Common use of Allocation of Recoveries Clause in Contracts

Allocation of Recoveries. Except as provided in subsection (g), any amounts recovered by ELAN pursuant to actions under Section 9.2.1(b), whether by settlement or judgment, shall be allocated in the following order: (i) first, to reimburse ELAN and ARCHEMIX for their reasonable out-of-pocket expenses in making such recovery (which amounts shall be allocated pro rata if insufficient to cover the totality of such expenses); and (ii) second (A) with respect to actual damages, then, to ELAN and ARCHEMIX [***] ELAN’s historic profits or Net Sales of the Product or Products affected by the Infringement bears to ARCHEMIX’ historic royalties hereunder in respect of such Net Sales, in each case as determined in good faith, and (B) with respect to punitive, special or consequential damages, [***] percent ([***]%) to ELAN. Any amounts recovered by ARCHEMIX pursuant to actions under Section 9.2.1(b) shall be allocated in the following order: (X) first, to reimburse CONFIDENTIAL Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s application requesting confidential treatment under Rule 406 of the Securities Act. ARCHEMIX and ELAN for their reasonable out of pocket expenses in making such recovery (which amounts shall be allocated pro rata if insufficient to cover the totality of such expenses); and (Y) then, [***]% to ARCHEMIX.

Allocation of Recoveries. Except as provided in subsection (g), any Any amounts recovered by ELAN MERCK pursuant to actions under Section 9.2.1(b9.2.1(b)(ii), whether by settlement or judgment, shall be Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s application requesting confidential treatment under Rule 406 of the Securities Act. allocated in the following order: (i) first, to reimburse ELAN MERCK and ARCHEMIX for their reasonable out-of-pocket expenses in making such recovery (which amounts shall be allocated pro rata if insufficient to cover the totality of such expenses); and (ii) second (A) with respect to actual damages, then, to ELAN MERCK and ARCHEMIX [***] ELANMERCK’s historic profits or Net Sales of the Product or Products affected by the Infringement bears to ARCHEMIX’ historic royalties hereunder in respect of such Net Sales, in each case as determined in good faith, and (B) with respect to punitive, special or consequential damages, [***] percent ([***]%) to ELANMERCK. Any amounts recovered by ARCHEMIX pursuant to actions under Section 9.2.1(b9.2.1(c)(ii) shall be allocated in the following order: (X) first, to reimburse CONFIDENTIAL Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s application requesting confidential treatment under Rule 406 of the Securities Act. ARCHEMIX and ELAN MERCK for their reasonable out of pocket expenses in making such recovery (which amounts shall be allocated pro rata if insufficient to cover the totality of such expenses); and (Y) then, [***]% to ARCHEMIX.

Allocation of Recoveries. Except as provided in subsection (g), any Any amounts recovered by ELAN MERCK pursuant to actions under Section 9.2.1(b10.2.1(b)(ii), whether by settlement or judgment, shall be allocated in the following order: (i) first, to reimburse ELAN MERCK and ARCHEMIX for their reasonable out-of-pocket expenses in making such recovery (which amounts shall be allocated pro rata if insufficient to cover the totality of such expenses); and (ii) second (A) with respect to actual damages, then, to ELAN MERCK and ARCHEMIX [***] ELANMERCK’s historic profits or Net Sales of the Product or Products affected by the Infringement bears to ARCHEMIX’ historic royalties hereunder in respect of such Net Sales, in each case as determined in good faith, and (B) with respect to punitive, special or consequential damages, [***] percent ([***]%) to ELANMERCK. Any amounts recovered by ARCHEMIX pursuant to actions under Section 9.2.1(b10.2.1(c)(ii) shall be allocated in the following order: (X) first, to reimburse CONFIDENTIAL ARCHEMIX and MERCK for their reasonable out of pocket expenses in making such recovery (which amounts Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s application requesting confidential treatment under Rule 406 of the Securities Act. ARCHEMIX and ELAN for their reasonable out of pocket expenses in making such recovery (which amounts 91 shall be allocated pro rata if insufficient to cover the totality of such expenses); and (Y) then, [***]% to ARCHEMIX.