Common use of Infringement and Litigation Clause in Contracts

Infringement and Litigation. 7.1 Ocure and Madison Israeli Subsidiary are responsible for notifying each other promptly of any infringement of Ocure Patents or any misappropriation of Ocure Confidential Information that may come to their attention. Ocure and Madison Israeli Subsidiary shall consult one another in a timely manner concerning any appropriate response thereto. 7.2 With respect to any Ocure Patents licensed to Madison Israeli Subsidiary pursuant to this Agreement, Madison Israeli Subsidiary shall have the right, but not the obligation to prosecute in its own name such infringement or misappropriation at its own expense, so long as such License is exclusive at the time of the commencement of such action. Before Madison Israeli Subsidiary commences an action with respect to any infringement of such patents, Madison Israeli Subsidiary shall give careful consideration to the views of Ocure in making its decision whether or not to xxx. The Madison Israeli Subsidiary shall, or, if relevant, shall make best efforts to ensure that its Affiliate or sublicensee shall, continuously keep Ocure apprised of all developments in the action and shall continuously provide Ocure with full information and copies of all documents relevant to the proceedings, including without limitation, all documents filed with the courts by the parties to the legal action(s) and all correspondence with the other parties to the proceedings, and shall seek Ocure's input on any substantive submissions or positions taken in the litigation regarding the scope, validity or enforceability of the Ocure Patents. Madison Israeli Subsidiary shall not settle or compromise any such suit in a manner that imposes any obligations or restrictions on Ocure or grants any rights to Ocure Patents, without Ocure's advance written consent. Financial recoveries from any such litigation will first be applied to reimburse Madison Israeli Subsidiary for its outside counsel fees and court costs, following which Ocure will be reimbursed for same. After which, any additional recoveries, after the deductions set forth above, will be split 65% to Madison Israeli Subsidiary and 35% to Ocure and the Madison Israeli Subsidiary shall pay Royalties on the portion of the recovery related to sales, or sublicensee consideration payments, on the portion of the recovery not related to sales, with respect thereof, provided however that if the Madison Israeli Subsidiary notified Ocure that it shall not be prosecuting such infringement, and Ocure initiated proceedings on its own costs and expenses - any recovery obtained in such action shall be paid to Ocure (minus costs and expenses, if any, paid by the Madison Israeli Subsidiary). 7.3 Madison Israeli Subsidiary's prosecution rights under Section 7.2 shall be subject to the continuing right of Ocure to intervene and join Madison Israeli Subsidiary in any claim or suit for infringement or misappropriation of Ocure Patents. If Ocure elects to join as a party, Ocure shall jointly control the action with Madison Israeli Subsidiary. Ocure shall retain the right to hire its own counsel, the costs of which are reimbursable as set forth in Section 7.2. Any financial recoveries shall be shared equally between Ocure and Madison Israeli Subsidiary. In any claim or suit for infringement of Ocure Patents under Section 7.2, Madison Israeli Subsidiary may request that Ocure join as a party. Madison Israeli Subsidiary shall not join Ocure as a party to any action without Ocure's prior written consent, which shall not be unreasonably withheld, subject to the following conditions: a) In the event the court or other adjudicating body requires that Ocure be joined as an indispensable party or in some other capacity to establish or maintain standing to an infringement action, Madison Israeli Subsidiary shall immediately notify Ocure of the same and transmit the corresponding court documents to allow for Ocure to respond as it deems appropriate. If the court or other adjudicating body ultimately maintains such requirement, then Ocure shall consent to joinder, and Madison Israeli Subsidiary may join Ocure, as a party in such action. b) Madison Israeli Subsidiary shall reimburse Ocure for any out-of-pocket costs and expenses Ocure incurs, including reasonable attorneys' fees, as part of an action brought by Madison Israeli Subsidiary in which Madison Israeli Subsidiary has requested Ocure join as a party, irrespective of whether Ocure becomes a co-plaintiff. 7.4 If Madison Israeli Subsidiary fails to prosecute such infringement or misappropriation, Ocure shall have the right, but not the obligation, to prosecute such infringement or misappropriation at its own expense. In such event, financial recoveries will be entirely retained by Ocure. 7.5 In any action to enforce any of the Ocure Patents, either Party, at the request and expense of the other Party, shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either Party to undertake any activities, including legal discovery, at the request of any third party except as may be required by lawful process of a court of competent jurisdiction. 