Common use of INFRINGEMENT OF LICENSED PATENT RIGHTS BY THIRD PARTIES Clause in Contracts

INFRINGEMENT OF LICENSED PATENT RIGHTS BY THIRD PARTIES. A. In the event that any infringement of a Patent on the Licensed Technology or Developed Products shall come to the attention of UFTB or Exactech, then UFTB and Exactech shall duly inform each other. UFTB shall, in its sole discretion, determine whether or not to prosecute a patent infringement action. If UFTB conducts and pays the costs of the litigation, then any amount recovered belongs to UFTB. Exactech shall have the right to pay a portion of the litigation costs up to 50% of the total incurred and will have the right to the same proportion of recovery. B. If UFTB determines and elects not to prosecute a patent infringement action as described in Section 11A, then Exactech may bring or cause legal proceedings against the alleged infringing party at its own initial expense, with partial reimbursement by UFTB as defined herein, so long as Exactech shows that (i) there is substantial likelihood of infringement, (ii) there is substantial competition by the infringer, and (iii) unless mutually agreed to in writing by UFTB and Exactech, no other action for infringement is pending at the time so that only one such lawsuit is pending at any time. Exactech may defray up to fifty percent (50%) of the direct, out-of-pocket expenses of any such lawsuit by withholding from payments to UFTB, upon written notification to UFTB twenty percent (20%) of the Transfer Distribution Fee due to UFTB per Section 3C herein. At no time shall the aggregate sum of the amounts withheld from UFTB `s Transfer Distribution Fee payments exceed fifty percent (50%) of the total amount of actual, out-of-pocket expenses paid by Exactech for expenses directly related to the lawsuit. Out of any damages or awards recovered by Exactech in such action conducted by Exactech, Exactech will first recover any direct out-of-pocket expenses for conducting said litigation which are in excess of the costs defrayed by UFTB's withheld Transfer Distribution Fees. UFTB will then recover any Transfer Distribution Fees withheld by Exactech and any direct, out-of-pocket expenses which it incurred on behalf of the litigation. Any amount remaining shall belong to Exactech except that UFTB shall receive an amount equivalent to its Transfer Distribution Fee percentage on such amount remaining. C. In any proceedings, UFTB shall be entitled to employ counsel and control the course of litigation, at its own expense, if, in UFTB's sole discretion, Exactech's defense of patent rights is insufficient, or if Exactech fails to carry on vigorous prosecution of said patent rights. D. In the event Exactech seeks, with justifiable cause, to prosecute more than one lawsuit at a time, UFTB will not unreasonably withhold permission where such actions are conducted entirely at Exactech's expense, including reimbursement of UFTB's expenses incurred on behalf of such action. E. In any action brought by Exactech, Exactech shall indemnify and hold UFTB harmless from any damages, costs or expenses incurred by reason of such litigation.

