SETTLEMENT AGREEMENT AND MUTUAL RELEASE
Exhibit 10.2
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This SETTLEMENT AGREEMENT AND MUTUAL RELEASE (“Agreement”) is made and entered into as of
March 16, 2007 (the “Effective Date”) by and between Actel Corporation, a California corporation
with a place of business at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, XX 00000 (“Actel”) and BTR, Inc., a
Nevada corporation with a place of business at 00000 Xxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX
00000 (“BTR”) and Advantage Logic Inc., a California corporation with a place of business at 00000
Xxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 (“ALI” and, together with BTR, “BTR/ALI”), and,
solely as to Section 1 (Definitions), Section 3 (Releases by BTR/ALI and the Officers), Section 5
(“Discovery Materials”), and Section 7 (Miscellaneous) (except for Section 7.1), Xxxxxxxx Xxxx,
Xxxxx Pani, and Xxxxxxx Xxxxxxx (collectively, the “Officers”). The Parties hereby agree as
follows:
1. DEFINITIONS
1.1 Unless otherwise defined in this Agreement, capitalized terms not defined in this Agreement
will have the meaning defined in the Asset Purchase Agreement or the License Agreement.
1.1.1 “Arbitrator” means Xxx. Xxxxxx Xxxxx (Xxx.) of JAMS, the arbitrator in the
Arbitration.
1.1.2 “Asset Purchase Agreement” means the asset purchase agreement of even date herewith
entered into by the Parties to this Agreement providing, among other things, for Actel’s
purchase of the patents, trade secrets and all other intellectual property rights that are
the subject of the Arbitration.
1.1.3 “Business Day” means any day other than a Saturday, Sunday or other day on which banks
in California are authorized or required by law to close.”
1.1.4 “Discovery Materials” means all documents, things, electronic storage media, and other
materials disclosed or delivered by one Party to the other Party during the Arbitration.
1.1.5 “Party” means Actel, BTR and ALI (or when used collectively BTR/ALI), and, solely as
to Section 1 (Definitions), Section 3 (Releases by BTR/ALI and the Officers), Section 5
(“Discovery Materials”), and Section 7 (Miscellaneous) (except for Section 7.1), Xxxxxxxx
Xxxx, Xxxxx Pani, and Xxxxxxx Xxxxxxx (collectively, the “Officers”).
1.1.6 “Prior Agreements” means, except for the Protective Order and the Asset Purchase
Agreement, all written and oral agreements and obligations between any member of BTR/ALI and
Actel including, but not limited to, all license, consulting, employment, and other
agreements and contracts arising or entered into prior to the Effective Date.
1.1.7 “Protective Order” means the protective order attached as Attachment A and fully
incorporated by reference into this Agreement, entered by the Arbitrator in the Arbitration.
1
2. DISMISSAL OF ARBITRATION
2.1 Agreement to Dismiss. Upon the execution of this Agreement, Actel and BTR, through
their counsel, shall promptly execute and file with the Arbitrator a stipulation for dismissal of
the Arbitration with prejudice in the form attached hereto as Attachment B (Stipulation).
3. RELEASES BY BTR/ALI AND THE OFFICERS
3.1 General Release. For good and valuable consideration, including Actel’s consent to the
Stipulation the release by the Actel Releasors (as such term is defined in Section 4.1 hereof) and
Actel’s entry into and performance of its obligations under the Asset Purchase Agreement, BTR/ALI,
for themselves and their respective officers, directors, shareholders, employees, agents, servants,
attorneys, parent corporations, subsidiary corporations, successors, and assigns, past and present,
the Officers, and each and all of them (collectively, the “BTR/ALI Releasors”), do hereby
acknowledge full and complete satisfaction of, and do hereby release and discharge Actel and its
officers, directors, shareholders, attorneys, employees, agents, servants, parent corporations,
subsidiary corporations, successors, and assigns, past and present, and each and all of them
(hereinafter collectively, the “Actel Releasees”), from any and all claims, demands, and causes of
action of whatever kind or nature, whether known or unknown, or suspected or unsuspected, by the
BTR/ALI Releasors that the BTR/ALI Releasors, or any of them, now own or hold or have at any time
owned or held as against the Actel Releasees or any of them, including, without limitation, any
claims, demands, and causes of action based, in whole or in part, on any contract, license, or
other agreement or obligation between Actel and BTR/ALI entered into or undertaken prior to the
Effective Date.
