Common use of Subsequent Litigation Clause in Contracts

Subsequent Litigation. In the event the Owner, Litigation Counsel or AMH identifies any opportunities to further monetize the Patents in addition to the then currently Identified Litigation (including, without limitation, the initial Identified Litigation), and the Owner intends to bring one or more subsequent Litigation with respect to such monetization opportunity (each a “Subsequent Litigation”), the identifying party shall promptly provide written notice to AMH of such Subsequent Litigation. (a) After providing such notice of a Subsequent Litigation opportunity, Owner shall in good faith promptly provide to AMH a complete package of all case underwriting materials required by AMH, including but not limited to a case narrative, claim charts, invalidity assessments, preliminary third-party damages analysis, and litigation budget (the “Underwriting Materials”), which materials will be substantially similar to those materials required to underwrite any existing Identified Litigation. (b) Upon receipt of the Underwriting Materials, and for a period of sixty (60) days thereafter (the “Option Period”), AMH shall have the exclusive option, but not the obligation, to structure and provide Litigation Funding with respect to such Subsequent Litigation on the same economic terms set forth herein for any Litigation. (c) Upon electing to provide funding for such Subsequent Litigation, AMH shall provide written notice of such election to Owner (an “Election Notice”). After providing the Election Notice, AMH shall have thirty (30) days to cause the applicable Subsequent Funding Party to commit to providing litigation funding in an aggregate amount up to the total Costs provided in a litigation budget prepared by Owner’s Subsequent Litigation Counsel, in a process substantially similar to the underwriting and funding process set forth in this Agreement for the initial Identified Litigation, recognizing that terms and conditions for such Subsequent Litigation shall be negotiated in good faith and mutually agreed upon between Owner and AMH. (d) If AMH does not provide an Election Notice prior to the expiration of the Option Period, the Subsequent Litigation opportunity will be deemed declined (a “Declined Opportunity”), at which time Owner shall be released to seek funding for such Declined Opportunity from other sources not Affiliated with AMH. AMH or the Funding Party (as the case may be) shall continue to be entitled to any proceeds pursuant to Section 3(c) with respect to any licensing of the Patents related to any Declined Opportunity until such time as AMH or the Funding Party assigns such rights to Owner or a third-party funder providing litigation finance for the Declined Opportunity, which assignment AMH or the Funding Party shall act cooperatively and shall provide within a reasonable time upon request by Owner, and on terms and conditions mutually agreed upon; provided, that the terms of any such assignment shall include a reversion of such rights back to AMH or the Funding Party, as applicable, in the event that such third-party funder does not fund the Declined Opportunity. (e) Notwithstanding the foregoing, Owner acknowledges and agrees that: (i) In preparing, or causing Litigation Counsel to prepare a Litigation Budget for any Subsequent Litigation, Owner shall not be entitled to include a monetization fee unless otherwise agreed to by AMH, regardless of whether such monetization fee was paid with respect to any other Litigation. (ii) Neither AMH nor any Subsequent Funding Party shall be obligated to fund any Subsequent Litigation unless and until definitive agreements have been entered into with respect thereto. Each Party acknowledges that such definitive documents will be substantially similar to the agreements, documents, and instruments used with respect to the funding for the existing Identified Litigation. (iii) In no event shall a Declined Opportunity effect AMH’s rights to elect to fund any other Subsequent Litigation pursuant to Section 4 other than such Declined Opportunity. After any Declined Opportunity, the Owner, Litigation Counsel and AMH shall continue in good faith to identify other Subsequent Litigation. (iv) The terms and conditions in the definitive agreements related to a Subsequent Litigation shall provide substantially similar rights as set forth in Section 3(c) with respect to any proceeds from licensing; provided that such rights shall be limited strictly to the specific Patents, and only as such Patents concern the specific Defendant(s), identified for the Subsequent Litigation. (For purposes of clarity, except as strictly related to the Subsequent Litigation, and in addition to then existing Identified Litigation, any residual rights to proceeds from the Patents shall remain with AMH or any of its assigns.)