MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
ARTICLE III - DISMISSAL OF LITIGATION
3.1
DISMISSAL.
IN ACCORDANCE WITH ARTICLE V
BELOW, AVISTAR AND POLYCOM SHALL CAUSE THEIR RESPECTIVE COUNSEL TO EXECUTE AND
FILE A STIPULATION AND ORDER IN THE FORM SET FORTH IN EXHIBIT A DISMISSING WITH
PREJUDICE ALL CLAIMS AND COUNTERCLAIMS IN THE LITIGATION. THE PARTIES SHALL
COOPERATE IN TAKING ANY AND ALL ADDITIONAL PROCEDURES NEEDED TO DISMISS THE
LITIGATION WITH PREJUDICE.
3.2
NO ADMISSION.
THE PARTIES AGREE THAT THE
SETTLEMENT OF THE LITIGATION IS INTENDED SOLELY AS A COMPROMISE OF DISPUTED
CLAIMS AND COUNTERCLAIMS.
NEITHER THE FACT OF A PARTY'S ENTRY INTO THIS
SETTLEMENT AGREEMENT NOR THE TERMS HEREOF NOR ANY ACTS UNDERTAKEN PURSUANT
HERETO SHALL CONSTITUTE AN ADMISSION OR CONCESSION BY ANY PARTY REGARDING
LIABILITY OR THE VALIDITY OF ANY CLAIM OR COUNTERCLAIM IN THE LITIGATION.
3.3
ATTORNEYS' FEES AND COSTS.
EXCEPT AS SET
FORTH IN SECTION 4.1, THE PARTIES AGREE THAT THEY SHALL BEAR THEIR OWN COSTS AND
ATTORNEYS' FEES RELATING TO THE LITIGATION AND SETTLEMENT THEREOF, INCLUDING
EXPERT FEES AND COURT COSTS, AND THE PREPARATION, NEGOTIATION AND EXECUTION OF
THIS SETTLEMENT AGREEMENT AND THE PATENT LICENSE AGREEMENT.
ARTICLE IV - CONSIDERATION
4.1
POLYCOM SHALL PAY TO AVISTAR A TOTAL OF
TWENTY-SEVEN MILLION FIVE HUNDRED THOUSAND U.S. DOLLARS (US$27,500,000) IN
ACCORDANCE WITH ARTICLE V BELOW, SOME OF WHICH IS RELATED TO AVISTAR'S
ATTORNEYS' FEES.
SUCH PAYMENT SHALL BE MADE BY CHECK OR WIRE TRANSFER OF
IMMEDIATELY AVAILABLE FUNDS TO A BANK ACCOUNT DESIGNATED BY AVISTAR AT
EXECUTION.
SUCH PAYMENT SHALL BE THE SOLE AND EXCLUSIVE PAYMENT REQUIRED TO BE
MADE BY POLYCOM AND ITS SUBSIDIARIES IN CONNECTION WITH THIS SETTLEMENT
AGREEMENT AND SHALL BE AVISTAR'S SOLE REMUNERATION HEREUNDER.
ARTICLE V - CLOSING PROCESS
5.1
CLOSING.
THE CLOSING OF THE TRANSACTIONS
CONTEMPLATED BY THIS SETTLEMENT AGREEMENT AND THE PATENT LICENSE AGREEMENT (THE
"CLOSING") SHALL TAKE PLACE ON FRIDAY, NOVEMBER 12, 2004 AT 9:30 AM PACIFIC TIME
AT THE OFFICES OF WILSON SONSINI GOODRICH & ROSATI, 650 PAGE MILL ROAD, PALO
ALTO, CALIFORNIA, OR AT SUCH OTHER PLACE AND TIME AS THE PARTIES MAY MUTUALLY
DETERMINE.
5.2
DELIVERIES AT CLOSING.
AT THE CLOSING, THE
PARTIES SHALL EXECUTE AND DELIVER THIS SETTLEMENT AGREEMENT, THE PATENT LICENSE
AGREEMENT, AND THE STIPULATION AND ORDER IN THE FORM SET FORTH IN EXHIBIT A.
POLYCOM'S COUNSEL SHALL HOLD THE EXECUTED STIPULATION AND ORDER PENDING PAYMENT
AS DESCRIBED IN SECTION 5.3.
5.3
PAYMENT.
AT THE CLOSING OR WITHIN ONE
(1) BUSINESS DAY AFTER THE CLOSING, POLYCOM SHALL PAY TO AVISTAR THE AMOUNT SET
FORTH IN SECTION 4.1 IN THE MANNER SET FORTH THEREIN.
UPON SUCH PAYMENT, THE
RELEASES, LICENSES AND COVENANTS AND ALL OTHER RIGHTS AND BENEFITS OF BOTH
PARTIES UNDER THIS SETTLEMENT AGREEMENT AND THE PATENT LICENSE AGREEMENT SHALL
BECOME FULLY EFFECTIVE.
5.4
FILING OF DISMISSAL.
WITHIN TWO (2) COURT
DAYS AFTER THE DATE OF PAYMENT AS DESCRIBED IN SECTION 5.3, POLYCOM SHALL CAUSE
ITS COUNSEL TO FILE THE EXECUTED STIPULATION AND ORDER DELIVERED PURSUANT TO
SECTION 5.2.
ARTICLE VI