7.6 If a declaratory judgment action is brought naming Madison Israeli Subsidiary or Ocure as a defendant and alleging invalidity or unenforceability of any of the Ocure Patents, whether brought as an independently filed declaratory judgment action or as a counterclaim in any infringement-related litigation, Ocure may elect to take over the sole defense of the declaratory judgment action or the declaratory judgment counterclaim portion of the other litigation, at its own expense. Each party shall promptly notify the other party hereto of its receipt of any such allegations. Madison Israeli Subsidiary shall cooperate fully with Ocure in connection with any such defense. 7.7 In the event that Madison Israeli Subsidiary does challenge the validity or enforceability of one or more of the Ocure Patents (or any claims therein), Ocure may, at its option, upon written notice to Madison Israeli Subsidiary: (1) terminate this Agreement or (2) require an augmented royalty of up to two (2) times the Royalties payable under Section 3.1 or equal to 8%.Such challenge of validity or enforceability includes, but is not limited to, actions before the United States Patent and Trademark Office, such as through reexamination. Any challenge by Madison Israeli Subsidiary of the Patents shall be brought in the United States District Court in Xxxxxx County, Texas, or, when appropriate, the United States Patent and Trademark Office, with at least thirty (30) days written notice to Ocure. Madison Israeli Subsidiary shall pay all of Ocure's reasonable attorneys' fees, costs, and expenses associated with an unsuccessful challenge. A challenge shall be deemed unsuccessful if any claim of a challenged Ocure Patent remains valid and enforceable after the challenge (even when the claim is narrowed in scope). Under no circumstance shall Ocure pay any of Madison Israeli Subsidiary's attorneys' fees, costs, and expenses related to any challenge of one or more of the Ocure Patents.

Infringement and Litigation. 7.1 Ocure and Madison Israeli Subsidiary are responsible for notifying each (a) Each party will promptly notify the other promptly party in writing of any infringement or possible infringement of Ocure any of the Licensed Patents or any misappropriation of Ocure Confidential Information that which may come to their its attention, including notice of any certification filed under the United States "Drug Price Competition and Patent Term Restoration Act of 1984". Ocure The Wistar Institute, Penn, and Madison Israeli Subsidiary Apollon shall consult one another in a timely manner concerning any appropriate response thereto. 7.2 With respect to any Ocure Patents licensed to Madison Israeli Subsidiary pursuant to this Agreement, Madison Israeli Subsidiary (b) Apollon shall have the right, but not the obligation to prosecute in its own name such infringement or misappropriation at its own expense, so long as such License is exclusive at the time of the commencement of such action. Before Madison Israeli Subsidiary commences an action with respect to any infringement of such patents, Madison Israeli Subsidiary shall give careful consideration to the views of Ocure in making its decision whether or not to xxx. The Madison Israeli Subsidiary shall, or, if relevant, shall make best efforts to ensure that its Affiliate or sublicensee shall, continuously keep Ocure apprised of all developments in the action and shall continuously provide Ocure with full information and copies of all documents relevant to the proceedings, including without limitation, all documents filed with the courts by the parties to the legal action(s) and all correspondence with the other parties to the proceedings, and shall seek Ocure's input on any substantive submissions or positions taken in the litigation regarding the scope, validity or enforceability of the Ocure Patents. Madison Israeli Subsidiary shall Apollon will not settle or compromise any such suit in a manner that imposes any obligations or restrictions on Ocure or grants any rights to Ocure PatentsThe Wistar Institute, without OcureThe Wistar Institute's advance written consent, which shall not be unreasonably withheld. In any such settlement or compromise, consideration shall be given in good faith to granting the infringer a sublicense under the Licensed Patents on appropriate terms. Financial recoveries from any such litigation will first be applied to reimburse Madison Israeli Subsidiary Apollon for its outside counsel fees and court costslitigation expenses with additional recoveries paid to Apollon. Should an infringer be granted a sublicense, following which Ocure will The Wistar Institute shall be reimbursed for same. After which, any additional recoveries, after the deductions set forth above, will be split 65% entitled to Madison Israeli Subsidiary and 35% to Ocure and the Madison Israeli Subsidiary shall pay Royalties on the a portion of the recovery related to salesany sublicensee fees, or sublicensee consideration payments, on the portion of the recovery not related to sales, with respect thereof, as provided however that if the Madison Israeli Subsidiary notified Ocure that it shall not be prosecuting such infringement, and Ocure initiated proceedings on its own costs and expenses - any recovery obtained in such action shall be paid to Ocure (minus costs and expenses, if any, paid by the Madison Israeli Subsidiary)Section 3.3 hereof. 