[TRADE SECRET CASE]
CONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Confidential Settlement Agreement and Mutual Release
(“Agreement”) is entered into by and between plaintiffs ABC, Inc. (hereinafter “ABC”
or “plaintiffs”) on the one hand, and defendants XYZ Corp. (“XYZ”), Joe Employee
(“Employee”) (hereinafter collectively “defendants”) on the other hand, as of the date
this Agreement is fully signed. (Collectively, plaintiffs and defendants shall be from
time to time referred to herein as the “Parties.”)
RECITALS
A.
On or about _______________ ABC filed an action against
defendants entitled _____________________________________ which was assigned
Case No. ______________ in the ______________________________ Court (the
“Action”), alleging causes of action for breach of duty of loyalty, breach of express
contract, intentional interference with economic relations, unfair competition,
misappropriation of trade secrets, breach of confidence, violation of California
Business and Professions Code Sections 17200, et seq., and unjust enrichment.
B.
Defendants expressly deny any liability with respect to the claims
in the Action, or with respect to any other matters relating to Plaintiff’s claims.
C.
However, in order to fully and forever resolve, settle and
compromise matters asserted in the Action, and with the understanding that this
Agreement does not constitute an admission by Defendants of any wrongdoing or of
any merit relating to any claims referred to herein, Defendants and Plaintiff enter into
this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the premises and mutual
promises contained herein, and for valuable consideration, the receipt of which is
hereby acknowledged, the Parties hereto agree as follows:
1.
Payment.
a.
($________) as follows:
XYZ shall pay ABC the sum of _____________________
i.
$_________ on or before _____________, to be
delivered to counsel for ABC, ____________________________.
ii.
$___________ on or before _____________, to be
delivered to ABC as the address indicated in Paragraph __ below.
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b.
Interest shall not accrue on the sums above.
2.
Dismissal With Prejudice. Plaintiff agrees to cause to be filed,
pursuant to the Code of Civil Procedure, a Request for Dismissal with prejudice of the
entire action within 3 business days immediately following receipt by Plaintiffs’
attorney of the initial payment settlement proceeds described above in Paragraph
1(a)(i).
3.
Mutual General Releases. Except for the rights and obligations
of the Parties under this Agreement, the Parties hereby fully, finally, and forever
mutually release, relinquish, and discharge one another (including their employees,
directors, and agents) from and against any and all charges, complaints, lawsuits,
claims, liabilities, claims for relief, obligations, promises, agreements, contracts,
interests, controversies, injuries, damages, actions, causes of action, suits, rights,
demands, costs, losses, debts, liens, judgments, indebtedness, and expenses (including
attorney's fees and costs actually incurred), of any nature whatsoever, whether in law
or in equity, KNOWN OR UNKNOWN, suspected or unsuspected, actual or potential,
anticipated or not anticipated, at the time of the execution of this Agreement, arising
from and/or related to, in whole or in part, the claims that were, or could have been
asserted in the Action.
4.
Waiver Of California Civil Code Section 1542. It is the
intention of the Parties that this Agreement shall be effective as a full and final accord,
satisfaction and release as to the matters released herein. In furtherance of this
intention, as to the matters released herein, each Party expressly waives and
relinquishes, to the fullest extent permitted by applicable law, all provisions, rights and
benefits of California Civil Code Section 1542, which states as follows:
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.
Each Settling Party also expressly waives and relinquishes, to the fullest extent
permitted by applicable law, the provisions, rights and benefits conferred by any law
of any state, territory, or commonwealth of the United States, or principle of common
law, or of international or foreign law, which is similar, comparable or equivalent to
California Civil Code Section 1542.
5.
Good Faith. Each party to this Agreement agrees to do all things
necessary to carry out and effectuate the terms of this Agreement, and expressly
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promises not to do or fail to do anything, directly or indirectly, which will interfere
with any other party’s realization of the benefits hereof.
6.
Confidentiality. The Parties acknowledge that they must keep
the terms of this Agreement strictly confidential. Accordingly, they agree not to
disclose or publish to any person or entity, except their corporate officers, immediate
family members, attorneys, or financial professionals, or pursuant to legal process, the
terms and conditions or sums being paid in connection with this Agreement. In the
event that any Party hereto is served with a subpoena or other legal process that would
require a disclosure otherwise deemed confidential pursuant to this Agreement, he/it
agrees to provide written notice to the other parties within three (3) business days of
his/its receipt of said subpoena or legal process. The Parties agree that any disclosure
of information or other action contrary to the terms of this Paragraph would cause
irreparable injury and damage to the other Party/Parties, the amount of which would be
impractical or extremely difficult to determine. Accordingly, the Parties agree a nonbreaching party shall be entitled to recover from a breaching party liquidated damages
in the amount of $5,000 for each instance in which a Party discloses any of the abovelisted information.
7.
Non-Disparagement. Plaintiff agrees, on behalf of itself, its
attorneys, and its officers and directors, that it/they will not disparage or comment
negatively about the Defendants, or any of them, including XYZ’s parent companies,
subsidiaries, or their officers, directors and/or employees, customers, suppliers or
partners. Defendants agree, on behalf of themselves, their attorneys, and their officers
and directors, that it/they will not disparage or comment negatively about the plaintiff,
including its parent companies, subsidiaries, or its officers, directors and/or employees,
customers, suppliers or partners.