3.2 California Civil Code Section 1542. It is the intention of the BTR/ALI Releasors in
executing this General Release that the same shall be effective as a bar to each and every claim,
demand and cause of action hereinabove specified, and in furtherance of this intention, the BTR/ALI
Releasors do hereby expressly waive and relinquish, to the fullest extent permitted by law, the
provisions, rights, and benefits of Section 1542 of the California Civil Code. The BTR/ALI
Releasors expressly warrant that they are familiar with and have been advised of the provisions of
California Civil Code Section 1542, which provides as follows:
“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.”
3.3 No Transfer. The BTR/ALI Releasors further represent and warrant that they have
neither assigned nor transferred to any other person or entity any claim or matter herein released
by them under this Section 3 and agree to indemnify and hold the Actel Releasees, and each of them,
harmless from any liability, claims, demands, damages, costs, expenses, and attorneys’ fees
incurred by the Actel Releasees, or any of them, as a result of any person or entity proving such
assignment or transfer of any rights or claims under any such assignment or transfer.
2
4. RELEASES BY ACTEL
4.1 Releases by Actel. For good and valuable consideration, including BTR/ALI’s consent to
the Stipulation the release by the BTR/ALI Releasors set forth above and BTR/ALI’s entry into and
performance of its obligations under the Asset Purchase Agreement, Actel, for itself and its
respective officers, directors, shareholders, employees, agents, servants, attorneys, parent
corporations, subsidiary corporations, successors, and assigns, past and present, and each and all
of them (collectively, the “Actel Releasors”), do hereby acknowledge full and complete satisfaction
of, and do hereby release and discharge BTR/ALI and its Officers, officers, directors,
shareholders, attorneys, employees, agents, servants, parent corporations, subsidiary corporations,
successors, and assigns, past and present, and each and all of them (hereinafter collectively, the
“BTR/ALI Releasees”), from any and all claims, demands and causes of action of whatever kind or
nature, whether known or unknown, or suspected or unsuspected, by the Actel Releasors that the
Actel Releasors, or any of them, now own or hold or have at any time owned or held as against the
BTR/ALI Releasees, or any of them including, without limitation, any claims, demands, and causes of
action based, in whole or in part, on any contract, license, or other agreement or obligation
between BTR/ALI and Actel entered into or undertaken prior to the Effective Date.
4.2 California Civil Code Section 1542. It is the intention of the Actel Releasors in
executing this General Release that the same shall be effective as a bar to each and every claim,
demand and cause of action hereinabove specified, and in furtherance of this intention, the Actel
Releasors do hereby expressly waive and relinquish, to the fullest extent permitted by law, the
provisions, rights and benefits of Section 1542 of the California Civil Code. The Actel Releasors
expressly warrant that they are familiar with and have been advised of the provisions of California
Civil Code Section 1542, which provides as follows:
“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.”
4.3 No Transfer. The Actel Releasors further represent and warrant that they have neither
assigned nor transferred to any other person or entity any claim or matter herein released by them
and agree to indemnify and hold the BTR/ALI Releasees, and each of them, harmless from any
liability, claims, demands, damages, costs, expenses and attorneys’ fees incurred by the BTR/ALI
Releasees, or any of them, as a result of any person or entity proving such assignment or transfer
of any rights or claims under any such assignment or transfer.
5. DISCOVERY MATERIALS
5.1 Return of Discovery Materials. Each Party agrees to return, and to cause its counsel,
consultants, and experts to return, to the other Party, all Discovery Materials, and all copies
thereof, furnished to it by the other Party in the Arbitration, except as provided below:
3
5.1.1 Copies of Discovery Materials containing privileged or attorney work product material
may be destroyed, rather than returned, provided that the destroying Party certifies the
destruction to the other Party.
5.1.2 Electronic copies of Discovery Materials may be destroyed, rather than returned,
provided that the destruction is permanent and the destroying Party certifies the
destruction to the other Party.
5.1.3 Notwithstanding the other provisions of this Section 5 (“Discovery Materials”),
outside counsel for each Party may retain one record copy of all Discovery Materials that
were included in filings with the Arbitrator.
5.1.4 Actel need not return or destroy any Discovery Materials covered by the Asset Purchase
Agreement.
