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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CONFIDENTIAL TREATMENT
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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CONFIDENTIAL TREATMENT
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