Common use of Third Party License Clause in Contracts

Third Party License. (a) The Parties acknowledge that as of the Effective Date the Company is party to the Existing Third Party Agreements pursuant to which the Company has acquired certain rights which do not include Company IP and that during the Term, Company may acquire Third Party IP that Covers a Compound or a Covered Product. Company shall upon the written request of Transferee use Commercially Reasonable Efforts to obtain any consents or approvals necessary to obtain Control of Third Party IP (if any) pursuant to the Existing Third Party Agreements (or other Third Party Licenses entered into subsequent to the Effective Date) in the Territory. If Company obtains such Control (or if Company otherwise has Control of any Third Party IP), Company shall promptly notify Transferee, to that effect, together with notification of any applicable pass-through royalties and any other material terms related to such Third Party IP, and Transferee may, in its sole discretion, provide written confirmation to Company that it wishes to enter into a separate, written sublicense agreement for such Third Party IP that is consistent with and subject to the terms of the applicable Third Party License. As a condition to the grant of any such sublicense, Transferee, NovaMedica and/or the Permitted Transferee requesting such sublicense must assume all of Company’s royalty, other commercial financial and other material non-financial obligations under the applicable Third Party License that apply to the Territory and indemnify Company for any breaches of said obligations by Transferee. For clarity, unless and until Transferee provides such confirmation to Company and enters into a sublicense as described above, Transferee is not granted any rights by or from Company to any such Third Party IP and is not bound by any obligations under such Third Party License. (b) If Company (or any successor or any affiliate of a successor under common control of such successor) is relieved in whole or in part of any material and/or financial obligation under any Third Party Licenses which Third Party License is the subject of a sublicense between Transferee and Company, Company shall promptly so inform Transferee, and thereafter the sublicense between Company and Transferee shall automatically be deemed to be amended to relieve Transferee of its corresponding obligation(s) to Company to the same extent as Company (or its successor or any affiliate of its successor under common control of such successor) is relieved of its obligation(s) under the corresponding Third Party Licenses. (c) If after the Effective Date Company agrees to any amendment of a Third Party License which is the subject of a sublicense between Company and Transferee, that increases any obligations of Transferee under such sublicense, Transferee’s obligations under such amendment will apply only to the extent of Transferee’s obligation under the sublicense unless and until Transferee (or a Permitted Transferee) confirms in writing its agreement to be bound by any such amendment, and Company will bear any increase in such obligations due to such amendment up until Transferee (or a Permitted Transferee) agrees in writing to be bound by such further obligation(s). (d) Company shall promptly notify in writing Transferee of any notice of default under, or termination or amendment of, any Third Party License. Company shall not take any action or fail to take any action that would lead to termination in the Territory of any Third Party License with respect to which Transferee is granted a sublicense in accordance with this Section 2.3.

Third Party License. (a) The Parties acknowledge that as If Ipsen would be prevented from using, selling or importing Product in any country of the Effective Date the Company is party to the Existing Territory on grounds that by doing so Ipsen would infringe a Valid Claim of Patent Rights held by a Third Party Agreements pursuant to which in said country (the Company has acquired certain rights which do not include Company IP and that during the Term, Company may acquire Third Party IP that Covers a Compound or a Covered Product. Company shall upon the written request of Transferee use Commercially Reasonable Efforts to obtain any consents or approvals necessary to obtain Control of Third Party IP (if any) pursuant to the Existing Third Party Agreements (or other Third Party Licenses entered into subsequent to the Effective Date) in the Territory. If Company obtains such Control (or if Company otherwise has Control of any “Blocking Third Party IP”), Company Ipsen shall promptly notify TransfereeAuxilium and give Auxilium a reasonable opportunity to oppose or otherwise resolve such claim. In the event that Auxilium elects not to oppose the claim or does not successfully obtain any necessary license, Ipsen shall have the right to that effectnegotiate directly with such Third Party for a license under the Blocking Third Party IP. If Ipsen licenses the Blocking Third Party IP, together with notification then fifty percent (50%) of any applicable pass-through royalties and any other material terms related on product sales paid by Ipsen to