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PATENT AND TECHNOLOGY LICENSE AGREEMENT by and among LUCENT TECHNOLOGIES INC. LUCENT TECHNOLOGIES GRL CORP. LUCENT TECHNOLOGIES GUARDIAN I CORP. LUCENT TECHNOLOGIES OPTICAL NETWORKING GUARDIAN CORP. LUCENT TECHNOLOGIES WIRELESS GUARDIAN CORP. LUCENT TECHNOLOGIES FIBER GUARDIAN CORP. AGERE SYSTEMS INC. AGERE SYSTEMS GUARDIAN CORP. and AGERE SYSTEMS OPTOELECTRONICS GUARDIAN CORP. Dated as of February 1, 2001 PATENT AND TECHNOLOGY LICENSE AGREEMENT THIS PATENT AND TECHNOLOGY LICENSE AGREEMENT (this “Agreement”), effective as of February 1, 2001 (the “Effective Date”), is by and among Lucent Technologies Inc., a Delaware corporation, with offices at 600 Mountain Avenue, Murray Hill, New Jersey 07974 (“Lucent”), Lucent Technologies GRL Corporation, a Delaware corporation, having an office at Suite 105, 14645 N.W. 77th Avenue, Miami Lakes, Florida 33014 (“GRL”), Lucent Technologies Guardian I Corp., a Delaware corporation having an office at Suite 105, 14645 N.W. 77th Avenue, Miami Lakes, Florida 33014 (“Lucent Guardian”), Lucent Technologies Optical Networking Guardian Corp., a Delaware corporation having an office at Suite 105, 14645 N.W. 77th Avenue, Miami Lakes, Florida 33014 (“Lucent Optical Networking Guardian”), Lucent Technologies Wireless Guardian Corp., a Delaware corporation having an office at Suite 105, 14645 N.W. 77th Avenue, Miami Lakes, Florida 33014 (“Lucent Wireless Guardian”), Lucent Technologies Fiber Guardian Corp., a Delaware corporation having an office at Suite 105, 14645 N.W. 77th Avenue, Miami Lakes, Florida 33014 (“Lucent Fiber Guardian”), Agere Systems Inc., a Delaware corporation, with offices at 555 Union Boulevard, Allentown, PA 18109 (“Agere”), Agere Systems Guardian Corp., a Delaware corporation, with offices at Suite 105, 14645 N.W. 77th Avenue, Miami Lakes, Florida 33014, United States of America (“Agere Guardian”), and Agere Systems Optoelectronics Guardian Corp., a Delaware corporation, with offices at Suite 105, 14645 N.W. 77th Avenue, Miami Lakes, Florida 33014, United States of America (“Agere Optoelectronics Guardian”). RECITALS A. WHEREAS, the Board of Directors of Lucent has determined that it is in the best interests of Lucent and its stockholders to separate Lucent’s existing businesses into two independent businesses; B. WHEREAS, Agere and certain Agere Subsidiaries desire to receive and Lucent and certain Lucent Subsidiaries are willing to grant to Agere and such Agere Subsidiaries certain rights to use patents and technology retained and owned by Lucent and such Lucent Subsidiaries on or after the Effective Date; and C. WHEREAS, Lucent and certain Lucent Subsidiaries desire to receive and Agere and certain Agere Subsidiaries are willing to grant to Lucent and such Lucent Subsidiaries certain rights to use patents and technology which are owned by Agere and such Agere Subsidiaries on or after the Effective Date. NOW, THEREFORE, in consideration of the promises herein and for other good and valid consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows: ARTICLE I DEFINITIONS For the purposes of this Agreement, in addition to the words and phrases that are defined throughout the body of this Agreement, the following words and phrases shall have the following meanings: AGERE BUSINESS shall have the meaning set forth in the Separation and Distribution Agreement. AGERE DEVELOPMENTS AND PRODUCT REALIZATION TECHNOLOGY means any and all portions of Agere Technology listed in the attached Exhibit B. AGERE GUARDIAN’S PATENTS means every patent including any reissues or reexaminations thereof (an including utility models but excluding design patents and design registrations) issued in any country of the world, which is owned or controlled by Agere Guardian or any of its Related Companies and issued on, or claiming priority from, an application filed in any country of the world prior to February 1, 2003, with respect to which and to the extent that Agere Guardian or any of its Related Companies has a right, as of the Effective Date or thereafter, to grant the licenses granted herein. It is understood and agreed that Agere Guardian’s Patents are intended to include all patents assigned to Agere Guardian or Agere Optoelectronics Guardian by assignment from Lucent Technologies Inc. dated January 30, 2001. AGERE RESTRICTED JOINT CORPORATE TECHNOLOGY means the technology listed on Exhibit G. AGERE TECHNOLOGY means any and all portions of Corporation Technology existing as of the Effective Date which were developed by or for, or purchased by the Agere Business. The term includes Licensed Agere Technology, and Agere Developments and Product Realization Technology, but shall not include Lucent Technology, Common Support Function Software or Corporate Technology. CHANGE OF CONTROL of any Person means any of the following: (a) the consummation of a merger, consolidation, or similar business combination involving such Person and the securities of such Person that are outstanding immediately prior to such transaction and which represent 100% of the combined voting power of the then outstanding voting securities of such Person entitled to vote generally in the election of directors (“Voting Securities”) are changed into or exchanged for cash, securities or property, unless pursuant to such transaction such securities are changed into or exchanged for, in addition to any other consideration, securities of the surviving Person or transferee that represent immediately after such transaction, at least a majority of the combined voting power of the Voting Securities of the surviving Person or transferee; (b) a sale or other disposition of all or substantially all of the assets of such Person; (c) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under such Act) of 40% or more of the combined voting power of the then outstanding Voting Securities; or (d) individuals who, as of the Distribution Date, constitute the Board of Directors of such Person (the “Incumbent Board”) cease for any reason to constitute at least a majority of such Board; provided, however, that any individual becoming a director subsequent to the Distribution Date (other than any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of any Person other than the Board) whose election or nomination for election by the stockholders of such Person was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board. COMMON SUPPORT FUNCTION SOFTWARE means those computer programs in source and object code forms, including their respective associated documentation, listed on Schedule B of the Technology Assignment and Joint Ownership Agreement. COPYRIGHTS mean any rights in original works of authorship fixed in any tangible medium of expression as set forth in 17 U.S.C.Section 101 et. seq. CORPORATE TECHNOLOGY means any and all portions of Corporation Technology other than Lucent Technology, Agere Technology, and Common Support Function Software. The term includes, but is not limited to, basic research. CORPORATION TECHNOLOGY means any and all Technology existing as of the Distribution Date which is owned by, and was developed by or for, or purchased by Lucent or its Subsidiaries, including any of its business units and divisions. The term includes any and all Technology owned or controlled by any of Lucent’s Subsidiaries under which Lucent has the right to grant any of the right-to-use licenses of the type and on the terms herein granted. DISTRIBUTION DATE shall have the meaning defined in the Separation and Distribution Agreement. GOVERNMENTAL AUTHORITY means any federal, state, local, foreign or international court, government, department, commission, board, bureau, agency, official or other regulatory, administrative or governmental authority. GRL’S PATENTS means every patent including any reissues or reexaminations thereof (an including utility models but excluding design patents and design registrations) issued in any country of the world, which is owned or controlled by GRL or any of its Related Companies and issued on, or claiming priority from, an application filed in any country of the world prior to February 1, 2003, with respect to which and to the extent that GRL or any of its Related Companies has a right, as of the Effective Date or thereafter, to grant the licenses granted herein. Notwithstanding the foregoing, the term GRL’s Patents does not include Agere Guardian’s Patents. JOINT CORPORATE TECHNOLOGY means those portions of Corporate Technology listed on Schedule C of the Technology Assignment and Joint Ownership Agreement. LICENSED AGERE TECHNOLOGY means those items of Agere Technology listed in the attached Exhibit A. LICENSED CORPORATE TECHNOLOGY means those portions of Corporate Technology listed in the attached Exhibit C. LICENSED LUCENT TECHNOLOGY means those items of Lucent Technology listed in the attached Exhibit D. LICENSED TECHNOLOGY, as to Lucent, means Licensed Agere Technology, and as to Agere, means Licensed Lucent Technology or Licensed Corporate Technology. LUCENT BUSINESS shall have the meaning set forth in the Separation and Distribution Agreement. LUCENT DEVELOPMENTS AND PRODUCT REALIZATION TECHNOLOGY means those items of Lucent Technology listed in the attached Exhibit E. LUCENT RESTRICTED JOINT CORPORATE TECHNOLOGY means the technology listed on Exhibit H. LUCENT TECHNOLOGY means any and all portions of Corporation Technology existing as of the Effective Date, which were developed by or for, or purchased by the Lucent Business. The term includes Licensed Lucent Technology, and Lucent Developments and Product Realization Technology, but shall not include Agere Technology, Common Support Function Software or Corporate Technology. MASK WORKS means any mask work, registered or unregistered, as defined in 17 U.S.C.Section 901. PERSON shall have the meaning set forth in the Separation and Distribution Agreement. RELATED COMPANIES means (i) with respect to GRL, the following: Lucent, Subsidiaries of either GRL or Lucent (only for so long as they remain Subsidiaries), (ii) with respect to Lucent, the following: Subsidiaries of Lucent, only for so long as they remain Subsidiaries, (iii) with respect to Agere Guardian, the following: Agere, and Subsidiaries of either Agere Guardian or Agere (only for so long as they remain Subsidiaries), and (iv) with respect to Agere, the following: Subsidiaries of Agere, only for so long as they remain Subsidiaries, and any other company so designated and agreed to in a writing signed by the relevant parties. Solely for purposes of this definition, Agere and its Subsidiaries shall be deemed not to be Related Companies or Subsidiaries of Lucent. RESTRICTED JOINT CORPORATE TECHNOLOGY means the trade secrets, know how, and computer programs (in source and object code forms), listed in the attached Exhibit F. SEPARATION AND DISTRIBUTION AGREEMENT shall mean the Separation and Distribution Agreement dated as of February 1, 2001, by and between Lucent and Agere. SUBSIDIARY of a company means a corporation or other legal entity (i) the majority of whose shares or other securities entitled to vote for election of directors (or other managing authority) is now or hereafter controlled by such company either directly or indirectly; or (ii) which does not have outstanding shares or securities but the majority of whose ownership interest representing the right to manage such corporation or other legal entity is now or hereafter owned and controlled by such company either directly or indirectly; but any such corporation or other legal entity shall be deemed to be a Subsidiary of such company only as long as such control or ownership and control exists. TECHNOLOGY means any and all technical information, computer or other apparatus programs, specifications, drawings, records, documentation, works of authorship or other creative works, ideas, knowledge or data. The term Technology includes Copyrights, Mask Works and any other intellectual property right, but does not include any trademark, trade name, trade dress or service mark, or any patent applications on inventions, discoveries or improvements, or any patents that may be granted or have been granted thereon. TECHNOLOGY ASSIGNMENT AND JOINT OWNERSHIP AGREEMENT shall mean the Technology Assignment and Joint Ownership Agreement dated as of January 31, 2001, by and between Lucent and Agere. ARTICLE II ACCESS AND USE OF LICENSED TECHNOLOGY 2.1 ACCESS TO LICENSED TECHNOLOGY. During a period beginning on the Effective Date and ending on December 31, 2001, each party shall have the rightto access and to copy any and all portions of the Licensed Technology inpossession of the other party. Such access and copying shall be in accordancewith a reasonable request and schedule to be mutually agreed upon between theparty in possession of the Licensed Technology that is requested and therequesting party. All costs associated with the assembling, copying anddelivering of such Licensed Technology shall be borne by the requesting party. 