INFRINGEMENT OF LICENSED PATENT RIGHTS BY THIRD PARTIES. A. In the event that any infringement of a Licensed Patent on the Licensed Technology or Developed Products shall come to the attention of UFTB the FOUNDATION or ExactechLICENSEE, then UFTB FOUNDATION and Exactech LICENSEE [*] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION. 12 shall duly inform each other. UFTB FOUNDATION, shall, in its sole discretion, discretion determine whether or not to prosecute a patent infringement action. If UFTB conducts and pays the costs of the litigation, then any amount recovered belongs to UFTB. Exactech shall have the right to pay a portion of the litigation costs up to 50% of the total incurred and will have the right to the same proportion of recovery. B. If UFTB FOUNDATION determines and elects not to prosecute a patent infringement action as described in Section 11Aaction, then Exactech LICENSEE may bring or cause legal proceedings against the alleged infringing party infringer at its own initial expenseexpense and in the name of FOUNDATION, with partial reimbursement by UFTB as defined hereinif necessary, so long as Exactech shows that (i) if there is a showing of substantial likelihood of infringement, (ii) there is substantial competition by the infringer, infringement and (iii) unless mutually agreed to in writing by UFTB and Exactech, that no other action for infringement is pending at the time so that only one such lawsuit is pending at any time. Exactech LICENSEE may defray up to fifty percent (50%) of the direct, out-of-pocket expenses of any such lawsuit to the extent of [*] of royalties payable by withholding from payments to UFTB, upon written notification to UFTB twenty percent (20%) LICENSEE during the course of the Transfer Distribution Fee due to UFTB per Section 3C herein. At no time shall the aggregate sum of the amounts withheld from UFTB `s Transfer Distribution Fee payments exceed fifty percent (50%) of the total amount of actual, out-of-pocket expenses paid by Exactech for expenses and directly related to the lawsuitsuch legal proceedings. Out of any damages or awards recovered by Exactech LICENSEE in such action conducted by ExactechLICENSEE, Exactech LICENSEE will first recover any direct out-of-pocket its expenses for conducting said litigation which are in excess of beyond the costs defrayed by UFTB's withheld Transfer Distribution Feesroyalties. UFTB FOUNDATION will then recover any Transfer Distribution Fees all royalties up to the [*] of royalties payable by LICENSEE to FOUNDATION and withheld by Exactech and LICENSEE to defray costs of such lawsuit. FOUNDATION will also recover any direct, out-of-pocket expenses which it incurred on behalf of the litigation. Any amount remaining shall belong belongs to Exactech except LICENSEE, if LICENSEE conducts the litigation, provided that UFTB shall receive an amount equivalent to its Transfer Distribution Fee percentage on such amount remaining. C. In any proceedings, UFTB LICENSEE shall be entitled to employ counsel and control pay FOUNDATION a royalty as provided for in VIII above. If FOUNDATION conducts the course of litigation, at its own expense, out of any amount recovered, FOUNDATION shall first recover any expenses which it incurred on behalf of the litigation, next LICENSEE shall recover direct and documentable losses including opportunity costs caused by said infringement and any amount remaining shall belong to FOUNDATION. In any proceedings, FOUNDATION shall be entitled to employ, at its own expense, counsel and control the course of litigation if, in UFTBFOUNDATION's sole discretion, ExactechLICENSEE's defense of patent rights is insufficient, or if Exactech LICENSEE fails to carry on vigorous prosecution of said patent rights. D. . In the event Exactech LICENSEE seeks, with justifiable cause, to prosecute more than one lawsuit at a time, UFTB FOUNDATION will not unreasonably withhold permission where such actions are conducted entirely at ExactechLICENSEE's expense, expense including reimbursement of UFTBFOUNDATION's expenses incurred on behalf of such action. E. . In any action brought by ExactechLICENSEE, Exactech shall LICENSEE undertakes to indemnify for and hold UFTB FOUNDATION harmless from any damages, costs or expenses incurred by reason of such litigation. [*] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION.

