Common use of Enforcement and Defense Clause in Contracts

Enforcement and Defense. (i) Each Party shall give the other notice of either (a) any infringement of LICENSED PATENTS, or (b) any misappropriation or misuse of LICENSED KNOW-HOW that has come to its attention. The Parties 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 Parties to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW. (ii) In the event that LICENSED PATENTS are infringed by any Third-Party with respect to a PRODUCT in the Field of Use, LICENSEE, upon notice to LICENSOR, shall for a period of [***] have the first right, but not the obligation, to institute and prosecute any action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. its choice, or to control the defense of any declaratory judgment action arising from such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense and in the name of both Parties. LICENSEE shall not otherwise settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of LICENSOR. LICENSEE shall keep LICENSOR advised of the progress of such proceedings. (iii) In the event that a Third-Party is infringing any LICENSED PATENTS with respect to a PRODUCT in the Field of Use and LICENSEE does not elect to institute an action, LICENSOR, upon notice to LICENSEE, shall have the right, but not the obligation, to institute and prosecute any action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of its choice, or to control the defense of any declaratory judgment action arising from such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense and in the name of both Parties. LICENSOR shall not settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the prior approval of LICENSEE, which shall not be unreasonably withheld. (iv) With respect to any action to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW, the Parties shall cooperate fully and shall provide each other with any information and assistance that either Party may reasonably request. In particular, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates, Sublicensees and LICENSEE to execute all such documents, if required. In the event that either Party is unable to initiate or prosecute an action solely in its own name, the other Party shall then join such action voluntarily. Each Party shall keep the other informed of the development of any action or proceeding including, to the extent permissible by law, the status of any settlement negotiations and the terms of any offer related thereto. (v) Any recovery obtained by either or both Parties in connection with or as a result of any action or proceeding contemplated by this Section 8.3, whether by settlement or otherwise, shall be allocated in order as follows: (a) The Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action (provided that if LICENSEE was the initiating Party and that the action proceeds were not sufficient for LICENSEE to recoup all its costs and expenses, then LICENSEE shall be allowed to deduct the [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. balance of its unrecovered costs and expenses from royalties payable to LICENSOR under Article 4 hereof); (b) The other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (c) The amounts of any recovery remaining shall then be allocated between the Parties with LICENSEE receiving all amounts in respect of damages in the Field of Use and LICENSOR receiving all amounts in respect of damages out of the Field of Use, except that any amounts recovered in connection with infringement actions relating to jointly-owned patents shall be equally shared between the Parties. (vi) LICENSOR shall inform LICENSEE of any certification regarding any LICENSED PATENTS it has received pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Sections355(b)(2)(A)(iv) or (j)(2)(A)(vii)(lV), or any similar provision in other countries, and shall provide LICENSEE with a copy of such certification within [***] of receipt. Both Parties rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in paragraphs (a) to (c) of this Section 7.6.

Enforcement and Defense. (a) ALNYLAM shall give MERCK notice of: (i) Each Party shall give the other notice of either (a) any infringement of LICENSED PATENTS(x) Joint Collaboration Patent Rights relating to in vitro and/or in vivo target validation and/or target identification; and/or (y) ALNYLAM RNAi Patent Rights relating to in vitro and/or in vivo target validation and/or target identification that are (A) Controlled by ALNYLAM or its Affiliates and (B) licensed co-exclusively or exclusively hereunder to MERCK by ALNYLAM, or and/or (bii) any misappropriation or misuse of LICENSED KNOWALNYLAM RNAi Technology relating to in vitro and/or in vivo target validation and/or target identification that is (A) Controlled by ALNYLAM or its Affiliates and (B) licensed co-HOW exclusively or exclusively hereunder to MERCK by ALNYLAM, that has may come to its ALNYLAM's attention. The Parties MERCK and ALNYLAM shall thereafter consult and cooperate fully to determine a course of action, including including, but not limited to to, the commencement of legal action by either or both Parties MERCK and/or ALNYLAM, to terminate any infringement of LICENSED PATENTS such ALNYLAM RNAi Patent Rights or such Joint Collaboration Patent Rights or any misappropriation or misuse of LICENSED KNOW-HOW. (ii) In the event that LICENSED PATENTS are infringed by any Third-Party with respect to a PRODUCT in the Field of Usesuch ALNYLAM RNAi Technology. However, LICENSEEALNYLAM, upon prompt written notice to LICENSORMERCK, shall for a period of [***] have the first right, but not the obligation, right to institute initiate and prosecute any such legal action or proceeding under LICENSED PATENTS with respect to such infringementat its own expense and in the name of ALNYLAM and MERCK, by counsel of [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. its choice, or and to control the defense of any declaratory judgment action arising from relating to such infringement ALNYLAM RNAi Patent Rights or from the misappropriation such Joint Collaboration Patent Rights or misuse of LICENSED KNOW-HOW, such ALNYLAM RNAi Technology at its own expense expense. ALNYLAM shall promptly inform MERCK if it elects not to exercise such first right and MERCK shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of both Parties. LICENSEE shall not otherwise settleMERCK and, compromise or take any action in such litigation which diminishif necessary, limit or inhibit the scopeALNYLAM, validity or enforceability of LICENSED PATENTS without the express permission of LICENSOR. LICENSEE shall keep LICENSOR advised of the progress of such proceedings. (iii) In the event that a Third-Party is infringing any LICENSED PATENTS only with respect to a PRODUCT an infringement of Joint Collaboration Patent Rights through the conduct of in the Field of Use and LICENSEE does not elect to institute an action, LICENSOR, upon notice to LICENSEE, vitro and/or in vivo target identification and/or target validation. Each Party shall have the rightright to be represented by counsel of its own choice. For the avoidance of doubt, but not the obligation, it is agreed that MERCK shall have no right to institute and initiate or prosecute any action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of its choice, or to control the defense of any declaratory judgment action arising from such infringement or from the misappropriation with respect to any ALNYLAM RNAi Patent Right or misuse or misappropriation of LICENSED KNOW-HOWALNYLAM RNAi Technology. ALNYLAM agrees that, at its own expense and in the name event a Therapeutic Collaboration Product becomes subject to a MERCK Product Agreement, and an ALNYLAM RNAi Patent Right is infringed by a Third Party by the sale of both Parties. LICENSOR shall a therapeutic product using RNA interference against the same MERCK RNAi Novel Target as such Therapeutic Collaboration Product (a "COMPETING RNAi PRODUCT") then if (a) there is no patent right Controlled by MERCK and no Joint Collaboration Patent Right that can be asserted against the alleged infringement, and (b) ALNYLAM does not settleassert at least one ALNYLAM RNAi Patent Right against such alleged infringement, compromise or take any action then MERCK's license to such Therapeutic Collaboration Product will become royalty-free in countries in which the Competing RNAi Product is sold, for as long as such Competing RNAi Product is being sold in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the prior approval of LICENSEE, which shall not country. The foregoing provision will be unreasonably withheld. (iv) reflected in each MERCK Product Agreement. With respect to any action or defense provided for in this paragraph (a), ALNYLAM shall not admit the invalidity or unenforceability of any MERCK RNAi Patent Rights, MERCK RNAi Novel Target IP or Joint Collaboration Patent Rights without the prior written consent of MERCK. (b) In the event that ALNYLAM elects not to initiate and prosecute an action as provided in paragraph (a), and MERCK elects to do so, the costs of any action to terminate such infringement of Joint Collaboration Patent Rights, including without limitation the costs of any legal action commenced or the defense of any declaratory judgment, shall be borne by MERCK. No suit or negotiation arising from such action may be settled by MERCK without prior written notice to ALNYLAM. With respect to any action or defense provided for in this paragraph (b), MERCK shall not admit the invalidity or unenforceability of any ALNYLAM RNAi Patent Rights or Joint Collaboration Patent Rights without the written consent of ALNYLAM. (c) For any such action to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOWJoint Collaboration Patent Rights relating to in vitro and/or in vivo target validation and/or target identification, the Parties shall cooperate fully and shall provide each other with any information and assistance that either Party may reasonably request. In particular, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates, Sublicensees and LICENSEE to execute all such documents, if required. In in the event that either Party MERCK is unable to initiate or prosecute an such action solely in its own name, the other Party shall then ALNYLAM will join such action voluntarilyvoluntarily and will execute and cause its Affiliates to execute all documents necessary for MERCK to initiate litigation to prosecute and maintain such action, at the expense of MERCK. In connection with any action, MERCK and ALNYLAM will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each Party shall keep the other informed of the development of developments in any action or proceeding includingproceeding, to the extent permissible by law, the status of any settlement negotiations and the terms of any offer related thereto. (vd) Any recovery obtained by either or both Parties MERCK and ALNYLAM in connection with or as a result of any action or proceeding contemplated by this Section 8.3section, whether by settlement or otherwise, shall be allocated shared in order as follows: (ai) The the Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action (provided that if LICENSEE was the initiating Party and that the action proceeds were not sufficient for LICENSEE to recoup all its costs and expenses, then LICENSEE shall be allowed to deduct the [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. balance of its unrecovered costs and expenses from royalties payable to LICENSOR under Article 4 hereof)action; (bii) The the other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (ciii) The amounts the amount of any recovery remaining shall then be allocated between the Parties with LICENSEE receiving all amounts in respect of damages in the Field of Use and LICENSOR receiving all amounts in respect of damages out of the Field of Use, except that any amounts recovered in connection with infringement actions relating to jointly-owned patents shall be equally shared between the Parties.as follows: (vi1) LICENSOR shall inform LICENSEE of any certification regarding any LICENSED PATENTS it has received pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Sections355(b)(2)(A)(iv) or (j)(2)(A)(vii)(lV), or any similar provision in other countries, and shall provide LICENSEE with a copy of such certification within [**] percent ([**]%) of the remaining amount to the Party prosecuting such action and (2) [**] of receipt. Both Parties rights with respect percent ([**]%) to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in paragraphs (a) to (c) of this Section 7.6other Party.

Enforcement and Defense. (a) AVEO shall give MERCK notice of either (i) any suspected infringement of AVEO Patent Rights, or (ii) any misappropriation or misuse of AVEO Information and Inventions, that may come to AVEO’s attention. Each Party shall give the other Party notice of either (ai) any suspected infringement of LICENSED PATENTSJoint Patent Rights, or (bii) any misappropriation or misuse of LICENSED KNOW-HOW Joint Information and Inventions, that has may come to its such Party’s attention. The Parties MERCK and AVEO 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 Parties MERCK and AVEO, to terminate any the applicable infringement or misappropriation under AVEO Patent Rights, AVEO Information and Inventions, Joint Patent Rights or Joint Information and Inventions. The Parties agree to the following allocation of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW. (ii) In the event that LICENSED PATENTS are infringed by any Third-Party responsibility with respect to a PRODUCT in rights to initiate and prosecute such legal actions: (i) With respect to the Field of UseJoint Patent Rights or Joint Information and Inventions, LICENSEEMERCK, upon notice to LICENSORAVEO, shall for a period of [***] have the first right, but not the obligation, right to institute initiate and prosecute any such legal action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. its choice, or to control the defense of any declaratory judgment action arising from such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense and in the name of both Parties. LICENSEE AVEO and MERCK; provided, however, that (1) AVEO shall not otherwise settlehave a right, compromise or take any action at its sole option, to fund up to [**] percent ([**]%) of the costs and expenses incurred by MERCK in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of LICENSOR. LICENSEE shall keep LICENSOR advised of the progress of such proceedings. (iii) In the event that a Third-Party is infringing any LICENSED PATENTS with respect to a PRODUCT in the Field of Use and LICENSEE does not elect to institute an legal action, LICENSOR, upon notice to LICENSEE, and (2) the Parties shall have the right, but not the obligation, to institute and prosecute any action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of its choice, or to control mutually agree on the defense of any declaratory judgment action arising from relating to AVEO Patent Rights, AVEO Information and Inventions, Joint Patent Rights or Joint Information and Inventions. MERCK shall promptly inform AVEO if it elects not to exercise such infringement first right and AVEO shall thereafter, upon consultation with MERCK, have the right to either initiate and prosecute such action or from to control the misappropriation defense of such declaratory judgment action in the name of AVEO and, if necessary, MERCK, at its own expense; provided, however, (1) MERCK shall have a right, at its sole option, to fund up to [**] percent ([**]%) of the costs and expenses incurred by AVEO in such legal action, and (2) that the Parties shall mutually agree on the defense of any declaratory judgment action relating to AVEO Patent Rights, AVEO Information and Inventions, Joint Patent Rights or misuse Joint Information and Inventions. Each Party shall have the right to be represented by counsel of LICENSED KNOW-HOWits own choice, at its own expense. (ii) With respect to the AVEO Patent Rights or AVEO Information and Inventions, AVEO, upon notice to MERCK, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of both Parties. LICENSOR shall not settleAVEO and MERCK, compromise or take any action subject to and in such litigation which diminish, limit or inhibit accordance with terms and conditions that are reciprocal to those set forth in subsection (A) above with respect to the scope, validity or enforceability of LICENSED PATENTS without the prior approval of LICENSEE, which shall not be unreasonably withheldJoint Patent Rights and Joint Information and Inventions. (iv) With respect to any action to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW, the Parties shall cooperate fully and shall provide each other with any information and assistance that either Party may reasonably request. In particular, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates, Sublicensees and LICENSEE to execute all such documents, if required. In the event that either Party is unable to initiate or prosecute an action solely in its own name, the other Party shall then join such action voluntarily. Each Party shall keep the other informed of the development of any action or proceeding including, to the extent permissible by law, the status of any settlement negotiations and the terms of any offer related thereto. (vb) Any recovery obtained by either or both Parties MERCK and AVEO in connection with or as a result of any action under the AVEO Patent Rights or proceeding Joint Patent Rights contemplated by this Section 8.37.3, whether by settlement or otherwise, shall be allocated shared in order as follows: (ai) The the Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action (provided that if LICENSEE was the initiating Party and that the action proceeds were not sufficient for LICENSEE to recoup all its costs and expenses, then LICENSEE shall be allowed to deduct the [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. balance of its unrecovered costs and expenses from royalties payable to LICENSOR under Article 4 hereof)action; (bii) The the other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (ciii) The amounts the amount of any recovery remaining shall then be allocated between the Parties with LICENSEE receiving all amounts on a pro rata basis in respect proportion to the amount of damages in the Field of Use costs and LICENSOR receiving all amounts in respect of damages out of the Field of Use, except that any amounts recovered expenses incurred by each such Party in connection with infringement actions relating to jointly-owned patents shall be equally shared between the Partiesinitiation and/or prosecution of such action. (vic) LICENSOR AVEO shall inform LICENSEE MERCK of any certification regarding any LICENSED PATENTS AVEO Patent Rights it has received pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Sections355(b)(2)(A)(iveither 21 U.S.C. §§355(b)(2)(A)(iv) or (j)(2)(A)(vii)(lV)j)(2)(A)(vii)(IV) or its successor provisions, or any similar provision provisions in a country in the Territory other countriesthan the United States, and shall provide LICENSEE MERCK with a copy of such certification within [***] five (5) days of receipt. Both Parties AVEO’s and MERCK’s rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in paragraphs 7.4(a)-(d) hereof; provided, however, that AVEO shall exercise its first right to initiate and prosecute any action and shall inform MERCK of such decision within ten (a10) days of receipt of the certification, after which time MERCK shall have the right to (c) initiate and prosecute such action. Regardless of this Section 7.6which Party has the right to initiate and prosecute such action, both Parties shall, as soon as practicable after receiving notice of such certification, convene and consult with each other regarding the appropriate course of conduct for such action. The non-initiating Party shall have the right to be kept fully informed and participate in decisions regarding the appropriate course of conduct for such action, and the right to join and participate in such action.

