exv10w68






Exhibit 10.68




SETTLEMENT AGREEMENT




I. PARTIES




     This Settlement Agreement (“Agreement”) is entered into among the United States of America,
acting through the United States Department of Justice and on behalf of the General Services
Administration (hereafter “GSA”) (collectively the “United States”), NetApp, Inc. (formerly known
as “Network Appliance, Inc.”) and NetApp U.S. Public Sector, Inc. (formerly known as “Network
Appliance Federal Systems, Inc.”) (hereafter collectively “NetApp”), and Igor Kapuscinski
(hereafter referred to as “the Parties”), through their authorized representatives.



II. PREAMBLE




          As a preamble to this Agreement, the Parties agree to the following:




          A. NetApp is a company headquartered in Sunnyvale, California that manufactures, sells and
distributes enterprise network storage and data management solutions, including hardware, software
and storage management services for open network environments.




          B. Kapuscinski (“Relator”) is an individual resident of Maryland. On April 13, 2006, Relator
filed a qui tam action in the United States District Court for the District of
Columbia captioned United States ex rel. Kapuscinski v. Network Appliance, Inc. and Network
Appliance Federal Systems, Inc., Civ. No. 06-00675 (RMU) (hereafter “the Civil Action”).
Relator was formerly employed at NetApp in the positions of Systems Engineer, Manager of
Administration and Procurement, and Federal Operations Manager/Director. The United States will
intervene in the Civil Action promptly upon the
execution of this Settlement Agreement.




          C. The United States contends that it has certain civil claims, as specified in Paragraph 2,
below; against NetApp for engaging in the following conduct during the period














 







from
August 1, 1997
to February 12, 2005: In connection with Contracts GS-35F-0176D and GS-35F-5183H (“the Contracts”),
NetApp: 1) made false disclosures and false statements to GSA as to the discounts it was providing
to its other customers and as to its compliance with the Contracts’ price reduction clause; 2)
violated the price reduction terms of the Contracts by failing to extend proper discounts to
government customers purchasing under the Contracts; and 3) as a consequence, presented and/or
caused others to present claims to the United States under the Contracts that were inflated because
they were not discounted as highly as they should have been. For purposes of this Agreement, the
conduct described above is known as “the Covered Conduct.”




          D. Net App denies the contentions of the United States set forth in Paragraph C and the claims
and allegations made by the Relator in the Civil Action. This Agreement represents a compromise to
avoid continued litigation and associated risks and is neither an admission of liability by NetApp
nor a concession by the United States or Relator that their claims are not well founded.




          E. To avoid the delay, uncertainty, inconvenience, and expense of protracted litigation of the
above claims, the Parties reach a full and final settlement pursuant to the Terms and Conditions
below.




III. TERMS AND CONDITIONS




          1. NetApp agrees to pay to the United States $128,000,000, plus interest accruing at the rate
of 3 percent per annum from February 18, 2009 until the date of
payment (“the Settlement Amount”). NetApp further agrees to pay Relator $75,000 for expenses
and attorney’s fees and costs. The foregoing payments shall be made as follows:




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               a. NetApp agrees to pay the full Settlement Amount to the United States by electronic funds
transfer pursuant to written instructions to be provided by the United States Attorney’s Office for
the District of Columbia. NetApp agrees to make this electronic funds transfer no later than April
27, 2009.




               b. Contingent upon the United States receiving the Settlement Amount from NetApp and as soon
as feasible after receipt, the United States agrees to pay $19,200,000, plus 15% of the interest
paid by NetApp, to Relator by electronic funds transfer pursuant to written instructions to be
provided by H. Vincent McKnight.




               c. NetApp agrees to pay $75,000 by electronic funds transfer pursuant to written instructions
to be provided by Vincent McKnight. NetApp agrees to make this electronic funds transfer no later
than April 27, 2009.




          2. Subject to the exceptions in Paragraph 4 (concerning excluded claims), below, in
consideration of the obligations of NetApp in this Agreement, conditioned upon NetApp’s full
payment of the Settlement Amount, the United States (on behalf of itself, its officers, agents,
agencies, and departments) agrees to release NetApp together with its current and former parent
corporations; direct and indirect subsidiaries; brother or sister corporations; divisions;
shareholders; officers, directors, employees and affiliates; and the successors and assigns of any
of them from, any civil or administrative monetary claim the United States has or may have for the
Covered Conduct under the False Claims Act, 31 U.S.C. §§ 3729-3733; the Program Fraud Civil
Remedies Act, 31 U.S.C. §§ 3801-3812; the Contract Disputes Act, 41 U.S.C. § 601 et
seq. or the common law
theories of breach of contract, payment by mistake, unjust enrichment, and fraud.




