Common use of Procedures; Expenses and Recoveries Clause in Contracts

Procedures; Expenses and Recoveries. The Party having the right to initiate or defend any suit, action or administrative proceeding to challenge any Competitive Infringement or to defend a Defense Action under Section 12.3.2 shall have the sole and exclusive right to select counsel for any such suit, action or proceeding and shall pay all expenses of the suit, action or proceeding, including attorneys’ fees and court costs and reimbursement of the other Party’s reasonable Out-of-Pocket Costs in rendering assistance requested by the initiating or defending Party. If required under applicable Law in order for the initiating or defending Party to initiate, defend or maintain such suit, action or proceeding, or if either Party is unable to initiate, prosecute or defend such suit, action or proceeding solely in its own name or it is otherwise advisable to obtain an effective legal remedy, in each case, the other Party shall join as a party to the suit, action or proceeding and will execute and cause its Affiliates to execute all documents necessary for the initiating or defending Party to initiate, maintain or defend such suit, action or proceeding. In addition, at the initiating or defending Party’s request, the other Party shall provide reasonable assistance to the initiating or defending Party in connection with such suit, action or proceeding at no charge to the initiating or defending Party except for reimbursement by the initiating or defending Party of reasonable Out-of-Pocket Costs incurred in rendering such assistance. The non-initiating or non-defending Party shall have the right to participate and be represented in any such suit, action or proceeding by its own counsel at its own expense. If the Parties obtain from a Third Party, in connection with such a suit, action or proceeding, any damages, license fees, royalties or other compensation (including any amount received in settlement of such litigation or the applicable dispute), then such amounts shall be allocated in all cases as follows: (a) first, to reimburse each Party for all expenses of the suit incurred by the Parties, including attorneys’ fees and disbursements, court costs and other litigation expenses; (b) second, [**] of the balance to be paid to Sarepta with respect to enforcement of the Sarepta Technology in the Sarepta Territory or to Summit with respect to enforcement of the Summit Technology in the Summit Territory; and (c) third, [**] of the balance to be paid to the Party initiating the suit and [**] of the balance to be paid to the other Party.

Procedures; Expenses and Recoveries. The Party having the right to initiate any infringement suit or defend any suit, action or administrative proceeding to challenge any Competitive Infringement or to defend a Defense Defensive Action under Section 12.3.2 shall 9.3.2 (the “Controlling Party”) will have the sole and exclusive right to select counsel for and control any such suit, action suit or proceeding and shall pay all Defensive Action. The expenses of the suit, action suit or proceedingthe Defensive Action, including attorneys’ fees and court costs and reimbursement of the other Party’s reasonable Out-of-Pocket Costs the other Party (the “Cooperating Party”) in rendering assistance requested by the initiating or defending PartyControlling Party (“Enforcement Expense”), will be borne *****. If required under applicable Applicable Law in order for the initiating or defending Controlling Party to initiate, defend or initiate and/or maintain such suit, action suit or proceedingto defend the Defensive Action, or if either Party is unable to initiate, initiate or prosecute such suit or defend such suit, action or proceeding the Defensive Action solely in its own name or it is otherwise advisable to obtain an effective legal remedy, in each case, the other Party shall will join as a party to the suit, action suit or proceeding Defensive Action and will execute and cause its Affiliates to execute all documents necessary for the initiating or defending Controlling Party to initiate, initiate litigation to prosecute and maintain such action or defend such suit, action or proceedingthe Defensive Action. In addition, at the initiating or defending Controlling Party’s request, the other Cooperating Party shall will provide reasonable assistance to the initiating or defending Controlling Party in connection with such suit, action or proceeding at no charge to the initiating or defending Party except for reimbursement by the initiating or defending Party of reasonable Out-of-Pocket Costs incurred in rendering such assistancean infringement suit *****. The non-initiating or non-defending Cooperating Party shall will have the right to participate and be represented in any such suit, action or proceeding suit by its own counsel at its own expense. If the Parties obtain from a Third Party, in connection with such a suit, action or proceeding, any damages, license fees, royalties or other compensation (including any amount received in settlement of such litigation or litigation) (“Recoveries”) in the applicable dispute)Territory, then such amounts shall will be allocated in all cases as follows: (a) first, to reimburse each Party for all expenses of the suit incurred by the Parties, including attorneys’ fees and disbursements, court costs and other litigation expenses; (b) second, [: **] of ***. ***** Confidential Information has been omitted and filed separately with the balance to be paid to Sarepta Securities and Exchange Commission. Confidential treatment has been requested with respect to enforcement this omitted information. KHK will have the sole right to take action and earn all Recoveries outside of the Sarepta Technology in the Sarepta Territory or to Summit with respect to enforcement of the Summit Technology in the Summit Territory; and (c) third, [**] of the balance to be paid to the Party initiating the suit and [**] of the balance to be paid to the other Party.

