Common use of Third Party Litigation Clause in Contracts

Third Party Litigation. In the event of any actual or threatened suit against Dynavax, AstraZeneca or its Affiliates, Sublicensees, Distributors or customers alleging that the Development and/or Commercialization of CDs, Product or Combination Product, or [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. that the Development and/or Commercialization of a Collaboration Patent or the Background Technologies or any part thereof by or on behalf of AstraZeneca under this Agreement, infringes the Patent or other intellectual property rights of any Person (an “Infringement Suit”), the Party first becoming aware of such Infringement Suit shall promptly give written notice to the other Party. AstraZeneca shall have the first right, but not the obligation, through counsel of its choosing, to assume direction and control of the defence of claims arising therefrom (including the right to settle such claims at its sole discretion, subject to the provisions of this Section 14.5). If AstraZeneca notifies Dynavax in writing that it does not wish to assume such direction and control, Dynavax shall have the right, but not the obligation to, at its sole cost and expense, defend against such claims; provided, however, that Dynavax shall obtain the written consent of AstraZeneca prior to ceasing to defend, settling or otherwise disposing of such claims. Dynavax shall be entitled to be joined in any proceedings that may be brought against AstraZeneca in relation to Dynavax’s Background Technology. If Dynavax does so elect to be joined, it shall pay its own costs and expenses in relation to the proceedings. AstraZeneca shall not make any admission or settle or otherwise compromise any proceedings brought against it in relation to Dynavax’s Background Technology without first obtaining the written consent of Dynavax, which shall not be unreasonably withheld or delayed. Notwithstanding anything in the foregoing, each Party shall have the right to defend itself, using the counsel of its choice and at its own expense, any claims or law suits brought against it by any Third Party, and each Party shall have the right to settle any such claims or law suits on its own behalf, so long as such settlement does not provide for the payment of money by the other Party or performance obligations, or restrictions imposed upon, the other Party.

Third Party Litigation. In the event of any actual or threatened suit against Dynavax, AstraZeneca or its Affiliates, Sublicensees, Distributors or customers alleging that the Development and/or Commercialization of CDs, Product or Combination Product, or [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. that the Development and/or Commercialization of a Collaboration Patent or the Background Technologies or any part thereof by or on behalf of AstraZeneca under this Agreement, infringes the Patent or other intellectual property rights of any Person (an “Infringement Suit”), the Party first becoming aware of such Infringement Suit shall promptly give written notice to the other Party. AstraZeneca shall have the first right, but not the obligation, through counsel of its choosing, to assume direction and control of the defence of claims arising therefrom (including the right to settle such claims at its sole discretion, subject to the provisions of this Section 14.5). If AstraZeneca notifies Dynavax in writing that it does not wish to assume such direction and control, Dynavax shall have the right, but not the obligation to, at its sole cost and expense, defend against such claims; provided, however, that Dynavax shall obtain the written consent of AstraZeneca prior to ceasing to defend, settling or otherwise disposing of such claims. Dynavax shall be entitled to be joined in any proceedings that may be brought against AstraZeneca in relation to Dynavax’s Background Technology. If Dynavax does so elect to be joined, it shall pay its own costs and expenses in relation to the proceedings. AstraZeneca shall not make any admission or settle or otherwise compromise any proceedings brought against it in relation to Dynavax’s Background Technology without first obtaining the written consent of Dynavax, which shall not be unreasonably withheld or delayed. [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. Notwithstanding anything in the foregoing, each Party shall have the right to defend itself, using the counsel of its choice and at its own expense, any claims or law suits brought against it by any Third Party, and each Party shall have the right to settle any such claims or law suits on its own behalf, so long as such settlement does not provide for the payment of money by the other Party or performance obligations, or restrictions imposed upon, the other Party.