Enforcement and Defense. (i) Each Party shall give Subject to the other notice terms of either each Epizyme In-License Agreement: (a) If either Party becomes aware of any Third Party activity, including any Development activity (whether or not an exemption from infringement liability for such Development activity is available under Applicable Law), that materially infringes (or that is directed to the Development of LICENSED PATENTSa product that would infringe) a Licensed Patent Right, Hutchmed Patent Right or a Joint Combination Therapy Patent Right, or that misappropriates any Epizyme Combination Therapy Know-How, Epizyme Know-How, or Epizyme Manufacturing Know-How (individually or collectively the “Licensed Know-How”), Hutchmed Know-How, or Joint Combination Therapy Know-How, or of any Third Party Patent Right that, if issued or enforced, is reasonably likely to materially affect the scope, claims, validity, or other material element of a Licensed Patent Right, Hutchmed Patent Right or a Joint Combination Therapy Patent Right then the Party becoming aware of such activity shall give prompt written notice to the other Party regarding such alleged infringement or misappropriation (collectively, “Infringement Activity”). (b) any misappropriation or misuse of LICENSED KNOW-HOW that has come to its attention. The Parties Epizyme 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 Parties to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW. (ii) In the event that LICENSED PATENTS are infringed by any Third-Party with respect to a PRODUCT in the Field of Use, LICENSEE, upon notice to LICENSOR, shall for a period of [***] have the first right, but not the obligation, to institute attempt to resolve any Infringement Activity involving Licensed Patent Rights, Licensed Know-How, Joint Combination Therapy Patent Rights, or Joint Combination Therapy Know-How outside the Territory at its own expense, including the filing of an infringement or misappropriation suit using counsel of its own choice, and prosecute Hutchmed shall have the first right, but not the obligation, to attempt to resolve any action Infringement Activity involving Licensed Patent Rights, Licensed Know-How, Epizyme Marks, Joint Combination Therapy Patent Rights, or proceeding under LICENSED PATENTS Joint Combination Therapy Know-How in the Territory by commercially appropriate steps at its own expense, including the filing of an infringement or misappropriation suit using counsel of its own choice. If (i) Hutchmed fails to resolve such Infringement Activity in the Territory, or (ii) solely with respect to Joint Combination Therapy Patent Rights, Epizyme fails to resolve such infringementInfringement Activity outside the Territory, but solely (in the case of this clause (ii)) where the allegedly infringing product is or would be competitive with Hutchmed’s Other Combination Drug(s) that form(s) part of a Joint Combination Therapy covered by counsel of such Joint Combination Therapy Patent Rights, or, in either case ((i) or (ii)), to initiate a suit with respect thereto by the date that is [**] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. its choicebefore any deadline for taking action to avoid any loss of material enforcement rights or remedies, or to control the defense of any declaratory judgment action arising from such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense and in the name of both Parties. LICENSEE shall not otherwise settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of LICENSOR. LICENSEE shall keep LICENSOR advised of the progress of such proceedings. (iii) In the event that a Third-Party is infringing any LICENSED PATENTS with respect to a PRODUCT in the Field of Use and LICENSEE does not elect to institute an action, LICENSORthen, upon written notice to LICENSEEthe non-enforcing Party, such Party shall have the right, but not the obligation, to institute and prosecute attempt to resolve such Infringement Activity by commercially appropriate steps at its own expense, including the filing of an infringement or misappropriation suit using counsel of its own choice. (c) Any amounts recovered by a Party as a result of an action pursuant to Section 11.3(b), whether by settlement or judgment, shall be allocated as follows: (i) first to pay to each Third Party counterparty under any action Epizyme In-License Agreement or proceeding under LICENSED PATENTS Hutchmed In-License Agreement any amounts owed to such Third Party counterparty with respect to such infringementenforcement action, by counsel of its choice, or then (ii) to control the defense of any declaratory judgment action arising from such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense and in the name of both Parties. LICENSOR shall not settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the prior approval of LICENSEE, which shall not be unreasonably withheld. (iv) With respect to any action to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW, reimburse the Parties for their costs and expenses of the enforcement action (which amounts will be allocated pro rata if insufficient to cover the totality of such expenses), and (iii) any remaining amount shall cooperate fully be shared between the Parties, with the enforcing Party retaining [**] percent ([**]%) of such amount and shall provide each other with any information and assistance that either Party may reasonably request. In particular, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates, Sublicensees and LICENSEE to execute all retaining [**] percent ([**]%) of such documents, if requiredamount. In the event that either any action pursuant to this Section 11.3 does not result in the recovery of any amounts (e.g., payments to a Third Party, expenses for invalidation proceedings for Third Party Patent Rights that a Party reasonably believes may infringe a Licensed Patent Right, Hutchmed Patent Right or a Joint Combination Therapy Patent Right), then unless otherwise provided by this Agreement, such expenses shall be borne equally by the Parties and the Party not incurring such expenses shall reimburse the incurring Party within [**] after receipt of an invoice reasonably documenting such expenses. (d) If a Third Party in the context of an enforcement action under this Section 11.3 asserts that a Licensed Patent Right or Joint Combination Therapy Patent Right is unable invalid or unenforceable, then the Party responsible for such enforcement action will be responsible for defending against such assertion. If a Third Party outside of an enforcement action under this Section 11.3 asserts that a Licensed Patent Right is invalid or unenforceable, then Epizyme shall have the sole right, but not the obligation, to initiate defend against such assertion. If a Third Party outside of an enforcement action under this Section 11.3 asserts that a Joint Combination Therapy Patent Right is invalid or prosecute an action solely in its own nameunenforceable, then Epizyme shall have the sole right, but not the obligation, outside the Territory, and Hutchmed shall have the first right, but not the obligation, within the Territory, to defend against such assertion (such Party with a sole or first right to defend being known as the “First Defending Party”) and, at the First Defending Party’s request and expense, the other Party shall then provide reasonable assistance in defending against such Third Party assertion. The First Defending Party shall (i) keep the other Party reasonably informed regarding such assertion and such defense (including by providing such other Party with drafts of each filing a reasonable period before the deadline for such filing and promptly providing such other Party with copies of all final filings and correspondence), (ii) consult with the other Party on such defense, and (iii) consider in good faith all comments from the other Party regarding such defense. The non-defending Party shall have the right to join as a party to such defense and participate with its own counsel at its sole expense; provided, however, that the First Defending Party shall retain control of such defense. Should Epizyme (with respect to Licensed Patent Rights or Joint Combination Therapy Patent Rights outside the Territory, including in the context of an applicable enforcement action) or Hutchmed (with respect to Joint Combination Therapy Patent Rights within the Territory or in the context of an applicable enforcement action) decide that it is not, or is no longer, interested in controlling such defense with respect to a Joint Combination Therapy Patent Right, it shall promptly (and in any event by the date that is [**] before any deadline for taking action to avoid any loss of material rights) provide the other Party written notice of this decision. The other Party may, upon written notice to such first Party, assume such defense at such other Party’s sole expense. (e) In any event, at the request and expense of the Party bringing an infringement or misappropriation action under Section 11.3(b) or defending an action under Section 11.3(d), the other Party shall provide reasonable assistance in any such action voluntarily(including entering into a common interest agreement if reasonably deemed necessary by any Party) and be joined as a party to the suit if necessary for the initiating or defending Party to bring or continue such suit. Neither Party may settle any action or proceeding brought under Section 11.3(b) or 11.3(d), or knowingly take any other action in the course thereof, in a manner that materially adversely affects the other Party’s interest in any Licensed Patent Rights or Joint Combination Therapy Patent Rights or counterpart Patent Rights outside of the Territory without the written consent of such other Party. Each Party shall always have the right to be represented by counsel of its own selection and its own expense in any suit or other action instituted by the other Party pursuant to Section 11.3(b) or 11.3(d). The Party enforcing a Licensed Patent Right or Joint Combination Therapy Patent Right will keep the other Party reasonably informed of the development of any action or proceeding including, to the extent permissible by law, the status of any settlement negotiations and the terms of any offer related thereto. (v) Any recovery obtained by either or both Parties in connection with or as a result of any action or proceeding contemplated by this Section 8.3, whether by settlement or otherwise, shall be allocated in order as follows: (a) The Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action (provided that if LICENSEE was the initiating Party and that the action proceeds were not sufficient for LICENSEE to recoup all its costs and expenses, then LICENSEE shall be allowed to deduct the [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. balance of its unrecovered costs and expenses from royalties payable to LICENSOR under Article 4 hereof); (b) The other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (c) The amounts of any recovery remaining shall then be allocated between the Parties with LICENSEE receiving all amounts in respect of damages in the Field of Use and LICENSOR receiving all amounts in respect of damages out of the Field of Use, except that any amounts recovered in connection with infringement actions relating to jointly-owned patents shall be equally shared between the Parties. (vi) LICENSOR shall inform LICENSEE of any certification regarding any LICENSED PATENTS it has received pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Sections355(b)(2)(A)(iv) or (j)(2)(A)(vii)(lV), or any similar provision in other countries, and shall provide LICENSEE with a copy of such certification within [***] of receipt. Both Parties rights with respect to the initiation and prosecution of any legal action as a result status of such certification or any recovery obtained as a result of enforcement and will consider in good faith all comments provided by the non-enforcing Party with respect to such legal action shall be as defined in paragraphs (a) to (c) of this Section 7.6enforcement.

