Common use of Infringement Actions Clause in Contracts

Infringement Actions. Following an Option Exercise Date, subject to the provisions of any Voyager In-License, Genzyme shall have the sole and exclusive right, but not the obligation, to take any reasonable measures it deems appropriate with respect to any Competitive Infringement in the Genzyme Territory of any Genzyme Technology, Genzyme Collaboration Technology, Joint Collaboration Technology or Voyager Product-Specific Patent Rights, or with Voyager’s prior written consent, the Voyager Platform Patent Rights. Such measures may include (a) initiating or prosecuting an infringement, misappropriation or other appropriate suit or action (each an CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. “Infringement Action”) in the Genzyme Territory, or (b) subject to Section 11.1.5 (Genzyme Sublicense Rights), granting adequate rights and licenses to any Third Party necessary to render continued Competitive Infringement in the Genzyme Territory non-infringing. Voyager will consider in good faith any request from Genzyme to initiate an Infringement Action in the Genzyme Territory against any Third Party with respect to such Competitive Infringement of any Voyager Platform Patent Right; provided, however, that Voyager shall not be required to initiate any such Infringement Action or permit Genzyme to initiate any such Infringement Action with respect to any Voyager Platform Patent Right. Notwithstanding the foregoing, if Genzyme does not inform Voyager that it intends to either initiate such an Infringement Action or grant adequate rights and licenses to such Third Party within [***] after Genzyme’s receipt of a notice of infringement pursuant to Section 15.4.1 (Notice of Infringement), then Voyager will have the second right, but not the obligation, to initiate such Infringement Action, but solely with respect to any Voyager Technology, Voyager Collaboration Technology, or Joint Collaboration Technology.

Infringement Actions. Following an Option Exercise Date, subject Licensor will from time to time take all steps that it may consider necessary to protect its rights in and to the provisions Trademarks, and Licensee agrees to communicate to Licensor any infringements or threatened infringements of any Voyager In-Licenseof such rights that may come to its notice and, Genzyme at Licensor’s expense, to do all and any such acts as Licensor may reasonably require for preventing such infringements or threatened infringements; provided, however, that nothing in this Article VI shall impose upon Licensor any obligation to incur any expense in protecting any of its rights in any case where, in Licensor’s absolute discretion, such expense is considered not warranted. In the event Licensor decides to take affirmative action against an infringement or unfair competition, Licensee agrees to assist Licensor in whatever manner Licensor reasonably directs, at the expense of Licensor. Recovery of damages resulting from any such action shall be solely for the account of Licensor. Licensee will provide information reasonably requested by Licensor in any infringement action, including in connection with the calculation of damages. Should Licensor decide not to take any timely action in respect of infringement of, challenge to or unauthorised use of, any of the Trademarks with respect to the Business of which it is advised by Licensee pursuant to this Article VI, Licensor shall so notify Licensee in which event Licensee shall be entitled, at its sole cost, to take such action (including instituting or defending legal proceedings) as it thinks fit. Licensor shall, at Licensee’s expense, give Licensee all such assistance as Licensee may reasonably require in connection with such action and Licensee shall keep Licensor informed of any material progress in respect of the same and shall not make any admission as to liability or agree to any settlement of any action or legal proceedings without Licensor’s prior written consent (not to be unreasonably withheld, conditioned or delayed). Licensor will have the sole and exclusive right, but not the obligation, to take prosecute any reasonable measures it deems appropriate with respect to any Competitive Infringement pending applications included in the Genzyme Territory of any Genzyme Technology, Genzyme Collaboration Technology, Joint Collaboration Technology or Voyager Product-Specific Patent Rights, or with Voyager’s prior written consent, the Voyager Platform Patent Rights. Such measures may include (a) initiating or prosecuting an infringement, misappropriation or other appropriate suit or action (each an CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. “Infringement Action”) Trademarks in the Genzyme Territory, or (b) subject to Section 11.1.5 (Genzyme Sublicense Rights), granting adequate rights its discretion and licenses to any Third Party necessary to render continued Competitive Infringement in the Genzyme Territory non-infringing. Voyager will consider in good faith any request from Genzyme to initiate an Infringement Action in the Genzyme Territory against any Third Party with respect to such Competitive Infringement of any Voyager Platform Patent Right; provided, however, that Voyager shall not be required to initiate any such Infringement Action or permit Genzyme to initiate any such Infringement Action with respect to any Voyager Platform Patent Right. Notwithstanding the foregoing, if Genzyme does not inform Voyager that it intends to either initiate such an Infringement Action or grant adequate rights at its cost and licenses to such Third Party within [***] after Genzyme’s receipt of a notice of infringement pursuant to Section 15.4.1 (Notice of Infringement), then Voyager will have the second right, but not the obligation, to initiate such Infringement Action, but solely with respect to any Voyager Technology, Voyager Collaboration Technology, or Joint Collaboration Technologyexpense.

