Common use of Infringement Action by Third Parties Clause in Contracts

Infringement Action by Third Parties. (a) In the event of the institution of any suit by a third party against ACORDA for patent infringement involving the manufacture, sale, offer for sale, distribution or marketing of any Product in the Territory, ACORDA shall have the right to defend such suit at its own expense, and MAYO hereby agrees to assist and cooperate with ACORDA, at ACORDA’s expense, to the extent necessary in the defense of such suit. During the pendency of any such action, ACORDA shall continue to make all payments due under this Agreement, provided however, that ACORDA shall be entitled to a credit against such payments of an amount equal to one-half of the reasonable costs actually incurred in such action. (b) If ACORDA finally prevails and receives an award from such third party as a result of such action (whether by way of judgment, award, decree, settlement or otherwise), such award shall be allocated, first, to ACORDA and MAYO to reimburse each Party for its pro rata share of costs and expenses incurred in such action, and the remaining amount shall be retained by ACORDA, provided however, that such amount shall be deemed to constitute Net Sales for purposes of this Agreement. (c) If ACORDA finally loses, whether by judgment, award, decree or settlement, and is required to pay a royalty or damages to such third party, ACORDA shall continue to pay the royalties for such Licensed Product in the country(ies) which is the subject of such action, but shall be entitled to a credit against such payments in an amount-equal to the royalty or damages paid to such third party, but in no event shall such credit be more than 50% of the royalties due hereunder for such Licensed Product in such country(ies). (d) If ACORDA is required to pay a royalty or damages to a third party pursuant to Section 6.4(c) and the amount of such royalty or damages exceeds 50% of the royalties due hereunder for such Licensed Product in such country(ies), ACORDA shall have the right to terminate this Agreement solely with respect to such Licensed Product in such country(ies). The effect of any such termination shall be the same as any termination by ACORDA pursuant to Section 9.4.

Infringement Action by Third Parties. (a) In the event of the institution of any claim or suit by a third party Third Party against ACORDA BND for patent infringement involving the manufacture, saleuse, offer for sale, distribution lease or marketing sale of any Licensed Product in the Territory, ACORDA BND shall promptly notify BDSI in writing of such claim or suit. BND shall have the right to defend such claim or suit at its own expense, and MAYO BDSI hereby agrees to assist and cooperate with ACORDABND, at ACORDA’s BDSI's own expense, to the extent necessary in the defense of such claim or suit. During the pendency of any such actionclaim or suit, ACORDA BND shall continue to make all payments due under this Agreement, provided but shall have a credit against Running Royalties otherwise payable hereunder for the full amount of all costs and expenses incurred by BND in defending against such claim or suit; provided, however, that ACORDA in applying the credit against any Running Royalty payment, the amount of such payment shall not be reduced by more than 50% and any remaining credit shall be entitled to a credit applied against such subsequent Running Royalty payments of an amount equal to one-half of the reasonable costs actually incurred in such action. (b) If ACORDA finally prevails and receives an award from such third party as a result of such action (whether by way of judgment, award, decree, settlement or otherwise), such award shall be allocated, first, to ACORDA and MAYO to reimburse each Party for its pro rata share of costs and expenses incurred in such action, and the remaining amount shall be retained by ACORDA, provided however, that such amount shall be deemed to constitute Net Sales for purposes of this Agreement. (c) If ACORDA finally loses, whether by any judgment, award, decree or settlementsettlement resulting from a claim or action instituted by a Third Party, and BND is required to pay a royalty or damages other amounts to such third partyThird Party ("Third Party Royalty"), ACORDA BND shall continue to pay the royalties for such Licensed Product Running Royalties in the country(ies) country which is the subject of such action, but shall be entitled to a credit against such payments in an amount-amount equal to the royalty or damages paid to such third partyThird Party Royalty, but in no event shall such credit be more than 50% the Running Royalties due hereunder in such country which is the subject of such action and any remaining credit shall be applied against subsequent Running Royalty payments. In addition, if BND is required to pay damages to such Third Party, and such damages are not otherwise reimbursed by BDSI, BND shall be entitled to a credit against Running Royalty payments in an amount equal to such damages, to the royalties extent paid by BND to such Third Party, but in no event shall the total credit provided hereunder be more than such Running Royalties due hereunder for such Licensed Product Products in such country(ies). (d) If ACORDA country which is required to pay a royalty or damages to a third party pursuant to Section 6.4(c) and the amount subject of such royalty or damages exceeds 50% of the royalties due hereunder for such Licensed Product in such country(ies), ACORDA shall have the right to terminate this Agreement solely with respect to such Licensed Product in such country(ies). The effect of any such termination shall be the same as any termination by ACORDA pursuant to Section 9.4action.

Infringement Action by Third Parties. (a) In the event of the institution or threatened institution of any suit by a third party Third Party against ACORDA Licensee for patent infringement involving the manufacture, sale, offer for sale, distribution or marketing of any the Product in the TerritoryTerritory where such infringement claim is a result of the use of the Licensed Technology, ACORDA Licensee shall promptly notify Medistem in writing of such suit. Unless otherwise covered by Section 9.3, Licensee shall have the right to defend such suit at its own expense, expense and MAYO shall be responsible for all damages incurred as a result thereof. Medistem hereby agrees to assist and cooperate with ACORDALicensee, at ACORDALicensee’s reasonable request and expense, to the extent necessary in the defense of such suitsuit (including, without limitation, consenting to being named as a nominal party thereto). During the pendency of any such actionaction and thereafter, ACORDA Licensee shall continue to make all payments due under this Agreement, provided however, that ACORDA shall be entitled to a credit against such payments of an amount equal to one-half of the reasonable costs actually incurred in such action. (b) If ACORDA finally prevails and receives an Any award from such third party Third Party that arises as a result of such action described in Section 7.4(a) (whether by way of judgment, award, decree, settlement or otherwise)) shall be allocated as follows: (i) if Licensee finally prevails, such award shall be allocated, first, to ACORDA and MAYO applied first to reimburse each Party Licensee for its pro rata share of all costs and expenses incurred in by it with respect to such actionaction and, and the remaining amount if after such reimbursement any funds shall be retained by ACORDA, provided however, that remain from such amount shall be deemed to constitute Net Sales for purposes of this Agreement. (c) If ACORDA finally loses, whether by judgment, award, decree or settlement, and is required to pay a royalty or damages to such third party, ACORDA shall continue to pay the royalties for such Licensed Product in the country(ies) which is the subject of such action, but Licensee shall be entitled to a credit against retain such payments in an amount-equal to the royalty or damages paid to such third party, excess funds but in no event shall such credit be more than 50% of the royalties due hereunder for such Licensed Product in such country(ies). (d) If ACORDA is required to pay Medistem a royalty or damages to a third party pursuant to Section 6.4(cthereon, at the applicable rate for the country in which such action takes place, as if such excess funds constituted Net Sales; (ii) and the amount of such royalty or damages exceeds 50% of the royalties due hereunder for such Licensed Product in such country(ies), ACORDA shall have the right to terminate this Agreement solely if Medistem indemnifies Licensee with respect to any such Licensed Product action and finally prevails, Medistem shall be entitled to retain such award; or (iii) if the Parties cooperate in such country(ies). The effect the defense of any such termination action, the expenses of such defense shall be borne by the Parties in such proportions as they may agree in writing, and the Parties shall allocate between themselves any part of such award remaining after the reimbursement of such expenses, in the same proportion as any termination by ACORDA pursuant they have agreed to Section 9.4bear the expenses of such defense.

