**EXHIBIT 10.27**

 

**AGREEMENT**

 

This sets forth the agreement made this 11th day of January, 2005, by and among Forgent Networks, Inc. and its wholly owned subsidiary Compression Labs, Inc.(“Forgent” or the “Client”), and Godwin Gruber, LLP (“Godwin Gruber” or the “Law Firm”). The Law Firm and the Client are sometimes collectively hereinafter referred to as the “Parties.” Any one ofthe Parties may be sometimes hereinafter referred to as a “Party.” 

 

This Agreement concerns litigation and licensing activities with respect to U.S. Patent No. 4,698,672 (the “ ‘672 Patent”), together with any continuations, continuations-in-part, divisions and/or foreign counterparts of the‘672 Patent. The Client is executing this Agreement for the purpose of retaining the Law Firm to represent it in connection with investigating and asserting claims, including the filing and prosecution of lawsuits, against any other person whomay be infringing the ‘672 Patent, including the enforcement of the ‘672 Patent in the civil actions identified in Exhibit A. Any such claim as to which litigation is filed is referred to herein as a “Lawsuit.” The Client is alsoexecuting this Agreement for the purpose of retaining the Law Firm to represent it in connection with negotiating with infringers who are not parties to any lawsuit relating to the enforcement of the ‘672 Patent to obtain and secure licensingor sublicensing agreements between the Client and infringers. Any such licensing or sublicensing agreements negotiated by the Law Firm will be referred to herein as a “License Agreement,” and any negotiations for such License Agreementswill be referred to herein as the “License Negotiations.” The Client is not engaging the Law Firm to market or commercialize its technologies to non-infringers. The Client understands and acknowledges that patent infringement litigationoften presents novel and difficult questions of both law and fact, and the acceptance of the engagement by the Law Firm in this matter may preclude engagements by the Law Firm on other matters. 

 

SPECIAL DISCLOSURE. THE CLIENT ACKNOWLEDGES THAT IT WAS ADVISED TO RETAIN INDEPENDENT LEGALCOUNSEL TO REPRESENT THE CLIENT IN CONNECTION WITH THE NEGOTIATION AND EXECUTION OF THIS AGREEMENT. THE CLIENT FURTHER ACKNOWLEDGES THAT IT WAS ADVISED THAT THE LAW FIRM HAS A CONFLICT OF INTEREST THAT PREVENTS IT FROM REPRESENTING THE CLIENT IN ANYWAY WITH RESPECT TO THE NEGOTIATION AND EXECUTION OF THIS AGREEMENT AND THAT THE LAW FIRM HAS NOT DONE SO. 

 

NOW, THEREFORE, for and in consideration of the mutual agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessedby each Party, the Parties agree as follows: 

 

1. Patents and InformationProvided by Client. The Client agrees to use commercially reasonable efforts to provide the Law Firm with all information and documents in the possession of the Client or any entities affiliated with the Client reasonably required in connection withperforming its duties and obligations hereunder. 

 

2. Client’s PatentRights. The Client represents and warrants that, to the best of its knowledge after reasonable investigation, it owns the exclusive right to enforce all rights with respect to the ‘672 Patent, including, without limitation, the exclusive rightto bring actions against others for infringement of the ‘672 Patent, to license and sublicense the ‘672 Patent, and to collect all royalties, license fees, profits or other revenue or valuable consideration to be paid or exchanged byanyone else for the right to use the ‘672 Patent. The Client agrees to timely pay all maintenance fees due on the ‘672 Patent. 

 

3. Contingent Fee Compensation to Law Firm. 

 

3(a) For services rendered pursuant hereto, the Client hereby agrees to pay the Law Firm a contingent fee based on: (1) any revenues, including but not limited to,royalties or license fees, money or other valuable consideration received by the Client through, under or as a result of any License Agreement and/or any License Negotiations (such amount is hereinafter referred to as the “LicenseProceeds”), and (2) any recovery realized out of or collected from or in connection with any Lawsuit, either through settlement, compromise or judgment, including, but not limited to, compensatory damages, exemplary damages, attorneys’fees, prejudgment interest, and post judgment interest (whether through trial or settlement of any Lawsuit) (such amount of recovery is hereinafter referred to as the 

“Litigation Proceeds”) after the effective date of this Agreement in an amount as follows: 

 

3(a)1.A Sixteen percent (16%) of all “License Proceeds.” The Parties agree that theterm License Proceeds includes the value of any amount of money that is to be paid to the Client over any period of time as a proximate result of any License Agreement and/or License Negotiations. The Law Firm will receive its percentage interest inthose amounts as they are paid to the Client or, at the election of the Client, based upon the present value of the amount of money that is to be paid to the Client over time. If the Client chooses to waive any such future payments, it will pay theLaw Firm an amount equal to the Law Firm’s interest in those payments as they otherwise would have been made to the Client. The Parties agree that the License Proceeds shall include the full fair market value of any non-monetary proceeds.License Proceeds shall not be reduced by any cross-license, cross-action, setoff or other payment by Client, which shall be the sole responsibility of Client. 

