Common use of Enforcement and Defense Clause in Contracts

Enforcement and Defense. (a) Each Party shall promptly notify the other Party of any infringement or possible infringement by a third party of any rights licensed to Agensys under this Agreement. Further, Ambrx shall give Agensys, and Agensys shall give Ambrx, notice of any infringement of (i) any Ambrx Patent Rights claiming any Ambrx Collaboration Information and Invention or any Joint Collaboration Information and Invention for which Ambrx is the filing party pursuant to Section 7.1, or any misappropriation or misuse of Ambrx Collaboration Information and Inventions, that may come to Ambrx’s or Agensys’ attention. Agensys and Ambrx shall thereafter consult and cooperate fully to determine a course of action, including but not limited to, the commencement of legal action by either or both Agensys and Ambrx, to terminate any infringement of such Ambrx Patent Rights or any misappropriation or misuse of such Ambrx Collaboration Information and Invention, as applicable. However, Ambrx, upon notice to Agensys, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of Ambrx, or to control the defense of any declaratory judgment action relating to such Ambrx Patent Rights or such Ambrx Collaboration Information and Inventions, as applicable, and Agensys, upon notice to Ambrx, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of Agensys, or to control the defense of any declaratory judgment action relating to such Ambrx Patent Rights or such Ambrx Collaboration Information and Inventions, as applicable. To the extent permissible by Applicable Law, the non-controlling Party shall have the right to join and participate in such action. Each Party shall promptly inform the other Party if it elects not to exercise such first right and the other Party shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in its name and, if necessary, the name of the first Party. Each Party shall have the right to be represented by counsel of its own choice.

Enforcement and Defense. (a) Each As between the Parties, [***] will have the first right, but not the obligation, to seek to xxxxx any actual or suspected Product Infringement, or to file suit against any Third Party for such Product Infringement. [***] shall promptly notify the other Party of keep [***] informed and consult with [***] with respect to any infringement such action or possible infringement by a third party of any rights licensed to Agensys under this Agreementproceeding. Further, Ambrx shall give Agensys[***] will pay all its costs incurred for such enforcement, and Agensys all recoveries or awards in excess of its costs arising out of such enforcement shall give Ambrxbe deemed to constitute Net Sales subject to royalty payments to [***] under Section 7.3. As between the Parties, notice of [***] will have the right, but not the obligation, to defend against a declaratory judgment action challenging any infringement of (i) any Ambrx Patent Rights claiming within the Licensed Technology that Cover any Ambrx Collaboration Information and Invention Selected Conjugate or Licensed Product. [***] will pay all the costs incurred for such defense. If [***] declines to undertake any Joint Collaboration Information and Invention for which Ambrx is the filing party pursuant action or proceeding to Section 7.1, xxxxx any actual or any misappropriation or misuse of Ambrx Collaboration Information and Inventions, that may come to Ambrx’s or Agensys’ attention. Agensys and Ambrx shall thereafter consult and cooperate fully to determine a course of action, including but not limited to, the commencement of legal action by either or both Agensys and Ambrx, to terminate any suspected infringement of such Ambrx Patent Rights within [***] after receipt or any misappropriation or misuse delivery of such Ambrx Collaboration Information and Inventionnotice under Section 3.8.1, as applicable. Howeverthen upon [***]’s written consent, Ambrxwhich shall not be unreasonably withheld, upon notice to Agensys, [***] shall have the first right to initiate and prosecute commence any such legal action at or proceeding in its own expense name and to control such actions, and shall assume all decisions and costs related thereto, and all recoveries or awards in excess of its costs arising out of such enforcement shall be retained by [***]. Except as otherwise set forth in this Section 3.8.2, each Party will have the sole right to enforce and defend Patent Rights solely owned by such Party, and the Parties will jointly determine which Party shall enforce Patent Rights included in the name Joint Collaboration Technology and the allocation of Ambrxrecoveries and awards from any such enforcement action; provided that if the Parties fail to agree, or to control the defense of any declaratory judgment action relating to such Ambrx Patent Rights or such Ambrx Collaboration Information and Inventions, as applicable, and Agensys, upon notice to Ambrx, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of Agensys, or to control the defense of any declaratory judgment action relating to such Ambrx Patent Rights or such Ambrx Collaboration Information and Inventions, as applicable. To the extent permissible by Applicable Law, the non-controlling each Party shall have the right to join and participate enforce such Patent Rights included in such action. Each Party shall promptly inform the other Party if it elects not to exercise such first right and the other Party shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in its name and, if necessary, the name of the first PartyJoint Collaboration Technology. Each Party shall have the right to approve any settlement that would adversely affect any such Licensed Technology or Joint Collaboration Technology, or either Party’s rights under this Agreement, or would result in any liability or admission on behalf of either Party, such approval not to be represented by counsel of its own choiceunreasonably withheld.

