OR OTHER AMOUNTS; AND
- 36 -
(C)
PERPETUAL AND IRREVOCABLE.
(D)
MAINTENANCE AND ENFORCEMENT OF INTELLECTUAL PROPERTY. WITH RESPECT
TO ANY ISSUED PATENTS, REGISTERED TRADEMARKS OR REGISTERED COPYRIGHTS AND ANY
APPLICATIONS TO OBTAIN OR REGISTER THE SAME THAT ARE DISTRIBUTED IN ACCORDANCE
WITH SECTION 10.8(C)(I) (THE "REGISTERED INTELLECTUAL PROPERTY"), RESPONSIBILITY
FOR THE PROSECUTION, REGISTRATION, MAINTENANCE AND PROTECTION THEREOF WILL BE
ALLOCATED TO THE MEMBERS WITH AN OWNERSHIP INTEREST THEREIN, SUBJECT TO THIRD
PARTY RIGHTS, AS FOLLOWS:
(I)
IN THE CASE OF REGISTERED INTELLECTUAL PROPERTY LICENSED TO A
MEMBER IN CONNECTION WITH AN OPT-IN ELECTION, IN ACCORDANCE WITH SECTION 9 OF
THE LICENSE AGREEMENT; AND
(II)
IN THE CASE OF REGISTERED INTELLECTUAL PROPERTY LICENSED TO A
MEMBER IN CONNECTION WITH A BUY-OUT, AS DETERMINED BY THE PARTIES AT THE TIME OF
THE BUY-OUT, IT BEING AGREED THAT THE PARTIES INTEND SUCH ALLOCATION TO BE
SUBSTANTIALLY SIMILAR TO THE PROVISIONS OF SECTION 9 OF THE LICENSE AGREEMENT AS
THEY APPLY TO AN OPT-IN PRODUCT.
(E)
NON-TRANSFERABLE LICENSES. AS TO ANY ITEMS OF INTELLECTUAL
PROPERTY AND OTHER INDIVISIBLE ASSETS THAT WOULD HAVE BEEN DISTRIBUTED UNDER
SECTION 10.8(C)(I) BUT FOR THE LACK OF A TRANSFERABLE RIGHT OR LICENSE IN THE
COMPANY, THE LIQUIDATOR WILL USE COMMERCIALLY REASONABLE EFFORTS SUCH THAT EACH
DISTRIBUTEE MEMBER THEREUNDER HAS, FROM AND AFTER THE TIME OF DISSOLUTION,
RIGHTS OR LICENSES TO USE SUCH INTELLECTUAL PROPERTY AND OTHER INDIVISIBLE
ASSETS IN THE SAME MANNER AND TO THE SAME EXTENT AS THE COMPANY.
(F)
BINDING ON TRANSFEREES. IN THE EVENT A MEMBER TRANSFERS ITS
INTEREST IN ANY INTELLECTUAL PROPERTY DISTRIBUTED OR LICENSED TO IT UNDER THIS
SECTION 10.8, IT WILL CAUSE THE TRANSFEREE TO AGREE IN WRITING TO BE BOUND BY
THE APPLICABLE OBLIGATIONS OF THIS SECTION 10.8.
(G)
TERMINATION OF ANCILLARY AGREEMENTS; FURTHER ASSURANCES.
(I)
UPON CONSUMMATION OF A TERMINATION OF THIS AGREEMENT AND THE
DISTRIBUTION OR LIQUIDATION OF THE ASSETS OF THE COMPANY PURSUANT TO THIS
ARTICLE 10, THE PARTIES HERETO WILL CAUSE THE TERMINATION OF THE ANCILLARY
AGREEMENTS SUBJECT TO THE PROVISIONS OF THIS SECTION 10.8 OR UNLESS OTHERWISE
AGREED BY THE MEMBERS. AT OR ANY TIME AFTER SUCH DISTRIBUTION OR LIQUIDATION,
THE PARTIES WILL EXECUTE AND DELIVER SUCH WRITTEN AGREEMENTS AND INSTRUMENTS AS
MAY BE REQUESTED BY ANY MEMBER OR ITS AFFILIATE TO CONFIRM OR DOCUMENT THE
LICENSES, RIGHTS AND OBLIGATIONS OF EACH MEMBER, AS DESCRIBED HEREIN AND IN THE
LICENSE AGREEMENT; PROVIDED, HOWEVER:
(II)
THE INTENT OF THE PARTIES IS THAT ALL OF SUCH LICENSES, RIGHTS
AND OBLIGATIONS BE SELF EXECUTING AUTOMATICALLY, AND WITHOUT FURTHER ACT BY ANY
PERSON, UPON THE OCCURRENCE OF THE EVENT THAT TRIGGERS THE SAME;
(III)
EXECUTION AND DELIVERY OF ANY SUCH WRITTEN AGREEMENT OR
INSTRUMENT IS NEITHER A CONDITION PRECEDENT TO NOR A REQUIREMENT OR
PRE-REQUISITE FOR THE EFFECTIVENESS OF ANY OF SUCH LICENSES, RIGHTS AND
OBLIGATIONS; AND
- 37 -
(IV)
NEITHER A FAILURE TO MAKE SUCH REQUEST NOR A FAILURE TO MUTUALLY
AGREE ON THE TEXT OF AND/OR TO EXECUTE OR DELIVER ANY SUCH WRITTEN AGREEMENT