Third Party Litigation. In the event of any actual or threatened suit against DynavaxMAP, AstraZeneca or its Affiliates, Sublicensees, Distributors or customers alleging that the Development and/or Commercialization Exploitation of CDs, any Formulation or any Licensed Product or Combination Product, or [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. that the Development and/or Commercialization Exploitation of a Collaboration Licensed Patent or the Background Technologies Licensed Know-How or any part thereof by or on behalf of AstraZeneca under this Agreement, Agreement infringes the Patent Patent, Intellectual Property Rights, or any other intellectual property rights proprietary rights, of any Person (an “Infringement Suit”), the Party first becoming aware of such Infringement Suit shall promptly give written notice to the other Party. AstraZeneca shall have the first right, but not the obligation, through counsel of its AstraZeneca’s choosing, at AstraZeneca’s expense, to assume direction and control of the defence defense of claims arising therefrom (therefrom, including the right right, notwithstanding Section 15.4, to settle such claims at in its sole discretion, subject provided that such settlement does not admit the invalidity or unenforceability of any Licensed Patent without the prior written consent of MAP, such consent not to the provisions of this Section 14.5)be unreasonably withheld, conditioned or delayed. If AstraZeneca notifies Dynavax MAP in writing that it does not wish to assume such direction and control, Dynavax which notice AstraZeneca shall provide by the later of (a) the date that is [***] days after AstraZeneca becomes aware of such claim, and (b) the date that AstraZeneca or its Affiliates are no longer in active, bona fide settlement negotiations with respect thereto, then if the action or threatened suit occurs in [***], MAP shall have the right, but not the obligation toobligation, CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. through counsel of MAP’s choosing, at MAP’s expense, to defend against such claims at its sole cost and expense, and if the action or threatened suit occurs in [***], MAP shall have the right, but not the obligation, through counsel of MAP’s choosing, at MAP’s expense, to defend against such claims; providedclaims at its sole cost and expense subject to AstraZeneca’s prior written consent, however, that Dynavax shall obtain the written such consent of AstraZeneca prior to ceasing to defend, settling or otherwise disposing of such claims. Dynavax shall be entitled not to be joined unreasonably withheld, conditioned or delayed, which rights of MAP shall include, in any proceedings that may be brought against AstraZeneca in relation each case, the right, subject to Dynavax’s Background Technology. If Dynavax does so elect Section 15.4, to be joined, it shall pay its own costs and expenses in relation to the proceedings. AstraZeneca shall not make any admission or settle or otherwise compromise any proceedings brought against it in relation to Dynavax’s Background Technology without first obtaining the written consent of Dynavax, which shall not be unreasonably withheld such action or delayed. Notwithstanding anything in the foregoing, each Party shall have the right to defend itself, using the counsel of its choice and at its own expense, any claims or law suits brought against it by any Third Party, and each Party shall have the right to settle any such claims or law suits on its own behalf, so long as such settlement does not provide for the payment of money by the other Party or performance obligations, or restrictions imposed upon, the other Partyclaim.

Third Party Litigation. In the event that a Third Party institutes a Patent, Trademark or other infringement suit (including any suit alleging the invalidity or unenforceability of any actual or threatened suit against Dynavax, AstraZeneca the Patents of a Party or its Affiliates, Sublicenseesor claiming confusion, Distributors deception or customers alleging that the Development and/or Commercialization of CDs, Product or Combination Product, or [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. that the Development and/or Commercialization dilution of a Collaboration Patent Trademark) against either Party or its respective Affiliates, licensees or Sublicensees during the Background Technologies Term, alleging use of the Licensed Technology, Licensed Trademarks or any part thereof by or on behalf of AstraZeneca under this Agreementother activities hereunder, infringes the Patent one or more Patent, Trademark or other intellectual property rights of any Person held by such Third Party (an “"Infringement Suit”"), the Party first becoming aware Parties shall cooperate with one another in defending such suit. If NovaDel is named as a party to the litigation, and NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel shall have the right, not he obligation, to control that aspect of the litigation. Licensee shall cooperate with NovaDel in the defense of that aspect of the litigation. If NovaDel is not named as a party to the litigation and is not added as a party to the litigation, however, NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel shall have the right to consult with Licensee in the presentation of the defense. Licensee shall bear [***] percent ([***]) of its own costs and expenses associated with any such Infringement Suit shall promptly give written notice to the other Party. AstraZeneca extent that it relates to the Exploitation of any Licensed Product, and NovaDel shall have the first right, but not the obligation, through counsel bear [***] percent ([***]) of its choosingown costs of cooperation and participation. If Licensee elects not to defend the Third Party Litigation, to assume direction and control of the defence of claims arising therefrom (including the right to settle such claims at its sole discretion, subject NovaDel is named as a party to the provisions of this Section 14.5). If AstraZeneca notifies Dynavax in writing that it does not wish to assume such direction and controllitigation, Dynavax NovaDel shall have the right, but not the obligation toresponsibility, at its sole cost and expense, defend against such claims; provided, however, that Dynavax shall obtain the written consent of AstraZeneca prior to ceasing to defend, settling or otherwise disposing of such claims. Dynavax shall be entitled to be joined in any proceedings that may be brought against AstraZeneca in relation to Dynavax’s Background Technology. If Dynavax does do so elect to be joined, it shall pay its own costs and expenses in relation to the proceedings. AstraZeneca shall not make any admission or settle or otherwise compromise any proceedings brought against it in relation to Dynavax’s Background Technology without first obtaining the written consent of Dynavax, which shall not be unreasonably withheld or delayed. Notwithstanding anything in the foregoing, each Party shall have the right to defend itself, using the counsel of its choice and at its own expense. In such case, any claims or law suits brought against it by any Third Party, and each Party Licensee shall have the right to settle any such claims or law suits on bear [***] percent ([***]) of its own behalf, so long as such settlement does not provide for the payment costs of money by the other Party or performance obligations, or restrictions imposed upon, the other Partycooperation and participation. INFORMATION MARKED BY [***] HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTION HAS BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

