EXHIBIT 10.1
AGREEMENT FOR SETTLEMENT, DISMISSAL
OF CLAIMS AND MUTUAL RELEASES
This Agreement is entered into between PSC Inc. ("PSC") and Metrologic
Instruments, Inc. ("Metrologic") as of April 9, 1997.
WHEREAS, PSC is the owner and assignee of United States Patent Number
4,652,750 (the "'750 Patent"); and
WHEREAS, PSC commenced a lawsuit against Metrologic for infringement
of the `750 Patent, which lawsuit is captioned as PSC Inc. v. Metrologic
Instruments, Inc., Civil Action No. 92-CV-6277T in the U.S. District Court
for the Western Division of New York (the "Lawsuit"); and
WHEREAS, Metrologic filed a counterclaim in the Lawsuit seeking
declaratory judgments (a) that its products do not infringe the `750 Patent,
and (b) that the `750 Patent is invalid and unenforceable; and
WHEREAS, without making any admissions, the parties to this Agreement
desire to resolve the Lawsuit and the claims and counterclaims asserted in the
Lawsuit.
NOW, THEREFORE, the parties hereto, for good and valuable
consideration, the receipt and sufficiency of which is hereby mutually
acknowledged, agree as follows:
Dismissal of Lawsuit. The parties hereby agree to cause their
attorneys to execute and file a stipulation of dismissal of the Lawsuit
substantially in the form attached hereto as Exhibit A.
Release by PSC. PSC, for itself and all of its past and present
directors, officers, employees, agents, attorneys, parent corporations,
subsidiary corporations, affiliated corporations, insurers, predecessors,
successors and assigns, hereby releases and forever discharges Metrologic and
all of its past and present directors, officers, employees, agents, attorneys,
parent corporations, subsidiary corporations, affiliated corporations,
insurers, predecessors, successors and assigns from liability for any and all
claims for costs, expenses, and attorney's fees incurred in connection with the
Lawsuit and from liability for any and all claims related to the prosecution or
defense of the Lawsuit.
Release by Metrologic. Metrologic, for itself and all of its past and
present directors, officers, employees, agents, attorneys, parent corporations,
subsidiary corporations, affiliated corporations, insurers, predecessors,
successors and assigns, hereby releases and forever discharges PSC and all of
its past and present directors, officers, employees, agents, attorneys, parent
corporations, subsidiary corporations, affiliated corporations, insurers,
predecessors, successors and assigns from liability for any and all claims for
costs, expenses, and attorney's fees incurred in connection with the Lawsuit
and from liability for any and all claims related to the prosecution or defense
of the Lawsuit.
No Assignment. Each of the parties warrants and represents to the
other that it has not made, will not make, has not suffered to be made, and
will not suffer to be made any assignment or transfer of any right, claim,
demand, or cause of action covered by the releases exchanged in paragraphs 2
and 3 of this Agreement.
No Reliance. Each of the parties warrants and represents to the other
that it has relied upon its own judgment and that of its own independent legal
counsel regarding the agreed upon consideration for the terms of this Agreement
and the releases contained herein and that no statements or representations
made by the other party, its agents, employees, or legal counsel have
influenced or induced it to execute this Agreement and the releases contained
herein. Each party hereby assumes the risk of any mistake of fact in connection
with the true facts relating to all matters related to this Agreement or the
Lawsuit.
Governing Law. This Agreement and any questions regarding its validity
or the interpretation or construction of its provisions shall be governed by
the internal laws of the State of New York without regard to conflict of laws
principles.
Merger and Integration. This Agreement contains the final, complete,
and exclusive agreement between the parties hereto and may only be amended by a
subsequent writing signed by both parties. Each party has carefully read this
Agreement and understands the effect of this agreement on its rights and
obligations.
No Admission. The parties understand and agree that this Agreement
represents the settlement of disputed claims, that neither party admits
liability of any sort for any claim released or dismissed by this Agreement,
and that no past or present wrongdoing on the part of either party shall be
implied from the terms of this Agreement.
Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and to their successors and assigns.
Execution. This Agreement may be executed in counterparts. Signatures
by facsimile or copy shall be
treated as original signatures.
IN WITNESS WHEREOF, the parties have cause this Agreement to
be executed as follows:
PSC Inc.
By: /s/ Xxxxxx X. Murphy__________
Xxxxxx X. Xxxxxx
Vice President
METROLOGIC INSTRUMENTS, INC.
By: /s/ C. H. Knowles_____________
C. Xxxxx Xxxxxxx
President
EXHIBIT A
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PSC INC.,
Civil Action No.
Plaintiff, 92-CV-6277T
v.
METROLOGIC INSTRUMENTS, INC.
Defendant.
STIPULATION OF DISMISSAL
Pursuant to an Agreement for Settlement, Dismissal of Claims, and
Mutual Releases that has been executed by both parties, the parties, by their
undersigned counsel, stipulate pursuant to Fed. R. Civ. P. 41(a)(1) that this
action is hereby dismissed as follows:
1. All claims asserted by plaintiff PSC Inc. in its complaint
are dismissed with prejudice.
2. Except for its counterclaim for a declaratory judgment of
invalidity and unenforceability of U.S. Patent No. 4,652,750, all claims
asserted by defendant Metrologic Instruments, Inc. in its counterclaim are
dismissed with prejudice.
3. Defendant's counterclaim for a declaratory judgment of
invalidity and unenforceability of U.S. Patent No. 4,652,750 is dismissed
without prejudice.
4. Each party shall bear its own costs, expenses, and attorney's
fees.
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxx
----------------------- ---------------------
Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxx
Xxxxx & Xxxxxxx Hopgood, Calimafde, Xxxxx &
000 Xxxx Xxxxxxxxx Xxxxxx Judlowe, L.L.P.
Xxxxxxxxx, Xxxxxxxxx 00000 00 Xxxx 00xx Xxxxxx
(000) 000-0000 Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
Counsel for Plaintiff PSC Inc. Counsel for Defendant
Metrologic Instruments, Inc.
