Common use of Third Party Actions Clause in Contracts

Third Party Actions. A. If at any time any Third Party shall infringe to a commercially substantial extent any patent licensed hereunder then Targent shall promptly inform Strathclyde of such infringement and Strathclyde and Targent shall, subject to Paragraph (B) of this Article, either (a) obtain a discontinuance of said infringing operations or (b) bring suit at their own expense against such infringer, bringing said suit in the name of Strathclyde and, if so required by the law of the forum, bringing suit in the name of Targent or joining Targent as a party plaintiff with Strathclyde. Strathclyde and Targent shall be entitled to receive their reasonable costs of litigation, Strathclyde shall retain one percent (1%) of the Net Sales of infringing products according to the formula described in Article III(A)(2) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event that Strathclyde does not participate in such a suit against a Third Party as provided in paragraph (A) of this Article, then Targent may at its election bring suit in its own name against such infringer. Should Targent bring suit in its own name, Strathclyde shall execute such legal papers necessary for the prosecution of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses of such litigation and shall be entitled to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at the rate of 1% in respect of such recoveries, according to the formula described in Article III(A)(2) (after Targent’s reasonable expenses of such litigation). C. If a Third Party makes or threatens against Targent or its Sublicensees any claim of infringement of a patent right based upon the use of, or arising as a result of the exercise of the rights and licenses granted hereunder to the Licensed Patents (each an “Alleged Infringement”), Targent shall have the right to respond to and defend any and all such Alleged Infringements at its or their own cost and expense, and in its or their sole discretion. Strathclyde shall provide any necessary assistance that Targent may reasonably require in any such defense action. Strathclyde shall have the right, at its own expense, to retain counsel of its choice to represent it in any such defense action. Targent shall notify Strathclyde in writing and provide a copy of (i) any claim of Alleged Infringement filed with a court or governmental authority or (ii) any written notice of an Alleged Infringement from an attorney or law firm. In the event an injunction is issued against Targent because of infringement of Third Party intellectual property rights, the Parties will confer to decide their future course of action regarding Licensed Products and sharing liability for Targent’s expenses.

Third Party Actions. A. If at any time any Third Party shall infringe to a commercially substantial extent any patent licensed hereunder then Targent shall promptly inform Strathclyde of such infringement and Strathclyde and Targent shall, subject to Paragraph (B) of this Article, either (a) obtain a discontinuance of said infringing operations or (b) bring suit at their own expense against such infringerTo Myogen’s knowledge, bringing said suit in the name of Strathclyde and, if so required by the law of the forum, bringing suit in the name of Targent or joining Targent as a party plaintiff with Strathclyde. Strathclyde and Targent shall be entitled to receive their reasonable costs of litigation, Strathclyde shall retain one percent (1%) of the Net Sales of infringing products according to the formula described in Article III(A)(2) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event that Strathclyde does not participate in such a suit against a Third Party as provided in paragraph (A) of this Article, then Targent may at its election bring suit in its own name against such infringer. Should Targent bring suit in its own name, Strathclyde shall execute such legal papers necessary for the prosecution of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses of such litigation and shall be entitled to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at the rate of 1% in respect of such recoveries, according to the formula described in Article III(A)(2) (after Targent’s reasonable expenses of such litigation). C. If a Third Party makes or threatens against Targent or its Sublicensees any claim of infringement of a patent right based upon the use of, or arising as a result of the exercise of the rights and licenses granted by NIBRI hereunder will not result in the infringement of valid patents of Third Parties in the Cardiac Field. Nevertheless, each party will promptly notify the other in the event any relevant Third Party patents come to its notice. Neither party gives a warranty to the Licensed Patents (each an “Alleged Infringement”)other regarding the infringement of Third Party rights by the development, Targent shall have manufacture, use or sale of the right to respond to and defend any and all such Alleged Infringements at its Development Candidate or their own cost and expensethe practice of the Myogen Technology or the NIBRI Technology, and gives no indemnity against costs, damages, expenses or other losses arising out of proceedings brought against the other party or any other Person by any Third Party. In the event NIBRI is sued for infringement of any rights of any Third Party in the course of its development, manufacture, marketing and sale of Development Candidate in the Cardiac Field or their sole discretion. Strathclyde its use of Myogen Technology in connection therewith, Myogen shall provide any necessary extend to NIBRI, at no charge, good faith assistance that Targent and support in defending such action, and may reasonably require participate in any such defense action. Strathclyde shall have the right, conduct of the suit at its own expense, to retain counsel of its choice to represent it but shall otherwise be under no obligation in any respect thereof. Legal expenses and fees arising from such defense action. Targent a legal action shall notify Strathclyde in writing and provide a copy of be paid by NIBRI. (ib) any claim of Alleged Infringement filed with a court or governmental authority or (ii) any written notice of an Alleged Infringement from an attorney or law firm. In the event an injunction that the development of Development Candidate or the sale of a Drug Product for indications within the Cardiac Field in any country necessarily involves working within the scope of a Third Party’s patent, which would otherwise be infringed by the practice of a Myogen Patent in connection with such development or sale, then Myogen will use reasonable efforts to obtain required licenses under the Third Party’s patents, under terms reasonably acceptable to both Myogen and NIBRI, and the terms of Section 4.5(c) hereof shall apply; provided that neither Myogen nor NIBRI shall be required to accept any license which carries a financial obligation which is issued against Targent because materially in excess of infringement the range of financial obligations customarily associated with comparable non-exclusive licenses. If the terms of a required license under a Third Party intellectual property rightspatent do not meet the foregoing requirements and Myogen therefore elects not to assume any financial obligation, NIBRI may nonetheless elect to obtain the Parties will confer license, to decide their future course continue sales of Drug Product in such country and to pay, itself, any amounts due under such license. If the required license is either unavailable or its terms are unacceptable both to Myogen and to NIBRI, then NIBRI may elect in its sole discretion to discontinue sales of the Drug Product in such country or at its sole expense to undertake the defense of a patent infringement action regarding Licensed Products and sharing liability for Targent’s expensesor the prosecution of a declaratory judgment action with respect to the Third Party patents.

Third Party Actions. A. If at any time any Third Party shall infringe to a commercially substantial extent any patent licensed hereunder then Targent shall promptly inform Strathclyde of such infringement and Strathclyde and Targent shall, subject to Paragraph (B) of this Article, either (a) obtain a discontinuance of said infringing operations or (b) bring suit at their own expense against such infringer, bringing said suit in the name of Strathclyde and, if so required by the law of the forum, bringing suit in the name of Targent or joining Targent as a party plaintiff with Strathclyde. Strathclyde and Targent shall be entitled to receive their reasonable costs of litigation, Strathclyde shall retain one percent (1%) of the Net Sales of infringing products according to the formula described in Article III(A)(2) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event that Strathclyde does not participate in such a suit against a any Third Party as provided in paragraph (A) of this Article, then Targent may at its election bring suit in its own name commences any Action against such infringer. Should Targent bring suit in its own name, Strathclyde shall execute such legal papers necessary for the prosecution either Party or any of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses Party’s Affiliates alleging that the Product (including the use or the manufacture of Product) infringes any Intellectual Property of such litigation and shall be entitled to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at the rate of 1% in respect of such recoveries, according to the formula described in Article III(A)(2) (after Targent’s reasonable expenses of such litigation). C. If a Third Party makes or threatens against Targent or its Sublicensees any claim of infringement of in the Territory (a patent right based upon the use of, or arising as a result of the exercise of the rights and licenses granted hereunder to the Licensed Patents (each an “Alleged InfringementThird Party Action”), Targent the Party against whom such Action is commenced shall provide the other Party prompt written notice thereof, and Alvogen shall have the sole right and responsibility to control the defense of such Third Party Action (including the right to seek any license from such Third Party, or enter into any settlement or compromise or consent to any judgment with respect thereto) at Alvogen’s sole expense. If Pfenex or its Affiliate is a defendant, then Pfenex or its Affiliate shall have the right to respond to and defend any and all such Alleged Infringements participate with counsel of its selection (at its or their own cost and expense) and Alvogen shall use counsel reasonably acceptable to Pfenex, at Alvogen’s sole cost and expense, and Alvogen shall continue to control and defend Pfenex or its Affiliate until final judgment or settlement in its or their sole discretion. Strathclyde such Third Party Action. (b) Pfenex shall provide any necessary cooperation and assistance that Targent may reasonably require requested by Alvogen in connection with any such defense action. Strathclyde Third Party Action, including (i) providing Alvogen with detailed responses to its inquiries, and (ii) identifying and providing witnesses who will assist in the preparation of evidence, provide written evidence, appear as witnesses in court. (c) In the event that, in the reasonable judgment of Alvogen (after consultation with Pfenex), a Third Party is likely to commence an Action against either Party or any of such Party’s Affiliates alleging that the Product (including the use or the manufacture of Product) infringes any Intellectual Property of such Third Party in the Territory, then Alvogen shall have the rightsole right and responsibility to conduct inter partes actions, at its own expenseconduct post-grant proceedings [***]Certain confidential information contained in this document, to retain counsel of its choice to represent marked by brackets, has been omitted because it in any such defense action. Targent shall notify Strathclyde in writing and provide a copy of is both (i) any claim of Alleged Infringement filed with a court or governmental authority or not material and (ii) would be competitively harmful if publicly disclosed. before any written notice Patent Office or seek a declaratory judgment in respect of an Alleged Infringement from an attorney or law firm. In any Patent that may be asserted against the event an injunction is issued against Targent because of infringement of Third Party intellectual property rights, the Parties will confer to decide their future course of action regarding Licensed Products and sharing liability for Targent’s expensesProduct.

