Settlement Agreement; Case No. 3:14-cv-03264-JD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO...
Settlement Agreement; Case No. 3:14-cv-03264-JD
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION IN RE CAPACITORS ANTITRUST LITIGATION
Case No. 3:14-cv-03264-JD SETTLEMENT AGREEMENT This Document Relates to: Indirect Purchaser Actions
Settlement Agreement; Case No. 3:14-cv-03264-JD
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This Settlement Agreement (“Settlement Agreement”) is made and entered into this 15th
day of July, 2016, by and among Defendant NEC TOKIN Corp. and NEC TOKIN America, Inc.
and Indirect Purchaser Plaintiffs, both individually and on behalf of Classes in the above captioned
class action. This Settlement Agreement is intended by the Settling Parties to fully, finally and
forever resolve, discharge and settle the Released Claims, upon and subject to the terms and
conditions hereof.
RECITALS
WHEREAS, Indirect Purchaser Plaintiffs are prosecuting the above-captioned action (the
“Class Action”) on their own behalf and on behalf of Classes against, among others, NEC TOKIN
and other Defendants and alleged co-conspirators;
WHEREAS, Indirect Purchaser Plaintiffs allege, among other things, that NEC TOKIN
violated the antitrust and consumer protection laws by conspiring to fix, raise, maintain or stabilize
the prices of Electrolytic Capacitors; and these acts caused the Classes to incur damages;
WHEREAS, NEC TOKIN has denied and continues to deny each and all of Indirect
Purchaser Plaintiffs’ claims and allegations of wrongdoing; has not conceded or admitted any
liability, or that it violated or breached any law, regulation, or duty owed to the Indirect Purchaser
Plaintiffs; has denied and continues to deny all charges of wrongdoing or liability against it arising
out of any of the conduct, statements, acts or omissions alleged in the Actions; and further denies
the allegations that the Indirect Purchaser Plaintiffs or any member of the Classes were harmed by
any conduct by NEC TOKIN alleged in the Actions or otherwise;
WHEREAS, Indirect Purchaser Plaintiffs and Defendants have engaged in extensive
discovery regarding the facts pertaining to Indirect Purchaser Plaintiffs’ claims and Defendants’
defenses;
WHEREAS, Indirect Purchaser Plaintiffs and NEC TOKIN agree that neither this
Settlement Agreement nor any statement made in the negotiation thereof shall be deemed or
construed to be an admission or evidence of any violation of any statute or law or of any liability or
Settlement Agreement; Case No. 3:14-cv-03264-JD
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wrongdoing by NEC TOKIN or of the truth of any of the claims or allegations alleged in the
Actions;
WHEREAS, Indirect Purchaser Plaintiffs’ Class Counsel have concluded, after due
investigation and after carefully considering the relevant circumstances, including, without
limitation, the claims asserted in the Indirect Purchaser Plaintiffs’ Fourth Consolidated Complaint
filed in Docket No. 3:14-cv-03263-JD, the legal and factual defenses thereto and the applicable law,
that it is in the best interests of the Indirect Purchaser Plaintiffs and the Classes to enter into this
Settlement Agreement to avoid the uncertainties of litigation and to assure that the benefits reflected
herein are obtained for the Indirect Purchaser Plaintiffs and the Classes, and, further, that Indirect
Purchaser Plaintiffs’ Class Counsel consider the Settlement set forth herein to be fair, reasonable
and adequate and in the best interests of the Indirect Purchaser Plaintiffs and the Classes;
WHEREAS, NEC TOKIN has concluded, despite its belief that it is not liable for the claims
asserted against it in the Actions and that it has good defenses thereto, that it will enter into this
Settlement Agreement in order to avoid further expense, inconvenience, and the distraction of
burdensome and protracted litigation, and thereby to put to rest this controversy with respect to the
Indirect Purchaser Plaintiffs and the Classes and avoid the risks inherent in complex litigation; and
WHEREAS, arm’s length settlement negotiations have taken place between counsel for
Indirect Purchaser Plaintiffs and NEC TOKIN, including with the assistance of a nationally-
recognized neutral third party mediator (Hon. Ret. Judge Xxxx Xxxxxxxx), and this Settlement
Agreement, which embodies all of the terms and conditions of the Settlement between the Settling
Parties, both individually and on behalf of the Classes, has been reached as a result of the Settling
Parties’ negotiations (subject to the approval of the Court) as provided herein and is intended to
supersede any prior agreements between the Settling Parties.
