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This excerpt taken from the EYE 10-Q filed Aug 9, 2006. 8.14. Costs.
Except as specifically ordered (and
already paid) in the Delaware Litigation relating to marking, each party shall
bear its own costs and expenses in connection with the Litigation, the
preparation of this Agreement, and performance hereunder. However, in the event of litigation between
the Parties concerning i) the scope, enforcement or breach of this agreement;
or ii) intellectual property litigation concerning any Phacoemulsification
Equipment that either party can in good faith assert is covered by the licenses
or covenants of this Agreement, if one party prevails in such litigation by
obtaining a Rule 12(b)(6) dismissal, summary judgment, or judgment as a matter
of law of all or substantially all claims pleaded, then the prevailing party
shall be entitled to recover, and the other party shall pay, all costs and
expenses (including without limitation reasonable attorneys’ fees) incurred by
the prevailing party in such litigation.
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