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EXHIBIT 99.3
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff, )
) Civil Action No.
v. )
)
JDS UNIPHASE CORPORATION ) Filed:
and E-TEK DYNAMICS, INC., )
)
Defendants. )
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FINAL JUDGMENT
WHEREAS, plaintiff, United States of America ("United States"), filed
its Complaint on June __, 2000, plaintiff and defendants, defendant JDS Uniphase
Corporation ("JDS") and defendant E-TEK Dynamics, Inc. ("E-TEK"), by their
respective attorneys, have consented to the entry of this Final Judgment without
trial or adjudication of any issue of fact or law, and without this Final
Judgment constituting any evidence against or admission by any party regarding
any issue of fact or law;
AND WHEREAS, defendants agree to be bound by the provisions of this
Final Judgment pending its approval by the Court;
AND WHEREAS, plaintiff requires defendants to refrain from enforcing or
reacquiring contractual rights effecting control over the output of any coating
chambers owned by or on the premises of certain merchant suppliers, for the
purpose of remedying the loss of competition alleged in the Complaint;
AND WHEREAS, defendants have represented to the plaintiff that the
defendants can and
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will refrain from effecting such control, as ordered herein, and that defendants
will later raise no claim of hardship or difficulty as grounds for asking the
Court to modify any of the prohibitions contained below;
NOW THEREFORE, before the taking of any testimony, without trial or
adjudication of any issue of fact or law, and upon consent of the parties, it is
ORDERED, ADJUDGED AND DECREED:
I. JURISDICTION
This Court has jurisdiction over the subject matter of and each of the
parties to this action. The Complaint states a claim upon which relief may be
granted against defendants under Section 7 of the Clayton Act, as amended (15
U.S.C. Section 18).
II. DEFINITIONS
As used in this Final Judgment:
A. "E-TEK" means defendant E-TEK Dynamics, Inc., a Delaware corporation
with its headquarters in San Jose, California, its successors and assigns, and
its subsidiaries, divisions, groups, affiliates, partnerships and joint
ventures, and their directors, officers, managers, agents, and employees.
B. "Filter Vendor(s)" means Barr Associates, Inc., Herrmann Technology,
Inc., Hoya Corporation USA, Optical Coating Japan Corporation, and their
successors and assigns.
C. "JDS" means defendant JDS Uniphase Corporation, a Delaware
corporation with its headquarters in San Jose, California, its successors and
assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and
joint ventures, and their directors, officers, managers, agents, and employees.
D. "Optical Filter(s)" means dielectric thin film filters used in
optical networks for the telecommunications industry, such as, but not limited
to, wideband, narrowband and gain flattening filters.
E. "Rights of First Refusal" means: (1) the contractual rights held by
defendants of first refusal over all other persons with respect to the output of
coating chambers for the manufacture of
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Optical Filters by the Filter Vendors, such as set forth in the Supply
Agreements; (2) any right obligating a Filter Vendor to accept a defendant's
purchase order for Optical Filters; and (3) any right the effect of which would
be to enable a defendant, through unilateral action, to prevent a Filter Vendor
from selling Optical Filters to persons other than a defendant.
F. "Security Interest and Rights of Repayment" means E-TEK's contractual
rights under the Supply Agreements to: (1) a priority security interest in the
chambers that are subjects of the Supply Agreements; and (2) repayment, through
discounts on Optical Filter purchases or otherwise, of funds advanced to the
Filter Vendors in connection with the purchase or upgrade of the chambers that
are subjects of the Supply Agreements.
G. "Supply Agreements" means the following contracts, including all
amendments to these contracts: (1) Supply Agreement between E-TEK and Barr
Associates, Inc. dated October 8, 1996; (2) Supply Agreements between E-TEK and
Herrmann Technology, Inc. dated December 14, 1998, February 11, 1999 (both
"First . . . Agreement" and "Second . . . Agreement"), and May 5, 1999; (3)
Supply Agreement between E-TEK and Hoya Corporation USA dated July 20, 1999; and
(4) Supply Agreement between E-TEK and Optical Coating Japan Corporation dated
February 25, 1999.
H. "Transition Period" means the ninety (90) days following the filing
of the Complaint in this matter.
III. APPLICABILITY
This Final Judgment applies to JDS and E-TEK, as defined above, and all
other persons in active concert or participation with any of them who receive
actual notice of this Final Judgment by personal service or otherwise.
IV. PROHIBITION ON ENFORCEMENT OF RIGHTS
A. After the expiration of the Transition Period, defendants shall not
enforce the Rights of First Refusal in the Supply Agreements.
