BENEFIT OF A FILING DATE BEFORE, ON, OR WITHIN
TEN (10) YEARS AFTER THE EFFECTIVE DATE THAT ARE OWNED OR LICENSABLE BY CPI,
AVISTAR, OR ANY OF THEIR SUBSIDIARIES WITHOUT THE BONA FIDE PAYMENT OF ROYALTIES
TO AN UNAFFILIATED THIRD PARTY.
1.5
"DISPUTES" SHALL MEAN ANY ACTION, DISPUTE,
CLAIM OR CONTROVERSY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ISSUES OF
PATENT INFRINGEMENT AND CLAIM COVERAGE, WHETHER IN CONTRACT OR TORT, STATUTORY
OR COMMON LAW, LEGAL OR EQUITABLE, NOW EXISTING OR HEREAFTER ARISING BETWEEN THE
PARTIES.
1.6
"EXISTING PRODUCTS" SHALL MEAN PRODUCTS,
COMPUTER SOFTWARE, METHODS AND ARTICLES OF MANUFACTURE THAT, AS OF THE EFFECTIVE
DATE, EITHER (I) HAVE BEEN MADE COMMERCIALLY AVAILABLE BY A PARTY OR ITS
SUBSIDIARY; (II) ARE UNDER SUBSTANTIAL DEVELOPMENT BY A PARTY OR ITS SUBSIDIARY
AND ARE MADE COMMERCIALLY AVAILABLE WITHIN TWELVE (12) MONTHS AFTER THE
EFFECTIVE DATE; OR (III) ARE BUG FIXES OR ERROR CORRECTIONS TO PRODUCTS
DESCRIBED IN SUBSECTION (I) OR (II) ABOVE.
FOR THE AVOIDANCE OF DOUBT, EXISTING
PRODUCTS INCLUDE THIRD PARTY PRODUCTS MADE COMMERCIALLY AVAILABLE BY A PARTY OR
ITS SUBSIDIARY THAT MEET (I) OR (II) ABOVE.
1.7
"FOLLOW ON PRODUCTS" SHALL MEAN LICENSED
PRODUCTS (REGARDLESS OF PRODUCT NAME) THAT ARE NATURAL EXTENSIONS, ENHANCEMENTS,
NEW RELEASES, UPDATES OR NEW VERSIONS OF EXISTING PRODUCTS, IN ALL CASES
PRIMARILY AND IN SUBSTANTIAL PART BASED ON EXISTING PRODUCTS.
1.8
"LAWSUITS" SHALL MEAN (I) COLLABORATION
PROPERTIES, INC. VS. TANDBERG ASA AND TANDBERG, INC.
(UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA; CIV. ACTION NO. 05-1940 (MHP))
AND (II) TANDBERG TELECOM AS V. AVISTAR COMMUNICATIONS CORP. (UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS; CIV. ACTION NO.
2:06-CV-0040-TJW).
1.9
"LICENSED PATENTS" SHALL MEAN THE CPI
LICENSED PATENTS AND TANDBERG LICENSED PATENTS.
1.10
"LICENSED PRODUCTS" SHALL MEAN THE AVISTAR
LICENSED PRODUCTS AND TANDBERG LICENSED PRODUCTS.
1.11
"MATERIAL BUSINESS UNIT" SHALL MEAN A MATERIAL
AND SUBSTANTIAL BUSINESS UNIT THAT HAS, AMONG OTHER THINGS, ALL OF THE
FOLLOWING: (I) ALL OF THE PRODUCTS FOR ONE OR MORE MARKET SEGMENTS, INCLUDING AT
LEAST ONE LINE OF COMMERCIALLY AVAILABLE PRODUCTS; (II) KEY EMPLOYEES WHO
DEVELOP SUCH PRODUCTS; (III) PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS
RELATING TO SUCH PRODUCTS; AND (IV) TANGIBLE ASSETS
[***] Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed pursuant to Rule 24-b-2 promulgated under the
Securities Exchange Act of 1934, as amended, and the omitteed portions
represented by [***] have been separately filed with the Securities and Exchange
Commission.
3
RELATED TO SUCH PRODUCTS.
A TRANSACTION INVOLVING A MATERIAL BUSINESS UNIT AS
DESCRIBED HEREIN MAY BE AN ASSET SALE (IN WHICH CASE SECTION 9.3(A) APPLIES) OR
MAY BE BY DIVESTITURE OF A SUBSIDIARY (IN WHICH CASE SECTION 9.2(C) APPLIES).
1.12
"PERSON" SHALL MEAN AN INDIVIDUAL, CORPORATION,
PARTNERSHIP, ASSOCIATION, TRUST, INCORPORATED ORGANIZATION, GOVERNMENTAL
AUTHORITY, OTHER ENTITY OR GROUP (AS DEFINED IN SECTION 13(D)(3) OF THE UNITED
STATES SECURITIES EXCHANGE ACT OF 1934, AS AMENDED AS OF THE EFFECTIVE DATE).
1.13
"SUBSIDIARY" MEANS, WITH RESPECT TO A GIVEN PARTY
OR PERSON