Infringement Action by Third Parties. (a) In the event of the institution or threatened institution of any suit by a third party Third Party against ACORDA Santen for patent infringement involving the manufacture, sale, offer for sale, distribution or marketing of any the Product in the TerritoryTerritory where such infringement claim is a result of the use of the Licensed Technology, ACORDA Santen shall promptly notify Inspire in writing of such suit. Unless otherwise covered by Section 11.3(c), Santen shall have the right to defend such suit at its own expense, expense and MAYO shall be responsible for all damages incurred as a result thereof. Inspire hereby agrees to assist and cooperate with ACORDASanten, at ACORDA’s Santen's reasonable request and expense, to the extent necessary in the defense of such suitsuit (including, without limitation, consenting to being named as a nominal party thereto). During the pendency of any such actionaction and thereafter, ACORDA Santen shall continue to make all payments due under this Agreement. (b) In the event that Santen incurs any liability to a Third Party for royalties or other damages as the result of any such action as described in Section 9.4(a), provided however, that ACORDA Santen shall be entitled to a credit against such payments of royalties due under this Agreement in an amount equal to one-half [CONFIDENTIAL TREATMENT REQUESTED] of Santen's actual costs in defending any such action, and [CONFIDENTIAL TREATMENT REQUESTED] of the reasonable costs actually royalties and other damages Santen pays such Third Party; provided, however, that Santen shall not be entitled to take as a credit in any period any amount in excess of [CONFIDENTIAL TREATMENT REQUESTED] of the royalties otherwise due under this Agreement with respect to Net Sales in the country in which such action takes place. Any credit under this Section which is not applied in the period incurred in such actionas a result of the foregoing limitation may be carried forward and applied to any subsequent period until the credit has been fully applied. (bc) If ACORDA finally prevails and receives an Any award from such third party Third Party that arises as a result of such action as described in Section 9.4(a) (whether by way of judgment, award, decree, settlement or otherwise)) shall be allocated as follows: (i) if Santen finally prevails, such award shall be allocated, first, to ACORDA and MAYO applied first to reimburse each Party Santen for its pro rata share of all costs and expenses incurred in such action, and the remaining amount shall be retained by ACORDA, provided however, that such amount shall be deemed to constitute Net Sales for purposes of this Agreement. (c) If ACORDA finally loses, whether by judgment, award, decree or settlement, and is required to pay a royalty or damages to such third party, ACORDA shall continue to pay the royalties for such Licensed Product in the country(ies) which is the subject of such action, but shall be entitled to a credit against such payments in an amount-equal to the royalty or damages paid to such third party, but in no event shall such credit be more than 50% of the royalties due hereunder for such Licensed Product in such country(ies). (d) If ACORDA is required to pay a royalty or damages to a third party pursuant to Section 6.4(c) and the amount of such royalty or damages exceeds 50% of the royalties due hereunder for such Licensed Product in such country(ies), ACORDA shall have the right to terminate this Agreement solely it with respect to such Licensed Product in action and, if after such country(ies). The effect of reimbursement any funds shall remain from such termination shall be the same as any termination by ACORDA pursuant to Section 9.4award, [CONFIDENTIAL TREATMENT REQUESTED].

Infringement Action by Third Parties. (a) In the event of the institution of any claim or suit by a third party against ACORDA BDS for patent infringement involving the manufacture, saleuse, offer for sale, distribution lease or marketing sale of any Product in the TerritoryTerritory and not due to actions, ACORDA omissions or modifications of BDS or its sublicenses, BDS shall promptly notify UNIVERSITIES in writing of such suit. BDS shall have the right to defend such claim or suit at its own expense, and MAYO UNIVERSITIES hereby agrees agree to assist and cooperate with ACORDABDS, at ACORDA’s their own expense, to the extent necessary in the defense of such suit. During the pendency of any such claim or action, ACORDA BDS shall continue to make all payments due under this Agreement, provided however, that ACORDA but shall be entitled to have a credit against such payments of royalties otherwise payable hereunder in an amount equal to one-half no greater than fifty percent (50%) of the reasonable amount of such royalties otherwise payable hereunder as a result of out-of-pocket costs actually and expenses incurred by BDS in defending against such actionclaim or suit. (b) If ACORDA finally prevails and receives an award from such third party as a result of such action (whether by way of judgment, award, decree, settlement or otherwise), such award shall be allocated, first, to ACORDA and MAYO to reimburse each Party for its pro rata share of costs and expenses incurred in such action, and the remaining amount shall be retained by ACORDA, provided however, that such amount shall be deemed to constitute Net Sales for purposes of this Agreement. (c) If ACORDA finally loses, whether by any judgment, award, decree or settlementsettlement resulting from a claim or action instituted by a third party, and BDS is required to pay a royalty or damages other amounts to such third party, ACORDA BDS shall continue to pay the running royalties for such Licensed Product Products in the country(ies) country which is the subject of such action, but shall be entitled to a credit against such payments in an amount-amount equal to the royalty or damages paid to such third party, but in no event shall such credit be more than 50% of the royalties due hereunder for such Licensed Product Products in such country(ies). (d) If ACORDA country which is the subject of such action in any calendar quarter. In addition, if BDS is required to pay a royalty or damages to such third party, and such damages are not otherwise reimbursed by UNIVERSITIES, BDS shall be entitled to a credit against such payments in an amount equal to such damages, to the extent effectively paid by BDS to such third party pursuant to Section 6.4(c) and party, but in no event shall the amount of total credit provided hereunder be more than such royalty or damages exceeds 50% of the royalties due hereunder for such Licensed Product Products in such country(ies), ACORDA shall have country which is the right to terminate this Agreement solely with respect to subject of such Licensed Product action in such country(ies). The effect of any such termination shall be the same as any termination by ACORDA pursuant to Section 9.4calendar quarter.

