CONFIDENTIAL
TREATMENT


 


 


Exhibit
10.41


 


PORTIONS OF THIS
EXHIBIT HAVE BEEN OMITTED AND ARE BEING FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION IN A CONFIDENTIAL TREATMENT REQUEST UNDER RULE 24b-2 OF
THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.  THE SYMBOL “[***]” IN
THIS EXHIBIT INDICATES THAT INFORMATION HAS BEEN OMITTED.


 


 


 


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SETTLEMENT
AND LICENSE AGREEMENT


This SETTLEMENT AND
LICENSE AGREEMENT (the “AGREEMENT”) is made by and among (i) Forgent Networks,
Inc., a corporation organized under the laws of the state of Texas with
corporate headquarters located at 108 Wild Basin Drive, Austin, Texas, (“FORGENT”)
and (ii) DIRECTV, INC., a corporation organized under the laws of the state of
California with a principal place of business at 2230 E. Imperial Highway, El
Segundo, California, (“DIRECTV”). 
DIRECTV and FORGENT shall individually be referred to as a “Party” and
collectively referred to as the “Parties.”


RECITALS


This AGREEMENT is made
for the following purpose:


A.                                   FORGENT has
commenced a civil action entitled Forgent Networks, Inc. v. Echostar
Technologies Corporation, C.A. No.: 6:06-CV-208 (LED) in the United States
District Court, Eastern District of Texas, Tyler Division (the “Action”).  FORGENT has asserted that DIRECTV is
infringing United States Patent No. 6,285,746 (the “‘746 Patent”) owned by
FORGENT.


B.                                     DIRECTV has
answered the allegations of the Complaint, and has asserted various affirmative
defenses and counterclaims against FORGENT, among other things, for declaratory
judgment of noninfringement and invalidity of the ‘746 Patent.


C.                                     FORGENT
represents that it is the sole and exclusive owner, among other things, of U.S.
Patent Nos. 6,285,746; 6,181,784; 6,480,584; and 6,674,960 (collectively the “Forgent
Patents”).


D.                                    DIRECTV is in
the business of, among other things, providing direct-to-home satellite
broadcast services, video, audio and/or data distribution services, and
associated receiving and distribution equipment including digital video
recorders and servers, and natural extensions thereof (hereinafter “the DIRECTV
Businesses”).


E.                                      To avoid the
expense and inconvenience of further litigation and legal proceedings, FORGENT
and DIRECTV desire as of the Effective Date to fully and finally resolve,
compromise and settle any and all disputes, claims and controversies between
them pertaining to any and all issues relating to the Action and the FORGENT
Patents, including (without limitation), any such issues with respect to any
aspect of, or third party participant in, the DIRECTV Businesses, and as
further set forth below.


NOW,
THEREFORE, in
light of the foregoing, and in consideration of the mutual covenants herein and
for other valuable consideration, the sufficiency of which the Parties hereby
acknowledge, the Parties hereto, and each of them, hereby warrant, represent,
acknowledge, covenant and agree as follows:


 


 


 


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1.                                      Definitions


(a)           The term “Affiliate” shall mean and
include (as of the date of execution hereof) any current or former parent,
subsidiary, predecessor-in-interest, or successor-in-interest, and any other
corporation, company, joint venture, partnership, firm or other entity formerly
or now controlled by, controlling, or under common control with a Party,
directly or indirectly through one or more intermediaries, where “control”
means direct or indirect ownership or control (whether through contract or
otherwise) of more than fifty percent (50%) of the stock or shares entitled to
vote for the election of directors in the case of corporate entities and in the
case of non-corporate entities, more than fifty percent (50%) of the equity
interest with the power to direct management policies.


(b)           The term “Covered Parties” shall mean
(i) DIRECTV and its past and current Affiliates; (ii) DIRECTV’s Future
Affiliates, and DIRECTV’s business partners, joint venture participants, and
other collaborators; (iii) [***], (iv) [***], and (v) all predecessors,
successors, assigns, agents, employees, directors, officers, and
representatives of subparts (i) through (iv) above [***].


(c)           The term “Covered Subject Matter”
shall mean any device [***] accused of falling within the scope of any claim of
the Forgent Patent Rights.


(d)           The term “DIRECTV Businesses” shall
mean the businesses described in Recital Paragraph D.


(e)           The term “Effective Date” shall mean
May 13, 2007.


(f)            The term “Expiration Date” shall
refer to the end of the day upon which the last of the Forgent Patent Rights
expires.


