Common use of Enforcement and Defense Clause in Contracts

Enforcement and Defense. 7.4.1 Vertex shall give Merck notice of either (i) any infringement of Patent Rights, or (ii) any misappropriation or misuse of Vertex Know-How, that may come to Vertex’s attention. Merck and Vertex 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 Merck and Vertex, to terminate any infringement of Patent Rights or any misappropriation or misuse of Vertex Know-How. However, Vertex, 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 Vertex and Merck, or to control the defense of any declaratory judgment action relating to Patent Rights or Vertex Know-How. Vertex 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, if necessary, Vertex. Each Party shall have the right to be represented by counsel of its own choice. 7.4.2 If Vertex elects not to initiate and prosecute an action as provided in Section 7.4.1, and Merck elects to do so, the costs of any agreed-upon course of action to terminate infringement of Patent Rights or misappropriation or misuse of Vertex Know-How, including without limitation the costs of any legal action commenced or the defense of any declaratory judgment, shall be shared equally by Vertex and Merck. 7.4.3 For any action to terminate any infringement of Patent Rights or any misappropriation or misuse of Vertex Know-How, in the event that Merck is unable to initiate or prosecute such action solely in its own name, Vertex 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. In connection with any action, Merck and Vertex 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 developments in any action or proceeding, including, to the extent permissible by law, the consultation and approval of any settlement negotiations and the terms of any offer related thereto. 7.4.4 Any recovery obtained by either or both Merck and Vertex in connection with or as a result of any action contemplated by this Section, whether by settlement or otherwise, shall be shared in order as follows: (i) the Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action; (ii) the other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (iii) the amount of any recovery remaining shall then be allocated between the Parties on a pro rata basis taking into consideration the relative economic losses suffered by each Party. 7.4.5 Vertex shall inform Merck of any certification regarding any Patent Rights it has received pursuant to either 21 U.S.C. §§355(b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) or its successor provisions or any similar provisions in a country in the Territory other than the United States and shall provide Merck with a copy of such certification within five (5) days of receipt. Vertex’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 subsections 7.4.1 through 7.4.4; provided, however, the Vertex shall exercise its first right to initiate and prosecute any action and shall inform Merck of such decision within ten (10) days of receipt of the certification, after which time Merck shall have the right to initiate and prosecute such action.

Enforcement and Defense. 7.4.1 Vertex (a) Each party shall give Merck the other notice of either (ix) any infringement of Patent RightsARRIS Patents or Collaboration Patents in the Field, or (iiy) any misappropriation or misuse of Vertex ARRIS Know-How, that may come to VertexARRIS’s attention. Merck MERCK and Vertex ARRIS thereafter shall thereafter consult and cooperate fully to determine a course of actionaction including, including but not limited to without limitation, the commencement of legal action by either or both Merck of MERCK and VertexARRIS, to terminate any infringement of Patent Rights such patent rights in the Field or any misappropriation or misuse of Vertex ARRIS Know-HowHow in the Field. However, VertexARRIS, upon notice to MerckMERCK, shall have the first right to initiate and prosecute such legal action at its own expense and [***] in the name of Vertex and MerckARRIS (and, if appropriate, MERCK), or to control the defense of [***] indicates material that has been omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. any declaratory judgment action relating to Patent Rights ARRIS Patents, Collaboration Patents or Vertex ARRIS Know-How. Vertex ARRIS promptly shall promptly inform Merck MERCK if it elects not to exercise such first right right, and Merck if such infringement or misuse materially adversely affects MERCK’s efforts under this Agreement, MERCK thereafter shall thereafter have the right either to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of Merck MERCK and, if necessary, Vertex. Each Party shall have the right to be represented by counsel of its own choiceARRIS. 