Common use of Existing Third Party License Agreements Clause in Contracts

Existing Third Party License Agreements. To the extent that any Existing Third Party License Agreement does not provide for an automatic sublicense to Opto-Device, Hitachi shall, upon Opto-Device’s written request, sublicense, and does hereby sublicense, rights under any such Existing Third Party License Agreements to Opto-Device but only to the extent that Hitachi has the right to make available such rights to Opto-Device, subject to the condition that Opto-Device abides by the terms and conditions of any such Existing Third Party License Agreement. The rights referred to above will be provided to Opto-Device on a fully paid-up, non-exclusive basis, except if royalty payments are necessary based specifically on what is being done by Opto-Device, then Opto-Device shall be liable for such royalty payments. Hitachi shall, upon Opto-Device’s written request, sublicense rights under Existing Third Party License Agreements to OpNext and OpNext’s and Opto-Device’s Wholly-Owned Subsidiaries provided: (i) Opto-Device obtains Hitachi’s reasonable prior written consent; (ii) Hitachi can make available such license rights to OpNext and OpNext’s and Opto-Device’s Wholly-Owned Subsidiaries; and (iii) OpNext and OpNext’s and Opto-Device’s Wholly-Owned Subsidiaries abide by the terms and conditions of such Existing Third Party License Agreements. Notwithstanding the foregoing, if any such sublicense invokes any Japanese tax issues, then Hitachi shall not be obliged to grant a sublicense to OpNext and OpNext’s and Opto-Device’s Wholly-Owned Subsidiaries without entering into a separate agreement with OpNext and such Wholly-Owned Subsidiaries under reasonable terms and conditions to be agreed upon between the relevant parties to address such tax issues. The sublicense provided in this subsection 5(b) is subject to the termination provisions of the Existing Third Party License Agreement. The rights referred to above will be provided to OpNext and such Wholly-Owned Subsidiaries on a fully paid-up, non-exclusive basis, except if royalty payments are necessary based specifically on what is being done by OpNext and such Wholly-Owned Subsidiaries, then Opto-Device shall be liable for or shall cause OpNext and such Wholly-Owned Subsidiaries to be liable for such royalty payments.

Existing Third Party License Agreements. To the extent that any an Existing Third Party License Agreement does not provide for an automatic sublicense to Opto-DeviceOpNext Japan, Hitachi shall, upon Opto-DeviceOpNext Japan’s written request, sublicense, and does hereby sublicense, rights under any such Existing Third Party License Agreements Agreement to Opto-Device OpNext Japan but only to the extent that Hitachi has the right to make available such rights to Opto-DeviceOpNext Japan, subject to the condition that Opto-Device OpNext Japan abides by the terms and conditions of any such Existing Third Party License Agreement. The rights referred to above will be provided to Opto-Device OpNext Japan on a fully paid-up, non-exclusive basis, except if royalty payments are necessary based specifically on what is being done by Opto-DeviceOpNext Japan, then Opto-Device OpNext Japan shall be liable for such royalty payments. Hitachi shall, upon Opto-DeviceOpNext Japan’s written request, sublicense rights under Existing Third Party License Agreements to OpNext, Inc. and OpNext and OpNextInc.’s and Opto-DeviceOpNext Japan’s Wholly-Owned Subsidiaries provided: (i) Opto-Device OpNext Japan obtains Hitachi’s reasonable prior written consent; (ii) Hitachi can make available such license rights to OpNext OpNext, Inc. and OpNext, Inc.’s and Opto-DeviceOpNext Japan’s Wholly-Owned Subsidiaries; and (iii) OpNext OpNext, Inc. and OpNext, Inc.’s and Opto-DeviceOpNext Japan’s Wholly-Owned Subsidiaries abide by the terms and conditions of such Existing Third Party License Agreements. Notwithstanding the foregoing, if any such sublicense invokes any Japanese tax issues, then Hitachi shall not be obliged to grant a sublicense to OpNext OpNext, Inc. and OpNext, Inc.’s and Opto-DeviceOpNext Japan’s Wholly-Owned Subsidiaries without entering into a separate agreement with OpNext OpNext, Inc. and such Wholly-Owned Subsidiaries under reasonable terms and conditions to be agreed upon between the relevant parties to address such tax issues. The sublicense provided in this subsection 5(b) is subject to the termination provisions of the Existing Third Party License Agreement. The rights referred to above will be provided to OpNext OpNext, Inc. and such Wholly-Owned Subsidiaries on a fully paid-up, non-exclusive basis, except if royalty payments are necessary based specifically on what is being done by OpNext OpNext, Inc. and such Wholly-Owned Subsidiaries, then Opto-Device OpNext Japan shall be liable for or shall cause OpNext OpNext, Inc. and such Wholly-Owned Subsidiaries to be liable for such royalty payments.

