Secondary Right. If LICENSEE does not wish to exercise either of the foregoing rights in (a), LICENSEE shall provide MSK with written notice that LICENSEE declines such right, and after receiving such notice, MSK shall have the secondary right to undertake such infringement action or defend against such challenge.
Secondary Right. If Licensee determines, as to any particular third party activity that constitutes a material infringement of the Licensed Patent Rights or a declaratory judgment action involving the Licensed Patent Rights, that Licensee shall not exercise its rights to conduct a Patent Adversarial Action as to such activity, then Licensee shall provide MSK with written notice that Licensee declines such right as to such activity, and after receiving such notice, MSK shall have the secondary right to undertake such infringement action or defend against such challenge, provided that MSK shall keep Licensee fully informed of all its activities with respect thereto and shall not take any action, or omit to take any action or position, that causes or likely will cause a material adverse impact on Licensee or its Sublicensee or on the Licensed Patent Rights.
Secondary Right. In the event that Atricure (A) fails to commence, within ninety (90) days after the Infringement Notice Date, a lawsuit regarding such infringement or (B) commences a lawsuit during such period but thereafter fails to continue to vigorously prosecute such lawsuit, UST shall have the right, but not the obligation, to prosecute such a lawsuit at its own expense.
Secondary Right. If MediGene is permitted under Section 10.7.2(b) to assume and control the Defense of an IP Claim and elects to do so, but either (i) fails within a reasonable period of time to actually commence the prosecution of such Defense (including the failure to retain counsel within a reasonable period of time) or (ii) commences, but fails to diligently and reasonably prosecute, such Defense, Bxxxxxx shall have the right, exercisable at any time upon ten (10) days’ prior written notice to MediGene, to immediately reassume sole control of the Defense of such claim and engage therein as if such Defense were being conducted under Section 10.7.2(a) hereof.
Secondary Right. If LICENSEE does not take action to enforce the Patent Rights against Infringement pursuant to Section 8.2(a), and has not commenced negotiations with the infringer for the discontinuance of said Infringement, then, within [****] after notification of the existence of an Infringement has been given to MSK/MIT pursuant to Section 8.1, MSK/MIT may elect to enforce the Patent Rights against such Infringement. Upon written request from MSK/MIT, LICENSEE agrees to join as a co-plaintiff in the action. Should MSK/MIT elect to bring suit against an infringer and LICENSEE is joined as party plaintiff in any such suit, LICENSEE shall have the right to approve the counsel selected by MSK/MIT to represent MSK/MIT and LICENSEE, such approval not to be unreasonably withheld. Any and all expenses, including reasonable attorneys’ fees, incurred by LICENSEE with respect to the prosecution, adjudication and/or settlement of such suit, including any related appeals, shall be paid for entirely by MSK/MIT and MSK/MIT shall hold LICENSEE free, clear and harmless from and against any and all such expenses. MSK/MIT shall not compromise or settle such litigation without the prior written consent of LICENSEE, which consent shall not be unreasonably withheld or delayed. In the event MSK/MIT exercises its right to xxx pursuant to this Section 8.2(b), it shall first reimburse itself out of any sums recovered in such suit or in settlement thereof for all Litigation Expenses . If, after such reimbursement, any funds shall remain from said recovery, then LICENSEE shall receive an amount equal to [****] of such funds and the remaining [****] of such funds shall be retained by MSK/MIT. [****] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
Secondary Right. If, during the 90 day period immediately following the Initial Closing Date, 7th Level increases the number of shares of Common Stock outstanding, then 7th Level, at its sole option (the "Secondary Right"), can issue to and cause Xxxxxxxx to purchase an additional number of shares of Common Stock (the "Secondary Shares") up to the lesser of (1) the quotient of $5 million minus the Initial Aggregate Price divided by the Secondary Purchase Price (as defined below) or (2) nine percent (9%) of the then outstanding number of shares of Common Stock minus the number of Initial Shares, upon the same terms and conditions as the Initial Shares, except as provided in this Section 1.b. Upon exercise of the Secondary Right on the 7th Level Closing Date (as defined below), 7th Level shall issue and Xxxxxxxx shall purchase the Secondary Shares at a purchase price per share equal to the lesser of (1) the last sales price of the Common Stock as reported by Bloomberg on the Trading Day immediately prior to the 7th Level Closing Date, or (2) the arithmetic average of the daily volume-weighted average sale price per share (rounded to the nearest 1/10,000th) as reported by Bloomberg, L.P. ("Bloomberg") on the NASDAQ National Market of the Common Stock (the "Average Price") for the thirty (30) day trading period ending (the "30-day Average Price") through the Trading Day immediately prior to the 7th Level Closing Date (the "Secondary Purchase Price"); and for an aggregate purchase price equal to the total number of Secondary Shares multiplied by the Secondary Purchase Price (the "Secondary Aggregate Price").
Secondary Right. In the event that MediGene (a) fails to commence, within ninety (90) days after the Infringement Notice Date, a lawsuit regarding such alleged infringement or (b) commences a lawsuit during such period but thereafter fails to continue to diligently and reasonably prosecute such lawsuit, Bxxxxxx shall have the right, but not the obligation, to prosecute such a lawsuit.
Secondary Right. In the event that Xxxxxx fails to commence, within ninety (90) days after the Infringement Notice Date, a lawsuit regarding such alleged infringement, Atricure shall have the right to prosecute such a lawsuit.
Secondary Right. If [***] fails to cause the termination of an infringement of the Joint Patents and fails to initiate a Proceeding with respect thereto no later than [***] days after receipt of notice thereof, [***] will have the right, but not the obligation, to institute, prosecute, and control a Proceeding with respect to enforcement of the relevant Joint Patents. [***] will have the right to engage counsel of its own choice in connection with such Proceeding [***]. [***] will provide [***] with prompt written notice of the commencement of any such Proceeding, and [***] will keep [***] apprised of the progress of such Proceeding.
Secondary Right. If the Primary Offerees do not elect to purchase all of the Offered Securities, the Company shall give notice in writing of the Offer Terms to the Preferred Shareholders and Key Management (as applicable) other than the Primary Offerees (the "SECONDARY OFFEREES"). Each Secondary Offeree shall have the right (the "SECONDARY RIGHT") to purchase from the Seller (i) that portion of the remaining Offered Securities, if any, after the Primary Offerees' election to purchase, as the aggregate number of shares of Ordinary Shares and Conversion Shares held by such Secondary Offeree bears to the total number of shares of Ordinary Shares and Conversion Shares held by all the Secondary Offerees (the "SECONDARY BASIC AMOUNT") and (ii) such additional portion of the remaining Offered Securities as any Secondary Offeree indicates it will purchase should any of the Secondary Offerees subscribe for less than their Basic Amounts (the "SECONDARY UNDERSUBSCRIPTION AMOUNT") and to which such Secondary Offeree is entitled under Section 5.4, at the same price and on the same terms as those set forth in the Primary Right, which Secondary Right shall remain open for a period of five (5) business days (the "SECONDARY RIGHT PERIOD").