7.3 Madison Israeli Subsidiary's prosecution rights under Section 7.2 (c) The Wistar Institute and Penn shall be subject to the have a continuing right of Ocure to intervene at The Wistar Institute's or Penn's own expense and to join Madison Israeli Subsidiary Apollon in any claim or suit for infringement or misappropriation of Ocure any of the Licensed Patents. If Ocure elects Financial recoveries from any such litigation shall first be applied to join reimburse Apollon, The Wistar Institute, and/or Penn, as the case may be, with additional recoveries paid to Apollon. Should an infringer be granted a partysublicense, Ocure shall jointly control the action with Madison Israeli Subsidiary. Ocure shall retain the right to hire its own counsel, the costs of which are reimbursable as set forth in Section 7.2. Any financial recoveries The Wistar Institute shall be shared equally between Ocure and Madison Israeli Subsidiary. In entitled to a portion of any claim or suit for infringement of Ocure Patents under Section 7.2, Madison Israeli Subsidiary may request that Ocure join as a party. Madison Israeli Subsidiary shall not join Ocure as a party to any action without Ocure's prior written consent, which shall not be unreasonably withheld, subject to the following conditions: a) In the event the court or other adjudicating body requires that Ocure be joined as an indispensable party or in some other capacity to establish or maintain standing to an infringement action, Madison Israeli Subsidiary shall immediately notify Ocure of the same and transmit the corresponding court documents to allow for Ocure to respond as it deems appropriate. If the court or other adjudicating body ultimately maintains such requirement, then Ocure shall consent to joinder, and Madison Israeli Subsidiary may join Ocure, as a party in such action. b) Madison Israeli Subsidiary shall reimburse Ocure for any out-of-pocket costs and expenses Ocure incurs, including reasonable attorneys' sublicensee fees, as part of an action brought by Madison Israeli Subsidiary provided in which Madison Israeli Subsidiary has requested Ocure join as a partySection 3.3 hereof. g:/document/agree/wistar.doc December 19, irrespective of whether Ocure becomes a co-plaintiff.1996 7.4 (d) If Madison Israeli Subsidiary Apollon fails to prosecute such infringement or misappropriationin a timely manner, Ocure Penn and/or The Wistar Institute shall each have the right, right but not the obligation, obligation to prosecute such infringement or misappropriation at its own expense. In such event, financial recoveries will shall be retained entirely retained by Ocurewhichever of Penn and/or The Wistar Institute prosecuted such infringement, or if Penn and The Wistar Institute elect to proceed jointly, as determined by Penn and The Wistar Institute. 7.5 (e) In any action to enforce any of the Ocure Licensed Patents, either Partyparty, at the request and expense of the other Partyparty, shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either Party a party to undertake any activities, including legal discovery, at the request of any third party except as may be required by lawful process of a court of competent jurisdiction. 7.6 If a declaratory judgment action is brought naming Madison Israeli Subsidiary or Ocure as a defendant and alleging invalidity or unenforceability of any of the Ocure Patents, whether brought as an independently filed declaratory judgment action or as a counterclaim in any infringement-related litigation, Ocure may elect to take over the sole defense of the declaratory judgment action or the declaratory judgment counterclaim portion of the other litigation, at its own expense. Each party shall promptly notify the other party hereto of its receipt of any such allegations. Madison Israeli Subsidiary shall cooperate fully with Ocure in connection with any such defense. 7.7 In the event that Madison Israeli Subsidiary does challenge the validity or enforceability of one or more of the Ocure Patents (or any claims therein), Ocure may, at its option, upon written notice to Madison Israeli Subsidiary: (1) terminate this Agreement or (2) require an augmented royalty of up to two (2) times the Royalties payable under Section 3.1 or equal to 8%.Such challenge of validity or enforceability includes, but is not limited to, actions before the United States Patent and Trademark Office, such as through reexamination. Any challenge by Madison Israeli Subsidiary of the Patents shall be brought in the United States District Court in Xxxxxx County, Texas, or, when appropriate, the United States Patent and Trademark Office, with at least thirty (30) days written notice to Ocure. Madison Israeli Subsidiary shall pay all of Ocure's reasonable attorneys' fees, costs, and expenses associated with an unsuccessful challenge. A challenge shall be deemed unsuccessful if any claim of a challenged Ocure Patent remains valid and enforceable after the challenge (even when the claim is narrowed in scope). Under no circumstance shall Ocure pay any of Madison Israeli Subsidiary's attorneys' fees, costs, and expenses related to any challenge of one or more of the Ocure Patents.

