Common use of Infringement of Third Party Rights Clause in Contracts

Infringement of Third Party Rights. In the event that any Product manufactured, used or sold under this Agreement becomes the subject of a Third Party claim or there is the potential for a claim for patent infringement anywhere in the world, and irrespective of whether Gilead or Roche is charged with said infringement, the parties shall promptly meet to consider the claim and the appropriate course of action. Unless the parties otherwise agree, the party against which such Third Party infringement claim is brought shall defend against such claim at its sole expense and the other party shall have the right, but not the obligation, to participate in any such suit, at its sole option and at its own expense. Such other party shall reasonably cooperate with the party conducting the defense of the claim, including if required to conduct such defense, furnishing a power of attorney. Neither party shall enter into any settlement that affects the other party's rights or interests without such other party's written consent, which consent shall not be unreasonably withheld. If in the opinion of Roche's counsel, a license with respect to such Third Party patents is necessary to avoid substantial risks which could prevent Roche from making, using, selling, offering for sale or importing Product, then Roche shall notify Gilead of such conclusion and the basis for it and give Gilead a reasonable opportunity to discuss Roche's opinion. If Gilead concurs in Roche's opinion, Roche shall have the right to negotiate directly with such Third Party for a license, and Roche shall be entitled to apply [ ] of Third Party Royalties for Net Sales in the country where the claim exists, as a credit against royalties due under Section 5.3; provided, however, that the aggregate credit taken in any given calendar quarter shall not exceed [ ] of the royalties payable to Gilead during that quarter, on a country-by-country basis, and shall be subject to further limitations as expressly set forth in Section 5.3. If Gilead does not concur with Roche's opinion, the matter shall be submitted to an independent counsel, selected by mutual consent and paid equally by Roche and Gilead, to determine whether there is a substantial [*] CONFIDENTIAL TREATMENT REQUESTED

Infringement of Third Party Rights. In the event that any Product manufactured, used or sold under this Agreement becomes the subject of a Third Party claim or there is the potential for a claim for patent infringement anywhere in the world, and irrespective of whether Gilead or Roche is charged with said infringement, the parties shall promptly meet to consider the claim and the appropriate course of action. Unless the parties otherwise agree, the party against which such Third Party infringement claim is brought shall defend against such claim at its sole expense and the other party shall have the right, but not the obligation, to participate in any such suit, at its sole option and at its own expense. Such other party shall reasonably cooperate with the party conducting the defense of the claim, including if required to conduct such defense, furnishing a power of attorney. Neither party shall enter into any settlement that affects the other party's ’s rights or interests without such other party's ’s written consent, which consent shall not be unreasonably withheld. If in the opinion of Roche's ’s counsel, a license with respect to such Third Party patents is necessary to avoid substantial risks which could prevent Roche from making, using, selling, offering for sale or importing Product, then Roche shall notify Gilead of such conclusion and the basis for it and give Gilead a reasonable opportunity to discuss Roche's ’s opinion. If Gilead concurs in Roche's ’s opinion, Roche shall have the right to negotiate directly with such Third Party for a license, and Roche [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. shall be entitled to apply [ * ] of Third Party Royalties for Net Sales in the country where the claim exists, as a credit against royalties due under Section 5.3; provided, however, that the aggregate credit taken in any given calendar quarter shall not exceed [ * ] of the royalties payable to Gilead during that quarter, on a country-by-country basis, and shall be subject to further limitations as expressly set forth in Section 5.3. If Gilead does not concur with Roche's ’s opinion, the matter shall be submitted to an independent counsel, selected by mutual consent and paid equally by Roche and Gilead, to determine whether there is a substantial [*] CONFIDENTIAL TREATMENT REQUESTEDrisk of infringement of such Third Party rights. If such independent counsel determines that a substantial risk exists, then Roche may negotiate directly with such Third Party and receive royalty credit as set forth above. If such independent counsel determines that a substantial risk does not exist, then Roche may still negotiate for a license from such Third Party if it elects to do so, but Roche shall not have the right of royalty reduction provided for in this Section 10.4.