INFRINGEMENT OF LICENSED PATENT RIGHTS BY THIRD PARTIES. A. In the event that any infringement of a Licensed Patent on the Licensed Technology or Developed Products shall come to the attention of UFTB FOUNDATION or ExactechLICENSEE, then UFTB FOUNDATION and Exactech LICENSEE shall duly inform each other. UFTB FOUNDATION, shall, in its sole discretion, determine whether or not to prosecute a patent infringement action. If UFTB conducts and pays the costs of the litigation, then any amount recovered belongs to UFTB. Exactech shall have the right to pay a portion of the litigation costs up to 50% of the total incurred and will have the right to the same proportion of recovery. B. If UFTB FOUNDATION determines and elects not to prosecute a patent infringement action as described action, and such patent infringement is in Section 11Athe Licensed Field of Use, then Exactech LICENSEE may bring or cause legal proceedings against the alleged infringing party infringer at its own initial expense, with partial reimbursement by UFTB as defined herein, so long as Exactech shows that (i) there is substantial likelihood of infringement, (ii) there is substantial competition by the infringer, and (iii) unless mutually agreed to in writing by UFTB and Exactech, no other action for infringement is pending at the time so that only one such lawsuit is pending at any time. Exactech LICENSEE may defray up to fifty percent (50%) of the direct, out-of-pocket expenses of any such lawsuit by withholding from payments to UFTB, upon written notification to UFTB twenty percent (20%) of the Transfer Distribution Fee due to UFTB per Section 3C herein. At no time shall the aggregate sum of the amounts withheld from UFTB `s Transfer Distribution Fee payments exceed fifty percent (50%) of the total amount of actual, out-of-pocket expenses paid by Exactech for expenses directly related to the lawsuitextent of 50% of royalties payable by LICENSEE during the course of such legal proceedings. Out of any damages or awards recovered by Exactech LICENSEE in such action conducted by ExactechLICENSEE, Exactech FOUNDATION will first recover any direct out-of-pocket all royalties up to the 50% of royalties payable by LICENSEE to FOUNDATION and withheld by LICENSEE to defray costs of such lawsuit. LICENSEE will then recover its expenses for conducting said litigation which are in excess of beyond the costs defrayed by UFTB's withheld Transfer Distribution Feesroyalties. UFTB FOUNDATION will then also recover any Transfer Distribution Fees withheld by Exactech and any direct, out-of-pocket reasonable expenses which it incurred on behalf of the litigation. Any amount remaining shall belong belongs to Exactech except LICENSEE, if LICENSEE conducts the litigation, provided that UFTB shall receive an amount equivalent to its Transfer Distribution Fee percentage on such amount remaining. C. LICENSEE shall pay FOUNDATION a royalty as provided for in VII above. If FOUNDATION conducts the litigation then any amount recovered belongs to FOUNDATION; provided that, to the extent 12 that FOUNDATION's recoveries exceed FOUNDATION's reasonable expenses with respect to such action or claim, FOUNDATION shall reimburse LICENSEE for LICENSEE's reasonable costs in connection with cooperating with FOUNDATION in the prosecution of such action or claim. In any proceeding initiated by LICENSEE, LICENSEE shall employ counsel reasonably satisfactory to FOUNDATION and shall inform FOUNDATION of all material developments in such proceedings. The prosecution, settlement, or abandonment of any proceeding initiated by LICENSEE shall be at LICENSEE's reasonable discretion, provided that LICENSEE shall not have any right to surrender any of FOUNDATION's rights to the Licensed Patents or to grant any infringer any rights to the Licensed Patents other than a sublicense subject to the conditions which would apply to the grant of any other sublicense. In any proceedings, UFTB FOUNDATION shall be entitled to employ counsel and control the course of litigation, at its own expense, litigation if, in UFTBFOUNDATION's sole discretion, ExactechLICENSEE's defense of patent rights is insufficient, or if Exactech LICENSEE fails to carry on vigorous prosecution of said patent rights. D. . In the event Exactech LICENSEE seeks, with justifiable cause, to prosecute more than one lawsuit at a time, UFTB FOUNDATION will not unreasonably withhold permission where such actions are conducted entirely at ExactechLICENSEE's expense, expense including reimbursement of UFTBFOUNDATION's expenses incurred on behalf of such action. E. . In any action brought by ExactechLICENSEE, Exactech shall LICENSEE undertakes to 13 indemnify for and hold UFTB FOUNDATION harmless from any damages, costs or expenses incurred by reason of such litigation.

