Common use of Third Party Litigation Clause in Contracts

Third Party Litigation. In the event that a Third Party institutes a patent or other infringement suit against any of NovaDel, PAR or HANA or any of its respective Affiliates during the Term, alleging manufacture, use or sale of a Licensed Product in the Territory, infringes one or more patent or other intellectual property rights held by such Third Party (an “Infringement Suit”), the Parties shall cooperate with one another in defending such suit. PAR, as the NDA holder, shall have the first right to direct and control, at its expense, any Infringement Suit (including settlement negotiations, settlement or compromise thereof) to the extent that it relates to the manufacture, use or sale of a Licensed Product but does not implicate the Licensed Technology or Licensed Process. In the event that the Infringement Suit relates to the use of the Licensed Technology or Licensed Process, NovaDel shall have the first right to direct and control, at its expense, any such Infringement Suit (including settlement negotiations, settlement or compromise thereof). To the extent that any amounts become payable to any Third Party as a result of such action, whether through judgment or settlement, then PAR shall, unless HANA is jointly promoting and commercializing the Licensed Product pursuant to Section 2.4 and subject to Section 12.2, bear [***] percent ([***]%) of such amounts with respect to the Exploitation of the Licensed Product; provided, however, that PAR shall have the right to credit [***] percent ([***]%) of any amounts paid by PAR through judgment or settlement with respect to such country against the royalty payments to be paid by PAR to HANA with respect to the sale of the Licensed Product under Section 6.3; provided further, however, that no royalty payment when due, regardless of the amount or number of credits available to PAR shall be reduced by more than [***] percent ([***]%) of the amounts otherwise owed pursuant to Section 6.3 in any calendar quarter. Credits not exhausted in any calendar quarter may be carried into future calendar quarters. Notwithstanding the foregoing, in the event that no payments are due or owing, or contemplated to be due or owing, by PAR to HANA under Article 6 with respect to the sale of the Licensed Product, then NovaDel shall pay to PAR such amount owed to a Third Party up to a cap of [***]% of such amount owed to such Third Party, less any amount already credited to PAR under this Section 10.3. Notwithstanding the foregoing, NovaDel shall have no obligation under this Section 10.3 for any costs, expenses or damages that are paid or payable to a Third Party as a result of an actual or alleged infringement by PAR or HANA to the extent such costs, expenses or damages result from the use of a Product Trademark.

Third Party Litigation. In the event that a Third Party institutes a patent patent, trade secret, trademark or other infringement suit against any Emergent or its Affiliates or sublicensees during the term of NovaDelthis Agreement, PAR or HANA or any alleging that the practice by Emergent of the HPA Technology in the exercise of its respective Affiliates during the Term, alleging manufacture, use or sale of a Licensed Product in the Territory, rights as licensee under this Agreement infringes one or more patent patent, trademark, trade secret or other intellectual property rights held by such Third Party (an “Infringement Suit”), then (i) as between the Parties Parties, Emergent shall cooperate with one another in defending such suit. PAR, as assume direction and control of the NDA holder, shall have defense of claims arising therefrom (including the first right to direct and control, settle such claims at its expensesole discretion), any Infringement Suit and (including settlement negotiations, settlement or compromise thereofii) to the extent that it relates to the manufacture, use or sale of a Licensed Product but does not implicate the Licensed Technology or Licensed Process. In the event that the Infringement Suit relates to the use of the Licensed Technology or Licensed Process, NovaDel shall have the first right to direct Emergent may withhold and control, at its expense, any such Infringement Suit (including settlement negotiations, settlement or compromise thereof). To the extent that any amounts become payable to any Third Party as a result of such action, whether through judgment or settlement, then PAR shall, unless HANA is jointly promoting and commercializing the Licensed Product pursuant to Section 2.4 and subject to Section 12.2, bear deposit into an interest-bearing escrow account [***] percent ([***]%) of all amounts that Emergent would otherwise be obligated to pay to HPA pursuant to Article V (the “Escrowed Amount”), and Emergent’s payment obligations to HPA under Article V shall be reduced accordingly, until such amounts time as a final, non-appealable judgment is rendered with respect to such Infringement Suit by a court of competent jurisdiction, or the Exploitation time permitted for appeal of a final, appealable judgment has lapsed (the “Final Judgment”). If Final Judgment is rendered in favor of