(g)           The term “Forgent Patents” shall mean
the patents described in Recital Paragraph C.


(h)           The term “Forgent Patent Rights”
shall mean the Forgent Patents and any and all patents and patent applications
related thereto, if any, including without limitation any and all parents,
continuations, continuations-in-part, divisions, substitutions, extensions,
reissues, and reexaminations thereof, and any and all foreign counterparts of
the foregoing.


(i)            The term “Future Affiliate” shall
mean any person or entity who becomes an Affiliate of a Party after the date of
execution of this AGREEMENT.


2.                                      Payment Of
Consideration


(a)           Amount:  Within five (5) business days of the
execution of this AGREEMENT by both Parties, DIRECTV shall deliver by wire
transfer to the account identified below the sum of Eight Million Dollars
($8,000,000.00):


                                                                [***]


 


 


 


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(b)           [***]


3.                                      Dismissal Of
The Complaint And Counterclaims


(a)           Counsel for FORGENT and counsel for
DIRECTV shall exchange on behalf of the respective Parties, executed copies of
the Agreed Motion to Dismiss with Prejudice and Order of Dismissal with
Prejudice pursuant to Rule 41(a)(1) and (c) of the Federal Rules of Civil
Procedure dismissing the Action including the claims and counterclaims filed
therein with prejudice in the form of Exhibit A (the “Stipulation of Dismissal”)
attached.  Upon receipt of the payment in
Section 2, counsel for FORGENT shall file the Agreed Motion to Dismiss with the
United States District Court for the Eastern District of Texas.


4.                                      Confidentiality


Neither Party shall
disclose any of the terms of this AGREEMENT to any third party, other than to
Affiliates, without the express written consent of the other Party except to
the limited extent as follows:  (i) as
may be required by any state or federal statute, by government regulation or by
court order, as determined in good faith by the disclosing Party, (ii) in a
proceeding brought for the purpose of enforcing this AGREEMENT against any
Party or person bound hereby, (iii) to the Parties’ respective professional
advisors, such as attorneys or accountants, who agree to comply with this
provision, (iv) to third parties that are interested in acquiring DIRECTV or an
Affiliate of DIRECTV and who agree to comply with this provision; (v) to
third parties that are interested in acquiring FORGENT and who agree to comply
with this provision, and (vi) to Covered Parties who agree to comply with this
provision; provided, however, that in the event of a disclosure under this
sub-part (vi), the disclosing Party shall redact from any such disclosure the
Section 2, above.  If any Party is
hereafter served with a valid discovery request, subpoena or other form of
judicial or administrative process which in the reasonable opinion of a Party
requires the disclosure of this AGREEMENT or terms thereof, then such
disclosing Party may make such production to the extent required, provided such
production or disclosure is made subject to appropriate legal protections for
the continued confidentiality of the information, such as subject to a binding
protective order or similar agreement restricting the use and further
disclosure of such information.  Notwithstanding
the foregoing, the mere occurrence of settlement of the Action and the
Stipulation of Dismissal shall not be deemed confidential.  Subject to all of the foregoing, both Parties
shall have the right to determine in good faith the scope of any disclosure,
and in so doing the Parties shall make reasonable and good faith efforts to
maintain the confidentiality of this AGREEMENT to the maximum extent
possible.  The Parties agree to work
together in good faith to address any unforeseen disclosure issues.


5.                                      No Admission Of
Liability


This AGREEMENT is a
settlement and compromise of disputed claims and shall not be treated as an
admission of liability by any Party for any purpose.  Further, nothing in this AGREEMENT shall be
construed as an admission by DIRECTV or any other of the Covered Parties of the
validity or infringement of the Forgent Patent Rights.


 


 


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6.                                      License
Provisions


(a)           License:  FORGENT hereby grants to DIRECTV and to the
other Covered Parties a non-exclusive, worldwide, fully paid-up, irrevocable
license to make, have made, use, sell, offer for sale, lease, or import any
product that involves the Covered Subject Matter or to practice or have
practiced, any method that involves the Covered Subject Matter, [***].


(b)           Term:  The license granted in Section 6(a) shall be
effective from the Effective Date of this AGREEMENT until the Expiration Date.