Infringement of Third Party Rights. In (a) If (i) in the event opinion of counsel reasonably acceptable to both Licensor and Myriad, one or more Patents covering the research, development, Manufacture, use, or sale of the Licensed Compound or the Licensed Product has issued to a Third Party in any country such that Myriad cannot sell the Licensed Product in such country without infringing such Patent or (ii) as a result of any Product manufactured, used claim made against Myriad or sold under any of its Affiliates or Sublicensees during the term of this Agreement becomes alleging that the subject research, development, Manufacture, use, or sale of the Licensed Compound or Licensed Product by such entity infringes or misappropriates any Patent or any other intellectual property right of a Third Party claim in any country, a judgment is entered by a court of competent jurisdiction from which no appeal is taken within the time permitted for appeal, such that Myriad cannot sell the Licensed Product in such country without infringing the Patent or there is the potential for other proprietary rights of such Third Party, Myriad shall use its reasonable, good faith efforts to negotiate and obtain a claim for patent infringement anywhere in the world, and irrespective of whether Gilead or Roche is charged with said infringement, the parties shall promptly meet to consider the claim and the appropriate course of action. Unless the parties otherwise agree, the party against which license from such Third Party infringement claim is brought shall defend against such claim at its sole expense and that would permit Myriad to research, develop, Manufacture, use or sell the other party shall have Licensed Compound or the right, but not the obligation, to participate in any such suit, at its sole option and at its own expense. Such other party shall reasonably cooperate with the party conducting the defense of the claim, including if required to conduct such defense, furnishing a power of attorney. Neither party shall enter into any settlement that affects the other party's rights or interests without such other party's written consent, which consent shall not be unreasonably withheld. If in the opinion of Roche's counsel, a license with respect to such Third Party patents is necessary to avoid substantial risks which could prevent Roche from making, using, selling, offering for sale or importing Licensed Product, then Roche shall notify Gilead of as the case may be, in such conclusion and the basis for it and give Gilead a reasonable opportunity to discuss Roche's opinion. If Gilead concurs in Roche's opinion, Roche shall have the right to negotiate directly with such Third Party for a license, and Roche shall be entitled to apply [ ] of Third Party Royalties for Net Sales in the country where the claim exists, as a credit against royalties due under Section 5.3country; provided, however, that the aggregate credit taken in any given calendar quarter Myriad shall not exceed be -------- ------- obligated to attempt to negotiate a license if Myriad in good faith believes that such negotiation is likely to be futile. If Myriad obtains such a license in such country, any royalties paid by Myriad, its Affiliates, or Sublicensees under such license with respect to the sale of the Licensed Product in such country shall be totaled at the end of each Fiscal Quarter and shall be creditable against future royalties paid to Licensor hereunder up to an amount equal to [ ] of the royalties payable paid to Gilead Licensor hereunder in respect of sales made in such country during such Fiscal Quarter. If Myriad is unable to obtain a license or if Myriad in good faith believes that quartersuch negotiation is likely to be futile, on a country-by-Myriad shall have the right to terminate this Agreement with respect to such country basis, and by written notice to Licensor. Nothing contained in this Section shall be subject construed to further limitations as expressly set forth in limit Myriad's right to terminate this Agreement pursuant to Section 5.37.3. If Gilead does not concur Myriad is unable to obtain such a license, or such consideration to be paid to a Third Party for such license would make the Licensed Product commercially impracticable with Roche's opinionrespect to such country, then Myriad shall have the matter shall be submitted right to an independent counsel, selected terminate this Agreement with respect to such country by mutual consent and paid equally by Roche and Gilead, written notice to determine whether there is a substantial [*] CONFIDENTIAL TREATMENT REQUESTEDLicensor.

Infringement of Third Party Rights. In Each Party shall promptly notify the event other in writing of any allegation by a Third Party that the Manufacture, Development, or Commercialization of the Licensed Compound or any Licensed Product manufactured, used infringes or sold under this Agreement becomes may infringe the subject intellectual property rights of a Third Party. If a Third Party claim asserts that any of its Patents or there is other rights are infringed by the potential for Manufacture, Commercialization or Development by Neos or its Affiliates of the Licensed Compound or any Licensed Product in a claim for patent infringement anywhere particular country in the world, and irrespective of whether Gilead or Roche is charged with said infringement, the parties shall promptly meet to consider the claim and the appropriate course of action. Unless the parties otherwise agree, the party against which such Territory (a “Third Party infringement claim is brought shall defend against such claim at its sole expense and the other party Infringement Claim”), Neos shall have the right, but not the obligation, to participate in defend against any such suit, assertions at its sole option cost and at its own expense. Such other party shall reasonably cooperate with the party conducting the defense of the claim; provided, including if required to conduct such defense, furnishing a power of attorney. Neither party shall enter into any settlement however that affects the other party's rights or interests without such other party's written consent, which consent shall not be unreasonably withheld. If in the opinion of Roche's counsel, a license with respect to such Third Party patents is necessary to avoid substantial risks which could prevent Roche from making, using, selling, offering for sale or importing Product, then Roche