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. 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. 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 the Indemnifying Party is permitted under this Section 24.3 to assume and control the Defense of a Third Party Claim and elects to do so, but the Indemnifying Party either (a) 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 (b) commences, but fails to diligently and reasonably prosecute, such Defense, the Indemnified Party shall have the right, exercisable at any time upon ten (10) day’s prior written notice to the Indemnifying Party, to immediately reassume sole control of the Defense of such Third Party Claim and engage therein as if such Defense were being conducted under Section 24.3.2 hereof.
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").
Secondary Right. If within sixty (60) days after the conference described in SECTION 5.6, the Litigating Party has not taken any action in its Respective Territory to stop such infringement, the other party shall, at its sole discretion, have the right to take legal action regarding such infringement (the “Secondary Party”), as the Secondary Party deems necessary and desirable, at its expense. If the Secondary Party initiates legal proceedings hereunder, the other party shall have the right to join such suit, at its own expense. If the law governing any proceeding brought by the Secondary Party under this SECTION requires the other party to join such proceeding, then the other party shall be represented by the Secondary Party’s legal counsel, at the Secondary Party’s expense. If the Secondary Party’s counsel is unable to represent the other party because of a bona fide conflict of interest, then the other party may engage other competent legal counsel, reasonably acceptable to the Secondary Party, to represent the other party in such proceeding, at the Secondary Party’s expense. If the other party elects not to use the Secondary Party’s counsel for any reason other than a bona fide conflict of interest, then the other party may engage competent legal counsel of its own choosing, at the other party’s expense. The Secondary Party shall not enter into a settlement or consent judgment or other voluntary and final disposition of any proceeding brought pursuant to this SECTION without the other party’s prior written consent, which shall not be unreasonably withheld or delayed. If the Secondary Party unilaterally elects to discontinue any proceeding instituted under this SECTION (other than as part of a settlement), the Secondary Party shall give the other party reasonable prior notice of such election. The other party may elect to continue such proceedings in its sole name, under its sole control and at its own expense; if the other party so elects, the Secondary Party shall reasonably cooperate, at no out-of-pocket expense to the Secondary Party, in all actions reasonably necessary to transfer control of the proceedings from the Secondary Party to the other party. The Secondary Party shall indemnify, defend and hold the other party and its Collaborative Data Sharing Agreement for IL-21 Protein Page 23 [ * ] Confidential Treatment Requested respective directors, officers, employees and agents harmless from any and all claims, damages or other obligations arising out of or result...
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, 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").