7.4.2 (b) If Vertex ARRIS elects not to initiate and prosecute an action as provided in Section 7.4.1Subsection 7.4(a), and, due to material adverse effect on MERCK, MERCK has the right and Merck elects chose to do soprosecute an action, the costs cost of any agreed-upon course of action to terminate infringement of Patent Rights ARRIS Patents or Collaboration Patents, misappropriation or misuse of Vertex ARRIS Know-How, including without limitation the costs of any legal action commenced or the defense of any declaratory judgment, shall [***]. Any proceeds from such action [***] will be shared equally by Vertex and Merck[***]. 7.4.3 (c) For any action to terminate any infringement of Patent Rights ARRIS Patents or Collaboration Patents or any misappropriation or misuse of Vertex ARRIS Know-How, in the event that Merck either MERCK or ARRIS is unable to initiate or prosecute such action solely in its own namename as provided herein, Vertex the other party will join such action voluntarily and will execute and cause its Affiliates under its control to execute all documents necessary for Merck the party seeking to initiate litigation to prosecute and maintain such action. In connection with any such action, Merck MERCK and Vertex ARRIS will cooperate fully and will provide each other with any information or assistance that either reasonably may reasonably request. Each Party party shall keep the other informed of developments in any such action or proceeding, including, to the extent permissible by law, the consultation and approval status of any settlement negotiations and the terms of any offer related thereto. 7.4.4 (d) Any recovery obtained by either or both Merck MERCK and Vertex ARRIS, in connection with or as a result of any action contemplated by this SectionSection 7.4 to terminate an infringement or misuse where such infringement or misuse materially adversely affects MERCK’s efforts under the Agreement, whether by settlement or otherwise, shall be shared in order as follows: (i) the Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the [***] for such action, then [***]; (ii) the other Party if [***], then any proceeds shall then, be [***]. [***] indicates material that has been omitted pursuant to the extent possible, recover its costs and expenses incurred in connection a request for confidential treatment. The omitted material has been filed separately with the action; andSecurities and Exchange Commission. (iiie) the amount of any recovery remaining shall then be allocated between the Parties on a pro rata basis taking into consideration the relative economic losses suffered by each Party. 7.4.5 Vertex ARRIS shall inform Merck MERCK of any certification regarding any Patent Rights ARRIS Patents it has received pursuant to either 21 U.S.C. §§Sections 355(b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) or its successor provisions or any similar provisions in a country in the Territory other than the United States under [***] and shall provide Merck MERCK with a copy of such certification within five (5) days of receipt. VertexARRIS’s and MerckMERCK’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 subsections 7.4.1 Subsections 7.4(a) through 7.4.4(d) hereof; providedPROVIDED, howeverHOWEVER, the Vertex that ARRIS shall exercise its first right to initiate and prosecute any action and shall inform Merck MERCK of such decision within ten (10) days of receipt of the certification, after which time Merck MERCK shall have the right to initiate and prosecute such action. (f) For any action for which the parties are [***] which is [***] shall control the action. If the parties are [***] shall control the action.

Enforcement and Defense. 7.4.1 Vertex (a) RENOVIS shall give Merck MERCK notice of either (i) any infringement of Patent Rights, or (ii) any misappropriation or misuse of Vertex RENOVIS Know-How, that may come to Vertex’s RENOVIS’ attention. Merck MERCK and Vertex RENOVIS 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 Merck MERCK and VertexRENOVIS, to terminate any infringement of Patent Rights or any misappropriation or misuse of Vertex RENOVIS Know-How. However, VertexRENOVIS, upon notice to MerckMERCK, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of Vertex RENOVIS and MerckMERCK, or to control the defense of any declaratory judgment action relating to Patent Rights or Vertex RENOVIS Know-How. Vertex RENOVIS shall promptly inform Merck MERCK if it elects not to exercise such first right and Merck 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 MERCK and, if necessary, VertexRENOVIS. Each Party shall have the right to be represented by counsel of its own choice. 7.4.2 If Vertex (b) In the event that RENOVIS elects not to initiate and prosecute an action as provided in Section 7.4.1paragraph (a), and Merck MERCK elects to do so, the costs of any agreed-upon course of action to terminate infringement of RENOVIS Patent Rights or misappropriation or misuse of Vertex RENOVIS Know-How, including without limitation the costs of any legal action commenced or the defense of any declaratory judgment, shall be shared equally by Vertex RENOVIS and MerckMERCK. 