BINDING ARBITRATION & DISPUTE RESOLUTION CLAUSE — Page 1

ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE DETERMINED BY ARBITRATION IN ILLINOIS, OR THE PLACE OF THE TRANSACTION, AT THE CHOICE OF THE PARTY THAT INITIATES THE ARBITRATION. BEFORE ONE ARBITRATOR, WHO SHALL BE A RETIRED JUDGE. THE ARBITRATION SHALL BE ADMINISTERED BY JAMS PURSUANT TO ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES, OR CONSUMER RULES, AS APPLICABLE. EXCEPT, IN THE CASE OF ANY CONFLICT BETWEEN SAID RULES AND THE PROCEDURES SET FORTH IN THIS AGREEMENT, THE PROVISIONS OF THIS AGREEMENT SHALL GOVERN. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THIS CLAUSE SHALL NOT PRECLUDE PARTIES FROM SEEKING PROVISIONAL REMEDIES IN AID OF ARBITRATION FROM A COURT OF APPROPRIATE JURISDICTION.

1. A. Good Faith Pre-Dispute and Pre-Arbitration / Pre-Litigation Informal Dispute Resolution Efforts Required.
   1. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement or any transactions between the parties by pre-dispute negotiation. Any party may give the other party written notice (Notice) of any dispute not resolved in the normal course of business. Within 15 days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include with reasonable particularity (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the person who will represent that party and of any other person who will accompany the executive. Within 30 days after delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place.
   2. Unless otherwise agreed in writing by the negotiating parties, the above-described negotiation shall end at the close of the first meeting of executives described above (“First Meeting”). Such closure shall not preclude continuing or later negotiations, if desired.
   3. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
   4. At no time prior to the First Meeting shall either side initiate an arbitration or litigation related to this Agreement or any transactions between the parties except to pursue a provisional remedy that is authorized by law (such as a public injunction) by JAMS Rules or by agreement of the parties. This limitation, however, is inapplicable to a party if the other party refuses to comply with the requirements of Paragraph 1 above.
   5. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedures specified in Paragraphs A-1 and A-2 above are pending and for 15 calendar days thereafter. The parties will take such action, if any, required to effectuate such tolling.
   6. If the matter is not resolved by negotiation pursuant to paragraphs above, then the matter will proceed to mediation as set forth in Section C, below.
2. B. Pre-Arbitration / Pre-Suit Offer to be Made by Optics Planet
   1. Within 15 days after the Information Dispute Resolution Procedures described in Section A, above, Optics Planet will make a written offer to resolve any dispute. Said offer will remain open for at least 15 days, or more in the sole discretion of Optics Planet, as specified in writing in the offer (“Resolution Offer”).
   2. If the claimant in any arbitration does not obtain a result better the Resolution Offer, then the claimant shall be obligated to reimburse any and all arbitration fees and costs advanced by Optics Planet.
3. Pre-Arbitration / Pre-Litigation Mediation Requirement
   1. The parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration in accordance with then-applicable JAMS Rules and the procedures (See. https://www.jamsadr.com/rules-comprehensive-arbitration)
   2. Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested.
   3. The parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith and that they will share equally in its costs.
   4. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
   5. Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first (“Earliest Initiation Date”). The mediation may continue after the commencement of arbitration if the parties so desire.
   6. At no time prior to the Earliest Initiation Date shall either side initiate an arbitration or litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of Paragraph C-3, above.
   7. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until 15 days after the Earliest Initiation Date. The parties will take such action, if any, required to effectuate such tolling.
4. Confidentiality
   1. The parties shall maintain the confidential nature of the arbitration proceeding and the Award, including the Hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by law or judicial decision.
   2. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Illinois, exclusive of conflict or choice of law rules.

E. Choice of Law and Interstate Commerce
The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).

 F. No Punitive Damages / Punitive Damages Waived.

In any arbitration arising out of or related to this Agreement, the arbitrator(s) are not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages

G. Attorney’s Fees to Prevailing Party in Certain Circumstances

In any arbitration arising out of or related to this Agreement, the arbitrator(s) shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator(s) determine a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator(s) may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.

H. Arbitration Procedures

1. The Parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement.
2. In any arbitration arising out of or related to this Agreement, requests for documents:

• • Shall be limited to documents which are directly relevant to significant issues in the case or to the case’s outcome;
  • Shall be restricted in terms of time frame, subject matter and persons or entities to which the requests pertain; and
  • Shall not include broad phraseology such as “all documents directly or indirectly related to.” (See JAMS Discovery Protocols; JAMS Arbitration Rule 16.2).
  • In any arbitration arising out of or related to this Agreement:

3. There shall be production of electronic documents only from sources used in the ordinary course of business. Absent a showing of compelling need, no such documents are required to be produced from backup servers, tapes or other media.
4. Absent a showing of compelling need, the production of electronic documents shall normally be made on the basis of generally available technology in a searchable format which is usable by the party receiving the e-documents and convenient and economical for the producing party. Absent a showing of compelling need, the parties need not produce metadata, with the exception of header fields for email correspondence.
5. The description of custodians from whom electronic documents may be collected shall be narrowly tailored to include only those individuals whose electronic documents may reasonably be expected to contain evidence that is material to the dispute.
6. Where the costs and burdens of e-discovery are disproportionate to the nature of the dispute or to the amount in controversy, or to the relevance of the materials requested, the arbitrator will either deny such requests or order disclosure on condition that the requesting party advance the reasonable cost of production to the other side, subject to the allocation of costs in the final award. (See JAMS Discovery Protocols; JAMS Arbitration Rule 16.2).
7. In any arbitration arising out of or related to this Agreement, there shall be no interrogatories or requests to admit.
8. In any arbitration arising out of or related to this Agreement, each side may take three (3) discovery depositions. Each side’s depositions are to consume no more than a total of nine (9) hours. There are to be no speaking objections at the depositions, except to preserve privilege. The total period for the taking of depositions shall not exceed six (6) weeks.
9. In any arbitration arising out of or related to this Agreement:

• • Any party wishing to make a dispositive motion shall first submit a brief letter (not exceeding five pages) explaining why the motion has merit and why it would speed the proceeding and make it more cost-effective. The other side shall have a brief period within which to respond.
  • Based on the letters, the arbitrator will decide whether to proceed with more comprehensive briefing and argument on the proposed motion.
  • If the arbitrator decides to go forward with the motion, he/she will place page limits on the briefs and set an accelerated schedule for the disposition of the motion.
  • Under ordinary circumstances, the pendency of such a motion will not serve to stay any aspect of the arbitration or adjourn any pending deadlines.

10. The following time limits are to apply to any arbitration arising out of or related to this Agreement:

• • Discovery is to be completed within 90 days of the service of the arbitration demand.
  • The evidentiary hearing on the merits (“Hearing”) is to commence within 150 days of the service of the arbitration demand.
  • At the Hearing, each side is to be allotted 1 day for presentation of direct evidence and for cross examination.
  • A brief, reasoned award is to be rendered within 45 days of the close of the Hearing or within 45 days of service of post-hearing briefs if the arbitrator(s) direct the service of such briefs.

11. The arbitrator(s) must agree to the foregoing deadlines before accepting appointment.
12. Failure to meet any of the foregoing deadlines will not render the award invalid, unenforceable or subject to being vacated. The arbitrator(s), however, may impose appropriate sanctions and draw appropriate adverse inferences against the party primarily responsible for the failure to meet any such deadlines.

I. Appeal

The Parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement.