Denalis insurance policies stated in Section 9.4.1 shall be primary and non-contributory.
Primary. With respect to any actual, potential or suspected infringement of Legacy Patents in the Primary Field, Primary shall have the first and primary right, but not the obligation, to, in its sole discretion, initiate, prosecute, and control any action or legal proceedings, and/or enter into a settlement, including any declaratory judgment action, on its behalf or in Legacys name. If, within three (3) months of the notice above, Primary # shall have been unsuccessful in persuading the alleged infringer to desist, # shall not have brought and shall not be diligently prosecuting an infringement action, or # has not entered into settlement discussions with respect to such infringement, or if Primary notifies Legacy that Primary has decided not to undertake any of the foregoing against any such alleged infringer, then Legacy (or any Affiliate thereof or Legacy Licensee) shall then have the right to bring suit to enforce such Legacy Patents in the Primary Field. If either Party brings any infringement action or proceeding hereunder, the other Party agrees to be joined as a plaintiff and, at the expense of the other Party, to give the Party undertaking such infringement suit or action reasonable assistance and authority to control, file and prosecute the suit as necessary. Any recovery, damages, or other amounts received by Primary with respect to the infringement of the Legacy Patents in the Primary Field, or any settlement with respect to the foregoing, shall be used first to reimburse the Parties for their unreimbursed reasonable, documented expenses incurred in connection with such action. Any balance remaining after such reimbursement shall be split ninety-five percent (95%) percent to Primary and five percent (5%) to Legacy, with Primary promptly paying Legacy its portion of such recovery or damages, provided that, notwithstanding the foregoing, Legacy, at its expense, shall have the right to be represented by counsel of its choice in any such proceeding and, subject to the aforementioned reimbursement of expenses. Legacy shall, in the event it (or any Affiliate thereof or Legacy Licensee) pursues any actual, potential or suspected infringement of any Legacy Patents in the Primary Field in accordance with this Section 8.3(a), be entitled, subject to the reimbursement of Primarys expenses related to such action as contemplated above, to retain one hundred percent (100%) of any resulting recoveries, damages, or other amounts received with respect to such actual, potential or suspected infringement.
Except as set forth in Article VIII.K of the Plan, the provisions of the Plan, including its release, injunction, exculpation and compromise provisions, are mutually dependent and non-severable. The Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of the Plan is: # valid and enforceable pursuant to its terms; # integral to the Plan and may not be deleted or modified without the consent of the Debtors, Supporting Common Interest Holders, and the Required Consenting Term Lenders (and # without the consent of the Required Consenting Revolving Lenders solely with respect to provisions relating to their treatment or rights; and # without the consent of the Supporting Class B Interest holders solely with respect to # their treatment under Article III.B.9 of the Plan, # any action that affects the releases granted under Article VIII of the Plan in a way that would render the releases granted to any Released Party affiliated with the Supporting Class B Interest Holders not commensurate with those granted to the other Released Parties, and # any consent, observation or approval rights of the Supporting Class B Interest Holders set forth in Articles III.H, IX.A.1, X.A and XII.J of the Plan), consistent with the terms set forth herein; and # nonseverable and mutually dependent.
If, at any time prior to the Effective Date during the Research Term, # rights to a particular CDC became subject to an option or license granted by Ag Partner or any Affiliate thereof to a Third Party in the Legacy Field pursuant to a written agreement with such Third Party, # a particular CDC became the subject of material optimization or development efforts by Ag Partner, any Affiliate thereof, or any licensee of either of the foregoing in the Legacy Field, or # a particular CDC was reasonably determined to constitute a back up candidate identified by Ag Partner for possible optimization or development in the Legacy Field in the event any CDC already engaged in optimization or development in the Legacy Field is reasonably determined by Ag Partner, an Affiliate thereof, or any licensee of either of the foregoing to no longer constitute a viable candidate for an Ag Partner Royalty Product in the Legacy Field and, prior to, on, or following the Effective Date, Ag Partner provided(provides) written notice of [(x), (y), or (z)])] to Legacy or Primary, Primary shall have no rights to further develop, sell or sublicense, such CDC or any Derivative thereof under this Agreement.
Primary Royalties. Primary shall pay Legacy one-half percent (0.5%) of Primary Net Sales.
Primary Patents. With respect to any VDC for which Ag Partner has exercised its Option and Primary has been notified of such exercise:
Primary Publications. Primary and its Affiliates shall have the right to publish, present or otherwise disclose, including in scientific journals or promotional literature, information pertaining to any CDC, Derivative thereof, Ag Partner Collaboration Derived Product, Licensed VDC, or Viamet Derived Product; provided, however, that the following procedure shall apply: # Primary shall first provide a copy of the proposed publication or presentation to Legacy for review and comment for a period not to exceed seventy-five (75) calendar days (the Primary Review Period); # if, during the Primary Review Period, Primary receives written notice from Legacy identifying Confidential Information of Legacy in such a proposed publication or presentation and requesting its deletion, then Primary shall delete such Confidential Information from the proposed publication and/or delay such publication or presentation for an additional sixty (60) calendar days in order to permit such Legacy to file a patent application covering such Confidential Information.
