OF INFRINGEMENT LITIGATION. THE SELLER ENTITIES
ACKNOWLEDGE AND AGREE THAT BUYER HAS A MATERIAL INTEREST IN INFRINGEMENT
LITIGATION AND THAT ITS OUTCOME MAY IMPACT THE VALUE OF THE ASSETS AND ONGOING
BUSINESS BEING ACQUIRED BY BUYER. ACCORDINGLY, FOLLOWING THE CLOSING, BUYER
SHALL BE ENTITLED, IN ITS SOLE DISCRETION, TO ALL OF THE FOLLOWING RIGHTS WITH
RESPECT TO SUCH INFRINGEMENT LITIGATION: (I) TO SELECT AND MANAGE COUNSEL; (II)
TO CONDUCT, DETERMINE STRATEGY FOR, ENTER INTO AND CONDUCT ALTERNATIVE DISPUTE
RESOLUTION; (III)
TO SETTLE, COMPROMISE, DISCHARGE OR OTHERWISE RESOLVE
(INCLUDING THROUGH ALTERNATIVE DISPUTE RESOLUTION); AND (IV) TO OTHERWISE MANAGE
AND TAKE ACTIONS. IN EXERCISING SUCH RIGHTS SET FORTH ABOVE IN THIS SECTION
12.11(B), BUYER SHALL USE COMMERCIALLY REASONABLE EFFORTS TO (1) DEFEND THE
INFRINGEMENT LITIGATION, AND (2) ASSERT SUCH DEFENSES, CROSS-COMPLAINTS,
COUNTERCLAIMS AND/OR PATENT REEXAMINATIONS AS BUYER DETERMINES ARE APPROPRIATE
IN ITS REASONABLE DISCRETION. BUYER WILL AFFORD THE SELLER ENTITIES AN
OPPORTUNITY TO CONSULT WITH BUYER WITH RESPECT TO MATTERS SET FORTH ABOVE IN
THIS SECTION 12.11(B) AND WITH RESPECT TO ANY SETTLEMENT OFFER AND BUYER'S
DECISION WHETHER OR NOT TO ACCEPT OR REJECT THE OFFER. SUCH CONSULTATION,
HOWEVER, SHALL NOT AFFECT BUYER'S RIGHT AND ABILITY TO SETTLE, COMPROMISE,
DISCHARGE OR OTHERWISE RESOLVE INFRINGEMENT LITIGATION AS IT SEES FIT, WITHOUT
THE NEED FOR THE CONSENT OF THE SELLER ENTITIES; PROVIDED, HOWEVER, THAT IN THE
EVENT OF ANY SETTLEMENT, COMPROMISE, DISCHARGE OR OTHER RESOLUTION ASSOCIATED
WITH INFRINGEMENT LITIGATION THAT WOULD RESULT IN PAYMENT OF ANY DAMAGES OR
OTHER AMOUNTS TO ANY THIRD PARTY, BUYER SHALL OBTAIN THE SELLER ENTITIES' PRIOR
WRITTEN CONSENT TO ANY SUCH SETTLEMENT, COMPROMISE, DISCHARGE OR OTHER
RESOLUTION, SUCH CONSENT NOT TO BE UNREASONABLY WITHHELD OR DELAYED. THE SELLER
ENTITIES AGREE TO, AND PARENT SHALL CAUSE ITS AFFILIATES TO, REASONABLY
COOPERATE WITH BUYER IN CONNECTION WITH INFRINGEMENT LITIGATION AND TO MAKE
AVAILABLE SUCH RECORDS AND INFORMATION, AND SUCH OFFICERS AND EMPLOYEES, DURING
NORMAL BUSINESS HOURS, AS BUYER MAY REASONABLY REQUEST AS NECESSARY TO ASSIST
WITH INFRINGEMENT LITIGATION.
(C)
PAYMENT OF LITIGATION FEES. NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THIS AGREEMENT, (A) THE SELLER ENTITIES AGREE THAT THEY ARE
RESPONSIBLE FOR AND SHALL PAY OR
65
OTHERWISE INDEMNIFY BUYER FOR ALL LEGAL FEES INCURRED BY SELLER ENTITIES PRIOR
TO THE CLOSING RELATING TO INFRINGEMENT LITIGATION AND (B) THE SELLER ENTITIES
AND BUYER AGREE THAT EACH IS RESPONSIBLE FOR AND SHALL PROMPTLY PAY ONE-HALF
(1/2) OF ALL LEGAL FEES INCURRED BY OR ON BEHALF OF THE SELLER ENTITIES AND
BUYER AFTER THE CLOSING RELATING TO INFRINGEMENT LITIGATION; PROVIDED, HOWEVER,
THAT THE MAXIMUM LIABILITY OF THE SELLER ENTITIES UNDER THIS SECTION 12.11(C)(I)
SHALL NOT EXCEED [
($
)].(25) BUYER MAY, AT ITS DISCRETION, ARRANGE TO HAVE ALL
INVOICES, CHARGES, FEES, DAMAGES OR OTHER LEGAL FEES RELATED TO INFRINGEMENT
LITIGATION, FOR WHICH THE SELLER ENTITIES ARE RESPONSIBLE TO PAY, BILLED
DIRECTLY TO THE SELLER ENTITIES AND NOT TO BUYER, OR IN THE ALTERNATIVE BUYER
MAY PAY ANY SUCH AMOUNTS AND THEREAFTER SEEK REIMBURSEMENT FROM THE SELLER
ENTITIES, WHICH THEY SHALL PROMPTLY PROVIDE. ALL