shall notify Gilead of such conclusion and the basis for it and give Gilead a reasonable opportunity to discuss Roche's opinion. If Gilead concurs in Roche's opinion, Roche Neos shall have the right to negotiate directly deduct from any royalties owed under Section 8.3 to NeuRx with respect to the Licensed Compound or any Licensed Product which is the subject of such claim for a given Calendar Quarter fifty percent (50%) of any out-of-pocket costs incurred by Neos in defending any such Third Party for Infringement Claim during such Calendar Quarter, unless such Third Party infringement claim is solely based on the practice by Neos or its Affiliates of one or more inventions which are not covered or claimed by any Licensed Patent. NeuRx shall cooperate fully and shall provide full access to documents, information and witnesses as reasonably requested by Neos in defending such action. Neos will reimburse all reasonable, out-of-pocket costs incurred in connection with such requested cooperation. To the extent Neos obtains any recovery from such Third Party as a licenseresult of any counter-claim brought against such Third Party, such recovery shall be used first to reimburse the Parties’ documented out-of-pocket legal expenses relating to the action or proceeding (including payment to NeuRx of the amounts offset from its royalty payments, if any, as provided above), and Roche any remaining recovery relating to Licensed Products (including lost sales or lost profits with respect to Licensed Products) shall be entitled to apply [ ] of Third Party Royalties for retained by Neos and be deemed Net Sales in the country where the claim exists, as a credit against royalties due under Section 5.3; provided, however, that the aggregate credit taken in any given calendar quarter shall not exceed [ ] of the royalties payable to Gilead during that quarter, on a country-by-country basis, and shall be subject to further limitations as expressly set forth royalty payments to NeuRx in accordance with the royalty provisions of Section 5.3. If Gilead does not concur with Roche's opinion, the matter shall be submitted to an independent counsel, selected by mutual consent and paid equally by Roche and Gilead, to determine whether there is a substantial [*] CONFIDENTIAL TREATMENT REQUESTED8.3.

Infringement of Third Party Rights. In If a Third Party initiates a Proceeding against the JV or a Member Party alleging that the conduct of the Project Activities infringes or will infringe such Third Party’s Patent or misappropriates or will misappropriate such Third Party’s trade secrets, (a) if such Proceeding arises as a direct result of TDF, FTC or both TDF and FTC being incorporated in the Combination Product, in each case without reference to EFV, then Gilead shall defend and hold the JV and BMS harmless from and against such Proceeding and any Losses resulting from such Proceeding, and shall have the sole right and obligation to defend such Proceeding or to settle it (e.g., by obtaining a license from such Third Party) at Gilead’s sole cost (which shall not be deemed a JV Expense or Authorized Expense), and BMS shall reasonably cooperate at Gilead’s request and expense in such defense and/or settlement; (b) if such claim arises as a direct result of EFV being incorporated in the Combination Product, in each case without reference to TDF or FTC, then BMS shall defend and [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. hold the JV and Gilead harmless from and against such Proceeding and any Losses resulting from such Proceeding, and shall have the sole right and obligation to defend such Proceeding or to settle it (e.g., by obtaining a license from such Third Party) at BMS’ sole cost (which shall not be deemed a JV Expense or Authorized Expense), and Gilead shall reasonably cooperate at BMS’ request and expense in such defense and/or settlement; and (c) in the event that any Product manufacturedneither clause (a) nor (b) applies, used or sold under this Agreement becomes then the subject of a Third Party claim or there is the potential for a claim for patent infringement anywhere in the world, and irrespective of JEC shall determine whether Gilead or Roche is charged with said infringement, the parties shall promptly meet to consider the claim and the appropriate course of action. Unless the parties otherwise agree, the party against which such Third Party infringement claim is brought shall defend against such claim at its sole expense or to obtain a license from such Third Party, and the other party if so, on what terms and conditions (which out-of-pocket costs, without any markup, shall have the rightbe deemed Authorized Other Expenses), but not the obligation, to participate in any and which Member Party shall take such suit, at its sole option and at its own expense. Such other party shall reasonably cooperate with the party conducting the defense actions on behalf of the claim, including if required to conduct such defense, furnishing a power of attorneyJV. Neither party shall enter into any settlement that affects the other party's rights or interests without such other party's written consent, which consent shall not be unreasonably withheld. If in the opinion of Roche's counsel, a license with respect to such Third Party patents is necessary to avoid substantial risks which could prevent Roche from making, using, selling, offering for sale or importing Product, then Roche shall notify Gilead of such conclusion and the basis for it and give Gilead a reasonable opportunity to discuss Roche's opinion. If Gilead concurs in Roche's opinion, Roche shall have the right to negotiate directly with such Third Party for a license, and Roche shall be entitled to apply [ ] of Third Party Royalties for Net Sales in the country where the claim exists, as a credit against royalties due under Section 5.3; provided, however, that the aggregate credit taken in any given calendar quarter shall not exceed [ ] of the royalties payable to Gilead during that quarter, on a country-by-country basis, and shall be subject to further limitations as expressly The procedures set forth in Section 5.3. If Gilead does not concur with Roche's opinion, the matter 13.8 shall be submitted apply to an independent counsel, selected by mutual consent and paid equally by Roche and Gilead, to determine whether there is a substantial [*] CONFIDENTIAL TREATMENT REQUESTEDindemnification of Member Parties under this Section 11.4.