7.                                      Releases


(a)           Forgent’s Release of DIRECTV
Covered Parties:  FORGENT on behalf
of itself and its Affiliates hereby and forever releases and discharges the
Covered Parties defined in Section 1(b)(i) and any and all predecessors,
assigns, agents, employees, directors, officers, and representatives thereof
(collectively, the “DIRECTV Released Parties”), from any and all causes of
action, actions, judgments, liens, indebtedness, damages, losses, claims,
counterclaims, liabilities and demands of whatsoever kind or character
throughout the world, known or unknown, suspected to exist or not suspected to
exist, anticipated or not anticipated, whether or not heretofore brought before
any foreign or domestic court or governmental agency or entity, which FORGENT
or its Affiliates now holds, has the right to assert or owns, or has at any
time heretofore held, had the right to assert or owned against such DIRECTV
Released Parties.  [***]  Each of the DIRECTV Released Parties is
intended to be and is a third-party beneficiary of this release and has
standing to enforce the terms of this release without joinder of DIRECTV or any
other DIRECTV Released Party.


(b)           FORGENT’s Release of Other Covered
Parties:  FORGENT on behalf of itself
and its Affiliates hereby and forever releases and discharges the Covered
Parties defined in Sections 1(b)(ii) through (v) (collectively, the “Other
Released Parties”) from any and all causes of action, actions, judgments,
liens, indebtedness, damages, losses, claims, counterclaims, liabilities and
demands of whatsoever kind or character throughout the world, known or unknown,
suspected to exist or not suspected to exist, anticipated or not anticipated,
whether or not heretofore brought before any foreign or domestic court or
governmental agency or entity relating to or arising from the Covered Subject
Matter, which FORGENT or its Affiliates now holds, has the right to assert or
owns, or has at any time heretofore held, had the right to assert or owned
against such Other Released Parties [***]. 
[***]  Each of the Other Released
Parties is intended to be and is a third-party beneficiary of this release and
has standing to enforce the terms of this release without joinder of DIRECTV or
any Other Released Party.


(c)           DIRECTV’s Release of FORGENT:  DIRECTV hereby and forever releases and
discharges FORGENT, and its respective current Affiliates, agents, employees, directors,
officers, and representatives, from any and all causes of action, actions,
judgments, liens, indebtedness, damages, losses, claims, counterclaims,
liabilities and demands of whatsoever kind or character throughout the world,
known or unknown, suspected to exist or not suspected to exist, anticipated or
not anticipated, whether or not heretofore brought before any foreign or
domestic court or governmental agency or entity, which DIRECTV now holds,


 


 


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has the right to assert or
owns, or has at any time heretofore held, had the right to assert or owned
[***].


(d)           Enforcement of Agreement:  Nothing in the foregoing mutual releases in
this Section 7 shall affect either Party’s respective right to enforce against
the other Party such other Party’s obligations as set forth in this AGREEMENT.


8.                                      Covenant Not To
Sue


FORGENT and DIRECTV
hereby covenant for themselves and for their Affiliates that during the five
(5) year period starting on the Effective Date, they each will refrain from
commencing, instituting or prosecuting any lawsuit, action, proceeding, claim,
investigation, or demand of any kind or character against the other and the
other’s Affiliates, for infringement of any patent whether presently owned or
hereafter acquired [***].  [***]


9.                                      Representations
and Warranties


(a)           Releases:  The undersigned, and each of them, hereby
warrant, represent, and agree that they and each of them are the sole and
lawful owner of all right, title and interest in and to every claim and every
matter which they purport to release hereby. 
The releasing Party shall indemnify the released Party against, and
defend and hold such Party harmless from any claims arising out of or relating
to any assignment or transfer, or for any purported or attempted assignment or
transfer, of any claims or other matters released herein.


(b)           Acknowledgement and Waiver:


WITHOUT ACKNOWLEDGING OR
AGREEING TO THE APPLICABILITY OF CALIFORNIA LAW, FORGENT ACKNOWLEDGES THAT IT
IS FAMILIAR WITH 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.”


FORGENT, BEING AWARE OF
SAID CODE SECTION, HEREBY EXPRESSLY WAIVES ANY RIGHTS IT MAY HAVE THEREUNDER,
AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.


(c)           License:  FORGENT warrants and represents that it is
the sole and exclusive owner of the Forgent Patent Rights, that it has the full
right and power to grant the license as set forth herein, and that there are no
outstanding agreements, assignments or encumbrances inconsistent therewith.


 


 


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(d)           Covenants:  FORGENT and DIRECTV each warrants and
represents that it has the full right and power to grant the covenants provided
herein, and that there are no outstanding agreements, assignments or
encumbrances inconsistent therewith.


