Common use of Stacking Clause in Contracts

Stacking. Agenus shall be responsible for payment of all amounts due to Third Parties under the LICR Agreement and any other agreement with a Third Party in effect as of the Effective Date to which Agenus or any of its Affiliates is a party or by which any of them is bound. If Incyte (i) determines in good faith that, in order to avoid infringement of any Patent Right not licensed hereunder, it is reasonably necessary to obtain a license after the Effective Date from a Third Party under Patent Rights Controlled by the Third Party Covering the composition or method of use of a Licensed Antibody in order to Commercialize a Product in the Field in a country in the Territory and to pay a royalty under such license (including in [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. CONFIDENTIAL TREATMENT MATERIAL connection with the settlement of a patent infringement claim); or (ii) shall be subject to a final court or other binding order or ruling requiring any payments, including the payment of a royalty to a Third Party patent holder in respect of the Development, Manufacture or Commercialization of a Product in the Field in a country in the Territory, then (A) in the case of Profit-Share Products, the royalties or other consideration payable to such Third Party shall be Patent and Trademark Costs after the First Commercial Sale in any country in the Territory of the applicable Product, and (B) in the case of Royalty-Bearing Products, the amount of Incyte’s royalty payments under Section 7.6(a) (subject to Section 7.6(b)) with respect to Net Sales for such Royalty-Bearing Product in such country in any Calendar Quarter shall be reduced by[**] of the royalties actually paid by Incyte to such Third Party that are reasonably and appropriately allocable to such Royalty-Bearing Product in the Field in the Territory during such Calendar Quarter; provided, however, that in no event shall the aggregate deductions under this Section 7.6(c) reduce any royalty payment made to Agenus in respect of Net Sales of such Royalty-Bearing Product pursuant to Section 7.6(a) (but subject to Section 7.6(b)) in any Calendar Quarter to an amount that represents less than the greater of (x) [**] of the royalty otherwise payable in such Calendar Quarter or (y) [**] of Net Sales of the applicable Royalty-Bearing Product during such Calendar Quarter (with any such deductions not applied in any Calendar Quarter due to the foregoing limit to be carried forward to future Calendar Quarters).

Stacking. Agenus shall be responsible for payment of all amounts due to Third Parties under the LICR Agreement and any other agreement with a Third Party in effect as of the Effective Date to which Agenus If AbbVie or any of its Affiliates is a party or by which any of them is bound. If Incyte (i) determines in good faith that, in order to avoid infringement or misappropriation of any Patent Right not licensed hereunderThird Party Right, it is reasonably necessary or reasonably useful to obtain a license after the Effective Date from a Third Party under Patent Rights Controlled by the Third Party Covering the composition or method of use of in order for AbbVie, its Affiliates and Sublicensees to Exploit a Licensed Antibody in order to Commercialize a Product in the Field in a country in the Territory and to pay a royalty under such license (including in [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. CONFIDENTIAL TREATMENT MATERIAL connection with the settlement of a patent infringement claim); or (ii) shall be subject to a final court or other binding order or ruling requiring any payments, including the payment of a royalty to a Third Party patent holder in respect of the Development, Manufacture or Commercialization of a Product in the Field in a country in the Territory, then (A) in and AbbVie or any of its Affiliates actually enters into any such license after the case of Profit-Share ProductsLicense Option Effective Date, the royalties or other consideration payable to such Third Party AbbVie shall be Patent and Trademark Costs after the First Commercial Sale in entitled to deduct from any country in the Territory of the applicable Product, and (B) in the case of Royalty-Bearing Products, the amount of IncyteAbbVie’s royalty payments under Section 7.6(a) (subject to Section 7.6(b)) with respect to Net Sales 10.3 for such Royalty-Bearing Licensed Product in such country in any a Calendar Quarter shall be reduced by[**] percent ([**]%) of the royalties royalties, milestones and other license fees actually paid by Incyte AbbVie or any of its Affiliates to such Third Party that are reasonably and appropriately