Infringement of Third Party Rights. In 7.1 If a third party objects to Licensee’s use of the event Li- censor Software based on the claim that the use of the Licen- sor Software infringes such third party’s intellectual property right (hereinafter referred to as “Infringement Claim”), Licen- sor will indemnify and defend Licensee from and against any Product manufacturedliabilities, used damages, costs and expenses (including reasonable expert witness fees and attorney’s fees) incurred by Licensee in connection with any claim, action, proceeding or sold under this Agreement suit alleg- ing that the Licensor Software or any intellectual property in- fringes any patent, copyright, trade secret, logo or other in- tellectual property or proprietary rights of Licensee or any third party; and Licensor shall, at its expense, defend or settle any such claim, action, proceeding or suit brought against Li- censee, provided that Licensee promptly 1) notifies Licensor in writing of the Infringement Claim as soon as it becomes aware of such Infringement Claim, 2) allows Licensor to fully control the subject of a Third Party claim or there is the potential for a claim for patent infringement anywhere defence and any related settlement negotiations, and 3) cooperates with Licensor in the worlddefence and any re- lated settlement negotiations by providing Licensor with ap- propriate information, powers of attorney and irrespective of whether Gilead assistance needed for such defence or Roche is charged with said infringementsettlement, if necessary in Licen- see’s name. Where the parties terms and conditions under 1) to 3) are not ful- filled, Licensor shall promptly meet to consider the claim and the appropriate course of action. Unless the parties otherwise agree, the party against which such Third Party infringement claim is brought shall defend against such claim at its sole expense and the other party shall have the rightin any event be entitled, but not the obligationobli- gated, to participate in any such suit, defend the Infringement Claim at its sole option expense, and at its own expense. Such other party upon notifying Licensee that it intends to do so, Licensor shall reasonably cooperate with be irrevocably authorized by Licensee, to the party conducting extent legally possible, to assume the defense defence of the claimlegal suit or proceed- ings brought forward against Licensee, including if required to conduct such defense, furnishing a power of attorney. Neither party shall and may institute pro- ceedings or enter into any settlement that affects settlements concerning the other party's rights Infringe- ment Claim. Licensee shall provide Licensor with appropriate information or interests without assistance for such other party's written consentdefence or settlement, which consent shall not be unreasonably withheld. If if necessary in the opinion of Roche's counsel, a license with respect to such Third Party patents is necessary to avoid substantial risks which could prevent Roche from making, using, selling, offering for sale or importing Product, then Roche shall notify Gilead of such conclusion and the basis for it and give Gilead a reasonable opportunity to discuss Roche's opinion. If Gilead concurs in Roche's opinion, Roche shall have the right to negotiate directly with such Third Party for a license, and Roche shall be entitled to apply [ ] of Third Party Royalties for Net Sales in the country where the claim exists, as a credit against royalties due under Section 5.3; provided, however, that the aggregate credit taken in any given calendar quarter shall not exceed [ ] of the royalties payable to Gilead during that quarter, on a country-by-country basis, and shall be subject to further limitations as expressly set forth in Section 5.3. If Gilead does not concur with Roche's opinion, the matter shall be submitted to an independent counsel, selected by mutual consent and paid equally by Roche and Gilead, to determine whether there is a substantial [*] CONFIDENTIAL TREATMENT REQUESTEDLicensee’s name.