Infringement Action by Third Parties. (a) In the event of the institution or threatened institution of any suit by a third party Third Party against ACORDA ERS for patent or trademark infringement involving the manufacture, saleuse, offer for saledistribution, distribution sale or marketing of any a Product in the Territory, ACORDA ERS shall have promptly notify the right Company in writing of such suit. Unless otherwise covered by Section 12.3(c), the Company shall be required to diligently defend such suit at its own expenseexpense shall control the defense of such action and, subject to Section 9.4(c), shall be responsible for all damages incurred as a result thereof and MAYO shall indemnify ERS in connection therewith. ERS hereby agrees to assist and cooperate with ACORDAthe Company, at ACORDA’s the Company's reasonable request and expense, to the extent necessary in the defense of such suitany suit related to the Technology or Trademark (including, without limitation, consenting to being named as a nominal party thereto). Confidential treatment requested by Xxxxxxx-Xxxxx Squibb Company, Xxxxxxx-Xxxxx Squibb Biologics Company and ImClone Systems Incorporated. During the pendency of any such actionaction and thereafter, ACORDA ERS shall continue to make all payments due under this Agreement, provided however, that ACORDA shall be entitled to a credit against such payments of an amount equal to one-half of . If the reasonable costs actually incurred in such action. (b) If ACORDA Company finally prevails and receives an award from such third party Third Party as a result of such action (whether by way of judgment, award, decree, settlement or otherwise), such award shall be allocated, first, to ACORDA and MAYO to reimburse each Party for its pro rata share of costs and expenses incurred in such action, and retained entirely by the remaining amount shall be retained by ACORDA, provided however, that such amount shall be deemed to constitute Net Sales for purposes of this AgreementCompany. (cb) If ACORDA finally losesIn the event of the institution or threatened institution of any suit by a Third Party against ERS for patent infringement involving the ERS Inventions which are used in the development, whether by judgmentuse, awardmanufacture, decree or settlementdistribution, and is promotion and/or sale of Compounds and/or Products in the Field, ERS shall promptly notify the Company in writing of such suit. ERS shall be required to pay a royalty or damages to diligently defend such third partysuit at its own expense, ACORDA shall continue to pay control the royalties for such Licensed Product in the country(ies) which is the subject defense of such action, but action and shall be entitled to responsible for all payment of damages incurred as a credit against result thereof (or payment of any license fees incurred in connection with any license obtained by the Parties from such payments in an amount-equal Third Party); provided that (A) to the royalty or damages paid extent that such suit relates to ERS Inventions used solely by the Company, the Company shall diligently defend such third partysuit at its own expense, but in no event shall such credit be more than 50% of control the royalties due hereunder for such Licensed Product in such country(ies). (d) If ACORDA is required to pay a royalty or damages to a third party pursuant to Section 6.4(c) and the amount defense of such royalty action and shall be responsible for all payment of damages incurred as a result thereof (or damages exceeds 50% of the royalties due hereunder for such Licensed Product in such country(ies), ACORDA shall have the right to terminate this Agreement solely with respect to such Licensed Product in such country(ies). The effect payment of any license fees incurred in connection with any license obtained by the Company from such termination shall be the same as any termination by ACORDA pursuant to Section 9.4.Third Party) and

Infringement Action by Third Parties. (a) In the event of the institution or threatened institution of any suit by a third party Third Party against ACORDA Licensee for patent infringement involving the manufacture, sale, offer for sale, distribution or marketing of any the Product in the TerritoryTerritory where such infringement claim is a result of the use of the Licensed Technology, ACORDA Licensee shall promptly notify Medistem in writing of such suit. Unless otherwise covered by Section 9.3, Licensee shall have the right to defend such suit at its own expense, expense and MAYO shall be responsible for all damages incurred as a result thereof. Medistem hereby agrees to assist and cooperate with ACORDALicensee, at ACORDALicensee’s reasonable request and expense, to the extent necessary in the defense of such suitsuit (including, without limitation, consenting to being named as a nominal party thereto). During the pendency of any such actionaction and thereafter, ACORDA Licensee shall continue to make all payments due under this Agreement, provided however, that ACORDA shall be entitled to a credit against such payments of an amount equal to one-half of the reasonable costs actually incurred in such action. (b) If ACORDA finally prevails and receives an Any award from such third party Third Party that arises as a result of such action described in Section 7.4(a) (whether by way of judgment, award, decree, settlement or otherwise)) shall be allocated as follows: (i) if Licensee finally prevails, such award shall be allocated, first, to ACORDA and MAYO applied first to reimburse each Party Licensee for its pro rata share of all costs and expenses incurred in by it with respect to such actionaction and, and the remaining amount if after such reimbursement any funds shall be retained by ACORDA, provided however, that remain from such amount shall be deemed to constitute Net Sales for purposes of this Agreement. (c) If ACORDA finally loses, whether by judgment, award, decree or settlement, and is required to pay a royalty or damages to such third party, ACORDA shall continue to pay the royalties for such Licensed Product in the country(ies) which is the subject of such action, but Licensee shall be entitled to a credit against retain such payments in an amount-equal to the royalty or damages paid to such third party, excess funds but in no event shall such credit be more than 50% of the royalties due hereunder for such Licensed Product in such country(ies). (d) If ACORDA is required to pay Medistem a royalty or damages to a third party pursuant to Section 6.4(cthereon, at the applicable rate for the country in which such action takes place, as if such excess funds constituted Gross Revenues; (ii) and the amount of such royalty or damages exceeds 50% of the royalties due hereunder for such Licensed Product in such country(ies), ACORDA shall have the right to terminate this Agreement solely if Medistem indemnifies Licensee with respect to any such Licensed Product action and finally prevails, Medistem shall be entitled to retain such award; or (iii) if the Parties cooperate in such country(ies). The effect the defense of any such termination action, the expenses of such defense shall be borne by the Parties in such proportions as they may agree in writing, and the Parties shall allocate between themselves any part of such award remaining after the reimbursement of such expenses, in the same proportion as any termination by ACORDA pursuant they have agreed to Section 9.4bear the expenses of such defense.