Existing Third Party License Agreements. To (a) Licensor represents and warrants to Novartis as of the extent Execution Date as follows: (i) Licensor has provided Novartis with a complete, current and accurate copy of each of the Existing Third Party License Agreements, including all amendments of each, as such agreements exist on the date hereof; (ii) except as expressly provided in the Existing Third Party License Agreements, neither Licensor nor its Affiliates has any commitments or agreements with any Third Party which would materially, individually or in the aggregate, interfere with or preclude the fulfillment of its obligations or the exercise by Novartis of its rights under this Agreement; (iii) Licensor has carried out all requirements under each of the Existing Third Party License Agreements that are necessary to enable it to validly grant sublicenses and other rights to Novartis pursuant to the terms of this Agreement, and to validly supply and distribute the Compound and Product pursuant to the terms of the Manufacturing and Supply Agreement, and there are no other requirements under the Existing Third Party License Agreements necessary to enable Licensor to validly grant sublicenses or to supply and distribute the Compound and Product; (iv) except for the April 30 Licensors and PG-TXL (whose rights are described in the respective Existing Third Party License Agreement to which such entity is a party), no Third Party has any right, title or interest in or to the Compound or Product in the Territory; (A) Licensor has complied at all times with its obligations under the PG-TXL License Agreement and, to Licensor’s knowledge, PG-TXL has complied at all times with its obligations under the April 30 License Agreement and (B) Licensor is not in default, and there are no circumstances existing on the date hereof which, with notice or the passage of time or both, could reasonably be expected to result in a default under any of the Existing Third Party License Agreements; (vi) to Licensor’s knowledge, no other party to any of the Existing Third Party License Agreements is in default or breach of such agreement; (vii) the Existing Third Party License Agreements are in full force and effect and are legal, valid and binding agreements, enforceable in accordance with their terms except as enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles; (viii) the letter dated July 26, 1999 from Xxxx Xxxxxxxxxx, M.D., on behalf of The University of Texas System MD Xxxxxxxx Cancer Center, to the April 30 Licensors constitutes the “letter to be dated on or about November 16, 1998, from Xxxx Xxxxxxxxxx, M.D. to the April 30 Licensors” described in the definition of “MD Xxxxxxxx Release” in the PG-TXL License Agreement; (ix) there are no agreements, arrangements or understandings between PG-TXL and PG-TXL Company, L.L.C. that would restrict or limit Novartis’ rights hereunder or impose any obligations (monetary or otherwise) on Novartis or its Affiliates in respect of the Compound or the Product; and (x) no Inventions (as defined in the Chugai Agreement) have been conceived or reduced to practice in connection with or as a result of activities by Chugai Pharmaceutical Co. Ltd. or its affiliates under the Chugai Agreement. (b) Licensor covenants and agrees as follows: (i) with respect to each of the Existing Third Party License Agreements, CTI will not take any action or fail to take action that (A) constitutes a breach or default thereunder or gives rise to any right of termination, cancellation or acceleration thereof, (B) affects the continuation, validity and effectiveness or terms thereof or (C) affects in any way Novartis’ rights under this Agreement, the Manufacturing and Supply Agreement or any other agreement between the Parties or their respective Affiliates entered into in connection herewith; (ii) absent the prior written consent of Novartis, which may be given or withheld in its sole discretion, CTI will not (A) amend, alter or modify the terms of any Existing Third Party License Agreement, (B) grant or withhold any consent or approval or waive any rights under any Existing Third Party License Agreement does not provide for an automatic sublicense or (C) take any action to Opto-Device, Hitachi shall, upon Opto-Device’s written request, sublicense, and does hereby sublicense, rights under terminate any such Existing Third Party License Agreements to Opto-Device but only to the extent that Hitachi has the right to make available such rights to Opto-Device, subject to the condition that Opto-Device abides by the terms and conditions of any such Existing Third Party License Agreement. The rights referred to above will be provided to Opto-Device on a fully paid-up, non-exclusive basis, except if royalty payments are necessary based specifically on what is being done by Opto-Device, then Opto-Device shall be liable for such royalty payments. Hitachi shall, upon Opto-Device’s written request, sublicense rights under Existing Third Party License Agreements to OpNext and OpNext’s and Opto-Device’s Wholly-Owned Subsidiaries provided: (i) Opto-Device obtains