Common use of Litigation Actions Clause in Contracts

Litigation Actions. (i) shall have the first right, but not the obligation, to commence and control any Action related to any alleged infringement of the Licensed Patent Rights within the Field. In the event that **** elects, in its sole discretion, to undertake such an Action, **** agrees to reasonably cooperate with ****, including providing access to all necessary documents in **** control, executing all papers and performing such other acts as may be reasonably required for such Action, including, but not limited to, consenting to be joined as a Party plaintiff in such Action. **** shall control such Action, and **** may enter into settlements, stipulated judgments or other arrangements respecting such infringement; provided, however, **** shall reasonably consider the interests of **** and shall not settle or make any agreement that would have a material adverse effect on ****’s rights under this Agreement, without the prior written consent of Histogenics, which shall not be unreasonably delayed or denied. **** shall keep **** reasonably apprised of the progress of any such Action. **** may, at its option and sole expense, be represented by counsel of its choice, but all other costs associated with any such Action shall be at the sole expense of ****. (ii) If, within **** after discovering or being notified by **** in writing of an alleged infringement that would be the basis of a potential Action for any alleged infringement of the Licensed Patent Rights in “Patent Family 2” and/or “Patent Family 5” (as described in Exhibit A) solely within the Field (a “Declined Action”), **** declines to commence such Action, then **** shall have the right, but not the obligation, to commence such Declined Action; provided that prior to commencing any such Declined Action, **** shall reasonably consider ****’s reasons for declining to commence the Action. In the event that **** elects, in its sole discretion, to commence such Declined Action, (A) **** shall reasonably consider ****’s input with respect to such Declined Action, including the interests of Existing Angiotech Licensees; (B) **** shall not enter into any settlement without the prior written consent of ****; and (C) **** agrees to reasonably cooperate with ****, including providing access to all necessary documents in ****’s control, executing all papers and performing such other acts as may be reasonably required for such Declined Action, such as consenting to be joined as a party plaintiff in such Declined Action, at **** sole expense. **** shall keep **** reasonably apprised of the progress of any such Declined Action. **** may, at its option and sole expense, be represented by counsel of its choice, but all other costs associated with any such Declined Action shall be at the sole expense of ****. (iii) If, within **** after discovering or being notified by **** in writing of an alleged infringement that would be the basis of a potential Action for any alleged infringement of the Licensed Patent ****CERTAIN INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. Rights in “Patent Family 1”, “Patent Family 3” and/or “Patent Family 4” (as described in Exhibit A) solely within the Field (an “Other Action”), **** declines to commence such Action, then **** shall have the right, but not the obligation, to present such issue to ****, **** may commence such Other Action; provided that (X) **** shall reasonably consider ****’s input with respect to such Other Action, including the interest of Existing Angiotech Licensees; (Y) **** shall not enter into any settlement without the prior written consent of ****; and (Z) **** agrees to reasonably cooperate with ****, including providing access to all necessary documents in ****’s control, executing all papers and performing such other acts as may be reasonably required for such Other Action, such as consenting to be joined as a party plaintiff in such Other Action, at **** sole expense. **** shall keep **** reasonably apprised of the progress of any such Other Action. **** may, at its option and sole expense, be represented by counsel of its choice, but all other costs associated with any such Other Action shall be at the sole expense of ****.

Litigation Actions. (i) [***] shall have the first right, but not the obligation, to commence and control any Action related to any alleged infringement of the Licensed Patent Rights within the Field. In the event that [**** ] elects, in its sole discretion, to undertake such an Action, [**** ] agrees to reasonably cooperate with [****], including providing access to all necessary documents in [**** ] control, executing all papers and performing such other acts as may be reasonably required for such Action, including, but not limited to, consenting to be joined as a Party plaintiff in such Action. [**** ] shall control such Action, and [**** ] may enter into settlements, stipulated judgments or other arrangements respecting such infringement; provided, however, [**** ] shall reasonably consider the interests of [**** ] and shall not settle or make any agreement that would have a material adverse effect on [****]’s rights under this Agreement, without the prior written consent of Histogenics, which shall not be unreasonably delayed or denied. [**** ] shall keep [**** ] reasonably apprised of the progress of any such Action. [**** ] may, at its option and sole expense, be represented by counsel of its choice, but all other costs associated with any such Action shall be at the sole expense of [****]. (ii) If, within [**** ] after discovering or being notified by [**** ] in writing of an alleged infringement that would be the basis of a potential Action for any alleged infringement of the Licensed Patent Rights in “Patent Family 2” and/or “Patent Family 5” (as described in Exhibit A) solely within the Field (a “Declined Action”), [**** ] declines to commence such Action, then [**** ] shall have the right, but not the obligation, to commence such Declined Action; provided that prior to commencing any such Declined Action, [**** ] shall reasonably consider [****]’s reasons for declining to commence the Action. In the event that [**** ] elects, in its sole discretion, to commence such Declined Action, (A) [**** ] shall reasonably consider [****]’s input with respect to such Declined Action, including the interests of Existing Angiotech Licensees; (B) [**** ] shall not enter into any settlement without the prior written consent of [****]; and (C) [**** ] agrees to reasonably cooperate with [****], including providing access to all necessary documents in [****]’s control, executing all papers and performing such other acts as may be reasonably required for such Declined Action, such as consenting to be joined as a party plaintiff in such Declined Action, at [**** ] sole expense. [**** ] shall keep [**** ] reasonably apprised of the progress of any such Declined Action. [**** ] may, at its option and sole expense, be represented by counsel of its choice, but all other costs associated with any such Declined Action shall be at the sole expense of [****]. (iii) If, within [**** ] after discovering or being notified by [**** ] in writing of an alleged infringement that would be the basis of a potential Action for any alleged infringement of the Licensed Patent ****CERTAIN INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. Rights in “Patent Family 1”, “Patent Family 3” and/or “Patent Family 4” (as described in Exhibit A) solely within the Field (an “Other Action”), [**** ] declines to commence such Action, then [**** ] shall have the right, but not the obligation, to present such issue to [****], [**** ] may commence such Other Action; provided that (X) [**** ] shall reasonably consider [****]’s input with respect to such Other Action, including the interest of Existing Angiotech Licensees; (Y) [**** ] shall not enter into any settlement without the prior written consent of [****]; and (Z) [**** ] agrees to reasonably cooperate with [****], including providing access to all necessary documents in [****]’s control, executing all papers and performing such other acts as may be reasonably required for such Other Action, such as consenting to be joined as a party plaintiff in such Other Action, at [**** ] sole expense. [**** ] shall keep [**** ] reasonably apprised of the progress of any such Other Action. [**** ] may, at its option and sole expense, be ​ ​ represented by counsel of its choice, but all other costs associated with any such Other Action shall be at the sole expense of [****].