Infringement Action by Third Parties. (a) In the event of the institution of any claim or suit by a third party Third Party against ACORDA PPDI for patent infringement involving the manufacture, saleuse, offer for sale, distribution lease or marketing sale of any Licensed Product in the Territory, ACORDA PPDI shall promptly notify BDSI in writing of such claim or suit. PPDI shall have the right to defend such claim or suit at its own expense, and MAYO BDSI hereby agrees to assist and cooperate with ACORDAPPDI, at ACORDA’s BDSI's own expense, to the extent necessary in the defense of such claim or suit. During the pendency of any such actionclaim or suit, ACORDA PPDI shall continue to make all payments due under this Agreement, provided but shall have a credit against Milestone Payments and Running Royalties otherwise payable hereunder for the full amount of all costs and expenses incurred by PPDI in defending against such claim or suit; provided, however, that ACORDA in applying the credit against any Milestone Payments or Running Royalty payment, the amount of such payment shall not be reduced by more than 50% and any remaining credit shall be entitled to a credit applied against such subsequent Milestone Payments or Running Royalty payments of an amount equal to one-half of the reasonable costs actually incurred in such action. (b) If ACORDA finally prevails and receives an award from such third party as a result of such action (whether by way of judgment, award, decree, settlement or otherwise), such award shall be allocated, first, to ACORDA and MAYO to reimburse each Party for its pro rata share of costs and expenses incurred in such action, and the remaining amount shall be retained by ACORDA, provided however, that such amount shall be deemed to constitute Net Sales for purposes of this Agreement. (c) If ACORDA finally loses, whether by any judgment, award, decree or settlementsettlement resulting from a claim or action instituted by a Third Party, and PPDI is required to pay a royalty or damages other amounts to such third partyThird Party ("Third Party Royalty"), ACORDA PPDI shall continue to pay the royalties Running Royalties for such Licensed Product Products in the country(ies) country which is the subject of such action, but shall be entitled to a credit against such payments in an amount-amount equal to the royalty or damages paid to such third partyThird Party Royalty, but in no event shall such credit be more than 50% of the royalties Running Royalties due hereunder for such Licensed Product Products in such country(ies). (d) If ACORDA country which is the subject of such action and any remaining credit shall be applied against subsequent Milestone Payments or Running Royalty payments. In addition, if PPDI is required to pay a royalty or damages to such Third Party, and such damages are not otherwise reimbursed by BDSI, PPDI shall be entitled to a third party pursuant credit against Running Royalty payments in an amount equal to Section 6.4(c) and such damages, to the amount of extent paid by PPDI to such royalty or damages exceeds 50% of Third Party, but in no event shall the royalties total credit provided hereunder be more than such Running Royalties due hereunder for such Licensed Product Products in such country(ies), ACORDA shall have country which is the right to terminate this Agreement solely with respect to subject of such Licensed Product in such country(ies). The effect of any such termination shall be the same as any termination by ACORDA pursuant to Section 9.4action.

Infringement Action by Third Parties. (a) In the event of the institution of any suit by a third party against ACORDA ALTEON for patent or other intellectual property rights infringement or other use, rights or ownership claim involving the manufacture, sale, offer for sale, distribution use or marketing sale of any Product in the TerritoryTerritory (an "Action"), ACORDA ALTEON shall promptly notify WASHINGTON in writing of such Action. In the event that such an Action is instituted by a third party, neither Party shall take a position inconsistent with, or cooperate with or assist any third party who contests, WASHINGTON's ownership or the continued validity of any Licensed Patent or Licensed Technology. Each Party shall use its best efforts to consult with, support and cooperate with the other Party, in good faith, in the event that either Party is pursuing any such Action, including specifically, without limiting the generality of the foregoing, actively and vigorously contesting any third party claim challenging WASHINGTON's right to grant the rights granted herein to ALTEON. ALTEON shall have the right to defend such suit at its own expense, and MAYO WASHINGTON hereby agrees to assist and cooperate with ACORDAALTEON, at ACORDA’s its own expense, to the extent necessary in the defense of such suit; provided, however, that WASHINGTON shall not be obligated to engage in any testing at its own expense. During the pendency of any such action, ACORDA ALTEON shall continue to make all payments due under this Agreement. Notwithstanding the foregoing, provided howevereither Party may participate in any such suit or action and use its own counsel at its own expense for such purpose. Both Parties, that ACORDA and their respective counsel, shall be entitled to a credit against cooperate by sharing information concerning any such payments of an amount equal to one-half of the reasonable costs actually incurred in such suit or action. (b) If ACORDA finally prevails and receives an award from such third party as a result of such action (whether by way of judgment, award, decree, settlement or otherwise), such award shall be allocated, first, to ACORDA and MAYO to reimburse each Party for its pro rata share of costs and expenses incurred in such action, and the remaining amount shall be retained by ACORDA, provided however, that such amount shall be deemed to constitute Net Sales for purposes of this Agreement. (c) If ACORDA finally loses, whether by any judgment, award, decree or settlementsettlement resulting from an Action instituted by a third party, and ALTEON is required to pay a royalty or damages to such third party, ACORDA ALTEON shall continue to pay the running royalties for such Licensed Product Products in the country(ies) country which is the subject of such actionAction, but shall be entitled to a credit against such payments in an amount-amount equal to one-half (1/2) of the royalty or damages paid to such third party, but in no event shall such credit be more than 50% of the such royalties due hereunder for such Licensed Product Products in such country(ies). (d) If ACORDA country which is the subject of such Action in any calendar semi-annual period. In addition, if ALTEON is required to pay a royalty or damages to such third party, and such damages are not otherwise reimbursed by WASHINGTON, ALTEON shall be entitled to a third party pursuant credit against such payments in an amount equal to Section 6.4(cone-half (1/2) and the amount of such royalty or damages exceeds damages, to the extent effectively paid by ALTEON to such third party, but in no event shall the total credit provided hereunder be more than 50% of the such royalties due hereunder for such Licensed Product Products in such country(ies), ACORDA shall have country which is the right to terminate this Agreement solely with respect to subject of such Licensed Product Action in such country(ies). The effect of any such termination shall be the same as any termination by ACORDA pursuant to Section 9.4calendar semi-annual period.