Infringement and Litigation. 7.1 Ocure 8.1 Penn and Madison Israeli Subsidiary Targeted are responsible for notifying each other promptly of any infringement of Ocure Patents or any misappropriation of Ocure Confidential Information that Penn Patent Rights which may come to their attention, including notice to the other of any certification filed under the United States “Drug Price Competition and Patent Term Restoration Act of 1984”. Ocure Penn and Madison Israeli Subsidiary Targeted shall consult one another in a timely manner concerning any appropriate response thereto. 7.2 8.2 With respect to any Ocure Patents licensed to Madison Israeli Subsidiary pursuant to this Agreement, Madison Israeli Subsidiary all Penn Patent Rights [*] Targeted shall have the right, but not the obligation obligation, to prosecute in its own name such infringement or misappropriation at its own expense, so long as such License is exclusive at the time of the commencement of such action. Before Madison Israeli Subsidiary commences an action with respect to any infringement of such patents, Madison Israeli Subsidiary shall give careful consideration to the views of Ocure in making its decision whether or not to xxx. The Madison Israeli Subsidiary shall, or, if relevant, shall make best efforts to ensure that its Affiliate or sublicensee shall, continuously keep Ocure apprised of all developments in the action and shall continuously provide Ocure with full information and copies of all documents relevant to the proceedings, including without limitation, all documents filed with the courts by the parties to the legal action(s) and all correspondence with the other parties to the proceedings, and shall seek Ocure's input on any substantive submissions or positions taken in the litigation regarding the scope, validity or enforceability of the Ocure Patents. Madison Israeli Subsidiary Targeted shall not settle or compromise any such suit in a manner that imposes any obligations or restrictions on Ocure Penn or grants any rights to Ocure Patentsthe Penn Patent Rights (other than to the extent Targeted has the right to grant such rights under this Agreement), without Ocure's advance Penn’s written consentpermission. Financial recoveries from any such litigation will first be applied to reimburse Madison Israeli Subsidiary each party for its outside counsel fees and court costslitigation expenditures with additional recoveries being paid to Targeted, following which Ocure will be reimbursed for same. After which, any additional recoveries, after the deductions set forth above, will be split 65% subject to Madison Israeli Subsidiary and 35% to Ocure and the Madison Israeli Subsidiary shall pay Royalties a royalty due Penn based on the portion provisions of the recovery related to sales, or sublicensee consideration payments, on the portion of the recovery not related to sales, with respect thereof, provided however that if the Madison Israeli Subsidiary notified Ocure that it shall not be prosecuting such infringement, and Ocure initiated proceedings on its own costs and expenses - any recovery obtained in such action shall be paid to Ocure (minus costs and expenses, if any, paid by the Madison Israeli Subsidiary)Article 4 hereof. 7.3 Madison Israeli Subsidiary's prosecution 8.3 Such rights under Section 7.2 8.2 shall be subject to the continuing right of Ocure Penn to intervene at Penn’s own expense and join Madison Israeli Subsidiary Targeted or its Covered Affiliates, who shall still prosecute, in any claim or suit for infringement or misappropriation of Ocure Patents. If Ocure elects to join as a party, Ocure shall jointly control the action with Madison Israeli Subsidiary. Ocure shall retain the right to hire its own counsel, the costs of which are reimbursable as set forth in Section 7.2Penn Patent Rights. Any financial recoveries shall be shared equally between Ocure and Madison Israeli Subsidiary. In consideration received by Targeted or its Covered Affiliates in settlement of any claim or suit shall be shared between Penn and Targeted (or such Covered Affiliate) in proportion with the share of litigation expenses incurred by each in such infringement action provided that Penn has paid at least [*] percent ([*]%) of the aggregate amount of such litigation expenses. In the event that Penn does not satisfy the foregoing requirement, financial recoveries from any such litigation will first be