DeclarationCal. Super. - 6th Dist.March 30, 202110 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21CV381517 Santa Clara - Civil JAMES McMANIS (40958) TYLER ATKINSON (257997) ANDREW PARKHURST (324173) CHERRIE TAN (32487 1) McMANIS FAULKNER a Professional Corporation 50 West San Fernando Street, 10th Floor San Jose, California 951 13 Telephone: (408) 279-8700 Facsimile: (408) 279-3244 Email: tatkinson@mcmanislaw.com Attorneys for Plaintiff, Phunware, Inc. SN Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/4/2021 4:33 PM Reviewed By: S. Vera Case #21 CV381 51 7 Envelope: 6997992 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA Phunware, Inc. Plaintiff, VS. Wilson Sonsini Goodrich & Rosati, Professional Corporation, DOES 1-25 Defendants. Case N0. 21CV381517 DECLARATION OF TUSHAR PATEL IN SUPPORT OF PLAINTIFF PHUNWARE, INC.’S OPPOSITION TO MOTION TO COMPEL ARBITRATION AND OPPOSITION TO STAY THIS ACTION Date: August 17, 2021 Time: 9:00 a.m. Courtroom: Department 2 Judge: Hon. Drew Takaichi 1 DECLARATION OF TUSHAR PATEL ISO PLAINTIFF PHUNWARE, INC.’S OPPOSITION TO MOTION TO COMPEL ARBITRATION AND OPPOSITION TO STAY THIS ACTION, Case NO. 21CV38 1 5 17 era 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Tushar Patel, declare as follows: 1. I submit this declaration in support 0f Phunware’s Opposition to Motion t0 Compel Arbitration and Opposition to Stay this Action. I am currently the External Vice President 0f Phunware and I have personal knowledge 0f the facts stated herein. If called as a Witness, I could and would competently testify thereto. 2. Phunware was founded in 2009. Phunware retained Wilson Sonsini Goodrich & Rosati (“WSGR”) t0 provide advice and counsel With regard t0 issues typical 0f startup technology companies. WSGR permitted payment 0n a deferred and contingent basis. Attached hereto as Exhibit A is a true and correct copy of Phunware’s 2009 retainer agreement With WSGR (the “2009 Agreement”). 3. At the time it retained WSGR it was Phunware’s understanding that the 2009 Agreement would only apply to transactional services and not t0 WSGR’S representation in litigation matters. 4. In 201 1, Phunware entered into a new retainer agreement With WSGR t0 represent it in a dispute against Calloway Golf Interactive, Inc. Attached hereto as Exhibit B is a true and correct copy of Phunware’s 2011 retainer agreement With WSGR. This later agreement did not provide for deferred payment because it concerned an active dispute as opposed t0 ongoing transactional work. 5. In Phunware, Inc. v. Uber Technologies, Inc.(2020) N0. CGC-17-561546, WSGR represented Phunware as t0 the complaint and cross-complaint. 6. On December 26, 2018, through a SPAC transaction for the purpose 0fbecoming a publically traded company, a company named Stellar acquired and renamed itself Phunware. /// /// /// /// /// 2 DECLARATION OF TUSHAR PATEL ISO PLAINTIFF PHUNWARE, INC.’S OPPOSITION TO MOTION TO COMPEL ARBITRATION AND OPPOSITION TO STAY THIS ACTION, Case NO. 21CV38 1 5 17 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. WSGR and Phunware are the only parties t0 the 2009 Agreement. Stellar had not purchased Phunware in 2009 and was not a party to the agreement. I declare under penalty 0f perjury under the laws 0f the State of California that the foregoing is true and correct. DATED; _8/4/21 /M TUSHAR PATEL External Vice President Phunware, Inc. 3 DECLARATION OF TUSHAR PATEL ISO PLAINTIFF PHUNWARE, INC.’S OPPOSITION TO MOTION TO COMPEL ARBITRATION AND OPPOSITION TO STAY THIS ACTION, Case NO. 21CV38 1 5 17 EXHIBIT A Egggg’: 000 asn rag: Mm ma . . . - Hm .mmmmsoW Wilson Sanslm Goodnch 8E Rosatl mmom 651333300paoPESSIONaL CORPORATION mammals“; mmm- Much6,2009 Mr. Alan S. Knitowslci ChiafExccutive Oflicer Phunwm, Inc. 9211 Waterford Cater Boulevard Suite 200 Austin, TX 78758 Re: Representation OEPhunware, Inc. Dear Alan, We are pleasad to have bean rataimd to advise Phunware, Inc. (the “Company"} with. respect to legal rcprmnmtion (“Legal Services"). This letter describes the basis on which Wilson Sonsini Goodrich & Rosafl C'WSGR") will pmvide Legal Services to the Company and ball for those Lagal Services. We believe that it is baneficial to the attomey-cliem relationship that you have-a clear understanding