7.4.3 (c) For any action to terminate any infringement of Patent Rights or any misappropriation or misuse of Vertex RENOVIS Know-How, in the event that Merck MERCK is unable to initiate or prosecute such action solely in its own name, Vertex RENOVIS will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Merck MERCK to initiate litigation to prosecute and maintain such action. In connection with any action, Merck MERCK and Vertex RENOVIS 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 developments in any action or proceeding, including, to the extent permissible by law, the consultation and approval of any settlement negotiations and the terms of any offer related thereto. 7.4.4 (d) Any recovery obtained by either or both Merck MERCK and Vertex RENOVIS in connection with or as a result of any action contemplated by this Sectionsection, whether by settlement or otherwise, shall be shared in order as follows: (i) the Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action; (ii) the other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (iii) the amount of any recovery remaining shall then be allocated between the Parties on a pro rata basis taking into consideration the relative economic losses suffered by each Party. 7.4.5 Vertex (e) RENOVIS shall inform Merck MERCK of any certification regarding any Patent Rights it has received pursuant to either 21 U.S.C. §§355(b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) or its it successor provisions or any similar provisions in a country in the Territory other than the United States and shall provide Merck MERCK with a copy of such certification within five (5) days of receipt. Vertex’s RENOVIS’ and MerckMERCK’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 subsections 7.4.1 through 7.4.4paragraphs 7.4(a)-(d) hereof; provided, however, the Vertex RENOVIS shall exercise its first right to initiate and prosecute any action and shall inform Merck MERCK of such decision within ten (10) days of receipt of the certification, after which time Merck MERCK shall have the right to initiate and prosecute such action.

Enforcement and Defense. 7.4.1 Vertex shall give Merck notice of either (i) any infringement of Patent Rights, or (ii) any misappropriation or misuse of Vertex Know-How, that may come to Vertex’s 's attention. Merck and Vertex 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 Merck and Vertex, to terminate any infringement of Patent Rights or any misappropriation or misuse of Vertex Know-How. However, Vertex, 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 Vertex and Merck, or to control the defense of any declaratory judgment action relating to Patent Rights or Vertex Know-How. Vertex 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, if necessary, Vertex. Each Party shall have the right to be represented by counsel of its own choice. 7.4.2 If Vertex elects not to initiate and prosecute an action as provided in Section 7.4.1, and Merck elects to do so, the costs of any agreed-upon course of action to terminate infringement of Patent Rights or misappropriation or misuse of Vertex Know-How, including without limitation the costs of any legal action commenced or the defense of any declaratory judgment, shall be shared equally by Vertex and Merck. 7.4.3 For any action to terminate any infringement of Patent Rights or any misappropriation or misuse of Vertex Know-How, in the event that Merck is unable to initiate or prosecute such action solely in its own name, Vertex 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. In connection with any action, Merck and Vertex 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 developments in any action or proceeding, including, to the extent permissible by law, the consultation and approval of any settlement negotiations and the terms of any offer related thereto. 7.4.4 Any recovery obtained by either or both Merck and Vertex in connection with or as a result of any action contemplated by this Section, whether by settlement or otherwise, shall be shared in order as follows: (i) the Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action; (ii) the other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (iii) the amount of any recovery remaining shall then be allocated between the Parties on a pro rata basis taking into consideration the relative economic losses suffered by each Party. 7.4.5 Vertex shall inform Merck of any certification regarding any Patent Rights it has received pursuant to either 21 U.S.C. §§355(b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) or its successor provisions or any similar provisions in a country in the Territory other than the United States and shall provide Merck with a copy of such certification within five (5) days of receipt. Vertex’s 's and Merck’s '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 subsections 7.4.1 through 7.4.4; provided, however, the Vertex shall exercise its first right to initiate and prosecute any action and shall inform Merck of such decision within ten (10) days of receipt of the certification, after which time Merck shall have the right to initiate and prosecute such action.