Third Party Actions. A. If at any time any Third Party shall infringe to Action is begun, made or instituted by a commercially substantial extent any patent licensed hereunder then Targent shall promptly inform Strathclyde of such infringement and Strathclyde and Targent shall, subject to Paragraph (B) of this Article, either (a) obtain a discontinuance of said infringing operations or (b) bring suit at their own expense against such infringer, bringing said suit in the name of Strathclyde and, if so required by the law of the forum, bringing suit in the name of Targent or joining Targent as a party plaintiff with Strathclyde. Strathclyde and Targent shall be entitled to receive their reasonable costs of litigation, Strathclyde shall retain one percent (1%) of the Net Sales of infringing products according to the formula described in Article III(A)(2) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event that Strathclyde does not participate in such a suit against a Third Party as provided in paragraph (A) of this Article, then Targent may at its election bring suit in its own name against such infringer. Should Targent bring suit in its own name, Strathclyde shall execute such legal papers necessary for the prosecution of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses of such litigation and shall be entitled to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at the rate of 1% in respect of such recoveries, according to the formula described in Article III(A)(2) (after Targent’s reasonable expenses of such litigation). C. If a Third Party makes or threatens against Targent or its Sublicensees any claim of infringement of a patent right based upon the use of, or arising third Person as a result of which any Indemnifying Party may become obligated to an Indemnified Party, such Indemnified Party shall give written notice to the exercise Indemnifying Party. The Indemnifying Party agrees to defend, contest or otherwise protect the Indemnified Party against any Action at the Indemnifying Party’s sole cost and expense. The Indemnified Party shall have the right, but not the obligation, to participate at his, her or its own expense in the defense thereof by counsel of the rights Indemnified Party’s choice and licenses granted hereunder shall in any event cooperate with and assist the Indemnifying Party to the Licensed Patents extent reasonably possible. If the Indemnifying Party fails to timely defend, contest or otherwise protect against such Action or send a reservation of rights as set forth in clause (each an “Alleged Infringement”)A) below, Targent the Indemnified Party shall have the right to respond do so, including, without limitation, the right to and defend make any and all such Alleged Infringements at its compromise or their own cost and expensesettlement thereof, and the Indemnified Party shall be entitled to recover the entire cost thereof from the Indemnifying Party, including, without limitation, reasonable attorneys’ fees, disbursements and amounts paid as the result of such Action, and the Indemnifying Party shall be bound by any determination made in its such Action or their sole discretionany compromise or settlement effected by the Indemnified Party. Strathclyde shall provide If the Indemnifying Party assumes the defense of any necessary assistance Action, (A) it will be conclusively established for purposes of this Agreement that Targent may reasonably require the claims made in any such defense action. Strathclyde shall have that Action are within the rightscope of and subject to indemnification, at its own expense, to retain counsel of its choice to represent it in any such defense action. Targent shall notify Strathclyde in writing and provide a copy of (i) any claim of Alleged Infringement filed with a court or governmental authority or (ii) any unless the Indemnifying Party delivers written notice to the Indemnified Party reserving the right to deny indemnification and/ or defense of an Alleged Infringement from an attorney the Action thereafter (in which case the Indemnified Party may assume the defense of such Action unless such reservation of rights is withdrawn within thirty (30) days), and (B) no compromise or law firm. In settlement of such claims may be effected by any Indemnifying Party without the event an injunction is issued against Targent because of infringement of Third Party intellectual property rights, the Parties will confer Indemnified Party’s consent (not to decide their future course of action regarding Licensed Products and sharing liability for Targent’s expensesbe unreasonably withheld or delayed).

Third Party Actions. A. If at any time third Person shall commence an Action against any Indemnified Party with respect to any matter (a “Third Party shall infringe Action”) which may give rise to a commercially substantial extent any patent licensed hereunder claim for indemnification under Article IX, then Targent the Indemnified Party shall notify the Indemnifying Party, in writing promptly inform Strathclyde after becoming aware of such infringement Third Party Action, describing in reasonable detail the Third Party Action (such notice is called a “Action Notice”), and Strathclyde and Targent shall, subject to Paragraph (B) of this Article, either (a) obtain including a discontinuance of said infringing operations or (b) bring suit at their own expense against such infringer, bringing said suit in the name of Strathclyde and, if so required by the law of the forum, bringing suit in the name of Targent or joining Targent as a party plaintiff with Strathclyde. Strathclyde and Targent shall be entitled to receive their reasonable costs of litigation, Strathclyde shall retain one percent (1%) of the Net Sales of infringing products according reference to the formula described in Article III(A)(2) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event that Strathclyde does not participate in such a suit against a Third Party as provided in paragraph (A) of this Article, then Targent may at its election bring suit in its own name against such infringer. Should Targent bring suit in its own name, Strathclyde shall execute such legal papers necessary for the prosecution of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses of such litigation and shall be entitled to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at the rate of 1% specific provisions hereof in respect of such recoverieswhich indemnification is sought. It is agreed that no delay on the part of any Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from its obligations hereunder, according except to the formula described in Article III(A)(2) (after Targent’s reasonable expenses extent that the Indemnifying Party or its right to conduct defense of such litigation). C. If a claim is actually and materially prejudiced thereby. The Indemnifying Party may elect to defend against such Third Party makes or threatens against Targent or its Sublicensees any claim Action; provided, however, that if, by 5:00 p.m., New York, New York time on the tenth (10th) Business Day after delivery of infringement of a patent right based upon the use ofAction Notice, the Indemnifying Party does not respond to the Action Notice, or arising as a result of the exercise of the rights and licenses granted hereunder responds to the Licensed Patents (each an “Alleged Infringement”)Action Notice but elects not to assume the defense, Targent the Indemnified Party shall have the right to respond defend against and settle such Third Party Action as the Indemnified Party deems appropriate, and the Indemnifying Party shall pay all Damages resulting from such Third Party Action in accordance herewith; provided, further, that if the Indemnifying Party affirmatively denies any indemnification obligation in its response to the Action Notice, any right of the Indemnified Party to recover from the Indemnifying Party shall depend on the resolution of the dispute regarding the right of indemnity in accordance with Section 10.5. Notwithstanding anything herein to the contrary, if the Indemnifying Party notifies the Indemnified Party that it will defend against any Third Party Action: (i) such defense or settlement shall be at the sole cost of the Indemnifying Party; (ii) the Indemnifying Party and defend any its counsel shall (A) conduct such defense or settlement at all times in good faith, (B) at the request of the Indemnified Party provide periodic updates as to the status of such defense, and all (C) not compromise or settle such Alleged Infringements Third Party Action without the prior written consent of the Indemnified Party; (iii) the Indemnified Party (A) shall reasonably cooperate with the Indemnifying Party, including making available to the Indemnifying Party, relevant witnesses and pertinent documents, (B) may elect to employ its own counsel and participate in such defense at its or their own the Indemnified Party’s cost and expense, and in its or their sole discretion. Strathclyde shall provide any necessary assistance that Targent may reasonably require in any such defense action. Strathclyde shall have (C) notwithstanding the rightIndemnifying Party’s election to defend against the Third Party Action, at upon written notice to the Indemnifying Party, elect to employ its own expensecounsel and assume control of the defense of the Third Party Action if (1) the Indemnifying Party is also a Person against whom the Third Party Action is asserted and the Indemnified Party has been advised by counsel that representation of both parties by the same counsel could present a conflict of interest; or (2) the Indemnifying Party shall not have employed counsel satisfactory to the Indemnified Party; provided, that the assumption of control of the defense of a Third Party Action by the Indemnified Party pursuant to retain counsel this clause (C) shall not relieve the Indemnifying Party of its choice obligation to represent it in any such defense action. Targent shall notify Strathclyde in writing indemnify and provide a copy of (i) any claim of Alleged Infringement filed with a court or governmental authority or (ii) any written notice of an Alleged Infringement from an attorney or law firm. In hold harmless the event an injunction is issued against Targent because of infringement of Third Party intellectual property rights, the Parties will confer to decide their future course of action regarding Licensed Products and sharing liability for Targent’s expensesIndemnified Party.

Third Party Actions. A. If at any time any Third Party shall infringe to a commercially substantial extent any patent licensed hereunder then Targent shall promptly inform Strathclyde of such infringement and Strathclyde and Targent shall, subject to Paragraph (B) of this Article, either (a) obtain a discontinuance of said infringing operations or (b) bring suit at their own expense against such infringerTo Myogen's knowledge, bringing said suit in the name of Strathclyde and, if so required by the law of the forum, bringing suit in the name of Targent or joining Targent as a party plaintiff with Strathclyde. Strathclyde and Targent shall be entitled to receive their reasonable costs of litigation, Strathclyde shall retain one percent (1%) of the Net Sales of infringing products according to the formula described in Article III(A)(2) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event that Strathclyde does not participate in such a suit against a Third Party as provided in paragraph (A) of this Article, then Targent may at its election bring suit in its own name against such infringer. Should Targent bring suit in its own name, Strathclyde shall execute such legal papers necessary for the prosecution of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses of such litigation and shall be entitled to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at the rate of 1% in respect of such recoveries, according to the formula described in Article III(A)(2) (after Targent’s reasonable expenses of such litigation). C. If a Third Party makes or threatens against Targent or its Sublicensees any claim of infringement of a patent right based upon the use of, or arising as a result of the exercise of the rights by NIBRI hereunder will not result in the infringement of valid patents of Third Parties. [/\#/\]CONFIDENTIAL TREATMENT REQUESTED License, Development and licenses granted hereunder Commercialization Agreement - Confidential - Page 28 Nevertheless, each party will promptly notify the other in the event any relevant Third Party patents come to its notice. Neither party gives a warranty to the Licensed Patents (each an “Alleged Infringement”)other regarding the infringement of Third Party rights by the development, Targent shall have manufacture, use or sale of the right to respond to and defend any and all such Alleged Infringements at its Development Candidate or their own cost and expensethe practice of the Myogen Technology or the NIBRI Technology, and gives no indemnity against costs, damages, expenses or other losses arising out of proceedings brought against the other party or any other Person by any Third Party. In the event NIBRI is sued for infringement of any rights of any Third Party in the course of its development, manufacture, marketing and sale of Development Candidate or their sole discretion. Strathclyde its use of Myogen Technology in connection therewith, Myogen shall provide any necessary extend to NIBRI, at no charge, good faith assistance that Targent and support in defending such action, and may reasonably require participate in any such defense action. Strathclyde shall have the right, conduct of the suit at its own expense, to retain counsel of its choice to represent it but shall otherwise be under no obligation in any respect thereof. Legal expenses and fees arising from such defense action. Targent a legal action shall notify Strathclyde in writing and provide a copy of be paid by NIBRI. (ib) any claim of Alleged Infringement filed with a court or governmental authority or (ii) any written notice of an Alleged Infringement from an attorney or law firm. In the event an injunction that the development of Development Candidate or the sale of a Drug Product in any country necessarily involves working within the scope of a Third Party's patent, which would otherwise be infringed by the practice of a Myogen Patent in connection with such development or sale, then Myogen will use reasonable efforts to obtain required licenses under the Third Party's patents, under terms reasonably acceptable to both Myogen and NIBRI, and the terms of Section 4.5(c) hereof shall apply; provided that neither Myogen nor NIBRI shall be required to accept any license which carries a financial obligation which is issued against Targent because materially in excess of infringement the range of financial obligations customarily associated with comparable non-exclusive licenses. If the terms of a required license under a Third Party intellectual property rightspatent do not meet the foregoing requirements and Myogen therefore elects not to assume any financial obligation, NIBRI may nonetheless elect to obtain the Parties will confer license, to decide their future course continue sales of Drug Product in such country and to pay, itself, any amounts due under such license. If the required license is either unavailable or its terms are unacceptable both to Myogen and to NIBRI, then NIBRI may elect in its sole discretion to discontinue sales of the Drug Product in such country or at its sole expense to undertake the [/\#/\]CONFIDENTIAL TREATMENT REQUESTED defense of a patent infringement action regarding Licensed Products and sharing liability for Targent’s expensesor the prosecution of a declaratory judgment action with respect to the Third Party patents.

