Common use of Manufacturing Process Clause in Contracts

Manufacturing Process. (a) In the event that any Third Party commences any Action against either Party or any of such Party’s Affiliates alleging that the manufacture of Product (including the use of any Pfenex Technology in the manufacture of Product) infringes any Intellectual Property of such Third Party (a “Manufacturing Action”), the Party against whom such Action is commenced shall provide the other Party prompt written notice thereof. Following receipt of such notice, Hospira shall have the sole right to determine the appropriate course of action, including by way of example, assuming and controlling the defense of such Manufacturing Action and/or seeking a license from such Third Party with respect to such Third Party’s Intellectual Property. If Hospira elects to assume control over the defense of any such Manufacturing Action where Pfenex or its Affiliate is a defendant, then Pfenex or its Affiliate shall have the right to participate with counsel of its selection (at Pfenex’s sole cost and expense) and Hospira shall subject to Section 6.5(c) continue to control and defend Pfenex or its Affiliate until final judgment in such Manufacturing Action. [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. (b) Pfenex shall provide all cooperation and assistance reasonably requested by Hospira in connection with any Manufacturing Action, including (i) providing Hospira with detailed responses to its inquiries, (ii) providing Hospira with documents (whether in written, electronic or other form) related to the manufacturing process or the practice of the Pfenex Technology, (iii) identifying and describing any Intellectual Property that has been incorporated into the processes to manufacture Product by Pfenex, and (iv) identifying and providing witnesses who will assist in the preparation of evidence, provide written evidence, appear as witnesses in court and assist in other ways that Hospira reasonably requests. (c) Hospira may settle, compromise or consent to any judgment with respect to any Manufacturing Action without the prior written consent of Pfenex on fifteen (15) Business Days’ notice to Pfenex (together with a complete copy of such proposed settlement, compromise, consent or judgment and such other documents as Pfenex may reasonably request); provided, that if prior to the expiration of such fifteen (15) Business Day period, Pfenex determines in good faith, and advises Hospira of such determination in writing, that such settlement, compromise or consent to judgment would likely have a material adverse impact on Pfenex, or its Affiliate or their rights, then Hospira shall not settle, compromise or consent to any judgment with respect to such Manufacturing Action without the prior written consent of Pfenex (not to be unreasonably withheld, delayed or conditioned). (d) Pfenex will be responsible for all costs relating to any settlements, compromises or judgments arising from (and shall promptly reimburse Hospira for its out-of-pocket costs and expenses in connection with) any Manufacturing Action to the extent alleging that the Manufacturing Strain (or any constituent component thereof) infringes any Intellectual Property of any Third Party.