2.2 EXPORT CONTROL. The parties acknowledge that any software andtechnical information provided under this Agreement are subject to U.S. exportlaws and regulations and any use or transfer of such software and technicalinformation must be authorized under those laws and regulations. The partiesagree that they will not use, distribute, transfer, or transmit the software or technical information (even ifincorporated into other products) except in compliance with U.S. exportregulations. If requested by another party, each party also agrees to signwritten assurances and other export-related documents as may be required for theother party to comply with U.S. export regulations. 2.3 LUCENT’S RIGHTS TO USE LICENSED AGERE TECHNOLOGY. (a) Subject to therestrictions specified in this Section 2.3 and any additional restrictions setforth in the Exhibits hereto, Lucent and its Related Companies shall each have apersonal, worldwide, nonexclusive, royalty-free, and non-transferable right touse the Licensed Agere Technology for the businesses in which Lucent or any ofits Related Companies are now or hereafter engaged. (b) Lucent’s right to use includes the right of Lucent and its RelatedCompanies to copy, modify and improve any portion of the Licensed AgereTechnology. No right is granted hereunder to Lucent or its Related Companies tosublicense any of the Licensed Agere Technology to any third party, other thanthe sublicensing of software in object code form in connection with the sale ofLucent products or services. (c) In addition to the rights granted to Lucent and its Related Companiesunder Section 2.3(a), Lucent and its Related Companies shall have a personal,worldwide, nonexclusive, royalty-free and non-transferable limited right tocontinue to use any Agere Technology and any related or derivative technologygenerated by use of such technology, that was used prior to July 20, 2000 in thedesign or manufacture of any products (hereinafter “Existing Products”) thatLucent offered for sale to customers other than Agere. Such continued use shallbe limited, however, to use by Lucent in connection with the manufacture byLucent of products that are the same as, or are substantially derived from,Existing Products. For the purposes of this Section 2.3(c), Agere Technology andany related or derivative technology generated by use of such technology, shallnot be deemed to have been used solely as a result of the incorporation, priorto July 20, 2000, of components or other products obtained from Agere, intoExisting Products, and shall in no circumstances include Agere CMBH processingtechnology listed on Exhibit A. (d) Except as provided in Section 2.3(c), neither Lucent nor any of itsRelated Companies shall have the right to access, copy or use, in whole or inpart, for any purpose, any Agere Developments and Product Realization Technologywithout the prior written consent of Agere. 2.4 AGERE’S RIGHTS TO USE LICENSED LUCENT TECHNOLOGY AND LICENSEDCORPORATE TECHNOLOGY. (a) Subject to the restrictions specified in this Section2.4 and any additional restrictions set forth in the Exhibits hereto, Agere andits Related Companies shall each have a personal, worldwide, nonexclusive,royalty-free and non-transferable right to use the Licensed Lucent Technologyand the Licensed Corporate Technology for the businesses in which Agere or anyof its Related Companies are now or hereafter engaged. (b) Agere’s right to use includes the right of Agere and its RelatedCompanies to copy, modify and improve any portion of Licensed Lucent Technologyand the Licensed Corporate Technology. No right is granted hereunder to Agere orits Related Companies to sublicense any of Licensed Lucent Technology orLicensed Corporate Technology to any third party, other than the sublicensing ofsoftware in object code form in connection with the sale of Agere products orservices. (c) Agere and its Related Companies shall have a personal, worldwide,nonexclusive, royalty-free and non-transferable limited right to use LucentTechnology and any mask works, mask sets, macro cells, and the like generated byuse of such technology, for the purpose of designing, manufacturing and sellingproducts to Lucent or to a party designated in writing by Lucent. (d) In addition to the rights granted to Agere and its Related Companiesunder Section 2.4(a), Agere and its Related Companies shall have a personal,worldwide, nonexclusive, royalty-free and non-transferable limited right tocontinue to use any Lucent Technology and any mask works, mask sets, macrocells, and the like generated by use of such technology, that was used prior toJuly 20, 2000 in the design or manufacture of any products (hereinafter”Existing Products”) that Agere offered for sale to customers other than Lucent.Such continued use shall be limited, however, to use by Agere in connection withthe manufacture by Agere of products that are the same as, or are substantiallyderived from, Existing Products. For the purposes of this Section 2.4(d), LucentTechnology and any mask works, mask sets, macro cells, and the like generated byuse of such technology, shall not be deemed to have been used solely as a resultof the incorporation, prior to July 20, 2000, of components or other productsobtained from Lucent, into Existing Products. (e) Except as provided in Sections 2.4(c) and 2.4(d), neither Agere norany of its Related Companies shall have the right to access, copy or use, inwhole or in part, for any purpose, without the prior written consent of Lucent,any Lucent Developments and Product Realization Technology. 2.5 PROCUREMENT. (a) As an attribute to each party’s rights to useLicensed Technology, and subject to the restrictions specified in Sections 2.3and 2.4, each party may disclose to any of its suppliers, prospective suppliersor third party joint developers (under appropriate joint development agreements)only those portions of Licensed Technology that are reasonably necessary for theprocurement by such party of components, subsystems, subassemblies, productsand/or services of the businesses of such party. (b) Each party agrees that it will not make any portion of LicensedTechnology available to any such supplier, prospective supplier, or jointdeveloper except under terms and conditions (including confidentiality, use anddisclosure restrictions) normally used by such party to protect its ownproprietary information of a similar nature. (c) The procurement rights granted hereunder to each one of the partiesunder this Section 2.5 shall not be exercised by one party in a manner such thatthe exercise of such one party’s procurement rights is a sham to effect thelicensing of another party’s Licensed Technology or any portion thereof, to athird party and not for bona fide business purposes of such one party. (d) Each party agrees that prior to the disclosure of any portion ofLicensed Technology under this Section 2.5, all extraneous proprietaryinformation of the other parties shall be expunged. ARTICLE IIIPATENT LICENSES 3.1 GRANTS TO AGERE. (a) GRL grants to Agere and Agere Guardian, underGRL’s Patents, worldwide, personal, nonexclusive, and non-transferable licensesto make, have made (subject to 3.1(b)), use, lease, sell, offer for sale andimport any and all products and services of the businesses in which Agere orAgere Guardian, or any of their Related Companies is now or hereafter engaged. (b) The right of Agere and Agere Guardian to have product made pursuant tothis Agreement is not limited to products custom designed by or for Agere andAgere Guardian. Such “have made” rights shall include the right to have “off theshelf” products made for or procured by Agere and Agere Guardian. The “havemade” rights shall not be exercised by Agere and Agere Guardian in a manner suchthat the exercise of those rights is a sham to sublicense GRL’s Patents to athird party. (c) GRL hereby further grants to Agere a sublicense under any and allpatent license rights, with respect to which GRL has received from any thirdparty pursuant to any license agreement a right to sublicense (but only to theextent that GRL has a right to grant such a sublicense without payment ofroyalties, loss of rights or imposition of a penalty), to make, have made, use,lease, offer to sell, sell, and import any and all products and services. To theextent that GRL’s right to grant sublicenses to divested entities under anylicense agreement is limited to a grant made within a specified time period withrespect to a divestiture, then the sublicenses granted to Agere under thisSection 3.1(c) shall be deemed to have occurred at the earliest date permittedin such license agreement. 3.2 GRANTS TO LUCENT. (a) Agere Guardian grants to Lucent and GRL, underAgere Guardian’s Patents, worldwide, personal, nonexclusive, andnon-transferable licenses to make, have made (subject to 3.2(b)), use, lease,sell, offer for sale and import any and all products and services of thebusinesses in which Lucent and GRL or any of their Related Companies is now orhereafter engaged. (b) The right of Lucent and GRL to have product made pursuant to thisAgreement is not limited to products custom designed by or for Lucent and GRL.Such “have made” rights shall include the right to have “off the shelf” products madefor or procured by Lucent and GRL. The “have made” rights shall not be exercisedby Lucent and GRL in a manner such that the exercise of those rights is a shamto sublicense Agere Guardian’s Patents to a third party. 3.3 DURATION AND EXTENT OF LICENSES. Subject to Article VIII, all licensesgranted herein as to any party’s patents shall continue for the entire unexpiredterm of such patents. 