of our billing and mgnganmt policies and procedures. Ifin the fittm you request us to perform additional legal services on matte}: other than the Legal Swim described above, then, unless a separate engagmml has been fluewd inlo with reaped to such additional legal services, it is understood thm those fixture legal services or matters will be provided byus under the am: terms and conditions dammed hernia at thebilling rates and policies in effect at the times sash servicesmpained. L : W: will do our utmost to serve the Company effectively. Our goals are to provide the Company with Legal Sexvices in an affocfive and efficient manner, and to resp0nd to the Company’s inquiries promptly. If the Company has any questions or cancems a: any fime, please contact me. WSGR represents a large umber of clients. Some of Ilwse clients may wish to untu- into business relatiomhips with the Company. Some of these clients may be or became customets. vendors or onmpetitors of the Company. Others are in the fields of venture cairn] and financial services. At this point. we have nu way to tell whethu conflicts will wise between the Company and WSGR’s other clients during the course of WSGR’s rapmenufion of the Company. If you are concerned about any relationships we might have with particular companies or individuals, please bring those moms to our attemian. Obviously, if the Company chooses to enter into a transaction with another client ofWSGR, we can identify that conflict and we will discuss it With the Company. AUBTEH NEW YORK PALD ALTO SAN Dlflfl SAN FRANCISCO SEATTLE MBA] 'Afldlm. DAL Wilson Sonsini Goodrich 6L Rusati FWFESSIGNAL CDIPDRATTGH Mr. Alan S. Kniiawaki Hatch 6. 2009 Page 2 1- MW WSGR mpreaams the Company. and not any of its afliliatea,m or 35mm, or any of 1h: indmdnah amacimd with the Company. By mason ufflfisWon, WSGR dues not mmmt any of fin Company's pmmts, mbsidiaries, employees. oficers, directors, shueholdnrs, or fmmders, or commonly owned cmpomfions,mm or oflw entities. 3‘ W Generally, it is in flu Company‘s boa intcmu to pm: lht: mfidenfiality of all communications hawecn WSGR and the Cnmpmy. If the Emmy disclaim mes: mmmunications, it jeopardizes fiie privileged nature of the conunmications, so we advisc tbs Cowman! not to disclose privilegw infonnatim to third pfl'ties. 4- mm The attached Statement orBurns Policy describes how WSGR chases fur its services. The Schedule o!Rate: attached to the Statement of Biliing Poli¢y shows current hwrly ram formm and other timbers of the pmf'mioml staff. For yuur inflammation, I ummtbr h' services a! pu- hour. 0m attorneys likely to he invuived in the reprmntatiun are and c ourlyratesnfpaalegalslikeiytobcinwlvedmthemmnm - .Bxact hourlyratm archased upon th: level ofsmim-ily andmoffipmine ofthe pameulir pummel providing services, and all rates an: £1.1th to puindic adjusumnt (typically atthe endofnur fiscal year}. Bysigm’ng Ibis latter, theCampmywm payall WSGR’SM andcostsimurmddm-ing itswnrl: mmmmmmmtmmmminflusmm uf Hitling Policy. 5~ 11.9mm {HNHJ-Dm ston Sonsini Goodrich fit Rosati PREFESSIDNAL (ink PflkfiTlO‘N Mr. Alan S. Knituwski March 6, 2099 Page 3 {0) We will pmvida you with munflfl gamma 0f the la fuel and com mammal by the Cmnpmy. Either of us may laminate WSGR'E mentation of the Company at any lime for any reason. At the fim: WSGR'S representation affine Gummy onmiudm, all unpaid fees and casts for Our lugal aervioes bacome dnc and payable. If at that timc the Compmy does not request the return of its files. WSGR will retain the Gompmy’s filcs for a pa‘iud of five years, after which WSGR is authorized by Companym have the files destroyad without finthw natiee to ComPany. In the want that Company terminates WSGR‘:Won of 1h: Company or WSGR is required to withdraw flora represcntation of 1:11: Company based on the Company‘s brad: afthis want (including, withfiut limitation, failure by thus Company to titan]? pay immicu for writes purformd er costs filmed by WSGR for m: on bahalfofthc Company), the Cmpany Wmatitwillpay WSGRfiJr anympyingcostsoratherchnrgcsimmedby WSGRin providing copies ofthe flies relating Io WSGR'SWflcn ofme Company In 1h: Conway or its new counsel. 