Procedures; Expenses and Recoveries. The Party having the right to initiate or defend any suit, action or administrative proceeding to challenge any Competitive Infringement or to defend a Defense Action under Section 12.3.2 11.4.2 (Rights to Enforce) above shall have the sole and exclusive right to select counsel for any such suit, action or proceeding Infringement Action and shall pay all expenses of the suit, action or proceeding, including attorneys’ fees and court costs and reimbursement of the other Party’s reasonable Co-Co Out-of-Pocket Costs in rendering assistance requested by the initiating or defending Party. If required under applicable Law in order for the initiating or defending Party to initiate, defend or initiate and/or maintain such suit, action or proceedingInfringement Action, or if either Party is unable to initiate, initiate or prosecute or defend such suit, action or proceeding Infringement Action solely in its own name or it is otherwise advisable to obtain an effective legal remedy, in each case, the other Party shall join as a party to the suit, action or proceeding Infringement Action and will execute and cause its Affiliates to execute all documents necessary for the initiating or defending Party to initiate, initiate litigation to prosecute and maintain or defend such suit, action or proceedingaction. In addition, at the initiating or defending Party’s request, the other Party shall provide reasonable assistance to the initiating or defending Party in connection with such suit, action or proceeding an Infringement Action at no charge to the initiating or defending Party except for reimbursement by the initiating or defending Party of reasonable Co-Co Out-of-Pocket Costs incurred in rendering such assistance. The non-initiating or non-defending Party shall have the right to participate and be represented in any such suit, action or proceeding Infringement Action by its own counsel at its own expense. If the Parties obtain from a Third Party, in connection with such a suit, action or proceedingInfringement Action, any damages, license fees, royalties or other compensation (including any amount received in settlement of such litigation or the applicable disputelitigation), then such after payment of any amounts required under any In-Licenses, the remaining amounts shall be allocated in all cases as follows: (a) first, to reimburse each Party for all expenses of the suit Infringement Action incurred by the Parties, including attorneys’ fees and disbursements, court costs and other litigation expenses;; CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934. CO-CO LICENSE TERMS (b) second, [**] of the balance to be paid to Sarepta with respect to enforcement of the Sarepta Technology in the Sarepta Territory or to Summit with respect to enforcement of the Summit Technology in the Summit Territory; and (c) third, [**] of the balance to be paid to the Party initiating the suit Infringement Action, with respect to Infringement Actions in the Genzyme Territory, and [***] of the balance to be paid to the Party initiating the Infringement Action, with respect to Infringement Actions in the Co-Co Territory; and (c) third, the remainder to the other Party. Notwithstanding the foregoing, in the event that Alnylam elects to itself assert an Alnylam Core Technology Patent against a Competitive Infringement in the Genzyme Territory, the Parties shall each be entitled to [***] of the balance of any recovery therefrom after reimbursement of expenses as described in clause (i) above. In addition, with respect to Infringement Actions brought in the Co-Co Territory, the Parties shall share evenly the expenses of the suit, including attorneys’ fees of each Party, court costs, and both Parties’ reasonable Co-Co Out-of-Pocket expenses in rendering assistance related to the Infringement Action (“Litigation Expenses”). For such Infringement Actions brought in the Co-Co Territory, Litigation Expenses shall initially be borne by the Party incurring the expense. Each Party will calculate and maintain records of Litigation Expenses incurred by it and its Affiliates with respect to any such Infringement Action, and, within thirty (30) days following the end of each Calendar Quarter, each Party shall submit to the other a report detailing the Litigation Expenses incurred by it and its Affiliates during such Calendar Quarter. Unless otherwise agreed by the Parties, the Party that incurs more than its share of the total Litigation Expenses with respect to such an Infringement Action in the Co-Co Territory during any Calendar Quarter shall be paid by the other Party an amount of cash sufficient to reconcile to its fifty percent (50%) share of Litigation Expenses.