Third Party Actions. A. If at any time any Third Party shall infringe to a commercially substantial extent any patent licensed hereunder then Targent shall promptly inform Strathclyde of such infringement and Strathclyde and Targent shall, subject to Paragraph (B) of this Article, either (a) obtain a discontinuance of said infringing operations or (b) bring suit at their own expense against such infringer, bringing said suit in the name of Strathclyde and, if so required by the law of the forum, bringing suit in the name of Targent or joining Targent as a party plaintiff with Strathclyde. Strathclyde and Targent shall be entitled to receive their reasonable costs of litigation, Strathclyde shall retain one percent (1%) of the Net Sales of infringing products according to the formula described in Article III(A)(2) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event any claim is made, suit is brought or tax audit or other proceeding is instituted against Purchaser, Seller or the Company which involves or appears reasonably likely to involve a Loss, the indemnified party will, promptly after receipt of notice of any such claim, suit or proceedings for which indemnification may be sought, notify, which notice will describe such claim, suit or proceeding in reasonable detail, the indemnifying party of the commencement thereof. The failure to so notify the indemnifying party of the commencement of any such claim, suit or proceeding will relieve the indemnifying party from liability under Article VII hereof only to the extent that Strathclyde does not participate such failure materially adversely affects the ability of the indemnifying party to defend its interests in such a suit against a Third Party as provided in paragraph claim, action or proceedings. The indemnifying party (A) of this Article, then Targent may at its election bring suit in its own name against such infringer. Should Targent bring suit in its own name, Strathclyde expense) shall execute such legal papers necessary for have the prosecution of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses of such litigation right and shall be entitled given the opportunity to receive and retain all recoveries therefrom provided it shall pay defend with its own counsel such claim, suit or proceedings. If the indemnifying party does not elect to Strathclyde royalties at undertake the rate defense of 1% in respect any such claim, suit or proceeding, within a reasonable period after receipt of such recoveriesnotice of the same, according the indemnified party (upon further notice to the formula described in Article III(A)(2indemnifying party) (after Targent’s reasonable expenses of such litigation). C. If a Third Party makes or threatens against Targent or its Sublicensees any claim of infringement of a patent right based upon the use of, or arising as a result of the exercise of the rights and licenses granted hereunder to the Licensed Patents (each an “Alleged Infringement”), Targent shall have the right to respond undertake the defense of such claim, suit or proceedings, subject to the right of the indemnifying party to assume the defense of such claim, suit or proceeding at any time prior to its final determination or settlement. If the indemnifying party shall undertake such defense, the indemnified party shall cooperate fully with the indemnifying party and defend any and all such Alleged Infringements at its or their own cost and expense, and in its or their sole discretioncounsel with respect thereto. Strathclyde shall provide any necessary assistance that Targent may reasonably require in any such defense action. Strathclyde shall have the rightThe indemnified party shall, at its own expense, have the right to retain counsel participate in the defense of such claim, suit or proceeding. The indemnified party shall not, except at its choice own cost, make any settlement with respect to represent it in any such defense action. Targent shall notify Strathclyde in writing and provide a copy claim, suit or proceeding without the prior consent of (i) any claim of Alleged Infringement filed with a court or governmental authority or (ii) any written notice of an Alleged Infringement from an attorney or law firmthe indemnifying party. In the event an injunction is issued against Targent because that the indemnified party determines to settle any such claim, suit or proceeding without such prior consent of infringement of Third Party intellectual property rightsthe indemnifying party, the Parties will confer indemnifying party shall have no further indemnification obligations under this Article VII with respect to decide their future course of action regarding Licensed Products and sharing liability for Targent’s expensessuch claim, suit or proceeding.

Third Party Actions. A. If at In the event any time any Action is instituted against an Indemnified Party which involves or appears reasonably likely to involve an Indemnification Claim hereunder (a “Third Party shall infringe Claim”), the Indemnified Party will notify the applicable Claim Recipient as provided in Section 7.2(d)(i). The failure to so notify the applicable Claim Recipient of the commencement of any such Action will relieve the indemnifying party from liability in connection therewith only if and to the extent that such failure materially and adversely affects the ability of the indemnifying party to defend their interests in such Action. After receipt of an Indemnification Claim Certificate relating to a commercially substantial extent any patent licensed hereunder then Targent Third Party Claim, in the case of the Selling Stockholders, if the Stockholder Representative furnishes to the Indemnified Party evidence reasonably satisfactory to the Indemnified Party that the Selling Stockholders have and will have sufficient financial resources to fund on a current basis the cost of defending the Third-Party Claim and paying all Damages that may arise under the Third-Party Claim (subject to all limitations set forth in this Article 7), the indemnifying party shall promptly inform Strathclyde be entitled, if it so elects, at its own cost, risk and expense, (i) to take control of the defense and investigation of such infringement Third Party Claim and Strathclyde (ii) to employ and Targent shallengage attorneys of its own choice to handle and defend the same. Notwithstanding the foregoing, subject to Paragraph the Stockholder’s Representative (B) of this Article, either (a) obtain a discontinuance of said infringing operations or (b) bring suit at their own expense against such infringer, bringing said suit in the name of Strathclyde and, if so required by the law on behalf of the forum, bringing suit in the name of Targent or joining Targent as a party plaintiff with Strathclyde. Strathclyde and Targent Selling Stockholders) shall continue to be entitled to receive their assert any limitation on any claims made pursuant to Section 7.2(a). If the indemnifying party fails to assume the defense of such Third Party Claim within thirty (30) business days after receipt of the Indemnification Claim Certificate, or if (i) the claim seeks only an injunction or other equitable relief, (ii) the Indemnified Party shall have been advised by counsel that there are one or more legal or equitable defenses available to it which are different from or in addition to those available to the indemnifying party and, in the reasonable costs opinion of litigationthe Indemnified Party, Strathclyde shall retain one percent counsel for the indemnifying party could not adequately represent the interests of the Indemnified Party because such interests could be in conflict with those of the indemnifying party, (1%iii) (where the Selling Stockholders are the indemnifying party) in excess of one-half (1/2) of the Net Sales amount of infringing products according Damages reasonably claimed would be borne, if the claim is adversely determined, by Purchaser by virtue of the operation of the Basket or the indemnity caps provided in this Agreement, or (iv) the claim results from any Action brought by a Governmental Entity, then the Indemnified Party against which such Third Party Claim has been asserted will (upon delivering notice to such effect to the formula described in Article III(A)(2indemnifying party) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event that Strathclyde does not participate in such a suit against a Third Party as provided in paragraph (A) of this Article, then Targent may at its election bring suit in its own name against such infringer. Should Targent bring suit in its own name, Strathclyde shall execute such legal papers necessary for the prosecution of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses of such litigation and shall be entitled to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at the rate of 1% in respect of such recoveries, according to the formula described in Article III(A)(2) (after Targent’s reasonable expenses of such litigation). C. If a Third Party makes or threatens against Targent or its Sublicensees any claim of infringement of a patent right based upon the use of, or arising as a result of the exercise of the rights and licenses granted hereunder to the Licensed Patents (each an “Alleged Infringement”), Targent shall have the right to respond undertake the defense of such Claim. The Indemnified Party shall, with respect to and defend any and all such Alleged Infringements at its or their own cost and expenseThird Party Claim, and in its or their sole discretion. Strathclyde shall provide any necessary assistance that Targent may reasonably require promptly deliver to the indemnifying party, but in any event within ten (10) business days after the Indemnified Party’s receipt thereof, copies of all notices, court papers and material correspondence received by the Indemnified Party relating to the Third Party Claim. The party that assumes the defense of the Third Party Claim shall keep the other party reasonably informed of the progress of any such defense, compromise or settlement. Notwithstanding the foregoing, the Indemnified Party (or, if the Indemnified Party controls the defense, the indemnifying party) may participate in such defense action. Strathclyde shall have the right, or settlement at its own expense. The Indemnified Party shall, at the expense of the indemnifying party, provide such information and documentation that is not subject to retain counsel the attorney-client privilege or other applicable privilege or under court seal as the indemnifying party may reasonably request in order to evaluate its indemnification obligations hereunder in order to determine whether to assume the defense of its choice such Third Party Claim. Should the indemnifying party elect to represent it in any assume the defense of a Third Party Claim, does assume such defense actionand does not lose the right to control such defense pursuant to the terms of this Agreement, the indemnifying party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. Targent shall notify Strathclyde in writing and provide a copy of (i) If the indemnifying party chooses to defend any claim of Alleged Infringement filed with a court or governmental authority or (ii) any written notice of an Alleged Infringement from an attorney or law firm. In the event an injunction is issued against Targent because of infringement of Third Party intellectual property rightsClaim, all the Parties will confer parties hereto shall cooperate in the defense or prosecution of such Third Party Claim. Such cooperation shall include the retention and (upon the indemnifying party’s request) the provision to decide their future course the indemnifying party of action regarding Licensed Products records and sharing information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party shall have assumed the defense of a Third Party Claim, no Indemnified Party shall admit any liability for Targent’s expenseswith respect to, consent to the entry of any judgment, or settle, compromise or discharge, any Third Party Claim without the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld or delayed in the circumstance where the indemnifying party has not elected to assume defense of such Third Party Claim).