Emergent (or its Affiliates or sublicensees, as the case may be), then Emergent shall pay to HPA, within ten days after the entry of such judgment, the full amount of the Licensed Product; providedEscrowed Amount. If the Final Judgment is rendered partially or entirely in favor of such Third Party, howeverthen Emergent may apply the Escrowed Amount to the payment of its defense costs in connection with such Infringement Suit and to the payment of any award it is required to pay pursuant to such Final Judgment. If the Escrowed Amount exceeds such defense costs and award then Emergent, that PAR within ten (10) days following the date of the Final Judgment, shall have remit to HPA the right amount of such excess. If the Escrowed Amount does not equal or exceed the amount of such defense costs and award, then from and after the date of the Final Judgment, Emergent shall be entitled to credit withhold [***] percent ([***]%) of any all amounts paid by PAR through judgment or settlement with respect that Emergent would otherwise be required to pay to HPA pursuant to Article V until such country against time as the royalty payments to be paid by PAR to HANA with respect to aggregate amounts so withheld plus the sale of the Licensed Product under Section 6.3; provided further, however, that no royalty payment when due, regardless of Escrowed Amounts equals the amount or number of credits available to PAR shall be reduced by more than [***] percent ([***]%) of the amounts otherwise owed pursuant to Section 6.3 in any calendar quarter. Credits not exhausted in any calendar quarter may be carried into future calendar quarters. Notwithstanding the foregoing, in the event that no payments are due or owing, or contemplated to be due or owing, by PAR to HANA under Article 6 with respect to the sale of the Licensed Product, then NovaDel shall pay to PAR such amount owed to a Third Party up to a cap of [***]% of such amount owed to such Third Party, less any amount already credited to PAR under this Section 10.3. Notwithstanding the foregoing, NovaDel shall have no obligation under this Section 10.3 for any costs, expenses or damages that are paid or payable to a Third Party as a result of an actual or alleged infringement by PAR or HANA to the extent such costs, expenses or damages result from the use of a Product Trademarkdefense costs and award.

Third Party Litigation. In the event that If a Third Party institutes a patent or other an infringement suit or action against any of NovaDel, PAR or HANA or any of Acorda and/or its respective Affiliates during Affiliate and/or sublicensee alleging that the Term, alleging manufacture, use or sale of a any Licensed Product by Acorda and/or an Affiliate and/or sublicensee, in a country in the Territory, Licensed Territory infringes one or more patent or other intellectual property rights right held by such Third Party (an “Infringement Suit”), Acorda (or such Affiliate or sublicensee) shall have the right to defend and settle such Infringement Suit at its sole expense. In such event, the Parties shall cooperate meet (which meeting may at any Party’s request be by telephone conference or videoconference) and discuss in good faith the best defenses to such Infringement Suit, and Institutions shall, subject to being indemnified against any liability and having the right to be separately represented by their own counsel at their own expense, provide Acorda with one another reasonable assistance and cooperation in defending such suit. PAR, as the NDA holder, shall have the first right to direct and control, at its expense, any Infringement Suit (including settlement negotiations, settlement or compromise thereof) to the extent that it relates to the manufacture, use or sale of a Licensed Product but does not implicate the Licensed Technology or Licensed Processat Acorda’s sole expense. In the event that the Infringement Suit relates to the use of the Licensed Technology or Licensed Process, NovaDel shall have the first right to direct and control, at its expense, any such Infringement Suit (including settlement negotiations, settlement or compromise thereof). To the extent that any amounts become payable to any Third Party as a result of such action, whether through judgment or settlement, then PAR shall, unless HANA is jointly promoting and commercializing the Licensed Product pursuant to Section 2.4 and subject to Section 12.2, bear [***] percent ([***]%) of such amounts with respect to the Exploitation of the Licensed Product; provided, however, that PAR Acorda shall have the right to credit [***] against royalties owed to the Institutions under Sections 3.2 and 3.3 fifty percent ([***]50%) of any amounts paid by PAR through judgment or settlement with respect to costs and expenses of such country against the royalty payments to be paid by PAR to HANA with respect defense and settlement, but solely to the sale extent such costs and expenses relate directly to the defense and settlement (if any) of any claims or allegations relating directly to infringement by the Licensed Product under Section 6.3; provided furtherProduct. If, however, that no royalty such Third Party makes a payment when dueto