Common use of Allocation of any Damages Award Clause in Contracts

Allocation of any Damages Award. Any damages recovered in connection with any suit or action brought pursuant to Section 7.2, or any DJ ACTION defended pursuant to section 7.3 shall be used (a) first to reimburse the party primarily responsible for conduct or defense of the litigation (i.e., CELGENE if the action is brought pursuant to Section 7.2(b) or defended pursuant to Section 7.3(a), ENTREMED if the action is brought pursuant to Section 7.2(c) or defended pursuant to Section 7.3(b), CMCC if the action is brought pursuant to Section 7.2(d) or defended pursuant to Section 7.3(c), and BIOVENTURE if the action is brought pursuant to Section 7.2(e) or defended pursuant to Section 7.3(d)) (each, as applicable, the "PRIMARY LITIGANT") for the cost of such suit or action (including attorney's fees) actually paid by such PRIMARY LITIGANT, then (b) to reimburse any INTERESTED PARTY that has, pursuant to the terms of Section 7.2 or 7.3, voluntarily joined any action brought or defended hereunder, for the cost of such suit or action (including attorney's fees) actually paid by such voluntarily joined INTERESTED PARTY, then (c) to reimburse CMCC and BIOVENTURE pro rata for any loss of royalties payable hereunder or under the NEW ANALOG AGREEMENT, as applicable. In the event that CELGENE and/or ENTREMED has, pursuant to the terms of Section 7.2 or 7.3, voluntarily joined any action brought or defended hereunder, then any damages remaining after the distributions set forth in subsections (a) through (c) of this Section 7.4 ("RESIDUAL DAMAGES") shall first be used to reimburse CELGENE and/or ENTREMED, as applicable, for their lost profits. Any remaining RESIDUAL DAMAGES shall next be distributed to or among the PRIMARY LITIGANT and any INTERESTED PARTIES that have, pursuant to the terms of Section 7.2 or 7.3, voluntarily joined any action brought or defended hereunder, on a basis to be determined in good faith by such INTERESTED PARTIES and the PRIMARY LITIGANT based on each such party's respective commercial interest in the subject matter of such suit or action.

Allocation of any Damages Award. Any damages recovered in connection with any suit or action brought pursuant to Section 7.2, or any DJ ACTION defended pursuant to section 7.3 shall be used (a) first to reimburse the party primarily responsible for conduct or defense of the litigation (i.e., CELGENE if the action is brought pursuant to Section 7.2(b) or defended pursuant to Section 7.3(a), ENTREMED if the action is brought pursuant to Section 7.2(c) or defended pursuant to Section 7.3(b), CMCC if the action is brought pursuant to Section 7.2(d) or defended pursuant to Section 7.3(c), and BIOVENTURE if the action is brought pursuant to Section 7.2(e) or defended pursuant to Section 7.3(d)) (each, as applicable, the "PRIMARY LITIGANT") for the cost of such suit or action (including attorney's fees) actually paid by such PRIMARY LITIGANT, then (b) to reimburse any INTERESTED PARTY that has, pursuant to the terms of Section 7.2 or 7.3, voluntarily joined any action brought or defended hereunder, for the cost of such suit or action (including attorney's fees) actually paid by such voluntarily voluntarily-joined INTERESTED PARTY, then (c) to reimburse CMCC and BIOVENTURE pro rata for any loss of royalties payable hereunder or under the NEW ANALOG AGREEMENT, as applicable. In the event that CELGENE and/or ENTREMED has, pursuant to the terms of Section 7.2 or 7.3, voluntarily joined any action brought or defended hereunder, then any damages remaining after the distributions set forth in subsections (a) through (c) of this Section 7.4 ("RESIDUAL DAMAGES") shall first be used to reimburse CELGENE and/or ENTREMED, as applicable, for their lost profits. Any remaining RESIDUAL DAMAGES shall next be distributed to or among the PRIMARY LITIGANT and any INTERESTED PARTIES that have, pursuant to the terms of Section 7.2 or 7.3, voluntarily joined any action brought or defended hereunder, on a basis to be determined in good faith by such INTERESTED PARTIES and the PRIMARY LITIGANT based on each such party's respective commercial interest in the subject matter of such suit or action.