Enforcement and Defense. In the event that Northern or Xxxxx becomes aware of a suspected infringement of any Northern Patent Right, or any such Northern Patent Right is challenged in any action or proceeding (a) Each other than any interferences, oppositions, reissue proceedings or reexaminations, which are addressed above), such Party shall promptly notify the other Party promptly, and following such notification, the Parties shall confer. Except as otherwise provided below, Xxxxx shall have the right, but shall not be obligated, to defend any such action or proceeding or bring an infringement action with respect to such infringement at its own expense, in its own name and entirely under its own direction and control, or settle any such action or proceeding by sublicense; provided that, if there exists an issued SC Patent to serve as the basis of the infringement action in connection with such Third Party activities, Xxxxx will limit its enforcement action to such SC Patent if so doing does not materially decrease Xxxxx’x likelihood of success. Prior to initiating an enforcement action that uses a Northern Patent Right other than an SC Patent as the basis for the claim of infringement, Xxxxx shall meet with Northern to discuss ways to manage the potential risk to such Northern Patent Right in connection with such enforcement action, including limiting the number and scope of claims that are asserted in connection with such action. Xxxxx shall use good faith efforts to employ any infringement reasonable measures agreed to by the Parties to manage such potential risk. Northern shall reasonably assist Xxxxx in any action or possible infringement proceeding being defended or prosecuted if so requested, and shall join such action or proceeding if reasonably requested by Xxxxx or required by applicable law at Xxxxx’x expense. After Xxxxx has recovered an amount equal to the cost it incurred in connection with any such action or proceeding, any remaining and received amounts of compensation and/or damages paid by a third party as awarded to Xxxxx due to the above action or proceeding shall be shared [***] percent ([***]%) to Xxxxx and [***] percent ([***]%) to Northern. With respect to infringements arising out of the activities of a Third Party with a compound that is an Other Compound, Northern shall have the right, but shall not be obligated, to defend any rights licensed such action or proceeding or bring an infringement action with respect to Agensys such Portions of this Exhibit, indicated by the xxxx “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 406 of the Securities Act of 1933, as amended. CONFIDENTIAL EXECUTION COPY LICENSE AGREEMENT infringement at its own expense, in its own name and entirely under its own direction and control, or settle any such action or proceeding by sublicense; provided that, if there exists an issued OC Patent to serve as the basis of the infringement action in connection with such Third Party activities, Northern will limit its enforcement action to such OC Patent if so doing does not materially decrease Northern’s likelihood of success and the roles of the Parties under this AgreementSection 5.3 shall be reversed, solely with respect to such action. FurtherPrior to initiating an enforcement action that uses a Northern Patent Right other than an OC Patent as the basis for the claim of infringement, Ambrx Northern shall give Agensys, and Agensys shall give Ambrx, notice of any infringement of (i) any Ambrx meet with Xxxxx to discuss ways to manage the potential risk to such Northern Patent Rights claiming any Ambrx Collaboration Information and Invention or any Joint Collaboration Information and Invention for which Ambrx is the filing party pursuant to Section 7.1, or any misappropriation or misuse of Ambrx Collaboration Information and Inventions, that may come to Ambrx’s or Agensys’ attention. Agensys and Ambrx shall thereafter consult and cooperate fully to determine a course of Right in connection with such enforcement action, including but not limited to, limiting the commencement number and scope of legal action by either or both Agensys and Ambrx, to terminate any infringement of such Ambrx Patent Rights or any misappropriation or misuse of such Ambrx Collaboration Information and Invention, as applicable. However, Ambrx, upon notice to Agensys, shall have the first right to initiate and prosecute such legal action at its own expense and claims that are asserted in the name of Ambrx, or to control the defense of any declaratory judgment action relating to such Ambrx Patent Rights or such Ambrx Collaboration Information and Inventions, as applicable, and Agensys, upon notice to Ambrx, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of Agensys, or to control the defense of any declaratory judgment action relating to such Ambrx Patent Rights or such Ambrx Collaboration Information and Inventions, as applicable. To the extent permissible by Applicable Law, the non-controlling Party shall have the right to join and participate in connection with such action. Each Party Northern shall promptly inform use good faith efforts to employ any reasonable measures agreed to by the other Party if it elects not Parties to exercise manage such first right and the other Party shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in its name and, if necessary, the name of the first Party. Each Party shall have the right to be represented by counsel of its own choicepotential risk.

