definiens: as such term is defined in the TDA and as applied to the thereunder, notwithstanding the fact that the License under the Assigned BMS 20PATENT LICENSE AGREEMENT Patents only extends to the Field of Use . In the event that any such declaratory judgment action or such other action orproceeding is brought, Company shall have the first right to defend any such action at Company ’s expense, includingdefending against any counterclaims or crossclaims brought by any party against Company or Penn regarding the Penn PatentRights and defending against any claim that the Penn Patent Rights are invalid in the course of any infringement action or in adeclaratory judgment action . With respect to the Assigned BMS Patents, Company shall have all the rights and obligationsafforded or under Section 6.1(b ) of the TDA ( including the right to participate at Company’sown cost in any BMS - controlled litigation activities concerning the Assigned BMS Patents ) . Company must not settle orcompromise any such litigation, action or proceeding in a manner that imposes any obligations or restrictions on Penn orgrants any rights to the Penn Patent Rights without Penn ’s prior written permission ( unless any such grant by Companyamounts to a permitted sublicense hereunder ) . If Penn chooses not to intervene voluntarily, but Penn is a necessary party to theaction, then Company may join Penn in the litigation . If Company prosecutes any infringement claims with Penninvoluntarily joined as a party, then Company will reimburse Penn for Penn ’s reasonable litigation expenditures as a result ofsuch involuntary joinder ( but not for any active participation by Penn, which resulting expenditures shall be addressed as ifPenn had intervened voluntarily as contemplated by Section 8.3 ), including any attorney ’s fees, expenses, official fees andother charges incurred by Penn, even if there are no financial recoveries from the infringement action . Company will reimbursePenn for such reasonable expenditures within thirty ( 30 ) days after receiving each invoice from Penn . After reimbursing Pennfor such reasonable expenditures, recoveries from any such litigation, action or proceeding will be : ( a ) first, applied toreimburse Company for its related expenditures ; and ( b ) second, as to any remainder, retained by Company but treated ( asappropriate by reference to the commercializing entity in the affected country(ies ) ) as either ( i ) Net Sales for the purpose ofdetermining the royalties due to Penn under Section 3.3 or ( ii ) sublicense consideration for the purpose of determining thesublicense fees due to Penn under Section 3.5(i ), provided that Company shall retain all damage recoveries for willfulinfringement