INFRINGEMENT OF LICENSED PATENT RIGHTS BY THIRD PARTIES. A. In the event that any infringement of a Licensed Patent on the Licensed Technology or Developed Products shall come to the attention of UFTB the FOUNDATION or ExactechLICENSEE, then UFTB FOUNDATION and Exactech LICENSEE shall duly inform each other. UFTB FOUNDATION, shall, in its sole discretion, discretion determine whether or not to prosecute a patent infringement action. If UFTB conducts and pays the costs of the litigation, then any amount recovered belongs to UFTB. Exactech shall have the right to pay a portion of the litigation costs up to 50% of the total incurred and will have the right to the same proportion of recovery. B. If UFTB FOUNDATION determines and elects not to prosecute a patent infringement action as described in Section 11Aaction, then Exactech LICENSEE may bring or cause legal proceedings against the alleged infringing party infringer at its own initial expenseexpense and in the name of FOUNDATION, with partial reimbursement by UFTB as defined hereinif necessary, so long as Exactech shows that (i) if there is a showing of substantial likelihood of infringement, (ii) there is substantial competition by the infringer, infringement and (iii) unless mutually agreed to in writing by UFTB and Exactech, that no other action for infringement is pending at the time so that only one such lawsuit is pending at any time. Exactech LICENSEE may defray up to fifty percent (50%) of the direct, out-of-pocket expenses of any such lawsuit to the extent of 50% of royalties payable by withholding from payments to UFTB, upon written notification to UFTB twenty percent (20%) LICENSEE during the course of the Transfer Distribution Fee due to UFTB per Section 3C herein. At no time shall the aggregate sum of the amounts withheld from UFTB `s Transfer Distribution Fee payments exceed fifty percent (50%) of the total amount of actual, out-of-pocket expenses paid by Exactech for expenses and directly related to the lawsuitsuch legal proceedings. Out of any damages or awards recovered by Exactech LICENSEE in such action conducted by ExactechLICENSEE, Exactech LICENSEE will first recover any direct out-of-pocket its expenses for conducting said litigation which are in excess of beyond the costs defrayed by UFTB's withheld Transfer Distribution Feesroyalties. UFTB FOUNDATION will then recover any Transfer Distribution Fees all royalties up to the 50% of royalties payable by LICENSEE to FOUNDATION and withheld by Exactech and LICENSEE to defray costs of such lawsuit. FOUNDATION will also recover any direct, out-of-pocket expenses which it incurred on behalf of the litigation. Any amount remaining shall belong belongs to Exactech except LICENSEE, if LICENSEE conducts the litigation, provided that UFTB shall receive an amount equivalent to its Transfer Distribution Fee percentage on such amount remaining. C. In any proceedings, UFTB LICENSEE shall be entitled to employ counsel and control pay FOUNDATION a royalty as provided for in VIII above. If FOUNDATION conducts the course of litigation, at its own expense, out of any amount recovered, FOUNDATION shall first recover any expenses which it incurred on behalf of the litigation, next LICENSEE shall recover direct and documentable losses including opportunity costs caused by said infringement and any amount remaining shall belong to FOUNDATION. In any proceedings, FOUNDATION shall be entitled to employ, at its own expense, counsel and control the course of litigation if, in UFTBFOUNDATION's sole discretion, ExactechLICENSEE's defense of patent rights is insufficient, or if Exactech LICENSEE fails to carry on vigorous prosecution of said patent rights. D. . In the event Exactech LICENSEE seeks, with justifiable cause, to prosecute more than one lawsuit at a time, UFTB FOUNDATION will not unreasonably withhold permission where such actions are conducted entirely at ExactechLICENSEE's expense, expense including reimbursement of UFTBFOUNDATION's expenses incurred on behalf of such action. E. . In any action brought by ExactechLICENSEE, Exactech shall LICENSEE undertakes to indemnify for and hold UFTB FOUNDATION harmless from any damages, costs or expenses incurred by reason of such litigation.