Infringement Actions. Following an Option Exercise DateBiomatrix shall have the exclusive right (after consultation with the Distributor) at its own cost to take all legal action in the Territory it deems necessary or advisable to eliminate or minimize the consequences of any infringement of a Patent or Trademark in the Territory. For the purpose of taking any such legal action, Biomatrix shall have the right, subject to the provisions Distributor's prior written consent (which consent shall not be unreasonably withheld or delayed) to use the name of the Distributor and/or any local Affiliate of the Distributor as plaintiff, either solely or jointly in accordance with the applicable rules of procedure. The Distributor shall promptly furnish Biomatrix with whatever written authority may be required in order to enable Biomatrix to use the Distributor's name or that of its Affiliate in connection with any such legal action, and shall otherwise cooperate fully and promptly with Biomatrix in connection with any such action, and shall cause its local Affiliate to cooperate and assist Biomatrix in taking any such legal action. Biomatrix shall permit the Distributor to participate at its own cost in any legal action in the Territory brought by Biomatrix to eliminate or minimize the consequences of any Voyager Ininfringement of a Patent or Trademark in the Territory; provided that Biomatrix shall maintain the right to control the prosecution of such action. All proceeds realized upon any judgement or settlement regarding such action (net of direct out-Licenseof-pocket expenses relating thereto) shall be * *Confidential portions have been omitted and filed separately with the Commission. 39 * Notwithstanding the foregoing, Genzyme if Biomatrix (i) notifies the Distributor in writing that it does not intend to exercise its rights to take legal action in the Territory to eliminate or minimize the consequences of an infringement of a Patent or Trademark in the Territory, and (ii) authorizes the Distributor to pursue such legal action, then the Distributor shall have the sole be entitled, at its own cost and exclusive right, but not the obligationexpense, to take any reasonable measures it deems appropriate such legal action, and Biomatrix shall cooperate with respect the Distributor in connection therewith to any Competitive Infringement in the Genzyme Territory of any Genzyme Technology, Genzyme Collaboration Technology, Joint Collaboration Technology or Voyager Product-Specific Patent Rights, or same extent and upon the same terms as the Distributor is required to cooperate with Voyager’s prior written consent, the Voyager Platform Patent Rights. Such measures may include (a) initiating or prosecuting an infringement, misappropriation or other appropriate suit or action (each an CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. “Infringement Action”) in the Genzyme Territory, or (b) subject to Biomatrix when Biomatrix exercises its rights under this Section 11.1.5 (Genzyme Sublicense Rights), granting adequate rights and licenses to any Third Party necessary to render continued Competitive Infringement in the Genzyme Territory non-infringing. Voyager will consider in good faith any request from Genzyme to initiate an Infringement Action in the Genzyme Territory against any Third Party with respect to such Competitive Infringement of any Voyager Platform Patent Right14.2; provided, however, that Voyager Biomatrix shall not be required entitled to initiate an amount equal to * of the amount (net of the Distributor's direct out-of-pocket expenses in prosecuting such action) of any such Infringement Action judgement or permit Genzyme settlement payable to initiate any such Infringement Action with respect to any Voyager Platform Patent Right. Notwithstanding the foregoing, if Genzyme does not inform Voyager that it intends to either initiate such an Infringement Action or grant adequate rights and licenses to such Third Party within [***] after Genzyme’s receipt of a notice of infringement pursuant to Section 15.4.1 (Notice of Infringement), then Voyager will have the second right, but not the obligation, to initiate such Infringement Action, but solely with respect to any Voyager Technology, Voyager Collaboration Technology, or Joint Collaboration TechnologyDistributor.