Procedures; Expenses and Recoveries. The Party having the right to initiate or defend any suit, action or administrative proceeding to challenge any Competitive Infringement or to defend a Defense Action infringement suit under Section 12.3.2 11.5.2 above shall have the sole and exclusive right to select counsel for any such suit, action or proceeding suit and shall pay all expenses of the suit, action or proceeding, including attorneys’ ' fees and court costs and reimbursement of the other Party’s 's reasonable Outout-of-Pocket Costs pocket expense in rendering assistance requested by the initiating or defending Party, except that such expenses in respect of any Profit-Sharing Product in the United States (i) prior to the First Commercial Sale of such Profit-Sharing Product in the United States shall be included in U.S. Development Expenses for such product and shared by the Parties pursuant to Section 3.9.1, and (ii) after the First Commercial Sale of such Profit Sharing Product in the United States shall be Commercialization Expenses for purposes of calculating U.S. Operating Profit/Loss pursuant to Section 9.3. If required under applicable Law law in order for the initiating or defending Party to initiate, defend or initiate and/or maintain such suit, action or proceeding, or if either Party is unable to initiate, initiate or prosecute or defend such suit, action or proceeding suit solely in its own name or it is otherwise advisable to obtain an effective legal remedy, in each case, the other Party shall join as a party to the suit, action or proceeding suit and will execute and cause its Affiliates to execute all documents necessary for the initiating or defending Party to initiate, initiate litigation to prosecute and maintain or defend such suit, action or proceedingaction. In addition, at the initiating or defending Party’s 's request, the other Party shall provide reasonable assistance to the initiating or defending Party in connection with such suit, action or proceeding an infringement suit at no charge to the initiating or defending Party except for reimbursement by the initiating or defending Party of reasonable Outout-of-Pocket Costs pocket expenses incurred in rendering such assistance. The non-initiating or non-defending Party shall have the right to participate and be represented in any such suit, action or proceeding suit by its own counsel at its own expense. If the Parties obtain from a Third Party, in connection with such a suit, action or proceeding, any damages, license fees, royalties or other compensation (including any amount received in settlement of such litigation or the applicable disputelitigation), then such amounts shall be allocated in all cases as follows: (a) firstIn all cases, to reimburse each Party for all expenses of the suit incurred by the Partiessuit, including attorneys’ ' fees and disbursements, court costs and other litigation expenses;; and (b) secondIf the infringement by the Third Party is related to a Profit-Sharing Product in the United States (i) prior to the First Commercial Sale of the Profit-Sharing Product in the United States, the balance shall be applied to reimburse the Parties for U.S. Development Expenses in accordance with their share of such expenses as set forth in Section 3.9.1 and (ii) after the First Commercial Sale of the Profit-Sharing Product in the United States, the balance shall be deemed Net Sales for the purpose of calculating U.S. Operating Profit/Loss for such Profit-Sharing Product pursuant to Section 9.3; or (c) If the infringement by the Third Party is related to a Profit-Sharing Product in the Territory outside the United States, the remaining amount shall be treated as if it were Net Sales of MERCK, with ALNYLAM receiving a royalty on such remaining amount pursuant to the terms of Section 9.4.2, and the balance being retained by MERCK; or (d) If the infringement by the Third Party is related to a Royalty-Bearing Product, the remaining amount shall be treated as if it were Net Sales of the Continuing Party, with the other Party receiving a royalty on such remaining amount pursuant to the terms of Section 9.4.3, and the balance being retained by the Continuing Party; or (e) If the infringement by the Third Party is related to a MERCK Development Product, the remaining amount shall be treated as if it were Net Sales of MERCK, with ALNYLAM receiving a royalty on such remaining amount pursuant to the terms of Section 9.4.4, and the balance being retained by MERCK; or (f) If the infringement by the Third Party is related to a [**] Product, unless MERCK has exercised its Opt-In Right, the remaining amount shall be treated as if it were Net Sales of ALNYLAM, with MERCK receiving a royalty on such remaining amount pursuant to the terms of Section 9.4.1, and the balance to be paid to Sarepta with respect to enforcement of the Sarepta Technology in the Sarepta Territory or to Summit with respect to enforcement of the Summit Technology in the Summit Territory; and (c) third, [**] of the balance to be paid to the Party initiating the suit and [**] of the balance to be paid to the other Partybeing retained by ALNYLAM.