INFRINGEMENT OF LICENSED PATENT RIGHTS BY THIRD PARTIES. A. In the event that any infringement within the Licensed Field of a Patent on patent relating to the Licensed Technology or Developed Products any Bone Paste Product owned by RTI shall come to the attention of UFTB RTI or Exactech, then UFTB RTI and Exactech shall duly inform each other. UFTB RTI shall, in its sole discretion, determine whether or not to it will prosecute a patent infringement actionlitigation. If UFTB RTI conducts and pays the costs fees and expenses of the litigationinfringement action, then any amount recovered belongs to UFTBRTI. Exactech shall have the right to may pay a portion part of the litigation costs up to 50% fees and expenses and, if it does so, any recovery shall be divided between Exactech and RTI as follows: (1) any lost profits, enhanced or punitive damages, and/or attorneys’ fees recovery shall be divided between RTI and Exactech based on their proportionate share of the total incurred litigation fees and will have expenses; and (2) any reasonable royalty recovery shall be belong to RTI. Any recovery obtained from settlement of the right to litigation shall be divided between RTI and Exactech based on their proportionate share of the same proportion of recoverylitigation fees and expenses. B. If UFTB RTI determines and elects not to prosecute a patent infringement action litigation as described in Section 11AVIII.A., then Exactech may bring or cause legal proceedings against the alleged infringing party at its own initial expense, with partial reimbursement by UFTB RTI as defined herein, so long as Exactech shows that (i) there is substantial likelihood of infringement, (ii) there is substantial competition by the infringer, and (iii) unless mutually agreed to in writing by UFTB RTI and Exactech, no other action for infringement litigation is pending at the time so that only one such lawsuit is pending at time. Where necessary, RTI agrees to allow itself to be included as a named plaintiff in any timepatent infringement litigation brought by Exactech. Exactech may defray up to fifty [***] percent (50[***]%) of the direct, out-of-pocket fees and expenses of any such lawsuit by withholding from payments to UFTBlitigation by, upon written notification to UFTB twenty RTI, withholding up to [***] percent (20[***]%) of the Transfer Distribution Fee TDLSF due to UFTB per RTI under Section 3C III.A. herein. At no time shall the aggregate sum of the amounts TDLSF payments so withheld from UFTB `s Transfer Distribution Fee payments RTI exceed fifty [***] percent (50[***]%) of the total amount of actual, out-of-pocket costs and expenses paid by Exactech for expenses directly related to the lawsuitinfringement litigation. Out If Exactech recovers any amount via the infringement litigation (including settlement of any damages or awards recovered by Exactech in such action conducted by Exactechlitigation), Exactech such amount will first recover any direct be used to reimburse Exactech and RTI proportionally in accordance with their respective out-of-pocket expenses for conducting said litigation which are in excess of the costs defrayed by UFTB's expenditures, including attorneys’ fees, and any TDLSF withheld Transfer Distribution Fees. UFTB will then recover any Transfer Distribution Fees withheld from RTI by Exactech and any direct, out-of-pocket expenses which it incurred on behalf as a result of the litigation. Any amount remaining after the initial disbursement shall belong to Exactech Exactech, except that UFTB RTI shall receive an amount equivalent to its Transfer Distribution Fee TDLSF percentage set forth in Section III.A. on such amount remaining. [***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. C. In any proceedingspatent infringement litigation involving RTI’s patent rights in the Licensed Field, UFTB RTI shall be entitled to employ its own counsel and control the course of the litigation, at its own expense, if, RTI determines, in UFTB's its sole discretion, that Exactech's ’s defense of its patent rights is insufficient, or if Exactech fails to carry on vigorous prosecution of said patent rights. D. In the event Exactech seeks, with justifiable cause, to prosecute more than one lawsuit infringement litigation at a time, UFTB RTI will not unreasonably withhold permission where such actions are conducted entirely at Exactech's expenseto do so. The disbursement of any recovery shall be divided between Exactech and RTI as provided in Section VIII.B., including reimbursement of UFTB's expenses incurred on behalf of such actionabove. E. In any action brought by Exactech, Exactech shall indemnify and hold UFTB harmless from any damages, costs or expenses incurred by reason of such litigation.

