Common use of Defense of Infringement Claims Clause in Contracts

Defense of Infringement Claims. 10.6.1 If the manufacture, sale or use of a Licensed Product pursuant to this Agreement results in, or may result in, any claim, suit, or proceeding by a Third Party alleging patent infringement by Kyowa Kirin (or its Affiliates), Kyowa Kirin will promptly notify Reata thereof in writing. Subject to the provisions of Section 10.6.2, Kyowa Kirin will have the first right, but not the obligation to defend and control the defense of any such claim, suit or proceeding at its own expense, using counsel of its own choice. Reata may participate in any such claim, suit or proceeding with counsel of its choice at its own expense. If Kyowa Kirin elects (in a written communication submitted to Reata within a reasonable amount of time after notice of the alleged patent infringement) not to defend or control the defense of, or otherwise fails to initiate and maintain the defense of, any such claim, suit or proceeding, within such time periods so that Reata is not prejudiced by any delays, Reata may conduct and control the defense of any such claim, suit or proceeding at its own expense. Each Party will keep the other Party reasonably informed of all material developments in connection with any such claim, suit, or proceeding. Each Party agrees to provide the other Party with copies of all pleadings filed in such action and to allow the other Party reasonable opportunity to participate in the defense of the claims. If Kyowa Kirin is controlling the defense of any such claim, suit or proceeding, it agrees to provide English translations, or summaries thereof, of all pleadings, discovery-requests, and key documents filed with the court reasonably promptly. Kyowa Kirin shall be entitled to deduct [***] percent ([***]%) of the out-of-pocket costs of defending such claim, suit or proceeding from the Sales Royalties due to Reata pursuant to Section 7.3 of this Agreement; provided that such deductions (together with the reductions under Section 7.4.2 if applicable) shall in no event exceed either [***]% cap set forth in Section 7.4.2, and if any such costs cannot be applied (due to such cap or the absence of Sales Royalties in the applicable period) such unapplied amounts shall accrue and be used to reduce Sales Royalties in future periods subject to the same overall cap until all such costs are applied against the Sales Royalties. Any recoveries by Kyowa Kirin of attorneys fees or cost in defense of a claim under this Section 10.6, and any sanctions awarded to Kyowa Kirin and against a party asserting a claim being defended under this Section 10.6, shall be divided evenly between the parties.

Defense of Infringement Claims. 10.6.1 If the manufacture, sale or use of a Licensed POZEN Product pursuant to this Agreement results in, or may result in, in any claim, suit, or proceeding by a Third Party alleging patent infringement by Kyowa Kirin (that such activities infringe a Third Party patent, or its Affiliates)if a Third Party threatens such a claim, Kyowa Kirin suit or proceeding, each Party will promptly notify Reata thereof in writingthe other Party thereof. Subject to the provisions of Section 10.6.2, Kyowa Kirin *** *** will have the first right, but not the obligation exclusive right to defend and control the defense of any such claim, suit or proceeding at its own expense, using counsel of its own choice. Reata may participate in ; provided, that if any such proceedings involve matters relating to the validity or enforceability of the Licensed Patents or Joint Patents, then the provisions of Section 9.6.3 (Cooperation) above shall apply. In any claim, suit or proceeding with counsel of its choice at its own expense. If Kyowa Kirin elects (in a written communication submitted to Reata within a reasonable amount of time after notice of the alleged patent infringement) not to defend or control the defense ofunder this Section 9.7, or otherwise fails to initiate and maintain the defense of, any such claim, suit or proceeding, within such time periods so that Reata is not prejudiced by any delays, Reata may conduct and control the defense of any such claim, suit or proceeding at its own expense. Each Party *** will keep the other Party *** reasonably informed of all material developments in connection with any such claim, suit, or proceeding; provided, that if *** is named as a defendant in any such claim, suit or proceeding, that *** shall have the right to participate in the defense using counsel of its choice at its own expense. Each Party In any claim, suit or proceeding under this Section 9.7, *** agrees to provide the other Party *** with copies of all pleadings filed in such action and to allow the other Party *** reasonable opportunity to participate in the defense of the claims. If Kyowa Kirin is controlling the defense of any such claimCONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS DOCUMENT. EACH SUCH PORTION, suit or proceeding, it agrees to provide English translations, or summaries thereof, of all pleadings, discovery-requests, and key documents filed with the court reasonably promptly. Kyowa Kirin shall be entitled to deduct [WHICH HAS BEEN OMITTED HEREIN AND REPLACED WITH AN ASTERISK ***] percent ([***]%) of the out-of-pocket costs of defending such claim, suit or proceeding from the Sales Royalties due to Reata pursuant to Section 7.3 of this Agreement; provided that such deductions (together with the reductions under Section 7.4.2 if applicable) shall in no event exceed either [***]% cap set forth in Section 7.4.2, and if any such costs cannot be applied (due to such cap or the absence of Sales Royalties in the applicable period) such unapplied amounts shall accrue and be used to reduce Sales Royalties in future periods subject to the same overall cap until all such costs are applied against the Sales Royalties. Any recoveries by Kyowa Kirin of attorneys fees or cost in defense of a claim under this Section 10.6, and any sanctions awarded to Kyowa Kirin and against a party asserting a claim being defended under this Section 10.6, shall be divided evenly between the parties.HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION

Defense of Infringement Claims. 10.6.1 If Schering shall have the manufactureright and responsibility, sale at its sole discretion, to defend and control any action or proceeding with respect to any Infringement Claim. With respect to any such Infringement Claim, Novacea shall, upon request, reasonably cooperate with Schering as necessary for the defense of such Infringement Claim (including consenting to any necessary use of a Licensed Product pursuant to this Agreement results in, or may result in, any claim, suit, or proceeding by a Third Party alleging patent infringement by Kyowa Kirin (its or its Affiliates’ name). Schering shall have sole control of any suit, action or other proceedings to defend an Infringement Claim, and for any and all settlement discussions or negotiations with respect thereto; provided, however, that Schering shall not settle or compromise any such suit (or enter into any consent order for the settlement or compromise thereof) without the prior written consent of Novacea, which consent shall not be unreasonably withheld, conditioned or delayed, if such settlement or compromise: (i) involves an admission of invalidity of any Novacea Background Patents; (ii) would impose any financial obligations on Novacea or its Affiliates; (iii) would impose an injunction or other similar restriction on Novacea or its Affiliates; or (iv) would constitute an admission of guilt or liability by or on behalf of Novacea or its Affiliates. [*] = 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. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. Page 42 (c) Step-in Right for Novacea. In the event that Schering does not elect to defend an action or proceeding related to an Infringement Claim within [*] of said claim being brought (or such shorter time period as may be necessary to appropriately respond to said claim), Kyowa Kirin will promptly notify Reata thereof in writing. Subject or if Schering notifies Novacea at any time prior thereto of its intention not to the provisions of Section 10.6.2defend such action or proceeding, Kyowa Kirin will then Novacea shall have thereafter have the first right, but not the obligation be obligated, to defend and control any action or proceeding. In the event Novacea elects to defend the Infringement Claim it shall notify Schering to that effect and shall thereafter have sole control of any suit, action or other proceedings to defend the Infringement Claim, and for any and all settlement discussions or negotiations with respect thereto; provided, however, that Novacea shall not settle or compromise any such suit (or enter into any consent order for the settlement or compromise thereof) without the prior written consent of Schering, which consent shall not be unreasonably withheld, conditioned or delayed, if such settlement or compromise: (i) involves an admission of invalidity of any Schering Background Patents or Program Patents; (ii) would impose any financial obligations on Schering or its Affiliates, or otherwise adversely impact Schering’s rights, with respect to the Formulation or the Licensed Product; (iii) would impose an injunction or other similar restriction on Schering or its Affiliates; or (iv) would constitute an admission of guilt or liability by or on behalf of Schering or its Affiliates. Schering shall, upon request, reasonably cooperate with Novacea as necessary for the defense of any such claim, suit or proceeding at its own expense, using counsel of its own choice. Reata may participate in any such claim, suit or proceeding with counsel of its choice at its own expense. If Kyowa Kirin elects (in a written communication submitted to Reata within a reasonable amount of time after notice of the alleged patent infringement) not to defend or control the defense of, or otherwise fails to initiate and maintain the defense of, any such claim, suit or proceeding, within such time periods so that Reata is not prejudiced by any delays, Reata may conduct and control the defense of any such claim, suit or proceeding at its own expense. Each Party will keep the other Party reasonably informed of all material developments in connection with any such claim, suit, or proceeding. Each Party agrees to provide the other Party with copies of all pleadings filed in such action and to allow the other Party reasonable opportunity to participate in the defense of the claims. If Kyowa Kirin is controlling the defense of any such claim, suit or proceeding, it agrees to provide English translations, or summaries thereof, of all pleadings, discovery-requests, and key documents filed with the court reasonably promptly. Kyowa Kirin shall be entitled to deduct [***] percent ([***]%) of the out-of-pocket costs of defending such claim, suit or proceeding from the Sales Royalties due to Reata pursuant to Section 7.3 of this Agreement; provided that such deductions (together with the reductions under Section 7.4.2 if applicable) shall in no event exceed either [***]% cap set forth in Section 7.4.2, and if any such costs cannot be applied (due to such cap or the absence of Sales Royalties in the applicable period) such unapplied amounts shall accrue and be used to reduce Sales Royalties in future periods subject to the same overall cap until all such costs are applied against the Sales Royalties. Any recoveries by Kyowa Kirin of attorneys fees or cost in defense of a claim Infringement Claim for which Novacea has assumed responsibility under this Section 10.6, and 12.4(c) (including consenting to any sanctions awarded to Kyowa Kirin and against a party asserting a claim being defended under this Section 10.6, shall be divided evenly between the partiesnecessary use of Schering or its Affiliates’ name).