10.                               Additional
Provisions


(a)           Entire Agreement:  This AGREEMENT represents the entire
agreement of the Parties with respect to the transactions contemplated herein
and supersedes all prior agreements, discussions or representations, oral or
written, with respect to the subject matter hereof.  [***] 
Except as otherwise provided herein, this AGREEMENT may be amended,
modified or terminated only by a writing signed by both of the Parties hereto.


(b)           Binding Effect:  This AGREEMENT shall be binding upon and
inure to the benefit of the Parties hereto and each and all of their
representatives, officers, directors, employees, agents, Affiliates, partners,
successors, and heirs, if any.  As to the
Covered Parties defined in Section 1(b)(i), any persons or entities which may
become a DIRECTV Affiliate after the execution of this AGREEMENT by the
Parties, shall receive the full benefit of the license, release and covenants
of this AGREEMENT [***]; it being understood that no future transaction
involving DIRECTV should broaden the scope of any license, release or other
right granted by FORGENT hereunder.


(c)           Licenses and Covenants Run With
Title:  FORGENT further covenants
that this AGREEMENT shall run with the legal and equitable title to the Forgent
Patent Rights and all other applicable rights, until the Expiration Date and
beyond, and be enforceable against and binding upon any and all successors and
assigns of FORGENT.  In the event FORGENT
transfers any interest in any of the Forgent Patent Rights or other applicable
right, Forgent shall notify such transferee of this AGREEMENT and the
transferee shall be subject to all terms and conditions hereof.


(d)           Third Party Beneficiary:  DIRECTV shall be a third-party beneficiary of
the rights granted herein to other Covered Parties, and notwithstanding
anything in this AGREEMENT to the contrary, reserves the right to enforce those
rights on behalf of such Covered Parties.


(e)           Counterparts:  This AGREEMENT may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.  This AGREEMENT will become binding and
effective upon the exchange of facsimile copies of the required signatures.  The Parties will thereafter exchange formal
signed originals of this AGREEMENT for their permanent records.


(f)            Waiver:  The failure of any Party at any time to
require performance by any other Party of any provision of this AGREEMENT shall
not be deemed a continuing waiver of that provision or a waiver of any other
provision of this AGREEMENT and shall in no way affect the full right to
require such performance from such other Party at any time thereafter.


(g)           Negotiated Agreement:  The terms of this AGREEMENT were negotiated
by FORGENT and DIRECTV, and neither of the Parties shall be deemed the sole


 


 


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author of this
AGREEMENT.  Each Party has been
represented by legal counsel in connection with the negotiation and execution
of this AGREEMENT.


(h)           Severability:  If any provision of this AGREEMENT is
declared or found to be illegal, unenforceable or void, and the remainder of
this AGREEMENT is not materially affected by such a declaration or finding and
is capable of substantial performance, then the remainder shall be enforced to
the extent permitted by law.


(i)            Headings:  The headings to sections and paragraphs of
this AGREEMENT shall not be deemed a part of this AGREEMENT and shall not
affect the interpretation of this AGREEMENT.


(j)            Voluntary Execution:  This AGREEMENT is executed voluntarily by
each of the Parties hereto without any duress or undue influence on the part,
or on behalf, of any of them.  The
Parties hereto represent and warrant to each other that they have read and
fully understand the provisions of this AGREEMENT and have relied upon the
advice and representation of legal counsel of their own choosing.


(k)           Attorneys’ Fees:  FORGENT and DIRECTV each shall bear its own
attorneys’ fees, costs and expenses in connection with the Action, with the
negotiation and preparation of this AGREEMENT, and with the completion of
settlement as herein provided.


(l)            Governing Law:  This AGREEMENT shall be interpreted, and the
rights and duties of the Parties hereto shall be determined, in accordance with
the laws of the State of Texas, without regard to its conflicts of laws
provisions.  [***]


(m)          Authority:  Each Party warrants and represents that it
has all necessary rights and is fully authorized to enter into this AGREEMENT
and to carry out the obligations provided for herein.


(n)           Bankruptcy:  Each Party represents and warrants that it is
not presently the subject of a voluntary or involuntary petition in bankruptcy
or the equivalent thereof, does not presently contemplate filing any such
voluntary petition, and does not presently have reason to believe that such an
involuntary petition will be filed against it.


(o)           [***]


(p)           Notices:  All notices to, demands, consents, and
communications that any Party may desire to give to the other, and/or may be
required under this AGREEMENT, must be in writing.  The notice shall be effective upon receipt in
the United States after having been sent by registered or certified mail or
sent by facsimile transmission, and addressed to the address designated below:


                [***]


or to such address that
the Party to whom notices are to be sent may from time to time designate in
writing.