5.1.5 Outside counsel for each Party may retain a single copy each of the recording and
transcript of Xx. Xxxx’x deposition for archival purposes, and will certify the destruction
of all other copies in its possession to BTR/ALI.
5.2 Deadline for Return of Materials. The Parties shall complete their obligations under
this Section 5 (“Discovery Materials”) within 60 days of the Effective Date.
6. CONFIDENTIALITY.
Except as specifically provided in the Agreements, nothing in the Agreements alters the
confidentiality obligations of the Parties set forth in the Protective Order.
7. MISCELLANEOUS
7.1 Fees and Expenses. All attorneys’ fees and costs in connection with the Arbitration
will be borne by the Party that incurred the fees and costs including, but not limited to,
attorneys fees, expert witness fees, filing fees, and discovery costs. Notwithstanding the
foregoing, Actel and BTR/ALI will split all expenses incurred with JAMS in association with the
Arbitration, with the exception of filing fees incurred by either Party.
7.2 Solicitation of Employees. Each of the Parties agrees that it shall not, for a
five-year period from the Effective Date, directly solicit the services, whether as an employee or
independent contractor, of any employee of the other Party. Nothing in this Section 7.2
(“Solicitation of Employees”) is intended to or shall be construed to prevent any Party from hiring
any person, including a current or former employee of the other Party, who responds to a
solicitation made generally to the trade or profession through classified and other advertisements,
job announcements, and similar methods or who has announced the establishment of an independent
business or who applies for a position on his or her own initiative.
7.3 No Release. Notwithstanding the General Releases set forth in Sections 2 (Releases by
BTR/ALI and the Officers) and 3 (Releases by Actel), it is understood and agreed that no Party has
released, acquitted, or discharged any action, cause of action, claim, demand, damages, debt,
4
obligation, or controversy it could have asserted or will in the future be able to assert for
breach of the Protective Order. It is understood that the obligations of the Protective Order are
ongoing according to its terms, and are unaffected by the Agreements.
7.4 No Disqualification of Counsel. If litigation or arbitration relating to this
Agreement is instituted, counsel for any of the Parties will not be disqualified from representing
that counsel’s respective client herein by reason of such counsel’s participation in negotiations
and discussions that occurred prior to the execution of this Agreement.
7.5 Notices. Whenever any matter in the Agreement provides for notice or other written
communication to be given to a Party, such notice shall be given at the address of such Party set
forth below, or such other address as such Party shall provide in writing to the other Party. All
notices may be given by being personally delivered, by being sent by prepaid air freight, delivery
of which is guaranteed, within one Business Day of receipt by the air freight company, or by being
sent by facsimile, the receipt of which is acknowledged, addressed to the Party hereto to whom
notice is to be given at the above-described address. Each such notice shall be deemed to be
effective upon receipt, if personally delivered, one Business Day after receipt by the airfreight
company, or one Business Day after being sent by facsimile. Notices sent to BTR/ALI in accordance
with the provisions of this Section will be deemed to have been sent to all members of BTR/ALI.
If to Actel: Actel Corporation 0000 Xxxxxxxx Xxxxx Xxxxxxxx Xxxx, XX 00000 Attn.: Xxxxx X. Van De Hey Fax: (000) 000-0000 |
If to BTR/ALI and the Officers: BTR, Inc. c/o Advantage Logic, Inc. 00000 Xxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 Attn.: Xxxxxxx Xxxxxxx Fax: (000) 000-0000 |
7.6 Assignment. The Agreement shall be binding upon, and inure to the benefit of, the
respective legal representatives, successors and permitted assigns of the Parties hereto. BTR/ALI
(but not the Officers) may assign its rights and obligations under this Agreement to a successor to
all or substantially all of its stock, business, or assets (tangible or intangible) whether by
sale, merger, or otherwise. Actel may assign its rights and obligations under this Agreement to a
successor to all or substantially all of its stock, business, or assets (tangible or intangible)
whether by sale, merger, or otherwise.
7.7 Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive, but
shall, wherever possible, be cumulative with all other remedies at law or in equity.
