EXHIBIT 10.30
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
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This Settlement Agreement and Mutual Release ("Agreement") is made and
entered into as of the 11th day of April, 2001 by and between Peerless Systems
Corporation, a Delaware Corporation ("Peerless") on the one hand, and Xxxxxx X.
Xxxxxx ("Xxxxxx"), on the other hand. In this Agreement, the term "Parties"
refers collectively to Peerless and Xxxxxx.
R E C I T A L S
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WHEREAS, on or about December 7, 1999, Peerless entered into an
"Agreement and Plan of Reorganization and Merger" (the "Merger Agreement") with
Xxxxxx, Xxxxx X. Xxxxxxxxx ("Xxxxxxxxx"), HDE, Inc. ("HDE"), a Washington
Corporation, and HDE Merger Sub, Inc. ("Sub"), a Washington Corporation;
WHEREAS, on or about December 7, 1999, Peerless entered into an
"Escrow Fund Agreement" (the "Escrow Agreement") with Xxxxxx and Xxxxxxxxx, with
Xxxxx Fargo Bank Minnesota, N.A. (fka Norwest Bank Minnesota, N.A.) as escrow
agent (the "Escrow Agent"), whereby certain shares of the Peerless common stock
acquired by Xxxxxx under the Merger Agreement (the "Xxxxxx Shares") are held in
escrow as collateral for certain obligations under the Merger Agreement;
WHEREAS, on or about December 20, 1999, Peerless entered into a "Non-
Competition Agreement" (the "Non-Competition Agreement") with Xxxxxx;
WHEREAS, on or about December 20, 1999, Peerless entered into a
"Registration Rights Agreement" (the "Registration Rights Agreement") with
Xxxxxx and Xxxxxxxxx;
WHEREAS, on or about December 20, 1999, Peerless entered into an
"Employment Agreement" (the "Employment Agreement") with Xxxxxx;
WHEREAS, certain disagreements have arisen between the Parties from
the events surrounding the negotiation, execution and performance of the Merger
Agreement;
WHEREAS, on or about July 12, 2000, Peerless filed an action entitled
Peerless Systems Corporation x. Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxxxxx in the
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United States District Court for the Central District of California, Case No.
00-07577 RSWL (CTx), against Xxxxxx and Xxxxxxxxx asserting causes of action for
breach of contract, intentional misrepresentation and negligent
misrepresentation (the "Peerless Action"); and
WHEREAS, the Parties are desirous of settling and compromising their
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differences, and have negotiated this Agreement in good faith and in a desire to
resolve all claims which may exist between them in or relating to the Merger
Agreement, the Escrow Agreement, the Non-Competition Agreement, the Registration
Rights Agreement, the Employment Agreement and the Peerless Action;
NOW, THEREFORE, in consideration of the above recitals and the
following covenants and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, it is hereby agreed as
follows:
1. PURPOSE
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The Parties understand, acknowledge and agree that the execution,
delivery and performance of this Agreement constitutes a compromise of all
claims between them involving legal and factual questions and is not to be
construed as an admission of liability or guilt on the part of either Party to
this Agreement and shall not be admissible as evidence at any trial or other
proceeding involving either Party to this Agreement except for proceedings to
enforce this Agreement and all related agreements. It is the desire and
intention of the Parties to effect a final settlement and resolution of all
existing and anticipated disputes and claims between them regardless of their
nature or basis, including, without limitation, the Peerless Action and all
issues relating to damages, if any, allegedly incurred by either of the Parties.
The Parties also intend and desire that this Agreement shall be binding upon and
shall inure to the benefit of not only the Parties but
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also upon and to the benefit of their respective successors and assigns.
