INFRINGEMENT SUIT AND HAS NOT COMMENCED
NEGOTIATIONS WITH THE INFRINGER FOR THE DISCONTINUANCE OF SUCH INFRINGEMENT
WITHIN FORTY-FIVE (45) DAYS (OR LONGER IF THE PARTIES MUTUALLY AGREE) OF
BECOMING AWARE OF SUCH INFRINGEMENT, THE COMPANY MAY ELECT TO DO SO. IF THE
COMPANY ELECTS TO BRING SUIT AGAINST SUCH INFRINGER AND THE PURCHASER IS JOINED
AS A PARTY IN SUCH SUIT (WHICH IT SHALL DO IF SO REQUESTED BY THE COMPANY), THE
PURCHASER SHALL HAVE THE RIGHT TO APPROVE COUNSEL SELECTED BY THE COMPANY TO
REPRESENT THE PARTIES, WHICH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD,
CONDITIONED OR DELAYED. THE EXPENSES OF SUCH SUIT OR SUITS THAT THE COMPANY
ELECTS TO BRING, INCLUDING ANY REASONABLE OUT-OF-POCKET EXPENSES OF THE
PURCHASER INCURRED IN CONNECTION THEREWITH, SHALL BE PAID FOR ENTIRELY BY THE
COMPANY. NEITHER PARTY SHALL COMPROMISE OR SETTLE ANY LITIGATION IN A MANNER
THAT IMPOSES ANY OBLIGATION ON THE OTHER PARTY OR THAT OTHERWISE ADVERSELY
IMPACTS THE DEVELOPMENT OR COMMERCIALIZATION OF THE PRODUCT, OR THE LICENSED
PATENT RIGHTS OR THE PRODUCT INTELLECTUAL PROPERTY WITHOUT THE PRIOR WRITTEN
CONSENT OF THE OTHER PARTY, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD,
CONDITIONED OR DELAYED.
(C)
RECOVERIES. ANY RECOVERY OBTAINED BY ANY
PARTY AS A RESULT OF ANY PROCEEDING DESCRIBED IN THIS SECTION 3.2, BY SETTLEMENT
OR OTHERWISE, SHALL BE APPLIED IN THE FOLLOWING ORDER OF PRIORITY:
(I)
FIRST, TO REIMBURSE EACH PARTY FOR ALL
LITIGATION COSTS IN CONNECTION WITH SUCH PROCEEDING PAID BY THAT PARTY AND NOT
OTHERWISE RECOVERED (ON A PRO RATA BASIS BASED ON EACH PARTY'S RESPECTIVE
LITIGATION COSTS, TO THE EXTENT THE RECOVERY WAS LESS THAN ALL SUCH LITIGATION
COSTS); AND
(II)
SECOND, ALL REMAINING AMOUNTS, TO THE
PURCHASER.
SECTION 3.3
INFRINGEMENT OF THIRD PARTY
PATENTS. IF A CLAIM ALLEGING INFRINGEMENT OF THIRD PARTY PATENTS IS MADE AGAINST
THE PURCHASER, THEN THE PURCHASER SHALL DEFEND AGAINST SUCH A CLAIM AT ITS COST
AND EXPENSE, BUT THE COMPANY MAY BE REPRESENTED IN SUCH EVENT BY LEGAL COUNSEL
*CONFIDENTIAL TREATMENT REQUESTED
9
in an advisory capacity at its own expense. The Purchaser shall keep the Company
informed of the status of the case.
SECTION 3.4
COOPERATION. IN THE EVENT THAT
THE PURCHASER TAKES ACTION PURSUANT TO SECTION 3.2 OR SECTION 3.2(C) ABOVE, THE
COMPANY SHALL PARTICIPATE IN SUCH ACTION (INCLUDING, WITHOUT LIMITATION, JOINING
AS A PARTY TO SUCH ACTION) AND COOPERATE WITH THE PURCHASER TO THE EXTENT
REASONABLY REQUESTED BY THE PURCHASER. THE COMPANY SHALL PROVIDE ASSISTANCE AND
COOPERATION TO THE PURCHASER WITHOUT ANY CHARGE TO THE PURCHASER, PROVIDED,
HOWEVER, THAT THE PURCHASER SHALL PAY THE COMPANY'S REASONABLE OUT-OF-POCKET
EXPENSES INCURRED IN CONNECTION WITH SUCH ASSISTANCE AND COOPERATION.
SECTION 3.5
THIRD PARTY LICENSES. ALL
THIRD-PARTY LICENSES PURSUANT TO WHICH THE LICENSES OR RIGHTS IN THIS AGREEMENT
ARE GRANTED ARE ATTACHED IN EXHIBIT B HERETO ("THIRD PARTY LICENSES"). THE
COMPANY HEREBY SUBLICENSES TO THE PURCHASER, TO THE FULLEST EXTENT PERMISSIBLE
UNDER THE THIRD PARTY LICENSES, ALL RIGHTS AND LICENSES OF THE COMPANY UNDER
SUCH LICENSES, INCLUDING ANY RIGHTS TO GRANT FURTHER