Infringement of Third Party Rights. (a) If the manufacture, use, sale or offer for sale of any Product results in any Proceeding by a Third Party alleging patent infringement against P&GP or Noven (a “Third Party Infringement Suit”), P&GP or Noven, as the case may be, shall promptly notify the other party in writing of such Proceeding. P&GP shall have the first right, but not the obligation, to defend any such Third Party Infringement Suit, at its own expense, using counsel reasonably acceptable to Noven. P&GP may settle any such Proceeding under such terms as P&GP deems advisable; provided, however, that no Settlement of any such Proceeding may be entered into, in whole or in part, by P&GP without the prior written consent of Noven; and provided further, that if such Proceeding does not implicate any of the Technology (including the Noven Patents), Noven’s consent shall not be unreasonably withheld or delayed. In the event that Noven elects not to consent to any Product manufacturedsuch Settlement, used Noven shall assume the defense of the claims and the Noven Patents from P&GP and, to the extent it is determined that Noven’s withholding of its consent to the Settlement was unreasonable, Noven shall indemnify P&GP for any further liability, claims or sold Proceedings related thereto or arising therefrom to the extent any damages, liabilities, costs and expenses of P&GP are in excess of any amounts P&GP otherwise would have been responsible for under this Agreement becomes the subject terms and conditions of the proposed Settlement. P&GP shall keep Noven reasonably informed of all significant developments in connection with any such Third Party Infringement Suit and Noven shall cooperate fully at P&GP’s expense in the defense of the Proceeding. If P&GP chooses not to defend a Third Party claim or there is Infringement Suit that implicates the potential for a claim for patent infringement anywhere in the worldTechnology, and irrespective of whether Gilead or Roche is charged with said infringement, the parties shall promptly meet to consider the claim and the appropriate course of action. Unless the parties otherwise agree, the party against which such Third Party infringement claim is brought shall defend against such claim at its sole expense and the other party Noven shall have the right, but not the obligation, to participate in any such suitdefend the Third Party Infringement Suit, at its sole option and at its own expense, using counsel reasonably acceptable to P&GP. Such other party shall reasonably cooperate with Noven may settle any such Proceeding under such terms that Noven deems advisable; provided, however, that no Settlement of any such Proceeding may be entered into, in whole or in part, by Noven without the party conducting the defense consent of the claim, including if required to conduct such defense, furnishing a power of attorney. Neither party shall enter into any settlement that affects the other party's rights or interests without such other party's written consentP&GP, which consent shall not be unreasonably withheldwithheld or delayed. If Noven shall keep P&GP reasonably informed of all significant developments in the opinion of Roche's counsel, a license connection with respect to any such Third Party patents is necessary to avoid substantial risks which could prevent Roche from making, using, selling, offering for sale or importing Product, then Roche Infringement Suit and P&GP shall notify Gilead cooperate fully at its own expense in the defense of such conclusion and the basis for it and give Gilead a reasonable opportunity to discuss Roche's opinion. If Gilead concurs in Roche's opinion, Roche shall have the right to negotiate directly with such Third Party for a license, and Roche shall be entitled to apply [ ] of Third Party Royalties for Net Sales in the country where the claim exists, as a credit against royalties due under Section 5.3; provided, however, that the aggregate credit taken in any given calendar quarter shall not exceed [ ] of the royalties payable to Gilead during that quarter, on a country-by-country basis, and shall be subject to further limitations as expressly set forth in Section 5.3. If Gilead does not concur with Roche's opinion, the matter shall be submitted to an independent counsel, selected by mutual consent and paid equally by Roche and Gilead, to determine whether there is a substantial [*] CONFIDENTIAL TREATMENT REQUESTEDInfringement Suit.

Infringement of Third Party Rights. In the event that any Product manufactured, used or sold under this Agreement becomes the subject of a Third Party claim or there is the potential for a claim for patent infringement anywhere in the world, and irrespective of whether Gilead or Roche is charged with said infringement, the parties shall promptly meet to consider the claim and the appropriate course of action. Unless the parties otherwise agree, the party against which such Third Party infringement claim is brought shall defend against such claim at its sole expense and the other party shall have the right, but not the obligation, to participate in any such suit, at its sole option and at its own expense. Such other party shall reasonably cooperate with the party conducting the defense of the claim, including if required to conduct such defense, furnishing a power of attorney. Neither party shall enter into any settlement that affects the other party's rights or interests without such other party's written consent, which consent shall not be unreasonably withheld. If in the opinion of Roche's counsel, a license with respect to such Third Party patents is necessary to avoid substantial