Collaboration IP (in the event Momenta is the Indemnified Party) is invalid, not
infringed or unenforceable.
The Indemnified Parties shall be third party
beneficiaries of this Agreement.
12.5.
SHARING OF LEGAL EXPENSES.
12.5.1.
EXCEPT WITH RESPECT TO A FINAL MISAPPROPRIATION DETERMINATION, FOR
WHICH THE PROVISIONS OF SECTION 12.3 SHALL APPLY, MOMENTA SHALL REIMBURSE
SANDOZ, VIA OFFSET FROM PROFIT INTEREST PAYMENTS DUE TO MOMENTA PURSUANT TO
SECTION 4.3 WITH RESPECT TO THE RELEVANT COLLABORATION PRODUCT, THE MOMENTA
PROFIT PERCENTAGE OF ALL LEGAL EXPENSES INCURRED BY SANDOZ WITH RESPECT TO SUCH
COLLABORATION PRODUCT (WHETHER OR NOT A CLAIM WAS MADE AGAINST MOMENTA OR NAMED
MOMENTA WITH RESPECT TO SUCH LEGAL EXPENSES) (OTHER THAN ANY SANDOZ FTE COSTS);
PROVIDED, HOWEVER, THAT IF SUCH COLLABORATION PRODUCT IS NO LONGER BEING
MARKETED, THEN [**] PERCENT ([**]%) OF MOMENTA'S REMAINING SHARE OF SUCH LEGAL
EXPENSES MAY BE OFFSET AGAINST THE PROFIT PAYMENTS DUE TO MOMENTA FOR THE OTHER
COLLABORATION PRODUCT.
12.5.2.
UNDER NO CIRCUMSTANCES SHALL THE PROFIT INTEREST PAYABLE TO MOMENTA,
AS A RESULT OF THIS SECTION 12.5, IN ANY QUARTER BE REDUCED TO LESS THAN [**]
PERCENT ([**]%) OF THE PROFIT INTEREST AMOUNT OTHERWISE PAYABLE TO MOMENTA IN
SUCH QUARTER UNDER THIS AGREEMENT.
SANDOZ MAY OFFSET ANY PORTION OF THE LEGAL
EXPENSES NOT DEDUCTIBLE FROM
67
THE PROFIT INTEREST PAYABLE TO MOMENTA AS A RESULT OF SUCH LIMITATION AGAINST
FUTURE PROFIT INTERESTS DUE TO MOMENTA WITH RESPECT TO SUCH PRODUCT (OR THE
OTHER COLLABORATION PRODUCT, TO THE EXTENT SUCH OFFSET IS PERMITTED BY THE
PROVISO IN SECTION 12.5.1).
12.6.
INSURANCE.
SANDOZ SHALL BE SELF-INSURED.
TO THE EXTENT MOMENTA IS
REQUIRED TO OBTAIN THE CONSENT OR WAIVER OF MIT UNDER THE MIT AGREEMENT TO
PERMIT SUCH SELF-INSURANCE BY SANDOZ, MOMENTA SHALL USE ITS BEST EFFORTS TO
OBTAIN SUCH WAIVER OR CONSENT.
MOMENTA SHALL COMPLY WITH THE INSURANCE
OBLIGATIONS IMPOSED ON MOMENTA PURSUANT TO THE MIT AGREEMENT.
13.
DISPUTE RESOLUTION
13.1.
FIRST LEVEL RESOLUTION.
UNLESS OTHERWISE EXPRESSLY PROVIDED FOR
HEREIN, ANY CLAIM OR CONTROVERSY BETWEEN MOMENTA AND SANDOZ ARISING OUT OF OR
RELATING TO THE EXECUTION, INTERPRETATION AND PERFORMANCE OF THIS AGREEMENT
(INCLUDING THE VALIDITY, SCOPE AND ENFORCEABILITY OF THIS PROVISION) WILL BE
IDENTIFIED IN WRITING AND PRESENTED TO THE JSC.
THE JSC SHALL MEET WITHIN [**]
DAYS AFTER DELIVERY OF THE NOTICE OF DISPUTE PURSUANT TO THIS SECTION 13.1 AND
ATTEMPT IN GOOD FAITH TO RESOLVE THE DISPUTE.
IF THE JSC IS UNABLE TO DECIDE OR
RESOLVE SUCH DISPUTE, A NOTICE OF DISPUTE SHALL BE SUBMITTED TO THE RELEVANT
EXECUTIVE OFFICERS OF THE PARTIES FOR RESOLUTION BY GOOD-FAITH NEGOTIATIONS
PURSUANT TO SECTION 13.2.
13.2.
NEGOTIATION BETWEEN EXECUTIVES.
WITHIN [**] DAYS AFTER DELIVERY OF
THE NOTICE OF DISPUTE PURSUANT TO SECTION 13.1, THE EXECUTIVE OFFICERS SHALL
MEET AT A MUTUALLY ACCEPTABLE TIME AND PLACE, AND THEREAFTER AS OFTEN AS THEY
REASONABLY DEEM NECESSARY, TO ATTEMPT TO RESOLVE THE DISPUTE IN GOOD FAITH.
ALL
REASONABLE REQUESTS FOR INFORMATION MADE BY ONE PARTY TO ANOTHER WILL BE
HONORED.
ALL NEGOTIATIONS PURSUANT TO THIS CLAUSE ARE CONFIDENTIAL AND SHALL