AGREEMENT
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among the
Settling Parties, by and through their undersigned attorneys of record, in consideration of the
Settlement Agreement; Case No. 3:14-cv-03264-JD
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covenants, agreements, and releases set forth herein and for other good and valuable consideration,
that the Actions and the Released Claims as against NEC TOKIN shall be finally and fully settled,
compromised and dismissed on the merits and with prejudice, without costs as to Indirect Purchaser
Plaintiffs, the Classes, or NEC TOKIN, upon and subject to the approval of the Court, following
notice to the Class, on the following terms and conditions:
A. Definitions
1. As used in this Settlement Agreement the following terms shall have the meanings
specified below:
(a) “Action” or “Actions” means In re Capacitors Antitrust Litigation – All Indirect
Purchaser Actions, Case No. 3:14-cv-03264-JD, and each of the cases brought on behalf of indirect
purchasers that have been consolidated and/or included as part of Docket No. 3:14-cv-03264-JD.
(b) “Affiliates” means entities controlling, controlled by or under common control with any
Person.
(c) “Authorized Claimant” means any Indirect Plaintiff Purchaser who, in accordance with
the terms of this Settlement Agreement, is entitled to a distribution consistent with any Distribution
Plan or order of the Court ordering distribution to the Classes.
(d) “Capacitors” means electronic components that store electric charges between one or
more pairs of conductors separated by an insulator. It includes electrolytic, aluminum, tantalum, and
film capacitors.
(e) “Claims Administrator” means the claims administrator(s) to be selected by Class
Counsel.
(f) “Class” or “Classes” is generally defined as all persons and entities in the United States
who, during the period from April 1, 2002 to the Execution Date, purchased directly from a
distributor one or more Capacitor(s) that a Defendant manufactured. Excluded from the Classes are
Defendants, their parent companies, subsidiaries and Affiliates, any co-conspirators, Defendants’
Settlement Agreement; Case No. 3:14-cv-03264-JD
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attorneys in this case, federal government entities and instrumentalities, states and their
subdivisions, all judges assigned to this case, and all jurors in this case.
(g) “Class Counsel” means the law firm of Cotchett, Xxxxx & XxXxxxxx, LLP.
(h) “Class Member” means a Person who falls within the definition of the Classes and who
does not timely and validly elect to be excluded from the Classes in accordance with the procedure
to be established by the Court.
(i) “Court” means the United States District Court for the Northern District of California.
(j) “Defendants” means Hitachi Chemical Co., Ltd., Hitachi AIC Inc., Hitachi Chemical
Co. America, Ltd., Nippon Chemi-Con Corp., United Chemi-Con, Inc., Rubycon Corp., Rubycon
America Inc., Panasonic Corp., Panasonic Corp. of North America, SANYO Electric Co., Ltd.,
SANYO Electronic Device (U.S.A.) Corp., Xxxx Co., Ltd. and Xxxx America Inc., Matsuo Electric
Co., Ltd., NEC TOKIN Corp., NEC TOKIN America Inc., Nichicon Corp., Nichicon America
Corp., Fujitsu Media Devices, Ltd., Nissei Electric Co., Ltd., Nitsuko Electronics Corp., Okaya
Electric Industries Co., Ltd., Shinyei Technology Co., Ltd., Shinyei Capacitor Co., Ltd., Soshin
Electric Co., Ltd., Taitsu Corp., and Toshin Kogyo Co., Ltd.
(k) “Distribution Plan” means any plan or formula of allocation of the Gross Settlement
Fund, to be approved by the Court, whereby the Net Settlement Fund shall in the future be
distributed to Authorized Claimants.
(l) “Document” is synonymous in meaning and equal in scope to the usage of this term in
Fed. R. Civ. P. 34(a), including, without limitation, electronic or computerized data compilations. A
draft or non-identical copy is a separate document within the meaning of this term.