such Third Party IP, and Transferee may, in its sole discretion, provide written confirmation such country with respect to Company that it wishes to enter into a separate, written sublicense agreement for such Blocking Third Party IP that is consistent with and subject shall be deducted from any royalty payments payable to the terms of the applicable Third Party License. As a condition to the grant of any such sublicense, Transferee, NovaMedica and/or the Permitted Transferee requesting such sublicense must assume all of Company’s royalty, other commercial financial and other material non-financial obligations Auxilium by Ipsen under the applicable Third Party License provisions of Section 10.2 provided, however that apply no ** CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. such deduction will be more than fifty percent (50%) of any amount due Auxilium in any Calendar Quarter. In case of any litigation relating to the Territory and indemnify Company for any breaches of said obligations by Transferee. For clarity, unless and until Transferee provides such confirmation to Company and enters into a sublicense as described above, Transferee is not granted any rights by or from Company to any such Blocking Third Party IP and is not bound by any obligations under such until final decision of the appropriate court, Ipsen shall be entitled to pay 50% of all royalties due to Auxilium on Net Sales made in the relevant country, into an escrow account opened with a bank to which Auxilium shall have no reasonable objection. Adjustment between monies placed in escrow and monies effectively due to the Third Party License. (b) If Company (or any successor or any affiliate of a successor under common control of such successor) is relieved in whole or in part of any material and/or financial obligation under any Third Party Licenses which Third Party License is the subject of a sublicense between Transferee and Company, Company shall promptly so inform Transferee, and thereafter the sublicense between Company and Transferee shall automatically be deemed to be amended to relieve Transferee of its corresponding obligation(s) to Company Auxilium pursuant to the same extent as Company (or its successor or any affiliate of its successor under common control of such successor) is relieved of its obligation(s) under preceding paragraph, shall be made in good faith between the corresponding Third Party LicensesParties in a timely manner. (c) If after the Effective Date Company agrees to any amendment of a Third Party License which is the subject of a sublicense between Company and Transferee, that increases any obligations of Transferee under such sublicense, Transferee’s obligations under such amendment will apply only to the extent of Transferee’s obligation under the sublicense unless and until Transferee (or a Permitted Transferee) confirms in writing its agreement to be bound by any such amendment, and Company will bear any increase in such obligations due to such amendment up until Transferee (or a Permitted Transferee) agrees in writing to be bound by such further obligation(s). (d) Company shall promptly notify in writing Transferee of any notice of default under, or termination or amendment of, any Third Party License. Company shall not take any action or fail to take any action that would lead to termination in the Territory of any Third Party License with respect to which Transferee is granted a sublicense in accordance with this Section 2.3.

Third Party License. (a) The Parties acknowledge that as If in the reasonable opinion of Sublicensee, the Effective Date Exploitation of Licensed Compounds or Licensed Products in the Company Sublicensed Field in the Territory by Sublicensee or any of its Affiliates infringes or is party reasonably expected to the Existing infringe any Patent of a Third Party Agreements pursuant to which in any country in the Company has acquired certain rights which do not include Company IP and that during the TermTerritory (such right, Company may acquire a “Third Party IP that Covers a Compound or a Covered Product. Company shall upon the written request of Transferee use Commercially Reasonable Efforts to obtain any consents or approvals necessary to obtain Control of Third Party IP (if any) pursuant to the Existing Third Party Agreements (or other Third Party Licenses entered into subsequent to the Effective Date) in the Territory. If Company obtains such Control (or if Company otherwise has Control of any Third Party IPPatent Right”), Company then Sublicensee shall inform Sublicensor and shall promptly notify Transferee, to that effect, together provide Sublicensor with notification of any applicable pass-through royalties and any other material terms related to such Third Party IP, and Transferee maythe Patents in question. Sublicensor shall determine, in its sole discretionopinion, provide written confirmation whether the Third Party Patent Rights are necessary for the Exploitation of either Licensed Compounds or a Licensed Product in the Retained Field or the Sublicensed Field. Without limiting the foregoing, on either Party’s request, prior to Company that it wishes to enter into a separate, written sublicense