7- W We do not anticipate having any diagram: with the Company about the quality, cost or apprOpriatmm of our marines. hut ifany concerns about thesemum arise, pleas: mfify us meLnoc Wilson Sonsini Goodrich 5c Rosati ?ROFESSIONLL COR POEATIOE Mr. Alan S. Knitowski March 6, 2009 Page 4 immediately. We w0uld endeavor 1o resolve any disagreements in a fair and amicable manner. If for some reason we warn not able to resolve any dispute ourselves, then WSGR and the Company aye: that all disputes or claims between us of any nature whatsoever shall be resolved by binéing arbitation before the American Arbihafion Association or JAMS in the county of Santa Clara, whichever the Company prefers. This agremncnt includes but is nut limited tn diqmiea over the quality or appropriateness of our services, me fees and costs ofaur services and flue Company's obligations to timely pay for our services. The arbitrator shall have power to decide all mam, including arbimbility, but must decida all disputes in accordance with California law. WSGR and the Company choose arbitration because it is usually 1m menaivc and quiflcer than iitigat'um, and it will ailow them to resolve their disputcs privately. Thu arbitrator shall allow limited dimovery to enable WSGR and the Company to preami their cum, but will be mindful of their mutual desire to avoid the expense of broad discovery typically allowed in civil litigation. Nommstmadina th: forcgoing, ciLhcr party may first submit fcc disputes to the local bar assmiation. 1f the bar association decline to hm: a fee dispute, or ifeilhnr pm‘ty Wishes to reject a decision by the bar association on any fee dispute, then said fee dispute shall aka be resolved by arbiu'ation as set forth above. & Mamas This letter is the entire agraemem between the Company and WSGR cumming WSGR’s Legal Services 10 the Company. This letter is governed by California. law. If any harm of wig letter is dztermined to be invalid or incficctive for any reason, the ramming terms of this letter will remain in fume and efi'oct. By signing this leua. the Company affirms that it understmds that it is flee to consult with other counsel before signing this letter about the wisdom of agreeing to the terms uf the letter. including the provision for binding arbitration. The Company also minus that it is voluntarily signing this letter. This Agreement will not take effect, and WSGR will have no obligation Do provide Legal Services. until the Cmnpany remms a signed copy of this Agreemem. mmmmc Wilson Sonsini Goodn'ch BL Rosati PHDFESSIOHAL CfiRFDEATIJH Mr. Alan S. Knitawald March 6, 21109 Page 5 If the tcnns of WSGR'S represmtation of the Company as explained in this letter and in the attachad Billing Policy and Schedule of Rams are satisfactory. pleas: execute the enclosed copy of this letter as indicated and mm i1 to me. w: look forward to warm with you. Should jmu have any Questions, pleas: feel fine ta contact me. Sincmly. WILSON SONSINI GUODRICH & ROSATI Professional Carporsfion EIKMW J. CaseyMagma ICWBS 163-04311.ch WiIson $0115qu Goodrich 81 Rosati PROFESSIONAL CORPORATION Mr. Alan S. Knitowski March 6, 2009 Page 6 I have read the foregoing letter, understand it and agce t0 it. PHUNWARE, INC. 3&3.W Alan S. Knimwski, ChiefExecutive Oficer Dated: 3/?/300? 45304344 .Doc EXHIBIT B 650 Page Mill RoadW Wilson Sonsini Goodrich 8L Rosati Pa“ “m: 01943041050PROFESSIONAL CORPORATION PHD}: £28133??? mmgncom January 14, 2011 Alan S. Knitowski Phunware, Inc. 7800 Shoal Creek Blvd., Suite 210 W Austin, Texas 78757 Re: Representation ofPhunware, Inc. Dear Mr. Knitowski: We are pleased to have been retained to advise Phunware, Inc. (the “Client”) with respect to the dispute with Callaway Golf Interactive, Inc. (“Legal Services”). This letter (“Agreement”) describes the basis on which Wilson Sonsini Goodrich & Rosati (“WSGR”) will provide Legal Services to the Client and bill for those Legal Services. We believe that it is beneficial to the attomey-client relationship that you have a clear understanding of our billing and engagement policies and procedures. If in the future you request us to perform additional legal services on matters other than the Legal Services described above, then, Lmless a separate engagement has been entered into with respect to such additional legal services, it is understood that those fiJture