Third Party Actions. A. If at any time any Third Party shall infringe to a commercially substantial extent any patent licensed hereunder then Targent shall promptly inform Strathclyde of such infringement and Strathclyde and Targent shall, subject to Paragraph (B) of this Article, either (a) obtain a discontinuance of said infringing operations or (b) bring suit at their own expense against such infringer, bringing said suit in the name of Strathclyde and, if so required by the law of the forum, bringing suit in the name of Targent or joining Targent as a party plaintiff with Strathclyde. Strathclyde and Targent shall be entitled to receive their reasonable costs of litigation, Strathclyde shall retain one percent (1%) of the Net Sales of infringing products according to the formula described in Article III(A)(2) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event that Strathclyde does not participate any Third Party commences any Action against either Party or any of such Party’s Affiliates alleging that the Product (including the use or the manufacture of Product) infringes any Intellectual Property of such Third Party in the Territory (a “Third Party Action”), the Party against whom such a suit against Action is commenced shall provide the other Party prompt written notice thereof. Alvogen shall have the sole right and responsibility to control the defense of a Third Party as provided Action with respect to the development, manufacture or Commercialization of Product in paragraph the Field (A) of this Articleincluding the right to seek any license from such Third Party, then Targent may at its election bring suit in its own name against such infringer. Should Targent bring suit in its own nameor enter into any settlement or compromise or consent to any judgment with respect thereto (with the fees, Strathclyde shall execute such legal papers necessary for the prosecution of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses of any such litigation and shall be entitled license, settlement or compromise, or consent to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at the rate of 1% judgement shared in respect of such recoveries, according to the formula described in Article III(A)(2) (after Targentaccordance with each Party’s reasonable expenses of such litigationPro-Rata Portion). C. . If a Third Party makes or threatens against Targent NRx or its Sublicensees any claim of infringement of Affiliate is a patent right based upon the use ofdefendant, then NRx or arising as a result of the exercise of the rights and licenses granted hereunder to the Licensed Patents (each an “Alleged Infringement”), Targent its Affiliate shall have the right to respond to and defend any and all such Alleged Infringements participate with counsel of its selection (at its or their own cost and expense) and Alvogen shall use counsel reasonably acceptable to NRx (and the Parties shall share the fees, cost and expense the defense of such Third Party Action in accordance with each Party’s Pro-Rata Portion), and Alvogen shall continue to control and defend such Third Party Action until final judgment or settlement in its or their sole discretion. Strathclyde such Third Party Action. (b) NRx shall provide any necessary cooperation and assistance that Targent may reasonably require requested by ▇▇▇▇▇▇▇ in connection with any such defense action. Strathclyde Third Party Action, including (i) providing Alvogen with detailed responses to its inquiries, and (ii) identifying and providing witnesses who will assist in the preparation of evidence, provide written evidence, appear as witnesses in court. (c) In the event that, in the reasonable judgment of ▇▇▇▇▇▇▇ (after consultation with NRx), a Third Party is likely to commence an Action against either Party or any of such Party’s Affiliates alleging that the Product (including the use or the manufacture of Product) infringes any Intellectual Property of such Third Party in the Territory, then Alvogen shall have the rightsole right and responsibility to conduct inter partes actions, at conduct post-grant proceedings before the PTO or seek a declaratory judgment in respect of any Patent that may be asserted against the Product, and the Parties shall share the fees, cost and expense of such actions in accordance with each Party’s Pro-Rata Portion. (d) NRx shall not be required to pay its own expenseshare of fees, costs and expenses to retain counsel Alvogen under this ‎Section 6.4 until NRx has received an aggregate amount of [*] Dollars ($[*]) under this Agreement, subject to Alvogen’s right to set-off against NRx’s share of such fees, costs and expenses pursuant to ‎Section 4.11. For clarity, NRx shall reimburse 100% of its choice share of such fees, costs and expenses under this ‎Section 6.4 even though its obligation to represent make such payment is delayed until it in any such defense action. Targent shall notify Strathclyde in writing and provide a copy has received an aggregate amount of [*] Dollars (i$[*]) any claim of Alleged Infringement filed with a court or governmental authority or (ii) any written notice of an Alleged Infringement from an attorney or law firm. In the event an injunction is issued against Targent because of infringement of Third Party intellectual property rights, the Parties will confer to decide their future course of action regarding Licensed Products and sharing liability for Targent’s expensesunder this Agreement.

Third Party Actions. A. If at any time any Third Party shall infringe to a commercially substantial extent any patent licensed hereunder then Targent shall promptly inform Strathclyde of such infringement and Strathclyde and Targent shall, subject to Paragraph (B) of this Article, either (a) obtain a discontinuance of said infringing operations or (b) bring suit at their own expense against such infringerTo Myogen's knowledge, bringing said suit in the name of Strathclyde and, if so required by the law of the forum, bringing suit in the name of Targent or joining Targent as a party plaintiff with Strathclyde. Strathclyde and Targent shall be entitled to receive their reasonable costs of litigation, Strathclyde shall retain one percent (1%) of the Net Sales of infringing products according to the formula described in Article III(A)(2) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event that Strathclyde does not participate in such a suit against a Third Party as provided in paragraph (A) of this Article, then Targent may at its election bring suit in its own name against such infringer. Should Targent bring suit in its own name, Strathclyde shall execute such legal papers necessary for the prosecution of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses of such litigation and shall be entitled to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at the rate of 1% in respect of such recoveries, according to the formula described in Article III(A)(2) (after Targent’s reasonable expenses of such litigation). C. If a Third Party makes or threatens against Targent or its Sublicensees any claim of infringement of a patent right based upon the use of, or arising as a result of the exercise of the rights and licenses granted by NIBRI hereunder will not result in the infringement of valid patents of Third Parties. [/\#/\]CONFIDENTIAL TREATMENT REQUESTED Nevertheless, each party will promptly notify the other in the event any relevant Third Party patents come to its notice. Neither party gives a warranty to the Licensed Patents (each an “Alleged Infringement”)other regarding the infringement of Third Party rights by the development, Targent shall have manufacture, use or sale of the right to respond to and defend any and all such Alleged Infringements at its Development Candidate or their own cost and expensethe practice of the Myogen Technology or the NIBRI Technology, and gives no indemnity against costs, damages, expenses or other losses arising out of proceedings brought against the other party or any other Person by any Third Party. In the event NIBRI is sued for infringement of any rights of any Third Party in the course of its development, manufacture, marketing and sale of Development Candidate or their sole discretion. Strathclyde its use of Myogen Technology in connection therewith, Myogen shall provide any necessary extend to NIBRI, at no charge, good faith assistance that Targent and support in defending such action, and may reasonably require participate in any such defense action. Strathclyde shall have the right, conduct of the suit at its own expense, to retain counsel of its choice to represent it but shall otherwise be under no obligation in any respect thereof. Legal expenses and fees arising from such defense action. Targent a legal action shall notify Strathclyde in writing and provide a copy of be paid by NIBRI. (ib) any claim of Alleged Infringement filed with a court or governmental authority or (ii) any written notice of an Alleged Infringement from an attorney or law firm. In the event an injunction that the development of Development Candidate or the sale of a Drug Product in any country necessarily involves working within the scope of a Third Party's patent, which would otherwise be infringed by the practice of a Myogen Patent in connection with such development or sale, then Myogen will use reasonable efforts to obtain required licenses under the Third Party's patents, under terms reasonably acceptable to both Myogen and NIBRI, and the terms of Section 4.5(c) hereof shall apply; provided that neither Myogen nor NIBRI shall be required to accept any license which carries a financial obligation which is issued against Targent because materially in excess of infringement the range of financial obligations customarily associated with comparable non-exclusive licenses. If the terms of a required license under a Third Party intellectual property rightspatent do not meet the foregoing requirements and Myogen therefore elects not to assume any financial obligation, NIBRI may nonetheless elect to obtain the Parties will confer license, to decide their future course continue sales of Drug Product in such country and to pay, itself, any amounts due under such license. If the required license is either unavailable or its terms are unacceptable both to Myogen and to NIBRI, then NIBRI may elect in its sole discretion to discontinue sales of the Drug Product in such country or at its sole expense to undertake the [/\#/\]CONFIDENTIAL TREATMENT REQUESTED defense of a patent infringement action regarding Licensed Products and sharing liability for Targent’s expensesor the prosecution of a declaratory judgment action with respect to the Third Party patents.