2. TERMS OF SETTLEMENT.
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The Parties agree as follows:
(i) Consideration: Concurrently with delivery of this Agreement,
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fully executed, the parties agree to exchange the following consideration: (a)
Peerless agrees that Peerless shall instruct the Escrow Agent to release to
Xxxxxx all Xxxxxx Shares presently held in escrow, notwithstanding any contrary
term of the Escrow Agreement, including but not limited to Paragraph 2 of the
Escrow Agreement which otherwise governs the timed release of Xxxxxx Shares from
escrow; (b) Peerless further agrees that, notwithstanding any contrary term of
the Escrow Agreement, including but not limited to Paragraph 2 of the Escrow
Agreement, it shall, with all due haste and within three weeks of the execution
of this agreement by Xxxxxx, prepare and file a registration statement or
document in compliance with the Securities Act of 1933 for the purpose of
registering all Peerless common stock owned by Xxxxxx, including but not limited
to all Xxxxxx Shares presently held in escrow; and (c) Peerless further agrees
that it shall bear all costs resulting from or associated with the registration
of any and all Peerless common stock owned by Xxxxxx, including but not limited
to the Xxxxxx Shares presently held in escrow.
(ii) For a period of six (6) months following the effective date of
this
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Agreement, and terminating no later than September 30, 2001, Peerless agrees to
purchase any Xxxxxx Shares offered by Xxxxxx for sale to Peerless at a price of
$.75 per share. Peerless shall not be obligated to purchase from Xxxxxx in
excess of 150,000 Xxxxxx Shares at any one time. Following a purchase by
Peerless of Xxxxxx Shares, Peerless shall not be obligated to purchase
additional Xxxxxx Shares for a period of twenty-one (21) days from the date of
the completion of the prior purchase. Notwithstanding anything to the contrary
contained herein, Peerless shall only be obligated to purchase Xxxxxx Shares
from a source of funds legally available therefor as contemplated in Section 160
of the Delaware Corporation Law, 8 Del. C. (S) 160, and Peerless shall not be
obligated to purchase any Xxxxxx Shares if Peerless would be restricted from
doing so under Securities and Exchange Commission Regulation M, 17 C.F.R.
(S)242.104.
(iii) In consideration of the foregoing, Xxxxxx agrees as follows:
(a) Xxxxxx reconfirms and agrees to abide by all terms and conditions of the
agreements referenced above, except as expressly modified herein; and (b)
Xxxxxx acknowledges that he shall maintain the secrecy and confidentiality of
any and all business or proprietary information of Peerless in his possession,
custody or control, whether that business information was obtained from Peerless
or otherwise learned in the course of his employment, and further covenants and
agrees that he will not use such business or proprietary information of Peerless
or disclose such information to any person or entity
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unless such disclosure is ordered by a court of competent jurisdiction or is
consented to in advance by Peerless.
(iv) The Parties' rights and obligations under the above-referenced
Non-Competition Agreement shall be modified in the following respects: Xxxxxx
covenants and agrees that for the period commencing on the date hereof and
ending on December 20, 2001 (such period being referred to herein as the
"Covenant Period"), Xxxxxx and any and all Affiliates of Xxxxxx (as defined
below) shall not in North America or Asia (the "Non-Compete Region"), directly
or indirectly:
(1) engage in business with any of the entities listed on Exhibit A
hereto and incorporated herein by reference which in any way relates
to any of the following technologies and/or activities: distributed
internet printing (the distribution of digital images via the
internet), network attached storage, driverless printer technology
(the transmission of images from a host to a printer without the use
of a software driver), the development of control devices for laser or
inkjet printers, the development of software associated with operating
systems, the development of software associated with page description
language, and the development of modifications, extensions or
accessories to any software products or other technology identified in
this subparagraph;
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(2) enter the employ of, or render any services related to the
technologies and/or activities described in sub-paragraph 2(iv)(1)
above to or for any entity listed on Exhibit A hereto; or
(3) become interested in any entity listed on Exhibit A hereto in any
capacity; provided, however, that Xxxxxx may own, directly or
indirectly, solely as an investment, securities of any entity listed
on Exhibit A hereto which is traded on any national securities
exchange or automated quotation system if Xxxxxx, individually or in
the aggregate, is not a controlling person of, or a member of a group
which controls such entity and does not, directly or indirectly,
"beneficially own" (as defined in Rule 13d-3 of the Securities
Exchange Act of 1934, as amended, without regard to the 60 day period
referred to in Rule 13d-3(d)(1)(i)) 5% or more of any class of
securities of such entity.