allocable with respect to such Royalty-Bearing license (“Third Party Payments”) to the extent applicable to such Licensed Product in the Field in the Territory such country during such Calendar Quarter; provided, however, that (a) AbbVie shall be entitled to deduct [**] percent ([**]%) of Third Party Payments that arise as a result of or in connection with any breach by Voyager of its representations and warranties under Section 8.3 or Section 14.2 or its covenants in Section 14.3 or Section 14.4; (b) AbbVie shall not be entitled to deduct any amounts payable by AbbVie or any of its Affiliates to Third Parties under an agreement pursuant to which the Parties jointly acquired rights relating to any Collaboration Research Antibody in accordance with Section 2.1.1(b), except as may be expressly agreed to by the Parties as set forth in Section 2.1.1(b); and (c) AbbVie shall not be entitled to deduct any amounts payable by AbbVie or any of its Affiliates to Third Parties under an agreement pursuant to which AbbVie licensed or otherwise acquired rights to any AbbVie Research Antibody if such agreement was in existence immediately prior to the initiation of the Research Program under this Agreement with respect to such AbbVie Research Antibody. In no event shall the aggregate deductions under made pursuant to this Section 7.6(c10.5.3 reduce by more than [**] percent ([**]%) reduce any royalty payment made to Agenus in respect of Net Sales of such Royalty-Bearing Product pursuant to the royalties that would otherwise be owed under Section 7.6(a) 10.3.1 (but subject to as adjusted by Section 7.6(b)10.3.2, Section 10.5.1 or Section 10.5.2) in any Calendar Quarter Quarter. Credits for reductions pursuant to an amount that represents less than the greater of (x) [**] of the royalty otherwise payable in such Calendar Quarter or (y) [**] of Net Sales of the applicable Royalty-Bearing Product during such Calendar Quarter (with any such deductions this Section 10.5.3 not applied exhausted in any Calendar Quarter due to the foregoing limit to may be carried forward to into future Calendar Quarters), subject the preceding sentence.

Stacking. Agenus shall be responsible for payment of all amounts due to Third Parties under the LICR Agreement and any other agreement with a Third Party in effect as of the Effective Date to which Agenus or any of its Affiliates is a party or by which any of them is bound. If Incyte (i) determines in good faith that, in order to avoid infringement of any Patent Right not licensed hereunder, it is reasonably necessary to obtain a license after the Effective Date from a Third Party under Patent Rights Controlled by the Third Party Covering the composition or method of use of a Licensed Antibody in order to Commercialize a Product in the Field in a country in the Territory and to pay a royalty under such license (including in [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. CONFIDENTIAL TREATMENT MATERIAL connection with the settlement of a patent infringement claim); or (ii) shall be subject to a final court or other binding order or ruling requiring any payments, including the payment of a royalty to a Third Party patent holder in respect of the Development, Manufacture or Commercialization of a Product in the Field in a country in the Territory, then (A) in the case of Profit-Share Products, the royalties or other consideration payable to such Third Party shall be Patent and Trademark Costs after the First Commercial Sale in any country in the Territory of the applicable Product, and (B) in the case of Royalty-Bearing Products, the amount of Incyte’s royalty payments under Section 7.6(a) (subject to Section 7.6(b)) with respect to Net Sales for such Royalty-Bearing Product in such country in any Calendar Quarter shall be reduced by[**] of the royalties actually paid by Incyte to such Third Party that are reasonably and appropriately [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. allocable to such Royalty-Bearing Product in the Field in the Territory during such Calendar Quarter; provided, however, that in no event shall the aggregate deductions under this Section 7.6(c) reduce any royalty payment made to Agenus in respect of Net Sales of such Royalty-Bearing Product pursuant to Section 7.6(a) (but subject to Section 7.6(b)) in any Calendar Quarter to an amount that represents less than the greater of (x) [**] of the royalty otherwise payable in such Calendar Quarter or (y) [**] of Net Sales of the applicable Royalty-Bearing Product during such Calendar Quarter (with any such deductions not applied in any Calendar Quarter due to the foregoing limit to be carried forward to future Calendar Quarters).