Third Party Actions. A. (a) If at any time any Third Party shall infringe to a commercially substantial extent any patent licensed hereunder then Targent Purchaser Indemnitee or Seller Indemnitee (as applicable, an “Indemnitee”) becomes aware of a third party Action that such Indemnitee believes, in good faith, may result in a Purchaser Indemnification Claim or Seller Indemnification Claim (as applicable, an “Indemnification Claim”), Such Indemnitee shall promptly inform Strathclyde of notify to Seller or Purchaser (such infringement and Strathclyde and Targent shall, subject party obligated to Paragraph (B) of provide indemnification under this Article, either the “Indemnifying Party”) of such Action. The Indemnitor shall have the right (aexercisable within fifteen (15) obtain a discontinuance Business Days of said infringing operations or receipt by Indemnitor of Indemnitee’s notice), but not the obligation to conduct the defense thereof. The party conducting such defense (bthe “Defending Party”) bring suit at their own expense against such infringershall, bringing said suit in to the name of Strathclyde and, if so required extent reasonably requested by the law other party from time to time, give updates as to the status of the forum, bringing suit in the name of Targent or joining Targent as a such Action. The party plaintiff with Strathclyde. Strathclyde and Targent not conducting such defense shall be entitled to receive their reasonable costs of litigation, Strathclyde shall retain one percent (1%) of the Net Sales of infringing products according to the formula described in Article III(A)(2) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event that Strathclyde does not participate in any such a suit against a Third Party as provided in paragraph (A) of this Article, then Targent may defense at its election bring suit in its own name against such infringer. Should Targent bring suit in its own name, Strathclyde shall execute such legal papers necessary for the prosecution of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses of such litigation and shall be entitled to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at the rate of 1% in respect of such recoveries, according to the formula described in Article III(A)(2) (after Targent’s reasonable expenses of such litigation). C. If a Third Party makes or threatens against Targent or its Sublicensees any claim of infringement of a patent right based upon the use of, or arising as a result of the exercise of the rights and licenses granted hereunder to the Licensed Patents (each an “Alleged Infringement”), Targent shall have the right to respond to and defend any and all such Alleged Infringements at its or their own sole cost and expense, and in its or their sole discretion. Strathclyde shall provide any necessary assistance that Targent may reasonably require in any such defense action. Strathclyde shall have the right, at its own expense, to retain counsel of its choice to represent it in any such defense action. Targent shall notify Strathclyde in writing and provide a copy of as set forth below: (i) If Indemnitor is the Defending Party, it may agree to any claim settlement or compromise of Alleged Infringement filed with any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate Indemnitee to take or refrain from taking any action and (B) provides for a court complete release of Indemnitee by such third party. Any such settlement or governmental authority or compromise by Indemnitor shall represent the agreement of Indemnitor that the Losses incurred in connection therewith shall be indemnifiable hereunder. (ii) If Indemnitee is the Defending Party, it shall seek the prior written consent of Indemnitor (which consent shall not be unreasonably withheld, conditioned or delayed by Indemnitor) in connection with Indemnitee’s agreement to any settlement or compromise of any such third party Action. Any such written notice consent by Indemnitor shall represent the agreement of Indemnitor that the Losses incurred in connection therewith shall be indemnifiable hereunder. If Indemnitee shall fail to obtain such written consent of Indemnitor, Indemnitee may agree to any such settlement or compromise, and may make an Alleged Infringement from an attorney or law firm. In Indemnification Claim under this Article therefor, but the event an injunction resolution of such claim (including whether and to what extent Indemnitee is issued against Targent because of infringement of Third Party intellectual property rights, the Parties will confer entitled to decide their future course of action regarding Licensed Products and sharing liability indemnification under this Agreement for Targent’s expensessuch claim) shall remain subject to this Article.

Third Party Actions. A. If at any time any Third Party shall infringe to a commercially substantial extent any patent licensed hereunder then Targent shall promptly inform Strathclyde of such infringement and Strathclyde and Targent shall, subject to Paragraph (B) of this Article, either (a) obtain a discontinuance of said infringing operations or (b) bring suit at their own expense against such infringerTo Myogen’s knowledge, bringing said suit in the name of Strathclyde and, if so required by the law of the forum, bringing suit in the name of Targent or joining Targent as a party plaintiff with Strathclyde. Strathclyde and Targent shall be entitled to receive their reasonable costs of litigation, Strathclyde shall retain one percent (1%) of the Net Sales of infringing products according to the formula described in Article III(A)(2) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event that Strathclyde does not participate in such a suit against a Third Party as provided in paragraph (A) of this Article, then Targent may at its election bring suit in its own name against such infringer. Should Targent bring suit in its own name, Strathclyde shall execute such legal papers necessary for the prosecution of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses of such litigation and shall be entitled to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at the rate of 1% in respect of such recoveries, according to the formula described in Article III(A)(2) (after Targent’s reasonable expenses of such litigation). C. If a Third Party makes or threatens against Targent or its Sublicensees any claim of infringement of a patent right based upon the use of, or arising as a result of the exercise of the rights and licenses granted by NIBRI hereunder will not result in the infringement of valid patents of Third Parties. Nevertheless, each party will promptly notify the other in the event any relevant Third Party patents come to its notice. Neither party gives a warranty to the Licensed Patents (each an “Alleged Infringement”)other regarding the infringement of Third Party rights by the development, Targent shall have manufacture, use or sale of the right to respond to and defend any and all such Alleged Infringements at its Development Candidate or their own cost and expensethe practice of the Myogen Technology or the NIBRI Technology, and gives no indemnity against costs, damages, expenses or other losses arising out of proceedings brought against the other party or any other Person by any Third Party. In the event NIBRI is sued for infringement of any rights of any Third Party in the course of its development, manufacture, marketing and sale of Development Candidate in the Cardiac Field or their sole discretion. Strathclyde its use of Myogen Technology in connection therewith, Myogen shall provide any necessary extend to NIBRI, at no charge, good faith assistance that Targent and support in defending such action, and may reasonably require participate in any such defense action. Strathclyde shall have the right, conduct of the suit at its own expense, to retain counsel of its choice to represent it but shall otherwise be under no obligation in any respect thereof. Legal expenses and fees arising from such defense action. Targent a legal action shall notify Strathclyde in writing and provide a copy of be paid by NIBRI. (ib) any claim of Alleged Infringement filed with a court or governmental authority or (ii) any written notice of an Alleged Infringement from an attorney or law firm. In the event an injunction that the development of Development Candidate or the sale of a Drug Product for indications within the Cardiac Field in any country necessarily involves working within the scope of a Third Party’s patent, which would otherwise be infringed by the practice of a Myogen Patent in connection with such development or sale, then Myogen will use reasonable efforts to obtain required licenses under the Third Party’s patents, under terms reasonably acceptable to both Myogen and NIBRI, and the terms of Section 4.5(c) hereof shall apply; provided that neither Myogen nor NIBRI shall [..**..] Confidential Treatment Requested be required to accept any license which carries a financial obligation which is issued against Targent because materially in excess of infringement the range of financial obligations customarily associated with comparable non-exclusive licenses. If the terms of a required license under a Third Party intellectual property rightspatent do not meet the foregoing requirements and Myogen therefore elects not to assume any financial obligation, NIBRI may nonetheless elect to obtain the Parties will confer license, to decide their future course continue sales of Drug Product in such country and to pay, itself, any amounts due under such license. If the required license is either unavailable or its terms are unacceptable both to Myogen and to NIBRI, then NIBRI may elect in its sole discretion to discontinue sales of the Drug Product in such country or at its sole expense to undertake the defense of a patent infringement action regarding Licensed Products and sharing liability for Targent’s expensesor the prosecution of a declaratory judgment action with respect to the Third Party patents.

Third Party Actions. A. If at (a) Neurocrine Patent Rights. Neurocrine shall defend any time action naming Neurocrine, or Neurocrine and DSP, in which there are claims or counterclaims that challenge in any way the validity or enforceability of the Neurocrine Patent Rights in the Territory by reason of infringement of any Third Party shall infringe to a commercially substantial extent any patent licensed hereunder then Targent shall promptly inform Strathclyde of such infringement and Strathclyde and Targent shallPatent Right through the making, subject to Paragraph (B) of this Articlehaving made, either (a) obtain a discontinuance of said infringing operations using, developing, selling or (b) bring suit at their own expense against such infringer, bringing said suit having sold Indiplon or Products in the name Territory (“Neurocrine Patent Right Claims”). In the event any action naming Neurocrine and DSP does not relate in any way to the validity or enforceability of Strathclyde andthe Neurocrine Patent Rights in the Territory but relates to the making, having made, using, developing, selling or having sold of Products in the Territory (“DSP Claims”), Neurocrine shall be responsible for strategy and defense of the Neurocrine Patent Right Claims and DSP shall be responsible for strategy and defense of the DSP Claims. The Parties shall confer with each other and cooperate during the defense of any action in which both Neurocrine and DSP are named parties. DSP shall assist and cooperate with Neurocrine in the defense of Neurocrine Patent Right Claims and if so Neurocrine finds it necessary or desirable to have DSP join as a party, DSP shall execute all papers or perform such other acts as may reasonably be required by the law of the forum, bringing suit Neurocrine. Neurocrine shall assist and cooperate with DSP in the name defense of Targent DSP Claims and if DSP finds it necessary or joining Targent desirable to have Neurocrine join as a party plaintiff with Strathclydeparty, Neurocrine shall execute all papers or perform such other acts as may reasonably be required by DSP. Strathclyde Neurocrine and Targent DSP shall each be entitled to receive their reasonable costs of litigation, Strathclyde shall retain one responsible for fifty percent (150%) of the Net Sales of infringing products according to the formula described in Article III(A)(2) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event that Strathclyde does not participate in such a suit against a Third Party as provided in paragraph (A) of this Article, then Targent may at its election bring suit in its own name against such infringer. Should Targent bring suit in its own name, Strathclyde shall execute such legal papers necessary for the prosecution of such suit as may be requested by Targent. Targent shall be liable for all reasonable total costs and expenses of such litigation (including attorneys’ fees) and shall be entitled to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at damages incurred by the rate of 1% Parties collectively in respect of such recoveries, according any action hereunder in so far as they relate to the formula described Neurocrine Patent Right Claims and DSP shall bear all costs and expenses (including attorneys’ fees) and damages incurred in Article III(A)(2) (after Targent’s reasonable expenses of such litigation). C. If a Third Party makes or threatens against Targent or its Sublicensees any claim of infringement of a patent right based upon the use of, or arising action hereunder in so far as a result of the exercise of the rights and licenses granted hereunder they related to the Licensed Patents (each an “Alleged Infringement”), Targent shall have the right to respond to and defend any and all such Alleged Infringements at its or their own cost and expense, and in its or their sole discretion. Strathclyde shall provide any necessary assistance that Targent may reasonably require in any such defense action. Strathclyde shall have the right, at its own expense, to retain counsel of its choice to represent it in any such defense action. Targent shall notify Strathclyde in writing and provide a copy of (i) any claim of Alleged Infringement filed with a court or governmental authority or (ii) any written notice of an Alleged Infringement from an attorney or law firm. In the event an injunction is issued against Targent because of infringement of Third Party intellectual property rights, the Parties will confer to decide their future course of action regarding Licensed Products and sharing liability for Targent’s expensesDSP Claims.

