EXHIBIT 10.7
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
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THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (collectively, "Agreement") is
entered into by and between Total Containment, Inc. ("TCI"), Ameron, Inc.
("Ameron"), Environ Products, Inc. ("Environ"), Xxxxxxx X. Xxxx ("Xxxx"), Xxxxx
Xxxxxxx ("Xxxxxxx"), Intelpro Corporation ("Intelpro") and Buffalo Environmental
Products Corporation ("Buffalo") (Xxxxxxx, Intelpro and Buffalo will
collectively be referred to as "the Xxxxxxx Group") as of the date of execution
of this Agreement by the last party hereto (the "Execution Date"). The Agreement
is intended by the parties to be binding in its entirety on themselves, their
employees, agents, attorneys, successors, assigns and other representatives of
whatever kind.
RECITALS
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WHEREAS, TCI and the Xxxxxxx Group were engaged in a patent interference
proceeding before the Patent and Trademark Office (the "Interference")
concerning, among other things, priority of ownership of the invention claimed
in Xxxxxxx application serial no. 07/286,893;
WHEREAS, Ameron and the Xxxxxxx Group entered into a certain Agreement for
Purchase of a Non-Exclusive License, dated August 26, 1992 (the "License
Agreement") pursuant to which, among other things, Ameron paid the Xxxxxxx Group
prepaid royalties in the amount of $1,000,000.00 and the Xxxxxxx Group granted
a license to Ameron to practice the inventions referenced therein (the
"Inventions");
WHEREAS, Ameron and the Xxxxxxx Group entered into a certain Supplement to
Ameron, Inc./Xxxxxxx License Agreement, dated July 22, 1994 (the "Supplemental
Agreement") pursuant to which, among other things, Ameron paid the Xxxxxxx
Group prepaid royalties in the amount of $950,000.00 and the Xxxxxxx Group
granted Ameron the right to enter into one sublicense agreement permitting an
Ameron sublicensee to utilize the Inventions;
WHEREAS, Ameron and Environ entered into a certain licensing agreement
dated July 22, 1994 (the "Ameron/Environ License Agreement") pursuant to which,
among other things, Environ paid $950,000.00 to obtain a sublicense from Ameron
to practice the Inventions;
WHEREAS, on December 16, 1994, TCI and the Xxxxxxx Group entered into a
Settlement Agreement (the "Settlement Agreement") pursuant to which, among other
things, TCI and the Xxxxxxx Group settled the Interference;
WHEREAS, Ameron and Environ filed Civil Actions against TCI and the Xxxxxxx
Group in the United States District Court for the Central District of
California, captioned at Civil Action Nos. 94-7871 HLH and 95-6464 HLH,
respectively, which were consolidated for pretrial and trial proceedings (the
"License Termination Action") contending, among other things, that the
termination of their rights under the License Agreement and Supplemental
Agreement was invalid;
WHEREAS, TCI and the Xxxxxxx Group filed answers to the complaints in the
License Termination Action and asserted certain counterclaims;
WHEREAS, the License Termination Action was tried before a jury in June and
July, 1996 and the Court dismissed certain of Ameron's and Environ's claims and
the jury found in favor of TCI and the Xxxxxxx Group on all of Ameron's and
Environ's remaining claims and all of TCI's and the Xxxxxxx Group's
counterclaims against Ameron and Environ were dismissed and/or withdrawn;
WHEREAS, judgment was entered in favor of TCI and the Xxxxxxx Group and
against Ameron and Environ in the License
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Termination Action and on January 6, 1997 the Court taxed costs in the amount of
$27,725.43 (the "Costs") in favor of TCI and the Xxxxxxx Group as prevailing
parties;
WHEREAS, Ameron and Environ filed appeals in the United States Court of
Appeals for the Ninth Circuit, captioned at Docket No. 97-55344, following the
determinations of the Court and jury in the License Termination Action (the
"Ameron and Environ Appeal");
WHEREAS, Ameron filed a Civil Action against the Xxxxxxx Group in the
United States District Court for the Central District of California, captioned
at Civil Action No. 96-6429, (the "First Refund Action") contending that the
Xxxxxxx Group was obligated to refund to Ameron prepaid royalties in the amount
of $1,000,000.00;
WHEREAS, on February 20, 1997 summary judgment was entered in favor of
Ameron and against the Xxxxxxx Group in the First Refund Action in the amount of
$1,046,575.34 plus interest (the "$1,000,000.00 Judgment");
WHEREAS, the Xxxxxxx Group filed an appeal in the United States Court of
Appeals for the Ninth Circuit, captioned at Docket No. 97-55491, following entry
of the $1,000,000.00 Judgment (the "Summary Judgment Appeal");
WHEREAS, the Xxxxxxx Group paid into the registry of the United States
District Court for the Central District of California the amount of
$1,200,000.00 as security (the "1,200,000.00 Security") for the $1,000,000.00
Judgment pending the appeal therefrom;
WHEREAS, Ameron filed a Civil Action against the Xxxxxxx Group in the
United States District Court for the Central District of California, captioned
at Civil Action No. 97-3486
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HLH, (the "Second Refund Action") contending that the Xxxxxxx Group was
obligated to refund to Ameron prepaid royalties in the amount of $950,000.00;
WHEREAS, the Xxxxxxx Group filed an answer to the complaint in the Second
Refund Action, filed a counterclaim against Ameron, and thereafter filed a
third-party complaint against TCI contending, among other things, that TCI was
obligated to reimburse the Xxxxxxx Group for the $1,200,000.00 Security as well
as for any amounts the Xxxxxxx Group was obligated to reimburse to Ameron or
Environ as a result of the termination of their license rights to the
Inventions;
WHEREAS, TCI filed a Civil Action against Environ and Xxxx in United States
District Court for the Eastern District of Pennsylvania, captioned at Civil
Action No. 91-7911 (the "Sump Litigation"), contending, among other things,
that Environ and Xxxx were infringing certain patents owned by TCI covering the
design of sumps;
WHEREAS, the Sump Litigation was tried and a verdict was rendered pursuant
to which, among other things, TCI was awarded certain royalties and attorneys'
fees, which verdict was appealed by TCI and cross-appealed by Environ and
affirmed in part and reversed in part and remanded by the United States Court of
Appeals for the Federal Circuit, which remand is currently pending before the
Court that originally tried the Sump Litigation;
WHEREAS, Environ filed an action in the Court of Common Pleas of Xxxxxxxxxx
County, Pennsylvania, against TCI, captioned at Civil Action-Law No. 97-14225
(the "Xxxxxxxxxx County Action"), contending, among other things, that TCI
breached certain duties and obligations to Environ resulting in Environ not
being obligated for TCI's counsel fees and costs in the Sump Litigation;
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WHEREAS, TCI and Intelpro filed a Civil Action against Environ currently
pending in the United States District Court for the Eastern District of
Pennsylvania, captioned at Civil Action No. 97-1020 asserting claims for patent
infringement, and Environ filed an action in the same Court, against TCI and
Intelpro captioned at Civil Action No. 97-707 asserting claims of
non-infringement and invalidity (the "Patent Infringement Actions");
WHEREAS, Environ has sold and is currently selling a product known as
GeoDuct (the "Current GeoDuct") on the asserted basis that it has a license for
such sales from the Xxxxxxx Group pursuant to the Supplement Agreement and
certain royalties on such sales calculated pursuant to the Supplemental
Agreement and the Ameron/Environ Agreement (the "Royalties") have been escrowed
by Ameron and Environ (a true and correct illustration of Environ's Current
GeoDuct is attached as Exhibit "A");
WHEREAS, to avoid the additional burden and expense of litigation, and
without the parties admitting liability to each other in any way whatsoever,
each of the parties to the Agreement wishes to compromise and settle certain
disputed claims and counterclaims.