Infringement Action by Third Parties. (a) In the event of the institution of any suit by a third party against ACORDA CIL or its Affiliates, sublicensees, distributors or customers for patent infringement involving the manufacture, saleuse, offer for saledistribution, distribution marketing or marketing sale of any Product in the Territory, ACORDA CIL shall promptly notify ALTEON in writing of such suit. CIL shall have the right to defend such suit at its own expense, and MAYO ALTEON hereby agrees to assist and cooperate with ACORDACIL, at ACORDA’s its own expense, to the extent necessary in the defense of such suit. During the pendency of any such action, ACORDA CIL shall either, at its option: (i) continue to make all payments due under this AgreementAgreement to ALTEON, provided howeveror (ii) make one-half of all payments due under this Agreement resulting from the Product(s) in the country or countries which are the subject of such action into an escrow account at a bank mutually agreed to by the Parties, that ACORDA and continue to make the balance of all payments due under this Agreement to ALTEON. The costs of creating such escrow account shall be deemed to be costs incurred in connection with such action, subject to credit or refund as set forth in Section 7.5(b) or (c), if applicable. (b) If CIL finally prevails because it is held not to be infringing any patents or trademarks belonging to such third party or because such third party's patent is held invalid, CIL shall continue to pay the royalties as set forth in Section 3.2, but shall be entitled to a credit against such payments or a refund from the escrow account (or, if the escrow account is not sufficient to cover the amount due, a credit against such payments), as the case may be, of an amount equal to one-half of the reasonable costs actually incurred in such action. (b) If ACORDA finally prevails and receives an award from , but in no event shall such third party as a result refund or credit be more than 50% of such action (whether by way of judgment, award, decree, settlement or otherwise), such award shall be allocated, first, to ACORDA and MAYO to reimburse each Party payments due hereunder in any calendar year for its pro rata share of costs and expenses incurred Products in such country which is the subject of such action, and the remaining amount shall be retained by ACORDA, provided however, that such amount shall be deemed to constitute Net Sales for purposes of this Agreement. (c) If ACORDA CIL finally loses, whether by judgment, award, decree or settlement, and is required to pay a royalty or damages to such third party, ACORDA CIL shall continue to pay the royalties for such Licensed Product Products in the country(ies) country which is the subject of such action, but shall be entitled to a credit against such payments in or a refund from the escrow account (or, if the escrow account is not sufficient to cover the amount due, a credit against such payments), as the case may be, of an amount-amount equal to the royalty or damages paid to such third party, but in no event shall such refund or credit be more than 50% of the royalties payments due hereunder in any calendar year for such Licensed Product Products in such country(ies). (d) If ACORDA country which is the subject of such action. In addition, if CIL incurs litigation expenses or is required to pay a royalty or damages to such third party, CIL shall be entitled to a third party pursuant refund from the escrow account (or, if the escrow account is not sufficient to Section 6.4(c) and cover the amount due, a credit against such payments) of an amount equal to one-half of the reasonable costs actually incurred in such royalty action plus one-half of the damages, but in no event shall the total refund or damages exceeds credit provided herein be more than 50% of the royalties payments due hereunder in any calendar year for such Licensed Product Products in such country(ies), ACORDA shall have country which is the right to terminate this Agreement solely with respect to subject of such Licensed Product in such country(ies). The effect of any such termination shall be the same as any termination by ACORDA pursuant to Section 9.4action.

Infringement Action by Third Parties. (a) In the event of the institution of any claim or suit by a third party Third Party against ACORDA HomeCom for patent infringement involving the manufacture, saleuse, offer for sale, distribution lease or marketing sale of any Licensed Product in the Territory, ACORDA HomeCom shall promptly notify Eurotech in writing of such claim or suit. HomeCom shall have the right to defend such claim or suit at its own expense, and MAYO Eurotech hereby agrees to assist and cooperate with ACORDAHomeCom, at ACORDA’s Eurotech's own expense, to the extent necessary in the defense of such claim or suit. During the pendency of any such actionclaim or suit, ACORDA HomeCom shall continue to make all payments due under this Agreement, provided but shall have a credit against Running Royalties otherwise payable hereunder for the full amount of all costs and expenses incurred by HomeCom in defending against such claim or suit; provided, however, that ACORDA in applying the credit against any Running Royalty payment, the amount of such payment shall not be reduced by more than 50% and any remaining credit shall be entitled to a credit applied against such subsequent Running Royalty payments of an amount equal to one-half of the reasonable costs actually incurred in such action. (b) If ACORDA finally prevails and receives an award from such third party as a result of such action (whether by way of judgment, award, decree, settlement or otherwise), such award shall be allocated, first, to ACORDA and MAYO to reimburse each Party for its pro rata share of costs and expenses incurred in such action, and the remaining amount shall be retained by ACORDA, provided however, that such amount shall be deemed to constitute Net Sales for purposes of this Agreement. (c) If ACORDA finally loses, whether by any judgment, award, decree or settlementsettlement resulting from a claim or action instituted by a Third Party, and HomeCom is required to pay a royalty or damages other amounts to such third partyThird Party ("Third Party Royalty"), ACORDA HomeCom shall continue to pay the royalties Running Royalties for such Licensed Product Products in the country(ies) country which is the subject of such action, but shall be entitled to a credit against such payments in an amount-amount equal to the royalty or damages paid to such third partyThird Party Royalty, but in no event shall such credit be more than 50% of the royalties Running Royalties due hereunder for such Licensed Product Products in such country(ies). (d) If ACORDA country which is the subject of such action and any remaining credit shall be applied against subsequent Running Royalty payments. In addition, if HomeCom is required to pay a royalty or damages to such Third Party, and such damages are not otherwise reimbursed by Eurotech, HomeCom shall be entitled to a third party pursuant credit against Running Royalty payments in an amount equal to Section 6.4(c) and such damages, to the amount of extent paid by HomeCom to such royalty or damages exceeds 50% of Third Party, but in no event shall the royalties total credit provided hereunder be more than such Running Royalties due hereunder for such Licensed Product Products in such country(ies), ACORDA country which is the subject of such action. In no event shall have Eurotech be obligated to return any Running Royalty payments to HomeCom by operation of the right to terminate provisions of this Agreement solely with respect to such Licensed Product in such country(ies). The effect of any such termination shall be the same as any termination by ACORDA pursuant to Section 9.4Agreement.