Third Party Actions. A. If at any time any Third Party shall infringe to a commercially substantial extent any patent licensed hereunder then Targent shall promptly inform Strathclyde of such infringement and Strathclyde and Targent shall, subject to Paragraph (B) of this Article, either (a) obtain Basilea shall have the first right, but not the obligation, at its sole cost and expense, to bring, defend, or maintain any suit, action or proceedings in any forum (and whether by claim, counterclaim, defence, observations, oppositions or otherwise) involving a discontinuance Third Party (other than the relevant court or patent office) concerning the infringement, misappropriation, enforceability, validity, scope, ownership, use or other violation of said infringing operations or (b) bring suit at their own expense against such infringer, bringing said suit any of the ArQule IP in the name of Strathclyde and, if so required by the law of the forum, bringing suit Field in the name of Targent Territory or joining Targent as a party plaintiff with StrathclydeBasilea IP inside or outside the Field and/or the Territory (collectively “Third Party Actions”). Strathclyde and Targent shall be entitled to receive their reasonable costs of litigation, Strathclyde shall retain one percent (1%) of the Net Sales of infringing products according to the formula described in Article III(A)(2) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event that Strathclyde does not participate in Basilea prosecutes any such a suit against a Third Party as provided Actions in paragraph (A) of this Articlethe Field in the Territory, then Targent may at its election bring suit in its own name against such infringer. Should Targent bring suit in its own name, Strathclyde shall execute such legal papers necessary for the prosecution of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses of such litigation and shall be entitled to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at the rate of 1% in respect of such recoveries, according to the formula described in Article III(A)(2) (after Targent’s reasonable expenses of such litigation). C. If a Third Party makes or threatens against Targent or its Sublicensees any claim of infringement of a patent right based upon the use of, or arising as a result of the exercise of the rights and licenses granted hereunder to the Licensed Patents (each an “Alleged Infringement”), Targent ArQule shall have the right to respond join as a party to such claim, suit or proceeding and defend any and all such Alleged Infringements participate with its own counsel at its or their own sole cost and expense; provided, and that, Basilea shall retain control of the prosecution of such Third Party Action, including the response to any defense or defense of any counterclaim raised in connection therewith. If Basilea or its or their sole discretion. Strathclyde shall provide any necessary assistance that Targent may reasonably require in any such defense action. Strathclyde shall have the right, at its own expense, designee does not take commercially reasonable steps to retain counsel of its choice to represent it in any such defense action. Targent shall notify Strathclyde in writing and provide prosecute a copy of Third Party Action (i) any claim of Alleged Infringement filed within *** days following the first notice provided above with a court or governmental authority respect to such Third Party Action or (ii) within *** days before the time limit, if any, set forth in appropriate laws and regulations for filing of such actions, whichever comes first, then (A) Basilea shall so notify ArQule and (B) ArQule may prosecute such alleged or threatened infringement at its sole cost and expense. (b) Basilea shall have, in its sole discretion, the exclusive right to control the conduct and/or settlement of any written notice of an Alleged Infringement from an attorney or law firm. In the event an injunction is issued against Targent because of infringement of Third Party intellectual property rightsActions, save that it shall not make any concession, stipulation or settlement of such proceedings that materially adversely affects (i) the reputation of ArQule or (ii) the rights of ArQule in the ArQule IP or in a manner that imposes any costs or liability on or involves any admission of wrongdoing by ArQule without the prior written consent of ArQule, such consent not to be unreasonably withheld or delayed. Licence Agreement/ArQule, Inc. (c) ArQule shall reasonably assist and cooperate with Basilea in relation to any Third Party Action and shall execute all papers, provide access to documents and personnel and perform such other acts (including bringing, continuing or joining any Third Party Action as a party), as may be reasonably requested by Basilea in relation to any Third Party Action; provided, that, Basilea shall reimburse ArQule for its reasonable and verifiable out-of-pocket costs and expenses incurred in connection therewith, up to the amount of any award or recovery from such Third Party Action. (d) Any recovery realized as a result of any Third Party Action (whether by way of settlement or otherwise) shall be first allocated to reimburse the Parties will confer for their costs and expenses in making such recovery (which amounts shall be allocated pro rata if insufficient to decide their future course cover the totality of action regarding Licensed Products and sharing liability for Targent’s such expenses). Any remainder after such reimbursement is made shall be retained by Basilea; provided that, to the extent that any award or settlement (whether by judgment or otherwise) with respect to an ArQule Patent is attributable to loss of sales or profits with respect to a Product, such award shall be deemed Net Sales in the Calendar Quarter in which payment is actually received by Basilea.

Third Party Actions. A. If at any time any Third Party shall infringe to a commercially substantial extent any patent licensed hereunder then Targent shall promptly inform Strathclyde of such infringement and Strathclyde and Targent shall, subject to Paragraph (B) of this Article, either (a) obtain a discontinuance of said infringing operations or (b) bring suit at their own expense against such infringer, bringing said suit in the name of Strathclyde and, if so required by the law of the forum, bringing suit in the name of Targent or joining Targent as a party plaintiff with Strathclyde. Strathclyde and Targent shall be entitled to receive their reasonable costs of litigation, Strathclyde shall retain one percent (1%) of the Net Sales of infringing products according to the formula described in Article III(A)(2) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event that Strathclyde does not participate in such a suit against a any Third Party as provided in paragraph (A) of this Article, then Targent may at its election bring suit in its own name commences any Action against such infringer. Should Targent bring suit in its own name, Strathclyde shall execute such legal papers necessary for the prosecution either Party or any of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses Party’s Affiliates alleging that the Product (including the use or the manufacture of Product) infringes any Intellectual Property of such litigation and shall be entitled to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at the rate of 1% in respect of such recoveries, according to the formula described in Article III(A)(2) (after Targent’s reasonable expenses of such litigation). C. If a Third Party makes or threatens against Targent or its Sublicensees any claim of infringement of in the Territory (a patent right based upon the use of, or arising as a result of the exercise of the rights and licenses granted hereunder to the Licensed Patents (each an “Alleged InfringementThird Party Action”), Targent the Party against whom such Action is commenced shall provide the other Party prompt written notice thereof, and Alvogen shall have the sole right and responsibility to control the defense of such Third Party Action (including the right to seek any license from such Third Party, or enter into any settlement or compromise or consent to any judgment with respect thereto) at Alvogen’s sole expense. If Pfenex or its Affiliate is a defendant, then Pfenex or its Affiliate shall have the right to respond to and defend any and all such Alleged Infringements participate with counsel of its selection (at its or their own cost and expense) and Alvogen shall use counsel reasonably acceptable to Pfenex, at Alvogen’s sole cost and expense, and [***]Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed. Alvogen shall continue to control and defend Pfenex or its Affiliate until final judgment or their sole discretion. Strathclyde settlement in such Third Party Action. (b) Pfenex shall provide any necessary cooperation and assistance that Targent may reasonably require requested by Alvogen in connection with any such defense action. Strathclyde Third Party Action, including (i) providing Alvogen with detailed responses to its inquiries, and (ii) identifying and providing witnesses who will assist in the preparation of evidence, provide written evidence, appear as witnesses in court. (c) In the event that, in the reasonable judgment of Alvogen (after consultation with Pfenex), a Third Party is likely to commence an Action against either Party or any of such Party’s Affiliates alleging that the Product (including the use or the manufacture of Product) infringes any Intellectual Property of such Third Party in the Territory, then Alvogen shall have the rightsole right and responsibility to conduct inter partes actions, at its own expense, to retain counsel conduct post-grant proceedings before any Patent Office or seek a declaratory judgment in respect of its choice to represent it in any such defense action. Targent shall notify Strathclyde in writing and provide a copy of (i) any claim of Alleged Infringement filed with a court or governmental authority or (ii) any written notice of an Alleged Infringement from an attorney or law firm. In Patent that may be asserted against the event an injunction is issued against Targent because of infringement of Third Party intellectual property rights, the Parties will confer to decide their future course of action regarding Licensed Products and sharing liability for Targent’s expensesProduct.