In addition and without limiting the foregoing, for the Covenant
Period, neither Xxxxxx nor Affiliates of Xxxxxx shall, within the Non-Compete
Region, engage or participate in any effort or act to induce or solicit any of
the entities listed on Exhibit A hereto, suppliers, associates, employees or
independent contractors of Peerless to cease doing business, or to discontinue
such person's association or employment with Peerless
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for any reason.
For purposes of this Agreement: (a) control or participation in any
competing business shall be deemed to include (but shall not be limited to)
ownership in excess of five percent (5%) of the aggregate capital stock of such
competing business, and (b) the term "Affiliate of Xxxxxx" shall include any
individual, partnership, joint venture, corporation, trust, unincorporated
organization or other entity that as of the date of this Agreement or during the
Covenant Period, directly or indirectly through one or more intermediaries, is
controlled by Xxxxxx or any relative or spouse of Xxxxxx who has the same home
as Xxxxxx.
Except as set forth in this sub-paragraph, the Parties' rights and
obligations under the Non-Competition Agreement shall terminate as of the
effective date of this Agreement.
(v) Transfer and Assignment of the `346 Patent: Notwithstanding
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any other term hereof, Xxxxxx reconfirms and agrees to abide by all terms and
conditions of the agreements referenced above as they relate to the Dynamic
Device Driver patent transferred and assigned to Peerless under the Merger
Agreement, U.S. Patent Number 6,148,346, issued November 14, 2000 (the "`346
Patent").
(vi) Termination of Employment Agreement: Upon delivery of a fully
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executed copy of this Agreement to Peerless, the Parties' rights and obligations
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under the Employment Agreement shall terminate.
(vii) Dismissal of the Peerless Action: Upon the delivery of a
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fully executed copy of this Agreement to Peerless, Peerless will dismiss Xxxxxx
from the Peerless Action with prejudice.
3. MUTUAL RELEASE OF CLAIMS.
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(a) Release by Xxxxxx.
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Effective upon the satisfaction of all obligations and conditions by
Peerless contained in this Agreement, Xxxxxx hereby fully releases and forever
discharges Peerless and its predecessors, successors, former, current and/or
future assigns, transferees, attorneys, representatives, agents, officers,
directors, accountants, auditors, affiliates, subsidiaries, partners,
shareholders, and employees, on account of any and all claims, demands, actions,
charges, causes of action, suits, liabilities, obligations, promises, contracts,
agreements, damages, losses, expenses, costs (including but not limited to
attorneys' fees and costs actually incurred) of whatever nature and kind,
wherever filed or prosecuted, and whether or not yet asserted, including without
limitation, any claim, known or unknown, suspected or unsuspected, and any
liability alleged as a result of actions undertaken, done, or omitted to be done
up to and including the date of this Agreement, including without limitation
those related to or in any manner incidental to any claims, matters or
allegations which might have been asserted in the Peerless Action.
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(b) Release by Peerless.
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Effective upon the satisfaction of all obligations and conditions by
Xxxxxx contained in this Agreement, Peerless hereby fully releases and forever
discharges Xxxxxx and his predecessors, successors, former, current and/or
future assigns, transferees, attorneys, representatives, agents, officers,
directors, accountants, auditors, affiliates, subsidiaries, partners,
shareholders, employees, spouse, family members and heirs on account of any and
all claims, demands, actions, charges, causes of action, suits, liabilities,
obligations, promises, contracts, agreements, damages, losses, expenses, costs
(including but not limited to attorneys' fees and costs actually incurred) of
whatever nature and kind, wherever filed or prosecuted, and whether or not yet
asserted, including without limitation, any claim, known or unknown, suspected
or unsuspected, and any liability alleged as a result of actions undertaken,
done, or omitted to be done up to and including the date of this Agreement,
including without limitation those related to or in any manner incidental to any
claims, matters or allegations which were asserted or which might have been
asserted in the Peerless Action.
