filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.
18
CUMULATIVE CAP AS DESCRIBED IN PARAGRAPH 3.4 ABOVE.
ANY RECOVERY OF DAMAGES BY
COMPANY FOR EACH SUCH SUIT SHALL BE APPLIED FIRST IN SATISFACTION OF ANY
UNREIMBURSED DEFENSE COSTS OF COMPANY RELATING TO SUCH LEGAL ACTION (AND WHICH
SHALL BE APPLIED TO REINSTATE THE CUMULATIVE CAP BY AN EQUIVALENT AMOUNT) AND
NEXT TOWARD REIMBURSEMENT OF JHU FOR ANY ANNUAL FEE AMOUNTS TO WHICH JHU WOULD
BE ENTITLED UNDER PARAGRAPH 3.4 OF THIS AGREEMENT.
4.10
SUBLICENSE OF INFRINGERS.
COMPANY SHALL DURING THE TERM OF THIS
AGREEMENT HAVE THE SOLE RIGHT SUBJECT TO THE TERMS AND CONDITIONS HEREOF TO
SUBLICENSE ANY ALLEGED INFRINGER UNDER THE PATENT RIGHTS, SUBJECT, HOWEVER, TO
THE PROVISIONS OF PARAGRAPH 2.2 HEREOF.
4.11
CURRENT PATENT EXPENSES.
WITHIN THIRTY (30) DAYS AFTER THE
EXECUTION OF THIS AGREEMENT, EXACT WILL MAKE PAYMENT TO JHU IN THE AMOUNT OF
TWENTY-THOUSAND DOLLARS ($20,000.00) FOR ALL PREVIOUSLY UNREIMBURSED COSTS AND
EXPENSES INCURRED BY JHU ON OR PRIOR TO THE EFFECTIVE DATE IN CONNECTION WITH
THE PROSECUTION, FILING OR MAINTENANCE OF THE PATENT RIGHTS.
ARTICLE 5
OBLIGATIONS OF THE PARTIES
5.1
REPORTS.
COMPANY SHALL PROVIDE TO JHU WITHIN THIRTY (30) DAYS
AFTER THE END OF EACH MARCH 31ST, JUNE 30TH, SEPTEMBER 30TH AND DECEMBER 31ST
FOLLOWING THE EFFECTIVE DATE OF THIS AGREEMENT, A WRITTEN REPORT AS RESPECTS THE
PRECEDING THREE (3) MONTH PERIOD PROVIDING DETAIL REASONABLY SATISFACTORY TO JHU
TO CAPTURE THE AMOUNTS DUE JHU HEREUNDER.
JHU AND COMPANY WILL WORK TOGETHER TO
PUT IN PLACE A REPORTING STRUCTURE THAT IS MUTUALLY ACCEPTABLE TO THE PARTIES
AND EACH PARTY AGREES TO WORK WITH THE OTHER TO MODIFY THE REPORTING STRUCTURE,
FROM TIME TO TIME, AS NECESSARY TO BETTER MEET THE REPORTING REQUIREMENTS OF THE
PARTIES HEREUNDER.
In addition, EXACT shall provide such other and additional information, data and
reports as may be reasonably necessary in order to allow for a full
determination by JHU of the sums due and owing to JHU hereunder.
5.2
RECORDS.
COMPANY SHALL MAKE AND RETAIN, FOR A PERIOD OF THREE
(3) YEARS FOLLOWING THE PERIOD OF EACH REPORT REQUIRED BY PARAGRAPH 5.1, TRUE
AND ACCURATE RECORDS, FILES AND BOOKS OF ACCOUNT CONTAINING ALL DATA AND
INFORMATION REASONABLY REQUIRED FOR FULL DETERMINATION OF THE INFORMATION
REQUIRED IN PARAGRAPH 5.1 ABOVE.
COMPANY SHALL PERMIT THE INSPECTION AND
COPYING OF SUCH RECORDS, FILES AND BOOKS OF ACCOUNT BY JHU OR ITS AGENTS DURING
REGULAR BUSINESS HOURS UPON TEN (10) BUSINESS DAYS WRITTEN NOTICE TO COMPANY.
ABSENT REASONABLY SUFFICIENT AND ARTICULABLE REASON THEREFOR, SUCH INSPECTION
SHALL NOT BE MADE MORE THAN ONCE EACH CALENDAR YEAR.
ALL COSTS OF SUCH
INSPECTION AND COPYING SHALL BE PAID BY JHU, PROVIDED THAT IF ANY SUCH
INSPECTION SHALL REVEAL THAT AN ERROR HAS BEEN MADE IN THE AMOUNT EQUAL TO
[********] OR MORE OF SUCH PAYMENT, SUCH COSTS SHALL BE BORNE BY COMPANY.
INSOFAR AS IS NECESSARY TO ALLOW