Infringement Actions. Following an Option Exercise Date, subject to the provisions Reseller shall cooperate with LA in all -------------------- respects at LA's reasonable request in connection with any action or proceeding prosecuted by LA involving LA's Trademarks or other intellectual property rights. Reseller shall promptly notify LA of any Voyager In-License, Genzyme such infringements or any acts of unfair competition by third parties that come to Reseller's attention. LA shall have the sole and exclusive right, but not the obligationexercisable at its discretion, to institute in its own name and/or Reseller's name and to control, all actions against third parties relating to LA's Trademarks, and other intellectual property rights, at LA's expense. With respect to any such actions, LA shall employ counsel of its own choice to direct the handling of the litigation and any settlement thereof. LA shall be entitled to receive and retain all amounts awarded, if any, as damages, profits or otherwise in connection with such suits handled by LA. Reseller shall not, without LA's prior written consent, institute any suit or take any reasonable measures it deems appropriate action on account of such infringements, acts of unfair competition or unauthorized uses. LA's consent shall not be unreasonably withheld with respect to any Competitive Infringement infringement of rights licensed on an exclusive basis hereunder, and LA's consent may be withheld in the Genzyme Territory of any Genzyme Technology, Genzyme Collaboration Technology, Joint Collaboration Technology or Voyager Product-Specific Patent Rights, or with Voyager’s prior written consent, the Voyager Platform Patent Rights. Such measures may include (a) initiating or prosecuting an infringement, misappropriation or other appropriate suit or action (each an CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. “Infringement Action”) in the Genzyme Territory, or (b) subject to Section 11.1.5 (Genzyme Sublicense Rights), granting adequate rights and licenses to any Third Party necessary to render continued Competitive Infringement in the Genzyme Territory non-infringing. Voyager will consider in good faith any request from Genzyme to initiate an Infringement Action in the Genzyme Territory against any Third Party with respect to such Competitive Infringement of any Voyager Platform Patent Right; provided, however, that Voyager shall not be required to initiate any such Infringement Action or permit Genzyme to initiate any such Infringement Action its sole discretion with respect to any Voyager Platform Patent Rightinfringement of rights licensed on a non-exclusive basis hereunder. Notwithstanding the foregoing, if Genzyme does not inform Voyager that it intends LA shall endeavor to either initiate such an Infringement Action or grant adequate rights and licenses to such Third Party within [***] after Genzyme’s receipt of a provide Reseller with notice of its consent or lack thereof on an expedited basis in the event of an emergency that requires Reseller to seek immediate relief in order to prevent further infringement pursuant of rights licensed on an exclusive basis hereunder. If, with LA's consent, Reseller institutes, at its sole cost and expense, such a suit or action, the handling of the litigation and any settlement thereof shall remain subject to Section 15.4.1 (Notice of Infringement)LA's approval, then Voyager will have which shall not be unreasonably withheld. Reseller shall be entitled to recover all reasonable costs and expenses incurred in any such suit or action handled by Reseller from any financial recovery awarded or obtained, and the second right, but not the obligationdamages Reseller incurred, to initiate such Infringement Actionthe extent compensatory damages were awarded therefor, but solely with respect and the remainder shall be retained by LA. LA shall incur no liability to Reseller by reason of LA's failure or refusal to prosecute or by LA's refusal to permit Reseller to prosecute, any Voyager Technologyalleged infringement by third parties, Voyager Collaboration Technology, or Joint Collaboration Technologynor by reason of any settlement to which LA may agree.