legal services or matters will be provided by us under the same terms and conditions described herein at the billing rates and policies in efiect at the times such services are performed. l. Professional undertaking We will do our utmost to serve Client effectively. Our goals are to provide the Client with legal services in an efi‘ective and efficient manner, and to respond to Client’s inquiries promptly. If Client has any questions or concerns at any time, please contact me. 2. Conditions This Agreement will not take effect, and WSGR will have no obligation to provide legal services, until Client returns a signed copy of this Agreement and pay the initial deposit called for in Paragraph 6. If this Agreement is not signed and returned promptly, WSGR has no obligation to provide the services requested, and ifWSGR has begun work, it may cease such work. 3. Scone of services Client is hiring WSGR to represent Client solely in the following matter: dispute with Callaway Golf Interactive, Inc. (the “Representation”). WSGR does not undertake any obligation to represent Client with regard to any other matter (other than matters WSGR has already undertaken). WSGR will provide those legal services reasonably required to represent Client in the matter. WSGR will take reasonable steps to keep Client informed of progress and to respond to Client’s inquiries. If a court action is involved, WSGR will represent Client 4229923_l.DOC® AUSTIN NEW YORK PALO ALTO SAN DIEGO SAN FRANCISCO SEATTLE SHANGHAI WASHINGTON. D.C. Wilson Sonsini Goodrich & Rosati PROFESSIONAL CORPORATION Alan Knitowski January l4, 2011 Page 2 through trial and post-trial motions. Afier judgment, WSGR will not represent Client on appeal or in execution proceedings unless WSGR and Client enter into a different mitten agreement. WSGR represents Phunware, Inc., and not any of its afiliates, owners, or agents. By reason of this representation, WSGR does not represent any of Client’s parents, subsidiaries, employees, officers, directors, or shareholders, or commonly owned corporations, partnerships or other entities. WSGR may be adverse to such non-client entitiw or persons without obtaining Client’s cgnsent. 4. Qfient’s duties Client agrees to be truthful with WSGR, cooperate, keep WSGR informed of developments, abide by this Ageement, pay WSGR‘s bills and bills for third party experts, consultants and investigators on time, and keep WSGR advised of Client’s address, telephone number. and whereabouts. Client understands this matter may require a substantial expendimre of Client’s time in reviewing documents, preparing for hearings and trial, and participating in the discovery and pre-trial process. This description of duties is not an exhaustive list of the tasks Client may be asked to perform to assist in this matter. 5. Confidentialifl Client understands it is in Client’s best interest to preserve the confidentiality of all communications between WSGR and Client. If Client discloses such communications to mird parties, Client jeopardizes the privilege. Therefore WSGR advisw Client not to disclose its communications with WSGR to third parties. 6. Degggit Client hereby provides WSGR with a deposit in the sum which WSGR will deposit in a trust account. Client authorizes a transfer funds deposited in said account to its general account to pay any fees and costs that remain unpaid for more than fifieen (15) days afiel- Client’s receipt of any billing statement. This deposit is fully refundable afier the Representation concludes, to the extent any balance remains aficr WSGR‘s fees and costs are pad. In no event shall the amount of the initial deposit or any additional deposit required of Client be deemed to limit Client's rasponsibility for all fees and cosm WSGR incurs in the Repraentation. m_..