(m) “Effective Date” means the first date by which all of the following events and
conditions have been met or have occurred:
(i) All parties have executed this Settlement Agreement;
(ii) The Court has preliminarily approved this Settlement Agreement;
(iii) Notice has been provided to the Classes in a manner approved by the Court;
Settlement Agreement; Case No. 3:14-cv-03264-JD
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(iii) The Court has entered a Final Judgment; and
(iv) The Final Judgment has become final, with the occurrence of the following:
(a) the entry by the Court of a final order approving this Settlement Agreement under Rule 23(e) of
the Federal Rules of Civil Procedure together with entry of a final judgment dismissing the Class
Action and all claims therein against NEC TOKIN with prejudice as to Indirect Purchaser Plaintiffs
and all Class Members (the "Final Judgment"), and (b) the expiration of the time for appeal or to
seek permission to appeal from the Court's approval of this Settlement Agreement and entry of the
Final Judgment or, if an appeal from an approval and Final Judgment is taken, the affirmance of
such Final Judgment in its entirety, without modification, by the court of last resort to which an
appeal of such Final Judgment may be taken, provided, however, a modification or reversal on
appeal of any amount of Class Counsel's fees and expenses awarded by the Court from the Gross
Settlement Fund or any plan of allocation or distribution of the Gross Settlement Fund shall not be
deemed a modification of all or part of the terms of this Settlement Agreement or the Final
Judgment. Neither the provisions of Rule 60 of the Federal Rules of Civil Procedure nor the All
Writs Act, 28 U.S.C. § 1651, shall be taken into account in determining the above-stated times.
(n) “Electrolytic Capacitor” means a capacitor that uses an electrolyte (an ionic conducting
liquid) as one of its plates to achieve a relatively larger capacitance per volume. It includes the
following: circular polymer aluminum electrolytic capacitors, rectangular polymer aluminum
capacitors, manganese tantalum capacitors, rectangular polymer tantalum capacitors, non-polymer
aluminum electrolytic capacitors, and non-polymer electrolytic double-layer capacitors.
(o) “Escrow Agent” means the agent jointly designated by Class Counsel and NEC TOKIN,
and any successor agent.
(p) “Execution Date” means July 15, 2016, the date by which all parties have executed this
Settlement Agreement.
(q) “Final” means, with respect to any order of court, including, without limitation, the
Judgment, that such order represents a final and binding determination of all issues within its scope
Settlement Agreement; Case No. 3:14-cv-03264-JD
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and is not subject to further review on appeal or otherwise. Without limitation, an order becomes
“Final” when: (a) no appeal has been filed and the prescribed time for commencing any appeal has
expired; or (b) an appeal has been filed and either (i) the appeal has been dismissed and the
prescribed time, if any, for commencing any further appeal has expired, or (ii) the order has been
affirmed in its entirety and the prescribed time, if any, for commencing any further appeal has
expired. For purposes of this Settlement Agreement, an “appeal” includes appeals as of right,
discretionary appeals, interlocutory appeals, proceedings involving writs of certiorari or mandamus,
and any other proceedings of like kind. Any appeal or other proceeding pertaining solely to any
order adopting or approving a Distribution Plan, and/or to any order issued in respect of an
application for attorneys’ fees and expenses consistent with this Settlement Agreement, shall not in
any way delay or preclude the Judgment from becoming Final.
(r) “Gross Settlement Fund” means the Settlement Amount plus any interest that may
accrue.
(s) “Indirect Purchaser Plaintiffs” means the Plaintiffs listed in the Indirect Purchasers’
Fourth Consolidated Complaint ¶¶ 29-39.
(t) “Judgment” means the order of judgment and dismissal of the Actions with prejudice
against NEC TOKIN.
(u) “Net Settlement Fund” means the Gross Settlement Fund, less the payments set forth in
¶ 20.
(v) “NEC TOKIN” means NEC TOKIN Corporation and NEC TOKIN America, Inc.
(w) “Notice and Administrative Costs” means the reasonable sum of money not in excess of
$350,000.00 to be paid out of the Gross Settlement Fund to pay for notice to the Classes and related
administrative costs.
(x) “Person(s)” means an individual, corporation, limited liability corporation, professional
corporation, limited liability partnership, partnership, limited partnership, association, joint stock
company, estate, legal representative, trust, unincorporated association, government or any political
Settlement Agreement; Case No. 3:14-cv-03264-JD
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subdivision or agency thereof, and any business or legal entity and any spouses, heirs, predecessors,
successors, representatives or assignees of any of the foregoing.
(y) “Proof of Claim and Release” means the form, to be approved by further order(s) of the
Court, by which any member of the Classes may make claims against the Gross Settlement Fund.