Enforcement and Defense. If Seller has the right pursuant to applicable Law to institute suit or other legal proceedings to enforce and/or defend any of the Specified AnaptysBio Patents in respect of any AB Infringement or to defend any of the Specified AnaptysBio Patents against any AB Invalidity Claim, then promptly (and in any event within five Business Days) following a Responsible Employee of Seller becoming aware of such right of Seller, Seller shall provide notice of such right to Purchaser. Seller may, and if requested in writing by Purchaser within (i) Each Party shall give the other ten Business Days after receipt by Purchaser of notice of either (a) any infringement of LICENSED PATENTS, or (b) any misappropriation or misuse of LICENSED KNOW-HOW that has come to its attention. The Parties shall thereafter consult and cooperate fully to determine a course of action, including but not limited such right pursuant to the commencement first sentence of legal action by either this Section 6.11(b) or both Parties to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW. (ii) In five Business Days before the event that LICENSED PATENTS are infringed by any Third-Party with respect to a PRODUCT time limit, if any, set forth in the Field applicable Law for the filing of Use, LICENSEE, upon notice to LICENSOR, shall for a period of [***] have the first right, but not the obligation, to institute and prosecute any action suit or other legal proceeding under LICENSED PATENTS with respect to such infringementenforcement or defense, by counsel whichever comes first, shall, proceed, in consultation with Purchaser, (A) in the case of [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. its choiceAB Infringement, to institute such a suit or other legal proceeding and to use commercially reasonable efforts to enforce and/or defend the Specified AnaptysBio Patents, and to exercise such rights and remedies, relating to such AB Infringement as shall be available to Seller under applicable Law, or (B) in the case of an AB Invalidity Claim, to control use commercially reasonable efforts to defend the Specified AnaptysBio Patents against such AB Invalidity Claim. In connection with any such enforcement or defense of the Specified AnaptysBio Patents, Seller shall employ such counsel as Seller determines for such purpose (as long as such counsel is reasonably acceptable to Purchaser). (c) Allocation of Proceeds and Costs of Enforcement and Defense. The Proceeds of any enforcement or defense of any declaratory judgment action arising from such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense and in the name of both Parties. LICENSEE shall not otherwise settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of LICENSOR. LICENSEE shall keep LICENSOR advised of the progress Specified AnaptysBio Patents by Seller pursuant to this Section 6.11, after deduction (and reimbursement to Seller and Purchaser) of such proceedings. (iiiall advances required by) In the event that a Third-Party is infringing any LICENSED PATENTS with respect applicable counsel selected pursuant to a PRODUCT in the Field of Use and LICENSEE does not elect to institute an action, LICENSOR, upon notice to LICENSEE, shall have the right, but not the obligation, to institute and prosecute any action Section 6.11(b)) actually incurred by Seller or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of its choice, or to control the defense of any declaratory judgment action arising from such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense and in the name of both Parties. LICENSOR shall not settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the prior approval of LICENSEE, which shall not be unreasonably withheld. (iv) With respect to any action to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW, the Parties shall cooperate fully and shall provide each other with any information and assistance that either Party may reasonably request. In particular, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates, Sublicensees and LICENSEE to execute all such documents, if required. In the event that either Party is unable to initiate or prosecute an action solely in its own name, the other Party shall then join such action voluntarily. Each Party shall keep the other informed of the development of any action or proceeding including, to the extent permissible by law, the status of any settlement negotiations and the terms of any offer related thereto. (v) Any recovery obtained by either or both Parties Purchaser in connection with such enforcement or as a result of any action or proceeding contemplated by this Section 8.3, whether by settlement or otherwise, shall be allocated in order as follows: defense (a) The Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action (provided that if LICENSEE was the initiating Party and that the action proceeds were not sufficient for LICENSEE to recoup all its costs and expenses, then LICENSEE shall be allowed to deduct the [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. balance of its unrecovered costs and expenses from royalties payable to LICENSOR under Article 4 hereof); (b) The other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (c) The amounts of any recovery remaining shall then be allocated between the Parties with LICENSEE receiving all amounts in respect of damages in the Field of Use and LICENSOR receiving all amounts in respect of damages out of the Field of Use, except that any amounts recovered in connection with infringement actions relating to jointly-owned patents shall be equally shared between the Parties. (vi) LICENSOR shall inform LICENSEE of any certification regarding any LICENSED PATENTS it has received pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Sections355(b)(2)(A)(iv) or (j)(2)(A)(vii)(lV), or any similar provision in other countries, and shall provide LICENSEE with a copy of such certification within [***] of receipt. Both Parties rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in paragraphs (a) to (c) of this Section 7.6.than costs

Enforcement and Defense. (i) Each Party shall party will promptly give the other party notice upon becoming aware of either (a) any instance of infringement of LICENSED PATENTS, or (b) any misappropriation or misuse of LICENSED KNOW-HOW that has come to its attention. The Parties 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 Parties to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW. (ii) In the event that LICENSED PATENTS are infringed by any Third-Party with respect to a PRODUCT Licensed Patents in the Field FOU (“Notice of UseInfringement”). If the infringing activity is solely within the FOU and there are no Exclusive Licensees of the infringed Licensed Patents, LICENSEE, upon notice to LICENSOR, Licensee shall for a period of [***] have the first right, at its discretion, but not the obligation, to institute initiate, direct and prosecute settle any infringement action or proceeding under LICENSED PATENTS with respect validity defense relating to such infringement, by counsel infringement of [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. its choice, or to control the defense of any declaratory judgment action arising from such infringement or from the misappropriation or misuse of LICENSED KNOW-HOWLicensed Patents (“Litigation”), at its own expense and by counsel of its own choice, and ISF1 shall have the right, at its own expense, to be represented in the name any such action by counsel of both Partiesits own choice. LICENSEE shall not otherwise settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of LICENSOR. LICENSEE shall keep LICENSOR advised of the progress of such proceedings. (iii) In the event that a Third-Party is infringing any LICENSED PATENTS with respect to a PRODUCT in the Field of Use and LICENSEE IfISF1 does not elect to institute an actionbe represented in such Litigation, LICENSORLicensee shall reimburse ISF1 for all reasonable and customary costs and expenses incurred by ISF1 in cooperating with any reasonable requests made by Licensee including being joined to the Litigation proceeding. In all other cases of infringement of the Licensed Patents, upon notice to LICENSEE, ISF1 shall have the first right, at its discretion, but not the obligation, to institute initiate, direct and prosecute settle any Litigation, provided that any settlement agreement granting rights under the Licensed Patents within the FOU requires Licensee’s prior written consent (not to be unreasonably withheld, delayed or conditioned by Licensee), and, to the extent such infringement is in the FOU, Licensee shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. All Litigation by either party under this Section 7.5 shall be subject to the following: (a) The party having the first right to initiate, direct and settle any Litigation with respect to infringement of the Licensed Patents under this Section 7.5 (the “First Right Party”) will provide the other party with written notice as to whether or proceeding under LICENSED PATENTS not it intends to initiate such Litigation (“Initiation Notice”) within ninety (90) days following Notice of Infringement, and, if ISF1 is the First Right Party, that Initiation Notice will include ISF1’s good faith estimate of the expense of such Litigation. (b) If Licensee is the First Right Party with respect to any infringement of the Licensed Patents, and Licensee either notifies ISF1 within such 90-day period that Licensee does not intend to initiate Litigation with respect to such infringement, by counsel of its choiceor Licensee fails to provide any Initiation Notice to ISF1 within such 90-day period, or to control then ISF1 shall have the defense of any declaratory judgment action arising from such infringement or from the misappropriation or misuse of LICENSED KNOW-HOWright, at its own expense discretion, but not the obligation, to initiate, direct and in settle Litigation with respect to such infringement at ISP1’s expense, provided that any settlement agreement granting rights under the name of both Parties. LICENSOR shall Licensed Patents within the FOU requires Licensee’s prior written consent (not settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the prior approval of LICENSEE, which shall not to be unreasonably withheld, delayed or conditioned by Licensee), and Licensee shall not share in any recovery from such Litigation. (iv) With respect to any action to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW, the Parties shall cooperate fully and shall provide each other with any information and assistance that either Party may reasonably request. In particular, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates, Sublicensees and LICENSEE to execute all such documents, if required. In the event that either Party is unable to initiate or prosecute an action solely in its own name, the other Party shall then join such action voluntarily. Each Party shall keep the other informed of the development of any action or proceeding including, to the extent permissible by law, the status of any settlement negotiations and the terms of any offer related thereto. (v) Any recovery obtained by either or both Parties in connection with or as a result of any action or proceeding contemplated by this Section 8.3, whether by settlement or otherwise, shall be allocated in order as follows: (a) The Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action (provided that if LICENSEE was the initiating Party and that the action proceeds were not sufficient for LICENSEE to recoup all its costs and expenses, then LICENSEE shall be allowed to deduct the [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. balance of its unrecovered costs and expenses from royalties payable to LICENSOR under Article 4 hereof); (b) The other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (c) The amounts of If (A) ISF1 is the First Right Party with respect to any recovery remaining shall then be allocated between the Parties with LICENSEE receiving all amounts in respect of damages in the Field of Use and LICENSOR receiving all amounts in respect of damages out infringement of the Field Licensed Patents, (B) the infringing activity is both within and outside of Usethe FOU, and (C) ISF1’s Initiation Notice specifies that ISF1 intends to initiate Litigation, then, except that any amounts recovered as set forth in connection with infringement actions relating to jointly-owned patents Section 7.5(d), such expenses shall be equally shared equitably allocated among such fields of use outside of the FOU and the FOU, by reasonable agreement between ISF1, all Exclusive Licensees and Licensee (“Expense Allocation”). If ISF1, any Exclusive Licensee and Licensee are unable to reach agreement concerning the Parties. Expense Allocation within thirty (vi30) LICENSOR days of the Initiation Notice, ISF1 shall inform LICENSEE reasonably and in good faith allocate such expenses equitably taking into equal account the reasonable interests of any certification regarding any LICENSED PATENTS it has received pursuant Licensee, each Exclusive Licensee and ISF1, provided that in no event shall Licensee’s Expense Allocation exceed 75% without the express written consent of Licensee. If Licensee agrees in writing to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Sections355(b)(2)(A)(ivpay its share of the expenses as allocated in this Section 7.5(c) or within forty (j)(2)(A)(vii)(lV40) days of the Initiation Notice, ISF1 will permit Licensee to defer reimbursement for the Licensee’s allocation of expenses. Subject to Section 7.5(f), in no event may such deferment be later than sixty (60) days after the final adjudication, entry of a settlement agreement or any similar provision in other countriesdismissal of the Litigation. In addition, and shall provide LICENSEE with a copy if the actual expenses of such certification within Litigation exceed [***] of receiptISF1’s good faith estimate of such expenses as set forth in its Initiation Notice, Licensee shall not be obligated to pay more than its Expense Allocation on [***] of ISF1’s good faith estimate. (d) IfISF1 is the First Right Party and Licensee gives notice to ISF1 within forty (40) days of the Initiation Notice that Licensee declines to fund Licensee’s allocated share of expenses of the Litigation, then (i) Licensee will not be obligated to pay the expenses of such Litigation, and (ii) Licensee shall not share in any recovery. (e) If ISF1 is the First Right Party, ISF1 will carry out its obligations under the preceding portions of this Section 7.5 in an efficient and cost-effective manner. Both Parties Licensee will, without any further compensation but with its reasonable out-of-pocket expenses reimbursed (except as set forth in Section 7.5(f)), cooperate fully with any and all reasonable requests by ISF1 relating to any such Litigation including being joined in any such Litigation proceeding. If ISF1 elects not to initiate, or after initiation elects not to continue, Litigation proceedings in respect of an allegation of infringement or to conduct a defense in respect of a Licensed Patent’s validity or enforceability, ISF1 will, within a reasonable period of time following its decision, inform Licensee of its election. Thereafter, if Licensee elects to have the right, at its own expense to initiate, conduct or settle such action or conduct such defense, it shall inform ISF1 of the same by written notice provided, however, that Licensee shall not have such rights with respect unless and until consented to the initiation by ISF1 and prosecution of any legal action all other Exclusive Licensees, if any, in writing. (f) Any money recovered by Licensee as a result of such certification any Litigation under this Section 7.5 with respect to which it is the First Right Party, or with respect to which ISF1 was the First Right Party but elected not to initiate or continue Litigation, will be distributed first to reimburse Licensee’s and ISF1’s direct, reasonable, documented expenses actually incurred (and not previously reimbursed), and then any recovery obtained remaining balance shall be allocated to Licensee and be treated as Net Revenue for purposes of Section 4.1a in the quarter in which it is received. Any money recovered by ISF1 as a result of any Litigation under this Section 7.5 which Licensee helps to fund will be distributed first to reimburse ISF1’s, Licensee’s and any other Exclusive Licensee’s direct, reasonable, documented expenses actually incurred (although ISF1 will not receive reimbursement under this sentence of any such legal action expenses already reimbursed to ISF1 by Licensee pursuant to this Section 7.5), and then any remaining balance shall be allocated pro rata to ISF1, Licensee and any other participating Exclusive Licensee in the same proportion as defined in paragraphs (a) such entity’s contribution to (c) the aggregate expenses of bringing and conducting the proceeding and settlement under this Section 7.67.5.

Enforcement and Defense. (i) Each If either Party shall give the other notice learns of either (a) any infringement of LICENSED PATENTSNEUROGEN Patents, MSD Patents or (b) any misappropriation or misuse Joint Patents, such Party shall promptly notify the other Party of LICENSED KNOW-HOW that has come to its attentionsuch infringement. The Parties MSD and NEUROGEN thereafter shall thereafter consult and cooperate fully to determine a course of action, action including but not limited to the commencement of legal action by either or both Parties of MSD and NEUROGEN, to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW. (ii) In the event that LICENSED PATENTS are infringed by any Third-Party with respect to a PRODUCT in the Field of Usesuch Patents. However, LICENSEENEUROGEN, upon notice to LICENSORMSD, shall for a period of [***] have the first right, but not the obligation, right to institute initiate and prosecute any such legal action or proceeding under LICENSED PATENTS with respect to such infringementat its own expense and in the name of NEUROGEN (and, by counsel of [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. its choiceif appropriate, MSD), or to control the defense of any declaratory judgment action arising from relating to NEUROGEN Patents other than as such NEUROGEN Patents include NEUROGEN’s interest in Joint Patents. NEUROGEN promptly shall inform MSD if it elects not to exercise such first right, and if such infringement or from the misappropriation or misuse of LICENSED KNOW-HOWmaterially adversely affects MSD’s efforts under this Agreement, at its own expense and in the name of both Parties. LICENSEE shall not otherwise settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of LICENSOR. LICENSEE shall keep LICENSOR advised of the progress of such proceedings. (iii) In the event that a Third-Party is infringing any LICENSED PATENTS with respect to a PRODUCT in the Field of Use and LICENSEE does not elect to institute an action, LICENSOR, upon notice to LICENSEE, MSD thereafter shall have the right, but not the obligation, right either to institute initiate and prosecute any such action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of its choice, or to control the defense of any such declaratory judgment action arising from such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense and in the name of both PartiesMSD and, if necessary, NEUROGEN. LICENSOR Each Party shall be entitled to be represented by counsel of its own choice. MSD shall have the first right to initiate and prosecute such legal actions for MSD Patents and Joint Patents at its own expense. If NEUROGEN elects not settleto initiate and prosecute an action as provided in Section 8.5(a), compromise and MSD elects to do so, the cost of any agreed upon course of action to terminate infringement of NEUROGEN Patents including the costs of any legal action commenced or take the defense of any action in such litigation which diminishdeclaratory judgment, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the prior approval of LICENSEE, which shall not be unreasonably withheld. (iv) With respect to borne by MSD exclusively. For any action to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW, the Parties shall cooperate fully and shall provide each other with any information and assistance that either Party may reasonably request. In particular, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates, Sublicensees and LICENSEE to execute all such documentsPatents, if required. In the event that either Party is unable to initiate or prosecute an such action solely in its own namename or if desired to obtain a more effective remedy, the other Party shall then will join such action voluntarilyvoluntarily and will execute all documents necessary to initiate litigation to prosecute and maintain such action. In connection with any such action, MSD and NEUROGEN will cooperate fully and will provide each other with any information or assistance that either reasonably requests. Each Party shall keep the other informed of the development of developments in any such action or proceeding proceeding, including, to the extent permissible by law, the status of any settlement negotiations consultation and the terms approval of any offer related thereto. (v) . Any recovery obtained by either or both Parties MSD and NEUROGEN in connection with or as a result of any action or proceeding contemplated by this Section 8.3Section, whether by settlement or otherwise, shall be allocated shared in order as follows: : (ai) The the Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action action; (provided that if LICENSEE was ii) the initiating Party and that the action proceeds were not sufficient for LICENSEE to recoup all its costs and expenses, then LICENSEE shall be allowed to deduct the [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. balance of its unrecovered costs and expenses from royalties payable to LICENSOR under Article 4 hereof); (b) The other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (c) The amounts of any recovery remaining shall then be allocated between the Parties with LICENSEE receiving all amounts in respect of damages in the Field of Use and LICENSOR receiving all amounts in respect of damages out of the Field of Use, except that any amounts recovered in connection with infringement actions relating to jointly-owned patents shall be equally shared between the Parties. (vi) LICENSOR shall inform LICENSEE of any certification regarding any LICENSED PATENTS it has received pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Sections355(b)(2)(A)(iv) or (j)(2)(A)(vii)(lV), or any similar provision in other countries, and shall provide LICENSEE with a copy of such certification within [***] of receipt. Both Parties rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in paragraphs (a) to (c) of this Section 7.6.

Enforcement and Defense. (ia) Each Party NEOGENESIS shall give the other MERCK notice of either (ai) any infringement of LICENSED PATENTSNEOGENESIS Patent Rights licensed to MERCK hereunder , or (bii) any misappropriation or misuse of LICENSED KNOWNEOGENESIS Know-HOW How, that has may come to its NEOGENESIS's attention. The Parties MERCK and NEOGENESIS 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 Parties MERCK and NEOGENESIS, to terminate any infringement of LICENSED PATENTS such NEOGENESIS Patent Rights or any misappropriation or misuse of LICENSED KNOWNEOGENESIS Know-HOW. (ii) In the event that LICENSED PATENTS are infringed by any Third-Party with respect to a PRODUCT in the Field of UseHow. However, LICENSEENEOGENESIS, upon notice to LICENSORMERCK, shall for a period of [***] have the first right, but not the obligation, right to institute initiate and prosecute any such legal action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel at its own expense and in the name of [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. its choiceNEOGENESIS and MERCK, or to control the defense of any declaratory judgment action arising from relating to such infringement NEOGENESIS Patent Rights or from the misappropriation or misuse of LICENSED KNOWNEOGENESIS Know-HOW, at its own expense How. NEOGENESIS shall promptly inform MERCK if it elects not to exercise such first right and in the name of both Parties. LICENSEE MERCK shall not otherwise settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of LICENSOR. LICENSEE shall keep LICENSOR advised of the progress of such proceedings. (iii) In the event that a Third-Party is infringing any LICENSED PATENTS with respect to a PRODUCT in the Field of Use and LICENSEE does not elect to institute an action, LICENSOR, upon notice to LICENSEE, shall thereafter have the right, but not the obligation, right to institute either initiate and prosecute any such action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of its choice, or to control the defense of any such declaratory judgment action arising from in the name of MERCK and, if necessary, NEOGENESIS. (b) In the event that NEOGENESIS elects not to initiate and prosecute an action as provided in paragraph (a), and MERCK elects to do so, the costs of any agreed-upon course of action to terminate infringement of such infringement NEOGENESIS Patent Rights or from the misappropriation or misuse of LICENSED KNOWNEOGENESIS Know-HOWHow, at its own expense including the costs of any legal action commenced or the defense of any declaratory judgment, shall be shared equally by NEOGENESIS and in the name of both Parties. LICENSOR shall not settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the prior approval of LICENSEE, which shall not be unreasonably withheldMERCK. (ivc) With respect to For any action to terminate any infringement of LICENSED PATENTS NEOGENESIS Patent Rights or any misappropriation or misuse of LICENSED KNOWNEOGENESIS Know-HOWHow, the Parties shall cooperate fully and shall provide each other with any information and assistance that either Party may reasonably request. In particular, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates, Sublicensees and LICENSEE to execute all such documents, if required. In in the event that either Party MERCK is unable to initiate or prosecute an such action solely in its own name, the other Party shall then NEOGENESIS will join such action voluntarilyvoluntarily and will execute and cause its Affiliates to execute all documents necessary for MERCK to initiate litigation to prosecute and maintain such action. In connection with any action, MERCK and NEOGENESIS will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each Party party shall keep the other informed of the development of developments in any action or proceeding proceeding, including, to the extent permissible by law, the status * = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. of any settlement negotiations and the terms of any offer related thereto. (vd) Any recovery obtained by either or both Parties MERCK and NEOGENESIS in connection with or as a result of any action or proceeding contemplated by this Section 8.37.6, whether by settlement or otherwise, shall be allocated shared in order as follows: (a) The Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action (provided that if LICENSEE was the initiating Party and that the action proceeds were not sufficient for LICENSEE to recoup all its costs and expenses, then LICENSEE shall be allowed to deduct the : [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. balance of its unrecovered costs and expenses from royalties payable to LICENSOR under Article 4 hereof); (b) The other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (c) The amounts of any recovery remaining shall then be allocated between the Parties with LICENSEE receiving all amounts in respect of damages in the Field of Use and LICENSOR receiving all amounts in respect of damages out of the Field of Use, except that any amounts recovered in connection with infringement actions relating to jointly-owned patents shall be equally shared between the Parties. (vi) LICENSOR shall inform LICENSEE of any certification regarding any LICENSED PATENTS it has received pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Sections355(b)(2)(A)(iv) or (j)(2)(A)(vii)(lV), or any similar provision in other countries, and shall provide LICENSEE with a copy of such certification within [***] of receipt. Both Parties rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in paragraphs (a) to (c) of this Section 7.6.]

Enforcement and Defense. (ia) Each Party NITROMED shall give the other MERCK notice of either (ai) any infringement of LICENSED PATENTSPatent Rights, or (bii) any misappropriation or misuse of LICENSED KNOWNITROMED Know-HOW How; or (iii) infringement, misappropriation or misuse of the Research Information and Inventions, that has may come to its NITROMED's attention. The Parties MERCK and NITROMED 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 Parties MERCK and NITROMED, to terminate any infringement of LICENSED PATENTS Patent Rights, Research Information and Inventions or any misappropriation or misuse of LICENSED KNOWNITROMED Know-HOW. (ii) In the event that LICENSED PATENTS are infringed by any Third-Party with respect to a PRODUCT in the Field of UseHow. However, LICENSEENITROMED, upon notice to LICENSORMERCK, shall for a period of [***] have the first right, but not the obligation, right to institute initiate and prosecute any such legal action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel (other than for the MERCK Information and Inventions) at its own expense and in the name of [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. its choiceNITROMED and MERCK, or to control the defense of any declaratory judgment action arising from relating to Patent Rights, Research Information and Inventions or NITROMED Know-How. NITROMED shall promptly inform MERCK if it elects not to exercise such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense first right and in the name of both Parties. LICENSEE MERCK shall not otherwise settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of LICENSOR. LICENSEE shall keep LICENSOR advised of the progress of such proceedings. (iii) In the event that a Third-Party is infringing any LICENSED PATENTS with respect to a PRODUCT in the Field of Use and LICENSEE does not elect to institute an action, LICENSOR, upon notice to LICENSEE, shall thereafter have the right, but not the obligation, right to institute either initiate and prosecute any such action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of its choice, or to control the defense of any such declaratory judgment action arising from such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense and in the name of both Parties. LICENSOR MERCK and, if necessary, NITROMED and the Parties shall not settle, compromise share the expense of such suit equally; provided that MERCK shall pay all costs and shall recoup NITROMED's [**]percent ([**]%) share as a set-off against royalties or take milestones until NITROMED's share has been fully paid; provided that the royalty payment to NITROMED in any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the prior approval of LICENSEE, which Calendar Quarter shall not be unreasonably withheldreduced by more than [**] percent ([**]%) of the monies otherwise owed to NITROMED; and any amounts not able to be reduced due to the immediately foregoing limitation shall be carried forward to future Calendar Quarters for crediting against future royalties in such country. Each Party shall have the right to be represented by counsel of its own choice. (ivb) With respect to For any action to terminate any infringement of LICENSED PATENTS Patent Rights or any misappropriation or misuse of LICENSED KNOWNITROMED Know-HOWHow, the Parties shall cooperate fully and shall provide each other with any information and assistance that either Party may reasonably request. In particular, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates, Sublicensees and LICENSEE to execute all such documents, if required. In in the event that either Party MERCK is unable to initiate or prosecute an such action solely in its own name, NITROMED will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for MERCK to initiate litigation to prosecute and maintain such action. (c) Prior to commencing any action pursuant to subsections (a) or (b) above, each Party shall consult with the other Party and shall then join consider the views of the other Party regarding the advisability of the proposed action. In connection with any action, MERCK and NITROMED will cooperate fully and will provide each other with any information or assistance that either may reasonably request any such action voluntarilyaction. Each Party MERCK shall keep the other NITROMED informed of the development of developments in any action or proceeding includingproceeding, to including the extent permissible by law, the status consultation and approval of any settlement negotiations and the terms of any offer related thereto. Neither Party shall enter into any settlement, consent judgment, or other voluntary final disposition without the prior written consent of the other Party. (vd) Any recovery obtained by either or both Parties MERCK and NITROMED in connection with or as a result of any action or proceeding contemplated by this Section 8.37.3, whether by settlement or otherwise, shall be allocated shared in order as follows: (ai) The the Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action (provided that if LICENSEE was the initiating Party and that the action proceeds were not sufficient for LICENSEE to recoup all its costs and expenses, then LICENSEE shall be allowed to deduct the [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. balance of its unrecovered costs and expenses from royalties payable to LICENSOR under Article 4 hereof)action; (bii) The the other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and; (ciii) The amounts the amount of any recovery remaining from ordinary damages shall then be allocated between the Parties with LICENSEE receiving all amounts in respect such that MERCK shall receive an amount equal to its lost profits or a reasonable royalty on the infringing sales, or whichever measure of damages in the Field of Use court shall have applied, and LICENSOR receiving all amounts in respect of damages out that NITROMED shall receive a reasonable approximation of the Field royalties and other amounts that MERCK would have paid to NITROMED if MERCK had sold the infringing products rather than the infringer, and on a pro rata basis taking into consideration the relative economic losses suffered by each Party; and (iv) the amount of Use, except that any amounts recovered in connection with infringement actions relating to jointly-owned patents recovery remaining from special or punitive damages shall be shared equally shared between by the PartiesParties in any such award. (vie) LICENSOR NITROMED shall inform LICENSEE MERCK of any certification regarding any LICENSED PATENTS Patent Rights it has received pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Sections355(b)(2)(A)(iveither 21 U.S.C. ss.ss.355(b)(2)(A)(iv) or (j)(2)(A)(vii)(lV), j)(2)(A)(vii)(IV) or its successor provisions or any similar provision provisions in a country in the Territory other countries, than the United States and shall provide LICENSEE MERCK with a copy of such certification within [***] five (5) days of receipt. Both Parties NITROMED's and MERCK's rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in paragraphs Sections 7.3(a)-(d) hereof; provided, however, NITROMED shall exercise its first right to initiate and prosecute any action and shall inform MERCK of such decision within ten (a10) days of receipt of the certification, after which time MERCK shall have the right to initiate and prosecute such action. (cf) In the event that a Third Party brings an action against NITROMED or MERCK alleging invalidity, unenforceability, or non-infringement of this Section 7.6the Patent Rights, the Parties shall cooperate as defined above and shall mutually agree upon an appropriate course of action.