Allocation of any Damages Award. Any damages recovered in connection with any suit or action brought pursuant to Section 7.2, or any DJ ACTION defended pursuant to section 7.3 shall be used (a) first to reimburse the party primarily responsible for conduct or defense of the litigation (i.e.I.E., CELGENE if the action is brought pursuant to Section 7.2(b) or defended pursuant to Section 7.3(a), ENTREMED if the action is brought pursuant to Section 7.2(c) or defended pursuant to Section 7.3(b), CMCC if the action is brought pursuant to Section 7.2(d) or defended pursuant to Section 7.3(c), and BIOVENTURE if the action is brought pursuant to Section 7.2(e) or defended pursuant to Section 7.3(d)) (each, as applicable, the "PRIMARY LITIGANT") for the cost of such suit or action (including attorney's fees) actually paid by such PRIMARY LITIGANT, then (b) to reimburse any INTERESTED PARTY that has, pursuant to the terms of Section 7.2 or 7.3, voluntarily joined any action brought or defended hereunder, for the cost of such suit or action (including attorney's fees) actually paid by such voluntarily voluntarily-joined INTERESTED PARTY, then (c) to reimburse CMCC and BIOVENTURE pro rata for any loss of royalties payable hereunder or under the NEW ANALOG AGREEMENT, as applicable. In the event that CELGENE and/or ENTREMED has, pursuant to the terms of Section 7.2 or 7.3, voluntarily joined any action brought or defended hereunder, then any damages remaining after the distributions set forth in subsections (a) through (c) of this Section 7.4 ("RESIDUAL DAMAGES") shall first be used to reimburse CELGENE and/or ENTREMED, as applicable, for their lost profits. Any remaining RESIDUAL DAMAGES shall next be distributed to or among the PRIMARY LITIGANT and any INTERESTED PARTIES that have, pursuant to the terms of Section 7.2 or 7.3, voluntarily joined any action brought or defended hereunder, on a basis to be determined in good faith by such INTERESTED PARTIES and the PRIMARY LITIGANT based on each such party's respective commercial interest in the subject matter of such suit or action.

Allocation of any Damages Award. Any damages recovered in connection with any suit or action brought pursuant to Section 7.2, or any DJ ACTION defended pursuant to section 7.3 shall be used (a) first to reimburse the party primarily responsible for conduct or defense of the litigation (i.e., CELGENE if the action is brought pursuant to Section 7.2(b) or defended pursuant to Section 7.3(a), ENTREMED if the action is brought pursuant to Section 7.2(c) or defended pursuant to Section 7.3(b), CMCC if the action is brought pursuant to Section 7.2(d) or defended pursuant to Section 7.3(c), and BIOVENTURE if the action is brought pursuant to Section 7.2(e) or defended pursuant to Section 7.3(d)) (each, as applicable, the "PRIMARY LITIGANT") for the cost of such suit or action (including attorney's fees) actually paid by such PRIMARY LITIGANT, then (b) to reimburse any INTERESTED PARTY that has, pursuant to the terms of Section 7.2 or 7.3, voluntarily joined any action brought or defended hereunder, for the cost of such suit or action (including attorney's fees) actually paid by such voluntarily voluntarily-joined INTERESTED PARTY, then (c) to reimburse CMCC and BIOVENTURE pro rata for any loss of royalties payable hereunder or under the NEW ANALOG AGREEMENT, as applicable. In the event that CELGENE and/or ENTREMED has, pursuant to the terms -49- <PAGE> of Section 7.2 or 7.3, voluntarily joined any action brought or defended hereunder, then any damages remaining after the distributions set forth in subsections (a) through (c) of this Section 7.4 ("RESIDUAL DAMAGES") shall first be used to reimburse CELGENE and/or ENTREMED, as applicable, for their lost profits. Any remaining RESIDUAL DAMAGES shall next be distributed to or among the PRIMARY LITIGANT and any INTERESTED PARTIES that have, pursuant to the terms of Section 7.2 or 7.3, voluntarily joined any action brought or defended hereunder, on a basis to be determined in good faith by such INTERESTED PARTIES and the PRIMARY LITIGANT based on each such party's respective commercial interest in the subject matter of such suit or action.