Infringement Action by Third Parties. (a) In the event of the institution or threatened institution of any suit by a third party Third Party against ACORDA ERS for patent or trademark infringement involving the manufacture, saleuse, offer for saledistribution, distribution sale or marketing of any a Product in the Territory, ACORDA ERS shall have promptly notify the right Company in writing of such suit. Unless otherwise covered by Section 12.3(c), the Company shall be required to diligently defend such suit at its own expenseexpense shall control the defense of such action and, subject to Section 9.4(c), shall be responsible for all damages incurred as a result thereof and MAYO shall indemnify ERS in connection therewith. ERS hereby agrees to assist and cooperate with ACORDAthe Company, at ACORDA’s the Company's reasonable request and expense, to the extent necessary in the defense of such suitany suit related to the Technology or Trademark (including, without limitation, consenting to being named as a nominal party thereto). During the pendency of any such actionaction and thereafter, ACORDA ERS shall continue to make all payments due under this Agreement, provided however, that ACORDA shall be entitled to a credit against such payments of an amount equal to one-half of . If the reasonable costs actually incurred in such action. (b) If ACORDA Company finally prevails and receives an award from such third party Third Party as a result of such action (whether by way of judgment, award, decree, settlement or otherwise), such award shall be allocatedretained entirely by the Company. (b) In the event of the institution or threatened institution of any suit by a Third Party against ERS for patent infringement involving the ERS Inventions which are used in the development, firstuse, manufacture, distribution, promotion and/or sale of Compounds and/or Products in the Field, ERS shall promptly notify the Company in writing of such suit. ERS shall be required to ACORDA diligently defend such suit at its own expense, shall control the defense of such action and MAYO to reimburse each Party shall be responsible for its pro rata share all payment of costs and expenses damages incurred as a result thereof (or payment of any license fees incurred in connection with any license obtained by the Parties from such actionThird Party); provided that (A) to the extent that such suit relates to ERS Inventions used solely by the Company, the Company shall diligently defend such suit at its own expense, shall control the defense of such action and shall be responsible for all payment of damages incurred as a result thereof (or payment of any license fees incurred in connection with any license obtained by the Company from such Third Party) and (B) to the extent that such suit relates to ERS Inventions used by both ERS and the remaining amount Company, the Parties shall cooperate in the defense of such action and shall be responsible for payment of damages incurred as a result thereof (or payment of any license fees incurred in connection with any license obtained by the Parties from such Third Party) on a basis which is proportionate to their relative usage of such ERS Inventions. In the event that a Party is solely responsible for defending an action involving ERS Inventions, the other Party(ies) shall assist and cooperate with such Party, at such Party's reasonable request and expense. If a Party which is solely responsible for defending an action involving ERS Inventions finally prevails and receives an award from such Third Party as a result of such action (whether by way of judgment, award, decree, settlement or otherwise), such award shall be retained entirely by ACORDAsuch Party. If the Parties cooperate in the defense of an action involving ERS Inventions pursuant to (B) above and such Parties finally prevail and receive an award from such Third Party as a result of such action (whether by way of judgment, provided howeveraward, that decree, settlement or otherwise), such amount award shall be deemed to constitute Net Sales for purposes of this Agreementshared on an equitable basis by the Parties. (c) If ACORDA Unless otherwise covered by Section 12.3(c), (A) in the event that the PDC determines that a license under Third Party patents or trademarks should be obtained to avoid infringement of such Third Party patents or trademarks in order to make, have made, use or sell any Product in any country(ies) in North America or in Japan, or royalties should be paid to such Third Party in respect of sales of such Products in such country(ies) in North America or in Japan (provided that the Parties agree for the purposes of this Section 9.4(c), that the PDC shall be deemed to have determined that licenses obtained prior to the execution of this Agreement that are held by the Company should have been so obtained), or (B) if the Company or ERS finally loses, whether by judgment, award, decree or settlement, loses and is required to pay damages or an award to a royalty Third Party as a result of an action commenced under Section 9.4(a) (whether by way of judgment, award, decree, settlement or otherwise); then: (i) the Distribution Fees due from ERS to the Company pursuant to Sections 6.3 with respect to rights in North America shall be increased by an amount equal to [**] of any royalties or damages attributable to such third partyNet Sales in North America, ACORDA shall continue up to pay a maximum increase equal to: (1) [**] of Net Sales of Products in North America during any calendar quarter during calendar years 2002 through and including 2006; and (2) [**] of Net Sales of Products in North America during any calendar quarter following 2006; and (ii) with respect to rights in Japan, the royalties for such Licensed Product in the country(ies) which is the subject of such action, but Company shall be entitled to a credit against such payments in allocate an amount-amount equal to the royalty any royalties or damages paid attributable to such third party, but Net Sales in no event shall such credit be more than 50% Japan against Cost of Goods Sold (in accordance with the royalties due hereunder for such Licensed Product in such country(ies). (dFinancial Appendix) If ACORDA is required to pay a royalty or damages up to a third party pursuant to Section 6.4(cmaximum amount equal to: (1) [**] of Net Sales of Products in Japan during any calendar quarter during calendar years 2002 through and including 2006; and (2) [**] of Net Sales of Products in the amount of such royalty or damages exceeds 50% of the royalties due hereunder for such Licensed Product in such country(ies)Japan during any calendar quarter following 2006. Confidential treatment requested by Xxxxxxx-Xxxxx Squibb Company, ACORDA shall have the right to terminate this Agreement solely with respect to such Licensed Product in such country(ies). The effect of any such termination shall be the same as any termination by ACORDA pursuant to Section 9.4Xxxxxxx-Xxxxx Squibb Biologics Company and ImClone Systems Incorporated.

Infringement Action by Third Parties. (a) In the event of the institution or threatened institution of any suit by a third party Third Party against ACORDA Allergan for patent infringement involving the manufacture, sale, offer for sale, distribution or marketing of any a Product in the TerritoryApplicable Territory where such infringement claim is a result of the use of the Inspire Licensed Technology or the Allergan Licensed Technology, ACORDA Allergan shall promptly notify Inspire in writing of such suit. Unless otherwise covered by Section 14.3(c), Allergan shall have the right to defend such suit at its own expense, expense and MAYO shall be responsible for all damages incurred as a result thereof. Inspire hereby agrees to assist and cooperate with ACORDAAllergan, at ACORDA’s Allergan's reasonable request and expense, to the extent necessary in the defense of such suitany suit related to the Inspire Licensed Technology (including, without limitation, consenting to being named as a nominal party thereto). During the pendency of any such actionaction and thereafter, ACORDA Allergan shall continue to make all payments due under this Agreement, provided however, that ACORDA shall be entitled to a credit against such payments of an amount equal to one-half of the reasonable costs actually incurred in such action. (b) . If ACORDA Allergan finally prevails and receives an award from such third party Third Party as a result of such action (whether by way of judgment, award, decree, settlement or otherwise), such award shall be allocatedretained entirely by Allergan. After deducting its litigation expenses and costs (including attorneys' fees and expenses), first, to ACORDA and MAYO to reimburse each Party for its pro rata share the remainder of costs and expenses incurred any monetary award recovered by Allergan in such action, and the remaining amount shall be retained by ACORDA, provided however, that such amount action shall be deemed to constitute Net Sales for purposes of this Agreement, and Allergan shall be obligated to pay the royalty due and owing under this Agreement with respect thereto. (cb) If ACORDA finally losesUnless otherwise covered by Section 14.3(c), whether by judgmentin the event that the Parties, awardthrough the JDC, decree determine that (i) a license under Third Party patents should be obtained to avoid infringement of such Third Party patents in order to make, have made, use or settlement, and is required to pay a royalty sell the Initial Product or damages to such third party, ACORDA shall continue to pay the royalties for such Licensed any Collaboration Product in the Field in any country(ies) which is of the subject of such action, but shall Territory or (ii) royalties should be entitled to a credit against such payments in an amount-equal to the royalty or damages paid to such third party, but Third Party in no event shall respect of sales of such credit be more than 50% of Initial Product or such Collaboration Products in the royalties due hereunder for such Licensed Product Field in such country(ies). (d) If ACORDA is required of the Territory, then the Parties shall share the costs associated with such license or royalty with Allergan being responsible for [CONFIDENTIAL TREATMENT REQUESTED] of such costs, and the Inspire responsible for [**] of such costs. Allergan shall be allowed to pay a royalty or damages to a third party pursuant to Section 6.4(c) and offset the amount of Inspire's payments under this Section 12.6(b) against royalties accrued and due Inspire for the Inspire Products for such royalty or damages exceeds 50% yearly period; provided however, that, under no circumstances shall such an offset exceed [**] of the royalties due hereunder royalty amounts otherwise payable by Allergan for such Licensed Product in such country(ies), ACORDA shall have the right to terminate this Agreement solely with respect to such Licensed Product in such country(ies). The effect of any such termination shall be the same as any termination by ACORDA pursuant to Section 9.4Inspire Products hereunder.

