Common use of Allocation of Recovery Clause in Contracts

Allocation of Recovery. (a) Any damages or other recovery from an infringement action undertaken by Verastem pursuant to Section 5.2.2(a) shall first be used to reimburse the Parties for the costs and expenses incurred in such action, and shall thereafter be allocated between the Parties as follows: (i) [**] percent ([**]%) to Poniard and (ii) [**] percent ([**]%) to Verastem. If Verastem decides not to undertake such action, then any damages or recovery obtained by Poniard by undertaking such action, net of the Parties’ costs and expenses incurred in such infringement action, shall be allocated entirely to Poniard and shall be the sole property of Poniard. (b) Any damages or other recovery from an infringement action undertaken by Poniard pursuant to Section 5.2.2(b) shall (i) first be used to reimburse the Parties for the costs and expenses incurred in such action, (ii) second, if such action included an In-Licensed Patent Right, any amounts required to be paid to the relevant Third Party licensor shall be paid to such licensor to the extent provided in the agreement between Poniard and such licensor with respect to the applicable In-Licensed Patent Rights and (iii) third the remainder shall be allocated between the Parties as follows: (A) [**] percent ([**]%) to Poniard and (B) [**] percent ([**]%) to Verastem. If Verastem decides not to direct Poniard to undertake such action, then any damages or recovery obtained by Poniard by undertaking such action, net of the Parties’ costs and expenses incurred in such infringement action, shall be allocated entirely to Poniard and shall be the sole property of Poniard.

Allocation of Recovery. (a) Any Except as otherwise agreed by the Parties as part of a cost-sharing arrangement, any damages or other recovery from an infringement action or proceeding undertaken by Verastem either Party pursuant to Section 5.2.2(a6.2(b) or Section 6.2(c), shall first be used to reimburse the Parties for the costs and expenses incurred in such actionaction or proceeding, and any remainder after such reimbursement shall thereafter be allocated between retained by the Parties as follows: Party that brought and controlled such action or proceeding for purposes of this Agreement, except that: (i) [**] percent ([**]%) to Poniard and (ii) [**] percent ([**]%) to Verastem. If Verastem decides not to undertake such action, then any damages or recovery obtained by Poniard by undertaking such action, net of the Parties’ costs and expenses incurred in such infringement action, shall be allocated entirely to Poniard and shall be the sole property of Poniard. (b) Any damages or other recovery from an infringement action undertaken by Poniard Xxxxxx pursuant to Section 5.2.2(b) shall (i) first be used to reimburse 6.2(b), after reimbursement of the Parties for the costs and Parties’ litigation expenses incurred in such action, (ii) second, if such action included an In-Licensed Patent Right, any amounts required to be paid to the relevant Third Party licensor shall be paid to such licensor to the extent provided in the agreement between Poniard and such licensor with respect to the applicable In-Licensed Patent Rights and (iii) third the remainder shall be allocated between the Parties as follows: (A) [***] percent ([***]%) to Poniard Xxxxxx and (B) [***] percent ([***]%) to Verastem. If Verastem decides not to direct Poniard to undertake such action, then Xxxxxx; and (ii) that portion of any damages or other recovery obtained from an action undertaken by Poniard by undertaking such actionXxxxxx pursuant to Section 6.2(c) that are specifically attributable to Competitive Infringement, net after reimbursement of the Parties’ costs and expenses incurred in such infringement actionlitigation expenses, shall be he allocated entirely between the Parties as follows: (A) [***] percent ([***]%) to Poniard Xxxxxx and shall be the sole property of Poniard(B) [***] percent ([***]%) to Xxxxxx. CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.