Enforcement and Defense. (i) Each Party shall give the other notice of either (a) any infringement of LICENSED OPTIONED PATENTS, or (b) any misappropriation or misuse of LICENSED OPTIONED KNOW-HOW that has come to its attention. The Parties 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 Parties to terminate any infringement of LICENSED OPTIONED PATENTS or any misappropriation or misuse of LICENSED OPTIONED KNOW-HOW. (ii) In the event that LICENSED OPTIONED PATENTS are infringed by any Third-Third- Party with respect to a PRODUCT in the Field of Use, LICENSEECISTRON, upon notice to LICENSORPMC, shall for a period of [***] have the first right, but not the obligation, to institute and prosecute any action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. its choice, or to control the defense of any declaratory judgment action arising from such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense and in the name of both Parties. LICENSEE shall not otherwise settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of LICENSOR. LICENSEE shall keep LICENSOR advised of the progress of such proceedings. (iii) In the event that a Third-Party is infringing any LICENSED PATENTS with respect to a PRODUCT in the Field of Use and LICENSEE does not elect to institute an action, LICENSOR, upon notice to LICENSEE, shall have the right, but not the obligation, to institute and prosecute any action or proceeding under LICENSED OPTIONED PATENTS with respect to such infringement, by counsel of its choice, or to control the defense of any declaratory judgment action arising from such infringement or from the misappropriation or misuse of LICENSED OPTIONED KNOW-HOW, at its own expense and in the name of both Parties. LICENSOR CISTRON shall not settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED OPTIONED PATENTS without the express permission of PMC. CISTRON shall keep PMC advised of the progress of such proceedings. (iii) In the event that a Third-Party is infringing any OPTIONED PATENTS with respect to a PRODUCT in the Field of Use and CISTRON does not elect to institute an action, PMC, upon notice to CISTRON, shall have the right, but not the obligation, to institute and prosecute any action or proceeding under OPTIONED PATENTS with respect to such infringement, by counsel of its choice, or to control the defense of any declaratory judgment action arising from such infringement or from the misappropriation or misuse of OPTIONED KNOW-HOW, at its own expense and in the name of both Parties. PMC shall not settle, compromise or take any action in such litigation which diminish, limit or -10- 11 inhibit the scope, validity or enforceability of OPTIONED PATENTS without the prior approval of LICENSEECISTRON, which shall not be unreasonably withheld. (iv) With respect to any action to terminate any infringement of LICENSED OPTIONED PATENTS or any misappropriation or misuse of LICENSED OPTIONED KNOW-HOW, the Parties shall cooperate fully and shall provide each other with any information and assistance that either Party may reasonably request. In particular, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates, Affiliates and Sublicensees and LICENSEE to execute all such documents, if required. In the event that either Party is unable to initiate or prosecute an action solely in its own name, the other Party shall then join such action voluntarily. Each Party shall keep the other informed of the development of any action or proceeding including, to the extent permissible by law, the status of any settlement negotiations and the terms of any offer related thereto. (v) Any recovery obtained by either or both Parties in connection with or as a result of any action or proceeding contemplated by this Section 8.33.8, whether by settlement or otherwise, shall be allocated in order as follows: (a) The Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action (provided that if LICENSEE PMC was the initiating Party and that the action proceeds were not sufficient for LICENSEE PMC to recoup all its costs and expenses, then LICENSEE PMC shall be allowed to deduct the [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. balance of its unrecovered costs and expenses from royalties payable to LICENSOR CISTRON under Article 4 3 hereof)) ; (b) The other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (c) The amounts of any recovery remaining shall then be allocated between the Parties with LICENSEE PMC receiving all amounts in respect of damages in the Field of Use and LICENSOR CISTRON receiving all amounts in respect of damages out of the Field of Use, except that any amounts recovered in connection with infringement actions relating to jointly-owned patents shall be equally shared between the Parties. (vi) LICENSOR CISTRON shall inform LICENSEE PMC of any certification regarding any LICENSED OPTIONED PATENTS it has received pursuant to ▇▇ 21 ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Sections355(b)(2)(A)(iv355(b)(2)(A)(iv) or (j)(2)(A)(vii)(lVj)(2)(A)(vii)(IV), or any similar provision in other countries, and shall provide LICENSEE PMC with a copy of such certification within [***] five (5) days of receipt. Both Parties rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in paragraphs (a) to (c) of this Section 7.63.8.4(v).

Enforcement and Defense. (A) Idera shall give Merck prompt written notice of (i) Each Party shall give the other notice of either (a) any infringement of LICENSED PATENTSIdera Background Patent Right in any of the Fields, (ii) any infringement of Idera Program Patent Rights, or (biii) any misappropriation or misuse of LICENSED KNOWIdera Know-HOW that has come to its attention. The Parties How. (B) In the case of infringement of Idera Program Patent Rights or misappropriation or misuse of Idera Know-How, Merck and Idera shall thereafter consult and cooperate fully to determine a course of action, including but not limited to to, the commencement of legal action by either Merck or Idera or both Parties Parties, to terminate any infringement of LICENSED PATENTS Idera Program Patent Rights or any misappropriation or misuse of LICENSED KNOWIdera Know-HOW. (ii) In the event that LICENSED PATENTS are infringed by any Third-Party with respect to a PRODUCT in the Field of UseHow. However, LICENSEEIdera, upon notice to LICENSORMerck, shall for a period of [***] have the first right, but not the obligation, right (i) to institute initiate and prosecute such legal action at its own expense and subject to Merck's written consent, initiate and prosecute such legal action in the name of Idera and Merck and (ii) to control the defense of any declaratory judgment action relating to Idera Program Patent Rights or Idera Know-How. In either such case, Idera shall promptly inform Merck if it elects not to exercise such first right and Merck shall thereafter have the right to either initiate and prosecute such action or proceeding under LICENSED PATENTS with respect to control the defense of such infringementdeclaratory judgment action in the name of Merck and subject to Idera's written consent, in the name of Merck and Idera. For any case that Merck either initiates or prosecutes, Merck shall reasonably consider the rights and interests of Idera. Each Party shall have the right to be represented by counsel of [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSIONits own choice. (C) In the case of infringement of Idera Background Patent Rights outside the Fields, Idera shall in its sole discretion, determine a course of action, including but not limited to, the commencement of legal action, to terminate any such infringement of Idera Background Patent Rights. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. Idera shall have the right to initiate and prosecute such legal action at its choiceown expense and in the name of Idera, or to control the defense of any declaratory judgment action arising from relating to Idera Background Patent Rights. For any case that Idera either initiates, prosecutes or participates in, Idera shall reasonably consider the rights and interests of Merck and regularly confer with Merck regarding the status of such litigation. To the extent that Idera's attorney-client privilege is not breached and to the extent permissible under Idera's express obligations under Idera's agreements with Third Parties, Idera shall also provide Merck with the opportunity to review and comment on filings and the conduct of such litigation. (D) In the case of infringement of Idera Background Patent Right in a Selected Collaboration Compound within any of the Fields, Merck and Idera shall consult and cooperate fully to determine a course of action, including but not limited to, the commencement of legal action by either Merck or Idera or both Parties, to terminate any such infringement or from of Idera Background Patent Rights. However, Idera, upon written notice to Merck, shall have the misappropriation or misuse of LICENSED KNOW-HOW, first right to initiate and prosecute such legal action at its own expense and subject to Merck's written consent, in the name of both Parties. LICENSEE shall not otherwise settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of LICENSOR. LICENSEE shall keep LICENSOR advised of the progress of such proceedings. (iii) In the event that a Third-Party is infringing any LICENSED PATENTS with respect to a PRODUCT in the Field of Use Idera and LICENSEE does not elect to institute an action, LICENSOR, upon notice to LICENSEE, shall have the right, but not the obligation, to institute and prosecute any action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of its choiceMerck, or to control the defense of any declaratory judgment action arising from relating to Idera Program Patent Rights or Idera Know-How. In such case, Idera shall promptly inform Merck if it elects not to exercise such first right and Merck shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of Merck and, subject to Idera's written consent, in the name of Merck and Idera. For any action that Merck either initiates or prosecutes, Merck shall reasonably consider the rights and interests of Idera. Each Party shall have the right to be represented by counsel of its own choice. (E) In the event that Idera elects not to initiate and prosecute an action as provided in Sections 7.4 (b) and (d) and Merck elects to do so, the costs of any agreed-upon course of action to terminate infringement of Idera Patent Rights or from the misappropriation or misuse of LICENSED KNOWIdera Know-HOWHow, at its own expense and in including without limitation, the name costs of both Parties. LICENSOR any legal action commenced or the defense of any declaratory judgment, shall not settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the prior approval of LICENSEE, which shall not be unreasonably withheldpaid by Merck. (ivF) With respect to For any action to terminate any infringement of LICENSED PATENTS Idera Patent Rights or any misappropriation or misuse of LICENSED KNOWIdera Know-HOWHow, in the Parties shall event that Merck is unable to initiate or prosecute such action solely in its own name, Idera will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Merck to initiate litigation and to prosecute and maintain such action. In connection with any action, Merck and Idera will cooperate fully and shall will provide each other with any information and or assistance that either Party may reasonably request. In particular, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates, Sublicensees and LICENSEE to execute all such documents, if required. In the event that either Party is unable to initiate or prosecute an action solely in its own name, the other Party shall then join such action voluntarily. Each Party shall keep the other informed of the development of developments in any action or proceeding proceeding, including, without limitation and to the extent permissible by law, consultation on and approval of any settlement, the status of any settlement negotiations and the terms of any offer related thereto. (vG) Any recovery obtained by either Merck or Idera or both Parties in connection with or as a result of any action for (i) infringement of Idera Program Patent Rights, (ii) misappropriation or proceeding contemplated by this Section 8.3misuse of Idera Know-How or (iii) infringement of Idera Background Patent Rights in any of the Fields, whether by settlement or otherwise, shall be allocated shared in the following order as followsof priority: (aI) The Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action (provided that if LICENSEE was the initiating Party and that the action proceeds were not sufficient for LICENSEE to recoup all its costs and expenses, then LICENSEE shall be allowed to deduct the [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. balance of its unrecovered costs and expenses from royalties payable to LICENSOR under Article 4 hereof)*]; (bII) The other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action[**]; and (cIII) The amounts of any recovery remaining shall then be allocated between the Parties with LICENSEE receiving all amounts in respect of damages in the Field of Use and LICENSOR receiving all amounts in respect of damages out of the Field of Use, except that any amounts recovered in connection with infringement actions relating to jointly-owned patents shall be equally shared between the Parties. (vi) LICENSOR shall inform LICENSEE of any certification regarding any LICENSED PATENTS it has received pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Sections355(b)(2)(A)(iv) or (j)(2)(A)(vii)(lV), or any similar provision in other countries, and shall provide LICENSEE with a copy of such certification within [***] of receipt. Both Parties rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in paragraphs (a) to (c) of this Section 7.6].