3.4 SCOPE OF LICENSES. (a) The licenses granted herein include licenses toconvey to any customer of the grantee, with respect to any licensed productwhich is sold or leased by such grantee to such customer, rights to use andresell such licensed product as sold or leased by such grantee (whether or notas part of a larger combination); provided, however, that no rights may beconveyed to customers with respect to any invention which is directed to (1) acombination of such licensed products(s) (as sold or leased) with any otherproduct that is not a licensed product, (2) a method or process other than amethod or process the inventive steps of which are implemented primarily by thelicensed product(s) in the operation of such licensed products(s) or (3) amethod or process involving the use of a licensed product to manufacture anyother product and to test any such manufactured product. (b) For a period of three (3) years after the Effective Date, the scope ofthe licenses granted to Agere and Agere Guardian as defined in Section 3.4(a)shall further include, in addition to the rights granted hereinabove withrespect to a licensed product sold to a customer of Agere, the rights to conveyto that customer, a license under only (i) U.S. Patent 4,582,956 issued toDoughty, and (ii) those of GRL’s Patents with respect to which at least oneinventor named on the patent was an employee of the Microelectronics orOptoelectronics business unit of Lucent at the time the invention was made, withrespect to an invention which is directed to a combination of such licensedproduct(s) (as sold or leased) with any other product that is not a licensedproduct, provided that the licensed product(s) embodies a substantial andsignificant portion of the invention, and further provided that the customer isnot already licensed by Lucent or GRL with respect to such invention. Afterthree (3) years from the Effective Date, Agere and Agere Guardian shall have nofurther right to convey to customers rights and licenses permitted to beconveyed pursuant to this Section 3.4(b). (c) Licenses granted herein are not to be construed: (i) as consent by thegrantor to any act which may be performed by the grantee, except to the extentimpacted by a patent licensed herein to the grantee, (ii) except as otherwisespecifically provided under Section 3.4(a) or 3.4(b), a waiver of a party’s (orany of its Related Companies’) rights against any third party with respect toany infringement or (iii) to include licenses to contributorily infringe orinduce infringement under U.S. law or a foreign equivalent thereof (collectively”Indirect Infringement”). Notwithstanding the foregoing sentence, each partyagrees for itself and its Related Companies licensed hereunder that they willnot bring suit or otherwise exercise any of their remedies under theirrespective licensed patents (i.e., GRL’s Patents and Agere Guardian’s Patents,as the case may be) against the other party or its Related Companies licensed hereunder, for IndirectInfringement. However, the parties agree that all remedies available under suchpatents against a third party direct infringer are not waived, and will still bein full force and effect, and that such third party direct infringers will notbe relieved of any liability for such direct infringement. In the event that anycourt of competent jurisdiction determines that the agreement by the partieshereto not to bring suit for indirect infringement eliminates the liability of,or reduces the damages against, a third party direct infringer, then theagreement of the parties not to bring suit against each other for IndirectInfringement shall be automatically terminated. Concurrent with suchtermination, this agreement shall be deemed to have been amended to include thefollowing language in lieu of the sentence beginning “Notwithstanding theforegoing sentence, each party … “: “Notwithstanding the foregoing sentence,each party agrees for itself and its Related Companies licensed hereunder thatthey will not bring suit or otherwise exercise any of their remedies under theirrespective licensed patents (i.e., GRL’s Patents and Agere Guardian’s Patents,as the case may be) against the other party or its Related Companies licensedhereunder, for Indirect Infringement until fully exhausting all remediesavailable under such patents against the third party direct infringer(s) for thedirect infringement which gives rise to such Indirect Infringements.” (d) The grant of each license hereunder to each party includes the rightto grant sublicenses within the scope of such license to a party’s RelatedCompanies for so long as they remain Related Companies of such party. Any suchsublicense may be made effective retroactively, but not prior to the EffectiveDate, nor prior to the sublicensee’s becoming a Related Company of such party. 3.5 FILINGS OF PATENT APPLICATIONS. Each party agrees to file patentapplications within the period prior to February 1, 2003 in a timely manner asdetermined by generally accepted good patent filing practices and as though thisAgreement were not in existence between the parties. The dispute resolutionprovisions of Article IX of the Separation and Distribution Agreement shallapply to any allegation by one party that another party hereto has purposelydelayed its patent filings primarily to avoid providing the licenses and rightsgranted hereunder. 3.6 JOINT INVENTIONS. (a) There are countries (not including theUnited States) which require the express consent of all inventors or theirassignees to the grant of licenses or rights under patents issued in suchcountries for joint inventions. (b) Each party shall give such consent, or shall use its reasonable bestefforts to obtain such consent from its Related Companies, its employees oremployees of any of its Related Companies, as required to make full andeffective any such licenses and rights respecting any joint invention granted toa grantee hereunder by such party and by another licensor of such grantee. (c) Each party shall take steps which are reasonable under thecircumstances to obtain from third parties whatever other consents are necessaryto make full and effective such licenses and rights respecting any jointinvention purported to be granted by it hereunder. If, in spite of such reasonable steps, such party is unable to obtainthe requisite consents from such third parties, the resulting inability of suchparty to make full and effective its purported grant of such licenses and rightsshall not be considered to be a breach of this Agreement. 3.7 OUTSIDE THE UNITED STATES. (a) There are countries in which the ownerof an invention is entitled to damages, compensation or other monetary award foranother’s unlicensed manufacture, sale, lease, use or importation involving suchinvention prior to the date of issuance of a patent for such invention but on orafter a certain earlier date, hereinafter referred to as the invention’s”protection commencement date” (e.g., the date of publication of allowed claimsor the date of publication or “laying open” of the filed patent application). Insome instances, other conditions precedent must also be fulfilled (e.g.,knowledge or actual notification of the filed patent application). The partiesagree that (i) an invention which has a protection commencement date in any suchcountry may be used in such country pursuant to the terms of this Agreement onand after any such date, and (ii) all such conditions precedent are deemedsatisfied by this Agreement. (b) There may be countries in which a party hereto may have, as aconsequence of this Agreement, rights against third party infringers of anotherparty’s patents licensed hereunder. Each party hereto hereby waives any suchright it may have by reason of such third party’s infringement or allegedinfringement of another party’s patents. (c) Each party hereto hereby agrees to register or cause to be registered,to the extent that such party reasonably determines that registration orrecordation is necessary under applicable law, and without expense to the otherparty or any of its Related Companies, any agreements wherein sublicenses aregranted by it under the other party’s patents licensed hereunder. Each partyhereto hereby waives any and all claims or defenses, arising by virtue of theabsence of such registration, that might otherwise limit or affect itsobligations to the other party. 3.8 DEFENSIVE PROTECTION ARRANGEMENT. If, during the period ending five(5) years after the Effective Date, any third party sues Agere for patentinfringement with respect to any Agere product(s), then Agere shall have, duringthe pendency of the action, (i) the right to assert against such third party,counterclaims of infringement of not more than six (6) of the DesignatedDefensive Patents listed in Exhibit I selected by Agere, and (ii) the exclusiveright to license said third party under such six (6) Designated DefensivePatents solely for the purposes of settling such litigation. Agere shall controlthe litigation (both the defense of the initial claim by the third party, andthe assertion of a counterclaim under the Designated Defensive Patents), andAgere shall bear all costs and expenses associated therewith. Any royaltyrevenues and judgment obtained from or against a third party on account of suchselected Designated Defensive Patents shall be first applied to Agere’s costsand expenses of the litigation, and any amount received in excess of such costsand expenses shall be equally divided between Agere and Lucent. Before exercising such right, Agere shall give notice to Lucent, and shallafford Lucent, at Lucent’s option, the opportunity to transfer to Agere for theduration of the litigation, either a partial interest in the patent(s) sufficient to enableAgere to bring suit, or a full interest in the patent(s). Agere agrees to acceptsuch transfer, and to return such interest to Lucent at the conclusion of thelitigation. If any rights are exercised pursuant to this Section, Agere agrees toreasonably consult with Lucent during such litigation, to comply with reasonablerequests made by Lucent regarding the status of the litigation, and to indemnifyand hold Lucent harmless from and against any claim, loss or damage (includingreasonable attorneys fees) arising out of or resulting from Agere’s exercise ofthe rights granted by Lucent to Agere under this provision, excluding, however,claims against Lucent for patent infringement. 