4. WAIVER OF CIVIL CODE SECTION 1542.
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The Parties knowingly, voluntarily, intentionally and expressly waive
and
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relinquish any and all rights and benefits that they have against each other and
each other's predecessors, successors, former, current and/or future assigns,
transferees, attorneys, representatives, agents, officers, directors,
accountants, auditors, affiliates, subsidiaries, partners, shareholders, and
employees under Section 1542 of the California Civil Code, as stated below, or
any other similar provision of any other jurisdiction, including Washington, to
the extent of its similarity. California Civil Code Section 1542 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, and each of them, acknowledge that the foregoing waiver
of the provisions of Section 1542 of the California Civil Code was separately
bargained for. The Parties, and each of them, knowingly, voluntarily,
intentionally and expressly waive any and all rights and benefits conferred by
Section 1542, or by any law of any state or territory of the United States or
principle of common law that is similar or analogous to Section 1542, to the
extent of such similarity to Section 1542, and agree and acknowledge that this
waiver is an essential term of this Agreement, without which the above-mentioned
consideration and dismissal herein would not have been given.
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5. ADVICE OF COUNSEL.
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In executing this Agreement, the Parties each on their own behalf
acknowledge that they have consulted with and had the advice and counsel of an
attorney and that they have executed this Agreement after careful and
independent investigation, and not under fraud, duress or undue influence.
6. NO ASSIGNMENT OF CLAIMS.
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The Parties represent and warrant that they have not assigned or
otherwise transferred or subrogated and shall not assign or otherwise transfer
or subrogate any interest in any claims that they have against each other which
are the subject matter of this Agreement, the releases contained herein, or the
Peerless Action.
7. APPLICABLE LAW.
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This Agreement is made and entered into in the State of California and
shall in all respects be interpreted, enforced, and governed under the internal
laws (and not the law of conflicts) of that state. The language and all parts
of this Agreement shall be in all cases construed as a whole according to its
meaning and not strictly for or against either Party.
8. COSTS, ATTORNEYS' FEES AND EXPENSES.
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All costs, attorneys' fees and expenses incurred in the Peerless
Action and
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in the preparation, negotiation and execution of this Agreement, shall be borne
by the party who incurred them.
9. NO RELIANCE UPON ANY STATEMENT.
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The Parties hereto and their counsel specifically acknowledge and
agree that they have read this Agreement and execute it without relying upon any
statements, representations, or warranties, written or oral, as to any law or
fact made by any other party or attorney, not expressly set forth herein. The
Parties to this Agreement have read and understand its terms, and warrant and
represent that this Agreement is executed voluntarily and without duress or
undue influence on the part of or on behalf of either party hereto.
10. CONFIDENTIALITY
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The Parties agree that, except to the extent that disclosure may be
required in enforcement proceedings, they will not disclose the fact of this
Agreement or the terms of this Agreement to anyone other than their attorneys,
accountants, auditors, tax preparers, officers, directors or managing agents to
the extent they need to know; and shall forthwith instruct such attorneys,
accountants, auditors, tax preparers, officers, directors or managing agents not
to disclose the fact or terms or conditions of this Agreement to anyone.
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11. NON-DISPARAGEMENT.
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Each of the Parties to this Agreement agree not to make any false,
negative, derogatory or disparaging statements concerning the persons to whom
such Party is granting a release of claims under this Agreement.
12. ENTIRE AGREEMENT.
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This Agreement memorializes and constitutes the entire Agreement and
understanding between the Parties with respect to the subject matter hereof, and
supersedes and replaces all prior negotiations, proposed agreements and
agreements, whether written or unwritten. The Parties acknowledge that no other
party, nor any agent or attorney of any other party has made any promises,
representations, or warranties whatsoever, expressly or impliedly, which are not
expressly contained in this Agreement, and the Parties further acknowledge that
they have not executed this Agreement in reliance upon any collateral promise,
representation, warranty, or in reliance upon any belief as to any fact or
matter not expressly set forth in this Agreement. The representations and
warranties of the Parties contained herein shall survive the execution of this
Agreement.