® Wilson Sonsini Goodrich 85 Rosati PROFESSIONAL CORPORATION Alan Knitowski January l4, 2011 Page 3 7. Staffing and billing practices Client agrees to pay all fees for legal services and all costs incurred at the prevailing hourly rates ofWSGR for attorneys, legal assistants, and case clerks; rates are subject to change as discussed in the attached Statement of Billing Policy and Schedule of Rates, incorporated herein. Client acknowledges that staffing and the total amount of fees and costs incurred may vary depending on circumstances, and that any estimate of projected fees or costs is merely an estimate, not an agreement to perform legal services at the estimated amount or at any flat rate fee. 8. Costs and other charges In addition to professional fees, WSGR charges for expense disbursements to third parties and other costs incurred in connection with WSGR’s services, as discussed in the attached Statement of Billing Policy and Schedule of Rates, incorporated herein. 9. Exgerts, consultants and investigators To aid in the preparation or presentation of Client’s case, it may become necessary to hire expert witnesses, consultants or investigators. Client agrees to pay for such services. In its discretion, WSGR may select and retain such experts, consultants or investigators to consult with WSGR, provide expert opinions, and/or testify at deposition or trial regarding this matter, but WSGR will consult in advance with Client before doing so. To protect the confidentiality and/or privilege of their work, and to enable WSGR to represent Client efi‘ectively, the experts, consultants or investigators will report exclusively to WSGR. 10. Lien Client hereby grants WSGR a lien on any and all claims or causes of action that are the subject of WSGR’s Representation under this Agreement. WSGR’s lien will be for any sums owing to WSGR at the conclusion or termination of its services. The lien will attach to any recovery Client may obtain, whether by arbitration award, judgnent, settlement, or otherwise. 11. Insurance Client agrees that regardless of any insurance coverage and/or any insurer’s agreement to pay for all or part of WSGR’s fees and costs incurred during the Representation, Client remains responsible for payment of WSGR’s fees and costs in accordance with this Agreement. Client authorizes WSGR to accept an insurer’s payment of its fees and/or costs incurred in the Representation, and WSGR will credit any such payments against the amount owed by Client. 4229923_1.DOC® Wilson Sonsini Goodrich 8L Rosati PROFESSIONAL CORPORATION Alan Knitowski January 14, 2011 Page 4 12. Termination of the renresentation Either Client or WSGR may terminate the Representation at any time for any reason. If WSGR terminates the Representation, it will give Client reasonable notice of same. Upon termination, all unpaid fees and costs for our legal services in the Representation become due and payable. Client agrees to cooperate with WSGR in removing WSGR’s name as counsel of record if such action is required, and Client will promptly execute and return to WSGR the appropriate substitution of counsel forms. In the event that Client requests that WSGR transfer possession of Client’s file to Client or to a third party, such request shall be in writing and Client or the third party shall acknowledge receipt of the file in writing. WSGR is authorized to retain a copy of Client’s file for WSGR’s use. Client’s file includes Client’s papers and properties as defined by the California Rules ofProfessional Conduct. l3. Client files If Client does not request the return of Client’s file, WSGR will retain Client’s file for a period of five years, afier which time WSGR is authorized by Client to have the files destroyed without further notice to Client. If Client wishes to have its file maintained beyond the five years afier Client’s matter has concluded, Client must make separate arrangements with WSGR. In the event that Client terminates WSGR’s representation of the Client or WSGR is required to withdraw fi'om representation of the Client based on the Client’s breach of this Agreement (including, without limitation, failure by the Client to timely pay invoices for services performed or costs incurred by WSGR for or on behalf of the Client), the Client agrees that it will pay WSGR for any copying costs or other charges incurred by WSGR in providing copies of the files relating to WSGR’s representation of the Client to the Client or their new counsel. l4. Disclaimer of guarantee WSGR makes no representations or warranties concerning the successful prosecution or defense of client’s claims or the favorable outcome of any legal action that has been or may be filed. All statements ofWSGR on any such matters are statements of opinion only, and shall not be construed as promises or guarantees. 