SECTION 5.11(A)(II) OF THE
SELLER DISCLOSURE LETTER.
IN PROSECUTING THE PATENT CLAIMS, PURCHASER SHALL
CAUSE THE COMPANY TO PROVIDE SELLER WITH TIMELY WRITTEN REPORTS OF MATERIAL
DEVELOPMENTS IN ANY OF THE PENDING PATENT CLAIMS, INCLUDING PROVIDING WRITTEN
NOTICE WITHIN FIVE (5) BUSINESS DAYS FOLLOWING THE INSTITUTION OF LITIGATION OR
ARBITRATION PROCEEDINGS OR THE SETTLEMENT OF ANY PATENT CLAIM.
ADDITIONALLY,
PURCHASER SHALL CAUSE THE COMPANY TO PROVIDE A WRITTEN REPORT ONCE EVERY SIX
MONTHS (DUE EACH JUNE 30 AND DECEMBER 31, COMMENCING JUNE 30, 2005) SUMMARIZING
ALL PENDING PATENT CLAIMS AND ALL ACTIONS TAKEN WITH RESPECT TO SUCH CLAIMS IN
THE PRIOR SIX-MONTH PERIOD AGAINST THE THIRD PARTIES IDENTIFIED IN
SECTION 5.11(A)(II) OF THE SELLER DISCLOSURE LETTER.
SELLER SHALL PAY, ON A
QUARTERLY BASIS, FIFTY PERCENT (50%) OF THE COMPANY'S OUT-OF POCKET COSTS AND
EXPENSES INCURRED BY THE COMPANY AFTER THE CLOSING DATE IN CONNECTION WITH
PROSECUTING THE PATENT CLAIMS; PROVIDED THAT PURCHASER OR THE COMPANY SHALL HAVE
PROVIDED REASONABLE SUPPORTING DOCUMENTATION IN WRITING TO SELLER.
IF PURCHASER
AND THE COMPANY MAKE A REASONABLE DETERMINATION, ACTING IN GOOD FAITH, NOT TO
PROSECUTE FOR PRUDENT BUSINESS REASONS ONE OR MORE OF THE PATENT CLAIMS SET
FORTH ON SECTION 5.11(A)(II) OF THE SELLER DISCLOSURE LETTER, PURCHASER AND THE
COMPANY SHALL, WITHIN FIVE (5) BUSINESS DAYS, PROVIDE SELLER WITH WRITTEN
NOTIFICATION OF SUCH DETERMINATION, INCLUDING PROVIDING A DESCRIPTION IN
REASONABLE DETAIL OF THE BASIS FOR SUCH DETERMINATION.
"PRUDENT BUSINESS
REASONS" SHALL INCLUDE, BUT NOT BE LIMITED TO, PURCHASER'S GOOD FAITH JUDGMENT
THAT THE OUT-OF-POCKET COSTS AND/OR ANY PROFIT OR OTHER VALUE ANTICIPATED TO BE
LOST FROM PROSECUTING ANY SUCH PATENT CLAIMS EXCEEDS THE ESTIMATED VALUE OF ANY
SETTLEMENT, JUDGMENT OR OTHER RECOVERY REASONABLY EXPECTED TO BE DERIVED
THEREFROM.
NOTWITHSTANDING THE FOREGOING, "PRUDENT BUSINESS REASONS" SHALL IN
NO EVENT INCLUDE CONSIDERATION OF ANY BENEFITS (FINANCIAL OR OTHERWISE) DERIVED
OR COSTS INCURRED BY ANY AFFILIATE OF ANY SHAREHOLDER OF PURCHASER (OTHER THAN
THE COMPANY AND ITS SUBSIDIARIES) ARISING OUT OF OR RELATING TO THE PROSECUTION
OF ANY PATENT CLAIMS.
37
(B)
PURCHASER AND SELLER SHALL REASONABLY
COOPERATE, AND SHALL CAUSE THEIR RESPECTIVE AFFILIATES, OFFICERS, AGENTS,
EMPLOYEES AND OTHER REPRESENTATIVES TO REASONABLY COOPERATE IN CONNECTION WITH
RESPONDING TO ANY INVESTIGATION OR REPORT ONGOING AFTER THE CLOSING DATE,
INCLUDING ANY INVESTIGATION RELATING TO ENVIRONMENTAL OR TAX MATTERS, INITIATED
OR UNDERTAKEN BY ANY GOVERNMENTAL ENTITY.
(C)
SELLER SHALL, FOR A PERIOD OF TWO YEARS
FROM THE CLOSING DATE, MAINTAIN RELEVANT BOOKS AND RECORDS MATERIALLY RELATING
TO THE COMPANY OR ITS SUBSIDIARIES AND SHALL PERMIT THE COMPANY OR ITS AGENTS,
AT THE COMPANY'S EXPENSE, DURING REGULAR BUSINESS HOURS AND AFTER PROVISION OF
REASONABLE ADVANCE NOTICE, TO INSPECT AND MAKE COPIES OF SUCH RECORDS AS
REASONABLY NEEDED IN CONNECTION WITH OPERATION OF THE COMPANY'S BUSINESS.
5.12
FINANCING.
(A)
PURCHASER AGREES TO USE ITS REASONABLE BEST
EFFORTS TO OBTAIN THE DEBT FINANCING PRIOR TO THE CLOSING DATE AND ON
SUBSTANTIALLY THE TERMS SET FORTH IN THE COMMITMENT LETTER, TO KEEP THE SELLER
REASONABLY INFORMED ON THE STATUS OF ITS EFFORTS TO