Enforcement and Defense. (a) 10.3.1. Each Party shall promptly notify give the other Party of any infringement or possible infringement by a third party of any rights licensed to Agensys under this Agreement. Further, Ambrx shall give Agensys, and Agensys shall give Ambrx, written notice of any actual or threatened infringement of any FivePrime Patents or Collaboration Patents by an unlicensed *** INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS REQUESTED. ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. Third Party through the making, having made, using, selling, offering for sale or importing of any product that is within the scope of a commercial License held by BMS (ior would be within the scope of such license if such product were a Licensed Product hereunder) any Ambrx Patent Rights claiming any Ambrx Collaboration Information (a “Product Infringement”), within *** days after such Party has knowledge of such Product Infringement. BMS and Invention or any Joint Collaboration Information and Invention for which Ambrx is the filing party pursuant to Section 7.1, or any misappropriation or misuse of Ambrx Collaboration Information and Inventions, that may come to Ambrx’s or Agensys’ attention. Agensys and Ambrx FivePrime shall thereafter consult and cooperate fully to determine a course of action, including but not limited to, the commencement of legal action by either or both Agensys BMS and AmbrxFivePrime, to terminate any infringement of such Ambrx Patent Rights or any misappropriation or misuse of such Ambrx Collaboration Information and Invention, as applicableProduct Infringement. However, AmbrxBMS, upon notice to AgensysFivePrime, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of AmbrxFivePrime or BMS, or to control the defense of any declaratory judgment action relating to such Ambrx Patent Rights Product Infringement, provided that BMS shall not enter into any settlement or such Ambrx Collaboration Information and Inventionscompromise that would materially diminish or adversely affect the scope, as applicable, and Agensys, upon notice to Ambrx, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of Agensys, exclusivity or to control the defense duration of any declaratory judgment action relating to such Ambrx Patent Rights FivePrime Patents, Collaboration Patents or such Ambrx Collaboration Information and InventionsFivePrime’s rights under this Agreement, as applicable. To the extent permissible by Applicable Law, the non-controlling Party shall have the right to join and participate in such action. Each Party shall promptly inform the other Party if it elects not to exercise such first right and the other Party shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in its name and, if necessary, the name of the first Party. Each Party shall have the right to be represented by counsel of its own choicewithout FivePrime’s prior written consent.

Enforcement and Defense. (a) Each Party shall promptly notify give the other Party of any infringement or possible infringement by a third party of any rights licensed to Agensys under this Agreement. Further, Ambrx shall give Agensys, and Agensys shall give Ambrx, notice of any infringement unauthorized making, using, selling, offering for sale or importing of (i) any Ambrx Patent Rights claiming any Ambrx Collaboration Information and Invention or any Joint Collaboration Information and Invention for which Ambrx is the filing party pursuant to Section 7.1, or any misappropriation or misuse of Ambrx Collaboration Information and Inventions, a Licensed Product that may come to Ambrx’s or Agensys’ attention. Agensys and Ambrx shall thereafter consult and cooperate fully to determine such Party's attention (a course of action, including but not limited to, the commencement of legal action by either or both Agensys and Ambrx, to terminate any infringement of such Ambrx Patent Rights or any misappropriation or misuse of such Ambrx Collaboration Information and Invention, as applicable. However, Ambrx, upon notice to Agensys, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of Ambrx, or to control the defense of any declaratory judgment action relating to such Ambrx Patent Rights or such Ambrx Collaboration Information and Inventions, as applicable, and Agensys, upon notice to Ambrx, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of Agensys, or to control the defense of any declaratory judgment action relating to such Ambrx Patent Rights or such Ambrx Collaboration Information and Inventions, as applicable. To the extent permissible by Applicable Law, the non-controlling Party shall have the right to join and participate in such action. Each Party shall promptly inform the other Party if it elects not to exercise such first right and the other Party shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in its name and, if necessary, the name of the first Party"Field Infringement"). Each Party shall have the right to bring suit against such alleged infringer in a Field Infringement, [*], and either Party may [*]; provided, however, that in the event that TKT brings a suit against an alleged infringer as the result of a possible Field Infringement, but in its sole reasonable discretion believes that CELL GENESYS is or may be represented a necessary or indispensable party under the applicable law, CELL GENESYS agrees to become a party in such action , and shall execute all documents and take all steps reasonably necessary to enable TKT to initiate, prosecute and/or maintain such action, or for TKT to defend any declaratory judgment action brought by counsel of the alleged infringer. Each Party shall be entitled in any such action [*] to assert its own choiceclaims for damages and to defend it interests in the Patent Rights. For any infringement of the Patent Rights other than a Field Infringement, CELL GENESYS shall have the sole and exclusive right to bring an action against the infringer. Each Party shall [*] pursuant to an action brought under subclause (a) above. Each Party shall notify the other of any certification regarding any Patent Rights which it has received pursuant to 21 U.S.C. 355(b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) or its successor provisions or the foreign equivalent thereof and shall provide the other with a copy of such certification within five (5) days of receipt. CELL GENESYS's and TKT's rights with respect to the initiation and prosecution of any legal action (or the defense of any such legal action) as a result of such certification or any recovery obtained as a result of such legal action shall be as defined above; provided, however, that if either Party shall exercise its first right to initiate and prosecute any action or to control the defense of any such action, such Party shall notify the other Party of such decision within ten (10) days of receipt of the certification.

