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Case 1 :04-cv—00583-GIVIS Document 117 Filed 01/31/2006 Page 1 of 4
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
INACOM CORP., et al. ~
Plaintiffs
v.
LEXMARK INTERNATIONAL, INC.
Defendant and Third-Party Plaintiff
Civil Action N0. 04-CV—583 (GMS)
v.
COMPAQ COMPUTER CORPORATION
Third-Party Defendant
NOTICE OF SUPPLENIENT TO THE JOINT PROPOSED
FINAL PRETRIAL ORDER REGARDING LEXMARK’S DANIAGES
Third—Party Plaintiff Lexmark International, Inc. ("Lexmark”), and Third-Party
Defendant Hewlett—Packard Company (“HP"), tiled the Joint Proposed Final Pretrial Order
Regarding Lexmark’s Third—Party Complaint Against Hewlett-Packard Company ("Pretrial
Order”) with the Court on August 15, 2005. Section V, paragraph 8, of the Pretrial Order
provides as follows:
V. Itemized Statement of Special Damages L
8. The amount of principal damages for which HP will be liable to Lexmark i
will be equal to the amount of the damages for which Lexmark may be found
liable to InaCom, together with pre—judgment interest, attorney’s fees and costs.
HP has filed a motion for the Court to hold a separate trial of the Third-Party
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Case 1 :04-cv—00583-GIVIS Document 117 Filed 01/31/2006 Page 2 of 4
Complaints tiled against it by Tech Data and Lexmark after the trial of lnaCom’s
complaints against Tech Data and Lexmark. At the conclusion of the first trial,
Tech Data and Lexmark will know the amounts for which HP may be liable to
Tech Data and Lexmark.
(D.l. 81, Pretrial Order at 8).
The Court’s order that the trial of the third-party complaints against HP be held
separately after the trial of the complaints tiled by InaCom Corp. ("lnaCom") was entered on
September 1, 2005. (D.l. 98, Order at ji 3). The trial of lnaCom’s complaint against Lexmark
began on October 17, 2005 and ended on October 19, 2005 when InaCom and Lexmark advised
the Court that they had agreed to a settlement subject to certain conditions.] (D.I. Minute Entry).
The attorneys for InaCom and Lexmark advised the Court that pursuant to the proposed
settlement, Lexmark would pay InaCom $990,000 for a release of its claims against Lexmark.
The Mutual Settlement Agreement And Release ("Sett1ement Agreement")
memorializing the terms of the agreement was executed by InaCom and Lexmark. The
Settlement Agreement provides that
Notwithstanding anything herein to the contrary, the claims alleged by
Lexmark in the Action in its third—party complaint against Hewlett—Packard
Company ("HP") are neither compromised, waived, released nor otherwise
prejudiced as a result ofthe agreement reached by Lexmark and InaCom, and all
claims alleged by Lexmark in the Action in its third—party complaint against HP
are specitically reserved by Lexmark.
(Settlement Agreement, at ll 2). Pursuant to the Settlement Agreement, the Notice And t
Stipulation Of Voluntary Dismissal With Prejudice Of Complaint ("Notice Of Dismissal") was
tiled by InaCom and Lexmark with the Court on November 30, 2005. (D.l. 116, Notice Of
Dismissal).
I The conditions were that (1) the unsecured creditors committee for InaCom’s bankruptcy estate
agree to the proposed settlement, and (2) HP not agree to take over the defense of the case and hold Lexmark
harmless. By e-mail dated October 28, 2005, Lexmark advised HP of the proposed settlement and advised it that if
it objected HP must agree to take over the defense of the case and hold Lexmark harmless. By e-mail also dated
October 28, 2005, 1-IP responded that it took "no position on the settlement?
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Case 1 :04-cv—00583-GIVIS Document 117 Filed 01/31/2006 Page 3 of 4
The litigation with lnaCom having concluded, Lexmark is now able to specify the
principal amount of the damages it seeks to recover from HP. The principal amount of the
damages is $990,000, the amount Lexmark advised HP of on October 28, 2005. Lexmark
hereby supplements the Pretrial Order as it said it would therein by stating that the principal
amount of the damages it seeks to recover from HP is $990,000. Lexmark also hereby
supplements the Pretrial Order as it said it would therein by stating that the amount of the
attorney fees and costs it incurred in the litigation and seeks to recover from HP is, as of
November 30, 2005, $613,653.27 ($455,344.40 in attorney fees, and $158,308.87 in costs).2
Lexmark cannot state the amount of the prejudgment interest it seeks to recover from HP as the
amount will continue to accrue until a judgment is entered in favor of Lexmark on its third—party
complaint against HP awarding Lexmark prej udgment interest.
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2 Lexmark reserves the right to supplement the amount ofthe attorney fees and costs it seeks as }
additional attorney fees and costs are incurred.
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Case 1 :04-cv—00583-GIVIS Document 117 Filed 01/31/2006 Page 4 014
Respectfully submitted,
Thomas G. Whalen Jr;. (No. 4034)
Stevens & Lee, P.C.
1105 North Market Street, 7th Floor
Wilmington, Delaware 19801
Tel: (302) 425-3307
Fax: (302) 654-5181
and
Culver V. I-Ialliday
Emily L. Pagorski
Stoll Keenon Ogden PLLC
2650 AEGON Center
400 West Market Street
Louisville, Kentucky 40202-3377
Tel: (502) 568-9100
Fax: (502) 568-5700
Attorneys for Third Party Plaintifi
Lexmark International, Inc.
Dated: January 30, 2006

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