7.8 Severability. Should any portion or provision of the Agreement be declared invalid or
unenforceable in any jurisdiction by a court of competent jurisdiction, then such portion or
provision shall be deemed to be severable, to the extent invalid or unenforceable, from the
Agreement as to such jurisdiction (but, to the extent permitted by law, not elsewhere) and shall
not affect the remainder thereof. Notwithstanding the foregoing; (a) such provision of the
5
Agreement shall be interpreted by the Parties and by any such court, to the extent possible, in
such a manner that such provision shall be deemed to be valid and enforceable; and (b) such court
shall have the right to make such modifications to any provision of this Agreement as do not
materially affect the rights or obligations of the Parties under the Agreement and as may be
necessary in order for such provision to be valid and enforceable.
7.9 Waiver. No waiver of any right or obligation of any of the Parties under this
Agreement shall be effective unless in a writing, specifying such waiver, executed by the Party
against which such waiver is being enforced. A waiver by any Party hereto of any of its rights
under the Agreement on any occasion shall not be a bar to the exercise of the same right on any
subsequent occasion or of any other right at any time.
7.10 Headings and Titles. The designation of a title, or a caption or a heading, for each
section of the Agreement is for the purpose of convenience only and shall not be used to limit,
enlarge, interpret or modify the provisions of the Agreement.
7.11 Presumptions. Because each of the Parties hereto have participated in drafting the
Agreement, this Agreement shall not be interpreted in favor of, or against, any Party on the ground
that such Party was responsible for preparing the Agreement or any part thereof.
7.12 Amendment or Modification. The Agreement may be amended, altered, or modified only by
a writing, specifying such amendment, alteration or modification, executed by Actel and BTR/ALI.
7.13 Counterparts. The Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the same instrument.
7.14 Governing Law; Jurisdiction. This Agreement, and the rights and obligations of the
Parties hereunder, shall be governed by and construed in accordance with the laws of the State of
California. Subject to Section 7.15 (Arbitration), any action with respect to this Agreement filed
by one Party against the other may only be brought in the United States District Court for the
Northern District of California or the Superior Court of the State of California in and for the
county of Santa Xxxxx.
7.15 Arbitration. Except as otherwise provided in the Agreements, any future dispute,
claim, or controversy between the Parties will be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association then in effect. In any
arbitration hereunder, the Parties may agree on the selection of a single arbitrator, but if they
cannot so agree, each such Party shall select an arbitrator and the two selected arbitrators shall
select a third arbitrator. No arbitrator may be affiliated, whether directly or indirectly, with
any of the Parties, including, without limitation, as an employee, consultant, partner or
shareholder. The arbitrator(s) shall permit each of the Parties to the arbitration to engage in a
reasonable amount of discovery. In the event any Party requests such an arbitration, the
arbitration shall be held in Santa Xxxxx County, California. At the conclusion of the arbitration,
the arbitrator or arbitrators will issue a written opinion including the decision and the reasons
for the decision. The award by
the arbitrator or arbitrators shall be final, and judgment upon the award rendered may be entered
in any court having jurisdiction thereof.
6
7.16 Attorneys’ Fees. Should any litigation or arbitration be commenced between the
Parties hereto concerning this Agreement or any other topic, the Party prevailing in such
litigation or arbitration shall be entitled, in addition to such other relief as may be granted, to
a reasonable sum for attorneys’ fees in connection with such litigation or arbitration, which sum
shall be determined by the trier of fact in such litigation or arbitration or in a separate action
brought for that purpose.
7.17 Complete Agreement; Express Termination of Other Agreements. This Agreement
constitutes and expresses the complete obligations of Actel and BTR/ALI with respect to each other
and expressly supersede all Prior Agreements, all provisions of which are hereby terminated and
declared null and void, regardless of any survival provisions of any of the Prior Agreements.
7.18 Nondisparagement. Each Party agrees to refrain from any (a) defamation, libel, or
slander of the other Party and (b) tortious interference with the contracts and relations of the
other Party.
7.19 Consultation With Counsel. Each Party acknowledges that it has or has had the
opportunity to consult with counsel of its choice and that in executing this Agreement it has not
relied upon any statements, representations, or agreements of any other person other than those
contained herein.
7.20 No Admissions. This Agreement and the releases contained herein effect the settlement
of claims that are denied and contested, and nothing contained herein shall be construed as an
admission by a Party hereto of any liability of any kind. Each Party expressly denies that it is
liable in any way or indebted to the other Party, except as provided in the Agreements.