risks which could prevent Roche from making, using, selling, offering for sale or importing Product, then Roche shall notify Gilead of such conclusion and the basis for it and give Gilead a reasonable opportunity to discuss Roche's opinion. If Gilead concurs in Roche's opinion, Roche shall have the right to negotiate directly with such Third Party for a license, and Roche shall be entitled to apply [ ] of Third Party Royalties for Net Sales in the country where the claim exists, as a credit against royalties due under Section 5.3; provided, however, that the aggregate credit taken in any given calendar quarter shall not exceed [ ] of the royalties payable to Gilead during that quarter, on a country-by-country basis, and shall be subject to further limitations as expressly set forth in Section 5.3. If Gilead does not concur with Roche's opinion, the matter shall be submitted to an independent counsel, selected by mutual consent and paid equally by Roche and Gilead, to determine whether there is a substantial [*[ ] CONFIDENTIAL TREATMENT REQUESTED

Infringement of Third Party Rights. In the event that any Product manufactured, used or sold under this Agreement becomes the subject of If a claim is brought by a Third Party alleging patent infringement by Licensee, Licensor, their Affiliates, or their sublicensees with respect to the manufacture, use, sale, offer for sale or importation of Licensed Products, or any third party challenges the validity or enforceability of any claims of any Licensed Patents, each Party will give prompt written notice to the other Party of such claim. The Parties shall promptly use commercially reasonable efforts to consult in good faith to develop a commercially reasonable strategy or strategies, which shall take into account the reasonable economic interests of both parties, for jointly and/or cooperatively responding to any such infringement claim or there is challenge to the potential for validity or enforceability of any Licensed Patents. If (i) the efforts of the Parties are unable to agree upon such a claim for patent infringement anywhere strategy within fifteen (15) business days of the notice described above or (ii) Licensor does not use commercially reasonable efforts to consult in good faith with Licensee concerning such a strategy, as described above, Licensee shall have the worldfirst and primary right (but not the obligation) at its own expense to defend, and irrespective of whether Gilead or Roche is charged with said infringementcontrol the defense of, the parties shall promptly meet to consider the claim and the appropriate course of action. Unless the parties otherwise agree, the party against which and/or settle any such Third Party infringement claim is against Licensee, its Affiliates, or their sublicensees or challenge of the validity or enforceability of the Licensed Patents, using counsel of its own choice. Licensor shall cooperate reasonably, as requested by Licensee and at Licensee expense (which expense shall be reasonable). With respect to any such defense. If, within six (6) months of the expiration of the fifteen (15) business day period noted above, Licensee (i) shall have been unsuccessful in defending such a challenge to the validity or enforceability of any claim of the Licensed Patents, (ii) shall not have brought and shall defend against not be diligently prosecuting litigation with respect to such claim at its sole expense and challenge, or (iii) has not entered into settlement discussions with respect to such challenge, or if Licensee notifies Licensor that it has decided not to undertake any of the other party foregoing with respect to such challenge, then Licensor shall then have the right, at its expense, to defend any Third Party challenge to the validity or enforceability of any claims in the Licensed Patents (but not the obligation, to participate in any such suit, at its sole option and at its own expense. Such other party shall reasonably cooperate with the party conducting the defense of the claim, including if required to conduct such defense, furnishing a power of attorney. Neither party shall enter into any settlement that affects the other party's rights claim or interests without such other party's written consent, which consent shall not be unreasonably withheld. If in the opinion of Roche's counsel, a license allegation referenced above except with respect to such any defense of any Third Party patents is necessary to avoid substantial risks which could prevent Roche from making, using, selling, offering for sale or importing Product, then Roche shall notify Gilead claim of such conclusion and the basis for it and give Gilead a reasonable opportunity to discuss Roche's opinion. If Gilead concurs in Roche's opinion, Roche shall have the right to negotiate directly with such Third Party for a licenseinfringement by Licensor), and Roche Licensee shall be entitled to apply [ ] of Third Party Royalties for Net Sales in the country where the claim existscooperate, as a credit against royalties due under Section 5.3; providedreasonably requested by Licensor and at Licensor expense, however, that the aggregate credit taken in with respect to any given calendar quarter shall not exceed [ ] of the royalties payable to Gilead during that quarter, on a country-by-country basis, and shall be subject to further limitations as expressly set forth in Section 5.3. If Gilead does not concur with Roche's opinion, the matter shall be submitted to an independent counsel, selected by mutual consent and paid equally by Roche and Gilead, to determine whether there is a substantial [*] CONFIDENTIAL TREATMENT REQUESTEDsuch defense.

