cause or thing whatsoever from
the beginning of the world to the date of these presents, excluding, however,
any and all claims arising by virtue of any failure by Xerox or SE to perform
any of its obligations pursuant to such Release and Settlement Agreement.
Dated: Xxxxx 0, 0000
XXXXXX COLOR SCIENCES
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
STATE OF CONNECTICUT )
) ss: East Hrtford, CT
COUNTY OF HARTFORD )
On this 1st day of March, 2001, before me, the subscriber, personally
appeared Xxxxxx Derbyonally known, who being by me duly sworn, did depose and
say that he is the Chief Financial Officer of Accent Color Sciences, Inc., the
corporation described in and which executed the foregoing instrument and that he
executed the same by order of the Board of Directors of said corporation.
/s/ Xxxx X. Xxxxxxxx (notary public)
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