NOW, THEREFORE, the parties to the Agreement, for and in consideration of
the promises expressed herein and intending to be legally bound thereby, do
hereby agree as follows:
AGREEMENT AND RELEASE
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1. On the Execution Date, TCI will wire transfer to an account
designated by Ameron in immediately available funds a sum equal to: (a)
$1,046,575.34; plus (b) accumulated interest on the $1,000,000.00 Judgement
totalling $4,918.90 per month and $163.96 per day until the Execution Date,
calculated in accordance with 28 U.S.C (S) 1961 on the basis of 5.64% from
February 20, 1997; plus (c) $80,000.00.
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2. On the Execution Date, Ameron will wire transfer to an account
designated by Environ in immediately available funds the sum of $78,504.81 paid
to it by Environ and escrowed by Ameron.
3. On the Execution Date, TCI will wire transfer to an account
designated by Environ in immediately available funds the sum of $444,919.06,
calculated as follows: (a) $950,000.00 (representing the refund sought in the
Second Refund Action); less (b) $266,576.13 (representing the Royalties); less
(c) $160,000.00 (representing all infringement damages, counsel fees,
costs, expenses and all other charges of any kind arising from the Sump
Litigation); less (d) $78,504.81 (representing the Royalties returned to Environ
by Ameron hereunder).
4. On the Execution Date, Environ may release for its own use and
benefit any and all Royalties currently held by it in escrow.
5. The parties agree that expect as explicitly provided for in this
Agreement, no party has any claim to any of the Royalties and the distribution
and application of the Royalties as set forth in this Agreement is binding and
final on all parties.
6. Effective immediately upon receipt of the funds described in
paragraphs 1, 2, and 3, above, Ameron and Environ acknowledge and agree that any
license rights ever granted to them by the Xxxxxxx Group pursuant to the License
Agreement and/or Supplemental Agreement, or otherwise, are terminated and that
they have no rights to manufacture, sell, distribute, produce or use, in any
way, the Inventions except as otherwise provided in paragraph 7 of this
Agreement.
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7. Notwithstanding the provisions of paragraph 6, hereof, the
parties agree as follows:
a. As of January 31, 1998, Environ shall cease the sale,
offering for sale, distribution, or use, in any way, of the
Current GeoDuct for the terms of U.S. Patent Nos. 5,553,971,
5,567,083 and 5,590,981 subject only to the right to resume
such sales in the event of a final, non-appealable
determination of invalidity or unenforceability of such
patents;
b. As of January 31, 1998 Environ consents to, and shall be
enjoined from the sale, offering for sale, distribution, or
use of Current GeoDuct for the terms of U.S. Patent Nos.
5,553,971, 5,567,083 and 5,590,981 subject only to the
right to resume such sales in the event of a final, non-
appealable determination of invalidity or unenforceability
of such patents;
c. Between the dates of December 10, 1997 and January 31, 1998,
Environ may sell no more than 25,000 lineal feet of Current
GeoDuct;
d. TCI and the Xxxxxxx Group release Environ, as well as
Environ's customers, distributors, sales agents,
manufacturing agents, and any all other representatives of
any kind or nature, from any and claims for patent
infringement that currently exist, may have existed, or
might in the future arise from the manufacture, sale,
offering for sale, distribution, production or use of the
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Current GeoDuct; provided, however, that such release shall only
release claims arising from the sale by Environ of Current
GeoDuct: (i) through December 9, 1997 and (ii) for sale of no
more than an additional 25,000 lineal feet of Current GeoDuct
during the period December 10, 1997 through January 31, 1998. The
parties further agree that the release provided for in this
subparagraph and paragraph 13 does not include, and Environ and
its customers, distributors, sales agents, manufacturing agents,
and any other representatives of any kind or nature, are
therefore not release from, any claims for patent infringement
that may be or have been asserted by TCI or the Xxxxxxx Group
against Environ as a result of Environ's GeoFlex secondary piping
system, any design of any product other than the Current GeoDuct,
or any other product; and
e. Environ agrees that in the Patent Infringement Actions
interrogatories 35-38 and document requests 19 and 20 in its
Second Set of Interrogatories and Requests for Production of
Documents and Things are hereby withdrawn with prejudice and
shall not be reasserted. To the extent that any previous
unanswered discovery request addressed issues relating to the
continuing existence of a license to practice the Inventions, no
further discovery on this matter shall be sought. TCI and
Intelpro shall have no duty to supplement discovery about the
existence of a license.
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8. Environ, TCI and Intelpro will execute a stipulation and order,
in the form attached hereto as Exhibit "B" and Environ, TCI and Intelpro agree
to use their best efforts to have the Court promptly enter such order.
