SUCH DISPUTE SHALL BE RESOLVED BY BINDING ARBITRATION IN SAN
FRANCISCO, CALIFORNIA BEFORE THREE (3) ARBITRATORS IN ACCORDANCE WITH THE
RULES OF THE INTERNATIONAL CHAMBER OF COMMERCE ("ICC") IN EFFECT AS OF THE
EFFECTIVE DATE OF THIS AGREEMENT. THE PARTIES, THEIR REPRESENTATIVES, OTHER
PARTICIPANTS AND ARBITRATORS SHALL HOLD THE EXISTENCE, CONTENT AND RESULT OF
ARBITRATION IN CONFIDENCE, EXCEPT AS OTHERWISE REQUIRED OR ADVISABLE IN
CONNECTION WITH SECURITIES FILINGS OR OTHERWISE REQUIRED BY LAW. THE AWARD OF
THE ARBITRATORS MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THIS
SECTION 6.6 SHALL NOT BE CONSTRUED AS RESTRICTING OR LIMITING EITHER PARTY'S
ABILITY TO IMMEDIATELY ASSERT A LICENSE OR OTHER DEFENSE IN ANY LITIGATION OR
OTHER PROCEEDING AGAINST SUCH PARTY, SUCH PARTY'S SUBSIDIARIES, OR ITS OR THEIR
PRODUCTS OR THE RESELLERS, DISTRIBUTORS OR CUSTOMERS OF SUCH PRODUCTS,
REGARDLESS OF JURISDICTION OR VENUE.
[***]
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed pursuant to Rule 24b-2 promulgated under the
Securities Exchange Act of 1934, as amended, and the omitted portions
represented by [***] have been separately filed with the Securities and Exchange
Commission.
13
6.7
BANKRUPTCY. EACH PARTY ACKNOWLEDGES THAT ALL
RIGHTS AND LICENSES GRANTED BY IT UNDER OR PURSUANT TO THIS AGREEMENT ARE, AND
SHALL OTHERWISE BE DEEMED TO BE, FOR PURPOSES OF SECTION 365(N) OF THE UNITED
STATES BANKRUPTCY CODE (THE "BANKRUPTCY CODE"), LICENSES OF RIGHTS TO
"INTELLECTUAL PROPERTY" AS DEFINED UNDER SECTION 101(56) OF THE BANKRUPTCY CODE.
EACH PARTY ACKNOWLEDGES THAT IF SUCH PARTY, AS A DEBTOR IN POSSESSION OR A
TRUSTEE-IN-BANKRUPTCY IN A CASE UNDER THE BANKRUPTCY CODE, REJECTS THIS
AGREEMENT, THE OTHER PARTY MAY ELECT TO RETAIN ITS RIGHTS UNDER THIS AGREEMENT
AS PROVIDED IN SECTION 365(N) OF THE BANKRUPTCY CODE. EACH PARTY IRREVOCABLY
WAIVES ALL ARGUMENTS AND DEFENSES ARISING UNDER 11 U.S.C. 365(C)(1) OR SUCCESSOR
PROVISIONS TO THE EFFECT THAT APPLICABLE LAW EXCUSES THE PARTY, OTHER THAN THE
DEBTOR, FROM ACCEPTING PERFORMANCE FROM OR RENDERING PERFORMANCE TO AN ENTITY
OTHER THAN THE DEBTOR OR DEBTOR IN POSSESSION AS A BASIS FOR OPPOSING ASSUMPTION
OF THE AGREEMENTS BY THE OTHER PARTY IN A CASE UNDER CHAPTER 11 OF THE
BANKRUPTCY CODE TO THE EXTENT THAT SUCH CONSENT IS REQUIRED UNDER 11 U.S.C.
§ 365(C)(1) OR ANY SUCCESSOR STATUTE; PROVIDED, HOWEVER, THAT THE DEBTOR IN
POSSESSION, OR TRUSTEE-IN-BANKRUPTCY AGREES IN WRITING THAT ANY CHANGE OF
CONTROL (WHETHER RESULTING FROM SUCH BANKRUPTCY PROCEEDING OR OTHERWISE) SHALL
REMAIN SUBJECT TO ARTICLE IV ABOVE. IN THE EVENT THAT A PARTY LIQUIDATES, WINDS
UP OR OTHERWISE CEASES TO CONDUCT BUSINESS IN THE ORDINARY COURSE, THEN THE
LICENSES GRANTED TO SUCH PARTY UNDER THIS AGREEMENT SHALL TERMINATE AND THE
LICENSES GRANTED TO THE OTHER PARTY SHALL REMAIN IN EFFECT WITHOUT LIMITATION.
6.8
SEVERABILITY. IF ANY PROVISION OF THIS
AGREEMENT IS HELD TO BE ILLEGAL OR UNENFORCEABLE, SUCH PROVISION SHALL BE
LIMITED OR ELIMINATED TO THE MINIMUM EXTENT NECESSARY SO THAT THE REMAINDER OF
THIS AGREEMENT WILL CONTINUE IN FULL FORCE AND EFFECT AND BE ENFORCEABLE.