agreement for any discussions regarding such Third Party IP that is consistent with and subject Patent Rights, the Parties shall enter into an agreement to the terms of the applicable Third Party License. As a condition to the grant of any such sublicense, Transferee, NovaMedica and/or the Permitted Transferee requesting such sublicense must assume all of Company’s royalty, other commercial financial and other material non-financial obligations under the applicable Third Party License that apply to the Territory and indemnify Company provide protections for any breaches of said obligations by Transferee. For clarity, unless and until Transferee provides such confirmation legally privileged or commercially sensitive information intended to Company and enters into a sublicense as described above, Transferee is not granted any rights by or from Company to any such Third Party IP and is not bound by any obligations under such Third Party Licensebe exchanges in connection with the foregoing. (b) If Company Sublicensor determines that the Third Party Patent Rights are necessary for the Exploitation of Licensed Compounds or a Licensed Product in either the Retained Field or the Sublicensed Field (or both) then, as between the Parties, Sublicensor shall have the right, but not the obligation, to negotiate and obtain a license from such Third Party to such Third Party Patent Right as necessary or desirable for (i) Sublicensor or its Affiliates or its or their sublicensees to Exploit Licensed Compounds and Licensed Products in the Retained Field in such country and/or (ii) Sublicensee or its Affiliates to Exploit Licensed Compounds and Licensed Products in the Sublicensed Field in such country. Sublicensor may elect, at its sole option, to require Sublicensee, and Sublicensee hereby agrees to, reimburse Sublicensor or its Affiliates for, a portion (or all) of the costs and expenses (including reasonable attorneys’ fees) incurred in connection therewith, including any successor royalties, milestones or other payments incurred under any affiliate of a successor under common control of such successor) is relieved in whole or in part license. Upon execution by Sublicensor of any material and/or financial obligation under any such license for Third Party Licenses which Patent Rights, such Third Party License is the subject of a sublicense between Transferee and Company, Company Patent Rights shall promptly so inform Transferee, and thereafter the sublicense between Company and Transferee shall automatically be deemed included in the licenses granted to be amended Sublicensee pursuant to relieve Transferee of its corresponding obligation(s) to Company to the same extent as Company (or its successor or any affiliate of its successor under common control of such successor) is relieved of its obligation(s) under the corresponding Third Party LicensesSection 1.1 and 1.5. (c) If after In the Effective Date Company agrees event Sublicensor elects, for any reason, not to any amendment of obtain a license from a Third Party License which to Third Party Patent Rights in accordance with Section 3.5(b), Sublicensee shall, upon the written consent of Sublicensor, have the right, but not the obligation, to do so, provided that such license is limited to the subject of rights necessary or desirable for Sublicensee or its Affiliates to Exploit Licensed Compounds or Licensed Products in the Sublicensed Field in the applicable country in the Territory. Sublicensee shall bear all expenses incurred in connection therewith, including any royalties, milestones or other payments incurred under any such license. In the event that Sublicensee obtains a license from a Third Party to Third Party Patent Rights in accordance with this Section 3.5(c) and Sublicensor desires a sublicense to such rights, Sublicensee shall grant to Sublicensor a non-exclusive license, including the right to sublicense (through multiple tiers) under the Third Party Patent Rights to Exploit Licensed Compounds and Licensed Products in the Retained Field in the Territory, and Sublicensor shall pay such amounts as agreed between Company and Transferee, that increases any obligations of Transferee under the Parties for such sublicense, Transferee’s obligations under such amendment will apply only to the extent of Transferee’s obligation under the sublicense unless and until Transferee (or a Permitted Transferee) confirms in writing its agreement to be bound by any such amendment, and Company will bear any increase in such obligations due to such amendment up until Transferee (or a Permitted Transferee) agrees in writing to be bound by such further obligation(s). (d) Company shall promptly notify in writing Transferee of any notice of default under, or termination or amendment of, Either Party’s right to seek a license to any Third Party Patent Rights shall be expressly subject to the obligations and rights of AstraZeneca, as set forth in additional detail in Section 5.6 of the Head License. Company shall not take any action or fail to take any action that would lead to termination in the Territory of any Third Party License with respect to which Transferee is granted a sublicense in accordance with this Section 2.3.