Procedures; Expenses and Recoveries. The Party having the right to initiate or defend any suit, action or administrative proceeding or to challenge any Competitive Infringement or to defend a Defense Action under Section 12.3.2 shall have the sole and exclusive right to select counsel for any such suit, action or proceeding and shall pay all expenses of the suit, action or proceeding, including attorneys’ fees and court costs and reimbursement of the other Party’s reasonable Outout-of-Pocket Costs pocket costs in rendering assistance requested by the initiating or defending Party. If required under applicable Law in order for the initiating or defending Party to initiate, defend or maintain such suit, action or proceeding, or if either Party is unable to initiate, prosecute or defend such suit, action or proceeding solely in its own name or it is otherwise advisable in order to obtain an effective legal remedy, in each case, the other Party shall join as a party to the suit, action or proceeding and will execute and cause its Affiliates to execute all documents necessary for the initiating or defending Party to initiate, maintain or defend such suit, action or proceeding. In addition, at the initiating or defending Party’s request, the other Party shall provide reasonable assistance to the initiating or defending Party in connection with such suit, action or proceeding at no charge to the initiating or defending Party except for reimbursement by the initiating or defending Party of reasonable Outout-of-Pocket Costs pocket costs incurred in rendering such assistance. The non-initiating or non-defending Party shall have the right to participate and be represented in any such suit, action or proceeding by its own counsel at its own expense. If the Parties obtain from a Third Party, in connection with such a suit, action or proceeding, any damages, license fees, royalties or other compensation (including any amount received in settlement of such litigation or the applicable dispute), then such amounts shall be allocated in all cases as follows: (a) first, to reimburse each Party for all expenses of the suit incurred by the Parties, including attorneys’ fees and disbursements, court costs and other litigation expenses;; and (b) second, [**] of the balance to be paid to Sarepta with respect to enforcement of the Sarepta Technology in the Sarepta Territory or to Summit with respect to enforcement of the Summit Technology in the Summit Territory; and percent (c) third, [**] ]%) of the balance to be paid to the Party initiating the suit and [**] percent ([**]%) of the balance to be paid to the other Party.

Procedures; Expenses and Recoveries. The Party having the right to initiate any infringement suit or defend any suit, action or administrative proceeding to challenge any Competitive Infringement or to defend a Defense Defensive Action under Section 12.3.2 shall 9.3.2 (the “Controlling Party”) will have the sole and exclusive right to select counsel for and control any such suit, action suit or proceeding and shall pay all Defensive Action. The expenses of the suit, action suit or proceedingthe Defensive Action, including attorneys’ fees and court costs and reimbursement of the other Party’s reasonable Out-of-Pocket Costs of the other Party (the “Cooperating Party”) in rendering assistance requested by the initiating or defending PartyControlling Party (“Enforcement Expense”) will be (***). If required under applicable Applicable Law in order for the initiating or defending Controlling Party to initiate, defend or initiate and/or maintain such suit, action suit or proceedingto defend the Defensive Action, or if either Party is unable to initiate, initiate or prosecute such suit or defend such suit, action or proceeding the Defensive Action solely in its own name or it is otherwise advisable to obtain an effective legal remedy, in each case, the other Party shall will join as a party to the suit, action suit or proceeding Defensive Action and will execute and cause its Affiliates to execute all documents necessary for the initiating or defending Controlling Party to initiate, initiate litigation to prosecute and maintain such action or defend such suit, action or proceedingthe Defensive Action. In addition, at the initiating or defending Controlling Party’s request, the other Cooperating Party shall will provide reasonable assistance to the initiating or defending Controlling Party in connection with such suit, action or proceeding at no charge to the initiating or defending Party except for reimbursement by the initiating or defending Party of reasonable Out-of-Pocket Costs incurred in rendering such assistancean infringement suit (***). The non-initiating or non-defending Cooperating Party shall will have the right to participate and be represented in any such suit, action or proceeding suit by its own counsel at its own expense. If the Parties obtain from a Third Party, in connection with such a suit, action or proceeding, any damages, license fees, royalties or other compensation (including any amount received in settlement of such litigation or litigation) (“Recoveries”) in the applicable dispute)Territory, then such amounts shall will be allocated (***). A Cooperating Party may choose not to share the Enforcement Expense, provided however that in all cases as follows: such case such Cooperating Party will not be entitled to receive any of the Recoveries. For clarity, (a) first, KKC will offer AEVI the opportunity to reimburse each Party for all expenses fund its share of the Enforcement Expense with respect to any suit incurred initiated by KKC in the PartiesEuropean Union and, including attorneys’ fees if AEVI elects to fund such Enforcement Expense, AEVI will be entitled to an equal share in the Recovery received in respect of any such suit, and disbursements, court costs and other litigation expenses; (b) second, [**] KKC will have the sole right to take action and earn all Recoveries outside of the balance to be paid to Sarepta with respect to enforcement of Territory and the Sarepta Technology in the Sarepta Territory or to Summit with respect to enforcement of the Summit Technology in the Summit Territory; and (c) third, [**] of the balance to be paid to the Party initiating the suit and [**] of the balance to be paid to the other PartyEuropean Union.

