RECOMMEND THE CERTIFICATE AMENDMENT AND SUCH RECOMMENDATION
SHALL BE INCLUDED IN THE PROXY STATEMENT FILED WITH THE COMMISSION AND
DISSEMINATED TO COMPANY STOCKHOLDERS IN CONNECTION WITH SUCH STOCKHOLDERS
MEETING. THE "CERTIFICATE AMENDMENT" SHALL MEAN AN AMENDMENT TO THE CERTIFICATE
OF INCORPORATION THAT, AT THE SOLE DISCRETION OF THE PURCHASER, (I) WILL PROVIDE
THAT THE COMPANY EXPRESSLY ELECTS NOT TO BE GOVERNED BY SECTION 203 OF THE DGCL
AND/OR (II) WILL PROVIDE THAT EACH MEMBER OF THE BOARD OF DIRECTORS SHALL BE
ELECTED ANNUALLY FOR A ONE (1) YEAR TERM.
6.10
IMAGIFY PRODUCT.
(A)
FROM THE DATE HEREOF UNTIL
THE DATE THAT IS ONE (1) YEAR FOLLOWING THE CLOSING DATE (THE "IMAGIFY
RESTRICTION PERIOD"), THE COMPANY SHALL NOT SELL, LICENSE, PLEDGE, TRANSFER,
ASSIGN OR CONVEY ANY RIGHT OF THE COMPANY OR ITS SUBSIDIARIES RELATING TO THE
IMAGIFY PRODUCT IN THE TERRITORY (AS DEFINED IN THE IMAGIFY LICENSE), OR ENTER
INTO ANY CONTRACT RELATING TO ANY OF THE FOREGOING.
(B)
DURING THE IMAGIFY RESTRICTION PERIOD, THE
COMPANY SHALL, AT ITS SOLE EXPENSE, PAY ALL MAINTENANCE FEES, MAINTAIN THE
EXISTENCE AND PRESENT STATUS OF ANY EXISTING REGISTRATIONS, DILIGENTLY PROSECUTE
ALL PENDING APPLICATIONS FOR PATENTS INCLUDED WITHIN THE INTELLECTUAL PROPERTY
RELATING TO OR EMBODIED IN THE IMAGIFY PRODUCT, AND MAINTAIN THE EXISTENCE AND
STATUS, AS ISSUED, OF ANY PATENTS ISSUED PURSUANT TO ANY PENDING APPLICATIONS
FOR PATENTS INCLUDED WITHIN THE INTELLECTUAL PROPERTY RELATING TO OR EMBODIED IN
THE IMAGIFY PRODUCT NECESSARY TO MAKE, HAVE MADE, SELL, USE OR IMPORT THE
IMAGIFY PRODUCT.
IF THE COMPANY (I) FAILS TO PAY ANY APPLICABLE MAINTENANCE
FEES, (II) ELECTS NOT TO PROSECUTE ANY APPLICATIONS FOR REGISTRATION, OR
(III) OTHERWISE FAILS TO MAINTAIN ITS OWNERSHIP INTEREST IN ANY PATENT OR
APPLICATION INCLUDED WITHIN THE INTELLECTUAL PROPERTY RELATING TO OR EMBODIED IN
THE IMAGIFY PRODUCT, THEN IT SHALL PROMPTLY PROVIDE NOTICE THEREOF TO THE
PURCHASER AND, WITHOUT LIMITING THE PURCHASER'S OTHER RIGHTS HEREUNDER OR
OTHERWISE, THE PURCHASER SHALL THEN HAVE THE OPTION TO PAY THE FEE, OR PROSECUTE
OR MAINTAIN THE PATENT OR APPLICATION, THAT IS THE SUBJECT OF THE NOTICE.
DURING THE IMAGIFY RESTRICTION PERIOD, IF THE COMPANY BECOMES AWARE OF ANY
INFRINGEMENT OF THE INTELLECTUAL PROPERTY RELATING TO OR EMBODIED IN THE IMAGIFY
PRODUCT, OR ANY ASSERTION THAT THE IMAGIFY PRODUCT OR ANY PART THEREOF INFRINGES
OR VIOLATES THE INTELLECTUAL PROPERTY OF ANY OTHER PERSON, IT SHALL PROMPTLY
NOTIFY THE PURCHASER THEREOF.
THE COMPANY SHALL TAKE ALL REASONABLE ACTIONS, AT
ITS SOLE COST, TO ENFORCE THE INTELLECTUAL PROPERTY RELATING TO OR EMBODIED IN
THE IMAGIFY PRODUCT OR DEFEND THE IMAGIFY PRODUCT, AS THE CASE MAY BE, AND THE
COMPANY SHALL BE ENTITLED TO RETAIN ALL DAMAGES OBTAINED AS A RESULT THEREOF;
PROVIDED, HOWEVER, THAT THE COMPANY SHALL NOT SETTLE ANY SUCH ENFORCEMENT OR
DEFENSE PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF THE PURCHASER, WHICH
CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
THE COMPANY SHALL KEEP THE
PURCHASER
*CONFIDENTIAL TREATMENT REQUESTED
42
REASONABLY INFORMED OF ANY ACTIONS OR SUITS UNDER THIS SECTION 6.10(B).
THE
PURCHASER SHALL HAVE THE