8.
No Duress. In entering into this Agreement, the Parties have
received independent legal advice from their own counsel and have relied on their own
investigation and upon the advice of their own attorneys with respect to the
advisability of making the settlement provided for herein. The Parties acknowledge
that they have read this Agreement and have had it fully explained by counsel and are
fully aware of the contents of the Agreement and its legal effect. This Agreement is
entered into by each Party voluntarily and without any duress or undue influence on
the part of any person, firm or corporation.
9.
Agreement Not To Be Construed As An Admission. Nothing
in this Agreement constitutes, or should or shall be deemed to constitute, any
admission of any act, fact or liability, with respect to any matters released herein.
10.
Successors and Assigns. This Agreement shall inure to the
benefit of, and shall be binding upon, the successors and assigns of the parties hereto,
and each of them. In the case of corporate parties hereto, this Agreement is intended
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to release and inure to the benefit of the corporate party’s owners, attorneys, affiliates,
parent corporations, sister companies, subsidiaries (whether or not wholly-owned),
component units, divisions, partners, officers, directors, agents, representatives,
employees, former employees, servants, executors, administrators, accountants,
investigators, insurers, and each of them, and any and all other related individuals and
entities, if any, individually as well as in the capacity indicated.
11.
Costs and Fees. Each party to this Agreement agrees to bear
his/its own costs, expenses and attorneys’ fees incurred in connection with the Action
and the preparation of this Agreement.
12.
Warranty of Authority. Each party to this Agreement hereto
expressly warrants and represents that he/it is fully authorized to enter into this
Agreement and each of its terms, and that he/it has not assigned to any other party or
person any claims released herein.
13.
Entire Agreement.
This Agreement embodies the entire
understanding of the Parties hereto and each Party hereby represents and warrants that:
(i) he/it is not relying on any representations or promises other than those contained
herein; and (ii) this Agreement and the releases provided for herein can be changed,
altered or modified in any respect only by an instrument in writing and signed by the
Party against whom enforcement of any waiver, change, modification, or discharge is
sought.
14.
Ambiguity. Each of the parties hereto has been represented by
counsel in the negotiating and drafting of this Agreement. Accordingly, the rules of
construction of contracts relating to the resolution of ambiguities against the drafting
party shall be inapplicable to this Agreement.
15.
Admissibility/Retention of Court Jurisdiction. The Parties
intend for this Settlement Agreement to be enforceable, binding, and admissible in
Court. Pursuant to California Code of Civil Procedure §664.6, the Parties agree that
the Court shall retain jurisdiction over the Parties to enforce the provisions of this
settlement until there has been full performance. The Parties and their attorneys each
acknowledge that their respective obligations herein may be specifically enforced by
the Court on noticed motion.
16.
Applicable Law. Construction, performance, and enforcement of
this Agreement shall be governed by the laws of the State of California, both
substantive and procedural. All parties to this Agreement accede to the jurisdiction of
the courts of the State of California for any actions to enforce, interpret or for breach
of, any term of this Agreement. The exclusive venue for any dispute arising out of this
Agreement shall be a court of competent jurisdiction in Orange County, California.
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17.
Severability. If for any reason any provision contained in this
Agreement is later deemed unenforceable, all remaining terms of this Agreement shall
nonetheless remain fully binding and enforceable on all parties hereto.
18.
Attorneys’ Fees. If any action at law or in equity is brought to
enforce or interpret the provisions of this Agreement, the prevailing party shall be
entitled to reasonable attorneys’ fees and costs.
19.
Counterparts. This Agreement may be executed in multiple
originals or counterparts, each of which shall be deemed an original or the equivalent
thereof. A faxed or electronic copy of the signed Agreement shall be deemed an
original or the equivalent thereof and shall be as enforceable as the original.
EACH OF THE UNDERSIGNED HAS CAREFULLY READ AND
UNDERSTANDS THE CONTENTS OF THIS SETTLEMENT AGREEMENT.
EACH OF THE UNDERSIGNED HAS REVIEWED THE TERMS OF THIS
SETTLEMENT AGREEMENT WITH ITS/HIS ATTORNEY. IN SIGNING THIS
SETTLEMENT AGREEMENT, EACH OF THE UNDERSIGNED IS RELYING ON
ITS/HIS OWN INVESTIGATION, JUDGMENT, BELIEF AND KNOWLEDGE
AND THE ADVICE OF ITS/HIS COUNSEL AND IS NOT RELYING ON ANY
REPRESENTATIONS OR STATEMENTS MADE BY ANY OTHER PARTY OR
COUNSEL FOR ANY OTHER PARTY TO THIS AGREEMENT.
Dated: ______________________
_________________________________
ABC, Inc.
by _______________
Its _______________________________
Dated: ______________________
_________________________________
XYZ Corp.
by _______________
Its _______________________________
Dated: ______________________
_________________________________
Joe. Employee
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APPROVED AS TO FORM AND CONTENT:
COUNSEL FOR PLAINTIFF
______________________________
Attorney
Attorneys for Plaintiff
COUNSEL FOR DEFENDANTS
______________________________
Attorney
Attorneys for Defendants
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