B. After the first thirty (30) days of the Transition Period, defendants
shall not enforce the Rights of First Refusal in the Supply Agreements with
respect to thirty (30) percent of each Filter
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Vendor's Optical Filter manufacturing capacity subject to those Rights. After
the second thirty (30) days of the Transition Period, defendants shall not
enforce the Rights of First Refusal in the Supply Agreements with respect to
sixty (60) percent of each Filter Vendor's Optical Filter manufacturing capacity
subject to those Rights. During the Transition Period, and unless the plaintiff
otherwise consents in writing, defendants shall refrain from making or enforcing
any purchase orders to the Filter Vendors unless the period for deliveries of
Optical Filters under the purchase orders is no longer than thirty (30) days in
duration.
C. After the filing of the Complaint in this matter, defendants shall
not enforce the Security Interest and Rights of Repayment in the Supply
Agreements.
D. Defendants promptly shall notify, by usual and customary means, the
firms that defendants have identified to the plaintiff, in response to Second
Request Specifications 3(h) and 9, of the prohibitions under the terms of this
Final Judgment on the Defendants' enforcement of the Rights of First Refusal and
Security Interest and Rights of Repayment.
V. AFFIDAVITS
Within forty (40) calendar days of the filing of the Complaint in this
matter, and every forty (40) calendar days thereafter, through and including one
hundred twenty (120) calendar days thereafter, defendants shall deliver to
plaintiff an affidavit as to the fact and manner of their compliance with
Section IV of this Final Judgment.
VI. COMPLIANCE INSPECTION
A. For the purposes of determining or securing compliance with this
Final Judgment, or of determining whether the Final Judgment should be modified
or vacated, and subject to any legally recognized privilege, from time to time
duly authorized representatives of the United States Department of Justice,
including consultants and other persons retained by the United States, shall,
upon written request of a duly authorized representative of the Assistant
Attorney General in charge of the Antitrust Division, and on reasonable notice
to defendants, be permitted:
(1) access during defendants' office hours to inspect and
copy, or at plaintiff's option demand defendants
provide
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copies of, all books, ledgers, accounts, records,
correspondence, memoranda, and documents in the
possession or control of defendants, who may have
counsel present, relating to any matters contained in
this Final Judgment; and
(2) to interview, either informally or on the record,
defendants' officers, employees, or agents, who may have
their individual counsel present, regarding such
matters. The interviews shall be subject to the
interviewee's reasonable convenience and without
restraint or interference by defendants.
B. Upon the written request of the Assistant Attorney General in charge
of the Antitrust Division, defendants shall submit written reports, under oath
if requested, relating to any of the matters contained in this Final Judgment as
may be requested.
C. No information or documents obtained by the means provided in this
section shall be divulged by the plaintiff to any person other than a duly
authorized representative of the executive branch of the United States, except
in the course of legal proceedings to which the United States is a party
(including grand jury proceedings), or for the purpose of securing compliance
with this Final Judgment, or as otherwise required by law.
D. If at the time information or documents are furnished by defendants
to plaintiff, defendants represent and identify in writing the material in any
such information or documents to which a claim of protection may be asserted
under Rule 26(c)(7) of the Federal Rules of Civil Procedure, and defendants mark
each pertinent page of such material, "Subject to claim of protection under Rule
26(c)(7) of the Federal Rules of Civil Procedure," then plaintiff shall give
defendants ten (10) calendar days notice prior to divulging such material in any
legal proceeding (other than a grand jury proceeding).
VII. NO REACQUISITION
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Defendants shall not reacquire, directly or indirectly, any Right of
First Refusal over any coating chambers owned by or located on the premises of
the Filter Vendors as of the filing of the Complaint in this matter. After the
expiration of the Transition Period, nothing in this Final Judgment shall
preclude defendants from purchasing Optical Filters from the Filter Vendors
pursuant to purchase orders so long as the period for deliveries of Optical
Filters under the purchase orders is no longer than sixty (60) days in duration,
unless the plaintiff otherwise consents in writing. The provisions of this
paragraph shall remain in effect for three years from expiration of the
Transition Period.
VIII. RETENTION OF JURISDICTION
This Court retains jurisdiction to enable any party to this Final
Judgment to apply to this Court at any time for further orders and directions as
may be necessary or appropriate to carry out or construe this Final Judgment, to
modify any of its provisions, to enforce compliance, and to punish violations of
its provisions.
IX. EXPIRATION OF FINAL JUDGMENT
Unless this Court grants an extension, this Final Judgment shall expire
ten (10) years from the date of its entry.
X. PUBLIC INTEREST DETERMINATION
Entry of this Final Judgment is in the public interest.
DATE: __________________
Court approval subject to procedures of Antitrust
Procedures and Penalties Act, 15 U.S.C. Section 16
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United States District Judge