9. Environ has advised the parties and the parties agree that the
total amount of Royalties arising as a result of the sale by Environ of Current
GeoDuct is $266,576.13 through January 31, 1998 including the $78,504.81 held in
escrow by Ameron; provided, however, that TCI shall be entitled to have an audit
of Environ conducted on its behalf, and at its expense, by no later than
February 28, 1998 to confirm the accuracy of the amount of the Royalties as
stated by Environ. In the event discrepancies in the Royalty amount are revealed
by any such audit, TCI and Environ agree to negotiate in good faith in an
attempt to resolve such discrepancies for a period not to exceed 10 days from
the date notice of such discrepancies is received by Environ. In the event such
negotiations do not finally resolve the discrepancies revealed by the audit, TCI
and Environ agree to submit such dispute to binding arbitration before a
mutually agreeable third party arbitrator. In the event TCI and Environ cannot
agree upon a third party arbitrator, TCI and Environ agree to submit the dispute
to the American Arbitration Association (the "AAA") for resolution by a single
arbitrator pursuant to the AAA's rules governing commercial disputes. In the
event an award is issued requiring the payment of additional Royalties by
Environ, such additional Royalties shall be paid by Environ within 15 days of
the date of the arbitration award. All parties to this Agreement agree that no
party other than TCI shall have any right to or interest in any recovery
obtained in such arbitration.
10. Ameron is not a party to litigation or agreements between and
among Environ, TCI and the Xxxxxxx Group (or any entity thereof). Accordingly,
it is not a party to nor is it bound by any of the terms of any "Whereas" clause
herein,
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beginning at page 4, line 12 and ending at page 5, line 15; nor by any of the
terms of paragraphs Nos. 7 to 9, inclusive; Nos. 13 to 16, inclusive; and Nos.
21 to 22; with the exception that Ameron will assert no claim for Royalties from
Environ as described herein.
11. Ameron Release of TCI and the Xxxxxxx Group: Ameron for itself and
-------------------------------------------
its successors and assigns, hereby fully and forever releases, waives,
discharges and covenants not to xxx TCI and the Xxxxxxx Group, and their past
and present officers, directors, employees, attorneys, and agents and their
respective successors and assigns (collectively, the "TCI and Xxxxxxx Group
Releasees") from and in connection with any and all causes of action, suits,
claims, demands, counterclaims, setoffs and contributions, at law or in equity,
whether foreseen or unforeseen, whether known or unknown, which Ameron had, has
or may have against the TCI and Xxxxxxx Group Releasees for any liability for
any loss, damage, injury or expense of any kind arising from or relating to: (a)
the Xxxxxxx Group's execution of, entry into, or performance under the License
Agreement and Supplemental Agreement; (b) execution of, entry into or
performance of the Settlement Agreement by TCI and the Xxxxxxx Group; (c)
termination of Ameron's license rights to the Inventions; (d) termination of the
License Agreement and Supplemental Agreement; (e) any and all claims asserted by
Ameron in the License Termination Action; (f) refund of any royalties paid by
Ameron to the Xxxxxxx Group except as provided in Paragraphs 1 and 3, above; (g)
any and all claims asserted or pursued by Ameron in the Ameron and Environ
Appeal; (h) any and all claims asserted by Ameron in the First Refund Action;
(i) any and all claims asserted by Ameron in the Second Refund Action; (j) any
and all claims arising from and relating to the $1,000,000.00 Judgment; (k) any
and all claims arising from or relating to the $1,200,000.00 Security; (1) any
and all claims relating to the Royalties; (m) the license to the Inventions
granted by the Xxxxxxx Group to TCI; (n) manufacture, use,
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distribution, licensing, or sale of the Inventions or rights to the Inventions
by TCI or the Xxxxxxx Group; and/or (o) termination of the Interference.
12. TCI and the Xxxxxxx Group Release of Ameron: TCI and the Xxxxxxx
-------------------------------------------
Group, for themselves and their successors and assigns, hereby fully and forever
release, waive, discharge and covenant not to xxx Ameron and Ameron's past and
present officers, directors, employees, attorneys and agents and their
respective successors and assigns (collectively, the "Ameron Releasees") form
and in connection with any and all causes of action, claims, demands,
counterclaims, setoffs and contributions, at law or in equity, whether foreseen
or unforeseen, whether known or unknown, which TCI or the Xxxxxxx Group had, has
or may have against the Ameron Releasees for any liability for any loss, damage,
injury or expense of any kind arising from or relating to: (a) the execution of,
entry into, or performance under the License Agreement and Supplemental
Agreement; (b) any claims asserted by TCI or the Xxxxxxx Group against Ameron in
the License Termination Action; (c) any claims asserted by the Xxxxxxx Group
against Ameron in the First Refund Action or the Second Refund Action; (d) the
Costs; (e) the Summary Judgment Appeal; or (f) the $1,200,000.00 Security.
13. Xxxx and Environ Release of TCI and the Xxxxxxx Group: Xxxx and
-----------------------------------------------------
Environ for themselves and their successors and assigns, hereby fully and
forever release, waive, discharge and covenant not to xxx the TCI and Xxxxxxx
Group Releasees form and in connection with any and all causes of action, suits,
claims, demands, counterclaims, setoffs and contributions, at law or in equity,
whether foreseen or unforeseen, whether known or unknown, which Environ or Xxxx
had, has or may have against the TCI or Xxxxxxx Group Releasees for any
liability for any loss, damage, injury or expense of any kind arising from or
relating to: (a) the Xxxxxxx Group's execution of, entry into, or
performance under the License Agreement and Supplemental Agreement;
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(b) execution of, entry into, performance or effect of the Settlement Agreement
by TCI and the Xxxxxxx Group; (c) termination of Environ's license rights to the
Inventions; (d) termination of the License Agreement and Supplemental Agreement;
(e) any and all claims asserted by Environ in the License Termination Action;
(f) refund of any royalties paid by Ameron and/or Environ to the Xxxxxxx Group;
(g) any and all claims asserted or pursued by Environ in the Ameron and Environ
Appeal; (h) any and all claims asserted by Ameron in the First Refund Action;
(i) any and all claims asserted by Ameron in the Second Refund Action; (j) any
and all claims arising from or relating to the $1,000,000.00 Judgment; (k) any
and all claims arising from or relating to the $1,200,000.00 Security; (l) any
and all claims relating to the Royalties; (m) the license to the Inventions
granted by the Xxxxxxx Group to TCI; (n) any and all affirmative claims seeking
money damages relating to the manufacture, use, distribution, licensing, or sale
of the Inventions or rights to the Inventions by TCI or the Xxxxxxx Group; (o)
termination of the Interference; (p) any and all claims asserted by Environ in
the Xxxxxxxxxx County Action; (q) any and all claims asserted by Environ or Xxxx
in the Sump Litigation; (r) the settlement of the sump patent litigation between
TCI and the Xxxxxxx Group.