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          3. Subject to the exceptions in Paragraph 4 (concerning excluded claims), below, in
consideration of the obligations of NetApp in this Agreement, conditioned upon
NetApp’s full payment of the Settlement Amount, Relator, for himself and for his heirs,
successors, attorneys, agents, and assigns, agrees to release NetApp from any civil monetary claim
the United States has or may have for the Covered Conduct under the False Claims Act, 31 U.S.C. §§
3729-3733.




          4. Notwithstanding any term of this Agreement, specifically reserved and excluded from the
scope and terms of this Agreement as to any entity or person (including NetApp and Relator) are the
following claims of the United States:




               a. Any civil, criminal, or administrative liability arising under Title 26, U.S. Code
(Internal Revenue Code);




               b. Any criminal liability;




               c. Except as explicitly stated in this Agreement, any administrative liability including the
suspension and debarment rights of any federal agency;




               d. Any liability to the United States (or its agencies) for any conduct other than the Covered
Conduct;




               e. Any liability based upon such obligations as are created by this Agreement;




               f. Any liability for express or implied warranty claims or other claims for defective or
deficient products or services, including quality of goods and services;




               g. Any liability for failure to deliver goods or services due.




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          5. Relator and his heirs, successors, attorneys, agents, and assigns agree not to object to
this Agreement and agree and confirm that this Agreement is fair, adequate, and reasonable under
all the circumstances, pursuant to 31 U.S.C. § 3730(c)(2)(B) and, conditioned upon receipt of
Relator’s share, Relator, for himself individually, and for his heirs, successors, agents, and
assigns, fully and finally releases, waives, and forever discharges the United States, its
officers, agents, and employees, from any claims arising from or. relating to 31 U.S.C. § 3730;
from any claims arising from the filing of the Civil Action; and from any other claims for a share
of the Settlement Amount; and in full settlement of any claims Relator may have under this
Agreement. This Agreement does not resolve or in any manner affect any claims the United States has
or may have against the Relator arising under Title 26, U.S. Code (Internal Revenue Code), or any
claims arising under this Agreement.




          6. In consideration of the obligations of NetApp in this Agreement, conditioned upon the full
payment of the Settlement Amount and Relator’s Legal Fees, Relator, for himself and for his heirs,
successors, attorneys, agents, and assigns, agrees to generally release, acquit, waive, and forever
discharge NetApp and all the current and former officers and directors, employees, agents,
attorneys, owners and shareholders of NetApp from any and all rights, claims, expenses, debts,
liabilities, demands, obligations, costs, damages, injuries, actions and causes of action of every
nature, whether known or unknown, suspected or unsuspected, in law or in equity from the beginning
of the world to the day of these presents including but not limited to those he advanced or could
have advanced in the Civil Action or otherwise under the False Claims Act, 31 U.S.C. §§
3729-3733, for expenses or attorneys’ fees and costs under 31 U.S.C. § 3730(h), or under 31
U.S.C. § 3730(h) for employment decisions by NetApp and/or




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other statutory or common law doctrines
of payment by mistake, unjust enrichment, breach of contract, fraud, or the like. The foregoing
sentence is intended to be interpreted as a general release. Furthermore, Relator covenants not to
sue NetApp, its current and former officers and directors, employees, agents, attorneys and
shareholders of NetApp with respect to any and all rights, claims, expenses, debts, liabilities,
demands, obligations, costs, damages, injuries, actions and causes of action of every nature,
whether known or unknown, suspected or unsuspected, in law or in equity, including those for
attorneys’ fees and costs arising prior to the Effective Date of this Agreement.




          7. NetApp waives and shall not assert any defenses NetApp may have to any criminal prosecution
or administrative action relating to the Covered Conduct that may be based in whole or in part on a
contention that, under the Double Jeopardy Clause in the Fifth Amendment of the Constitution, or
under the Excessive Fines Clause in the Eighth Amendment of the Constitution, this Agreement bars a
remedy sought in such criminal prosecution or administrative action. Nothing in this paragraph or
any other provision of this Agreement constitutes an agreement by the United States concerning the
characterization of the Settlement Amount for purposes of the Internal Revenue laws, Title 26 of
the United States Code.