Procedures; Expenses and Recoveries. The Party having the right to initiate or defend any suit, action or administrative proceeding to challenge any Competitive Infringement or to defend a Defense Action infringement suit under Section 12.3.2 11.4.2 above shall have the sole and exclusive right to select counsel for any such suit, action or proceeding suit and shall pay all expenses of the suit, action or proceeding, including attorneys’ ' fees and court costs and reimbursement of the other Party’s 's reasonable Outout-of-Pocket Costs pocket expense in rendering assistance requested by the initiating or defending Party, except that such expenses in respect of any Profit-Sharing Product in the United States (i) prior to the First Commercial Sale of such Profit-Sharing Product in the United States shall be included in U.S. Development Expenses for such product and shared by the Parties pursuant to Section 2.11, and (ii) after the First Commercial Sale of such Profit Sharing Product in the United States shall be Commercialization Expenses for purposes of calculating U.S. Operating Profit/Loss pursuant to Section 8.2. If required under applicable Law law in order for the initiating or defending Party to initiate, defend or initiate and/or maintain such suit, action or proceeding, or if either Party is unable to initiate, initiate or prosecute or defend such suit, action or proceeding suit solely in its own name or it is otherwise advisable to obtain an effective legal remedy, in each case, the other Party shall join as a party to the suit, action or proceeding suit and will execute and cause its Affiliates to execute all documents necessary for the initiating or defending Party to initiate, initiate litigation to prosecute and maintain or defend such suit, action or proceedingaction. In addition, at the initiating or defending Party’s 's request, the other Party shall provide reasonable assistance to the initiating or defending Party in connection with such suit, action or proceeding an infringement suit at no charge to the initiating or defending Party except for reimbursement by the initiating or defending Party of reasonable Outout-of-Pocket Costs pocket expenses incurred in rendering such assistance. The non-initiating or non-defending Party shall have the right to participate and be represented in any such suit, action or proceeding suit by its own counsel at its own expense. If the Parties obtain from a Third Party, in connection with such a suit, action or proceeding, any damages, license fees, royalties or other compensation (including any amount received in settlement of such litigation or the applicable disputelitigation), then such amounts shall be allocated in all cases as follows: (a) firstIn all cases, to reimburse each Party for all expenses of the suit incurred by the Partiessuit, including attorneys’ ' fees and disbursements, court costs and other litigation expenses;; and (b) second, [**] If the infringement by the Third Party is related to a Profit-Sharing Product in the United States (i) prior to the First Commercial Sale of the Profit-Sharing Product in the United States, the balance shall be applied to be paid to Sarepta reimburse the Parties for U.S. Development Expenses in accordance with respect to enforcement their share of such expenses as set forth in Section 2.11 and (ii) after the First Commercial Sale of the Sarepta Technology Profit-Sharing Product in the Sarepta Territory or United States, the balance shall be deemed Net Sales for the purpose of calculating U.S. Operating Profit/Loss for such Profit-Sharing Product pursuant to Summit with respect to enforcement of the Summit Technology in the Summit TerritorySection 8.2; andor (c) thirdIf the infringement by the Third Party is related to a Profit-Sharing Product in the Territory outside the United States, [**] the remaining amount shall be treated as if it were Net Sales of MERCK, with ALNYLAM receiving a royalty on such remaining amount pursuant to the terms of Section 8.3.1, and the balance being retained by MERCK; or (d) If the infringement by the Third Party is related to a Royalty-Bearing Product, the remaining amount shall be treated as if it were Net Sales of the balance to be paid Continuing Party, with the other Party receiving a royalty on such remaining amount pursuant to the Party initiating the suit terms of Section 8.3.2, and [**] of the balance to be paid to being retained by the other Continuing Party.