Infringement Actions. Following an Option Exercise DateIf Licensor receives Licensee’s infringement notice under Section 8.2 above and within a reasonable time thereafter Licensor is unsuccessful in eliminating the infringement, subject to the provisions of any Voyager In-License, Genzyme Licensor shall have the sole and exclusive rightfirst right to bring, but not the obligationat its own expense, to take any reasonable measures it deems appropriate with respect to any Competitive Infringement in the Genzyme Territory of any Genzyme Technology, Genzyme Collaboration Technology, Joint Collaboration Technology or Voyager Product-Specific Patent Rights, or with Voyager’s prior written consent, the Voyager Platform Patent Rights. Such measures may include (a) initiating or prosecuting an infringement, misappropriation or other appropriate suit or infringement action (each an CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. “Infringement Action”) in the Genzyme Territory, or (b) subject to Section 11.1.5 (Genzyme Sublicense Rights), granting adequate rights and licenses to any Third Party necessary to render continued Competitive Infringement in the Genzyme Territory non-infringing. Voyager will consider in good faith any request from Genzyme to initiate an Infringement Action in the Genzyme Territory against any Third Party with respect within a reasonable time no longer than six (6) months from the date of Licensee’s notice of an infringement under Section 8.2 above. If Licensor waives its right to bring such Competitive Infringement an infringement action in writing to Licensee or has not eliminated such infringement or initiated an infringement suit within six (6) months from the date of Licensee’s notice of infringement, Licensee, after notifying Licensor in writing, shall be entitled to bring such infringement action at its own expense. The party not bringing such infringement action shall provide assistance, at the requesting party’s expense, as may be reasonably requested by the party *The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission. bringing such action, including without limitation joining an infringement suit as a party. In the event that Licensee brings an infringement action in accordance herewith, any Voyager Platform Patent Rightsums recovered by Licensee in any such infringement action or in its settlement shall belong to Licensee; provided, however, that Voyager for purposes of Section 5.3 above, after Licensee has recovered its costs and expenses (including but not limited to attorney’s fees) of such infringement action, any remaining damages attributable to the loss of sales of the Licensee Product shall be considered an amount received by Licensee or an Affiliate from the sale for value of the Licensee Product in the period(s) to which such damages relate with royalties calculated pursuant to Article V above, and any applicable royalties thereon shall be deemed timely remitted by Licensee to Licensor hereunder if remitted to Licensor within sixty (60) days of the date on which such damages are received by Licensee, and, in the case of settlement, Licensee shall reasonably and in good faith determine the portion of the settlement that represents compensation for loss of sales of the Licensee Product and such portion shall be treated as if such portion were damages attributable to loss of sales of the Licensee Product. The party conducting such action shall have full control over its conduct, including settlement thereof, provided that no offer of settlement or compromise shall be binding on a party without its prior written consent (which consent shall not be required to initiate unreasonably withheld) unless such settlement fully releases such party without any such Infringement Action liability, loss, cost or permit Genzyme to initiate any such Infringement Action with respect to any Voyager Platform Patent Right. Notwithstanding the foregoing, if Genzyme does not inform Voyager that it intends to either initiate such an Infringement Action or grant adequate rights and licenses obligation to such Third Party within [***] after Genzyme’s receipt of a notice of infringement pursuant to Section 15.4.1 (Notice of Infringement), then Voyager will have the second right, but not the obligation, to initiate such Infringement Action, but solely with respect to any Voyager Technology, Voyager Collaboration Technology, or Joint Collaboration Technologyparty.