Infringement Action by Third Parties. (a) In the event of the institution or threatened institution of any suit by a third party Third Party against ACORDA Licensee for patent infringement involving the manufacture, sale, offer for sale, distribution or marketing of any the Product in the TerritoryTerritory where such infringement claim is a result of the use of the Licensed Technology, ACORDA Licensee shall promptly notify Medistem in writing of such suit. Unless otherwise covered by Section 9.3, Licensee shall have the right to defend such suit at its own expense, expense and MAYO shall be responsible for all damages incurred as a result thereof. Medistem hereby agrees to assist and cooperate with ACORDALicensee, at ACORDALicensee’s reasonable request and expense, to the extent necessary in the defense of such suitsuit (including, without limitation, consenting to being named as a nominal party thereto). During the pendency of any such actionaction and thereafter, ACORDA Licensee shall continue to make all payments due under this Agreement, provided however, that ACORDA shall be entitled to a credit against such payments of an amount equal to one-half of the reasonable costs actually incurred in such action. (b) If ACORDA finally prevails and receives an Any award from such third party Third Party that arises as a result of such action described in Section 7.4(a) (whether by way of judgment, award, decree, settlement or otherwise)) shall be allocated as follows: (i) if Licensee finally prevails, such award shall be allocated, first, to ACORDA and MAYO applied first to reimburse each Party Licensee for its pro rata share of all costs and expenses incurred in by it with respect to such actionaction and, and the remaining amount if after such reimbursement any funds shall be retained by ACORDA, provided however, that remain from such amount shall be deemed to constitute Net Sales for purposes of this Agreement. (c) If ACORDA finally loses, whether by judgment, award, decree or settlement, and is required to pay a royalty or damages to such third party, ACORDA shall continue to pay the royalties for such Licensed Product in the country(ies) which is the subject of such action, but Licensee shall be entitled to a credit against retain such payments in an amount-equal to the royalty or damages paid to such third party, excess funds but in no event shall such credit be more than 50% of the royalties due hereunder for such Licensed Product in such country(ies). (d) If ACORDA is required to pay Medistem a royalty or damages to a third party pursuant to Section 6.4(cthereon as if such excess funds constituted Net Revenues; (ii) and the amount of such royalty or damages exceeds 50% of the royalties due hereunder for such Licensed Product in such country(ies), ACORDA shall have the right to terminate this Agreement solely if Medistem indemnifies Licensee with respect to any such Licensed Product action and finally prevails, Medistem shall be entitled to retain such award; or (iii) if the Parties cooperate in such country(ies). The effect the defense of any such termination action, the expenses of such defense shall be borne by the Parties in such proportions as they may agree in writing, and the Parties shall allocate between themselves any part of such award remaining after the reimbursement of such expenses, in the same proportion as any termination by ACORDA pursuant they have agreed to Section 9.4bear the expenses of such defense.

Infringement Action by Third Parties. (a) In the event of the institution or threatened institution of any suit by a third party Third Party against ACORDA Elanco for patent infringement or misappropriation involving the use, manufacture, sale, offer for sale, importation, distribution or marketing of any a Product in the Territory, ACORDA where such infringement claim is a direct result of the manufacture, use or sale of the composition of matter of the API or the use of a Product to treat osteoarthritis in dogs (an “Licensor-Responsible Claim”), Elanco shall have the right to promptly notify Licensor in writing of such suit. Licensor shall defend such suit Licensor-Responsible Claim at its own expense, expense and MAYO shall be responsible for all damages incurred as a result thereof. Elanco hereby agrees to assist and cooperate with ACORDALicensor, at ACORDALicensor’s reasonable request and expense, to the extent necessary in the defense of any such suitLicensor-Responsible Claim (including, without limitation, consenting to being named as a nominal party thereto). During the pendency of any such actionaction for a Licensor-Responsible Claim and thereafter, ACORDA 27 Elanco shall continue to make all payments due under this Agreement, provided however, that ACORDA shall be entitled to a credit against such payments of an amount equal to one-half of the reasonable costs actually incurred in such action. (b) . If ACORDA Licensor finally prevails and receives an award from such third party Third Party as a result of such action (whether by way of judgment, award, decree, settlement or otherwise), such award shall be allocatedretained by Licensor. Elanco agrees, firstin connection with any such defense proceeding by Licensor, to ACORDA and MAYO use Commercially Reasonable Efforts to reimburse each Party for its pro rata share of costs and expenses cooperate to minimize any damages incurred in connection with any such actioninfringement claim. In the event of the institution or threatened institution of any suit by a Third Party against Elanco for infringement or misappropriation involving the use, manufacture, sale, offer for sale, importation, distribution or marketing of a Product in the Territory, where such infringement claim is not an Licensor-Responsible Claim (an “Other Claim”), Elanco shall promptly notify Licensor in writing of such Other Claim. Elanco shall defend such Other Claim at its own expense and the remaining amount shall be retained by ACORDAresponsible for all damages incurred as a result thereof. Licensor hereby agrees to assist and cooperate with Elanco, provided howeverat Elanco’s reasonable request and expense, that in the defense of any such amount Other Claim (including, without limitation, consenting to being named as a nominal party thereto). During the pendency of such action for an Other Claim and thereafter, Elanco shall be deemed continue to constitute Net Sales for purposes of make all payments due under this Agreement. . If Elanco finally prevails and receives an award from such Third Party as a result of such Other Claim (c) If ACORDA finally loses, whether by way of judgment, award, decree decree, settlement or settlementotherwise), and is required to pay a royalty or damages to such third party, ACORDA shall continue to pay the royalties for such Licensed Product in the country(ies) which is the subject of such action, but Elanco shall be entitled to a credit against retain such payments in an amount-equal to the royalty or damages paid to such third partyremaining funds, but in no event shall pay Licensor a royalty, as if such credit be more than 50% of remaining funds constituted Net Sales made within the royalties due hereunder for such Licensed Product in such country(ies)month the funds are received. (d) If ACORDA is required to pay a royalty or damages to a third party pursuant to Section 6.4(c) and the amount of such royalty or damages exceeds 50% of the royalties due hereunder for such Licensed Product in such country(ies), ACORDA shall have the right to terminate this Agreement solely with respect to such Licensed Product in such country(ies). The effect of any such termination shall be the same as any termination by ACORDA pursuant to Section 9.4.