Enforcement and Defense. (a) If either Party becomes aware of any Third Party activity, including any Development activity (whether or not an exemption from infringement liability for such Development activity is available under applicable Law), that infringes (or that is directed to the Development of a product that would infringe) a Clearside Patent Right or Arctic Vision Patent Certain information has been excluded from this agreement (indicated by “[***]”) because such information (i) Each is not material and (ii) would be competitively harmful if publicly disclosed. Right, then the Party becoming aware of such activity shall give prompt written notice to the other notice of either Party regarding such alleged infringement or misappropriation (a) any infringement of LICENSED PATENTScollectively, or “Infringement Activity”). (b) any misappropriation or misuse of LICENSED KNOW-HOW that has come to its attention. The Parties 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 Parties to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW. (ii) In the event that LICENSED PATENTS are infringed by any Third-Party with respect to a PRODUCT in the Field of Use, LICENSEE, upon notice to LICENSOR, shall for a period of [***] shall have the first right, but not the obligation, to institute control and prosecute attempt to resolve any action Infringement Activity related to the product-specific Clearside Patent Rights in the Territory by commercially appropriate steps [***], including the filing of an infringement or proceeding under LICENSED PATENTS with respect to such infringement, by misappropriation suit using counsel of its own choice. [***] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSIONshall have the first right, but not the obligation, to control and attempt to resolve any Infringement Activity related to the other Clearside Patent Rights in the Territory by commercially appropriate steps [***], including the filing of an infringement or misappropriation suit using counsel of its own choice. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS[***] shall (i) keep [***] reasonably informed regarding such infringement or misappropriation suit (including by providing [***] with drafts of each filing within a reasonable period before the deadline for such filing and promptly providing [***] with copies of all final filings and correspondence), (ii) consult with [***] on such infringement or misappropriation suit, and (iii) consider in good faith all comments from [***] regarding such infringement or misappropriation suit and incorporate all reasonable comments or suggested changes proposed by [***], except any comments or suggested changes that would reasonably be expected to have a negative impact on [***]. its choice[***] shall be [***] in connection with such infringement or misappropriation suit. If [***] fails to resolve such Infringement Activity in the Territory, or to control the defense of any declaratory judgment action arising from such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense and in the name of both Parties. LICENSEE shall not otherwise settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of LICENSOR. LICENSEE shall keep LICENSOR advised of the progress of such proceedings. (iii) In the event that initiate a Third-Party is infringing any LICENSED PATENTS suit with respect thereto by the date that is [***] before any deadline for taking action to a PRODUCT in avoid any loss of material enforcement rights or remedies, then, [***] may, subject to the Field of Use and LICENSEE does not elect to institute an actionfollowing sentence, LICENSOR, upon notice to LICENSEE, shall have the right, but not the obligation, to institute and prosecute any action attempt to resolve such Infringement Activity by commercially appropriate steps [***], including the filing of an infringement or proceeding under LICENSED PATENTS with respect to such infringement, by misappropriation suit using counsel of its own choice, or . In the circumstance where [***] has the right to control the defense of any declaratory judgment action arising from resolve such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense and in the name of both Parties. LICENSOR shall not settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the prior approval of LICENSEE, which shall not be unreasonably withheldInfringement Activity: [***]. (ivc) With respect to any action to terminate any infringement Any amounts recovered by a Party as a result of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW, the Parties shall cooperate fully and shall provide each other with any information and assistance that either Party may reasonably request. In particular, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates, Sublicensees and LICENSEE to execute all such documents, if required. In the event that either Party is unable to initiate or prosecute an action solely in its own namepursuant to Section 9.03(b), whether by settlement or judgment, shall be [***]. (d) In any event, at the request and expense of the Party bringing an infringement or misappropriation action under Section 9.03(b), the other Party shall then join provide reasonable assistance in any such action voluntarily(including entering into a common interest agreement if reasonably deemed necessary by any Party) and be joined as a party to the suit if necessary for the initiating or defending Party to bring or continue such suit. Neither Party may settle any action or proceeding brought under Section 9.03(b), or knowingly take any other action in the course thereof, in a manner that materially adversely affects the other Party’s interest in any Clearside Patent Rights or Arctic Vision Patent Rights without the written consent of such other Party. Each Party shall keep always have the right to be represented by counsel of its own selection and its own expense in any suit or other action instituted by the other informed of the development of any action or proceeding including, to the extent permissible by law, the status of any settlement negotiations and the terms of any offer related thereto. (v) Any recovery obtained by either or both Parties in connection with or as a result of any action or proceeding contemplated by this Section 8.3, whether by settlement or otherwise, shall be allocated in order as follows: (a) The Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action (provided that if LICENSEE was the initiating Party and that the action proceeds were not sufficient for LICENSEE to recoup all its costs and expenses, then LICENSEE shall be allowed to deduct the [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. balance of its unrecovered costs and expenses from royalties payable to LICENSOR under Article 4 hereof); (b) The other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (c) The amounts of any recovery remaining shall then be allocated between the Parties with LICENSEE receiving all amounts in respect of damages in the Field of Use and LICENSOR receiving all amounts in respect of damages out of the Field of Use, except that any amounts recovered in connection with infringement actions relating to jointly-owned patents shall be equally shared between the Parties. (vi) LICENSOR shall inform LICENSEE of any certification regarding any LICENSED PATENTS it has received pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Sections355(b)(2)(A)(iv) or (j)(2)(A)(vii)(lVSection 9.03(b), or any similar provision in other countries, and shall provide LICENSEE with a copy of such certification within [***] of receipt. Both Parties rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in paragraphs (a) to (c) of this Section 7.6.

Enforcement and Defense. (i) Each Party Following exercise by Merck of the [***] License Option or the [***] License Option, if at all, the following provisions shall apply with respect to any Know-How, Product-Specific Company Patent Rights, or Joint Patent Rights; or any Company Background IP or Research Program Patent Rights that claim Product or Product Candidate as a composition-of-matter or, on a country-by-country basis, a method of treatment of a human disease which has received Marketing Authorization by the appropriate Regulatory Authority in the country in the Territory corresponding to the exercised License Option: 7.3.1 The Parties shall give the notice to each other notice of either (ai) any infringement of LICENSED PATENTSProduct-Specific Company Patent Rights or Joint Patent Rights; or any Company Background IP or Research Program Patent Rights that claim Product or Product Candidate as a composition-of-matter or, on a country-by-country basis, a method of treatment of a human disease which has received Marketing Authorization by the appropriate Regulatory Authority in the country in the Territory (including filing of a Biosimilar Application filed under Section 351(k) of the Public Health Service Act for which Merck is a reference product sponsor), or (bii) any misappropriation or misuse of LICENSED KNOWCompany Know-HOW How, that has may come to its attention. The Parties Merck and Company 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 Parties Merck and Company, to terminate any infringement of LICENSED PATENTS Product-Specific Company Patent Rights or Joint Patent Rights; or any Company Background IP or Research Program Patent Rights that claim Product or Product Candidate as a composition-of-matter or, on a country-by-country basis, a method of treatment of a human disease which has received Marketing Authorization by the appropriate Regulatory Authority in the country in the Territory or any misappropriation or misuse of LICENSED KNOWCompany Know-HOW. (ii) In How. The final decision regarding the event that LICENSED PATENTS are infringed by any Third-Party with respect to a PRODUCT in the Field course of Useaction, LICENSEEhowever, will be Merck’s. Merck, upon notice to LICENSORCompany, shall for a period of [***] have the first right, but not the obligation, right to institute initiate and prosecute such legal action at its own expense and in the name of Merck and/or Company. Merck will have the right to control such legal action relating to Product-Specific Company Patent Rights, Company Know-How or Joint Patent Rights; or any action Company Background IP or proceeding Research Program Patent Rights that claim Product or Product Candidate as a composition-of-matter or, on a country-by-country basis, a method of treatment of a human disease which has received Marketing Authorization by the appropriate Regulatory Authority in the country in the Territory, including selection of any patents for listing under LICENSED PATENTS with respect to such infringement42 U.S.C. §262(l), by counsel of [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. its choice, or and to control the defense of any declaratory judgment action arising from such infringement relating to Product-Specific Company Patent Rights, Company Know-How or from Joint Patent Rights; or any Company Background IP or Research Program Patent Rights that claim Product or Product Candidate as a composition-of-matter or, on a country-by-country basis, a method of treatment of a human disease which has received Marketing Authorization by the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense and appropriate Regulatory Authority in the name of both Parties. LICENSEE shall not otherwise settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of LICENSOR. LICENSEE shall keep LICENSOR advised of the progress of such proceedings. (iii) In the event that a Third-Party is infringing any LICENSED PATENTS with respect to a PRODUCT country in the Field of Use and LICENSEE does not elect to institute an action, LICENSOR, upon notice to LICENSEE, Territory. Each Party shall have the right, but not the obligation, right to institute and prosecute any action or proceeding under LICENSED PATENTS with respect to such infringement, be represented by counsel of its own choice. 7.3.2 Merck shall promptly inform Company if it elects not to exercise its first right under Section 7.3.1 to initiate and prosecute legal action, and, if Merck consents, Company shall thereafter have the right to either initiate and prosecute such action or to control the defense of any such declaratory judgment action arising from such in the name of Company and, if necessary, Merck. If Company elects to do so, the costs of any agreed-upon course of action to terminate infringement of Product-Specific Company Patent Rights or from Joint Patent Rights; or any Company Background IP or Research Program Patent Rights that claim Product or Product Candidate as a composition-of-matter or, on a country-by-country basis, a method of treatment of a human disease which has received Marketing Authorization by the appropriate Regulatory Authority in the country in the Territory; or misappropriation or misuse of LICENSED KNOWCompany Know-HOWHow, at including without limitation the costs of any legal action commenced or the defense of any declaratory judgment, shall be paid by Company. Each Party shall have the right to be represented by counsel of its own expense and in the name of both Parties. LICENSOR shall not settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the prior approval of LICENSEE, which shall not be unreasonably withheldchoice. (iv) With respect to 7.3.3 For any action to terminate any infringement of LICENSED PATENTS Product-Specific Company Patent Rights or Joint Patent Rights; or any Company Background IP or Company Patent Rights that claim Product or Product Candidate as a composition-of-matter or, on a country-by-country basis, a method of treatment of a human disease which has received Marketing Authorization by the appropriate Regulatory Authority in the country in the Territory; or any misappropriation or misuse of LICENSED KNOWCompany Know-HOWHow, the Parties shall cooperate fully and shall provide each other with any information and assistance that either Party may reasonably request. In particular, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates, Sublicensees and LICENSEE to execute all such documents, if required. In in the event that either a Party is unable to initiate or prosecute an such action solely in its own name, the other Party shall then will join such action voluntarilyvoluntarily and will execute and cause its Affiliates to execute all lawful documents necessary for the Party to initiate litigation to prosecute and maintain such action under this Section 7.3. In connection with any action or potential action, Merck and Company will cooperate fully and will provide each other with any information or assistance that either may reasonably request, including cooperating with regard to any pre-litigation review of the Product-Specific Company Patent Rights and Joint Patent Rights; or any Company Background IP or Research Program Patent Rights that claim Product or Product Candidate as a composition-of-matter or, on a country-by-country basis, a method of treatment of a human disease which has received Marketing Authorization by the appropriate Regulatory Authority in the country in the Territory. Each Party shall keep the other informed of the development of developments in any action or proceeding. For any proceeding includingnot controlled by Merck, to the extent permissible by law, the status Company shall obtain prior approval from Merck of any settlement negotiations and the terms of any offer related theretoor settlement agreement, such approval not to be unreasonably withheld, delayed or conditioned. (v) 7.3.4 Any recovery obtained by either or both Parties Merck and Company in connection with or as a result of any action or proceeding contemplated by this Section 8.3Section, whether by settlement or otherwise, shall be allocated shared in order as follows: (a) The the Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action (provided that if LICENSEE was the initiating Party and that the action proceeds were not sufficient for LICENSEE to recoup all its costs and expenses, then LICENSEE shall be allowed to deduct the [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. balance of its unrecovered costs and expenses from royalties payable to LICENSOR under Article 4 hereof)action; (b) The the other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (c) The amounts the amount of any recovery remaining shall then be allocated between the Parties with LICENSEE receiving all amounts in respect of damages in on a pro rata basis taking into consideration the Field of Use and LICENSOR receiving all amounts in respect of damages out of the Field of Use, except that any amounts recovered in connection with infringement actions relating to jointly-owned patents shall be equally shared between the Partiesrelative economic losses suffered by each Party. (vi) LICENSOR shall inform LICENSEE of any certification regarding any LICENSED PATENTS it has received pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Sections355(b)(2)(A)(iv) or (j)(2)(A)(vii)(lV), or any similar provision in other countries, and shall provide LICENSEE with a copy of such certification within [***] of receipt. Both Parties rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in paragraphs (a) to (c) of this Section 7.6.