Defense of Infringement Claims. 10.6.1 If the manufacture, sale or use of a Licensed Product pursuant to this Agreement results in, or may result in, any claim, suit, or proceeding by becomes the subject of a Third Party’s claim or assertion of infringement of a patent relating to the making, using, sale, offer for sale or importation of such Licensed Product within the Field in the Shire Territory, the Party alleging patent infringement by Kyowa Kirin (first having notice of the claim or its Affiliates), Kyowa Kirin will assertion shall promptly notify Reata thereof in writingthe other Party, and the Parties shall promptly confer to consider the claim or assertion and the appropriate course of action. Subject to If the provisions of Section 10.6.2claim or assertion names Shire as Defendant, Kyowa Kirin will then Shire shall have the first right, but not the obligation right to defend and control the defense of any proceeding, and Amicus shall have right to join in such claim, suit or proceeding at its own expense, using counsel of its own choice. Reata may participate in any such claim, suit or proceeding with counsel of its choice defense at its own expense. If Kyowa Kirin elects (Unless the Parties otherwise agree in a written communication submitted to Reata within a reasonable amount of time after notice of writing, each Party shall have the alleged patent infringement) not right to defend or control itself against a suit that names such Party as a defendant, and the other Party shall have the right to join in such defense of, or otherwise fails to initiate and maintain the defense of, any such claim, suit or proceeding, within such time periods so that Reata is not prejudiced by any delays, Reata may conduct and control the defense of any such claim, suit or proceeding at its own expense. Each Neither Party will keep shall enter into any settlement of any action described in this Section 10.4, or otherwise consent to an adverse judgment in any such action, that imposes a financial obligation on the other Party, or that admits the infringement or validity of any Third Party Patent without the other Party’s written consent, which consent shall not be unreasonably withheld. In any event, each Party shall reasonably assist the other Party reasonably informed of all material developments and cooperate in connection with any such claim, suit, or proceeding. Each Party agrees to provide the other Party with copies of all pleadings filed in such action and to allow the other Party reasonable opportunity to participate in the defense of the claims. If Kyowa Kirin is controlling the defense of any such claim, suit or proceeding, it agrees to provide English translations, or summaries thereof, of all pleadings, discovery-requests, and key documents filed with the court reasonably promptly. Kyowa Kirin shall be entitled to deduct [***] percent ([***]%) of INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. litigation in which such Party is not named as a defendant, at the out-of-pocket costs of defending such claim, suit or proceeding from the Sales Royalties due to Reata pursuant to Section 7.3 of this Agreement; provided that such deductions (together with the reductions under Section 7.4.2 if applicable) shall in no event exceed either [***]% cap set forth in Section 7.4.2, Party’s request and if any such costs cannot be applied (due to such cap or the absence of Sales Royalties in the applicable period) such unapplied amounts shall accrue and be used to reduce Sales Royalties in future periods subject to the same overall cap until all such costs are applied against the Sales Royalties. Any recoveries by Kyowa Kirin of attorneys fees or cost in defense of a claim under this Section 10.6, and any sanctions awarded to Kyowa Kirin and against a party asserting a claim being defended under this Section 10.6, shall be divided evenly between the partiesexpense.