Enforcement and Defense. 7.4.1 Vertex 10.3.1 Each Party shall promptly give Merck the other Party notice of either (i) any infringement of J▇▇▇▇▇▇ Patent Rights or Joint Patent Rights, or (ii) any misappropriation or misuse of Vertex J▇▇▇▇▇▇ Know-How, that may come to Vertexa Party’s attention. Merck Provention and Vertex J▇▇▇▇▇▇ 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 Merck and Vertex, to terminate any infringement of J▇▇▇▇▇▇ Patent Rights or Joint Patent Rights or any misappropriation or misuse of Vertex J▇▇▇▇▇▇ Know-How. HoweverProvention has the right but not the obligation, Vertexwithin the Field, upon notice to Merck, shall have the first right to initiate and prosecute any such legal action at its own expense and in the name of Vertex J▇▇▇▇▇▇ and MerckProvention (or just J▇▇▇▇▇▇ or just Provention if the laws of the jurisdiction so dictate), or to control the defense of any declaratory judgment action relating to J▇▇▇▇▇▇ Patent Rights Rights, Joint Patent Rights, or Vertex J▇▇▇▇▇▇ Know-HowHow in the Field. Vertex The costs of any legal action commenced or the defense of any declaratory judgment shall be borne by Provention, but only to the extent Provention has exercised its right pursuant to the immediately preceding sentence. Provention shall promptly inform Merck J▇▇▇▇▇▇ if it elects not to exercise such first that right with respect to J▇▇▇▇▇▇ Patent Rights or Joint Patent Rights and Merck J▇▇▇▇▇▇ shall thereafter have the right at its sole cost to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of Merck Provention and, if necessary, VertexJ▇▇▇▇▇▇. Each Party shall have the right to be represented by counsel of its own choice. 7.4.2 If Vertex elects not to initiate and prosecute an action as provided in Section 7.4.1, and Merck elects to do so, the costs of any agreed-upon course of action to terminate infringement of Patent Rights or misappropriation or misuse of Vertex Know-How, including without limitation the costs of any legal action commenced or the defense of any declaratory judgment, shall be shared equally by Vertex and Merck. 7.4.3 10.3.2 For any action to terminate any infringement of J▇▇▇▇▇▇ Patent Rights or Joint Patent Rights or any misappropriation or misuse of Vertex J▇▇▇▇▇▇ Know-How, in the event that Merck if Provention is unable to initiate or prosecute such action solely in its own name, Vertex will J▇▇▇▇▇▇ shall join such action voluntarily and will shall execute and cause its Affiliates to execute all documents necessary for Merck Provention to initiate litigation to prosecute and maintain such action. Each Party shall bear its own costs in such instance. In connection with any action, Merck Provention and Vertex will J▇▇▇▇▇▇ shall cooperate fully and will shall provide each other with any information or assistance that either may reasonably request. Each Party shall keep the other informed of developments in any action or proceeding, including, to the extent permissible by law, the consultation and approval of any settlement negotiations and the terms of any offer related thereto. 7.4.4 10.3.3 Any recovery obtained by either or both Merck Provention and Vertex J▇▇▇▇▇▇ in the Field in connection with or as a result of any action contemplated by this Sectionsection, whether by settlement or otherwise, shall be shared in order as follows: (ia) the Party which that initiated and prosecuted the action shall will recoup all of its costs and expenses incurred in connection with the action; (iib) the other Party shall will then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (iiic) the The amount of any recovery remaining shall then will be allocated between as follows: (i) if the Parties recovery is based upon Provention’s lost sales or profits, then Provention shall pay to J▇▇▇▇▇▇ the same royalties as set forth in Article 8 calculated on the Net Sales which formed the basis of Provention’s lost profits claim; and (ii) if the recovery is based upon the allocation of a pro rata basis taking into consideration reasonable royalty, then the relative economic losses suffered by each Party that initiated and prosecuted the action shall receive seventy-five percent (75%) of such recovery, and the remaining twenty-five percent (25%) shall be allocated to the other Party. 7.4.5 Vertex shall inform Merck of any certification regarding any Patent Rights it has received pursuant to either 21 U.S.C. §§355(b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) or its successor provisions or any similar provisions in a country in the Territory other than the United States and shall provide Merck with a copy of such certification within five (5) days of receipt. Vertex’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 subsections 7.4.1 through 7.4.4; provided, however, the Vertex shall exercise its first right to initiate and prosecute any action and shall inform Merck of such decision within ten (10) days of receipt of the certification, after which time Merck shall have the right to initiate and prosecute such action.