applied to reimburse both parties for infringement of Ocure Patents under Section 7.2, Madison Israeli Subsidiary may request that Ocure join as a party. Madison Israeli Subsidiary shall not join Ocure as a party their litigation expenditures with additional recoveries being paid to any action without Ocure's prior written consent, which shall not be unreasonably withheldTargeted, subject to a royalty due Penn based upon the following conditions: a) In the event the court or other adjudicating body requires that Ocure be joined as an indispensable party or in some other capacity to establish or maintain standing to an infringement action, Madison Israeli Subsidiary shall immediately notify Ocure provisions of the same and transmit the corresponding court documents to allow for Ocure to respond as it deems appropriate. If the court or other adjudicating body ultimately maintains such requirement, then Ocure shall consent to joinder, and Madison Israeli Subsidiary may join Ocure, as a party in such actionArticle 4 hereof. b) Madison Israeli Subsidiary shall reimburse Ocure for any out-of-pocket costs 8.4 If Targeted and expenses Ocure incurs, including reasonable attorneys' fees, as part of an action brought by Madison Israeli Subsidiary in which Madison Israeli Subsidiary has requested Ocure join as a party, irrespective of whether Ocure becomes a co-plaintiff. 7.4 If Madison Israeli Subsidiary fails the Covered Affiliates fail to prosecute such infringement or misappropriationinfringement, Ocure Penn shall have the right, but not the obligation, to prosecute such infringement or misappropriation at its own expense. In such event, financial recoveries will first be entirely applied to reimburse each party for its litigation expenditures with additional recoveries being retained by OcurePenn; provided however, that Penn shall not settle such infringement if such settlement affects Penn Patent Rights other than those specifically at issue in such infringement action without Targeted’s written permission, which shall not be unreasonably withheld. 7.5 8.5 In any action to enforce any of the Ocure PatentsPenn Patent Rights, either Partyparty, at the request and expense of the other Partyparty, shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either Party party to undertake any activities, including legal discovery, at the request of any third party except as may be required by lawful process of a court of competent jurisdiction. 7.6 If a declaratory judgment action is brought naming Madison Israeli Subsidiary or Ocure as a defendant and alleging invalidity or unenforceability of any of the Ocure Patents, whether brought as an independently filed declaratory judgment action or as a counterclaim in any infringement-related litigation, Ocure may elect to take over the sole defense of the declaratory judgment action or the declaratory judgment counterclaim portion of the other litigation, at its own expense. Each party shall promptly notify the other party hereto of its receipt of any such allegations. Madison Israeli Subsidiary shall cooperate fully with Ocure in connection with any such defense. 7.7 In the event that Madison Israeli Subsidiary does challenge the validity or enforceability of one or more of the Ocure Patents (or any claims therein), Ocure may, at its option, upon written notice to Madison Israeli Subsidiary: (1) terminate this Agreement or (2) require an augmented royalty of up to two (2) times the Royalties payable under Section 3.1 or equal to 8%.Such challenge of validity or enforceability includes, but is not limited to, actions before the United States Patent and Trademark Office, such as through reexamination. Any challenge by Madison Israeli Subsidiary of the Patents shall be brought in the United States District Court in Xxxxxx County, Texas, or, when appropriate, the United States Patent and Trademark Office, with at least thirty (30) days written notice to Ocure. Madison Israeli Subsidiary shall pay all of Ocure's reasonable attorneys' fees, costs, and expenses associated with an unsuccessful challenge. A challenge shall be deemed unsuccessful if any claim of a challenged Ocure Patent remains valid and enforceable after the challenge (even when the claim is narrowed in scope). Under no circumstance shall Ocure pay any of Madison Israeli Subsidiary's attorneys' fees, costs, and expenses related to any challenge of one or more of the Ocure Patents.