15. Arbitration We do not anticipate having any disagreements with Client about the quality, cost or - appropriateness of our services, but if any concerns about these matters arise, please notify us immediately. We would endeavor to resolve any disagreements in a fair and amicable manner. mmm® Wilson Sonsini Goodrich 8L Rosati PROFESSIONAL CORPORATION Alan Knitowski January l4, 2011 Page 5 If for some reason we were not able to resolve any dispute ourselves, then WSGR and Client agree that all disputes or claims between us of any nature whatsoever shall be resolved by binding arbitration before the American Arbitration Association or JAMS in the county of Santa Clara. This Agreement to arbitrate includes but is not limited to disputes over the quality or appropriateness of our services, the fees and costs of our services and the Client’s obligations to timely pay for our services. The arbitrator shall have power to decide all matters, including arbitrability, but must decide all disputes in accordance with California law. WSGR and Client choose arbitration because it is usually less expensive and quicker than litigation, and it will allow them to resolve their disputes privately. The arbitrator shall allow limited discovery to enable WSGR and Client to present their cases, but will be mindful of their mutual desire to avoid the expense ofbroad discovery typically allowed in civil litigation. Notwithstanding the foregoing, either party may first submit fee disputes to the bar association. If the bar association declines to hear a fee dispute, or if either party wishes to reject a decision by the bar association on any fee dispute, then said fee dispute shall also be resolved by arbitration as set forth above. l6. Counternarts This Agreement may be executed in counterparts, and each counterpart shall constitute a binding agreement upon the part of each and all of the undersigned. l7. Severabilig If any provision of this Agreement is found by any court or government agency to be illegal, invalid or ineffective for any reason, it shall be severed and the remaining terms of this Ageement shall nevertheless remain in full force and efi‘ect. l8. Entire aggeement This Agreement represents the entire agreement and understanding between Client and WSGR concerning Client’s Representation by WSGR, and supersedes and replaces any and all prior agreements and understandings concerning the Representation. This Agreement may only be amended or modified in writing signed by Client and WSGR. l9. Efl‘ective date This Agreement will take effect when Client has performed the conditions stated in Paragraph 2, but its effective date will be retroactive to the date WSGR first performed services. The date at the beginning of this Agreement is for reference only. Even if this Agreement does not take effect, Client will be obligated to pay WSGR the reasonable value of any services WSGR may have performed for Client. 422992349® Wilson Sonsini Goodrich & Rosati PROFESSIONAL CORPORATION Alan Knitowski January 14, 2011 Page6 By signing this Agreement, Client affirms that it understands that it is free to consult with other counsel before signing this Agreement about the wisdom of agreeing to the terms of the Agreement, including the provision for binding arbitration. Client also affirms that it is voluntarily signing this Agreement. Client affirms that it has read and understood the foregoing terms, including those regarding arbitration, and the terms set forth on the attached Statement of Billing Policy and Schedule of Rates, and agree to them as of the date WSGR first provided services. If more than one party signs below, each agrees to be liable, jointly and severally, for all obligations under this Agreement. We look forward to working with you. Should you have any questions, please feel free to contact me. Enclosures Sincerely, WILSON.SONSINI GOODRICH & ROSATI Professional~ ti.Lddim 4229923_1.DOC Wilson Sonsini Goodrich BL Rosati PROFESSIONAL CORPORATION Alan Knitowski January 14, 2011 Page 7 @Wing letter, understand it and agree to it on behalfof Phunware, Inc.. By: ‘ Alan Knitowski CEO, on behalf fPhunware, Inc. Dated: ///7, 2W 4229923_1.