7
IN WITNESS WHEREOF, the Parties hereto have caused
this Settlement Agreement and Mutual Release to be
executed as of the Effective Date.
ACTEL
ACTEL CORPORATION
Date
|
Signature | Printed Name | Title |
BTR/ALI
BTR, INC.
Date
|
Signature | Printed Name | Title |
ADVANTAGE LOGIC, INC.
Date
|
Signature | Printed Name | Title |
OFFICERS
XXXXXXX XXXXXXX
Date
|
Signature | Printed Name |
XXXXX PANI
Date
|
Signature | Printed Name |
XXXXXXXX XXXX
Date
|
Signature | Printed Name |
8
ATTACHMENT A
Protective Order
Judge Xxxxx JAMS Endispute
ACTEL CORPORATION, |
) No. 1100046359 | |
| ) | ||
Claimant, |
) | |
| ) | ||
v. |
) | |
| ) | ||
BTR, INC., |
) | |
| ) | ||
Respondent. |
) |
Protective Order
The parties to the above captioned arbitration (this “Arbitration”), Actel Corporation (“Actel”)
and BTR, Inc. (“BTR”), may seek discovery of documents, information or other materials which
contain or relate to confidential, proprietary or trade secret information of another party or of a
third party;
The undersigned Arbitrator, on consent of the parties, hereby orders that the following provisions
govern the discovery and use of such information:
1. “Confidential Information” shall mean and include any document (whether in hard copy or computer
readable forms), thing, deposition testimony, interrogatory answers, responses to requests for
admissions and/or production, or other information provided in discovery in this Arbitration
(“Discovery Material”), which contains non-public, confidential or proprietary information, whether
personal or business-related. All confidentiality designations shall be made in good faith by the
Designating Party, and the parties shall not designate as “Confidential Information” documents
previously exchanged between the parties, which shall remain subject to all contractual
confidentiality obligations. Certain limited types of “Confidential Information” may be further
designated, as defined and detailed below, by the party making the confidential designations on
Discovery Materials (the “Designating Party”) as “Outside Counsel Eyes Only.” The “Outside Counsel
Eyes Only” designation shall be reserved for descriptions of trade secrets not previously exchanged
by the parties, and documents or information that constitute, reflect, or concern product design.
Any confidentiality designation
-1-
shall consitutue a representation that such Discovery Material has been reviewed by an attorney for
the Designating Party and that there is a valid basis for such designation.
2. Confidential Information and Outside Counsel Eyes Only Information and the substance or content
thereof, including any notes, memoranda or other similar documents referring or relating thereto,
shall be used by a Receiving Party and its authorized representatives or designees under this
Protective Order solely for the purpose of this Arbitration and any appeals therefrom, and shall
not be made available, disclosed or summarized to any persons, including the parties, other than as
permitted by paragraphs 4-5 of this Protective Order. Confidential Information and Outside Counsel
Eyes Only Information shall be maintained by the Receiving Party under the overall supervision of
outside counsel.
3. This Protective Order shall not apply to any information or material which:
a. Is or becomes lawfully in the possession of the Receiving Party other than through production in
the Arbitration.
b. Has been or becomes part of the public domain by publication or otherwise and not due to any
unauthorized act or omission on the part of the Receiving Party or any of its authorized
representatives or designees under this Protective Order.
Nothing herein shall impose any restriction on the use or disclosure by a party of its own
documents or information.
4. Subject
to paragraphs 5,6 and 12 of this Protective Order, “Qualified Persons” having access to
Discovery Material designated “Confidential Information”
under this Protective Order in this
Arbitration are:
a. O’Melveny & Xxxxx LLP and Xxxxxxxx Xxxxxxx, attorneys for Actel, and their stenographic,
clerical and paralegal employees whose duties and responsibilities require access to such materials
and who have executed Appendix A;
x. XxXxxxxxx, Will & Xxxxx LLP, attorneys for BTR, and their stenographic, clerical and paralegal
employees whose duties and resonsibilities require access to such materials and who have executed
Appendix A;
c. No more than four in-house employees, including in-house attorneys if desired, of a Party, whose
names are listed below. The in-house employees, shall execute Appendix A. The approved in-house
employees are as follows:
-2-
| Actel | BTR | |||
Name
|
Xxxx Plants | Xxxxxxxx Xxxx | ||
Name
|
Arun Xxxxx | Xxxxx Pani | ||
Name
|
Xxxx Xxxxxxx | Xxxxxxx Xxxxxxx | ||
Name
|
Sinan Kaptinaglu | Xxxx Xxxxxxx |
d. Retained Independent consultants, vendors or experts for the parties (as well as their
staff, stenographic, and clerical employees whose duties and responsibilities require
access to such materials) who are not current employees of any party to this arbitration,
or any direct competitor of any party to this arbitration, provided that such person shall
first acknowledge, by executing the acknowledgment form attached hereto as Appendix A, that
he or she has read this Protective Order, understands it, and agrees to be bound by it;
e. The Arbitrator, and stenographic and video reporters engaged in proceedings incident to
this Arbitration; and
f. Outside document copying services and/or document coding or computerization services.