(z) “Released Claims” means any and all manner of claims, demands, rights, actions, suits,
causes of action, whether class, individual or otherwise in nature, fees, costs, penalties, injuries,
damages whenever incurred, liabilities of any nature whatsoever, known or unknown (including,
but not limited to, Unknown Claims), foreseen or unforeseen, suspected or unsuspected, asserted or
unasserted, contingent or non-contingent, in law or in equity, under the laws of any jurisdiction,
which Releasors or any of them, whether directly, representatively, derivatively, or in any other
capacity, ever had, now have or hereafter can, shall or may have, relating in any way to any conduct
prior to the Execution Date and arising out of or related in any way in whole or in part to any facts,
circumstances, acts, or omissions arising out of or related to (1) the purchase, pricing, selling,
discounting, marketing, manufacturing and/or distributing of Capacitors in the United States and its
territories or for delivery in the United States and its territories; (2) any agreement, combination or
conspiracy to raise, fix, maintain or stabilize the prices of Capacitors or restrict, reduce, alter or
allocate the supply, quantity or quality of Capacitors or concerning the development, manufacture,
supply, distribution, transfer, marketing, sale or pricing of Capacitors, or any other restraint of
competition alleged in the Action or that could have been or hereafter could be alleged against the
Releasees relating to Capacitors, or (3) any other restraint of competition relating to Capacitors that
could be asserted as a violation of the Xxxxxxx Act or any other antitrust, unjust enrichment, unfair
competition, unfair practices, trade practices, price discrimination, unitary pricing, racketeering,
civil conspiracy or consumer protection law, whether under federal, state, local or foreign law.
(aa) “Releasees” refers jointly and severally, individually and collectively to NEC TOKIN
Corporation and NEC TOKIN America, Inc., their Affiliates and joint ventures (other than the
shareholders of NEC TOKIN Corporation and the parents of the shareholders of NEC TOKIN
Settlement Agreement; Case No. 3:14-cv-03264-JD
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Corporation), their respective past and present officers, directors, employees, managers, members,
partners, agents, attorneys and legal representatives, assigns, servants, and representatives, and the
predecessors, successors, heirs, executors, administrators, and assigns of each of the foregoing, but
excluding Defendants other than NEC TOKIN Corporation and NEC TOKIN America, Inc. and
any current or former NEC TOKIN officer, director, employee, agent, affiliate or joint venture that
fails to cooperate with Indirect Purchaser Plaintiffs.
(bb) “Releasors” refers jointly and severally, individually and collectively to the Indirect
Purchaser Plaintiffs and each and every member of the Settlement Class on their own behalf and on
behalf of their respective past, present, and/or future direct and indirect parents, members,
subsidiaries and Affiliates, and their past, present and/or future officers, directors, employees,
agents, attorneys and legal representatives, servants, and representatives, and the predecessors,
successors, heirs, executors, administrators and assigns of each of the foregoing.
(cc) “Settlement” means the settlement of the Released Claims set forth herein.
(dd) “Settlement Amount” means Thirteen Million and Two Hundred Fifty Thousand U.S.
Dollars ($13,250,000).
(ee) “Settlement Class” means all persons and entities in the United States who from
April 1, 2002 through the Execution Date purchased directly from a distributor one or more
Electrolytic Capacitor(s) manufactured by a defendant (or the current or former subsidiary of any
such defendant) alleged to have participated in a conspiracy described in the Indirect Purchaser
Plaintiffs’ Fourth Consolidated Complaint (Dkt. 1111-4) with respect to Electrolytic Capacitors.
(ff) “Settling Parties” means, collectively, the Indirect Purchaser Plaintiffs (on behalf of
themselves and the Classes) and NEC TOKIN.
(gg) “Unknown Claims” means any Released Claim that an Indirect Purchaser Plaintiff
and/or Class Member does not know or suspect to exist in his, her or its favor at the time of the
release of the Releasees that if known by him, her or it, might have affected his, her or its settlement
with and release of the Releasees, or might have affected his, her or its decision not to object to this
Settlement Agreement; Case No. 3:14-cv-03264-JD
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Settlement. Such Unknown Claims include claims that are the subject of California Civil Code
§ 1542 and equivalent, similar or comparable laws or principles of law. California Civil Code
§ 1542 provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
B. Preliminary Approval Order, Notice Order and Settlement Hearing
2. Reasonable Best Efforts to Effectuate this Settlement. The Settling Parties: (a)
acknowledge that it is their intent to consummate this Settlement Agreement; and (b) agree to
cooperate to the extent reasonably necessary to effectuate and implement the terms and conditions
of this Settlement Agreement and to exercise their reasonable best efforts to accomplish the terms
and conditions of this Settlement Agreement.