14. TCI and the Xxxxxxx Group Release of Environ and Xxxx: In
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addition to the release of claims set forth in paragraph 7, above, TCI and the
Xxxxxxx Group, for themselves and their successors and assigns, hereby fully and
forever release, waive, discharge and covenant not to xxx Environ, Xxxx and
Environ's past and present officers, directors, employees, attorneys and agents
and their respective successors and assigns (collectively, the "Environ
Releasees") from and in connection with any and all causes of action, suits,
claims, demands, counterclaims, setoffs and contributions, at law or in equity,
whether foreseen or unforeseen, whether known or unknown, which TCI or the
Xxxxxxx Group had, has or may have against the Environ
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Releasees for any liability for any loss, damage, injury or expense of any kind
arising from or relating to: (a) the execution of, entry into, or performance
under the License Agreement and Supplemental Agreement; (b) any claims asserted
by TCI or the Xxxxxxx Group against Environ in the License Termination Action;
(c) any claims asserted by the Xxxxxxx Group against Ameron in the First Refund
Action or the Second Refund Action; (d) the Costs; (e) any claims asserted by
TCI for damages, costs, fees, expenses or attorneys fees, of any kind or nature,
against Environ in the Sump Litigation; (f) the Summary Judgment Appeal; (g) the
Royalties, expect as specifically provided for in this Agreement.
15. The Xxxxxxx Group Release of TCI and XxXxxxxxx, Will & Xxxxx:
------------------------------------------------------------
Upon receipt by the Xxxxxxx Group of the refund of the $1,200,000.00 security
from the Clerk of the United States District Court for the Central District of
California, the Xxxxxxx Group for themselves and their successors and assigns,
hereby fully and forever release, waive, discharge and covenant not to xxx TCI,
and its past and present officers, directors, employees, attorneys and agents
and their respective successors and assigns and XxXxxxxxx, Will & Xxxxx and its
past and present partners, employees and agents (collectively, the "TCI
Releasees") from and in connection with any and all causes of action, suits,
claims, demands, counterclaims, setoffs and contributions, at law or in equity,
whether foreseen or unforeseen, whether known or unknown, which the Xxxxxxx
Group had, has or may have against the TCI Releasees for any liability for any
loss, damage, injury or expense of any kind arising from or relating to: (a) the
License Termination Action; (b) the Ameron and Environ Appeal; (c) the First
Refund Action; (d) the Second Refund Action; (e) the Summary Judgment Appeal;
(f) TCI's defense of the Xxxxxxx Group in the License Termination Action, the
Ameron and Environ Appeal, the First Refund Action, the Second Refund Action,
the Summary Judgment Appeal; (g) any claims asserted by the Xxxxxxx Group in its
third-party complaint
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against TCI in the Second Refund Action; (h) the $1,000,000.00 Judgment; (i) the
$1,200,000.00 Security; (j) Ameron's efforts to collect the $1,000,000.00
Judgment; (k) any costs, fees, damages or expenses of any kind or nature
incurred by the Xxxxxxx Group in connection with or as a result of the License
Termination Action, the Ameron and Environ Appeal, the First Refund Action, the
Second Refund Action, and/or the Summary Judgment Appeal; (1) any claim against
TCI asserting that the Xxxxxxx Group was damaged as a result of entry of the
$1,000,000.00 Judgment or filing and/or deposit of the $1,200,000.00 Security;
(m) any claim against TCI contending that TCI failed to comply with sections
2.2, 6.1, or 7.5 of the Settlement Agreement; (n) the Royalties; (o) any claim
against TCI contending that the Xxxxxxx Group is entitled to receive and/or
obtain any or all of the Royalties.
16. TCI Release of the Xxxxxxx Group: TCI for itself and its
--------------------------------
successors and assigns, hereby fully and forever releases, waives, discharges
and covenants not to xxx the Xxxxxxx Group, and their past and present officers,
directors, employees, attorneys, and agents and their respective successors and
assigns (collectively, the "Xxxxxxx Group Releasees") from and in connection
with any and all causes of action, suits, claims, demands, counterclaims,
setoffs and contributions, at law or in equity, whether foreseen or unforeseen,
whether known or unknown, which TCI had, has or may have against the Xxxxxxx
Group Releasees for any liability for any costs, fees, loss, damage, injury or
expense of any kind arising from or relating to: (a) the License Termination
Action; (b) the Ameron and Environ Appeal; (c) the First Refund Action; (d) the
Second Refund Action; (e) the Summary Judgment Appeal; (f) any costs, fees,
losses, damages, injuries or expenses of any kind or nature incurred by TCI
settling or defending itself or the Xxxxxxx Group in the License Termination
Action, the Ameron and Environ Appeal, the First Refund Action, the Second
Refund Action, the Summary Judgment Appeal and/or the Xxxxxxxxxx County Action;
(g) any
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claim against the Xxxxxxx Group contending that the Xxxxxxx Group failed to
comply with sections 2.2, 6.1 or 7.5 of the Settlement Agreement; (h) the
Xxxxxxxxxx County Action; (i) the Royalties; (j) any claim against the Xxxxxxx
Group arising from or relating to the Royalties; (k) any claim for fees or costs
due to XxXxxxxxx, Will & Xxxxx relating to any action referenced in this
Agreement and TCI further agrees to hold the Xxxxxxx Group harmless from any
such claim by XxXxxxxxx, Will & Xxxxx.
