Common use of Third Party Defense or Counterclaim Clause in Contracts

Third Party Defense or Counterclaim. If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 8.3, that any Lupin Patent, Lupin Improvement Patent, Salix Patent, or Joint Patent is invalid or unenforceable, then the Party pursuing such infringement action shall promptly give written notice to the other Party. With respect to the Lupin Patents, the Lupin Improvement Patents, and the Joint Platform Patents, Lupin shall have the first right, but not the obligation, through counsel reasonably acceptable to Salix, to respond to such defense or defend against such counterclaim (as applicable) and, if Salix (or its Sublicensees or any of its or their respective Affiliates) is pursuing the applicable infringement action under Section 8.3, Salix (or its Sublicensees or any of its or their respective Affiliates) shall allow Lupin to control such response or defense (as applicable). With respect to the Salix Patents and the Joint Patents other than the Joint Platform Patents, Salix shall have the first right, but not the obligation, through counsel reasonably acceptable to Lupin, to respond to such defense or defend against such counterclaim (as applicable) and, if Lupin is pursuing the applicable infringement action under Section 8.3, Lupin shall allow Salix to control such response or defense (as applicable). Any costs and expenses with respect to such response or defense against such counterclaim shall be borne by the Party controlling such response or defense. If either Party (and such Party’s licensors, to the extent permitted by its agreements therewith, and Sublicensees, if any) determines not to assume or fails to assume such defense within relevant timeframes, the other Party shall, at its sole cost and expense, have the right to defend against such action or claim; provided, however, that such other Party shall obtain the written consent of Lupin, with respect to the Lupin Patents, the Lupin Improvement Patents and the Joint Patents, or Salix, with respect to the Salix Patents and the Joint Patents, prior to ceasing to defend, settling or otherwise compromising any such action or claim, such consent not to be unreasonably withheld or delayed.

Third Party Defense or Counterclaim. If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 8.37.3, that any Lupin Patent, Lupin Improvement Patent, Salix Patent, INS Patent or Joint ViroPharma Patent is invalid or unenforceable, then the Party pursuing such infringement action shall promptly give written notice to the other Party. With respect to the Lupin INS Patents, the Lupin Improvement Patents, and the Joint Platform Patents, Lupin INS shall have the first right, but not the obligation, through counsel reasonably acceptable to SalixViroPharma, to respond to such defense or defend against such counterclaim (as applicable) and, if Salix ViroPharma (or its Sublicensees or any of its or their respective Affiliates) is pursuing the applicable infringement action under Section 8.37.3, Salix ViroPharma (or its Sublicensees or any of its or their respective Affiliates) shall allow Lupin INS to control such response or defense (as applicable)) provided, that control of the defense of the INS Technology Controlled by INS pursuant to the Academic License is subject to the terms of the Academic License. With respect to the Salix Patents and the Joint Patents other than the Joint Platform ViroPharma Patents, Salix ViroPharma shall have the first right, but not the obligation, through counsel reasonably acceptable to LupinINS, to respond to such defense or defend against such counterclaim (as applicable) and, if Lupin INS is pursuing the applicable infringement action under Section 8.37.3, Lupin INS shall allow Salix ViroPharma to control such response or defense (as applicable). Any costs and expenses with respect to such response or defense against such counterclaim shall be borne by the Party controlling such response or defense. If either Party (and such Party’s licensors, to the extent permitted by its agreements therewith, and Sublicensees, if any) determines not to assume or fails to assume such defense within relevant timeframes, the other Party shall, at its sole cost and expense, have the right to defend against such action or claim; provided, however, that such other Party shall obtain the written consent of LupinINS, with respect to the Lupin Patents, the Lupin Improvement Patents and the Joint INS Patents, or SalixViroPharma, with respect to the Salix Patents and the Joint ViroPharma Patents, prior to ceasing to defend, settling or otherwise compromising any such action or claim, such consent not to be unreasonably withheld or delayed.