Infringement and Litigation. 7.1 Ocure 8.1 Penn and Madison Israeli Subsidiary Targeted are responsible for notifying each other promptly of any infringement of Ocure Patents or any misappropriation of Ocure Confidential Information that Penn Patent Rights which may come to their attention, including notice to the other of any certification filed under the United States “Drug Price Competition and Patent Term Restoration Act of 1984”. Ocure Penn and Madison Israeli Subsidiary Targeted shall consult one another in a timely manner concerning any appropriate response thereto. 7.2 With respect to any Ocure Patents licensed to Madison Israeli Subsidiary pursuant to this Agreement, Madison Israeli Subsidiary 8.2 Targeted shall have the right, but not the obligation obligation, to prosecute in its own name such infringement or misappropriation at its own expense, so long as such License is exclusive at the time of the commencement of such action. Before Madison Israeli Subsidiary commences an action with respect to any infringement of such patents, Madison Israeli Subsidiary shall give careful consideration to the views of Ocure in making its decision whether or not to xxx. The Madison Israeli Subsidiary shall, or, if relevant, shall make best efforts to ensure that its Affiliate or sublicensee shall, continuously keep Ocure apprised of all developments in the action and shall continuously provide Ocure with full information and copies of all documents relevant to the proceedings, including without limitation, all documents filed with the courts by the parties to the legal action(s) and all correspondence with the other parties to the proceedings, and shall seek Ocure's input on any substantive submissions or positions taken in the litigation regarding the scope, validity or enforceability of the Ocure Patents. Madison Israeli Subsidiary Targeted shall not settle or compromise any such suit in a manner that imposes any obligations or restrictions on Ocure Penn or grants any rights the Penn Patent Rights (other than to Ocure Patentsthe extent Targeted has the right to grant such rights under this Agreement), without Ocure's advance Penn’s written consentpermission. Financial recoveries from any such litigation will first be applied to reimburse Madison Israeli Subsidiary each party for its outside counsel fees and court costslitigation expenditures with additional recoveries being paid to Targeted, following which Ocure will be reimbursed for same. After which, any additional recoveries, after the deductions set forth above, will be split 65% subject to Madison Israeli Subsidiary and 35% to Ocure and the Madison Israeli Subsidiary shall pay Royalties a royalty due Penn based on the portion provisions of the recovery related to sales, or sublicensee consideration payments, on the portion of the recovery not related to sales, with respect thereof, provided however that if the Madison Israeli Subsidiary notified Ocure that it shall not be prosecuting such infringement, and Ocure initiated proceedings on its own costs and expenses - any recovery obtained in such action shall be paid to Ocure (minus costs and expenses, if any, paid by the Madison Israeli Subsidiary)Article 4 hereof. 7.3 Madison Israeli Subsidiary's prosecution 8.3 Such rights under Section 7.2 8.2 shall be subject to the continuing right of Ocure Penn to intervene at Penn’s own expense and join Madison Israeli Subsidiary Targeted or its Covered Affiliates, who shall still prosecute, in any claim or suit for infringement or misappropriation of Ocure Patents. If Ocure elects to join as a party, Ocure shall jointly control the action with Madison Israeli Subsidiary. Ocure shall retain the right to hire its own counsel, the costs of which are reimbursable as set forth in Section 7.2Penn Patent Rights. Any financial recoveries shall be shared equally between Ocure and Madison Israeli Subsidiary. In consideration received by Targeted or its Covered Affiliates in settlement of any claim or suit shall be shared between Penn and Targeted (or such Covered Affiliate) in proportion with the share of litigation expenses incurred by each in such infringement action provided that Penn has paid at least [*] percent ([*]%) of the aggregate amount of such litigation expenses. In the event that Penn does not satisfy the foregoing requirement, financial recoveries from any such litigation will first be applied to reimburse both parties for