17. Ameron and Environ, for themselves, their successors, and
assigns, mutually, fully and forever release, waive, discharge and covenant with
each other not to xxx the other, their past and present officers, directors,
employees, attorneys, agents, successors and assigns, from and in connection
with any and all causes of action, suits, claims, demands, counterclaims, at law
or in equity, foreseen or unforeseen, whether known or unknown which either had,
has, or may have against each other for any and all liability of any kind
arising from or relating to: (1) the August 29, 1992 "License Agreement" between
Ameron and the Xxxxxxx Group; (2) the "Supplement Agreement" of July 22, 1994,
between Ameron and the Xxxxxxx Group; and (3) the "Ameron/Environ License
Agreement" of July 22, 1994 including but not limited to (a) the execution of
each document; (b) the implementation of either party of the Agreements; and (c)
litigation arising therefrom.
18. Immediately following compliance with Paragraphs 1 through 3,
above, counsel for the Xxxxxxx Group and Ameron will execute the Stipulation re
Disbursement in the form attached hereto as Exhibit "C" directing the Clerk of
the United States District Court for the Central District of California to
disburse the $1,200,000.00 Security, plus and accumulated interest thereon, to
the Xxxxxxx Group and all parties to this Agreement acknowledge and agree that
no party, other than the Xxxxxxx Group, has any right, title, interest or claim
to or in the $1,200,000.00 Security and the Xxxxxxx Group may receive and
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retain for their benefit the $1,200,000.00 Security free of any claim of any
other party to this Agreement.
19. Immediately following compliance with Paragraphs 1 through 3,
above, pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure,
counsel for the appropriate parties will, immediately following the Execution
Date, execute and file a notice in the form attached as Exhibit "D" notifying
the United States Court of Appeals for the Ninth Circuit that the Ameron and
Environ Appeal should be dismissed with prejudice with each party to bear its
own costs.
20. Immediately following compliance with Paragraphs 1 through 3,
above, pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure,
counsel for the appropriate parties will, immediately following the Execution
Date, execute and file a notice in the form attached as Exhibit "D" notifying
the United States Court of Appeal for the Ninth Circuit that the Summary
Judgment Appeal should be dismissed with prejudice with each party to bear its
own costs.
21. Immediately following the Execution Date, counsel for Environ
will file a praecipe in the form attached as Exhibit "E" notifying the Court of
--------
Common Pleas of Xxxxxxxxxx County, Pennsylvania that the Xxxxxxxxxx County
Action should be marked settled, discontinued and ended with prejudice, with
each party to bear its own costs.
22. Immediately following the Execution Date, counsel for TCI,
Environ and Xxxx will file a stipulation of dismissal in the form attached as
Exhibit "F" notifying the United States District Court for the Eastern District
of Pennsylvania that the Sump Litigation should be dismissed with prejudice with
each party to bear its own costs.
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23. Immediately following the Execution Date, counsel for Ameron and
the Xxxxxxx Group will file a stipulation of dismissal in the form attached as
Exhibit "G" notifying the United States District Court for the Central District
of California that the Second Refund Action, and all complaints filed in that
action, should be dismissed with prejudice with each party to bear its own
costs.
24. In the event it becomes necessary for any party or parties hereto
to initiate litigation due to the failure of any other party or parties hereto
to fulfill its or their obligations hereunder, or otherwise breach this
agreement, the prevailing party (parties) shall be entitled to reasonable
attorney fees from the party (parties) against which judgment is entered.
25. All the parties agree that the terms and conditions of this
Agreement will not be discussed, disclosed, or revealed, directly or indirectly,
to any person or entity, except for the disclosure necessary in connection with
the preparation of tax returns, the preparation of financial statements, and any
filings or reports necessary to be made with any regulatory body, or otherwise
required by law and except that the Xxxxxxx Group may disclose the terms and
conditions of this Agreement to counsel, and only counsel, to PICES by OPW and
its affiliates.
26. The parties acknowledge, having been advised by the counsel
listed below, that they and their duly authorized representatives and agents had
read the Agreement and that they fully know, understand, and appreciate its
contents and that they execute the Agreement and make the settlement provided
for herein voluntarily and of their own free will.
27. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17
28. This Agreement contains the entire Agreement among the parties on
the subject matter hereof, and supersedes all prior agreements and
understandings, oral and/or written. This Agreement may not be changed orally,
but may only be changed by writing signed by all parties. The invalidity of all
or any part of this Agreement will not render invalid the remainder hereof.
This Agreement will inure to the benefit of, and will be binding upon, the
parties hereto and their respective heirs, successors and assigns.
29. THE PARTIES HERETO ACKNOWLEDGE THAT THEY HAVE BEEN ADVISED BY
LEGAL COUNSEL AND ARE FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE
SECTION 1542, WHICH 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, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY
RIGHTS THEY MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON
LAW PRINCIPLES OF SIMILAR
18
AFFECT. THESE WAIVERS DO NOT, IN ANY MANNER, MODIFY THE OBLIGATIONS ASSUMED BY
THE PARTIES IN ANY OF THE PRECEDING PARAGRAPHS OF THIS AGREEMENT.
AGREED AS SET FORTH ABOVE:
_________________________________ TOTAL CONTAINMENT, INC.
Xxxxx Xxxxxxx
By /s/ Xxxxxx Xxxxxxxxxx
------------------------------
Dated:___________________________
Dated: Jan 22\98
--------------------------
Witness: [SIGNATURE ILLEGIBLE]
------------------------
BUFFALO ENVIRONMENTAL AMERON, INC.
PRODUCTS CORP.
By__________________________________ By______________________________
Dated:______________________________ Dated:__________________________
Witness:____________________________ Witness:________________________
INTELPRO CORP. ENVIRON PRODUCTS, INC.
By__________________________________ By______________________________
Dated:______________________________ Dated:__________________________
Witness:____________________________ Witness:________________________
________________________________
XXXXXXX X. XXXX
Dated:__________________________
19
APPROVED AS TO FORMS
_________________________________ ____________________________________
Xxxx X. Xxxx, Esquire Xxxxxx X. X'Xxxxxx, Esquire
Xxxxxxxx, Xxxx, Counsel to Ameron, Inc.