Enforcement and Defense. (i) Each Party shall give the other notice of either (a) any infringement of LICENSED PATENTS, or (b) any misappropriation or misuse of LICENSED KNOW-HOW that has come to its attention. The Parties 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 Parties to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW. (ii) In the event that LICENSED PATENTS are infringed by any Third-Third- Party with respect to a PRODUCT in the Field of Use, LICENSEECISTRON, upon notice to LICENSOR, shall for a period of [***] have the first right, but not the obligation, to institute and prosecute any action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. its choice, or to control the defense of any declaratory judgment action arising from such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense and in the name of both Parties. LICENSEE shall not otherwise settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of LICENSOR. LICENSEE shall keep LICENSOR advised of the progress of such proceedings. (iii) In the event that a Third-Party is infringing any LICENSED PATENTS with respect to a PRODUCT in the Field of Use and LICENSEE does not elect to institute an action, LICENSOR, upon notice to LICENSEEPMC, shall have the first right, but not the obligation, to institute and prosecute any action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of its choice, or to control the defense of any declaratory judgment action arising from such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense and in the name of both Parties. LICENSOR CISTRON shall not settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of PMC. CISTRON shall keep PMC advised of the progress of such proceedings. (iii) In the event that a Third-Party is infringing any LICENSED PATENTS with respect to a PRODUCT in the Field of Use and CISTRON does not elect to institute an action, PMC, upon notice to CISTRON, shall have the right, but not the obligation, to institute and prosecute any action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of its choice, or to control the defense of any declaratory judgment action arising from such infringement or from the misappropriat on or misuse of LICENSED KNOW-HOW, at its own expense and in the name of both Parties. PMC shall not settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the prior approval of LICENSEECISTRON, which shall not be unreasonably withheld. (iv) With respect to any action to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW, the Parties shall cooperate fully and shall provide each other with any information and assistance that either Party may reasonably request. In particular, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates, Affiliates and Sublicensees and LICENSEE to execute all such documents, if required. In the event that either Party is unable to initiate or prosecute an action solely in its own name, the other Party shall then join such action voluntarily. Each Party shall keep the other informed of the development of any action or proceeding including, to the extent permissible by law, the status of any settlement negotiations and the terms of any offer related thereto. (v) Any recovery obtained by either or both Parties in connection with or as a result of any action or proceeding contemplated by this Section 8.37.5, whether by settlement or otherwise, shall be allocated in order as followsfollows : (a) The Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action (provided that if LICENSEE was the initiating Party and that the action proceeds were not sufficient for LICENSEE to recoup all its costs and expenses, then LICENSEE shall be allowed to deduct the [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. balance of its unrecovered costs and expenses from royalties payable to LICENSOR under Article 4 hereof); (b) The other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (c) The amounts of any recovery remaining shall then be allocated between the Parties with LICENSEE receiving all amounts in respect of damages in the Field of Use and LICENSOR receiving all amounts in respect of damages out of the Field of Use, except that any amounts recovered in connection with infringement actions relating to jointly-owned patents shall be equally shared between the Parties. (vi) LICENSOR shall inform LICENSEE of any certification regarding any LICENSED PATENTS it has received pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Sections355(b)(2)(A)(iv) or (j)(2)(A)(vii)(lV), or any similar provision in other countries, and shall provide LICENSEE with a copy of such certification within [***] of receipt. Both Parties rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in paragraphs (a) to (c) of this Section 7.6.

Enforcement and Defense. (ia) Each Party For Funded Patent Rights, ZNOMICS shall give the other MERCK notice of either (ai) any infringement of LICENSED PATENTSFunded Patent Rights, or (bii) any misappropriation or misuse of LICENSED KNOWZNOMICS Know-HOW How, that has may come to its ZNOMICS's attention. The Parties MERCK and ZNOMICS shall thereafter consult and cooperate fully fUlly to determine a course of action, including but not limited to the commencement of legal action by either or both Parties MERCK and ZNOMICS. to terminate any infringement of LICENSED PATENTS Funded Patent Rights or any misappropriation or misuse of LICENSED KNOWZNOMICS Know-HOW. (ii) In the event that LICENSED PATENTS are infringed by any Third-Party with respect to a PRODUCT in the Field of UseHow. However, LICENSEE, ZNOMICS. upon notice to LICENSORMERCK, shall for a period of [***] have the first right, but not the obligation, right to institute initiate and prosecute any such legal action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel at its own expense and in the name of [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. its choiceZNOMICS and MERCK, or to control the defense of any declaratory judgment action arising from relating to Funded Patent Rights or ZNOMICS Know-How. ZNOMICS shall promptly inform MERCK if it elects not to exercise such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense first right and in the name of both Parties. LICENSEE MERCK shall not otherwise settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of LICENSOR. LICENSEE shall keep LICENSOR advised of the progress of such proceedings. (iii) In the event that a Third-Party is infringing any LICENSED PATENTS with respect to a PRODUCT in the Field of Use and LICENSEE does not elect to institute an action, LICENSOR, upon notice to LICENSEE, shall thereafter have the right, but not the obligation, right to institute either initiate and prosecute any such action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of its choice, or to control the defense of any such declaratory judgment action arising from such in the name of MERCK and, if necessary, ZNOMICS. Each Party shall have the right to be represented by counsel of its own choice. (b) In the event that ZNOMICS elects not to initiate and prosecute an action as provided in paragraph (a), and MERCK elects to do so, the costs of any agreed-upon course of action to terminate infringement of Funded Patent Rights or from the misappropriation or misuse of LICENSED KNOWZNOMICS Know-HOWHow, at its own expense including without limitation the costs of any legal * Certain portions of this exhibit have been omitted pursuant to a request for confidential treatment and in those portions have been filed separately with the name Securities and Exchange Commission. action commenced or the defense of both Parties. LICENSOR any declaratory judgment, shall not settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the prior approval of LICENSEE, which shall not be unreasonably withheldshared equally by ZNOMICS and MERCK. (ivc) With respect to For any action to terminate any infringement of LICENSED PATENTS Funded Patent Rights or any misappropriation or misuse of LICENSED KNOWZNOMICS Know-HOWHow, the Parties shall cooperate fully and shall provide each other with any information and assistance that either Party may reasonably request. In particular, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates, Sublicensees and LICENSEE to execute all such documents, if required. In in the event that either Party MERCK is unable to initiate or prosecute an such action solely in its own name, the other Party shall then ZNOMICS will join such action voluntarilyvoluntarily and will execute and cause its Affiliates to execute all documents necessary for MERCK to initiate litigation to prosecute and maintain such action. In connection with any action, MERCK and ZNOMICS will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each Party shall keep the other informed of the development of developments in any action or proceeding proceeding, including, to the extent permissible by law, consultation on and approval of any settlement, the status of any settlement negotiations and the terms of any offer related thereto. (vd) Any recovery obtained by either or both Parties MERCK and ZNOMICS in connection with or as a result of any action or proceeding contemplated by this Section 8.3Section, whether by settlement or otherwise, shall be allocated shared in order as follows: (ai) The the Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action (provided that if LICENSEE was the initiating Party and that the action proceeds were not sufficient for LICENSEE to recoup all its costs and expenses, then LICENSEE shall be allowed to deduct the [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. balance of its unrecovered costs and expenses from royalties payable to LICENSOR under Article 4 hereof)action; (bii) The the other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (ciii) The amounts the amount of any recovery remaining shall then be allocated between the Parties with LICENSEE receiving all amounts in respect of damages in on a pro rata basis taking into consideration the Field of Use and LICENSOR receiving all amounts in respect of damages out of the Field of Use, except that any amounts recovered in connection with infringement actions relating to jointly-owned patents shall be equally shared between the Partiesrelative economic losses suffered by each Party. (vie) LICENSOR ZNOMICS shall inform LICENSEE MERCK of any certification regarding any LICENSED PATENTS Patent Rights it has received pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Sections355(b)(2)(A)(iveither 21 U.S.C. §§355(b)(2)(A}(iv) or (j)(2)(A)(vii)(lV)U)(2)(A)(vii)(IV) or its successor provisions, or any similar provision provisions in a country in the Territory other countriesthan the United States, and shall provide LICENSEE MERCK with a copy of such certification within [***] five (5) days of receipt. Both Parties ZNOMICS's and MERCK's rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in paragraphs 7.4 (aa)-(d) hereof; provided, however, that ZNOMICS shall exercise its first right to initiate and prosecute any action and shall inform MERCK of such decision within ten (c10) days of this Section 7.6receipt of the certification, after which time MERCK shall have the right to initiate and prosecute such action. Regardless of which Party has the right to initiate and prosecute such action, both Partjes shall, as soon as practicable after receiving notice of such certification, convene and consult with each other regarding the appropriate course of conduct for such action. The non-initiating Party shall have the right to be kept fully informed and participate in decisions regarding the appropriate course of conduct for such action, and the right to join and participate in such action.

Enforcement and Defense. (i) Each Party shall give the other notice of either (a) Response to Alleged Infringement, Misappropriation or Misuse. If either party learns of any infringement of LICENSED PATENTSRoche Patents, Metabasis Patents or (b) any misappropriation or misuse of LICENSED KNOW-HOW that has come to its attention. The Parties shall thereafter consult and cooperate fully to determine a course of actionJoint Patents, including but not limited to the commencement of legal action by either or both Parties to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOWRoche Know-HOWHow, Metabasis Know-How or Joint Inventions, such party shall promptly notify the other party of such infringement, misappropriation or misuse. (i) Roche shall have the sole right to initiate and prosecute any legal action to enforce Roche Technology at its own expense and in the name of Roche, to control the defense of any declaratory judgment action relating to Roche Technology, and to retain any recovery obtained by it as a result of any such legal action or settlement thereof. (ii) In Metabasis shall have the event that LICENSED PATENTS are infringed by sole right to initiate and prosecute any Thirdlegal action to enforce Metabasis Platform Patents and Metabasis Know-Party with respect to a PRODUCT How at its own expense and in the Field name of UseMetabasis, LICENSEEto control the defense of any declaratory judgment action relating to Metabasis Platform Patents and Metabasis Know-How, upon notice and to LICENSORretain any recovery obtained by it as a result of any such legal action or settlement thereof. Roche shall have the first right to initiate and prosecute any legal action to enforce Metabasis Product Patents and to control the defense of any declaratory judgment action relating to Metabasis Product Patents. Any recovery obtained by Roche in connection with or as a result of any such action relating to the Metabasis Product Patents, whether by settlement or otherwise, [***] to [***] and [***] in connection with [***] and [***] and [***] in connection with [***]. The [***] of any [***] by [***] shall [***] for a period purposes of [***] have (including, [***], the first right[***]). If, but not the obligation, within 90 days following a request by Metabasis to institute Roche to initiate and prosecute any such legal action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. its choiceto, or to control the defense of any declaratory judgment action arising from relating to, any Metabasis Product Patent, Roche fails to take such infringement action, or from if Roche informs Metabasis that it elects not to take such action with respect to any Metabasis Product Patent, Metabasis (or its designee) thereafter shall have the misappropriation right either to initiate and prosecute such action or misuse to control the defense of LICENSED KNOW-HOW, at its own expense and such declaratory judgment with respect to such Metabasis Product Patent in the name of both PartiesMetabasis and, if necessary, Roche, at Metabasis’ expense. LICENSEE [***] by [***] in connection with [***] of [***] to the [***], whether by [***], shall [***]. Neither party shall settle any action regarding Metabasis Product Patents without the prior written consent of the other party (which shall not otherwise settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of LICENSOR. LICENSEE shall keep LICENSOR advised of the progress of such proceedingsbe unreasonably withheld). (iii) In With respect to Joint Patents that are not Joint Product Patents, the event that parties shall mutually agree on a Thirdcase-Party is infringing by-case basis whether to initiate and prosecute any LICENSED PATENTS legal action to enforce any such Joint Patent or to defend any declaratory judgment action relating to any such Joint Patent, and, if the parties agree to initiate and prosecute, or to defend (as applicable), any such action, which party will be responsible for initiating and prosecuting, or defending (as applicable), such action. Any recovery obtained by either party in connection with or as a result of any action with respect to a PRODUCT any such Joint Patent, whether by settlement or otherwise, [***] to [***] and [***] of the [***] in the Field of Use connection with [***] and LICENSEE does not elect then to institute an action, LICENSOR, upon notice to LICENSEE, [***] and [***] in connection with [***]. The [***] by [***] that [***] shall [***] by [***]. Roche shall have the right, but not the obligation, first right to institute initiate and prosecute any legal action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of its choice, enforce Joint Product Patents or to control the defense of any declaratory judgment action arising from relating to Joint Product Patents. [***] by [***] in connection with [***] with respect to [***], whether [***] or [***], shall [***] and [***] in connection with [***] and [***] and [***] in connection with [***]. The [***] of any [***] by [***] after [***] shall [***] for [***] (including, [***], the [***]. If, within 90 days following a request by Metabasis to Roche to initiate and prosecute, or to defend (as applicable), such infringement legal action with respect to any Joint Product Patent, Roche fails to take such action, or from if Roche informs Metabasis that it elects not to take such action with respect to any Joint Product Patent, Metabasis (or its designee) thereafter shall have the misappropriation right to initiate and prosecute, or misuse to control the defense of LICENSED KNOW-HOW(as applicable), at its own expense and such action with respect to such Joint Product Patent in the name of both PartiesMetabasis and, if necessary, Roche, at Metabasis’ expense. LICENSOR [***] by [***] in connection with or [***] of [***] to [***], [***] or [***], [***] to [***]. Neither party shall not settle, compromise or take settle any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS regarding Joint Technology without the prior approval written consent of LICENSEE, the other party (which shall not be unreasonably withheld). (iv) With respect to any action to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW, the Parties shall cooperate fully and shall provide each other with any information and assistance that either Party may reasonably request. In particular, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates, Sublicensees and LICENSEE to execute all such documents, if required. In the event that either Party is unable to initiate or prosecute an action solely in its own name, the other Party shall then join such action voluntarily. Each Party shall keep the other informed of the development of any action or proceeding including, to the extent permissible by law, the status of any settlement negotiations and the terms of any offer related thereto. (v) Any recovery obtained by either or both Parties in connection with or as a result of any action or proceeding contemplated by this Section 8.3, whether by settlement or otherwise, shall be allocated in order as follows: (a) The Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action (provided that if LICENSEE was the initiating Party and that the action proceeds were not sufficient for LICENSEE to recoup all its costs and expenses, then LICENSEE shall be allowed to deduct the [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. balance of its unrecovered costs and expenses from royalties payable to LICENSOR under Article 4 hereof); (b) The other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (c) The amounts of any recovery remaining shall then be allocated between the Parties with LICENSEE receiving all amounts in respect of damages in the Field of Use and LICENSOR receiving all amounts in respect of damages out of the Field of Use, except that any amounts recovered in connection with infringement actions relating to jointly-owned patents shall be equally shared between the Parties. (vi) LICENSOR shall inform LICENSEE of any certification regarding any LICENSED PATENTS it has received pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Sections355(b)(2)(A)(iv) or (j)(2)(A)(vii)(lV), or any similar provision in other countries, and shall provide LICENSEE with a copy of such certification within [***] of receipt. Both Parties rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in paragraphs (a) to (c) of this Section 7.6.