Enforcement and Defense. (a) Each Party shall promptly notify the other Party in writing if it becomes aware of any Third Party actions which may constitute misappropriation or unauthorized use of the Licensed Compound Know-How and/or any Licensed Manufacturing Know-How, infringement of the Licensed Compound Patents, Licensed Formulation Patents and/or Licensed Manufacturing IP, or a claim to invalidate or contest the enforceability of one or more such patents. Any such notice shall identify the Third Party and describe the relevant actions in sufficient detail to enable the other Party to evaluate the alleged misappropriation, infringement or possible infringement by a third party of any rights licensed to Agensys under this Agreementother action. Further, Ambrx shall give Agensys, and Agensys shall give Ambrx, notice of any infringement of (i) any Ambrx Patent Rights claiming any Ambrx Collaboration Information and Invention or any Joint Collaboration Information and Invention for which Ambrx is the filing party pursuant to Section 7.1, or any misappropriation or misuse of Ambrx Collaboration Information and Inventions, that may come to Ambrx’s or Agensys’ attention. Agensys and Ambrx shall thereafter consult and cooperate fully to determine a course of action, including but not limited to, the commencement of legal action by either or both Agensys and Ambrx, to terminate any infringement of such Ambrx Patent Rights or any misappropriation or misuse of such Ambrx Collaboration Information and Invention, as applicable. However, Ambrx, upon notice to Agensys, *** shall have the first right right, but not the obligation, to initiate take action to enforce any misappropriation of Licensed Compound Know-How or to enforce or defend the Licensed Compound Patents and prosecute such legal action the Licensed Formulation Patents in the Field at its own expense sole cost. *** shall reasonably cooperate with *** to enable *** to take such action, including joining such action as a party plaintiff if required by applicable laws to pursue such action and in if indemnified by ***. In the name of Ambrx, event that *** does not take action to defend or to control the defense of any declaratory judgment action relating to such Ambrx Patent Rights or such Ambrx Collaboration Information and Inventionsenforce, as applicable, and Agensysthe relevant intellectual property in the Field within *** of becoming aware of the potential misappropriation, upon notice to Ambrxinfringement or other action, *** shall have the first right right, but not the obligation, to initiate take action to enforce or defend such patents *** at ***’s sole cost. In such event, *** shall reasonably cooperate with *** to enable *** to take such action, including joining such action as a party plaintiff if required by applicable laws to pursue such action and prosecute such legal action at its own expense and in the name of Agensys, or to control the defense of any declaratory judgment action relating to such Ambrx Patent Rights or such Ambrx Collaboration Information and Inventions, as applicableif indemnified by ***. To the extent permissible by Applicable Law, the non-controlling The enforcing Party shall have not enter into any settlement or undertake any other action without the right to join and participate in such action. Each Party shall promptly inform prior written consent of the other Party if it elects not to exercise such first right and which would (i) invalidate or otherwise render the relevant patents unenforceable, (ii) constitute an admission on behalf of the other Party, (iii) impose any injunction or other similar restrictions upon the other Party shall thereafter have or its Affiliates, or (iv) obligate the right other Party to either initiate and prosecute such action pay any damages or to control incur any other financial obligations. The enforcing Party shall keep the defense other Party regularly informed of the status and progress of such declaratory judgment action in its name andenforcement efforts, if necessaryshall reasonably consider the other Party’s comments on any such efforts, the name and shall seek consent of the first Partyother Party in any important *** INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS REQUESTED. Each ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. aspects of such enforcement, including determination of litigation strategy and filing of material papers to the competent court, which consent shall not be unreasonably withheld or delayed. The non-enforcing Party shall have the right be entitled to be represented separate representation in such matter by counsel of its own choicechoice and at its own expense, but such Party shall at all times cooperate fully with the enforcing Party. The enforcing Party bringing a claim, suit or action under this Section 5.4 shall be solely responsible for any expenses incurred by such Party as a result of such claim, suit or action. If such Party recovers monetary damages in such claim, suit or action, such recovery shall be allocated ***.