Third Party Defense or Counterclaim. If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 8.39.3, that any Lupin Patent, Lupin Improvement Patent, Salix Patent, Licensed Patent or Joint Patent is invalid or unenforceable, then the Party pursuing such infringement action shall promptly give written notice to the other Party. With Subject to any rights of Tulane under the Tulane License, with respect to the Lupin Licensed Patents and Joint Patents, the Lupin Improvement Patents, and the Joint Platform Patents, Lupin Licensee shall have the first right, but not the obligation, through counsel reasonably acceptable to Salixof its choosing, to respond to such defense or defend against such counterclaim (as applicable) and, if Salix (or its Sublicensees or any of its or their respective Affiliates) Licensor is pursuing the applicable infringement action under Section 8.39.3, Salix (or its Sublicensees or any of its or their respective Affiliates) Licensor shall allow Lupin to control such response or defense (as applicable). With respect to the Salix Patents and the Joint Patents other than the Joint Platform Patents, Salix shall have the first right, but not the obligation, through counsel reasonably acceptable to Lupin, to respond to such defense or defend against such counterclaim (as applicable) and, if Lupin is pursuing the applicable infringement action under Section 8.3, Lupin shall allow Salix Licensee to control such response or defense (as applicable). Any costs and expenses with respect to such response or defense against such counterclaim shall be borne by the Parties in accordance with the principles set forth in Section 9.3, as though Licensee were the enforcing Party controlling such response or defensethereunder. If either Party (and such Party’s licensors, to the extent permitted by its agreements therewith, and Sublicensees, if any) Licensee determines not to assume or fails to assume such defense within relevant timeframesdefense, the other Party Licensor shall, at its sole cost and expense, have the right to defend against such action or claim; provided, however, that . The Party conducting such other Party response or defense shall obtain the written consent of LupinLicensor, with respect to the Lupin Patents, the Lupin Improvement Patents Tulane Patent and the Joint Patents, or SalixLicensee, with respect to the Salix Licensed Patents and the or Joint Patents, prior to ceasing to defend, settling or otherwise compromising any such action or claim, such consent not to be unreasonably withheld or delayed. Any amounts recovered by either Party in connection with a response or defense pursuant to this Section 9.5.1 shall be allocated between the Parties in accordance with Section 9.3, as though the defending Party were the enforcing Party thereunder.

Third Party Defense or Counterclaim. If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 8.37.3, that any Lupin Patent, Lupin Improvement Patent, Salix Patent, INS Patent or Joint ViroPharma Patent is invalid or unenforceable, then the Party pursuing such infringement action shall promptly give written notice to the other Party. With respect to the Lupin INS Patents, the Lupin Improvement Patents, and the Joint Platform Patents, Lupin INS shall have the first right, but not the obligation, through counsel reasonably acceptable to SalixViroPharma, to respond to such defense or defend against such counterclaim (as applicable) and, if Salix ViroPharma (or its Sublicensees or any of its or their respective Affiliates) is pursuing the applicable infringement action under Section 8.37.3, Salix ViroPharma (or its Sublicensees or any of its or their respective Affiliates) shall allow Lupin INS to control such response or defense (as applicable)) provided, that control of the defense of the INS Technology Controlled by INS pursuant to the Academic License is subject to the terms of the Academic License. With respect to the Salix Patents and the Joint Patents other than the Joint Platform ViroPharma Patents, Salix ViroPharma shall have the first right, but not the obligation, through counsel reasonably acceptable to LupinINS, to respond to such defense or defend against such counterclaim (as applicable) and, if Lupin INS is pursuing the applicable infringement action under Section 8.37.3, Lupin INS shall allow Salix ViroPharma to control such response or defense (as applicable). Any costs and expenses with respect to such response or defense against such counterclaim shall be borne by the Party controlling such response or defense. If either Party (and such Party’s licensors, to the extent permitted by its agreements therewith, and Sublicensees, if any) determines not to assume or fails to assume such defense within relevant timeframes, the other Party shall, at its sole cost and expense, have the right to defend against such action or claim; provided, however, that such other Party shall obtain the written consent of LupinINS, with respect to the Lupin Patents, the Lupin Improvement Patents and the Joint INS Patents, or SalixViroPharma, with respect to the Salix Patents and the Joint ViroPharma Patents, prior to ceasing to defend, settling or otherwise compromising any such action or claim, such consent not to be unreasonably withheld or delayed. Portions of this Exhibit, indicated by the xxxx “***,” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Company’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.