3. Motion for Preliminary Approval. At a time to be determined by Class Counsel, Class
Counsel shall submit this Settlement Agreement to the Court and shall apply for entry of a
Preliminary Approval Order, requesting, inter alia, preliminary approval of the Settlement. The
motion shall include (a) the proposed Preliminary Approval Order, and (b) a definition of the
proposed Settlement Classes, defined at §A (1) (ee) supra, pursuant to Federal Rule of Civil
Procedure 23.
4. Proposed Notice. At a time to be determined in their sole discretion, Class Counsel
shall submit to the Court for approval a proposed form of, method for and schedule for
dissemination of notice to the Classes. To the extent practicable and to the extent consistent with
this paragraph, Class Counsel may seek to coordinate this notice program with other settlements
that may be reached in the Action in order to reduce the expense of notice. This motion shall recite
and ask the Court to find that the proposed form of and method for dissemination of the notice to
the Class constitutes valid, due and sufficient notice to the Class, constitutes the best notice
Settlement Agreement; Case No. 3:14-cv-03264-JD
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complaint or collect from or proceed against NEC TOKIN or any other Releasee (including
pursuant to the Actions) based on the Released Claims in any forum worldwide, whether on his, her
or its own behalf or as part of any putative, purported or certified class of purchasers or consumers.
10. Covenant Not to Xxx. Releasors hereby covenant not to xxx the Releasees with respect
to any such Released Claims. Releasors shall be permanently barred and enjoined from instituting,
commencing or prosecuting against the Releasees any claims based in whole or in part on the
Released Claims. The Settling Parties contemplate and agree that this Settlement Agreement may
be pleaded as a bar to a lawsuit, and an injunction may be obtained, preventing any action from
being initiated or maintained in any case sought to be prosecuted on behalf of Indirect Purchaser
Plaintiffs with respect to the Released Claims.
11. Waiver of California Civil Code § 1542 and Similar Laws. The Releasors acknowledge
that, by executing this Settlement Agreement, and for the consideration received hereunder, it is
their intention to release, and they are releasing, all Released Claims, even Unknown Claims. In
furtherance of this intention, the Releasors expressly waive and relinquish, to the fullest extent
permitted by law, any rights or benefits conferred by the provisions of California Civil Code § 1542
or equivalent, similar or comparable laws or principles of law. The Releasors acknowledge that they
have been advised by Class Counsel of the contents and effects of California Civil Code § 1542,
and hereby expressly waive and release with respect to the Released Claims any and all provisions,
rights and benefits conferred by California Civil Code § 1542 or by any equivalent, similar or
comparable law or principle of law in any jurisdiction. The Releasors may hereafter discover facts
other than or different from those which they know or believe to be true with respect to the subject
matter of the Released Claims, but the Releasors hereby expressly waive and fully, finally and
forever settle and release any known or unknown, suspected or unsuspected, foreseen or
unforeseen, asserted or unasserted, contingent or non-contingent, and accrued or unaccrued claim,
loss or damage with respect to the Released Claims, whether or not concealed or hidden, without
regard to the subsequent discovery or existence of such additional or different facts. The release of
Settlement Agreement; Case No. 3:14-cv-03264-JD
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(a) For the purpose of §468B of the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder, the “administrator” shall be the Escrow Agent. The Escrow
Agent shall satisfy the administrative requirements imposed by Treas. Reg. §1.468B-2 by, e.g., (i)
obtaining a taxpayer identification number, (ii) satisfying any information reporting or withholding
requirements imposed on distributions from the Gross Settlement Fund, and (iii) timely and
properly filing applicable federal, state and local tax returns necessary or advisable with respect to
the Gross Settlement Fund (including, without limitation, the returns described in Treas. Reg.