Xxxxxxxxxx & Xxxxxxxx
General Counsel to the
Xxxxxxx Group
_________________________________ ____________________________________
Xxxxxx Xxxxxx, Esquire Xxxxxx X. Xxxx, Esquire
Xxxxx, Xxxxx & Xxxxxx, L.L.P. Xxxxxxxxx & Xxxx
Counsel to the Xxxxxxx Group Counsel to Environ Products,
as Third Party Claimant in the Inc. and Xxxxxxx X. Xxxx
Second Refund Action
\s\ Xxxxxx Xxxxxxx,
_________________________________ ------------------------------------
Xxxxx X. Xxxxxx, Esquire Xxxxxx Xxxxxxx, Esquire
XxXxxxxxx, Will & Xxxxx Xxxxxxx & Xxx
Defense Counsel to the Counsel to Total Containment,
Xxxxxxx Group Inc.
20
[ILLUSTRATION APPEARS HERE]
[ILLUSTRATION APPEARS HERE]
[GeoDuct]
[ILLUSTRATION APPEARS HERE]
[ILLUSTRATION APPEARS HERE]
[ILLUSTRATION APPEARS HERE]
EXHIBIT A
[ILLUSTRATION APPEARS HERE]
GeoDuct, a 4" flexible, corrugated conduit, offers the feature of pipe
removability while providing additional support against backfill.
EXHIBIT A - Page 2
------------------
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ENVIRON PRODUCTS, INC., :
:
Plaintiff, :
: Civil Action No. 97-707
vs. :
:
TOTAL CONTAINMENT, INC. :
and INTELPRO CORPORATION, :
:
Defendants. :
------------
TOTAL CONTAINMENT, INC. :
and INTELPRO CORPORATION, :
:
Plaintiffs, :
: Civil Action No. 97-1020
vs. :
:
ENVIRON PRODUCTS, INC., :
:
Defendant. :
CONSENT JUDGMENT RESOLVING ONLY ISSUES PERTAINING
TO ENVIRON'S CURRENT DESIGN OF GEODUCT AND
THE ASSERTION BY ENVIRON OF A SUB-LICENSE DEFENSE
-------------------------------------------------
AND NOW, this day of , 1998, it is hereby stipulated by,
between, and among Total Containment, Inc. ("TCI"), Intelpro Corporation
("Intelpro") and Environ Products, Inc. ("Environ") as follows:
1. As of January 31, 1998, Environ shall for the terms of U.S. Patents
5,553,971, 5,567,083, and 5,590,981 cease the manufacture, sale, offering for
sale, distribution, production or
EXHIBIT B
---------
use, in any way ("prohibited acts"), of the current design of its GeoDuct
secondary containment pipe ("current GeoDuct") subject only to the right to
resume such prohibited acts in the event of a final, non-appealable
determination of invalidity or unenforceability of such patents. A true and
correct illustration of Environ's current GeoDuct is attached hereto and
incorporated herein as though fully set forth at length as Exhibit "A".
2. Environ consents to, and shall be, enjoined from the manufacture,
sale, offering for sale, distribution, production or use ("enjoined acts") of
its current Geoduct after January 31, 1998 for the terms of U.S. patents
5,553,971, 5,567,083 and 5,590,981 ("the patents") subject only to the right to
resume such enjoined acts in the event of a final, non-appealable determination
of invalidity or unenforceability of such patents.
3. Environ voluntarily strikes with prejudice Paragraphs 14 - 19 of Count
I of its Complaint for declaratory judgment in Case No. 97-707. Environ
voluntarily strikes with prejudice from its Answer in Case No. 97-1020 its First
Affirmative Defense and Fifth Affirmative Defense pertaining to the sub-license.
These affirmative defenses shall not be re-asserted.
4. Environ acknowledges that the sub-license has been terminated and
will not be asserted as a defense to this or any other infringement action.
-2-
5. Environ agrees that Interrogatories 35 - 38 and Document Requests 19
and 20 in its Second Set of Interrogatories and Requests for Production of
Documents and Things are hereby withdrawn with prejudice and shall not be
re-asserted. To the extent that any previous unanswered discovery requests to
TCI, Intelpro or any other person addressed issues relating to the continuing
existence of a license to practice the Inventions, no further discovery on this
matter shall be sought. TCI and Intelpro shall have no duty to supplement
discovery about the existence of a license.
6. The parties agree that the issues raised in Environ's Motion to
Bifurcate are now moot and there is, consequently, no need for a trial on the
sub-licensing issue. The parties jointly request that the Court vacate its Order
of November 12, 1997.
7. Nothing in this Stipulation is intended by the parties to affect the
claims of Total Containment, Inc. and Intelpro Corporation that Environ's
Geoflex piping system infringes the '981 patent. Likewise, nothing in this
Stipulation is intended to affect the claims to Total Containment, Inc. and
Intelpro Corporation that any subsequent redesign of the current Geoduct or any
other product infringes the '971, '083 and '981 patents. All such claims are
specifically preserved.
-3-
It is so stipulated.
WHITE AND XXXXXXXX LLP SEIDEL, GONDA, XXXXXXXX &
MONACO, P.C.
BY:_________________________
Xxxxxxx X. Xxxxxx, III BY:___________________________
Xxxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxxxx, Xx.
1800 One Liberty Place Xxx Xxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000 Suite 1800
(000) 000-0000 Xxxxxxxxxxxx, XX 00000
Attorneys for Total Attorneys for Environ
Containment, Inc. Products, Inc.
XXXXXX, O'BRIEN, XXXXXXX
AND XXXX, PC
BY:_________________________
Xxxx X. Xxxxxxxx
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attorneys for Intelpro Corporation
Approved and so Ordered.
It is Further Ordered that, for
Good Cause Shown, the Court's Order
of November 12, 1997 is hereby Vacated.
_______________________________________
Xxxxxx, X.X.
-4-
[ILLUSTRATION APPEARS HERE]
[ILLUSTRATION APPEARS HERE]
[GeoDuct
[ILLUSTRATION APPEARS HERE]
[ILLUSTRATION APPEARS HERE]
[ILLUSTRATION APPEARS HERE]
EXHIBIT A
[ILLUSTRATION APPEARS HERE]
GeoDuct, a 4" flexible, corrugated conduit, offers the feature of pipe
removability while providing additional support against backfill.