3.9 LICENSING PRIOR TO DISTRIBUTION DATE. Between the Effective Date andDistribution Date, unless expressly permitted in this Agreement or in anyAncillary Agreement as defined in the Separation and Distribution Agreement, (i)Agere and its Related Companies shall not, without the express writtenpermission of Lucent, enter into any agreement to license any patent or otherintellectual property solely owned by Lucent or its Related Companies to a thirdparty, and (ii) Lucent and its Related Companies shall not, without the expresswritten permission of Agere, enter into any agreement to license any patent orother intellectual property owned solely by Agere or its Related Companies to athird party.3.10 EXCLUSIVE LICENSES GRANTED TO AGERE SUBSIDIARIES. (a) In thefollowing Sections 3.10(b) through 3.10(d): With respect to the patents listed on Schedule 3.10-1, Transferor shallmean Lucent Guardian, Transferee shall mean Agere Guardian, and TransferredPatents shall mean the patents listed on Schedule 3.10-1. With respect to the patents listed on Schedule 3.10-2, Transferor shallmean Lucent Optical Networking Guardian, Transferee shall mean Agere Guardianand Transferred Patents shall mean the patents listed on Schedule 3.10-2. With respect to the patents listed on Schedule 3.10-3, Transferor shallmean Lucent Wireless Guardian, Transferee shall mean Agere Guardian andTransferred Patents shall mean the patents listed on Schedule 3.10-3. With respect to the patents listed on Schedule 3.10-4, Transferor shallmean Lucent Guardian, Transferee shall mean Agere Optoelectronics Guardian, andTransferred Patents shall mean the patents listed on Schedule 3.10-4. With respect to the patents listed on Schedule 3.10-5, Transferor shallmean Lucent Fiber Guardian, Transferee shall mean Agere OptoelectronicsGuardian, and Transferred Patents shall mean the patents listed on Schedule3.10-5. With respect to the patents listed on Schedule 3.10-6, Transferor shallmean Lucent Optical Networking Guardian, Transferee shall mean AgereOptoelectronics Guardian and Transferred Patents shall mean the patents listedon Schedule 3.10-6. (b) Subject to rights retained for itself and its future Subsidiaries andRelated Companies to make, have made, use, lease, offer to sell, sell, andimport, any or all products and services of any type or kind, Transferor herebygrants to Transferee under all of the Transferred Patents, an exclusive,irrevocable, and fully transferable license to make, have made, use, lease,offer to sell, sell, and import, any or all products and services of any type orkind, including the unrestricted right to grant sublicenses under theTransferred Patents. All licenses granted to Transferee hereunder shall be fullypaid up. Transferor hereby assigns to Transferee all rights under theTransferred Patents to sue for infringement, including for damages for pastinfringement, and to grant releases for past infringement and to furtherauthorize third parties to grant such releases. Transferor grants to Transferee,the exclusive right to prepare, file and prosecute, in any Patent Office in theworld, any action involving or relating to any Transferred Patent, including butnot limited to, any re-examination or re-issue relating to the TransferredPatents. Transferor agrees to execute and deliver to Transferee, all suchinstruments as are reasonably necessary to effectuate the grant of licenses andrights contemplated by this provision. (c) All licenses and rights granted herein under any patent shall continuefor the entire term of such patent. All licenses and rights granted toTransferee hereunder are subject to all prior agreements and commitments ofTransferor, Lucent or Lucent GRL to third parties entered into or made byTransferor, Lucent or Lucent GRL prior to the Effective Date. (d) Notwithstanding any other provision relating to the TransferredPatents, Transferor shall have the sole and exclusive option, if any one or moreTransferred Patents is or becomes likely to be involved in litigation, to conveyto Transferee, its legal title to such one or more Transferred Patents (whileretaining rights to such patents described in Section 3.10(b) above), andTransferee hereby agrees to accept such conveyance and to pay to Transferor aconveyance fee of $1,000.00. (e) Agere agrees to indemnify and hold Lucent harmless from any and alldamages, expense, fees, claims, judgments, demands, and reasonable legal fees asa result of retention of title (by a respective transferor) to the TransferredPatents listed on Schedules 3.10-1 through 3.10-6. Lucent agrees to forward anynotices, demands, claims, correspondence, etc. relating to the TransferredPatents listed on Schedules 3.10-1 through 3.10-6 to Agere. Agere agrees thatneither Lucent, Lucent GRL nor the respective transferor shall have anyliability or other obligation as a result of any delay or failure to act withrespect to such Transferred Patents listed on Schedules 3.10-1 through 3.10-6.3.11 EXCLUSIVE LICENSES GRANTED TO LUCENT SUBSIDIARIES. (a) In the following Sections 3.11(b) through 3.11(d): With respect to the patents listed on Schedule 3.11-1, Transferor shallmean Agere Guardian, Transferee shall mean Lucent Guardian, and TransferredPatents shall mean the patents listed on Schedule 3.11-1. With respect to the patents listed on Schedule 3.11-2, Transferor shallmean Agere Guardian, Transferee shall mean Lucent Optical Networking Guardianand Transferred Patents shall mean the patents listed on Schedule 3.11-2. With respect to the patents listed on Schedule 3.11-3, Transferor shallmean Agere Guardian, Transferee shall mean Lucent Wireless Guardian andTransferred Patents shall mean the patents listed on Schedule 3.11-3 With respect to the patents listed on Schedule 3.11-4, Transferor shallmean Agere Optoelectronics Guardian, Transferee shall mean Lucent Guardian, andTransferred Patents shall mean the patents listed on Schedule 3.11-4. With respect to the patents listed on Schedule 3.11-5, Transferor shallmean Agere Optoelectronics Guardian, Transferee shall mean Lucent FiberGuardian, and Transferred Patents shall mean the patents listed on Schedule3.11-5. With respect to the patents listed on Schedule 3.11-6, Transferor shallmean Agere Optoelectronics Guardian, Transferee shall mean Lucent OpticalNetworking Guardian and Transferred Patents shall mean the patents listed onSchedule 3.11-6. (b) Subject to rights retained for itself and its future Subsidiaries andRelated Companies to make, have made, use, lease, offer to sell, sell, andimport, any or all products and services of any type or kind, Transferor herebygrants to Transferee under all of the Transferred Patents, an exclusive,irrevocable, and fully transferable license to make, have made, use, lease,offer to sell, sell, and import, any or all products and services of any type orkind, including the unrestricted right to grant sublicenses under theTransferred Patents. All licenses granted to Transferee hereunder shall be fullypaid up. Transferor hereby assigns to Transferee all rights under theTransferred Patents to sue for infringement, including for damages for pastinfringement, and to grant releases for past infringement and to furtherauthorize third parties to grant such releases. Transferor grants to Transferee,the exclusive right to prepare, file and prosecute, in any Patent Office in theworld, any action involving or relating to any Transferred Patent, including butnot limited to, any re-examination or re-issue relating to the TransferredPatents. Transferor agrees to execute and deliver to Transferee, all suchinstruments as are reasonably necessary to effectuate the grant of licenses andrights contemplated by this provision. (c) All licenses and rights granted herein under any patent shall continuefor the entire term of such patent. All licenses and rights granted toTransferee hereunder are subject to all prior agreements and commitments of Transferor or Agere to thirdparties entered into or made by Transferor or Agere prior to the Effective Date. (d) Notwithstanding any other provision relating to the TransferredPatents, Transferor shall have the sole and exclusive option, if any one or moreTransferred Patents is or becomes likely to be involved in litigation, to conveyto Transferee, its legal title to such one or more Transferred Patents (whileretaining rights to such patents described in Section 3.11(b) above), andTransferee hereby agrees to accept such conveyance and to pay to Transferor aconveyance fee of $1,000.00. (e) Lucent agrees to indemnify and hold Agere harmless from any and alldamages, expense, fees, claims, judgments, demands, and reasonable legal fees asa result of Transferor’s retention of title (by a respective transferor) to theTransferred Patents listed on Schedules 3.11-1 through 3.11-6. Agere agrees toforward any notices, demands, claims, correspondence, etc. relating to theTransferred Patents listed on Schedules 3.11-1 through 3.11-6 to Lucent. Lucentagrees that neither Agere nor the respective transferor shall have any liabilityor other obligation as a result of any delay or failure to act with respect tosuch Transferred Patents listed on Schedules 3.11-1 through 3.11-6.3.12 COVENANT NOT TO SUE UNDER CERTAIN CONDITIONS. (a) Lucent and Agere eachcovenant not to sue Persons with whom Lucent or Agere, as the case may be, has aSupply Relationship or a Joint Development Relationship (as defined in sections(c) and (d), respectively) with respect to infringement of Necessary Patents (asdefined in Section (e)) that may occur by virtue of the manufacture, use or saleof Impacted Products, as defined in Section (b). (b) Impacted Product means any product made by a Person with whom Lucentor Agere, as the case may be, has a Supply Relationship or a Joint DevelopmentRelationship, that makes substantial and significant use of technology (i) thatexists as of the Effective Date (ii) is furnished by Lucent or Agere to thePerson, and (iii) for which Lucent or Agere, as the case may be, hasunrestricted rights under this Agreement (hereinafter “Furnished Technology”). (c) A Supply Relationship shall be deemed to exist between Lucent or Agereand a Person when Lucent or Agere, as the case may be, has entered into awritten, good faith, arm’s length transaction obligating Lucent or Agere, as thecase may be, to purchase a commercially significant fraction of its requirementsfor Impacted Products from the Person. (d) A Joint Development Relationship shall be deemed to exist betweenLucent or Agere and a Person when Lucent or Agere, as the case may be, hasentered into a written, good faith, arm’s length agreement obligating employeesof Lucent or Agere, as the case may be, to work cooperatively with employees ofthe Person solely for the purpose of designing and/or manufacturing ImpactedProducts, wherein each Party provides substantial contributions to the jointdevelopment activities. (e) Necessary Patents shall include, in the case of Lucent (Agere)any claim of any patent (i) which is based upon an application first filed as of the Effective Date; (ii) which Lucent (Agere) or any of their respective Related Companies, owns or has the right to license as of the Effective Date; (iii) which reads on the Furnished Technology; and (iv) which would be unavoidably and necessarily infringed by implementation and use of the Furnished Technology in the manufacture, use and/or sale of Impacted Products. (f) Any covenant not to sue made pursuant to this section with respect toa Joint Development Relationship shall continue notwithstanding the expiration,cancellation or other termination of the Joint Development Relationship. (g) Any covenant not to sue made pursuant to this section with respect toa Supply Relationship shall terminate upon the expiration, cancellation or othertermination of the Supply Relationship. However, in the event that a SupplyRelationship between a Person and Lucent (Agere) is about to or has expire(d),or is about to be, or has been terminated or canceled, then, upon the request ofLucent (Agere), Agere (Lucent) agrees to extend to the Person, a license tomake, use and sell Impacted Products on commercially reasonable terms andconditions. For the purposes of this section 3.12(g), commercially reasonableterms and conditions shall be deemed to include a royalty payment to thelicensing Party not to exceed the lesser of (i) One Half of One Percent (0.5%)of the fair market value of the Impacted Products for each Necessary Patent, or(ii) Two Percent (2%) of the fair market value of the Impacted Products. (h) In this section 3.12, references to Lucent or Agere shall be deemed toinclude Lucent or Agere, as the case may be, and their respective RelatedCompanies. ARTICLE IVASSIGNMENT OF RESTRICTED JOINT CORPORATE TECHNOLOGY 4.1 ASSIGNMENT OF RESTRICTED JOINT CORPORATE TECHNOLOGY. Lucent herebyirrevocably transfers and assigns to Agere an undivided one-half (l/2), interestin the Restricted Joint Corporate Technology. Lucent and Agere shall eachjointly own an equal, undivided, one-half (l/2) interest in the Restricted JointCorporate Technology, with full rights to use such technology for its owninternal business purposes, including, but not limited to, “have-made” rights,and with no duty to account to the other for any exploitation of suchjointly-owned Restricted Joint Corporate Technology. Agere and Lucent each agreethat each party shall not have any right to, and will not (1) sublicensethe Restricted Joint Corporate Technology to any third party, or (2) disclose orotherwise make any portion of the Restricted Joint Corporate Technologyavailable to any third party except in connection with its exercise of”have-made” rights, and then under confidentiality terms and conditions normallyused by such party to protect its own proprietary information of a similarnature, provided, however, that neither Lucent nor Agere shall be precluded fromselling products or licensing software (in object code form), which includeRestricted Joint Corporate Technology. 