§1.468B-2(k)) and paying any taxes reported thereon. Such returns (as well as the election
described in this paragraph) shall be consistent with the provisions of this paragraph and in all
events shall reflect that all Taxes as defined in ¶18(b) below on the income earned by the Gross
Settlement Fund shall be paid out of the Gross Settlement Fund as provided in ¶18(b) hereof;
(b) The following shall be paid out of the Gross Settlement Fund: (i) all taxes (including any
estimated taxes, interest or penalties) arising with respect to the income earned by the Gross
Settlement Fund, including, without limitation, any taxes or tax detriments that may be imposed
upon NEC TOKIN or its counsel with respect to any income earned by the Gross Settlement Fund
for any period during which the Gross Settlement Fund does not qualify as a “qualified settlement
fund” for federal or state income tax purposes (collectively, “Taxes”); and (ii) all expenses and
costs incurred in connection with the operation and implementation of this paragraph, including,
without limitation, expenses of tax attorneys and/or accountants and mailing and distribution costs
and expenses relating to filing (or failing to file) the returns described in this paragraph
(collectively, “Tax Expenses”). In all events neither NEC TOKIN nor its counsel shall have any
liability or responsibility for the Taxes or the Tax Expenses. With funds from the Gross Settlement
Fund, the Escrow Agent shall indemnify and hold harmless NEC TOKIN and its counsel for Taxes
and Tax Expenses (including, without limitation, Taxes payable by reason of any such
indemnification). Further, Taxes and Tax Expenses shall be treated as, and considered to be, a cost
of administration of the Gross Settlement Fund and shall timely be paid by the Escrow Agent out of
Settlement Agreement; Case No. 3:14-cv-03264-JD
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(a) within fifteen (15) business days after written notification of such event is sent by
counsel for NEC TOKIN to the Escrow Agent, the Gross Settlement Fund excluding only Notice
and Administrative Costs that have either been properly disbursed or are due and owing, Taxes and
Tax Expenses that have been paid or that have accrued and will be payable at some later date, and
attorneys’ fees and costs that have been disbursed pursuant to Court order will be refunded,
reimbursed and repaid by the Escrow Agent to NEC TOKIN; if said amount or any portion thereof
is not returned within such fifteen (15) day period, then interest shall accrue thereon at the rate of
ten percent (10%) per annum until the date that said amount is returned;
(b) within thirty (30) business days after written notification of such event is sent by
Counsel for NEC TOKIN to Class Counsel, all attorneys’ fees and costs which have been disbursed
to class counsel pursuant to Court order shall be refunded, reimbursed and repaid by Class Counsel
to NEC TOKIN;
(c) the Escrow Agent or its designee shall apply for any tax refund owed to the Gross
Settlement Fund and pay the proceeds to NEC TOKIN, after deduction of any fees or expenses
reasonably incurred in connection with such application(s) for refund, pursuant to such written
request;
(d) the Settling Parties shall be restored to their respective positions in the Actions as of the
Execution Date, with all of their respective claims and defenses, preserved as they existed on that
date;
(e) the terms and provisions of this Settlement Agreement, with the exception of ¶¶43-45
(which shall continue in full force and effect), shall be null and void and shall have no further force
or effect with respect to the Settling Parties, and neither the existence nor the terms of this
Settlement Agreement (nor any negotiations preceding this Settlement Agreement nor any acts
performed pursuant to, or in furtherance of, this Settlement Agreement) shall be used in the Actions
or in any other action or proceeding for any purpose (other than to enforce the terms remaining in
effect); and
Settlement Agreement; Case No. 3:14-cv-03264-JD
29
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LAW OFFICES
COTCHETT, XXXXX
& XXXXXXXX, LLP
If directed to NEC TOKIN, address notice to:
XXXXXX, XXXX & XXXXXXXX LLP
Xxxxxx X. Xxxxxx III (xxxxxxx@xxxxxxxxxx.xxx)
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone:000-000-0000
Facsimile: 000-000-0000
52. Headings. The headings used in this Settlement Agreement are intended for the
convenience of the reader only and shall not affect the meaning or interpretation of this Settlement
Agreement.
53. No Party Deemed to Be the Drafter. None of the parties hereto shall be deemed to be
the drafter of this Settlement Agreement or any provision hereof for the purpose of any statute, case
law or rule of interpretation or construction that would or might cause any provision to be construed
against the drafter hereof.
54. Choice of Law. This Settlement Agreement shall be considered to have been negotiated,
executed and delivered, and to be wholly performed, in the State of California, and the rights and
obligations of the parties to this Settlement Agreement shall be construed and enforced in
accordance with, and governed by, the internal, substantive laws of the State of California without
giving effect to that State’s choice of law principles.
55. Amendment; Waiver. This Settlement Agreement shall not be modified in any respect
except by a writing executed by all the parties hereto, and the waiver of any rights conferred
hereunder shall be effective only if made by written instrument of the waiving party. The waiver by
any party of any breach of this Settlement Agreement shall not be deemed or construed as a waiver
of any other breach, whether prior, subsequent or contemporaneous, of this Settlement Agreement.