 

3(a)1.B Twenty-one percent (21%) of all “Litigation Proceeds.” The Parties agree that the term Litigation Proceeds includes any amount of money that is to bepaid out to the Client over any period of time as a proximate result of any Lawsuit. The Law Firm will receive its percentage interest in those amounts as they are paid to the Client or, at the election of the Client, based upon the present value ofthe amount of money that is to be paid to the Client over time. If the Client chooses to waive any such future payments, it will pay the Law Firm an amount equal to the Law Firm’s interest in those payments as they otherwise would have beenmade to the Client. The Parties agree that the Lawsuit Proceeds shall include the full fair market value of any non-monetary relief obtained or received directly by the Client or any related entity as a proximate result of any Lawsuit, such asinjunctive relief. 

 

The Law Firm’s contingent fees based on LicenseProceeds and Litigation Proceeds shall collectively be referred to herein as the “Contingent Attorneys’ Fees.” 

 

3(b) The Client shall pay the Contingent Attorneys’ Fees to the Law Firm quarterly, on or before the 10th day of each succeeding calendar quarter. With each such lump sum payment, the Client shall provide the Law Firm with a (i) detailed accounting of all LicenseProceeds and Litigation Proceeds received by the Client during the immediately preceding calendar quarter, and (ii) a calculation of the quarterly lump sum amount being tendered to the Law Firm. The Law Firm shall have 30 days following its receiptof each quarterly payment and the accompanying detail within which to verify and/or object to the Client’s calculation of the quarterly payment amount. If the Law Firm fails to object to any quarterly calculation within such 30 day period, thecalculation and the payment received shall, absent fraud by the Client, be deemed to have been accepted by the Law Firm and shall be final. 

 

3(c) Anything herein to the contrary notwithstanding, the Law Firm shall not be entitled to receive, and the Client shall not be required to pay the Law Firm, anyContingent Attorneys’ Fees under paragraph 3(a) above or otherwise out of or with respect to the first $6 million of “Gross Recoveries” received by the Client on or after October 27, 2004, in recognition of Client’s existingobligations under that certain Resolution Agreement, dated December 22, 2004 (the date on which the Law Firm first becomes entitled to receive any Contingent Attorneys’ Fees in accordance with this paragraph 3(c), whether or not the Law Firmactually receives any Contingent Attorneys’ Fees on such date, shall hereinafter be referred to as the “Contingent Fee Start Date”). 

 

4 Additional Hourly Rate Compensation the Law Firm. In addition to the Contingent Attorneys’ Fees, the Client shall also compensate the Law Firm for servicesrendered hereunder by paying the Law Firm fifty-percent (50%) of the firm’s reasonable attorneys’ fees based upon its standard hourly rates applicable at the time incurred. The Law Firm will provide the Client with a statement for suchreasonable attorneys’ fees each month reflecting the time spent by the Law Firm pursuant hereto. The Client shall pay the Law Firm’s statement for such reasonable attorneys’ fees within 30 days of receipt of the statement. 

 

5 Client Payment of Enforcement Expenses. For purposes hereof, “EnforcementExpenses” shall mean those third-party expenses reasonably incurred by Law Firm on the Client’s behalf hereunder, including but not limited to, travel expenses, long distance calls, investigation fees, consultant fees, expert and witnessfees, charts, photographs, deposition fees and costs, court costs, photocopying and other document reproduction costs, postage charges, fax charges, on-line computer research. 

 

So long as the Law Firm is not entitled to receive any Contingent Attorneys’ Fees under Paragraph 3(c) above, the Client shall pay whendue all Enforcement Expenses. Once the Law Firm becomes entitled to receive Contingent 

Attorneys’ Fees in accordance with Paragraph 3(c) above, Enforcement Expenses shall be reimbursed to the Client out of any License Proceeds orLitigation Proceeds up to, but not to exceed, 20% of any such License Proceeds or Litigation Proceeds recovered from any person(s) at any one time. For example, if License Proceeds or Litigation Proceeds are recovered from a Licensing Negotiation orany Lawsuit from any person, then up to 20% of such total proceeds will be paid to the Client as reimbursement for Enforcement Expenses incurred, and the remainder of the License Proceeds or Litigation Proceeds will be distributed to the Law Firmand the Client in accordance with the provisions of Paragraph 3(a) above. In the event that the total amount of License Proceeds or Litigation Proceeds recovered with respect to a particular Licensing Negotiation or Lawsuit are insufficient toreimburse the Client fully for Reimbursable Enforcement Expenses, the Client agrees that the Client shall bear the unreimbursed portion of the Enforcement Expenses and that the Law Firm shall not be liable for any Enforcement Expenses notreimbursed. 