 


 


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(q)           Agency:  This Agreement does not make either Party the
agent of the other Party for any purpose whatsoever, nor does either Party have
the right or authority to assume, create or incur any liability of any kind,
express or implied, against or in the name or on behalf of the other Party.


(r)            No License to FORGENT:  Nothing contained in this AGREEMENT shall be
construed as conferring to FORGENT or to its Affiliates any right to a
license under or to otherwise use any patent, patent application, trademark,
service name, service mark, trade dress, trade secret or other intellectual
property belonging to DIRECTV or its Affiliates.


IN
WITNESS WHEREOF, the
Parties have executed this AGREEMENT on the dates set forth opposite their
respective signatures below: 


	
  DATED: 

  	
   

  	
   

  	
  FORGENT NETWORKS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  DATED: 

  	
   

  	
   

  	
  DIRECTV, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
           [***]

  



 


 


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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION


	
  FORGENT NETWORKS, INC.

   

                                                  Plaintiff,

   

  vs.

   

  ECHOSTAR COMMUNICATIONS

  CORPORATION, et al.

   

                                                  Defendants.

   

  	
     CONSOLIDATED

     C.A. No. 6:06-CV-208
  (LED)

  
	
   

  SCIENTIFIC-ATLANTA, INC.

  MOTOROLA, INC. and DIGEO, INC.

   

                                                  Plaintiffs,

   

  vs.

   

  FORGENT NETWORKS, INC.

   

                                                  Defendant.

   

  



 


AGREED
MOTION TO DISMISS WITH PREJUDICE


Pursuant to Rule 41(a)
and 41(c) of the Federal Rules of Civil Procedure and the terms of a separate
agreement, Plaintiff Forgent Networks, Inc. (“Forgent”) and Defendant DIRECTV, Inc.
(collectively, the “Parties”) have agreed to settle, adjust and compromise all
claims against each other in this case. 
The Parties, therefore, move this Court to dismiss with prejudice all
claims by Plaintiff against
Defendant and to dismiss with prejudice all claims by Defendant against
Plaintiff with this Court retaining exclusive jurisdiction to hear any dispute
that may arise in connection with the settlement or any matter related thereto.


 


 


 

















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A proposed Order accompanies this
motion.


	
   

  	
  Respectfully submitted,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
            [***]

  



 


ATTORNEY-IN-CHARGE FOR PLAINTIFF


OF COUNSEL:


 


[***]


 


[***]


 


[***]


 


ATTORNEYS FOR PLAINTIFF


 


[***]


 


ATTORNEYS FOR DEFENDANTS

DIRECTV, INC.


 


[***]


 


[***]


 


ATTORNEYS
FOR DEFENDANT

DIRECTV, INC.


 


 


 

















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CERTIFICATE OF SERVICE


I hereby certify that a true and correct copy of the
foregoing document was forwarded to opposing counsel, via e-filing and e-mail, on this        th day of June, 2007.


 


 


 


 






 












 


CONFIDENTIAL
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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION


 


	
  FORGENT NETWORKS, INC.

   

                                                  Plaintiff,

   

  vs.

   

  ECHOSTAR COMMUNICATIONS

  CORPORATION, et al.

   

                                                  Defendants.

   

  	
  CONSOLIDATED

  C.A.
  No. 6:06-CV-208 (LED)

  
	
   

  SCIENTIFIC-ATLANTA, INC.

  MOTOROLA, INC. and DIGEO, INC.

   

                                                  Plaintiffs,

   

  vs.

   

  FORGENT NETWORKS, INC.

   

                                                  Defendant.

   

  



 


ORDER
OF DISMISSAL WITH PREJUDICE


On this day, Plaintiff
Forgent Networks, Inc. (“Plaintiff”) and Defendant DIRECTV, Inc. (“Defendant”)
announced to the Court that they have settled their respective claims for
relief asserted in this case against each other and requested that the Court
dismiss these claims with prejudice with this Court retaining exclusive
jurisdiction to hear any dispute that may arise in connection with the
settlement or any matters related thereto. 
The Court, having considered this request, is of the opinion that their
request should be, and hereby is, GRANTED. 
It is therefore


 


 


 

















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ORDERED that Plaintiff’s claims against Defendant, and Defendant’s
claims against Plaintiff, are each dismissed with prejudice, subject to this
Court’s retention of exclusive jurisdiction to hear any dispute that may arise
in connection with the settlement or any matters related thereto.