Third Party Litigation. In Except as otherwise set forth in Article 11, in the event of any actual or threatened suit against DynavaxRigel, AstraZeneca AZ or its Affiliates, Sublicensees, Distributors Affiliates that (i) the Exploitation of Rigel Compounds or customers alleging that associated Products in the Development and/or Commercialization of CDs, Product Field in the Territory or Combination Product, or [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. that (ii) the Development and/or Commercialization practice of a Collaboration Rigel Patent, Joint Patent or the Background Technologies Rigel Know-How or any part thereof in connection with the activities set forth in subsection (i) above, in each case by or on behalf of AstraZeneca AZ under this Agreement, Agreement infringes the Patent patent or other intellectual property rights of any Person Third Party (an “Infringement Suit”), the Party first becoming aware of such Infringement Suit shall promptly give written notice to the other Party. AstraZeneca AZ shall have the first right, but not the obligation, through counsel of its choosing, to assume direction and control of the defence defense of claims arising therefrom (including the right to settle such claims at in its sole discretion) on behalf of both Parties; provided, subject however, that AZ shall obtain the written consent of Rigel prior to the provisions of this Section 14.5)ceasing to defend, settling or otherwise compromising such claims. If AstraZeneca AZ notifies Dynavax Rigel in writing that it does not wish to assume such direction and control, Dynavax Rigel shall have the right, but not the obligation to, at its sole cost and expense, defend against such claimsclaims on behalf of both Parties; provided, however, that Dynavax Rigel shall obtain the written consent of AstraZeneca AZ prior to ceasing to defend, settling or otherwise disposing of compromising such claims. Dynavax The other Party shall be entitled provide to be joined the Party controlling any such defense under this Section 9.4(c) reasonable assistance in such enforcement, at the defending Party’s request and expense. The defending Party shall keep the other Party regularly informed of the status and progress of such defense efforts, and shall reasonably consider the other Party’s comments on any proceedings that may be brought against AstraZeneca in relation to Dynavax’s Background Technologysuch efforts. If Dynavax does so elect either Party elects to be joineddefend both itself and the other Party from a claim pursuant to this Section 9.4(c), it the defending Party shall pay indemnify the other Party, and its own officers, directors, employees and agents, and hold them harmless from and against any and all damages or other amounts payable to such Third Party claimant arising from such claims, as well as any reasonable attorneys’ fees and costs and expenses in relation of litigation incurred by such other Party. If neither Party elects to the proceedings. AstraZeneca shall not make any admission or settle or otherwise compromise any proceedings brought against it in relation to Dynavax’s Background Technology without first obtaining the written consent defend such claims on behalf of Dynavax, which shall not be unreasonably withheld or delayed. Notwithstanding anything in the foregoingboth Parties, each Party shall have the right to defend itself, using the counsel of its choice and at its own expense, any claims or law suits brought against it by any Third Party, and each Party shall have the right to settle any itself from such claims or law suits on its own behalf, so long as such settlement does at its sole cost and expense. This Section 9.4(c) shall not provide for the payment of money by the other Party be construed to modify either Party’s rights or performance obligations, or restrictions imposed upon, the other Partyobligations under Article 11.