Infringement of Third Party Rights. In the event that any Product manufactured, used If Xxxxxxx or sold under this Agreement becomes its Affiliates and Catalyst become the subject of a Third Party Party’s claim or there is the potential for assertion of infringement of a claim for patent infringement anywhere Patent in the world, and irrespective of whether Gilead Territory that is owned or Roche is charged with said infringement, the parties shall promptly meet to consider the claim and the appropriate course of action. Unless the parties otherwise agree, the party against which controlled by such Third Party infringement claim is brought shall defend against due to Catalyst’s manufacture, use, sale or importation of Licensed Product in the Territory, then Xxxxxxx will promptly notify Catalyst within two Business Days after receipt of such claim or assertion and will include in such notice a copy of any summons or complaint (or the equivalent thereof) received regarding the foregoing. Catalyst will be solely responsible for the defense of any such infringement claims brought against Xxxxxxx or its Affiliate and Catalyst (as joint defendants) in the Territory, at Catalyst’s cost and expense; provided that Catalyst will not agree to any settlement, consent to judgment, or other voluntary final disposition in connection with such defense action without prior written consent of Xxxxxxx (which shall not be unreasonably withheld, conditioned or delayed) if such settlement, consent to judgment, or other voluntary final disposition would (A) result in the admission of any liability or fault on behalf of Xxxxxxx, (B) result in or impose any payment obligations upon Xxxxxxx or any of its sole expense Affiliates, or (C) subject Xxxxxxx or any of its Affiliates to an injunction outside the Territory, or otherwise limit the ability of Xxxxxxx or any of its Affiliates to take any actions or refrain from taking any actions outside the Territory, with respect to a Licensed Product, the Licensed IP or the Compound. Catalyst will keep Xxxxxxx informed on the status of such defense action, and the other party shall Xxxxxxx will have the right, but not the obligation, to participate and be separately represented in any such suit, defense action at its sole option and at its own expense. Such other party shall reasonably cooperate with the party conducting the defense of the claim, including if required to conduct such defense, furnishing a power of attorney. Neither party shall enter into any settlement that affects the other party's rights or interests without such other party's written consent, which consent shall not be unreasonably withheld. If in the opinion of Roche's counsel, a license with respect to such Third Party patents is necessary to avoid substantial risks which could prevent Roche from making, using, selling, offering for sale or importing Product, then Roche shall notify Gilead of such conclusion and the basis for it and give Gilead a reasonable opportunity to discuss Roche's opinion. If Gilead concurs in Roche's opinion, Roche shall have the right to negotiate directly with such Third Party for a license, and Roche shall be entitled to apply [ ] of Third Party Royalties for Net Sales in the country where the claim exists, as a credit against royalties due under Section 5.3; provided, however, that the aggregate credit taken in any given calendar quarter shall not exceed [ ] of the royalties payable to Gilead during that quarter, on a country-by-country basis, and shall be subject to further limitations as expressly set forth in Section 5.3. If Gilead does not concur with Roche's opinion, the matter shall be submitted to an independent counsel, selected by mutual consent and paid equally by Roche and Gilead, to determine whether there is a substantial [*] CONFIDENTIAL TREATMENT REQUESTED.

Infringement of Third Party Rights. In (a) If (i) in the event opinion of counsel reasonably acceptable to both Licensor and Myriad, one or more Patents covering the research, development, Manufacture, use, or sale of the Licensed Compound or the Licensed Product has issued to a Third Party in any country such that Myriad cannot sell the Licensed Product in such country without infringing such Patent or (ii) as a result of any Product manufactured, used claim made against Myriad or sold under any of its Affiliates or Sublicensees during the term of this Agreement becomes alleging that the subject research, development, Manufacture, use, or sale of the Licensed Compound or Licensed Product by such entity infringes or misappropriates any Patent or any other intellectual property right of a Third Party claim in any country, a judgment is entered by a court of competent jurisdiction from which no appeal is taken within the time permitted for appeal, such that Myriad cannot sell the Licensed Product in such country without infringing the Patent or there is the potential for other proprietary rights of such Third Party, Myriad shall use its reasonable, good faith efforts to negotiate and obtain a claim for patent infringement anywhere in the world, and irrespective of whether Gilead or Roche is charged with said infringement, the parties shall promptly meet to consider the claim and the appropriate course of action. Unless the parties otherwise agree, the party against which license from such Third Party infringement claim is brought shall defend against such claim at its sole expense and that would permit Myriad to research, develop, Manufacture, use or sell the other party shall have Licensed Compound or the right, but not the obligation, to participate in any such suit, at its sole option and at its own expense. Such other party shall reasonably cooperate with the party conducting the defense of the claim, including if required to conduct such defense, furnishing a power of attorney. Neither party shall enter into any settlement that affects the other party's rights or interests without such other party's written consent, which consent shall not be unreasonably withheld. If in the opinion of Roche's counsel, a license with respect to such Third Party patents is necessary to avoid substantial risks which could prevent Roche from making, using, selling, offering for sale or importing Licensed Product, then Roche shall notify Gilead of as the case may be, in such conclusion and the basis for it and give Gilead a reasonable opportunity to discuss Roche's opinion. If Gilead concurs in Roche's opinion, Roche shall have the right to negotiate directly with such Third Party for a license, and Roche shall be entitled to apply [ ] of Third Party Royalties for Net Sales in the country where the claim exists, as a credit against royalties due under Section 5.3country; provided, however, that the aggregate credit taken in any given calendar quarter Myriad shall not exceed [ ] be obligated to attempt to negotiate a license if Myriad in good faith believes that such negotiation is likely to be futile. If Myriad obtains such a license in such country, any royalties paid by Myriad, its Affiliates, or Sublicensees under such license with respect to the sale of the Licensed Product in such country shall be totaled at the end of each Fiscal Quarter and shall be Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. creditable against future royalties paid to Licensor hereunder up to an amount equal to of the royalties payable paid to Gilead Licensor hereunder in respect of sales made in such country during such Fiscal Quarter. If Myriad is unable to obtain a license or if Myriad in good faith believes that quartersuch negotiation is likely to be futile, on a country-by-Myriad shall have the right to terminate this Agreement with respect to such country basis, and by written notice to Licensor. Nothing contained in this Section shall be subject construed to further limitations as expressly set forth in limit Myriad’s right to terminate this Agreement pursuant to Section 5.37.3. If Gilead does not concur Myriad is unable to obtain such a license, or such consideration to be paid to a Third Party for such license would make the Licensed Product commercially impracticable with Roche's opinionrespect to such country, then Myriad shall have the matter shall be submitted right to an independent counsel, selected terminate this Agreement with respect to such country by mutual consent and paid equally by Roche and Gilead, written notice to determine whether there is a substantial [*] CONFIDENTIAL TREATMENT REQUESTEDLicensor.