Enforcement and Defense. (i) Each Party A. Licensee shall give promptly inform ISURF in writing of any alleged infringement of any Licensed Patents, along with providing any available evidence of such infringement lawfully in the other notice possession of either (a) Licensee. B. If any infringement of LICENSED PATENTS, or (b) any misappropriation or misuse of LICENSED KNOW-HOW that has come to its attention. The Parties shall thereafter consult and cooperate fully to determine a course of action, including but not limited the Licensed Patents is to the commencement substantial detriment of legal action by either or both Parties Licensee and Licensee’s rights are exclusive hereunder without any limitations that prevent Licensee from having standing to terminate any enforce the Licensed Patents without joining ISURF, and Licensee provides ISURF with a clear opinion of an outside patent counsel that the complained of activity is an infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW. (ii) In the event and that LICENSED PATENTS are infringed by any Third-Party with respect to a PRODUCT in the Field of Use, LICENSEE, upon notice to LICENSOR, shall for a period of [***] have the first right, but not the obligation, to institute and prosecute any action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. its choice, or to control the defense of any declaratory judgment action arising from such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, at its own expense and in the name of both Parties. LICENSEE shall not otherwise settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of LICENSOR. LICENSEE shall keep LICENSOR advised enforcement of the progress of such proceedings. (iii) In the event that a Third-Party is infringing any LICENSED PATENTS with respect to a PRODUCT in the Field of Use and LICENSEE does Licensed Patents will not elect to institute an actionconstitute patent misuse or abuse, LICENSOR, upon notice to LICENSEE, then Licensee shall have the right, but not the obligation, for six months following ISURF’s receipt of the notice in Section 8(A) to institute and prosecute any action or proceeding under LICENSED PATENTS with respect seek to such infringement, by counsel of its choice, or to control the defense of any declaratory judgment action arising from ▇▇▇▇▇ such infringement or from the misappropriation or misuse of LICENSED KNOW-HOW, including to file a lawsuit to seek to stop such activity at its own expense and in the name of both Parties. LICENSOR shall not settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the prior approval of LICENSEE, which ISURF shall not be unreasonably withheld. (iv) With respect obligated to any take action, but may join in such proceedings if it so chooses, and will otherwise provide Licensee with such assistance and information as may be useful to Licensee in connection with Licensee taking such action to terminate any infringement of LICENSED PATENTS if Licensee reimburses ISURF for ISURF’s reasonable and documented out-of-pocket costs and expenses. The remaining amounts received by Licensee, if any, or any misappropriation or misuse of LICENSED KNOW-HOWfuture receipts from sublicensing settlement shall be subject to payment to ISURF in accordance with Section 4.B. Licensee shall act in good faith to preserve ISURF’s right, title and interest in and to the Parties shall cooperate fully and shall provide each other with any information and assistance that either Party may reasonably request. In particularLicensed Patents, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates, Sublicensees and LICENSEE to execute all such documents, if required. In the event that either Party is unable to initiate or prosecute an action solely in its own name, the other Party shall then join such action voluntarily. Each Party shall keep the other informed of the development of any action or proceeding including, ISURF advised as to the extent permissible by law, the status of any the litigation and shall not enter into a settlement negotiations and of such litigation without first allowing ISURF the terms option of either approving the settlement or of continuing the litigation at ISURF’s expense for ISURF’s benefit (upon payment to Licensee of the lesser of any offer related thereto. (v) Any recovery obtained by either or both Parties in connection with or as a result of any action or proceeding contemplated by this Section 8.3, whether by amount to be paid to Licensee under the proposed settlement or otherwise, shall be allocated in order as follows: (a) The Party which initiated Licensee's reasonable and prosecuted the action shall recoup all of its documented out-of-pocket costs and expenses incurred in connection with of the action (provided that if LICENSEE was the initiating Party and that the action proceeds were not sufficient for LICENSEE to recoup all its costs and expenseslitigation, then LICENSEE after which any award or settlement shall be allowed paid as follows: (1) first to deduct the [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. balance of its unrecovered pay any unreimbursed out-of-pocket costs and expenses from royalties payable to LICENSOR under Article 4 hereof); (b) The other Party shall then, to the extent possible, recover its of ISURF and remaining unreimbursed out-of-pocket costs and expenses incurred in connection with the action; and (c) The amounts of any recovery remaining shall then be allocated between the Parties with LICENSEE receiving all amounts in respect of damages in the Field of Use and LICENSOR receiving all amounts in respect of damages out Licensee after receipt of the Field initial payment from ISURF to continue the litigation; (2) ISURF shall retain the remainder and may permit such infringer of Use, except that any amounts recovered the Licensed Patents to practice under the Licensed Patents if such practice is allowed under a settlement arrangement entered into by ISURF in connection good faith with infringement actions relating to jointly-owned patents shall be equally shared between the Partiesa third party infringer. (vi) LICENSOR shall inform LICENSEE of any certification regarding any LICENSED PATENTS it has received pursuant C. If Licensee does not exercise its right to ▇▇ ▇▇▇▇▇▇ ▇the infringement or fails to do so within one year of commencing such efforts, then ISURF may, but is not obligated to ▇▇▇▇▇ Code Sections355(b)(2)(A)(iv) such infringement, including to enforce the Licensed Patents against infringers or (j)(2)(A)(vii)(lV)otherwise act to eliminate infringement at ISURF’s cost and for ISURF’s sole benefit. Upon request by ISURF, or any similar provision Licensee shall take action, join in other countriessuch proceeding, and shall otherwise provide LICENSEE ISURF with a copy such assistance and information as may be useful to ISURF in connection with ISURF’s taking such action (if the cause of such certification within [***] of receipt. Both Parties rights with respect to action arose during the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in paragraphs (a) to (c) term of this Section 7.6Agreement and ISURF reimburses Licensee for Licensee’s reasonable out-of- pocket expenses.) Nothing in the foregoing shall permit Licensee to settle any action that would admit any fault or create any obligation on behalf of ISURF, Iowa State University or the inventors of the Licensed Patents including compromising the Licensed Patents without ISURF’s express written consent, which it may withhold.

Enforcement and Defense. (i) 7.5.1 Each Party shall give the other party notice of either (ai) any infringement of LICENSED PATENTSJoint Collaboration Program Patent Rights and FHT Collaboration Program Patent Rights exclusively licensed or subject to an exclusive license option, or (bii) any misappropriation or misuse of LICENSED KNOW-HOW Joint Collaboration Program Inventions and Results or FHT Collaboration Program Inventions and Results that has are exclusively licensed or subject to the exclusive license option described in this Agreement, that may come to its attention. The Parties Merck and FHT 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 Parties Merck and FHT, to terminate any such infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW. (ii) In the event that LICENSED PATENTS are infringed by any Third-misuse. Each Party with respect to a PRODUCT in the Field of Use, LICENSEE, upon notice to LICENSOR, shall for a period of [***] have the first right, but not the obligation, right to institute and prosecute any action or proceeding under LICENSED PATENTS with respect to such infringement, be represented by counsel of [*its own choice and expense. [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS EXHIBIT DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 ON THE OMITTED PORTIONS. SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. (a) FHT, upon notice to Merck, shall have the first right to initiate and prosecute legal action at its choiceown expense and in the name of FHT and/or Merck, or to control the defense of any declaratory judgment action arising from relating to FHT Collaboration Program Patent Rights or FHT Collaboration Program Inventions and Results that are exclusively licensed or subject to the exclusive license option described in this Agreement. FHT shall promptly inform Merck if it elects not to exercise such infringement first right and Merck shall thereafter have the right to either initiate and prosecute such action or from to control the misappropriation or misuse defense of LICENSED KNOW-HOWsuch declaratory judgment action in the name of Merck and, if necessary, FHT. (b) Merck, upon notice to FHT, shall have the first right to initiate and prosecute legal action at its own expense and in the name of both Parties. LICENSEE shall not otherwise settle, compromise or take any action in such litigation which diminish, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the express permission of LICENSOR. LICENSEE shall keep LICENSOR advised of the progress of such proceedings. (iii) In the event that a Third-Party is infringing any LICENSED PATENTS with respect to a PRODUCT in the Field of Use and LICENSEE does not elect to institute an action, LICENSOR, upon notice to LICENSEE, shall have the right, but not the obligation, to institute and prosecute any action or proceeding under LICENSED PATENTS with respect to such infringement, by counsel of its choiceFHT and/or Merck, or to control the defense of any declaratory judgment action arising from relating to Joint Collaboration Program Patent Rights or Joint Collaboration Program Inventions and Results that are exclusively licensed or subject to the exclusive license option described in this Agreement. Merck shall promptly inform FHT if it elects not to exercise such infringement first right and FHT shall thereafter have the right to either initiate and prosecute such action or from to control the misappropriation or misuse defense of LICENSED KNOW-HOW, at its own expense and such declaratory judgment action in the name of both Parties. LICENSOR shall not settleFHT and, compromise or take any action in such litigation which diminishif necessary, limit or inhibit the scope, validity or enforceability of LICENSED PATENTS without the prior approval of LICENSEE, which shall not be unreasonably withheldMerck. (ivc) With Merck and FHT shall consult and cooperate fully to determine a course of action with respect to Joint Collaboration Program Patent Rights and Joint Collaboration Program Inventions and Results, where Merck does not Trigger the Product Exclusivity License or Test Exclusivity License. 7.5.2 For any action to terminate any infringement of LICENSED PATENTS or any misappropriation or misuse of LICENSED KNOW-HOW, the Parties shall cooperate fully and shall provide each other with any information and assistance that either Party may reasonably request. In particular, either Party shall execute such documents necessary for the other Party to initiate and prosecute the action or proceeding and cause its Affiliates, Sublicensees and LICENSEE to execute all such documentsunder 7.5.1, if required. In the event that either a Party is unable to initiate or prosecute an such action solely in its own name, the other Party shall then will join such action voluntarilyvoluntarily and will execute and cause its Affiliates to execute all documents necessary to initiate litigation to prosecute and maintain such action, all at the expense (limited to out-of-pocket costs) of the Party initiating such action. In connection with any action, Merck and FHT will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each Party shall keep the other informed of the development of developments in any action or proceeding proceeding, including, to the extent permissible by law, consultation on and approval of any settlement, the status of any settlement negotiations and the terms of any offer related thereto. (v) 7.5.3 Any recovery obtained by either or both Parties [ * ] Merck and FHT in connection with or as a result of any action or proceeding contemplated by this Section 8.37.5, whether by settlement or otherwise, shall be allocated shared in order as follows: (a) The Party which initiated and prosecuted the action [ * ] shall recoup all [ * ] of its costs and expenses incurred in connection with the action (provided that if LICENSEE was the initiating Party and that the action proceeds were not sufficient for LICENSEE to recoup all its costs and expenses, then LICENSEE shall be allowed to deduct the [*action; [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS EXHIBIT DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 ON THE OMITTED PORTIONS. balance of its unrecovered costs and expenses from royalties payable to LICENSOR under Article 4 hereof);SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. (b) The other Party [ * ] shall then, to the extent possible, recover its [ * ] costs and expenses incurred in connection with the action; and (c) The amounts the amount of any recovery remaining shall then be allocated between the Parties with LICENSEE receiving all amounts in respect of damages in [ * ] taking into consideration the Field of Use and LICENSOR receiving all amounts in respect of damages out of the Field of Use, except that any amounts recovered in connection with infringement actions relating to jointly-owned patents shall be equally shared between the Parties[ * ] . (vi) LICENSOR 7.5.4 FHT shall inform LICENSEE Merck of any certification regarding any LICENSED PATENTS Patent Rights it has received pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Sections355(b)(2)(A)(iveither 21 U.S.C. §§355(b)(2)(A)(iv) or (j)(2)(A)(vii)(lV), j)(2)(A)(vii)(IV) or its successor provisions or any similar provision provisions in a country in the Territory other countriesthan the United States, and shall provide LICENSEE Merck with a copy of such certification within [***] five (5) days of receipt. Both Parties FHT’s and Merck’s rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in paragraphs Section 7.5.3 provided, however, that FHT shall exercise its first right to initiate and prosecute any action and shall inform Merck of such decision within ten (a10) days of receipt of the certification, after which time Merck shall have the right to (c) initiate and prosecute such action. Regardless of this Section 7.6which Party has the right to initiate and prosecute such action, both Parties shall, as soon as practicable after receiving notice of such certification, convene and consult with each other regarding the appropriate course of conduct for such action. The non-initiating Party shall have the right to be kept fully informed and provide input regarding the appropriate course of conduct for such action, and the right to join and participate in such action using its own counsel at its expense.