4.2 ASSIGNMENT OF LUCENT RESTRICTED JOINT CORPORATE TECHNOLOGY. Lucenthereby irrevocably transfers and assigns to Agere an undivided one-half (l/2),interest in the Lucent Restricted Joint Corporate Technology. Lucent and Agereshall each jointly own an equal, undivided, one-half (l/2) interest in theLucent Restricted Joint Corporate Technology, with full rights to use suchtechnology for its own internal business purposes, including, but not limitedto, “have-made” rights, and with no duty to account to the other or anyexploitation of such jointly-owned Lucent Restricted Joint Corporate Technology.Agere agrees that it shall not have any right to, and will not (1) sublicensethe Lucent Restricted Joint Corporate Technology to any third party, or (2)disclose or otherwise make any portion of the Lucent Restricted Joint CorporateTechnology available to any third party except in connection with its exerciseof “have-made” rights, and then under confidentiality terms and conditionsnormally used by it to protect its own proprietary information of a similarnature, provided, however, that Agere shall not be precluded from sellingproducts or licensing software (in object code form), which include LucentRestricted Joint Corporate Technology. Lucent shall not be subject to anyrestrictions on sublicensing or disclosing Lucent Restricted Joint CorporateTechnology. 4.3 ASSIGNMENT OF AGERE RESTRICTED JOINT CORPORATE TECHNOLOGY Lucenthereby irrevocably transfers and assigns to Agere an undivided one-half (l/2),interest in the Agere Restricted Joint Corporate Technology. Lucent and Agereshall each jointly own an equal, undivided, one-half (l/2) interest in the AgereRestricted Joint Corporate Technology, with full rights to use such technologyfor its own business purposes, including, but not limited to, “have-made”rights, and with no duty to account to the other for any exploitation of suchjointly-owned Agere Restricted Joint Corporate Technology. Lucent agrees that itshall not have any right to, and will not (1) sublicense the Agere RestrictedJoint Corporate Technology to any third party, or (2) disclose or otherwise makeany portion of the Agere Restricted Joint Corporate Technology available to anythird party except in connection with its exercise of “have-made” rights, andthen under confidentiality terms and conditions normally used by it to protectits own proprietary information of a similar nature, provided, however, thatLucent shall not be precluded from selling products or licensing software (inobject code form), which include Agere Restricted Joint Corporate Technology.Agere shall not be subject to any restrictions on sublicensing or disclosingAgere Restricted Joint Corporate Technology. 4.4 ACCESS TO RESTRICTED JOINT CORPORATE TECHNOLOGY, LUCENT RESTRICTEDJOINT CORPORATE TECHNOLOGY, AND AGERE RESTRICTED JOINT CORPORATE TECHNOLOGY.During a period beginning on the Effective Date and ending on December 31, 2001,Agere and Lucent each shall have the right to access and to copy any and allportions of the Restricted Joint Corporate Technology, Lucent Restricted Joint CorporateTechnology and Agere Restricted Joint Corporate Technology in possession of theother party. Such access and copying shall be in accordance with a reasonablerequest and schedule to be mutually agreed upon between Agere and Lucent. Allcosts associated with the assembling, copying and delivering of such RestrictedJoint Corporate Technology shall be borne by the party requesting same. 4.5 EXCEPTION TO RESTRICTION. Lucent and Agere agree that the restrictionsin Section 4.1 on Lucent’s rights under the Restricted Joint CorporateTechnology shall not apply to any Restricted Joint Corporate Technology thatLucent has a right to use pursuant to Article V below. ARTICLE V RIGHTS RELATED TO PRODUCTS SOURCED BY LUCENT FROM AGERE 5.1 DEFINITIONS. For the purposes of this Article V: 5.1.1 ” Joint Technical Information” shall mean those specifications,drawings, schematics, software, test programs, mask works, parts lists,engineering notes, process instructions and any other information in Lucent’spossession and limited to Restricted Joint Corporate Technology specificallylisted in Exhibit F and Agere Restricted Joint Corporate Technology listed inExhibit G. Joint Technical Information shall not include any information that issolely owned by Agere. 5.1.2 “Agere’s Required Patents” shall mean any claim of any patent ownedby Agere or Agere’s wholly-owned Subsidiaries, or for which Agere or Agere’swholly-owned Subsidiaries has an exclusive license pursuant to Section 3.10,which reads on and which is necessarily infringed by the manufacture or sale ofa Sourced Product (as defined below in Section 5.2) that uses or is based uponJoint Technical Information. 5.1.3 “Supply Agreement” shall mean the Microelectronics Product PurchaseAgreement between Lucent and Agere effective as of February 1, 2001, and anyother agreement pursuant to which Lucent purchases products or services fromAgere, and reference in this Article V to specific provisions within theMicroelectronics Product Purchase Agreement between Lucent and Agere effectiveas of February 1, 2001 shall be deemed to include similar provisions containedin such other agreements. 5.2 RESOLUTION PROCESS. In the event of the occurrence of certain eventsidentified below in Section 5.4 (“Trigger Events”) with respect to one or moreProducts for which Agere is Lucent’s sole source of supply and for which thereis no commercially available substitute (hereinafter “Sourced Product”), Lucentmay notify Agere in writing that (i) a Trigger Event (as defined in Section 5.4below) has occurred, describing with specificity the facts giving rise to theTrigger Event, and (ii) Lucent wishes to invoke its rights under this Article V.After receipt of such notice, Agere shall respond to Lucent within seven (7)business days with a Plan of Action to address the issues raised in the notice from Lucent. In the event Agere fails to deliver a Plan of Actionreasonably acceptable to Lucent within the seven (7) business day period, or inthe case of an Epidemic Failure Trigger, as defined in Section 5.4.3 below,Agere fails to cure the defect in the manner and within the cure period setforth in the Plan of Action, Lucent may exercise its rights under Section 5.3below, and in addition, invoke all of its rights under the Supply Agreement. 5.3 MANUFACTURING RIGHTS. 5.3.1 If pursuant to the Section 5.2 of this Article V, Lucent invokesthis Section 5.3, Lucent may, with respect to a Sourced Product, notify Agere ofLucent’s intention to either manufacture the Sourced Product or have the SourcedProduct manufactured by a third party (“Second Source”). In the event of anotice of second source manufacture to Agere, Agere may notify Lucent, withinfifteen (15) business days, that it wishes to submit the matter for resolutionby Lucent’s senior purchasing executive and Agere’s appropriate seniorexecutive. If the matter is not thus resolved within twenty (20) days, then thematter may be submitted by either party to an expedited binding arbitration totake place in New Jersey, with costs to be shared equally, for a determinationof whether the foregoing default has occurred, which is to be completed withintwenty (20) business days. The parties agree that by March 1, 2001, the partiesshall select an arbitrator to adjudicate disputes on a continuing basis underthis clause. Upon failure of the parties to agree on the selection of anarbitrator by March 1, 2001, the American Arbitration Association shall berequested to make the selection. 5.3.2 Upon failure of Agere to submit the matter for resolution by seniorexecutives or upon the conclusion of an arbitration finding an unresolvedTrigger Event exists with respect to a Sourced Product, then Lucent shall have,in addition to any rights provided elsewhere in this Agreement, the followingrights with respect to such specific Sourced Product: 5.3.2.1 a perpetual, personal, nonexclusive, non-transferable,irrevocable, worldwide, royalty-free right to distribute the Joint TechnicalInformation and Lucent’s derivative works thereof to a Second Source and tosublicense such Second Source to make and sell such Sourced Product for thirdparties, for so long as the Second Source supplies the Sourced Product to Lucentand for three (3) years thereafter. Lucent shall distribute and sublicense theJoint Technical Information under confidentiality terms consistent with thoseordinarily used by Lucent in connection with its disclosure of its ownproprietary information, and shall require return or destruction of the JointTechnical Information when the Second Source ceases to have the right to supplythe Sourced Product; and 5.3.2.2 a personal, nonexclusive, non-transferable, irrevocable,worldwide, royalty-free right to sublicense a Second Source under Agere’sRequired Patents to make, use and sell the Sourced Product to third parties tothe extent the Second Source uses the Joint Technical Information to manufacturethe Sourced Product, for so long as the Second Source supplies the SourcedProduct to Lucent and for three (3) years thereafter. 5.4 TRIGGER EVENTS. The following events are deemed “TriggerEvents” for a Sourced Product: 5.4.1 If Agere should at any time during the term of any Supply Agreementdetermine that a Sourced Product is a candidate to be discontinued by Agere, as,for example, per the terms of the Section 16 of the Supply Agreement, and (1)Lucent is unable to obtain sufficient quantities of such Sourced Product duesolely to Agere being unable or unwilling to deliver the Sourced Productrequested by Lucent under the Lucent’s last time purchase, or (2) following alast time buy under, for example, the aforementioned Section 16, of SourcedProduct in quantities covering a twelve months’ supply of Sourced Product, basedon Lucent’s previous year’s purchases, Lucent requires additional quantities ofsuch Sourced Product. 