Infringement Action by Third Parties. (a) In the event of the institution of any claim or suit by a third party Third Party against ACORDA HomeCom for patent infringement involving the manufacture, saleuse, offer for sale, distribution lease or marketing sale of any Licensed Product in the Territory, ACORDA HomeCom shall promptly notify Eurotech in writing of such claim or suit. HomeCom shall have the right to defend such claim or suit at its own expense, and MAYO Eurotech hereby agrees to assist and cooperate with ACORDAHomeCom, at ACORDA’s Eurotech's own expense, to the extent necessary in the defense of such claim or suit. During the pendency of any such actionclaim or suit, ACORDA HomeCom shall continue to make all payments due under this Agreement, provided but shall have a credit against Running Royalties otherwise payable hereunder for the full amount of all costs and expenses incurred by HomeCom in defending against such claim or suit; provided, however, that ACORDA in applying the credit against any Running Royalty payment, the amount of such payment shall not be reduced by more than 50% and any remaining credit shall be entitled to a credit applied against such subsequent Running Royalty payments of an amount equal to one-half of the reasonable costs actually incurred in such action. (b) If ACORDA finally prevails and receives an award from such third party as a result of such action (whether by way of judgment, award, decree, settlement or otherwise), such award shall be allocated, first, to ACORDA and MAYO to reimburse each Party for its pro rata share of costs and expenses incurred in such action, and the remaining amount shall be retained by ACORDA, provided however, that such amount shall be deemed to constitute Net Sales for purposes of this Agreement. (c) If ACORDA finally loses, whether by any judgment, award, decree or settlementsettlement resulting from a claim or action instituted by a Third Party, and HomeCom is required to pay a royalty or damages other amounts to such third partyThird Party ("THIRD PARTY ROYALTY"), ACORDA HomeCom shall continue to pay the royalties Running Royalties for such Licensed Product Products in the country(ies) country which is the subject of such action, but shall be entitled to a credit against such payments in an amount-amount equal to the royalty or damages paid to such third partyThird Party Royalty, but in no event shall such credit be more than 50% of the royalties Running Royalties due hereunder for such Licensed Product Products in such country(ies). (d) If ACORDA country which is the subject of such action and any remaining credit shall be applied against subsequent Running Royalty payments. In addition, if HomeCom is required to pay a royalty or damages to such Third Party, and such damages are not otherwise reimbursed by Eurotech, HomeCom shall be entitled to a third party pursuant credit against Running Royalty payments in an amount equal to Section 6.4(c) and such damages, to the amount of extent paid by HomeCom to such royalty or damages exceeds 50% of Third Party, but in no event shall the royalties total credit provided hereunder be more than such Running Royalties due hereunder for such Licensed Product Products in such country(ies), ACORDA country which is the subject of such action. In no event shall have Eurotech be obligated to return any Running Royalty payments to HomeCom by operation of the right to terminate provisions of this Agreement solely with respect to such Licensed Product in such country(ies). The effect of any such termination shall be the same as any termination by ACORDA pursuant to Section 9.4Agreement.

Infringement Action by Third Parties. (a) In the event of the institution or threatened institution of any suit by a third party Third Party against ACORDA Licensee for patent infringement involving the manufacture, sale, offer for sale, distribution or marketing of any the Product in the TerritoryTerritory where such infringement claim is a result of the use of the Licensed Technology, ACORDA Licensee shall promptly notify Medistem in writing of such suit. Unless otherwise covered by Section 9.3, Licensee shall have the right to defend such suit at its own expense, expense and MAYO shall be responsible for all damages incurred as a result thereof. Medistem hereby agrees to assist and cooperate with ACORDALicensee, at ACORDALicensee’s reasonable request and expense, to the extent necessary in the defense of such suitsuit (including, without limitation, consenting to being named as a nominal party thereto). During the pendency of any such actionaction and thereafter, ACORDA Licensee shall continue to make all payments due under this Agreement, provided however, that ACORDA shall be entitled to a credit against such payments of an amount equal to one-half of the reasonable costs actually incurred in such action. (b) If ACORDA finally prevails and receives an Any award from such third party Third Party that arises as a result of such action described in Section 7.4(a) (whether by way of judgment, award, decree, settlement or otherwise)) shall be allocated as follows: (i) if Licensee finally prevails, such award shall be allocated, first, to ACORDA and MAYO applied first to reimburse each Party Licensee for its pro rata share of all costs and expenses incurred in by it with respect to such actionaction and, and the remaining amount if after such reimbursement any funds shall be retained by ACORDA, provided however, that remain from such amount shall be deemed to constitute Net Sales for purposes of this Agreement. (c) If ACORDA finally loses, whether by judgment, award, decree or settlement, and is required to pay a royalty or damages to such third party, ACORDA shall continue to pay the royalties for such Licensed Product in the country(ies) which is the subject of such action, but Licensee shall be entitled to a credit against retain such payments in an amount-equal to the royalty or damages paid to such third party, but in no event shall such credit be more than 50% of the royalties due hereunder for such Licensed Product in such country(ies). excess funds; (dii) If ACORDA is required to pay a royalty or damages to a third party pursuant to Section 6.4(c) and the amount of such royalty or damages exceeds 50% of the royalties due hereunder for such Licensed Product in such country(ies), ACORDA shall have the right to terminate this Agreement solely if Medistem indemnifies Licensee with respect to any such Licensed Product action and finally prevails, Medistem shall be entitled to retain such award; or (iii) if the Parties cooperate in such country(ies). The effect the defense of any such termination action, the expenses of such defense shall be borne by the Parties in such proportions as they may agree in writing, and the Parties shall allocate between themselves any part of such award remaining after the reimbursement of such expenses, in the same proportion as any termination by ACORDA pursuant they have agreed to Section 9.4bear the expenses of such defense.