Infringement of Third Party Rights. In Each Party shall promptly notify the event that other Party in writing of any Product manufactured, used or sold under this Agreement becomes the subject of allegation by a Third Party that the activity of either Party pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Amylin shall have the sole right to control any defense of any such claim or there is the potential for a claim for patent involving alleged infringement anywhere in the worldof Third Party rights by Amylin’s activities, at its own expense and by counsel of its own choice, and irrespective of whether Gilead or Roche is charged with said infringement, the parties shall promptly meet to consider the claim and the appropriate course of action. Unless the parties otherwise agree, the party against which such Third Party infringement claim is brought shall defend against such claim at its sole expense and the other party Takeda shall have the right, but not the obligation, to participate in any such suit, at its sole option and at its own expense, to be represented in any such action by counsel of its own choice. Such other party Takeda shall reasonably cooperate with have the party conducting the sole right to control any defense of any such claim involving alleged infringement of Third Party rights by Takeda’s activities, at its own expense and by counsel of its own choice, and Amylin shall have the claimright, including if required at its own expense, to conduct be represented in any such defense, furnishing a power action by counsel of attorneyits own choice. Neither party Party shall enter into any settlement that affects or compromise of any action under this Section 12.5 which would in any manner alter, diminish, or be in derogation of the other party's Party’s rights or interests under this Agreement without the prior written consent of such other party's written consentParty, which consent shall not be unreasonably withheld. If In the event that it is determined by any court of competent jurisdiction that the research, Development, manufacture, distribution, use, sale, import, export or other Commercialization of a Licensed Compound or Product, conducted in accordance with the opinion terms and conditions of Roche's counselthis Agreement, infringes, or the OSC determines that such activities are likely to infringe, any patent, copyright, trademark, data exclusivity right or trade secret right arising under Applicable Laws of any Third Party, the Parties shall use Commercially Reasonable Efforts to: (i) procure a license with respect to from such Third Party patents is necessary authorizing Amylin and Takeda to avoid substantial risks which could prevent Roche from makingcontinue to conduct such activities; or (ii) modify such activities with Takeda’s prior written consent, using, selling, offering for sale or importing Product, then Roche shall notify Gilead of such conclusion and the basis for so as to render it and give Gilead a reasonable opportunity to discuss Roche's opinionnon-infringing. If Gilead concurs in Roche's opinion, Roche shall have the right to negotiate directly with a license is obtained from such Third Party for a license, and Roche the cost of such license shall be entitled allocated between the Parties in accordance with Section 8.5, provided the Parties have agreed to apply [ ] of Third Party Royalties for Net Sales in undertake such a cost. In the country where the claim exists, as a credit against royalties due under Section 5.3; provided, however, event that the aggregate credit taken in any given calendar quarter shall not exceed [ ] OSC decides that neither of the royalties payable to Gilead during that quarter, on a country-by-country basis, and shall be subject to further limitations as expressly set forth in Section 5.3. If Gilead does not concur with Roche's opinionforegoing alternatives is reasonably available or commercially feasible, the matter shall be submitted Parties may mutually agree to an independent counsel, selected by mutual consent and paid equally by Roche and Gilead, to determine whether there is a substantial [*] CONFIDENTIAL TREATMENT REQUESTEDterminate this Agreement for the Licensed Compound or Product affected in accordance with Section 13.2.5.