Third Party Litigation. In Except as otherwise set forth in Article 11, in the event of any actual or threatened suit against DynavaxRigel, AstraZeneca AZ or its Affiliates, Sublicensees, Distributors Affiliates that (i) the Exploitation of Rigel Compounds or customers alleging that associated Products in the Development and/or Commercialization of CDs, Product Field in the Territory or Combination Product, or [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. that (ii) the Development and/or Commercialization practice of a Collaboration Rigel Patent, Joint Patent or the Background Technologies Rigel Know-How or any part thereof in connection with the activities set forth in subsection (i) above, in each case by or on behalf of AstraZeneca AZ under this Agreement, Agreement infringes the Patent patent or other intellectual property rights of any Person Third Party (an “Infringement Suit”), the Party first becoming aware of such Infringement Suit shall promptly give written notice to the other Party. AstraZeneca AZ shall have the first right, but not the obligation, through counsel of its choosing, to assume direction and control of the defence defense of claims arising therefrom (including the right to settle such claims at in its sole discretion) on behalf of both Parties; provided, subject however, that AZ shall obtain the written consent of Rigel prior to the provisions of this Section 14.5)ceasing to defend, settling or otherwise compromising such claims. If AstraZeneca AZ notifies Dynavax Rigel in writing that it does not wish to assume such direction and control, Dynavax Rigel shall have the right, but not the obligation to, at its sole cost and expense, defend against such claimsclaims on behalf of both Parties; provided, however, that Dynavax Rigel shall obtain the written consent of AstraZeneca AZ prior to ceasing to defend, [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. settling or otherwise disposing of compromising such claims. Dynavax The other Party shall be entitled provide to be joined the Party controlling any such defense under this Section 9.4(c) reasonable assistance in such enforcement, at the defending Party’s request and expense. The defending Party shall keep the other Party regularly informed of the status and progress of such defense efforts, and shall reasonably consider the other Party’s comments on any proceedings that may be brought against AstraZeneca in relation to Dynavax’s Background Technologysuch efforts. If Dynavax does so elect either Party elects to be joineddefend both itself and the other Party from a claim pursuant to this Section 9.4(c), it the defending Party shall pay indemnify the other Party, and its own officers, directors, employees and agents, and hold them harmless from and against any and all damages or other amounts payable to such Third Party claimant arising from such claims, as well as any reasonable attorneys’ fees and costs and expenses in relation of litigation incurred by such other Party. If neither Party elects to the proceedings. AstraZeneca shall not make any admission or settle or otherwise compromise any proceedings brought against it in relation to Dynavax’s Background Technology without first obtaining the written consent defend such claims on behalf of Dynavax, which shall not be unreasonably withheld or delayed. Notwithstanding anything in the foregoingboth Parties, each Party shall have the right to defend itself, using the counsel of its choice and at its own expense, any claims or law suits brought against it by any Third Party, and each Party shall have the right to settle any itself from such claims or law suits on its own behalf, so long as such settlement does at its sole cost and expense. This Section 9.4(c) shall not provide for the payment of money by the other Party be construed to modify either Party’s rights or performance obligations, or restrictions imposed upon, the other Partyobligations under Article 11.

Third Party Litigation. In the event of any actual or threatened suit against Dynavax***, AstraZeneca or its Affiliates, Sublicensees, Distributors or customers alleging that the Development and/or Commercialization Exploitation of CDs, Product Agreement Compounds or Combination ProductLicensed Products, or [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. that the Development and/or Commercialization Exploitation of a the Licensed Patents or the Collaboration Patents, AstraZeneca Patent or the AstraZeneca Background Technologies or any part thereof by or on behalf of AstraZeneca under this Agreement, infringes the Patent or other intellectual property rights of any Person (an “Infringement Suit”), the Party first becoming aware of such Infringement Suit shall promptly give written notice to the other Party. AstraZeneca *** shall have the first right, but not the obligation, through counsel of its choosingchoosing and at its cost and expense subject to the credit provisions of Section 17.5, to assume direction and control of the defence of claims arising therefrom (including including, subject to what is stated below in this Section 17.4, the right to settle such claims at its sole discretion). *** shall, subject if reasonably requested by ***, allow *** to join in such legal action as a party at its own expense. *** shall remain in full control handling such legal action. Notwithstanding the foregoing, *** shall not have the right to, and shall ***, enter into any settlement or consent to any claim to the provisions effect that any claim under, or the patent protection otherwise offered under, ***, without the prior written consent of this Section 14.5)***, such consent not to be unreasonably withheld. If AstraZeneca *** notifies Dynavax *** in writing that it does not wish to assume such direction and control, Dynavax ***, shall have the right, but not the obligation to, at its sole cost and expense, defend against such claims; provided, however, that Dynavax *** may contribute to or join such legal action voluntarily, at its own cost and expense, and shall have the right to be heard and *** shall, and shall procure *** to, give due regard to ***, (i) shall not have the right to, and shall not permit any of its other licensees and shall procure such licensees not to, enter into any settlement or consent to any claim to the effect that any claim under, or the patent protection otherwise offered under, any part of the Licensed Patents within the Licensed Field would be materially negatively affected, without the prior written consent of ***, such consent not to be unreasonably withheld; and (ii) shall obtain the written consent of AstraZeneca *** prior to ceasing to defend, settling or otherwise disposing of such claims. Dynavax shall be entitled to be joined in any proceedings that may be brought against AstraZeneca in relation to Dynavax’s Background Technology. If Dynavax does so elect to be joined, it shall pay its own costs and expenses in relation to the proceedings. AstraZeneca shall not make any admission or settle or otherwise compromise any proceedings brought against it in relation to Dynavax’s Background Technology without first obtaining the written consent of Dynavax, which shall not be unreasonably withheld or delayed. Notwithstanding anything in the foregoing, each Party shall have the right to defend itself, using the counsel of its choice and at its own expense, any claims or law suits brought against it by any Third Party, and each Party shall have the right to settle any such claims or law suits on its own behalf, so long as such settlement does not provide for the payment of money by the other Party or performance obligations, or restrictions imposed upon, the other Partyotherwise.