Third Party Actions. A. If at any time any Third Party shall infringe to a commercially substantial extent any patent licensed hereunder then Targent shall promptly inform Strathclyde of such infringement and Strathclyde and Targent shall, subject to Paragraph (B) of this Article, either (a) obtain a discontinuance of said infringing operations or (b) bring suit at their own expense against such infringer, bringing said suit in the name of Strathclyde and, if so required by the law of the forum, bringing suit in the name of Targent or joining Targent as a party plaintiff with Strathclyde. Strathclyde and Targent shall be entitled to receive their reasonable costs of litigation, Strathclyde shall retain one percent (1%) of the Net Sales of infringing products according to the formula described in Article III(A)(2) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event that Strathclyde does not participate in such a suit against a any Third Party as provided in paragraph (A) of this Article, then Targent may at its election bring suit in its own name commences any Action against such infringer. Should Targent bring suit in its own name, Strathclyde shall execute such legal papers necessary for the prosecution either Party or any of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses Party’s Affiliates alleging that the Product (including the use or the manufacture of Product) infringes any Intellectual Property of such litigation and shall be entitled to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at the rate of 1% in respect of such recoveries, according to the formula described in Article III(A)(2) (after Targent’s reasonable expenses of such litigation). C. If a Third Party makes or threatens against Targent or its Sublicensees any claim of infringement of in the Territory (a patent right based upon the use of, or arising as a result of the exercise of the rights and licenses granted hereunder to the Licensed Patents (each an “Alleged InfringementThird Party Action”), Targent the Party against whom such Action is commenced shall provide the other Party prompt written notice thereof, and Alvogen shall have the sole right and responsibility to control the defense of such Third Party Action (including the right to seek any license from such Third Party, or enter into any settlement or compromise or consent to any judgment with respect thereto) at Alvogen’s sole expense. If Pfenex or its Affiliate is a defendant, then Pfenex or its Affiliate shall have the right to respond to and defend any and all such Alleged Infringements participate with counsel of its selection (at its or their own cost and expense) and Alvogen shall use counsel reasonably acceptable to Pfenex, at Alvogen’s sole cost and expense, and Alvogen shall continue to control and defend Pfenex or its Affiliate until final judgment or settlement in its or their sole discretionsuch Third Party Action. Strathclyde [***] 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 any necessary cooperation and assistance that Targent may reasonably require requested by Alvogen in connection with any such defense action. Strathclyde Third Party Action, including (i) providing Alvogen with detailed responses to its inquiries, and (ii) identifying and providing witnesses who will assist in the preparation of evidence, provide written evidence, appear as witnesses in court. (c) In the event that, in the reasonable judgment of Alvogen (after consultation with Pfenex), a Third Party is likely to commence an Action against either Party or any of such Party’s Affiliates alleging that the Product (including the use or the manufacture of Product) infringes any Intellectual Property of such Third Party in the Territory, then Alvogen shall have the rightsole right and responsibility to conduct inter partes actions, at its own expense, to retain counsel conduct post-grant proceedings before the PTO or seek a declaratory judgment in respect of its choice to represent it in any such defense action. Targent shall notify Strathclyde in writing and provide a copy of (i) any claim of Alleged Infringement filed with a court or governmental authority or (ii) any written notice of an Alleged Infringement from an attorney or law firm. In Patent that may be asserted against the event an injunction is issued against Targent because of infringement of Third Party intellectual property rights, the Parties will confer to decide their future course of action regarding Licensed Products and sharing liability for Targent’s expensesProduct.

Third Party Actions. A. If at any time any Third Party shall infringe to a commercially substantial extent any patent licensed hereunder then Targent shall promptly inform Strathclyde of such infringement and Strathclyde and Targent shall, subject to Paragraph (B) of this Article, either (a) obtain In the event any claim is made, suit is brought or tax audit or other proceeding is instituted against Nortek or any Gruppo BEST Company or any of their respective directors, officers or affiliates which involves or appears reasonably likely to involve a discontinuance Nortek Claim for which indemnification may be sought against the Sellers hereunder, Nortek will, promptly (and in any event within 15 days) after receipt of said infringing operations notice of any such claim, suit, tax audit or proceeding, notify the Sellers of the commencement thereof. The failure to so notify Sellers of the commencement of any such claim, suit, tax audit or proceeding will relieve Sellers from liability only to the extent that such failure materially adversely affects the ability of Sellers to defend its interests in such claim, suit, tax audit or proceeding. Whenever permitted under applicable law, Nortek or any Gruppo BEST Company or any of their respective directors, officers or affiliates, as the case may be, shall have the right and option to bring Sellers as a formal party into the proceedings, and the Sellers shall have the right and option to join in such proceedings as a formal party in accordance with applicable procedural rules. In all cases in which Sellers do not participate in the proceedings as a formal party, Sellers (b) bring suit at their own expense against such infringer, bringing said suit expense) shall have the right and shall be given the opportunity to participate in the name defense of Strathclyde andsuch claim, if so required by suit, tax audit or proceeding, provided that Nortek and its counsel shall maintain the law conduct of the forum, bringing suit in the name of Targent or joining Targent as a party plaintiff with Strathclyde. Strathclyde and Targent shall be entitled to receive their reasonable costs of litigation, Strathclyde shall retain one percent (1%) of the Net Sales of infringing products according all matters pertaining to the formula described defense or settlement of such claim, suit, tax audit or proceeding. Whether or not Sellers elect to participate in Article III(A)(2) and Targent such defense, Nortek shall receive not, except at its own cost, make any settlement with respect to any such claim, suit, tax audit or proceeding without the remainder prior consent of all recoveries from such infringement. B. Sellers, which may not be unreasonably withheld. In the event that Strathclyde Nortek determines to settle any such claim, suit, tax audit or proceeding without the prior consent of Sellers (as provided above), Sellers shall have no indemnification obligations with respect to such claim, suit, tax audit or proceeding. Nortek's consent to the settlement of any such claim, suit, tax audit or proceeding by Sellers shall be required and shall not be unreasonably withheld. (b) In the event any claim is made, suit is brought or tax audit or other proceeding is instituted against Sellers which involves or appears reasonably likely to involve a Seller Claim for which indemnification may be sought against Nortek hereunder, the Sellers will, promptly (and in any event within 15 days) after receipt of notice of any such claim, suit, tax audit or proceeding, notify Nortek of the commencement thereof. The failure to so notify Nortek of the commencement of any such claim, suit, tax audit or proceeding will relieve Nortek from liability only to the extent that such failure materially adversely affects the ability of Nortek to defend its interest in such claim, suit, tax audit or proceeding. Whenever permitted under applicable law, Nortek or any Gruppo BEST Company or any of their respective directors, officers or affiliates, as the case may be, shall have the right and option to bring Nortek as a formal party into the proceedings, and Nortek shall have the right and option to join in such proceedings as a formal party in accordance with applicable procedural rules. In all cases in which Nortek does not participate in such the proceedings as a suit against a Third Party as provided in paragraph formal party, Nortek (A) of this Article, then Targent may at its election bring suit in its own name against such infringer. Should Targent bring suit in its own name, Strathclyde shall execute such legal papers necessary for the prosecution of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses of such litigation and shall be entitled to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at the rate of 1% in respect of such recoveries, according to the formula described in Article III(A)(2expense) (after Targent’s reasonable expenses of such litigation). C. If a Third Party makes or threatens against Targent or its Sublicensees any claim of infringement of a patent right based upon the use of, or arising as a result of the exercise of the rights and licenses granted hereunder to the Licensed Patents (each an “Alleged Infringement”), Targent shall have the right and shall be given the opportunity to respond participate in the defense of such claim, suit, tax audit or proceeding, provided that Sellers and their counsel shall maintain the conduct of all matters pertaining to and defend any and all the defense or settlement of such Alleged Infringements at its claim, suit, tax audit or their own cost and expenseproceeding. Whether or not Nortek elects to participate in such defense, and in its or their sole discretion. Strathclyde Sellers shall provide any necessary assistance that Targent may reasonably require in any such defense action. Strathclyde shall have the rightnot, except at its own expensecost, make any settlement with respect to retain counsel of its choice to represent it in any such defense action. Targent shall notify Strathclyde in writing and provide a copy claim, suit, tax audit or proceeding without the prior consent of (i) any claim of Alleged Infringement filed with a court or governmental authority or (ii) any written notice of an Alleged Infringement from an attorney or law firmNortek, which may not be unreasonably withheld. In the event an injunction is issued against Targent because that Sellers determines to settle any such claim, suit, tax audit or proceeding without the prior consent of infringement Nortek (as provided above), Nortek shall have no indemnification obligations with respect to such claim, suit, tax audit or proceeding. Seller's consent to the settlement of Third Party intellectual property rightsany such claim, the Parties will confer to decide their future course of action regarding Licensed Products suit, tax audit or proceeding by Nortek shall be required and sharing liability for Targent’s expensesshall not be unreasonably withheld.

Third Party Actions. A. If any claim is made, suit is brought or tax audit or other proceeding instituted against an indemnified party that involves or appears reasonably likely to involve either Pittencrieff Losses or Seller Losses, as the case may be, the indemnified party will, promptly after receipt of notice of any such claim, suit or proceeding for which indemnification may be sought, notify the indemnifying party of the commencement thereof. The indemnified party (at any time any Third Party shall infringe to its expense, unless a commercially substantial extent any patent licensed hereunder then Targent shall promptly inform Strathclyde of conflict exists such infringement and Strathclyde and Targent shall, subject to Paragraph (B) of this Article, either (a) obtain a discontinuance of said infringing operations or (b) bring suit at their own expense against such infringer, bringing said suit in that the name of Strathclyde and, if so required parties cannot be represented by the law of same counsel, in which event the forum, bringing suit in the name of Targent or joining Targent as a indemnifying party plaintiff with Strathclyde. Strathclyde and Targent shall be entitled to receive their reasonable costs of litigation, Strathclyde shall retain pay for one percent (1%) of the Net Sales of infringing products according to the formula described in Article III(A)(2) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event that Strathclyde does not participate in such a suit against a Third Party as provided in paragraph (A) of this Article, then Targent may at its election bring suit in its own name against such infringer. Should Targent bring suit in its own name, Strathclyde shall execute such legal papers necessary counsel for the prosecution of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses of such litigation and shall be entitled to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at the rate of 1% in respect of such recoveries, according to the formula described in Article III(A)(2indemnified party) (after Targent’s reasonable expenses of such litigation). C. If a Third Party makes or threatens against Targent or its Sublicensees any claim of infringement of a patent right based upon the use of, or arising as a result of the exercise of the rights and licenses granted hereunder to the Licensed Patents (each an “Alleged Infringement”), Targent shall have the right and shall be given the opportunity to respond associate with the indemnifying party in the defense of such claim, suit or proceeding, provided that counsel for the indemnifying party shall act as lead counsel in all matters pertaining to the defense or settlement of such claim, suit or proceeding, and defend any and all the indemnifying party shall have control of such Alleged Infringements claim, suit or proceeding, including the right to settle such claim, suit or proceeding without the consent of the indemnified party. An indemnified party shall not, except at its or their own cost and expensecost, and in its or their sole discretion. Strathclyde shall provide make any necessary assistance that Targent may reasonably require in settlement with respect to any such defense actionclaim, suit or proceeding without the prior consent of the indemnifying party, which consent shall not be unreasonably withheld. Strathclyde If an indemnified party determines to settle any such claim, suit or proceeding without the prior consent of the indemnifying party, the indemnifying party shall have no further indemnification obligations under this Section 13 with respect to such claim, suit or proceeding. Notwithstanding anything in this Section 13.7 to the contrary, if the indemnifying party, by the fifteenth day after its receipt of notice of any such claim, suit or proceeding (or, if earlier, by the fifth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not notify the indemnified party that it has undertaken to defend against such claim, the party to be indemnified will have the right, but not the obligation, to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at its own the indemnifying party's expense, subject to retain counsel the right of its choice the indemnifying party to represent it in assume the defense of such claims at any such defense action. Targent shall notify Strathclyde in writing and provide a copy of (i) any claim of Alleged Infringement filed with a court time prior to settlement, compromise or governmental authority or (ii) any written notice of an Alleged Infringement from an attorney or law firmfinal determination thereof. In the event an injunction is issued against Targent because of infringement of Third Party intellectual property rightssuch event, the Parties indemnified party will confer to decide their future course notify the indemnifying party of action regarding Licensed Products and sharing liability for Targent’s expensesany proposed settlement no later than three days before such settlement is effected. 14.