5.4.2 If (1) Agere should at any time “no bid” a Request for Quotation(RFQ) from Lucent in connection with a new product , and (2) Lucent receives nothird party responses to such RFQ, and Lucent can demonstrate to Agere that anythird party response to such RFQ will be solely dependent upon Lucent invokingits rights under Section 5.3. This Trigger Event shall not apply with respect toEpoxy Formulations listed on Schedule F. 5.4.3 If an Epidemic Failure (as defined, for example, in Attachment D tothe Supply Agreement) occurs with respect to a Sourced Product and Agere failsto perform its obligations in accordance with applicable contractual provision,including, for example, said Attachment D, after written notice from Lucent ofsuch failure and opportunity to cure within thirty (30) days (an “EpidemicFailure Trigger”). 5.5 OTHER ACCESS AND COPY RIGHTS WITH RESPECT TO SOLE SOURCED PRODUCTS. Inorder to facilitate Lucent use of design information, such as netlists, timingspecifications and test vectors relating to certain products for which Agere isLucent’s sole source of supply, and with respect to which Lucent has retainedownership rights under other provisions of this Agreement (hereinafter “SourcedProduct Design Information”), Agere agrees to cooperate with Lucent to (a)identify products for which Sourced Product Design Information in the possessionof Lucent is incomplete, or for which up to date files containing Lucent SourcedProduct Design Information are in the possession of Agere, (b) define a mutuallyagreeable procedure and schedule for access, copy and transfer of such SourcedProduct Design Information to Lucent, and (c) provide Sourced Product DesignInformation to Lucent in accordance with said procedure and schedule. 5.6 ACCESS, COPY AND TRANSFER PROCEDURE AND SCHEDULE. The parties agree tocooperate with each other to implement a specific and detailed process foraccess, copying and transfer of Sourced Product Design Information, in order toinsure that (a) all access and copying will be substantially completed prior toDecember 31, 2001, and (b) adequate provision will be made for accommodating anyspecial cases or eventualities that may arise. The process shall specify targettime periods in which a response to a request for access and copying shall betransmitted to Lucent, which period shall, unless otherwise agreed, not exceedten (10) working days. Lucent shall use good faith efforts to minimize the number and frequency of requests made hereunder, and Agere shalluse good faith efforts to accommodate the business needs of Lucent. 5.7 CONTENT AND HANDLING OF REQUESTS FOR ACCESS AND COPYING. All requestsfrom Lucent for access and copying shall clearly identify: (a) the item(s)requested, (b) the Lucent subject matter expert or accountable associate, (c)whether a copy or access is requested, (d) if a copy is requested, the desireddelivery interval for the copy, which interval shall be no shorter than thetargeted interval set forth above, (e) if known, the location of the materialbeing requested (f) if access is requested, the specifics of how the access wasmade in the past, and (g) any special handling that is requested (e.g.,overnight delivery, maximum approved cost). Agere shall promptly acknowledgereceipt of each such request, and expeditiously process such request, so as toprovide the requested Sourced Product Design Information to Lucent in accordancewith the agreed upon schedule. In the event that Agere determines that requestedSourced Product Design Information is not available, cannot be located, orcannot be provided as specifically requested, Agere will notify Lucent promptly.Copies of Sourced Product Design Information will be provided to Lucent in theoriginal size, content, form and clarity. The latest version of Sourced ProductDesign Information will be provided unless otherwise requested. 5.8 RETENTION. Agere agrees that it will retain both current and previousversions of all Sourced Product Design Information subject to access andcopying, and that it will not destroy or otherwise dispose of any SourcedProduct Design Information without first notifying Lucent and obtaining writtenagreement either to destroy the copy, or to provide the copy to Lucent. ARTICLE VI MEMS PATENTS AND SPECIALTY PATENTS 6.1 ASSIGNMENT OF JOINT MEMS PATENTS AND JOINT SPECIALTY PATENTS. (a)Lucent, subject to existing rights and licenses of third parties, does herebyassign, convey, transfer and deliver, and agrees to assign, convey, transfer anddeliver to Agere Optoelectronics Guardian and its Related Companies, anundivided one-half (1/2) interest in all Joint MEMS Patents listed on Exhibit J,an undivided one-half (1/2) interest in all Joint Specialty Patents listed onExhibit K, and corresponding counterpart foreign patents and patent applicationsin all countries, jurisdictions and political entities of the world, along withthe right to sue for past infringement, with respect to which, and to the extentto which, Lucent now has or hereafter acquires the right to so assign, convey,transfer and deliver. Accordingly, Lucent and Agere Optoelectronics Guardianshall each have an equal title interest in each Joint MEMS Patent and in eachJoint Specialty Patent, with Lucent holding an undivided one-half (1/2) interestand Agere Optoelectronics Guardian holding an undivided one-half (1/2) interest. (b) Notwithstanding each Party’s ownership interest in Joint MEMS Patentsand Joint Specialty Patents under Section 2.1(a), neither Lucent nor Agere(other than their respective Related Companies) shall assign its entire interest, or anyportion thereof, in any Joint MEMS Patent or Joint Specialty Patent to any thirdparty (other than any of its Related Companies) without the express writtenconsent of the other party. If any attempt is made by one party to assign itsinterest in any Joint MEMS Patent or Joint Specialty Patent without the otherparty’s consent, all of the one party’s ownership interests in that Joint MEMSPatent or Joint Specialty Patent which such one party attempts to assign shallautomatically be extinguished, ownership shall vest in the other party, and theJoint MEMS Patent or Joint Specialty Patent shall thereafter be treated as aLicensed MEMS Patent licensed or Licensed Specialty Patent to the one party (asLicensee) by the other party (as Licensor), in accordance with the provisions ofSections 6.2 through 6.5. 6.2 LICENSE OF LICENSED MEMS PATENTS AND LICENSED SPECIALTY PATENTS. (a)In the following Sections 6.2(b) and 6.2(c): With respect to the patents listed on Schedule 6.2-1, Licensor shall meanLucent Optical Networking Guardian, Licensee shall mean Agere OptoelectronicsGuardian, and Licensed MEMS Patents shall mean the patents listed on Schedule6.2-1. With respect to the patents listed on Schedule 6.2-2, Licensor shall meanLucent Fiber Guardian, Licensee shall mean Agere Optoelectronics Guardian, andLicensed MEMS Patents shall mean the patents listed on Schedule 6.2-2. With respect to the patents listed on Schedule 6.2-3, Licensor shall meanLucent Guardian, Licensee shall mean Agere Optoelectronics Guardian, andLicensed MEMS Patents shall mean the patents listed on Schedule 6.2-3. With respect to the patents listed on Schedule 6.2-4, Licensor shall meanAgere Guardian, Licensee shall mean Lucent Guardian, and Licensed MEMS Patentsshall mean the patents listed on Schedule 6.2-4. With respect to the patents listed on Schedule 6.2-5, Licensor shall meanAgere Guardian, Licensee shall mean Lucent Guardian, and Licensed SpecialtyPatents shall mean the patents listed on Schedule 6.2-5. With respect to the patents listed on Schedule 6.2-6, Licensor shall meanAgere Optoelectronics Guardian, Licensee shall mean Lucent Guardian, andLicensed Specialty Patents shall mean the patents listed on Schedule 6.2-6. (b) Licensor hereby grants to Licensee under the Licensed MEMS Patents andthe Licensed Specialty Patents, a non-exclusive, irrevocable, and fullytransferable license to make, have made, use, lease, offer to sell, sell, andimport, any or all products and services of any type or kind, including theunrestricted right to grant sublicenses under the Licensed MEMS Patents andLicensed Specialty Patents (except for the restrictions set forth in Section6.4). All licenses granted to Licensee hereunder shall be fully paid up, andshall extend to Licensor’s Related Companies. Licensor agrees to execute anddeliver to Licensee, all such instruments as are reasonably necessary toeffectuate the grant of licenses contemplated by this Section. (c) All licenses granted under any Licensed MEMS Patent or LicensedSpecialty Patents shall continue for the entire term of such patent. Alllicenses and rights granted to Licensee hereunder are subject to all prioragreements and commitments of Licensor to third parties entered into or made byLicensor prior to the Effective Date. 6.3 PATENT PROSECUTION AND MAINTENANCE OF JOINT MEMS PATENTS, JOINTSPECIALTY PATENTS, LICENSED SPECIALTY PATENTS AND LICENSED MEMS PATENTS. (a) Forthe purposes of Sections 6.3 through 6.5, (i) Licensed MEMS Patents shallinclude all of the patents listed on Schedules 6.2-1 through 6.2-4, inclusive,(ii) Licensed Specialty Patents shall include all of the patents listed onSchedules 6.2-5 and 6.2-6, (iii) Joint MEMS Patents and Licensed MEMS Patentsshall collectively be referred to as “MEMS Patents”, and Joint Specialty Patentsand Licensed Specialty Patents shall collectively be referred to as “SpecialtyPatents”. (b) Lucent and Agere Optoelectronics Guardian agree that all patentprosecution and maintenance decisions, both in the United States and in foreigncountries, relating to the MEMS Patents and Specialty Patents, shall be madejointly by the parties, after consultation. All expenses for prosecuting eachMEMS Patent and Specialty Patent and for issue of each MEMS Patent and SpecialtyPatent shall be equally borne by Lucent and Agere Optoelectronics Guardian.Primary responsibility for prosecuting each patent application which is a MEMSPatent or Specialty Patent hereunder shall remain with the party (Lucent orAgere) that employs the patent attorney who was, as of the Effective Date,primarily responsible for such prosecution. At the request of the partyprosecuting an application (hereinafter “Prosecuting Party”), the other partyshall furnish any assistance that may be reasonably necessary. (c) In the case of a MEMS Patent and Specialty Patent which is filed in acountry which requires the payment of taxes or annuities on a pending patentapplication or on an issued patent, Lucent and Agere Optoelectronics Guardianshall equally share in the payment of such taxes and annuities for all MEMSPatents and Specialty Patents. (d) The Prosecuting Party will pay all prosecution expenses, taxes andannuities associated with any MEMS Patent or Specialty Patent, and within sixty(60) days from receiving evidence of such payment, The other party willreimburse the Prosecuting Party for fifty percent (50%) of such expenses, taxesand annuities. (e) In the event that Lucent or Agere Optoelectronics Guardian elects notto continue prosecution of any pending patent application which is a MEMS Patentor Specialty Patent, or not to pay any tax or annuity due on a MEMS Patent orSpecialty Patent, such party will offer to the other party (and will effect anassignment if such offer is accepted) a fee-free assignment of the one party’sone-half (1/2) interest in such application or MEMS Patent or Specialty Patent,subject to the transferring party retaining, under the transferred applicationor MEMS Patent or Specialty Patent, a non-exclusive, irrevocable, and fully transferable license to make, have made, use,lease, offer to sell, sell, and import, any or all products and services of anytype or kind. (f) Neither Lucent nor Agere Optoelectronics Guardian may, without theexpress written consent of the other party, disclaim or dedicate any MEMS Patentor Specialty Patent, or file for reissue or reexamination, or undertake anyother procedure or perform any act which may affect the scope or validity of anyof the MEMS Patents or Specialty Patents, other than as required during thecourse of normal prosecution pursuant to Section 6.3(b). The foregoinglimitation on filing for reissue or reexamination shall not, however, apply inthe event that one party has instituted litigation with respect to one or moreMEMS Patents or Specialty Patents, and the other party has no litigation pendingwith respect to such one or more MEMS Patents or Specialty Patents. 