Common use of Aerotel Litigation Clause in Contracts

Aerotel Litigation. GST, Seller, the Company and others are parties to the action identified as item 1 in Schedule 2.11 hereto (the "Aerotel Litigation"). Notwithstanding anything herein to the contrary, the following provisions shall be applicable with respect to the Aerotel Litigation from and after the Closing Date: (a) The firm of Madsxx & Xetcxxx ("X&M"), currently counsel to NACT, shall also become counsel to GST and Seller in the Aerotel Litigation. So long as the Aerotel Litigation is pending, each of the Company, GST and Seller shall waive any and all conflicts that may arise in the course of the representation of each, so that each may continue to be represented by M&M therein. In connection with the Aerotel Litigation, each of (i) the Company and (ii) GST and Seller (jointly and severally) shall be responsible for 50% of all of the reasonable attorneys' fees and expenses of M&M in its representation of the Company, and M&M shall bill xxx Company (on the one hand) and GST and Seller (on the other hand) for such fees and expenses in accordance therewith. (b) The aggregate Aerotel Damages (as hereinafter defined) shall be borne by the parties hereto in the following proportions: the Company - 50%; and GST and Seller jointly and severally - 50%. Notwithstanding anything to the contrary, the Company shall not be responsible for any fees or expenses of any counsel to either GST or Seller in connection with the Aerotel Litigation. (c) For the purposes hereof, "Aerotel Damages" shall mean the following required to be paid by the Company relating to the Aerotel Litigation: (i) reasonable attorneys' fees (including those incurred in the representation of Thomxx X. Xxxxxx xxx Kyle X. Xxxe by separate counsel) incurred in defending any claim or prosecuting any defense or counterclaim asserted in the Aerotel Litigation, including any and all appeals; (ii) in respect of all periods ending on or before the Determination Date (as hereinafter defined), all losses, liabilities, damages, demands, claims, suits, actions, judgments, causes of action, assessments, costs and expenses, including without limitation, interest, penalties, royalties, license fees, any and all reasonable expenses incurred in investigating, preparing or defending the Aerotel Litigation and amounts paid in settlement thereof; and (iii) in respect of the Post Determination Date Period (as hereinafter defined), (A) all royalties or license fees that are required to be paid pursuant to a license or royalty agreement entered into on a good faith basis subsequent to the Determination Date by the Company on behalf of itself and on behalf of purchasers of its products (to the extent not directly or indirectly passed on to such purchasers) for the use of intellectual property at issue in the Aerotel Litigation; (B) refunds required to be made to such purchasers pursuant to written agreements with such purchasers as a result of the Aerotel Litigation; and (C) costs of replacement or modification of

Aerotel Litigation. GST, Seller, the Company and others are parties to the action identified as item 1 in Schedule 2.11 hereto (the "Aerotel Litigation"). Notwithstanding anything herein to the contrary, the following provisions shall be applicable with respect to the Aerotel Litigation from and after the Closing Date: (a) The firm of Madsxx Madson & Xetcxxx Metcalf ("X&MM&M"), currently counsel to curxxxxxx coxxxxx xo NACT, shall also become counsel to GST and Seller in the Aerotel Litigation. So long as the Aerotel Litigation is pending, each of the Company, GST and Seller shall waive any and all conflicts that may arise in the course of the representation of each, so that each may continue to be represented by M&M therein. In connection with the Aerotel Litigation, each of (i) the Company and (ii) GST and Seller (jointly and severally) shall be responsible for 50% of all of the reasonable attorneys' fees and expenses of M&M in its representation of the Company, and M&M shall bill xxx the Company (on the one handxxxx) and GST and Seller (on the other hand) for such fees and expenses in accordance therewith. (b) The aggregate Aerotel Damages (as hereinafter defined) shall be borne by the parties hereto in the following proportions: the Company - 50%; and GST and Seller jointly and severally - 50%. Notwithstanding anything to the contrary, the Company shall not be responsible for any fees or expenses of any counsel to either GST or Seller in connection with the Aerotel Litigation. (c) For the purposes hereof, "Aerotel Damages" shall mean the following required to be paid by the Company relating to the Aerotel Litigation: (i) reasonable attorneys' fees (including those incurred in the representation of Thomxx X. Xxxxxx xxx Thomas E. Sawyer and Kyle X. Xxxe by separate counselB. Xxxx xx xxxxxxxx couxxxx) incurred xncurred in defending any claim or prosecuting any defense or counterclaim asserted in the Aerotel Litigation, including any and all appeals; (ii) in respect of all periods ending on or before the Determination Date (as hereinafter defined), all losses, liabilities, damages, demands, claims, suits, actions, judgments, causes of action, assessments, costs and expenses, including without limitation, interest, penalties, royalties, license fees, any and all reasonable expenses incurred in investigating, preparing or defending the Aerotel Litigation and amounts paid in settlement thereof; and (iii) in respect of the Post Determination Date Period (as hereinafter defined), (A) all royalties or license fees that are required to be paid pursuant to a license or royalty agreement entered into on a good faith basis subsequent to the Determination Date by the Company on behalf of itself and on behalf of purchasers of its products (to the extent not directly or indirectly passed on to such purchasers) for the use of intellectual property at issue in the Aerotel Litigation; (B) refunds required to be made to such purchasers pursuant to written agreements with such purchasers as a result of the Aerotel Litigation; and (C) costs of replacement or modification of