United States District Court, N.D. California, San Jose Division
December 8, 2005.
XEROX CORPORATION, Plaintiff,
FAR WESTERN GRAPHICS, INC., Defendant. AND RELATED COUNTER ACTION.
The opinion of the court was delivered by: JEREMY FOGEL, District Judge
STIPULATION FOR DISMISSAL; ORDER
The parties hereto hereby stipulate and agree as follows:
1. This entire case is hereby dismissed with prejudice.
Notwithstanding the foregoing, however, the court shall retain
jurisdiction in this matter with regard only to plaintiff XEROX
CORPORATION'S ("Xerox") first amended complaint to the extent
necessary to enter judgment against defendants FAR WESTERN
GRAPHICS, INC. ("FWG") and DAVID PAUL MOTEKAITIS ("Motekaitis")
(hereinafter collectively referred to as "F&M") in the event F&M
fail to fulfill their obligations to Xerox as delineated herein. 2. In the event F&M fail to strictly comply with the provisions
of paragraph 3 hereof, judgment shall be entered in favor of
Xerox and against F&M in the sum of $550,000.00 (five hundred
fifty thousand dollars), less all amounts that are indeed paid by
F&M under this stipulation. Notwithstanding the foregoing, while
FWG is liable for any and all amounts due hereunder, Motekaitis'
personal liability is limited to $166,000.00 (one hundred sixty
six thousand dollars) of the amounts due and owing hereunder,
whether it be $166,000.00 (one hundred sixty six thousand
dollars) of the settlement amount, $166,000.00 (one hundred sixty
six thousand dollars) of the default amount or $166,000.00 (one
hundred sixty six thousand dollars) of any other amount that my
be due hereunder.
3. Judgment shall not be entered so long as F&M strictly comply
with the following payment schedule:
(a) F&M shall pay to Xerox the sum of $400,000.00 (four hundred
thousand dollars) no later than December 28, 2005.
Said $400,000.00 payment shall be made payable to "Spector &
Bennett Trust Account" and forwarded to Xerox's attorneys of
record, Spector & Bennett, A Professional Corporation, located at
50 California Street, 15th Floor, San Francisco, California
94111. Said tender shall be made by cashier's check only. A
tender by any other means shall be deemed hereunder as the
equivalent of no tender at all, enabling Xerox to enter judgment
as provided for herein. F&M may, however, at their option, submit
the payment by wire transfer to Spector & Bennett's
attorney-client trust account (under separate cover Xerox shall
provide F&M with Spector & Bennett's attorney-client trust
account wire information forthwith). Notwithstanding anything
contained herein to the contrary, to the extent there is a
default in payment hereunder, the sum of $550,000.00 (five
hundred fifty thousand dollars) less any amounts paid to Xerox hreunder, shall immediately become due and payable. Xerox does
not waive its right to declare F&M in default by accepting
payments subsequent to an earlier default by F&M.
(b) F&M agree to surrender possession of the following
equipment (the "Equipment to be Returned) to Xerox no later than
December 28, 2005:
EQUIPMENT SERIAL NO.
Xerox Docutech 6180 printer (and related components, 8VE-050141
including, but not limited to, the Ultra IIC Controller
THIS SPACE LEFT INTENTIONALLY BLANK
F&M and Xerox agree to reasonably work together to arrange for
a mutually agreeable time no later than December 28, 2005 for
Xerox to retrieve the Equipment to be Returned at F&M's
Sunnyvale, California facility. F&M hereby waive in favor of
Xerox any right, title or interest which they may maintain to the
Equipment to be Returned.
4. A declaration by Xerox's counsel to the effect that a
payment was not received as provided for herein shall constitute
prima facie evidence of default and shall be deemed sufficient
evidence and cause for the court to enter judgment forthwith.
Counsel for F&M, DIEMER, WHITMAN & CARDOSI, LLP, shall be served
with any application for entry of judgment.
5. Xerox does not waive its right to declare this stipulation
in default by accepting payments subsequent to an earlier default
by F&M. 6. To the extent F&M fail to surrender the Equipment to be
Returned to Xerox on or before December 28, 2005 by reason of F&M
failing to make the Equipment to be Returned available for Xerox
to retrieve, judgment shall be entered in favor of Xerox for the
sum of $550,000.00 (five hundred fifty thousand dollars), less
any amounts paid to Xerox under this stipulation, and for
possession of the Equipment to be Returned.
IT IS SO ORDERED.
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