6.4 LICENSING OF JOINT MEMS PATENTS AND JOINT SPECIALTY PATENTS ANDSUBLICENSING OF LICENSED MEMS PATENTS AND LICENSED SPECIALTY PATENTS TO THIRDPARTIES. Lucent and Agere Optoelectronics Guardian and their respective RelatedCompanies shall each have the right to (i) grant nonexclusive, personal,non-assignable licenses under Joint MEMS Patents and Joint Specialty Patents,and (ii) grant nonexclusive, personal, non-assignable sublicenses under LicensedMEMS Patents and Licensed Specialty Patents, to any Person anywhere in theworld. Lucent and Agere Optoelectronics Guardian each hereby consents to thegrant of such licenses or sublicenses by the other party, and gives such consentto the extent that such consent is necessary to effectuate the licenses orsublicenses granted, and consents to the retaining by the licensing party of allrevenues, royalties and benefits received for such licenses or sublicenseswithout accounting therefor to the non-licensing party. Lucent shall have theright to license/sublicense the Specialty Patents for any purpose, except whenthe license/sublicense is solely for the purpose of granting patent licenses orsublicenses. 6.5 ENFORCEMENT OF MEMS PATENTS AND SPECIALTY PATENTS. (a) Lucent andAgere Optoelectronics Guardian shall each have the right to bring any litigationagainst any third party under any MEMS Patent or Specialty Patent, without theconsent of the other party. The other party hereby consents to be joined as aparty to the litigation, if required. (b) Lucent and Agere Optoelectronics Guardian shall each notify the other,in writing, at least thirty (30) days prior to institution of any litigationinvolving one or more MEMS Patents or Specialty Patent. Lucent and AgereOptoelectronics Guardian agree to negotiate with each other, in good faith, inthe event that either party determines that the institution of litigation is notin its best interests, and that there is a preferable alternative available thatwould satisfy the interests of both parties. Following the giving of suchnotice, the party receiving the notice shall not (i) for an initial period ofthree (3) months following such notification, and (ii) during the course of thelitigation and until its conclusion by settlement or execution of judgment,license or attempt to license any such MEMS Patent or Specialty Patent to thePerson identified in the notice or the Person that is the subject of thelitigation. (c) Unless otherwise agreed by Lucent and Agere Optoelectronics Guardian,the party initiating any litigation involving any MEMS Patent or SpecialtyPatent (i) shall promptly notify the other party of the initiation of suchlitigation, (ii) shall have sole control of the litigation, (iii) shall incurall expenses and costs (including reasonable expenses associated with requestedparticipation of the joined other party as co-owner), and (iv) shall retain anyand all amounts recovered as the result of such litigation without accountingtherefor to the other party. (d) Lucent and Agere Optoelectronics Guardian shall each promptly notifythe other party in the event that any third party asserts by lawsuit, licensediscussions or otherwise any invalidity claims as to any MEMS Patent orSpecialty Patent. ARTICLE VIIVALUE OF RIGHTS EXCHANGED The parties hereto acknowledge and agree that the licenses and rightsexchanged hereunder by the parties are of substantially equal value, andaccordingly, no payments or royalties shall be due from or to any party underthis Agreement.ARTICLE VIII TERMINATION 8.1 VOLUNTARY TERMINATION. By written notice to a party, another party mayvoluntarily terminate all or a specified portion of the licenses and rightsgranted to it hereunder by such granting party. Such notice shall specify theeffective date of such termination and shall clearly specify any affectedpatent, invention, product or service. 8.2 SURVIVAL. (a) If a company ceases to be a Related Company of a party,licenses and rights granted to the other parties hereunder with respect topatents of such company on applications filed prior to the date of suchcessation shall not be affected by such cessation. (b) Any voluntary termination of licenses and rights of a party underSection 8.1 shall not affect such party’s licenses and rights with respect toany licensed product made or service furnished prior to such termination, andshall not affect the licenses and rights granted to the other parties hereunder. 8.3 CHANGE OF CONTROL OF AGERE, OR CERTAIN ACQUISITIONS BY EITHER PARTY.(a) In the event a party does not remain as a separate identifiable businessafter a Change of Control, the patent licenses and patent-related rights grantedto that party hereunder shall automatically terminate. In no event will thepatent licenses and patent-related rights granted to a party hereunder beextended to any Person involved in such Change of Control, without the priorwritten consent of the party whose patents are being licensed. (b) In the event that either party (the “Acquiring Party”) hereto acquiresany Person, then all patent licenses and patent-related rights granted to theAcquiring Party hereunder (i) may be sublicensed to the Person, if the Person isnot merged into the Acquiring Party, or (ii) may be extended to all products andservices manufactured by the portion of the business previously operated by thePerson, if the Person is merged into the Acquiring Party, provided that, if thenon-Acquiring Party is Lucent, that Lucent is licensed under all patents ownedor controlled by the Person at the time of the acquisition for whichapplications were filed prior to February 1, 2003, under the same terms andconditions as apply to Agere Guardian’s Patents, and provided that, if thenon-Acquiring Party is Agere, that Agere is licensed under all patents owned orcontrolled by the Person at the time of the acquisition for which applicationswere filed prior to February 1, 2003, under the same terms and conditions asapply to Lucent GRL’s Patents. 8.4 MATERIAL BREACH. No party may unilaterally terminate this Agreement,or any licenses granted hereunder, for a material breach of this Agreement byanother party, provided, however, that each party shall retain any remedies forsuch breach that it may be entitled to in a court of law or equity. ARTICLE IXMISCELLANEOUS PROVISIONS 9.1 AGREEMENT PREVAILS. This Agreement shall prevail in the event ofany conflicting terms or legends that may appear on any portion of theLicensed Technology. 9.2 NOTHING CONSTRUED. Neither the execution of this Agreement noranything in it or in the Licensed Lucent Technology, Licensed CorporateTechnology and Licensed Agere Technology shall be construed as an obligationupon any party or its Related Companies to furnish to any other party or itsRelated Companies, any assistance of any kind whatsoever, or any informationother than the portion of Licensed Lucent Technology, Licensed CorporateTechnology and Licensed Agere Technology, as applicable, requested pursuant toSection 2.1, or to revise, supplement or elaborate upon the Licensed LucentTechnology, Licensed Corporate Technology and Licensed Agere Technology. 9.3 DISCLAIMER. NO PARTY OR ANY OF ITS RELATED COMPANIES MAKES ANYREPRESENTATION, EXTENDS ANY WARRANTY OF ANY KIND, ASSUMES ANY RESPONSIBILITY OROBLIGATION WHATSOEVER, OR CONFERS ANY RIGHT BY IMPLICATION, ESTOPPEL OROTHERWISE, OTHER THAN THE RIGHTS AND WARRANTIES HEREIN EXPRESSLY GRANTED. 9.4 CONFIDENTIALITY. (a) Subject to Section 9.4(d), each of Lucent, GRL,Agere, and Agere Guardian agrees to hold, and to cause its respective directors,officers, employees, agents, accountants, counsel and other advisors andrepresentatives to hold, in strict confidence, with at least the same degree ofcare that applies to such party’s confidential and proprietary information, allinformation of another party hereto that is either in its possession orfurnished by one party to the other or its respective directors,officers, employees, agents, accountants, counsel and other advisors andrepresentatives at any time pursuant to this Agreement or otherwise, and shallnot use any such information other than for the purposes of performing itsobligations under this Agreement, except, in each case, to the extent that suchinformation has been (i) in the public domain through no fault of such party orany of their respective directors, officers, employees, agents, accountants,counsel and other advisors and representatives, (ii) later lawfully acquiredfrom other sources by such party which sources are not themselves bound by aconfidentiality obligation, or (iii) independently generated without referenceto any proprietary or confidential information of the other party. (b) Each party agrees not to release or disclose, or permit to be releasedor disclosed, any such information to any other person, except its directors,officers, employees, agents, accountants, counsel and other advisors andrepresentatives who need to know such information for purposes of performingsuch party’s obligations under this Agreement (who shall be advised of theirobligations hereunder with respect to such information), except as specified inSection 2.5 or in compliance with Section 9.4(d) or with the prior writtenconsent of the other party.(c) Without limiting the foregoing, when any information is no longer needed forthe purposes contemplated by this Agreement, each party will promptly afterrequest of a furnishing party either return to the furnishing party allinformation in a tangible form (including all copies thereof and all notes,extracts or summaries based thereon) or certify to the furnishing party that ithas destroyed such information (and such copies thereof and such notes, extractsor summaries based thereon). (d) In the event that any party (the “disclosing party”) either determineson the advice of its counsel that it is required to disclose any informationpursuant to applicable law or receives any demand under lawful process or fromany governmental authority to disclose or provide information of any other partythat is subject to the confidentiality provisions hereof, such disclosing partyshall notify the other party prior to disclosing or providing such informationand shall cooperate at the expense of the other party in seeking any reasonableprotective arrangements requested by such other party. Subject to the foregoing,the person that received such request may thereafter disclose or provideinformation to the extent required by such law (as so advised by counsel) or bylawful process or such governmental authority. 