Enforcement and Defense. 7.4.1 Vertex 7.5.1 A Party shall give Merck the other Party notice of either (i) any infringement of Avalon Patent RightsRights exclusively licensed to Merck with respect to Licensed Compound or Product under this Agreement, or (ii) any misappropriation or misuse of Vertex Avalon Know-HowHow that is exclusively licensed to Merck, with respect to the making, using, selling, offer for sale or importation of Licensed Compound and/or Product (“Product Infringement”) that may come to Vertexa Party’s attention. Merck and Vertex Avalon 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 Merck and VertexAvalon, to terminate any infringement of Patent Rights or any misappropriation or misuse of Vertex Know-HowProduct Infringement. However, VertexMerck, upon notice to MerckAvalon, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of Vertex Avalon and Merck, or to control the defense of any declaratory judgment action relating to Avalon Patent Rights or Vertex Avalon Know-HowHow that are exclusively licensed to Merck with respect to Licensed Compound or Product under this Agreement. Vertex Merck shall promptly inform Merck Avalon if it elects not to exercise such first right and Merck Avalon 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 Avalon and, if necessary, VertexMerck. Each Party shall have the right to be represented by counsel of its own choice. * The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission. 7.4.2 If Vertex 7.5.2 In the event that Merck elects not to initiate and prosecute an action as provided in Section 7.4.17.5.1, and Merck Avalon elects to do so, the costs of any agreed-upon course of action to terminate infringement of Patent Rights or misappropriation or misuse of Vertex Know-How, including Product Infringement without limitation the costs of any legal action commenced or the defense of any declaratory judgment, shall be borne by Avalon and shared equally by Vertex Avalon and Merck. 7.4.3 7.5.3 For any action to terminate any infringement of Patent Rights or any misappropriation or misuse of Vertex Know-How, Product Infringement in the event that Merck is unable to initiate or prosecute such action solely in its own name, Vertex Avalon 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. In connection with any action, Merck and Vertex Avalon 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 developments in any such action or proceeding, including, to the extent permissible by law, the consultation on and approval of any settlement, the status of any settlement negotiations and the terms of any offer related thereto. 7.4.4 7.5.4 Any recovery obtained by either or both Merck and Vertex Avalon in connection with or as a result of any action contemplated by this Section, whether by settlement or otherwise, shall be shared in order as follows: (ib) the Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action; (ii) the other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (iii) the amount of any recovery remaining shall then be allocated between the Parties on a pro rata basis taking into consideration the relative economic losses suffered by each Party. 7.4.5 Vertex 7.5.5 Avalon shall inform Merck of any certification regarding any Avalon Patent Rights that are exclusively licensed to Merck with respect to Licensed Compound or Product under this Agreement it has received pursuant to either 21 U.S.C. §§355(b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) or its successor provisions or any similar provisions in a country in the Territory other than the United States States, and shall provide Merck with a copy of such certification within five (5) days of receipt. VertexAvalon’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 subsections 7.4.1 7.5.1 through 7.4.47.5.4; provided, however, the Vertex that Merck shall exercise its first right to initiate and prosecute any action and shall inform Merck Avalon of such decision within ten (10) days of receipt of the certification, after which time Merck Avalon shall have the right to initiate and prosecute such action. Regardless of which 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. * The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.