Enforcement and Defense. (a) Each Party shall promptly notify give the other Party of any infringement or possible infringement by a third party of any rights licensed to Agensys under this Agreement. Further, Ambrx shall give Agensys, and Agensys shall give Ambrx, notice of any infringement unauthorized making, using, selling, offering for sale or importing of (i) any Ambrx Patent Rights claiming any Ambrx Collaboration Information and Invention or any Joint Collaboration Information and Invention for which Ambrx is the filing party pursuant to Section 7.1, or any misappropriation or misuse of Ambrx Collaboration Information and Inventions, a Licensed Product that may come to Ambrx’s or Agensys’ attention. Agensys and Ambrx shall thereafter consult and cooperate fully to determine such Party's attention (a course of action, including but not limited to, the commencement of legal action by either or both Agensys and Ambrx, to terminate any infringement of such Ambrx Patent Rights or any misappropriation or misuse of such Ambrx Collaboration Information and Invention, as applicable. However, Ambrx, upon notice to Agensys, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of Ambrx, or to control the defense of any declaratory judgment action relating to such Ambrx Patent Rights or such Ambrx Collaboration Information and Inventions, as applicable, and Agensys, upon notice to Ambrx, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of Agensys, or to control the defense of any declaratory judgment action relating to such Ambrx Patent Rights or such Ambrx Collaboration Information and Inventions, as applicable. To the extent permissible by Applicable Law, the non-controlling Party shall have the right to join and participate in such action. Each Party shall promptly inform the other Party if it elects not to exercise such first right and the other Party shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in its name and, if necessary, the name of the first Party"Field Infringement"). Each Party shall have the right to bring suit against such alleged infringer in a Field Infringement, [*], and either Party may [*]; provided, however, that in the event that TKT brings a suit against an alleged infringer as the result of a possible Field Infringement, but in its sole reasonable discretion believes that CELL GENESYS is or may be represented a necessary or indispensable party under the applicable law, CELL GENESYS agrees to become a party in such action, and shall execute all documents and take all steps reasonably necessary to enable TKT to initiate, prosecute and/or maintain such action, or for TKT to defend any declaratory judgment action brought by counsel of the alleged infringer. Each Party shall be entitled in any such action [*] to assert its own choiceclaims for damages and to defend it interests in the Patent Rights. For any infringement of the Patent Rights other than a Field Infringement, CELL GENESYS shall have the sole and exclusive right to bring an action against the infringer. Each Party shall [*] pursuant to an action brought under subclause (a) above. Each Party shall notify the other of any certification regarding any Patent Rights which it has received pursuant to 21 U.S.C. 355(b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) or its successor provisions or the foreign equivalent thereof and shall provide the other with a copy of such certification within five (5) days of receipt. CELL GENESYS's and TKT's rights with respect to the initiation and prosecution of any legal action (or the defense of any such legal action) as a result of such certification or any recovery obtained as a result of such legal action shall be as defined above; provided, however, that if either Party shall exercise its first right to initiate and prosecute any action or to control the defense of any such action, such Party shall notify the other Party of such decision within ten (10) days of receipt of the certification. If any Licensed Product becomes the subject of a Third Party claim, or there is the potential for a claim of patent infringement related to TKT's development, use, sale, offer for sale or import of Licensed Products, TKT shall defend against such claim [*]. CELL GENESYS and TKT shall fully cooperate and provide assistance to each other, [*], with respect to any proceeding related to gene activation patents owned or licensed by a Third Party and asserted, or threatened to be asserted, by such Third Party, including without limitation, [*]. [*] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.