Hitachi’s reasonable prior written consent; (ii) Hitachi can make available such license rights to OpNext and OpNext’s and Opto-Device’s Wholly-Owned Subsidiaries; and ; (iii) OpNext on the Effective Date, CTI shall deliver to PG-TXL, in accordance with the notice delivery procedures set forth in Section 15.06 of the PG-TXL License Agreement, a written notice in a form satisfactory to Novartis, which notice shall inform PG-TXL of this Agreement and OpNext’s and Opto-Device’s Wholly-Owned Subsidiaries abide by the terms and conditions of such Existing Third Party License Agreements. Notwithstanding the foregoing, if any such sublicense invokes any Japanese tax issues, then Hitachi shall not be obliged to grant a sublicense to OpNext and OpNext’s and Opto-Device’s Wholly-Owned Subsidiaries without entering into a separate agreement with OpNext and such Wholly-Owned Subsidiaries under reasonable terms and conditions to be agreed upon between the relevant parties to address such tax issues. The sublicense provided assignments set forth in this subsection 5(bSection 15.5 of rights under the PG-TXL License Agreement and shall modify the notices provision to require that PG-TXL send Novartis copies of any notices given pursuant to Section 15.06 of the PG-TXL License Agreement; (iv) is subject CTI shall promptly deliver to the termination provisions Novartis copies of any and all notices given by or with respect to any party pursuant to any of the Existing Third Party License Agreement. The rights referred Agreements, including without limitation any notice of a bankruptcy filing; (v) CTI shall provide prompt written notice to above Novartis of any breach of any of the Existing Third Party License Agreements by CTI or any other party thereto; (vi) Novartis, on behalf of CTI may make payments owed by CTI to any other party to any of the Existing Third Party License Agreements under such Existing Third Party License Agreement directly to such party; (vii) CTI will be provided permit Novartis to OpNext and such Wholly-Owned Subsidiaries on a fully paid-up, cure any monetary or non-exclusive basismonetary default or breach by CTI of any Existing Third Party License Agreements and, except subject to clause (xii) below, to the extent CTI fails to take any actions necessary to cure any such default or breach of the PG-TXL License Agreement, CTI hereby assigns to Novartis all applicable rights under the PG-TXL License Agreement permitting CTI to take such actions; (viii) in the event of the bankruptcy or similar proceeding of any other party to an Existing Third Party License Agreement, (A) CTI shall promptly and diligently exercise all rights and remedies under the Code and/or other applicable law, including Section 365(n) of the Code, to preserve its license and other rights under such Existing Third Party License Agreement and (B) if royalty CTI does not provide adequate assurance of performance in such Bankruptcy proceeding, Novartis shall have the right to provide adequate assurance of performance in such proceeding; (ix) CTI hereby assigns to Novartis all of its rights under Sections 14.01(b), (c) and (d) and 14.02 of the PG-TXL License Agreement; (x) Novartis shall have the right to offset the full amount of any payments made and costs or expenses incurred by Novartis or its Affiliates in exercising any of its rights under clauses (vi), (vii), (viii) and/or (ix) above and/or Section 14.01(c) of the PG-TXL License Agreement (which is assigned to Novartis pursuant to clause (ix) above), in whole or in part, against any Milestone Payments, royalties, reimbursements or other amounts due to CTI hereunder; (xi) subject to clause (xii) below, CTI hereby designates and appoints Novartis its true and lawful attorney, with full power of substitution, in its name, place, and stead to take any and all actions and execute and deliver any and all documents, instruments or agreements that are necessary based specifically on what is being done by OpNext and such Wholly-Owned Subsidiaries, then Opto-Device or appropriate for Novartis to exercise its rights under this Section 15.5(b). This power of attorney shall be coupled with an interest and shall expire upon the termination of this Agreement pursuant to Section 13; and (xii) anything herein to the contrary notwithstanding, (A) CTI shall remain liable for under the Existing Third Party License Agreements, to the extent set forth therein, to perform all of its duties and obligations thereunder to the same extent as if this Agreement had not been executed, (B) the exercise by Novartis of any of the rights hereunder shall not release CTI from any of its duties or obligations under the Existing Third Party License Agreements and (C) Novartis shall cause OpNext and such Wholly-Owned Subsidiaries not have any obligation or liability under the Existing Third Party License Agreements by reason of this Agreement, nor shall Novartis be obligated to be liable for such royalty paymentsperform any of the obligations or duties of CTI thereunder or to take any action to collect or enforce any of the Existing Third Party License Agreements.