Notwithstanding any other provision of this protective order, access to Confidential and
Outside Counsel Eyes Only documents shall be permitted to such vendors without need for the
completion of Appendix A. The outside counsel providing Confidential or Outside Counsel
Eyes Only documents to outside document copying services or document coding or
computerization services shall be responsible for that service’s compliance with the
provisions of this Protective Order.
5. Any Outside Counsel Eyes Only Information designated under this Protective Order shall
be treated the same as Confidential Information, except that there shall be no general
access by more than a single Qualified Person under Paragraph 4(c) to Discovery Materials
designated Outside Counsel Eyes Only Information. However, Qualified Persons described in
Paragraph 4(c) may be present at any deposition or hearing and may have access to any
pleading brief or other filing in this arbitration, notwithstanding the presentation of
Outside Counsel Eyes Only Information.
6. Any person to whom “Outside Counsel Eyes Only” Information is disclosed shall not
participate either directly or indirectly in the oversight of, or the actual drafting of
patient
-3-
applications, claim language for patent applications, arguments made in support of patent
applications before the PTO or similar foreign patent agencies and any other patent prosecution
activities in regard to FPGA designs on behalf of one of the Parties (and their parents or
affiliates) for the duration of the arbitration and for a period of one (1) year thereafter —
except to the extent a Qualified Person described in Paragraph 4(c) is a named inventor in a
presently pending patent application and as such must cooperate with patent counsel in signing
declarations, powers of attorney, assignments, and the like and in ensuring his applications
properly claim that which the inventor regards as his invention (35 U.S.C. §112, ¶2).
7. The designation of Discovery Materials in the form of documents, responses to admissions and
interrogatories, or other tangible materials (including without limitation CD-ROM’s and tapes) as
Confidential Information or Outside Counsel Eyes Only shall be made by the Designating Party by
affixing the legend “CONFIDENTIAL INFORMATION PURSUANT TO PROTECTIVE ORDER” or “OUTSIDE COUNSEL
EYES ONLY PURSUANT TO PROTECTIVE ORDER,” as the case may be, on each page containing any
Confidential Information or Outside Counsel Eyes Only Information (or in the case of computer
medium, on the medium and its label and/or cover) to which the designation applies.
8. The designation of Discovery Materials in the form of deposition testimony as Confidential
Information or Outside Counsel Eyes Only shall be made by instructing the Court Reporter to
separately transcribe, legend and bind the pages containing Confidential Information and/or Outside
Counsel Eyes Only Information. The stenographic reporter shall be so instructed when the
Confidential Information or Outside Counsel Eyes Only Information is disclosed. A party or third
party may also designate any portion of the transcript as Confidential Information or Outside
Counsel Eyes Only Information by so advising all other parties in writing, with page and line
number designations, within ten (10) business days after receipt of
the transcript. Until ten (10)
business days have passed after the receipt of any transcript, that entire transcript shall be
deemed to be Outside Counsel Eyes Only. In the event of disagreement about the Confidential status
of a deposition transcript, it shall continue to be treated as “Confidential” or “Outside Counsel
Eyes Only”, whichever protection is being sought, until the Arbitrator rules otherwise.
9. Notwithstanding
Paragraph 4.5, if Outside Counsel Eyes Only Information is subject to the Export
Administration Regulations (EAR), administered by the U.S. Department
-4-
of Commerce, or the International Traffic in Arms Regulations (ITAR), administered by the U.S.