13. NECESSARY AUTHORITY AND APPROVAL.
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Each Party, on its own behalf, represents, warrants, and agrees that
it has
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the full right and authority to enter into this Agreement, and that no further
authority or approval is necessary, and that the person(s) executing this
Agreement on its behalf has the full right and authority fully to commit to bind
that party.
14. ARBITRATION
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Any dispute between the Parties hereto, including but not limited to
disputes about the subject matter, validity, interpretation, effect or alleged
violation of this Agreement ("Arbitrable Dispute") shall be submitted to final
and binding arbitration in Los Angeles, California before a neutral arbitrator
selected in accordance with the procedures of the American Arbitration
Association or some other tribunal to which the parties mutually agree. The
arbitrator may not modify or change this Agreement in any way. The arbitrator
shall be bound by California statutory and decisional law.
Each party shall pay the fees of his or its respective attorneys, the
expenses of witnesses and any other expenses connected with the arbitration, but
all other costs of the arbitration, including the fees of the arbitrator, cost
of any record or transcript of the arbitration, administrative fees and other
fees and costs shall be paid in equal shares by the parties to the arbitration.
Arbitration in this manner shall be the exclusive remedy for any
Arbitrable Dispute. The arbitrator's decision or award shall be fully
enforceable and subject to an
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entry of judgment by a court of competent jurisdiction. Should one party to this
Agreement attempt to resolve an Arbitrable Dispute by any method other than
arbitration pursuant to this paragraph without the written agreement of the
other party, the responding party shall be entitled to recover from the
initiating party all damages, costs, expenses and attorneys' fees incurred as a
result.
15. EXECUTION IN COUNTERPARTS.
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The Parties agree that this Agreement may be executed in counterparts
and that it is the intent of the Parties that a copy of this Agreement signed by
a Party shall be fully enforceable against that Party.
16. SEVERABILITY.
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Should any provision of this Agreement (other than the release of
claims provision in Section 3 above) be declared or determined by any court to
be illegal or invalid, the validity of the remaining parts, terms or provisions
shall not be affected
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thereby and said illegal or invalid part, term or provision shall be deemed not
to be a part of this Agreement.
DATED: April __, 2001
PEERLESS SYSTEMS CORPORATION
By:
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Its
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DATED: April __, 2001 ----------------------------------------
XXXXXX X. XXXXXX
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SPOUSAL CONSENT
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I, ________________________, hereby certify that:
1. I am the spouse of Xxxxxx X. Xxxxxx.
2. I have read the Settlement Agreement and Mutual Release (the
"Agreement") executed between Xxxxxx X. Xxxxxx and Peerless Systems Corporation,
a Delaware Corporation ("Peerless"), dated as of April __, 2001, and I
understand its contents.
3. I understand that, pursuant to the provisions of the Agreement, my
spouse will acquire certain shares of Peerless (the "Escrow Shares") which are
presently held in escrow as collateral for certain obligations under the
"Agreement and Plan of Reorganization and Merger" (the "Merger Agreement") dated
December 7, 1999.
4. I hereby agree to be bound by the terms of the Agreement and their
application to my community property interest, if any, in the Escrow Shares, and
further
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agree that I will take no action at any time to hinder the operation of the
Agreement as it relates to my interest, if any, in the Escrow Shares.
Executed this __ day of April, 2001 at ,
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Washington.
By:
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Name:
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EXHIBIT A
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Oki Data Corp.
Epson
Sharp Labs
NEC
Sharp - Japan
Canon
Hitachi
Matsushita (MEI)
Minolta
MGCS
KME
Kyocera
Konica
IBM
Sentr@Net
Nomadix
Atreus
LodgeNet
ProfitSuites
Lucent
STSN
XXX Xxxxxxxxxxx
Brocade, Inc.
SNAP
Hewlett-Packard Company
Quantum
NetStorage
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