 

6 Monthly Budget. On or before the 5th day of each calendar month during the term hereof, the Law Firm shall prepare and provide to the Client a written budget forthat month for the Law Firm’s legal fees under Paragraph 4 and Enforcement Expenses under Paragraph 5. 

 

7 Court Award of Attorneys Fees or Costs. Where reasonably appropriate under the circumstances in any Lawsuit, the Law Firm shall apply to the Court for such amount of compensation, costs, and litigation expenses, ifany, as may reasonably be allowed to the Client by law (“Attorneys Fees and Costs”). Any Attorneys Fees and Costs recovered under this paragraph shall be treated as Litigation Proceeds under this Agreement. 

 

8 Defense of Counterclaims and Declaratory Judgment Actions. The Law Firm shall defend anyaction or counterclaim relating to the `672 patent filed against the Client by a defendant in a Lawsuit or by any person with whom the Client has been engaged in License Negotiations, including but not limited to, any action or counterclaim fordeclaratory judgment of patent invalidity, unenforceability or non-infringement relating to the ‘672 Patent, or for violation of the state or federal antitrust laws relating to the ‘672 Patent (including the Client’s currentproceeding before the FTC), or for any other claim that is substantively related to the ‘672 Patent or Client’s rights therein, on the basis specified in Paragraphs 3 and 4 above. To the extent that a any action, claim or counterclaim isasserted against the Client that is unrelated to the subject matter of the `672 Patent, and the Client desires the Law Firm to defend the Client against such cause of action, the Law Firm and the Client may agree to such representation on such termsas are mutually acceptable. 

 

9 Law Firm Association of other Lawyers orAssignment. The Law Firm agrees to perform faithfully the duties imposed upon the Law Firm as attorneys for the Client in accordance herewith. The Law Firm may, at the discretion and expense of the Law Firm, associate any other attorney, law firm orother entity, as allowed by law, in pursuing its duties and obligations hereunder, and may assign all or any part of its interest in the Licensing Proceeds or Litigation Proceeds to any other such entity, as allowed by law, provided that suchassignment shall not relieve the Law Firm from its responsibility as legal counsel for the Client without Client’s prior written consent, nor shall such assignment increase the cost to the Client of any Lawsuit or reduce the interest of theClient in the Licensing Proceeds or Litigation Proceeds. 

 

10 Assignment of‘672 Patent or Any Rights Therein. The Law Firm and the Client acknowledge and agree that the Client’s agreement to pay the Law Firm the Contingent Attorneys’ Fees hereunder is in no way a conveyance or assignment of any interest orrights to the ‘672 Patent. The Client retains the right to use the technology in the ‘672 Patent and to make, have made, import, use, sell or offer for sale any equipment, device or apparatus and to practice any method covered by any claimof any of the ‘672 Patent, for the customers of the Client. 

 

11Termination of Engagement. 

 

11(a) By the Law Firm. The Law Firm may atany time, at its option (and with Court approval in the case of any Lawsuit), with or without cause, terminate its representation of the Client hereunder by providing not less than 90 days’ prior written notice to the Client. 

 

11(b) By the Client. The Client may at any time, with or without cause, terminate theLaw Firm’s representation of the Client hereunder by providing not less than 90 days’ prior written notice to the Law Firm. 

 

11(c) Effect of Termination. Upon the termination of the Law Firm’s representation of the Client hereunder by either Party, this Agreement shall be terminatedand shall no longer be of any force or effect, and neither Party shall 

thereafter be liable to the other hereunder except as expressly provided herein. Notwithstanding the termination hereof, the Client shall compensate the LawFirm hereunder as follows: 

 

11(c)1.A Client shall pay the Law Firm all hourlyrate compensation due under Paragraph 4 and all Enforcement Expenses due under Paragraph 5 through the effective date of termination (the “Termination Date”). Such amounts shall be paid in full within 30 days of Client’s receipt offinal invoice. 

 

11(c)1.B With respect to any Contingent Attorneys’ Feesdue as of or subsequent to the Termination Date with respect to Lawsuits or License Negotiations completed prior to the Termination Date, the Client shall continue to pay the Law Firm such fees in accordance with the payment procedures prescribed inParagraph 3(b) above. 