          8. NetApp fully and finally releases the United States, its agencies, employees, servants, and
agents from any claims (including attorney’s fees, costs, and expenses of every kind and however
denominated) that NetApp has asserted, could have asserted, or may assert in the future against the
United States, and its agencies,
employees, servants, and agents, related to the Covered Conduct and the United States’
investigation and prosecution thereof.




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          9. Conditioned on the dismissal with prejudice of the Civil Action, NetApp hereby forever
releases and discharges Relator of and from any and all manner of action or actions, cause or
causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises,
liability, claims, demands, grievances, damages, losses, costs or expenses, of any nature
whatsoever, known or unknown, fixed or contingent, which Net App now has or may hereafter have
against the Relator by reason of any matter, cause, or thing whatsoever from the beginning of time
to the date of these presents arising out of, based upon, or relating to the relationship between
NetApp and Relator including but not limited to, any issues raised or that could have been raised
or relating in any way to the Civil Action.




          10. NetApp agrees to the following:




               a.
Unallowable Costs Defined: that all costs (as defined in the Federal Acquisition
Regulation, 48 C.F.R. § 31.205-47) incurred by or on behalf of NetApp, and its present or former
officers, directors, employees, shareholders, and agents in connection with:




                    (1) the matters covered by this Agreement;




                    (2) the United States’ audit(s) and civil investigation(s) of the matters covered by this
Agreement;




                    (3) NetApp’s investigation, defense, and corrective actions undertaken in response to the
United States’ audit(s) and civil investigation(s) in connection with the
matters covered by this Agreement (including attorney’s fees);




                    (4) the negotiation and performance of this Agreement;




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                    (5) the payment NetApp makes to the United States pursuant to this Agreement and any payments
that NetApp may make to Relator, including costs and attorneys fees, are “Unallowable Costs” for
government contracting purposes (hereinafter referred to as “Unallowable Costs”).




               b. Future Treatment of Unallowable Costs: Unallowable Costs will be separately determined and
accounted for by NetApp, and NetApp shall not charge such Unallowable Costs directly or indirectly
to any contracts with the United States.




               c. Treatment of Unallowable Costs Previously Submitted for Payment: NetApp further agrees that
within 90 days of the Effective Date of this Agreement it shall identify any unallowable costs (as
defined in this Paragraph) included in payments previously sought by NetApp or any of its
subsidiaries or affiliates from the United States. NetApp agrees that the United States, at a
minimum, shall be entitled to recoup from NetApp any overpayment plus applicable interest and
penalties as a result of the inclusion of such Unallowable Costs in any such payments. Any payments
due shall be paid to the United States pursuant to the direction of the Department of Justice
and/or the affected agencies. The United States reserves its rights to disagree with any
calculations submitted by NetApp or any of its subsidiaries or affiliates regarding any Unallowable
Costs included in payments previously sought by NetApp, or the effect of any such Unallowable Costs
on the amount of such payments.




               d. Nothing in this Agreement shall constitute a waiver of the rights of the
United States to audit, examine, or re-examine NetApp’s books and records to determine that no
Unallowable Costs have been claimed in accordance with the provisions of this Paragraph.




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          11. This Agreement is intended to be for the benefit of the Parties only. Except as
specifically provided in this Agreement, the Parties do not release any claims against any other
person or entity.




          12. NetApp warrants that it has reviewed its financial situation and that it currently is
solvent within the meaning of 11 U.S.C. §§ 547(b)(3) and 548(a)(1)(B)(ii)(I), and shall remain
solvent following payment to the United States of the Settlement Amount. Further, the Parties
warrant that, in evaluating whether to execute this Agreement, they (a) have intended that the
mutual promises, covenants, and obligations set forth constitute a contemporaneous exchange for new
value given to NetApp, within the meaning of 11 U.S.C. § 547(c)(1), and (b) conclude that these
mutual promises, covenants, and obligations do, in fact, constitute such a contemporaneous
exchange. Further, the Parties warrant that the mutual promises, covenants, and obligations set
forth herein are intended to and do, in fact, represent a reasonably equivalent exchange of value
that is not intended to hinder, delay, or defraud any entity to which NetApp was or became indebted
to on or after the date of this transfer, within the meaning of 11 U.S.C. § 548(a)(1).




          13. Upon receipt of the payments described in Paragraph 1, above, the United States and
Relator shall promptly sign and file in the Civil Action a Joint Stipulation of Dismissal with
prejudice of the Civil Action pursuant to the terms of the Agreement. At or before the filing of
the Joint Stipulation of Dismissal, the United States shall also file a Notice of Intervention in
the Civil Action.




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          14. Except as expressly provided to the contrary in this Agreement, each Party shall bear its
own legal and other costs incurred in connection with this matter, including the preparation and
performance of this Agreement.




          15. NetApp represents that this Agreement is freely and voluntarily entered into without any
degree of duress or compulsion whatsoever.




          16. Relator represents that this Agreement is freely and voluntarily entered into without any
degree of duress or compulsion whatsoever.




          17. This Agreement is governed by the laws of the United States. The Parties agree that the
exclusive jurisdiction and venue for any dispute arising between and among the Parties under this
Agreement is the United States District Court for the District of Columbia.




          18. For purposes of construction, this Agreement shall be deemed to have been drafted by all
Parties to this Agreement and shall not, therefore, be construed against any Party for that reason
in any subsequent dispute.




          19. This Agreement constitutes the complete agreement between the Parties. This Agreement may
not be amended except by written consent of the Parties.




          20. The individuals signing this Agreement on behalf of NetApp represent and warrant that they
are authorized by NetApp to execute this Agreement. The individual(s) signing this Agreement on
behalf of Relator represent and warrant that they are authorized by Relator to execute this
Agreement. The United States signatories represent that they are signing this Agreement in their
official capacities and that they are authorized to execute this Agreement.




          21. This Agreement may be executed in counterparts, each of which constitutes an original and
all of which constitute one and the same Agreement.




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          22. This Agreement is binding on NetApp’s successors, transferees, heirs, and assigns.




          23. This Agreement is binding on Relator’s successors, transferees, heirs, and assigns.




          24. All parties consent to the United States’ disclosure of this Agreement, and information
about this Agreement, to the public.




          25. This Agreement is effective on the date of signature of the last signatory to the
Agreement (“Effective Date of this Agreement”). Facsimiles of signatures shall Constitute
acceptable, binding signatures for purposes of this Agreement.




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THE UNITED STATES OF AMERICA




	 	 	 	 	 
	 	 	 
	DATED: 4/6/09 	BY:  	/s/ Sara McLean
 	 
	 	 	Sara McLean, Esq. 	 
	 	 	Rebecca Ford, Esq.

Trial Attorneys

Commercial Litigation Branch

Civil Division

United States Department of Justice 	 
	 
	 	 	 
	DATED: 4/3/09 	BY:  	/s/ Laurie Weinstein
 	 
	 	 	Laurie Weinstein, Esq. 	 
	 	 	Assistant United States Attorney

District of Columbia 	 



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NETAPP. INC. & NETAPP U.S. PUBLIC SECTOR, INC. — DEPENDANTS




	 	 	 	 	 
	 	 	 
	DATED: April 6, 2009 	BY:  	/s/ Nicholas Noviello
 	 
	 	 	Nicholas Noviello 	 
	 	 	Senior Vice President & Corporate Controller
NetApp, Inc. 	 
	 
	 	 	 
	DATED: 4/7/2009 	BY:  	/s/ Roger S. Goldman
 	 
	 	 	Roger S. Goldman, Esq. 	 
	 	 	Latham & Watkins, LLP
Counsel for Defendants 	 
	 




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IGOR KAPUSCINSKI — RELATOR




	 	 	 	 	 
	 	 	 
	DATED: 4-3-09 	By:  	/s/ Igor Kapuscinski
 	 
	 	 	Igor Kapuscinski 	 
	 	 	 	 
	DATED: 4-3-09 	  	/s/ Altomease R. Kennedy
 	 
	 
	 	 	 
	DATED: 4-3-09 	By:  	/s/ H. Vincent McKnight
 	 
	 	 	H. Vincent McKnight, Esq. 	 
	 	 	Altomease R. Kennedy, Esq.

Ashcraft & Gerel, LLP

Counsel for Igor Kapuscinski 	 
	 



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