INFRINGEMENT OF LICENSED PATENT RIGHTS BY THIRD PARTIES. A. In the event that any infringement of a Licensed Patent on the Licensed Technology or Developed Products shall come to the attention of UFTB the FOUNDATION or ExactechLICENSEE, then UFTB FOUNDATION and Exactech LICENSEE [ * ] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION. shall duly inform each other. UFTB FOUNDATION, shall, in its sole discretion, discretion determine whether or not to prosecute a patent infringement action. If UFTB conducts and pays the costs of the litigation, then any amount recovered belongs to UFTB. Exactech shall have the right to pay a portion of the litigation costs up to 50% of the total incurred and will have the right to the same proportion of recovery. B. If UFTB FOUNDATION determines and elects not to prosecute a patent infringement action as described in Section 11Aaction, then Exactech LICENSEE may bring or cause legal proceedings against the alleged infringing party infringer at its own initial expenseexpense and in the name of FOUNDATION, with partial reimbursement by UFTB as defined hereinif necessary, so long as Exactech shows that (i) if there is a showing of substantial likelihood of infringement, (ii) there is substantial competition by the infringer, infringement and (iii) unless mutually agreed to in writing by UFTB and Exactech, that no other action for infringement is pending at the time so that only one such lawsuit is pending at any time. Exactech LICENSEE may defray up to fifty percent (50%) of the direct, out-of-pocket expenses of any such lawsuit to the extent of [ * ] of royalties payable by withholding from payments to UFTB, upon written notification to UFTB twenty percent (20%) LICENSEE during the course of the Transfer Distribution Fee due to UFTB per Section 3C herein. At no time shall the aggregate sum of the amounts withheld from UFTB `s Transfer Distribution Fee payments exceed fifty percent (50%) of the total amount of actual, out-of-pocket expenses paid by Exactech for expenses and directly related to the lawsuitsuch legal proceedings. Out of any damages or awards recovered by Exactech LICENSEE in such action conducted by ExactechLICENSEE, Exactech LICENSEE will first recover any direct out-of-pocket its expenses for conducting said litigation which are in excess of beyond the costs defrayed by UFTB's withheld Transfer Distribution Feesroyalties. UFTB FOUNDATION will then recover any Transfer Distribution Fees all royalties up to the [ * ] of royalties payable by LICENSEE to FOUNDATION and withheld by Exactech and LICENSEE to defray costs of such lawsuit. FOUNDATION will also recover any direct, out-of-pocket expenses which it incurred on behalf of the litigation. Any amount remaining shall belong belongs to Exactech except LICENSEE, if LICENSEE conducts the litigation, provided that UFTB shall receive an amount equivalent to its Transfer Distribution Fee percentage on such amount remaining. C. In any proceedings, UFTB LICENSEE shall be entitled to employ counsel and control pay FOUNDATION a royalty as provided for in VIII above. If FOUNDATION conducts the course of litigation, at its own expense, out of any amount recovered, FOUNDATION shall first recover any expenses which it incurred on behalf of the litigation, next LICENSEE shall recover direct and documentable losses including opportunity costs caused by said infringement and any amount remaining shall belong to FOUNDATION. In any proceedings, FOUNDATION shall be entitled to employ, at its own expense, counsel and control the course of litigation if, in UFTBFOUNDATION's sole discretion, ExactechLICENSEE's defense of patent rights is insufficient, or if Exactech LICENSEE fails to carry on vigorous prosecution of said patent rights. D. . In the event Exactech LICENSEE seeks, with justifiable cause, to prosecute more than one lawsuit at a time, UFTB FOUNDATION will not unreasonably withhold permission where such actions are conducted entirely at ExactechLICENSEE's expense, expense including reimbursement of UFTBFOUNDATION's expenses incurred on behalf of such action. E. . In any action brought by ExactechLICENSEE, Exactech shall LICENSEE undertakes to indemnify for and hold UFTB FOUNDATION harmless from any damages, costs or expenses incurred by reason of such litigation. [ * ] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION.