 

11(c)1.C With respect to any Lawsuit or LicenseNegotiation hereunder that is not completed prior to the Termination Date, but that is thereafter completed by the Client with or without the assistance of replacement legal counsel, upon receipt of any License Proceeds or Litigation Proceeds withrespect thereto, the Client shall pay the Law Firm its pro rata share of such proceeds. For purposes hereof, the Law Firm’s “pro rata share” shall be (A) the total amount of the proceeds that otherwise would have been due and payableto the Law Firm hereunder relative to such Lawsuit or License Negotiation if this Agreement had remained in effect through the date of Client’s receipt of the License Proceeds or Litigation Proceeds, multiplied by (B) a fraction, the numeratorof which is equal to the Law Firm’s total billings (exclusive of Enforcement Expenses) for legal services rendered (at its standard hourly rates applicable at the time) relative to such Lawsuit or License Negotiation during the period beginningon the Contingent Fee Start Date (as defined in paragraph 3(c) above) and ending on the Termination Date, and the denominator of which is equal to the total billings (exclusive of Enforcement Expenses) by all law firms (including the billings by theLaw Firm) for legal services rendered relative to such Lawsuit or License Negotiation during the period beginning on October 27, 2004 (or such later date as legal services relative to such Lawsuit or License Negotiation were commenced) and ending onthe date such Law Suit or Licensing Negotiation is completed. 

 

12 Audit. Aslong as the Law Firm is entitled to receive payments resulting from any License Proceeds or Litigation Proceeds, the Law Firm shall have the right to audit all financial records of the Client related to the receipt of any such proceeds. 

 

13 Law Firm Authority to Act for Client. The Client authorizes the Law Firm to try,negotiate, compromise, settle and receive for and in Client’s name, all compensation, damages or property to which Client may become entitled by reason of any License Agreement or Lawsuit. Client agrees not to enter into any License Agreementor settle any Lawsuit without consultation with the Law Firm, and the Law Firm agrees not to enter into any License Agreement or settle any Lawsuit without the written consent of the Client. 

 

14 No Representation or Warranty by Law Firm. Each Party specifically recognizes that theother Party has made no representation or warranty whatsoever regarding the probable outcome of any Lawsuit and has in no way guaranteed the result or outcome of nor any recovery from the settlement or trail of any Lawsuit. 

 

15 Other Documents. The Parties agree to execute such other documents as might be reasonablynecessary or appropriate to consummate and implement the terms of this Agreement. 

 

16 Client Option for Hourly Fees. The Client acknowledges that prior to signing this Agreement, the Client was given the option of retaining the Law Firm to prosecute any Lawsuit on exclusively a normal hourly rate (plus costs and expensesincurred) basis but elected instead to retain the Law Firm to prosecute any Lawsuit pursuant to the terms and conditions of this Agreement. 

 

17 Remedies for Breach. In the event that any Party hereto shall breach any of the obligations imposed by this Agreement, then a non-breaching Party shall be entitled topursue a claim for monetary damages as a result of such breach. No Party, however, shall be entitled to recover special, indirect, or consequential damages, including lost profits, from any other Party. For purposes of this paragraph, if the Clientbreaches the Agreement, the compensation to which the Law Firm may be entitled under Paragraph 3 herein is not “special, indirect, or consequential damages, including lost profits.” 

 

18 Successors and Assigns. This Agreement is and shall be binding and inure to the benefit ofthe Parties, legal representatives, successors and assigns. 

19 Governing Law. It is expressly understood and agreed that this Agreement shall be governed by, construed, interpreted,and enforced in accordance with the laws of the State of Texas. 

 

20 LegalConstruction. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any otherprovisions thereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 

 

21 Waiver and Integration Clause. This Agreement constitutes the entire agreement among the Parties and supersedes any prior understandings or written or oral agreementbetween the Parties respecting the subject matter of this Agreement, including specifically that certain engagement letter between Forgent and Godwin Gruber dated 9-30-04, which engagement letter is terminated as of the date hereof. This Agreementmay not be modified or amended except by a subsequent agreement in writing signed by the Parties. The Parties may waive any of the conditions contained herein or any of the obligations of any other party. Any such waiver shall be effective only ifin writing and signed by the Party waiving such condition or obligation. 

 

22Counterparts. This Agreement may be executed in multiple counterparts, each one of which will be considered to be an original. 

 

23 State Bar Notice. The Texas State Bar Act requires that Texas attorneys give notice to their clients that the State Bar of Texas investigates and prosecutesprofessional misconduct committed by Texas attorneys. Although not every complaint against or dispute with a lawyer involves professional misconduct, the State Bar’s Office of the General Counsel will provide information about how to file acomplaint by calling 1-800-932-1900 toll free. 

 

**Godwin Gruber, LLP**

 

By:
 
/s/ G. Michael Gruber

Its:
 
Vice-President and Chief Executive Officer
**Forgent Networks, Inc.**
By:
 
/s/ Richard N. Snyder

Its:
 
Chief Executive Officer
**Compression Labs, Inc.**
By:
 
/s/ Richard N. Snyder

Its:
 
Chief Executive Officer