EXHIBIT A - PAGE 2
------------------
XxXXXXXXX, WILL & XXXXX
XXXXXXX X. XXXXX
XXXXX X. XXXXXX
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
Attorneys for Defendants
Xxxxx Xxxxxxx, Buffalo Environmental
Products Corporation and Intelpro Corporation
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
AMERON, INC., ) Case No. CV 96-6429 HLH
) (BQRX)
Plaintiff, )
v. ) STIPULATION RE DISBURSEMENT
) TO DEFENDANTS OF SUMS HELD IN
XXXXX XXXXXXX, BUFFALO ) COURT REGISTRY
ENVIRONMENTAL PRODUCTS, and )
INTELPRO CORPORATION, )
)
Defendants. )
)
)
)
______________________________
Plaintiff Ameron, Inc. and defendants Xxxxx Xxxxxxx Buffalo
Environmental Products Corporation and Intelpro Corporation ("Defendants"), by
and through their respective counsel of record, hereby stipulate as follows:
WHEREAS, the Court on April 28, 1997 entered an order providing for,
among other things, the deposit of $1,200,000.00 in cash into the registry of
this Court as security for the pending appeal in this matter;
WHEREAS, Defendants deposited $1,200,000.00 in cash into the registry of
this Court, pursuant to this Court's April 28, 1997 Order and Local Rule 24.7,
on June 3, 1997;
EXHIBIT C
---------
WHEREAS, the Court on June 12, 1997 entered an order providing that, among
other things, the clerk shall hold the $1,200,000.00 deposited by Defendants in
the registry of the Court in an interest-bearing account, in accordance with
Local Rule 22, in lieu of a supersedeas bond as security for the judgment
entered herein until the Court issues further orders concerning disposition of
said sums; and
WHEREAS, the parties have resolved this case and the pending appeal from
the Court's judgment herein.
NOW THEREFORE, it is hereby stipulated that:
1. Subject to approval of the Court, the Court shall order the Clerk of the
Court to pay to Defendants all amounts currently on deposit in the registry of
the Court (including accrued interest). Said order shall be in the form attached
hereto as Exhibit A.
Dated: December __, 1997 LAW OFFICES OF XXXXXX X. X'XXXXXX
Xxxxxx X. X'Xxxxxx
By: _____________________________
Xxxxxx X. X'Xxxxxx
Attorneys for Plaintiff
Ameron, Inc.
Dated: December __, 1997 XxXXXXXXX, WILL & XXXXX
XXXXXXX X. XXXXX
XXXXX X. XXXXXX
By: _____________________________
Xxxxx X. Xxxxxx
Attorneys for Defendants Xxxxx
Xxxxxxx, Buffalo Environmental
Products Corporation and Intelpro
Corporation
-2-
XxXXXXXXX, WILL & XXXXX
XXXXXXX X. XXXXX
XXXXX X. XXXXXX
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
Attornerys for Defendants
Xxxxx Xxxxxxx, Buffalo Environmental
Products Corporation and Intelpro Corporation
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
AMERON, INC., ) CASE No. CV 96-6429 HLH
) (BQRX)
Plaintiff, )
v. ) ORDER DIRECTING CLERK TO
) DISBURST TO DEFENDANTS ALL
XXXXX XXXXXXX, BUFFALO ) SUMS HELD IN COURT REGISTRY
ENVIRONMENTAL PRODUCTS, and )
INTELPRO CORPORATION, )
)
Defendants. )
)
)
____________________________ )
Based on the Stipulation Re Disbursemant To Defendants of Sums Held
In Court Registry filed by the parties herein on December __, 1997, and good
cause appearing therefor,
IT IS HEREBY ORDERED that:
1. The Clerk of this Court shall pay to defendant Buffalo
Environmental Products Corporation all amounts currently on deposit in the
registry of the Court in the above-captioned action, including accrued interest.
The Clerk shall mail such payment to defendant's counsel, Xxxxx X. Xxxxxx, Esq.,
XxXxxxxxx,
Will & Xxxxx, 0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
Dated: __________________ ___________________________________
The Xxxxxxxxx Xxxxx X. Xxxx
United States District Judge
Approved as to Form:
LAW OFFICES OF XXXXXX X. X'XXXXXX
Xxxxxx X. X'Xxxxxx
By: ____________________________________
Xxxxxx X. X'Xxxxxx
Attorneys for Plantiff
Ameron, Inc.
XxXXXXXXX, WILL & XXXXX
XXXXXXX X. XXXXX
XXXXX X. XXXXXX
By: ____________________________________
Xxxxx X. Xxxxxx
Attorneys for Defendants Xxxxx
Xxxxxxx, Buffalo Environmental
Products Corporation and Intelpro
Corporation
-2-
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERON, INC., et al., ) No. 97-55344
)
Plaintiffs-Appellants, ) DC# CV-94-07871-HLH
) Central California
) (Los Angeles)
)
v. )
)
TOTAL CONTAINMENT, INC., et al., )
)
Defendants/Counter- )
claimants/Appellees )
)
__________________________________ )
)
AMERON, INC., ) No. 97-55491
) DC# XX-00-00000-XXX
Xxxxxxxxx-Xxxxxxxx, ) Central California
) (Los Angeles)
v. )
)
XXXXX XXXXXXX, et al., ) STIPULATION RE
) DISMISSAL OF APPEALS
Defendants-Appellants. )
)
__________________________________ )
Pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure,
the parties to these appeals hereby stipulate and agree that the above-captioned
appeals should be dismissed
EXHIBIT D
---------
1
with prejudice, with each party to bear its own costs.
________________________________
Xxxxxx X. X'Xxxxxx, Esquire
000 X. Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000-0000
(000) 000-0000
Counsel For AMERON, Inc.
Plaintiff-Appellant,
No. 97-55344 and
Plaintiff-Appellee
No. 97-55491
XXXXXXXXXXX & XXXXXXXX
By______________________________
Xxxx X. Xxxxxxxxxxx, Esquire
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
(000) 000-0000
Counsel for Environ Products,
Inc., Plaintiff-Appellant,
No. 97-55344
XXXXXXX & XXX
By /s/ Xxxxxx Xxxxxxx
------------------------------
Xxxxxx Xxxxxxx, Esquire
000 X. 0xx Xx X.X. Xxx 000
Xxxxxxx, XX 00000-0000
Counsel for Total Containment,
Inc., Defendant/Counter-claimant/
Appellee, No. 97-55344
XxXXXXXXX, WILL & XXXXX
By______________________________
Xxxxx X. Xxxxxx, Esquire
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
(000) 000-0000
Counsel for Xxxxx Xxxxxxx,
Buffalo Environmental Products;
Intelpro Corporation,
Defendants-Appellants,
No. 97-55491, Defendants-
Appellees, No. 97-55344
2
Xxxxxx X. Xxxx, Esquire
Identification No.: 34824
Xxxxxxxxx & Xxxx
0000 Xxxxxx Xx. - 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
(000) 000-0000
_____________________________
:
ENVIRON PRODUCTS, INC. :
: COURT OF COMMON PLEAS OF
Plaintiff, : XXXXXXXXXX COUNTY,
: PENNSYLVANIA
vs. :
: CIVIL ACTION - LAW
TOTAL CONTAINMENT, INC. :
: No. 97-14225
Defendant. :
_____________________________:
PRAECIPE
--------
TO THE PROTHONOTARY:
Please xxxx this action settled, discontinued and ended with prejudice with
each party to bear its own costs.
DATED: _________________ XXXXXXXXX & XXXX
By___________________________
Xxxxxx X. Xxxx, Esquire
Attorney I.D. No. 34824
0000 Xxxxxx Xx. - 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
(000) 000-0000
Attorneys for Environ Products,
Inc.
EXHIBIT E
---------
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
TOTAL CONTAINMENT, INC., )
)
Plaintiff, )
)
v. ) Civil Action No. 91-7911 (RSG)
)
ENVIRON PRODUCTS, INC. and )
XXXXXXX X. XXXX, )
)
Defendants. )
STIPULATION AND ORDER
AND NOW, this ____ day of __________________, it is hereby stipulated
by and between the parties that the following unresolved issues shall be
dismissed with prejudice, and this action marked "Terminated and Closed" by the
Clerk, with each party to bear its own costs: (1) damages on account of
defendant Environ Products, Inc.'s infringement on claim 5 of Plaintiff's U.S.
Patent No. 5,040,408 and (2) defendant Environ Products, Inc.'s liability to
plaintiff for its attorney fees, costs and
EXHIBIT F
---------
expenses incurred in response to defendant's inequitable conduct defense.
DATED:___________________ XXXXXXX & XXX
By /s/ Xxxxxxx X. Xxxxx
------------------------
Xxxxxxx X. Xxxxx, Esquire
Xxxxxx Xxxxxxx, Esquire
11l X. 0xx Xx., X.X. Xxx 000
Xxxxxxx, XX 00000-0000
(000) 000-0000
Attorneys for Plaintiff,
Total Containment, Inc.
XXXXXXXXX & XXXX
By_________________________
Xxxxxx X. Xxxx, Esquire
0000 Xxxxxx Xx., 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
(000) 000-0000
Attorneys for Defendants
Environ Products, Inc. and
Xxxxxxx X. Xxxx
SO ORDERED:
____________________________________
U.S.D.J.
EXHIBIT F
---------
XxXXXXXXX, WILL & XXXXX
XXXXXXX X. XXXXX
XXXXX X. XXXXXX
XXXXXX X. XXXXXXXXX
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
Attorneys for Defendants and Counterclaimants
Xxxxx Xxxxxxx, Buffalo Environmental
Products Corporation and Intelpro Corporation
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
AMERON, INC., ) Case No. CV 97-3486 HLH
) (BQRX)
Plaintiff, )
v. ) STIPULATION OF DISMISSAL
)
XXXXX XXXXXXX, BUFFALO ) [F.R.C.P. 41(a)(1)(i) and
ENVIRONMENTAL PRODUCTS AND ) F.R.C.P. 41(a)(1)(ii)]
INTELPRO CORPORATION, )
)
Defendants )
)
____________________________________
Plaintiff Ameron, Inc. ("Ameron") and defendants Xxxxx Xxxxxxx, Buffalo
Environmental Products Corporation and Intelpro Corporation (collectively, the
"Xxxxxxx Group"), by and through their respective counsel of record, hereby
stipulate and agree as follows:
1) The Complaint filed by Ameron and the Counterclaim filed by the
Xxxxxxx Group shall be and hereby are dismissed in their entirety with
prejudice pursuant to Federal Rules of Civil Procedure Rule
41(a)(1)(ii). Each party shall bear its own costs and attorneys' fees.
EXHIBIT G
---------
2) The Third Party Complaint filed by the Xxxxxxx Group against Total
Containment, Inc., to which no responsive pleading has yet been filed,
shall be and hereby is dismissed in its entirety with prejudice
pursuant to Federal Rules of Civil Procedure Rule 41(a)(1)(i). The
Xxxxxxx Group shall bear its own costs and attorneys'
fees in connection with the filing of the Third Party Complaint.
Dated: January __, 1998 LAW OFFICES OF XXXXXX X. X'XXXXXX
Xxxxxx X. X'Xxxxxx
By: ______________________________
Xxxxxx X. X'Xxxxxx
Attorneys for Plaintiff
Ameron, Inc.
Dated: January __, 1998 XxXXXXXXX, WILL & XXXXX
XXXXXXX X. XXXXX
XXXXX X. XXXXXX
XXXXXX X. XXXXXXXXX
By: -______________________________
Xxxxx X. Xxxxxx
Attorneys for Defendants and
Counterclaimants Xxxxx Xxxxxxx,
Buffalo Environmental Products
Corporation and Intelpro Corporation
Dated: January __, 1998 XXXXX, XXXXX & XXXXXX LLP
XXXXX X. XXXXXX
XXXXX X. XXXXXXXX
By: ______________________________
Xxxxx X. Xxxxxx
Attorneys for Third Party Plaintiffs
Xxxxx Xxxxxxx, Buffalo Environmental
Products Corporation and Intelpro
Corporation
IT IS SO ORDERED.
DATED: _____________, 1998 ___________________________________
Xxx. Xxxxx X. Xxxx