reimburse Acorda (and/or its Affiliate and/or sublicensee) for such costs and expenses of defending such infringement suit or action, regardless then Acorda will pay to Institutions, out of such Third Party payment, a pro rata amount (i.e., the ratio of the amount or number of credits available to PAR shall be reduced by more than [***] percent ([***]%) of the amounts otherwise Third Party payment compared to the total defense costs and expenses), but not to exceed the total amount that Acorda credited against royalties owed pursuant to Section 6.3 in any calendar quarter. Credits not exhausted in any calendar quarter may be carried into future calendar quartersunder the previous sentence. Notwithstanding the foregoing, Acorda (or such Affiliate or sublicensee) Certain portions of this Exhibit have been omitted pursuant to a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Commission. shall not settle any such Infringement Suit in a manner that materially adversely impacts the event that no payments are due or owingLicensed Patents without Institutions’ prior written consent, or contemplated such consent not to be due unreasonably withheld or owingdelayed. For clarity, by PAR to HANA under Article 6 with respect any costs and expenses of enforcing Licensed Patents, including those costs relating to the sale assertion of the a counterclaim alleging infringement of Licensed Product, then NovaDel shall pay to PAR such amount owed to Patents by a Third Party up in response to a cap an Infringement Suit, shall not be included in the calculation and allocation of [***]% of such amount owed to such Third Party, less any amount already credited to PAR costs and expenses under this Section 10.3. Notwithstanding 7.5, but instead shall be included in the foregoingcalculation and allocation of costs and expenses under Section 7.1, NovaDel shall have no obligation under this Section 10.3 for any costs7.2 or 7.3, expenses or damages that are paid or payable to a Third Party as a result of an actual or alleged infringement by PAR or HANA to the extent such costs, expenses or damages result from the use of a Product Trademarkapplicable.

Third Party Litigation. In The Parties acknowledge that the event that a Third Party institutes a patent or other infringement suit against any of NovaDel, PAR or HANA or any of its respective Affiliates during Company is the Term, alleging manufacture, use or sale of a Licensed Product plaintiff in the Territory, infringes one or more patent or other intellectual property rights held by such Third litigation listed on Schedule 6.16 (the “Third-Party (an “Infringement SuitLitigation”), and further acknowledge that the Company’s complaint in the Third-Party Litigation seeks money damages from a third party in an unspecified amount. The Parties shall cooperate with one another in defending such suit. PARagree that all fees, as the NDA holder, shall have the first right to direct costs and control, at its expense, any Infringement Suit (including settlement negotiations, settlement expenses arising out of or compromise thereof) related to the extent that it relates to Third-Party Litigation shall be advanced by the manufactureShareholders based on their respective Pro-Rata Percentages, use or sale including legal, consulting, court and expert expenses and costs, regardless of a Licensed Product but does not implicate the Licensed Technology or Licensed Process. In the event that the Infringement Suit relates to the use of the Licensed Technology or Licensed Process, NovaDel shall have the first right to direct and control, at its expense, whether any such Infringement Suit (including settlement negotiations, settlement or compromise thereof). To the extent that any amounts Proceeds become payable to any Third Party as a result of such action, whether through judgment or settlement, then PAR shall, unless HANA is jointly promoting and commercializing the Licensed Product Shareholders pursuant to this Section 2.4 6.16, and subject that such fees, costs and expenses are to Section 12.2, bear [***] percent ([***]%) of such amounts with respect to be paid from the Exploitation of the Licensed ProductExpense Fund; provided, however, that PAR Purchaser will not need to seek any advancement directly from the Shareholders, but may do so directly from the Shareholders Representative. The Shareholders (acting through the Shareholders Representative) shall advance to the Company or counsel for the Company in the Third-Party Litigation an amount sufficient to cover near-term anticipated fees and expenses, so that Parent or the Company has sufficient cash-on-hand to pay those costs. Parent shall until a final judgment is entered in the Third-Party Litigation or the case is settled or dismissed (a) use commercially reasonable efforts to cooperate with and support the Shareholders Representative and its counsel in the prosecution of the Third-Party Litigation (including discovery responses, and furnishing witnesses and required information) and (b) maintain the Company as a distinct corporation. If, following the Closing, the Company prevails in its claims for money damages (either through settlement or a