INFRINGEMENT OF LICENSED PATENT RIGHTS BY THIRD PARTIES. A. In the event that any infringement of a Licensed Patent on the Licensed Technology or Developed Products shall come to the attention of UFTB FOUNDATION or ExactechLICENSEE, then UFTB FOUNDATION and Exactech LICENSEE shall duly inform each other. UFTB FOUNDATION, shall, in its sole discretion, discretion determine whether or not to prosecute a patent infringement action. If UFTB conducts and pays the costs of the litigation, then any amount recovered belongs to UFTB. Exactech shall have the right to pay a portion of the litigation costs up to 50% of the total incurred and will have the right to the same proportion of recovery. B. If UFTB FOUNDATION determines and elects not to prosecute a patent infringement action as described in Section 11Aaction, then Exactech LICENSEE may bring or cause legal proceedings against the alleged infringing party infringer at its own initial expense, with partial reimbursement by UFTB as defined herein, so long as Exactech shows that (i) expense if there is a showing of substantial likelihood of infringement, (ii) that there is substantial competition by the alleged infringer, and (iii) unless mutually agreed to in writing by UFTB and Exactech, that no other action for infringement is pending at the time so that only one such lawsuit is pending at any time. Exactech LICENSEE may defray up to fifty percent (50%) of the direct, out-of-pocket expenses of any such lawsuit by withholding from payments to UFTB, upon written notification to UFTB twenty percent (20%) of the Transfer Distribution Fee due to UFTB per Section 3C herein. At no time shall the aggregate sum of the amounts withheld from UFTB `s Transfer Distribution Fee payments exceed fifty percent (50%) of the total amount of actual, out-of-pocket expenses paid by Exactech for expenses directly related to the lawsuitextent of 50% of royalties payable by LICENSEE during the course of such legal proceedings. Out of any damages or awards recovered by Exactech LICENSEE in such action conducted by ExactechLICENSEE, Exactech FOUNDATION will first recover any direct out-of-pocket all royalties up to the 50% of royalties payable by LICENSEE to FOUNDATION and withheld by LICENSEE to defray costs of such lawsuit. LICENSEE will then recover its expenses for conducting said litigation which are in excess of beyond the costs defrayed by UFTB's withheld Transfer Distribution Feesroyalties. UFTB FOUNDATION will then also recover any Transfer Distribution Fees withheld by Exactech and any direct, out-of-pocket expenses which it incurred on behalf of the litigation. Any amount remaining shall belong belongs to Exactech except LICENSEE, if LICENSEE conducts the litigation, provided that UFTB shall receive an amount equivalent to its Transfer Distribution Fee percentage on such amount remaining. C. LICENSEE shall pay FOUNDATION a royalty as provided for in Section VII above. If FOUNDATION conducts the litigation then any amount recovered belongs to FOUNDATION. In any proceedings, UFTB FOUNDATION shall be entitled to employ counsel and control the course of litigation, at its own expense, litigation if, in UFTBFOUNDATION's sole discretion, ExactechLICENSEE's defense of patent rights is insufficient, or if Exactech LICENSEE fails to carry on vigorous prosecution of said patent rights. D. . In the event Exactech LICENSEE seeks, with justifiable cause, to prosecute more than one lawsuit at a time, UFTB FOUNDATION will not unreasonably withhold permission where such actions are conducted entirely at ExactechLICENSEE's expense, expense including reimbursement of UFTBFOUNDATION's expenses incurred on behalf of such action. E. . In any action brought by ExactechLICENSEE, Exactech shall LICENSEE undertakes to indemnify for and hold UFTB FOUNDATION harmless from any damages, costs or expenses incurred by reason of such litigation.