Third Party License. (a) The Parties acknowledge that as If in the reasonable opinion of Sublicensee, the Effective Date Exploitation of Proprietary Drugs or Licensed Products in the Company Sublicensed Field in the Territory by Sublicensee or any of its Affiliates infringes or is party reasonably expected to the Existing infringe any Patent of a Third Party Agreements pursuant to which in any country in the Company has acquired certain rights which do not include Company IP and that during the TermTerritory (such right, Company may acquire a “Third Party IP that Covers a Compound or a Covered Product. Company shall upon the written request of Transferee use Commercially Reasonable Efforts to obtain any consents or approvals necessary to obtain Control of Third Party IP (if any) pursuant to the Existing Third Party Agreements (or other Third Party Licenses entered into subsequent to the Effective Date) in the Territory. If Company obtains such Control (or if Company otherwise has Control of any Third Party IPPatent Right”), Company then Sublicensee shall inform Sublicensor and shall promptly notify Transferee, to that effect, together provide Sublicensor with notification of any applicable pass-through royalties and any other material terms related to such Third Party IP, and Transferee maythe Patents in question. Sublicensor shall determine, in its sole discretionopinion, provide written confirmation whether the Third Party Patent Rights are necessary for the Exploitation of either Proprietary Drugs or a Licensed Product in the Retained Field or the Sublicensed Field. Without limiting the foregoing, on either Party’s request, prior to Company that it wishes to enter into a separate, written sublicense agreement for any discussions regarding such Third Party IP that is consistent with and subject Patent Rights, the Parties shall enter into an agreement to the terms of the applicable Third Party License. As a condition to the grant of any such sublicense, Transferee, NovaMedica and/or the Permitted Transferee requesting such sublicense must assume all of Company’s royalty, other commercial financial and other material non-financial obligations under the applicable Third Party License that apply to the Territory and indemnify Company provide protections for any breaches of said obligations by Transferee. For clarity, unless and until Transferee provides such confirmation legally privileged or commercially sensitive information intended to Company and enters into a sublicense as described above, Transferee is not granted any rights by or from Company to any such Third Party IP and is not bound by any obligations under such Third Party Licensebe exchanged in connection with the foregoing. (b) If Company Sublicensor determines that the Third Party Patent Rights are necessary for the Exploitation of Proprietary Drugs or a Licensed Product in either the Retained Field or the Sublicensed Field (or both) then, as between the Parties, Sublicensor shall have the right, but not the obligation, to negotiate and obtain a license from such Third Party to such Third Party Patent Right as necessary or desirable for (i) Sublicensor or its Affiliates or its or their sublicensees to Exploit Proprietary Drugs and Licensed Products in the Retained Field in such country and/or (ii) Sublicensee or its Affiliates to Exploit Proprietary Drugs and Licensed Products in the Sublicensed Field in such country. Sublicensor may elect, at its sole option, to require Sublicensee, and Sublicensee hereby agrees to, reimburse Sublicensor or its Affiliates for, a portion (or all) of the costs and expenses (including reasonable attorneys’ fees) incurred in connection therewith, including any successor royalties, milestones or other payments incurred under any affiliate of a successor under common control of such successor) is relieved in whole or in part license. Upon execution by Sublicensor of any material and/or financial obligation under any such license for Third Party Licenses which Patent Rights, such Third Party License is the subject of a sublicense between Transferee and Company, Company Patent Rights shall promptly so inform Transferee, and thereafter the sublicense between Company and Transferee shall automatically be deemed included in the licenses granted to be amended Sublicensee pursuant to relieve Transferee of its corresponding obligation(s) to Company to the same extent as Company (or its successor or any affiliate of its successor under common control of such successor) is relieved of its obligation(s) under the corresponding Third Party LicensesSection 1.1 and 1.5. (c) If after In the Effective Date Company agrees event Sublicensor elects, for any reason, not to any amendment of obtain a license from a Third Party License which to Third Party Patent Rights in accordance with Section 3.6(b), Sublicensee shall, upon the written consent of Sublicensor, have the right, but not the obligation, to do so, provided that such license is the subject of a sublicense between Company and Transferee, that increases any obligations of Transferee under such sublicense, Transferee’s obligations under such amendment will apply only limited to the extent of Transferee’s obligation rights necessary or desirable for Sublicensee or its Affiliates to Exploit Proprietary Drugs or Licensed Products in the Sublicensed Field in the applicable country in the Territory. Sublicensee shall bear all expenses incurred in connection therewith, including any royalties, milestones or other payments incurred under the sublicense unless and until Transferee (or a Permitted Transferee) confirms in writing its agreement to be bound by any such amendment, and Company will bear any increase in such obligations due to such amendment up until Transferee (or license. In the event that Sublicensee obtains a Permitted Transferee) agrees in writing to be bound by such further obligation(s). (d) Company shall promptly notify in writing Transferee of any notice of default under, or termination or amendment of, any license from a Third Party License. Company shall not take any action or fail to take any action that would lead to termination in the Territory of any Third Party License with respect to which Transferee is granted a sublicense Patent Rights in accordance with this Section 2.33.6(c) and Sublicensor desires a sublicense to such rights, Sublicensee shall grant to Sublicensor a non-exclusive license, including the right to sublicense (through multiple tiers) under the Third Party Patent Rights to Exploit Proprietary Drugs and Licensed Products in the Retained Field in the Territory, and Sublicensor shall pay such amounts as agreed between the Parties for such sublicense.