Primary Improvements. Subject to Legacys rights under Section 4.2, Primary shall be entitled to sole ownership of # all inventions, discoveries, or improvements related to any Metallophile Technology, VDCs, or the manufacture or use of any of the foregoing, conceived, reduced to practice, or otherwise generated by either Party, any Affiliate thereof, or any employee, contractor, agent, or representative of either Party or any Affiliate thereof, solely or jointly with the other Party , any Affiliate thereof, or any Third Party, as a result of the activities contemplated by this Agreement, the parties interactions under this Agreement, or Legacys, its Affiliates, or their employees, contractors, agents or representatives knowledge or use of, or access to, Primarys Confidential Information, Metallophile Technology, or any VDC(s) and (ii) Viamet Improvements (collectively, all of the foregoing, Primary Improvements), and all intellectual property rights related thereto, specifically excluding any improvements of Protected Ag Partner Scaffold Information or Protected Ag Partner Development Process directly resulting from a Partys knowledge or use of Protected Ag Partner Scaffold Information or Protected Ag Partner Development Process. Primary Improvements shall, notwithstanding anything to the contrary, include, but not be limited to, any Derivatives of VDCs generated by or on behalf of Legacy, Ag Partner, any Affiliate of either of the foregoing, or any Legacy Licensee in the exercise of the rights granted under Section 4.2 or research, development, use, manufacture, or sale of any VDC or any Viamet Derived Product. Subject to Legacys rights under Section 4.2, Legacy hereby assigns all of its right, title, and interest in any Primary Improvements (including any such rights, title, or interest obtained by Legacy from Ag Partner, any Affiliate thereof, or any Legacy Licensee), and all intellectual property rights related thereto, to Primary, free and clear of all liens, claims, and encumbrances. Legacy shall take all actions, and shall # cause its Affiliates, and its and its Affiliates employees, contractors, agents, and other representatives and to the extent reasonably possible through the exercise and enforcement of Legacys rights under [Section 10.3(c)] of the Existing Ag Agreement, # Ag Partner, Ag Partners Affiliates, and Ag Partners and Ag Partners Affiliates employees, contractors, agents, and other representatives to take all actions, including but not limited to the execution of patent assignments or other documents, reasonably requested by Primary to effect the purposes of the foregoing. As soon as reasonably aware of the conception, reduction to practice, or other generation of any Primary Improvement by Legacy, any Affiliate thereof, any Legacy Licensee, or any employee, contractor, agent, or other representative of either of the foregoing, solely or jointly with Primary or any Third Party, Legacy shall promptly disclose the same to Primary in writing. Legacy shall use Commercially Reasonable Efforts to enforce those provisions of the Existing Ag Agreement corresponding to the subject matter of this Section 9.3 for the benefit of Primary.
Primary Sublicensees. Notwithstanding any provision herein to the contrary, in the event # Primary or an Affiliate thereof has entered into any license with a Primary Sublicensee granting any Third Party rights to develop and/or commercialize any CDCs, Derivatives thereof, or Primary Royalty Products as permitted by, and in accordance with, this Agreement (but which agreement must, in any event, include rights for such Third Party to commercialize Primary Royalty Products), # this Agreement is terminated by Legacy pursuant to Section 12.2 or 12.3, and # the applicable Primary Sublicensee is not in material breach of such license, # such license (including any rights to payment thereunder) shall, to the extent concerning CDCs, Derivatives thereof, or Primary Royalty Products, not imposing obligations on Legacy in excess of those contained in this Agreement, and provided for in such license or other agreement, be automatically assigned to Legacy and # Legacy shall grant such Third Party the rights granted with respect to Legacy Patents and Legacy Know-How under such assigned license, subject to such Third Partys compliance with its terms.
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Severability. Every provision of this Award Agreement and of the Plan is intended to be severable. If any term hereof is illegal or invalid for any reason, such illegality or invalidity shall not affect the validity or legality of the remaining terms of this Award Agreement.
Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be wholly or partially unenforceable for any reason, such provision or portion shall be reformed to the least extent possible to be enforceable under applicable law and shall be enforced to the fullest extent permitted by applicable law. If reformation of such provision or portion of this Agreement is not possible, then such provision or portion thereof will be considered separate from the remainder of this Agreement, which will remain in full force and effect.
Severability. If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws, then and in that event, it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby. It is also the intention of the parties to this Lease that in lieu of each clause or provision of this Lease that is illegal, invalid or unenforceable, there be added, as a part of this Lease, a clause or provision as similar in effect to such illegal, invalid or unenforceable clause or provision as shall be legal, valid and enforceable.
Severability. If any provision of this Agreement or the application of any provision in this Agreement to any person or circumstances is held invalid, unenforceable or otherwise illegal, the remainder of this Agreement and the application of such provision to anyother person or circumstances will not be affected, and the provisions so held to be invalid, unenforceable or otherwise illegal will be reformed to the extent (and only to the extent) necessary to make it enforceable, valid and legal.
Severability. The invalidity or unenforceability of any provision of this Warrant in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction, or affect any other provision of this Warrant, which shall remain in full force and effect.
Severability. Should any provision of this Plan (including any appendices hereto) be declared or determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
Severability. Whenever feasible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.
Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions shall not be affected or impaired.
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