infringement of Ocure Patents under Section 7.2, Madison Israeli Subsidiary may request that Ocure join as a party. Madison Israeli Subsidiary shall not join Ocure as a party their litigation expenditures with additional recoveries being paid to any action without Ocure's prior written consent, which shall not be unreasonably withheldTargeted, subject to a royalty due Penn based upon the following conditions: a) In the event the court or other adjudicating body requires that Ocure be joined as an indispensable party or in some other capacity to establish or maintain standing to an infringement action, Madison Israeli Subsidiary shall immediately notify Ocure provisions of the same and transmit the corresponding court documents to allow for Ocure to respond as it deems appropriate. If the court or other adjudicating body ultimately maintains such requirement, then Ocure shall consent to joinder, and Madison Israeli Subsidiary may join Ocure, as a party in such actionArticle 4 hereof. b) Madison Israeli Subsidiary shall reimburse Ocure for any out-of-pocket costs 8.4 If Targeted and expenses Ocure incurs, including reasonable attorneys' fees, as part of an action brought by Madison Israeli Subsidiary in which Madison Israeli Subsidiary has requested Ocure join as a party, irrespective of whether Ocure becomes a co-plaintiff. 7.4 If Madison Israeli Subsidiary fails the Covered Affiliates fail to prosecute such infringement or misappropriationinfringement, Ocure Penn shall have the right, but not the obligation, to prosecute such infringement or misappropriation at its own expense. In such event, financial recoveries will first be entirely applied to reimburse each party for its litigation expenditures with additional recoveries being retained by OcurePenn; provided however, that Penn shall not settle such infringement if such settlement affects Penn Patent Rights other than those specifically at issue in such infringement action without Targeted’s written permission, which shall not be unreasonably withheld. 7.5 8.5 In any action to enforce any of the Ocure PatentsPenn Patent Rights, either Partyparty, at the request and expense of the other Partyparty, shall cooperate to the fullest extent reasonably possible. This provision shall not be construed to require either Party party to undertake any activities, including legal discovery, at the request of any third party except as may be required by lawful process of a court of competent jurisdiction. 7.6 If a declaratory judgment action is brought naming Madison Israeli Subsidiary or Ocure as a defendant and alleging invalidity or unenforceability of any of the Ocure Patents, whether brought as an independently filed declaratory judgment action or as a counterclaim in any infringement-related litigation, Ocure may elect to take over the sole defense of the declaratory judgment action or the declaratory judgment counterclaim portion of the other litigation, at its own expense. Each party shall promptly notify the other party hereto of its receipt of any such allegations. Madison Israeli Subsidiary shall cooperate fully with Ocure in connection with any such defense. 7.7 In the event that Madison Israeli Subsidiary does challenge the validity or enforceability of one or more of the Ocure Patents (or any claims therein), Ocure may, at its option, upon written notice to Madison Israeli Subsidiary: (1) terminate this Agreement or (2) require an augmented royalty of up to two (2) times the Royalties payable under Section 3.1 or equal to 8%.Such challenge of validity or enforceability includes, but is not limited to, actions before the United States Patent and Trademark Office, such as through reexamination. Any challenge by Madison Israeli Subsidiary of the Patents shall be brought in the United States District Court in Xxxxxx County, Texas, or, when appropriate, the United States Patent and Trademark Office, with at least thirty (30) days written notice to Ocure. Madison Israeli Subsidiary shall pay all of Ocure's reasonable attorneys' fees, costs, and expenses associated with an unsuccessful challenge. A challenge shall be deemed unsuccessful if any claim of a challenged Ocure Patent remains valid and enforceable after the challenge (even when the claim is narrowed in scope). Under no circumstance shall Ocure pay any of Madison Israeli Subsidiary's attorneys' fees, costs, and expenses related to any challenge of one or more of the Ocure Patents.