Department of State, it shall be designated at the time of production or disclosure with an
appropriate legend so indicating, including (in a transmittal letter) the basis for such
designation and the implicated classification schedule identification, and may not be disclosed to
any foreign national, whether inside or outside the United States without government approval.
10. If Confidential Information or Outside Counsel Eyes Only Information is disclosed to
anyone other than in a manner authorized by this Protective Order, the party responsible for such
disclosure must immediately bring all pertinent faces relating to such disclosure in the attention
of the Designating party of the Confidential Information or Outside
Counsel Eyes Only Information,
and make every reasonable effort to retrieve such Confidential Information or Outside Counsel Eyes
Only Information and to prevent further disclosure.
11. If confidential Information or Outside Counsel Eyes Only Information is discussed, quoted
or referred to in any deposition, the disclosing party shall ensure that only persons permitted to
have access to such Information under paragraphs 4-5 of this Protective Order are present.
12. Any pleading, paper or other document filed in this Arbitration which contains or
discloses Confidential Information or Outside Counsel Eyes Only Information shall be filed under
seal and shall be maintained under seal according to the terms of this Protective Order or as
otherwise determined by the Arbitrator. When filing pleadings or other filings which contain
Confidential Information or Outside Counsel Eyes Only Information, the party so filing shall
designate the following on the first page of filed documents: “UNDER SEAL — SUBJECT TO PROTECTIVE
ORDER — CONTAINS CONFIDENTIAL OR OUTSIDE COUNSEL EYES ONLY MATERIAL,” Any pleading or filing
containing Confidential Information or Outside Counsel Eyes Only Information shall be disclosed
only to those persons entitled to access to such Confidential Information under paragraphs 4-5
hereof, but shall also be filied in non-confidential, redacted form
within three (3) business days of
its service or filing with the arbitrator.
13. Entering into, agreeing to and/or producing or receiving Confidential Information or
Outside Counsel Eyes Only Information or otherwise complying with the terms of this Protective
Order shall not:
-5-
a. prejudice the rights of any party to seek a determination by the Arbitrator whether any
Discovery Material, Confidential Information, or Outside Counsel Eyes Only Information should be
subject to the terms of this Protective Order;
b.
prejudice the rights of any party to petition the Arbitrator for a further protective order
or challenge relating to any purportedly Confidential Information or Outside Counsel Eyes Only
Information. or
c. prejudice the rights of any party so petition the Arbitrator for permission to disclose or
use particular Confidential Information or Outside Counsel Eyes Only Information more broadly than
would otherwise be permitted by the terms of this Protective Order, or
d. prevent any Designating Party from agreeing to alter or waive the provisions or protections
provided for herein with respect to any particular Discovery Material designated as Confidential
Information or Outside Counsel Eyes Only Information.
14. Notwithstanding any default provisions of this Protective Order providing for confidential
treatment, in the event of disagreement, the party asserting confidentiality shall have the burden
of proving that the information at issue is entitled to the protection of this Protective Order.
15. All provisions of this Protective Order restricting the use of information obtained during
discovery shall continue to be binding on the parties and all persons who have received information
under this Protective Order after the conclusion of this Arbitration, including all appeals, until
further Order of the Arbitrator, unless the parties agree otherwise in writing. any and all
originals and copies of Discovery Materials designated Confidential or Outside Counsel Eyes Only
shall, at the request of the producing party, be returned to the party within sixty (60) days after
a final judgment herein or settlement of this Arbitration, or, at the option of the producing
party, destroyed in this time frame, except that outside counsel for each party may maintain in its
files one copy of each pleading filed with the Arbitrator, each deposition together with the
Appendixes marked at the deposition, and documents constituting work product which were internally
generated based upon confidential Information or Outside counsel Eyes Only Information. In the
event that outside counsel maintains such documents, it shall not disclose material containing any
type of Confidential Information or Outside Counsel Eyes Only Information to another party absent
subpoena or court order. Upon receipt of any subpoena for such information, the party receiving the
subpoena shall immediately notify counsel for the
-6-
Designating
Party of the subpoena so that the latter may protect its interests. In the event
that documents are returned to or destroyed at the request of the producing party, the other party
or its outside counsel shall certify in writing that all such documents have been returned or
destroyed, as the case may be.
16. Third parties who produce information in this Arbitration may avail themselves of the
provisions of this Protective Order and Discovery Material produced by third parties shall
be treated by the parties in conformance with this Protective Order.