judgment) and actually receives funds pursuant thereto (any such funds, the “Proceeds”), within ten (10) Business Days after receipt, the Company shall pay the remainder of such Proceeds, less any Taxes payable by the Company and any fees, costs and expenses and other Losses still to be reimbursed to the Company, to the Shareholders Representative for distribution to the Shareholders in accordance with their respective percentage interest. From and after the Closing Date, the Shareholders Representative shall have the right to credit [***] percent control all decisions regarding the litigation of the Third-Party Litigation; provided, however, that ([***]%A) if the Shareholders or the Shareholders Representative shall not have advanced or paid to the Company or counsel for the Company, as applicable, the costs, fees, and expenses and other amounts contemplated by this Section 6.16 within thirty (30) days of receipt of an invoice, Parent and the Company shall have the right to seek to dismiss the Third-Party Litigation without prejudice, and (B) without the prior written consent of Parent, which may be withheld, conditioned, or delayed in Parent’s sole discretion, the Shareholders Representative and the Shareholders shall not (i) approve any decision that would have any impact on Parent, the Company, the conduct of Parent, or the Business or would be detrimental to or injure the reputation or future business prospects of Parent, the Company, any of their Affiliates, or the Business; (ii) enter into any agreement of any amounts paid kind that in any manner imposes any obligations or restrictions on Parent, the Company, or any of their Affiliates; or (iii) disclose any material confidential information of the Company. The Shareholders Representative shall keep Parent and its counsel reasonably informed with respect to all material developments related to the Third-Party Litigation, including material developments with respect to key motions, hearings and firm settlement offers by PAR through judgment or either party thereto. Parent shall have the right to participate in the litigation with legal counsel of its choosing (with appropriate common defense arrangements), and the Shareholders shall pay the reasonable costs, fees and expenses of counsel retained by Parent (but only those incurred after the Closing Date). The Shareholders Representative shall reasonably cooperate with Parent and its legal counsel and other advisors in connection with such participation, including, subject in each case to the Shareholders Representative’s right to control the Third-Party Litigation, providing notice of hearings, and an opportunity to provide reasonable input in litigation decisions and strategy. Parent shall have the right in its sole discretion to agree to entry of any settlement with respect to such country the Third-Party Litigation; provided, that Parent’s agreement shall not be required for a settlement that would not (i) have any impact on Parent, the Company, the conduct of Parent, or the Business or be detrimental to or injure the reputation or future business prospects of Parent, the Company, any of their Affiliates, or the Business; (ii) in any manner impose any obligation or restriction on Parent, the Company, or any of their Affiliates; or (iii) disclose any material confidential information of the Company. Parent shall have sole control, and the Shareholders Representative shall have no right to control, any claims or counterclaims against the royalty payments to be paid by PAR to HANA Company, Parent or any of their Affiliates arising in connection with respect or relating to the sale Third-Party Litigation, and the Shareholders shall pay the costs, fees and expenses of the Licensed Product under Section 6.3counsel retained by Parent in connection therewith; provided furtherprovided, however, that no royalty payment when duesubject to Parent’s right to control such claims and counterclaims, regardless the Shareholders Representative will have the right, at Shareholders’ expense, to be reasonably informed of material developments in such claims or counterclaims and to settle those claims or counterclaims subject to the amount or number of credits available to PAR shall be reduced by more than [***] percent ([***]%) of the amounts otherwise owed pursuant to Section 6.3 in any calendar quarter. Credits not exhausted in any calendar quarter may be carried into future calendar quarters. Notwithstanding the foregoing, proviso set forth in the event that no payments are due or owing, or contemplated to be due or owing, by PAR to HANA under Article 6 with respect to the sale of the Licensed Product, then NovaDel shall pay to PAR such amount owed to a Third Party up to a cap of [***]% of such amount owed to such Third Party, less any amount already credited to PAR under this Section 10.3. Notwithstanding the foregoing, NovaDel shall have no obligation under this Section 10.3 for any costs, expenses or damages that are paid or payable to a Third Party as a result of an actual or alleged infringement by PAR or HANA to the extent such costs, expenses or damages result from the use of a Product Trademarkimmediately preceding sentence.