Third Party Actions. A. If at any time third party should institute or assert any Third Party shall infringe claim, action or proceeding against any party hereto with respect to a commercially substantial extent any patent licensed hereunder then Targent which such party determines it may seek to be indemnified, held harmless and/or defended, pursuant to the assumption or exclusion of liabilities set forth in Sections 3.03 and 3.04 hereof, the party hereto against whom such claim, action or proceeding has been instituted or asserted (the "indemnified party") shall promptly inform Strathclyde notify each party hereto by whom it may seek to be indemnified, held harmless and/or defended (an "indemnifying party") of the institution or assertion of such infringement and Strathclyde and Targent shallclaim, subject to Paragraph (B) of this Articleaction or proceeding, either (a) obtain a discontinuance of said infringing operations or (b) bring suit at their own expense against such infringer, bringing said suit in the name of Strathclyde and, if so required requested by an indemnifying party, shall promptly furnish such indemnifying party with a copy of any written claim, complaint, notice of violation or other similar document the law indemnified party may have received from the third party instituting or asserting such claim, action or proceeding. An indemnified party shall have the right (but not the obligation) (i) to direct and control, through legal counsel of the forum, bringing suit in the name of Targent or joining Targent as a party plaintiff with Strathclyde. Strathclyde and Targent shall be entitled to receive their reasonable costs of litigation, Strathclyde shall retain one percent (1%) of the Net Sales of infringing products according to the formula described in Article III(A)(2) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event that Strathclyde does not participate in such a suit against a Third Party as provided in paragraph (A) of this Article, then Targent may at its election bring suit in its own name against choosing, the defense of any third party claim, action or proceeding and (ii) to compromise and settle any third party claim, action or proceeding on any basis and in any manner such infringer. Should Targent bring suit in its own nameindemnified party deems necessary or appropriate; provided, Strathclyde shall execute such legal papers necessary for the prosecution of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses of such litigation and shall be entitled to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at the rate of 1% in respect of such recoverieshowever, according to the formula described in Article III(A)(2that (a) (after Targent’s reasonable expenses of such litigation). C. If a Third Party makes or threatens against Targent or its Sublicensees any claim of infringement of a patent right based upon the use of, or arising as a result of the exercise of the rights and licenses granted hereunder to the Licensed Patents (each an “Alleged Infringement”), Targent indemnifying party shall have the right to respond to and defend any and all such Alleged Infringements participate, at its or their own cost and expense, through legal counsel of its own choosing, subject to the control of the indemnified party and its legal counsel, in its the defense of any third-party claim, action or their sole discretion. Strathclyde proceeding with respect to which indemnity is sought hereunder, (b) prior to compromising or settling any third-party claim, action or proceeding with respect to which indemnity is sought hereunder, the indemnified party shall provide notify such indemnifying party of the proposed terms and conditions of the compromise or settlement and (c) in the case of any necessary assistance third-party claim, action or proceeding with respect to which indemnity is sought hereunder that Targent involves only the payment of money damages by the indemnified party, such indemnifying party may reasonably require in assume (jointly with any such defense action. Strathclyde shall have the rightand all other indemnifying parties), at its own cost and expense, to retain through legal counsel of its choice own choosing reasonably acceptable to represent it in any the indemnified party, the direction and control of the defense of such defense action. Targent shall notify Strathclyde in writing and provide a copy of third-party claim if, but only if (i) any claim such indemnifying party acknowledges that it is obligated to indemnify and hold harmless the indemnified party with respect to all judgments, settlements, compromises and other losses, damages, costs and expenses in connection with such third-party claim, action or proceeding and (2) such third-party claim, action or proceeding continues to involve only the payment of Alleged Infringement filed with a court or governmental authority or (ii) any written notice of an Alleged Infringement from an attorney or law firmmoney damages by the indemnified party. In the event an injunction is issued against Targent because of infringement of Third Party intellectual property rights, the Parties will confer to decide their future course of action regarding Licensed Products and sharing liability for Targent’s expensesSection 9.03.

Third Party Actions. A. If at In connection with any time claim giving rise to indemnity hereunder resulting from or arising out of any Action by a Person who is not a party to this Agreement (a “Third Party shall infringe to a commercially substantial extent any patent licensed hereunder then Targent shall promptly inform Strathclyde of such infringement and Strathclyde and Targent shallAction”), subject to Paragraph Section 9.05(h), the Indemnified Party shall give written notice to the Indemnifying Party containing the same information as a Direct Claim Notice promptly (and in any event within 15 days) after receiving notice or becoming aware of such Third Party Action. Upon receipt of such notice, the Indemnifying Party, at its sole cost and expense and upon written notice to the Indemnified Party, may assume the defense of any such Third Party Action with counsel reasonably satisfactory to the Indemnified Party provided that (i) the Indemnifying Party may only assume control of such defense if (A) it acknowledges in writing to the Indemnified Party that any Losses that may be assessed against the Indemnified Party in connection with such Third Party Action constitute Losses hereunder for which the Indemnified Party shall be indemnified pursuant to this Article IX and (B) such claim is not a criminal Action, an Action where only equitable relief is sought or an Action by a Governmental Authority and (ii) the Indemnified Party shall furnish the Indemnifying Party with such information as it may have with respect to such Third Party Action (including copies of this Articleany summons, either (acomplaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) obtain a discontinuance of said infringing operations or (b) bring suit at their own expense against such infringer, bringing said suit and shall otherwise use commercially reasonable efforts to cooperate with and assist the Indemnifying Party in the name defense of Strathclyde and, if so required by the law of the forum, bringing suit in the name of Targent or joining Targent as a party plaintiff with Strathclydesuch Third Party Action. Strathclyde and Targent The Indemnified Party shall be entitled to receive their reasonable costs of litigation, Strathclyde shall retain one percent (1%) of the Net Sales of infringing products according to the formula described in Article III(A)(2) and Targent shall receive the remainder of all recoveries from such infringement. B. In the event that Strathclyde does not participate in the defense of any such a suit against a Third Party as provided in paragraph (A) of this ArticleAction, then Targent may with its counsel and at its election bring suit in its own name against such infringer. Should Targent bring suit in its own name, Strathclyde shall execute such legal papers necessary for the prosecution of such suit as may be requested by Targent. Targent shall be liable for all reasonable costs and expenses of such litigation and shall be entitled to receive and retain all recoveries therefrom provided it shall pay to Strathclyde royalties at the rate of 1% in respect of such recoveries, according to the formula described in Article III(A)(2) (after Targent’s reasonable expenses of such litigation). C. If a Third Party makes or threatens against Targent or its Sublicensees any claim of infringement of a patent right based upon the use of, or arising as a result of the exercise of the rights and licenses granted hereunder to the Licensed Patents (each an “Alleged Infringement”), Targent shall have the right to respond to and defend any and all such Alleged Infringements at its or their own cost and expense, and in its or their sole discretion. Strathclyde shall provide any necessary assistance that Targent may reasonably require in If the Indemnifying Party does not assume the defense of any such Third Party Action, the Indemnified Party may, but shall not be obligated to, defend against such Third Party Action in such manner as it may deem appropriate but may not settle such Third Party Action, without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed) and no action taken by the Indemnified Party in accordance with this Agreement in such defense action. Strathclyde shall have relieve the right, at its own expense, to retain counsel Indemnifying Party of its choice indemnification obligations in this Article IX with respect to represent it in any such defense actionLosses resulting therefrom. Targent Notwithstanding anything to the contrary set forth herein, the Indemnifying Party shall notify Strathclyde in writing and provide a copy of not settle any Third Party Action without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld or delayed) unless (i) any claim the terms of Alleged Infringement filed with a court or governmental authority or the compromise and settlement require only the payment of money for which the Indemnifying Party is solely liable, (ii) the Indemnified Party is not required to admit any written notice wrongdoing, take or refrain from taking any action, acknowledge any rights of an Alleged Infringement from an attorney or law firm. In the event an injunction is issued against Targent because of infringement of Person making the Third Party intellectual property rightsClaim or waive any rights that the Indemnified Party may have against the person or entity making the Third Party Claim, and (iii) the Parties will confer Indemnified Party receives, as part of the compromise and settlement, an unconditional release from any and all claims, obligations and Liabilities with respect to decide their future course of action regarding Licensed Products and sharing liability for Targent’s expensesthe Third Party Claim.