Third Party License. (a) The Parties acknowledge In the event that as of the Effective Date the Company is party required to pay, and actually pays, during the Existing term of the License Agreement royalty payments to third parties for exploitation of their intellectual property rights, covering Product technology, that are lawfully required for the sale of the particular Product (“Third Party Agreements pursuant to which Royalty Payments”), then the Company has acquired certain rights which do not include Company IP and that during the Term, Company may acquire Third Party IP that Covers a Compound or a Covered Product. Company shall upon the written request be entitled to take [THE CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION] of Transferee use Commercially Reasonable Efforts to obtain any consents or approvals necessary to obtain Control of Third Party IP (if any) pursuant to the Existing Third Party Agreements (or other Third Party Licenses entered into subsequent to the Effective Date) in the Territory. If Company obtains such Control (or if Company otherwise has Control of any Third Party IP), Company shall promptly notify Transferee, to that effect, together with notification of any applicable pass-through royalties and any other material terms related to such Third Party IPRoyalty Payments as a deduction from the gross sales amount of such Product in such country during the same period in computing the Net Sales amount for the relevant Product, country and period. Notwithstanding the foregoing, the Royalty Rate shall not, in any event, be reduced by more than [THE CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION] for such Products sold by the Company, its Affiliates and Sublicensees in such country. All reductions in Royalties combined, pursuant to this Section 7.3, shall, in aggregate, be capped at, and Transferee maynot exceed, in its sole discretion, provide written confirmation to Company that it wishes to enter into a separate, written sublicense agreement for such Third Party IP that is consistent with and subject to the terms [THE CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION] of the applicable Third Party Licenserespective Royalty Rate. 7.4. As The Company shall pay Yissum the following amounts in connection with the achievement of the following milestones (whether by the Company, an Affiliate or a condition to Sublicensee) (each a “Milestone Payment”): For avoidance of doubt, no Milestone Payment shall be paid by the grant of any such sublicense, Transferee, NovaMedica and/or the Permitted Transferee requesting such sublicense must assume all of Company’s royalty, other commercial financial and other material non-financial obligations under the applicable Third Party License that apply to the Territory and indemnify Company for any breaches of said obligations by Transferee. For clarity, unless and until Transferee provides such confirmation to Company and enters into a sublicense as described above, Transferee is not granted any rights by or from Company to any such Third Party IP and is not bound by any obligations under such Third Party License. (b) If Company (or any successor or any affiliate Yissum more than once. In the event that the achievement of a successor under common control of such successorcertain milestone (as determined above in this Section 7.4) is relieved entitles Yissum to receive both the respective Milestone Payment (as determined above in whole or in part of any material and/or financial obligation under any Third Party Licenses which Third Party License is the subject of this Section 7.4) and a sublicense between Transferee and CompanySublicense Fees payment, Company Yissum shall promptly so inform Transferee, and thereafter the sublicense between Company and Transferee shall automatically be deemed entitled to be amended to relieve Transferee of its corresponding obligation(s) to Company to the same extent as Company (or its successor or any affiliate of its successor under common control of such successor) is relieved of its obligation(s) under the corresponding Third Party Licenses. (c) If after the Effective Date Company agrees to any amendment of receive a Third Party License payment which is the subject higher of a sublicense between Company the two amounts, but not both the respective Milestone Payment and Transferee, that increases any obligations of Transferee under such sublicense, Transferee’s obligations under such amendment will apply only to the extent of Transferee’s obligation under the sublicense unless and until Transferee (or a Permitted Transferee) confirms in writing its agreement to be bound by any such amendment, and Company will bear any increase in such obligations due to such amendment up until Transferee (or a Permitted Transferee) agrees in writing to be bound by such further obligation(s)Sublicense Fees payment. (d) Company shall promptly notify in writing Transferee 7.5. Sublicense fees at a rate of any notice [THE CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION] of default under, or termination or amendment of, any Third Party License. Company shall not take any action or fail to take any action that would lead to termination in the Territory of any Third Party License with respect to which Transferee is granted a sublicense in accordance with this Section 2.3Sublicense Consideration.