9.5 COUNTERPARTS; ENTIRE AGREEMENT; CORPORATE POWER. (a) ThisAgreement may be executed in one or more counterparts, all of which shallbe considered one and the same agreement. (b) This Agreement and any exhibits, schedules and appendices heretocontain the entire agreement between the parties with respect to the subjectmatter hereof, supersede all previous agreements, negotiations, discussions,writings, understandings, commitments and conversations with respect to suchsubject matter and there are no agreements or understandings between the partiesother than those set forth or referred to herein. (c) Each party represents as follows: (i) each has the requisite corporate or other power and authority and hastaken all corporate or other action necessary in order to execute, deliver andperform this Agreement and to consummate the transactions contemplated hereby;and (ii) this Agreement has been duly executed and delivered by it andconstitutes a valid and binding agreement of it enforceable in accordance withthe terms thereof. 9.6 GOVERNING LAW. This Agreement shall be governed by and construed andinterpreted in accordance with the laws of the State of New York applicable tocontracts to be performed solely within the State of New York, exclusive ofConflicts of Laws provisions, as to all matters, including matters of validity,construction, effect, enforceability, performance and remedies. 9.7 ASSIGNABILITY; SUCCESSORS. (a) This Agreement shall be binding uponand inure to the benefit of the parties hereto and their respective successorsand assigns; provided, however, that a party-grantee may not assign thisAgreement, in whole or in part, or its respective rights or obligations withoutthe prior written consent of the party-grantor except as provided in Section9.7(b) below. (b) By the provision of notice thereof in accordance with this Agreement,a party may assign this Agreement and its rights and obligations hereunder,either in whole or in part, to any entity that is, or that was immediatelypreceding such assignment, a current Subsidiary, business unit, division orother Related Company of such party, in each case that is the successor to thebusiness and assets of any such party that relates to this Agreement. (c) If Lucent, Agere or any of their Related Companies, divests a portionof its business and such divested business continues operation as a separatelyidentifiable business, then the licenses and rights granted hereunder to thedivesting party may be sublicensed to such divested separate business withoutthe consent of the other party, but only to the extent and for the time thedivested business functions as a separately identifiable business. With respectto patent licenses, such sublicenses shall further be limited to products andservices of the kind provided by the divested business prior to its divestitureand not to any products or services of any entity which acquires the divestedbusiness. With respect to all other intellectual property licenses herein, suchsublicenses shall further be limited to products and services of the kindprovided or under development by the divested business prior to its divestitureand not to any other category of products or services of any entity whichacquires the divested business. As used herein, the term “other category ofproducts or services” of an acquiring entity shall mean only those products andservices which are not of the kind or type provided by the divested businessprior to its divestiture. This Section 9.7(c) shall apply regardless of whetherthe business is divested by a distribution to existing shareholders, a sale ofassets or as a sale of a legal entity (e.g., sale of a Subsidiary). The sublicensingrights specified herein shall include any business whose acquisition is afterthe Effective Date, provided the acquisition of such business was not a sham forthe purpose of extending rights to the acquired (and then divested) business. 9.8 THIRD PARTY BENEFICIARIES. The provisions of this Agreement are solelyfor the benefit of the parties and are not intended to confer upon any personexcept the parties any rights or remedies hereunder, and there are no thirdparty beneficiaries of this Agreement, and this Agreement shall not provide anythird person with any remedy, claim, liability, reimbursement, claim of actionor other right in addition to those existing without reference to thisAgreement. 9.9 NOTICES. All notices or other communications under this Agreementshall be in writing and shall be deemed to be duly given when (a) delivered inperson or (b) deposited in the United States mail or private express mail,postage prepaid, addressed as follows:If to Lucent, to: Lucent Technologies Inc. 184 Liberty Corner Road Warren, NJ 07059 Attn: President-Intellectual Property BusinessIf to Agere to: Agere Systems Inc. 2 Oak Way Berkeley Heights, N.J. 07922-2747 Attn: Vice President-Law, Intellectual PropertyIf to GRL, Lucent Guardian,Lucent Technologies GRL CorporationLucent Optical NetworkingSuite 105Guardian, Lucent Wireless14645 N.W. 77th AvenueGuardian or Lucent Fiber Miami Lakes, Florida 33014Guardian, to:Attn: Contract Administrator Intellectual Property OrganizationIf to Agere Guardian or Agere Agere Systems Guardian Corp.Optoelectronics Guardian, to: Suite 105 14645 N.W. 77th Avenue Miami Lakes, Florida 33014 Attn: President Any party may, by notice to the other party, change the address to whichsuch notices are to be given to such noticing party. 9.10 SEVERABILITY. If any provision of this Agreement or the applicationthereof to any person or circumstance is determined by a court of competentjurisdiction to be invalid, void or unenforceable, the remaining provisionshereof, or the application of such provision to persons or circumstances or in jurisdictions other than those as towhich it has been held invalid or unenforceable, shall remain in full force andeffect and shall in no way be affected, impaired or invalidated thereby, so longas the economic or legal substance of the transactions contemplated hereby orthereby, as the case may be, is not affected in any manner adverse to any party.Upon such determination, the parties shall negotiate in good faith in an effortto agree upon such a suitable and equitable provision to effect the originalintent of the parties. 9.11 FORCE MAJEURE. Except with respect to payment obligations hereunder,no party shall be deemed in default of this Agreement to the extent that anydelay or failure in the performance of its obligations under this Agreementresults from any cause beyond its reasonable control and without its fault ornegligence, such as acts of God, acts of civil or military authority, embargoes,epidemics, war, riots, insurrections, fires, explosions, earthquakes, floods,unusually severe weather conditions, labor problems or unavailability of partsor raw materials, or, in the case of computer systems, any failure in electricalor air conditioning equipment. In the event of any such excused delay, the timefor performance shall be extended for a period equal to the time lost by reasonof the delay. 9.12 PUBLICITY. Each of Lucent and Agere shall consult with each otherprior to issuing any press releases or otherwise making public statements withrespect to this Agreement or the transactions contemplated hereby. In addition,neither party shall issue or release for publication any articles, advertising,or publicity materials relating to Licensed Technology of the other party underthis Agreement or mentioning or implying the name, trademarks, logos, tradename, service mark or other company identification of the other party or any ofits affiliates or any of its personnel without the prior written consent of theother party. 9.13 HEADINGS. The article, section and paragraph headings contained inthis Agreement are for reference purposes only and shall not affect in any waythe meaning or interpretation of this Agreement. 9.14 WAIVERS OF DEFAULT. Waiver by any party of any default by the otherparty of any provision of this Agreement shall not be deemed a waiver by thewaiving party of any subsequent or other default, nor shall it prejudice therights of the other party. 9.15 SPECIFIC PERFORMANCE. In the event of any actual or threateneddefault in, or breach of, any of the terms, conditions and provisions of thisAgreement, the party or parties who are or are to be thereby aggrieved shallhave the right to specific performance and injunctive or other equitable reliefof its rights under this Agreement, in addition to any and all other rights andremedies at law or in equity, and all such rights and remedies shall becumulative. The parties agree that the remedies at law for any breach orthreatened breach, including monetary damages, are inadequate compensation forany loss and that any defense in any action for specific performance that aremedy at law would be adequate is waived. Any requirements for the securing orposting of any bond with such remedy are waived. 9.16 AMENDMENTS. No provision of this Agreement shall be deemed waived,amended, supplemented or modified by any party, unless such waiver, amendment,supplement or modification is in writing and signed by the authorizedrepresentative of the party against whom it is sought to enforce such waiver,amendment, supplement or modification. 9.17 INTERPRETATION. Words in the singular shall be held to include theplural and vice versa and words of one gender shall be held to include the othergenders as the context requires. The terms “hereof,” “herein,” and “herewith”and words of similar import shall, unless otherwise stated, be construed torefer to this Agreement as a whole (including all of the schedules, exhibits andappendices hereto) and not to any particular provision of this Agreement.Article, section, exhibit, schedule and appendix references are to the articles,sections, exhibits, schedules and appendices to this Agreement unless otherwisespecified. The word “including” and words of similar import when used in thisAgreement shall mean “including, without limitation,” unless the contextotherwise requires or unless otherwise specified. The word “or” shall not beexclusive. Unless expressly stated to the contrary in this Agreement, allreferences to “the date hereof,” “the date of this Agreement,” “hereby” and”hereupon” and words of similar import shall all be references to the EffectiveDate, regardless of any amendment or restatement hereof. IN WITNESS WHEREOF, the parties have caused this PATENT AND TECHNOLOGY LICENSE AGREEMENT to be executed in four originals by their duly authorized representatives as of the Effective Date. LUCENT TECHNOLOGIES INC. By: /s/ DANIEL P. MCCURDY Daniel P. McCurdy President, Intellectual Property Business LUCENT GRL CORPORATION By: /s/ DANIEL P. MCCURDY Daniel P. McCurdy Chairman LUCENT TECHNOLOGIES GUARDIAN I CORP. By: /s/ DANIEL P. MCCURDY Daniel P. McCurdy Chairman LUCENT TECHNOLOGIES OPTICAL NETWORKING GUARDIAN CORP. By: /s/ DANIEL P. MCCURDY Daniel P. McCurdy Chairman LUCENT TECHNOLOGIES WIRELESS GUARDIAN CORP. By:/S/ DANIEL P. MCCURDY Daniel P. McCurdy Chairman LUCENT TECHNOLOGIES FIBER GUARDIAN CORP. By: /S/ DANIEL P. MCCURDY Daniel P. McCurdy Chairman AGERE SYSTEMS INC. By: /S/ GERARD A. DEBLASI Gerard A. deBlasi Vice President AGERE SYSTEMS GUARDIAN CORP. By: /s/ FRED M. ROMANO Fred M. Romano President AGERE SYSTEMS OPTOELECTRONICS GUARDIAN CORP. By: /s/ FRED M. ROMANO Fred M. Romano President

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