17. At the request of either party, the Arbitrator will revisit this order to ensure that
each party has a fair hearing, is not unreasonably burdened, and receives due process. If
it appears to the Arbitrator that the efforts of a party’s Independent Expert are
unreasonably burdened as a result of this order, then the Arbitrator will revisit the
question of whether the Qualified Persons described in paragraph 4(c) should have access
in the other party’s Outside Counsel Eyes Only materials subject to appropriate
restrictions to be placed on that individual in terms of patent prosecution activities.
18. The Arbitrator retains jurisdiction subsequent to settlement or entry of its award to
enforce the terms of this Protective Order.
| Dated: July __, 2006 | SO ORDERED: |
|||
| Xxx. Xxxxxx X. Xxxxx (Xxx.) | ||||
-7-
Judge Xxxxx, JAMS Endispute
APPENDIX A
Before JAMS
ACTEL CORPORATION, |
) | |
| ) | ||
Claimant, |
No. 1100046359 | |
| ) | ||
v. |
) | |
| ) | ||
BTR, INC., |
) | |
| ) | ||
Respondent. |
) |
I hereby certify (i) my understanding that Discovery Material and/or Confidential Information,
and/or Outside Counsel Eyes Only Information are being provided to me pursuant to the terms and
restrictions of the Protective Order (the “Order”) entered by the Arbitrator in this Arbitration,
and (ii) that I have read the Order. I understand the terms of the Order, I agree to be fully bound
by the Order, and I hereby submit to the jurisdiction of the Arbitrator for purposes of enforcement
of the Order.
Dated:
|
Signature: | |||||||||
| Name: | ||||||||||
| Address: | ||||||||||
-1-
ATTACHMENT B
Stipulation
XXXX X. XXXXXXX (SB #107026)
xxxxxxxx@xxx.xxx
XXXX X. XXXXXX (SB #197619)
xxxxxxx@xxx.xxx
O‘MELVENY & XXXXX LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
xxxxxxxx@xxx.xxx
XXXX X. XXXXXX (SB #197619)
xxxxxxx@xxx.xxx
O‘MELVENY & XXXXX LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attorneys for Claimant
ACTEL CORPORATION
ACTEL CORPORATION
XXXX X. XXXXXXX (SB #107026)
xxxxxxxx@xxx.xxx
XXXX X. XXXXXX (SB #197619)
xxxxxxx@xxx.xxx
O‘MELVENY & XXXXX LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
xxxxxxxx@xxx.xxx
XXXX X. XXXXXX (SB #197619)
xxxxxxx@xxx.xxx
O‘MELVENY & XXXXX LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attorneys for Claimant
ACTEL CORPORATION
ACTEL CORPORATION
JUDICIAL ARBITRATION AND MEDIATION SERVICE
| ) | ||||||
In the Matter of the Arbitration Between:
|
) | |||||
| ) | ||||||
ACTEL CORPORATION,
|
) | |||||
| ) | No. 1100046359 | |||||
Claimant,
|
) | (Xxx. Xxxxxx Xxxxx, Xxx.) | ||||
| ) | ||||||
— and —
|
) | STIPULATED DISMISSAL | ||||
| ) | WITH PREJUDICE | |||||
BTR, INC.,
|
) | |||||
| ) | ||||||
Respondent.
|
) | |||||
| ) | ||||||
IT IS HEREBY STIPULATED BY AND BETWEEN THE PARTIES HERETO, through their respective counsel,
that the Parties’ respective claims and counterclaims have been settled and compromised, and that
the same are hereby dismissed with prejudice.
IT IS FURTHER STIPULATED that each Party shall bear its own fees and costs.
| Dated: March __, 2007 | XXXX X. XXXXXXX XXXX X XXXXXX O‘MELVENY & XXXXX LLP |
|||
| By: | ||||
| Xxxx X. Xxxxxxx | ||||
| Attorneys for Claimant Actel Corporation |
||||
| Dated: March __, 2007 | XXXXXXX X. XXXX XXXX XXXXXXXX XXXXXXXXX WILL & XXXXX LLP |
|||
| By: | ||||
| Xxxx Xxxxxxxx | ||||
| Attorneys for Respondent BTR, Inc. |
||||
IT
IS SO ORDERED this ___ day of March 2007.