Stacking. Agenus shall be responsible for payment of all amounts due to Third Parties under the LICR Agreement and any other agreement with a Third Party in effect as of the Effective Date to which Agenus If AbbVie or any of its Affiliates is a party or by which any of them is bound. If Incyte (i) determines in good faith that, in order to avoid infringement or misappropriation of any Patent Right not licensed hereunderThird Party Right, it is reasonably necessary or reasonably useful to obtain a license after the Effective Date from a Third Party under Patent Rights Controlled by the Third Party Covering the composition or method of use of in order for AbbVie, its Affiliates and Sublicensees to Exploit a Licensed Antibody in order to Commercialize a Product in the Field in a country in the Territory and to pay a royalty under such license (including in [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. CONFIDENTIAL TREATMENT MATERIAL connection with the settlement of a patent infringement claim); or (ii) shall be subject to a final court or other binding order or ruling requiring any payments, including the payment of a royalty to a Third Party patent holder in respect of the Development, Manufacture or Commercialization of a Product in the Field in a country in the Territory, then (A) in and AbbVie or any of its Affiliates actually enters into any such license after the case of Profit-Share ProductsLicense Option Effective Date, the royalties or other consideration payable to such Third Party AbbVie shall be Patent and Trademark Costs after the First Commercial Sale in entitled to deduct from any country in the Territory of the applicable Product, and (B) in the case of Royalty-Bearing Products, the amount of IncyteAbbVie’s royalty payments under Section 7.6(a) (subject to Section 7.6(b)) with respect to Net Sales 10.3 for such Royalty-Bearing Licensed Product in such country in any a Calendar Quarter shall be reduced by[**] percent ([**]%) of the royalties royalties, milestones and other license fees actually paid by Incyte AbbVie or any of its Affiliates to such Third Party that are reasonably and appropriately allocable with respect to such Royalty-Bearing license (“Third Party Payments”) to the extent applicable to such Licensed Product in the Field in the Territory such country during such Calendar Quarter; provided, however, that (a) AbbVie shall be entitled to deduct [**] percent ([**]%) of Third Party Payments that arise as a result of or in no event connection with any breach by Voyager of its representations and warranties under Section 8.3 or Section 14.2 or its covenants in Section 14.3 or Section 14.4; and (b) AbbVie shall the aggregate deductions under this Section 7.6(c) reduce not be entitled to deduct any royalty payment made amounts payable by AbbVie or any of its Affiliates to Agenus in respect of Net Sales of such Royalty-Bearing Product pursuant to Section 7.6(a) (but subject to Section 7.6(b)) in any Calendar Quarter to an amount that represents less than the greater of (xi) [**] of under the royalty otherwise payable in such Calendar Quarter or (y) [**] of Net Sales or any Third Party under any other agreement through which AbbVie has licensed or otherwise acquired rights to any [**] Antibodies or their use as of the applicable Royalty-Bearing Product during Effective Date or (ii) Third Parties under any agreement pursuant to which AbbVie licenses or otherwise acquires rights to any AbbVie Designated Antibody or its use that exists at the time AbbVie adds such AbbVie Designated Antibody to this Agreement pursuant to Section 2.1.3 (whether entered into before or after the Effective Date). In no event shall the deductions made pursuant to this Section 10.5.3 reduce by more than [**] percent ([**]%) the royalties that would otherwise be owed under Section 10.3.1 (as adjusted by Section 10.5.1 or Section 10.5.2) in any Calendar Quarter (with any such deductions Quarter. Credits for reductions pursuant to this Section 10.5.3 not applied exhausted in any Calendar Quarter due to the foregoing limit to may be carried forward to into future Calendar Quarters), subject the preceding sentence.