Infringement Actions. Following an Option Exercise DateIf Licensor receives Licensee’s infringement notice under Section 8.2 of this Agreement and within a reasonable time thereafter Licensor is unsuccessful in eliminating the infringement, subject to the provisions of any Voyager In-License, Genzyme Licensor shall have the sole and exclusive rightfirst right to bring, but not the obligationat its own expense, to take any reasonable measures it deems appropriate with respect to any Competitive Infringement in the Genzyme Territory of any Genzyme Technology, Genzyme Collaboration Technology, Joint Collaboration Technology or Voyager Product-Specific Patent Rights, or with Voyager’s prior written consent, the Voyager Platform Patent Rights. Such measures may include (a) initiating or prosecuting an infringement, misappropriation or other appropriate suit or infringement action (each an CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. “Infringement Action”) in the Genzyme Territory, or (b) subject to Section 11.1.5 (Genzyme Sublicense Rights), granting adequate rights and licenses to any Third Party necessary to render continued Competitive Infringement in the Genzyme Territory non-infringing. Voyager will consider in good faith any request from Genzyme to initiate an Infringement Action in the Genzyme Territory against any Third Party within a reasonable time no longer than six months from the date of Licensee’s notice of an infringement under Section 8.2 of this Agreement, and to use Licensee’s name in connection therewith. If the infringement materially and adversely affects Licensee’s and its Affiliates’ market share relating to the Nutricia Formulaid Product and Licensor waives its right to bring such an infringement action in writing to Licensee or has not eliminated such infringement or initiated an infringement suit within six months from the date of Licensee’s notice of infringement, Licensee, after notifying Licensor in writing, shall be entitled to bring such infringement action at its own expense. The party conducting such action shall have full control over its conduct, including settlement thereof. Regardless of which party brings the suit, Licensor and Licensee shall assist one another and cooperate in any such litigation at the other’s request. In the event that Licensor elects under this Section not to bring an infringement action against a Third Party and Licensee or an Affiliate elects to bring such. an action, the calculation of “Net Sales” during such period for purposes of Section 4.1 of this Agreement shall be reduced by the costs and expenses reasonably and in good faith incurred by Licensee or its Affiliates in. connection with respect to such Competitive Infringement of any Voyager Platform Patent Rightaction; provided, however, that Voyager any reduction in Royalties payable to Licensor as a result of this Section 8.3 shall not be required returned to initiate Licensor at the end of any such Infringement Action or permit Genzyme action to initiate the extent that Licensee and/or its Affiliates receive any monetary recovery in such Infringement Action with respect to any Voyager Platform Patent Right. Notwithstanding the foregoing, if Genzyme does not inform Voyager that it intends to either initiate such an Infringement Action or grant adequate rights and licenses to such Third Party within [***] after Genzyme’s receipt of a notice of infringement pursuant to Section 15.4.1 (Notice of Infringement), then Voyager will have the second right, but not the obligation, to initiate such Infringement Action, but solely with respect to any Voyager Technology, Voyager Collaboration Technology, or Joint Collaboration Technologyaction.

Infringement Actions. Following an Option Exercise Date, subject to the provisions Reseller shall cooperate with LA in all -------------------- respects at LA's reasonable request in connection with any action or proceeding prosecuted by LA involving LA's Trademarks or other intellectual property rights. Reseller shall promptly notify LA of any Voyager In-License, Genzyme such infringements or any acts of unfair competition by third parties that come to Reseller's attention. LA shall have the sole and exclusive right, but not the obligationexercisable at its discretion, to institute in its own name and/or Reseller's name and to control, all actions against third parties relating to LA's Trademarks, and other intellectual property rights, at LA's expense. With respect to any such actions, LA shall employ counsel of its own choice to direct the handling of the litigation and any settlement thereof. LA shall be entitled to receive and retain all amounts awarded, if any, as damages profits or otherwise in connection with such suits handled by LA. Reseller shall not, without LA's prior written consent, institute any suit or take any reasonable measures it deems appropriate action on account of such infringements, acts of unfair competition or unauthorized uses. LA's consent shall not be unreasonably withheld with respect to any Competitive Infringement infringement of rights licensed on an exclusive basis hereunder, and LA's consent may be withheld in the Genzyme Territory of any Genzyme Technology, Genzyme Collaboration Technology, Joint Collaboration Technology or Voyager Product-Specific Patent Rights, or with Voyager’s prior written consent, the Voyager Platform Patent Rights. Such measures may include (a) initiating or prosecuting an infringement, misappropriation or other appropriate suit or action (each an CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. “Infringement Action”) in the Genzyme Territory, or (b) subject to Section 11.1.5 (Genzyme Sublicense Rights), granting adequate rights and licenses to any Third Party necessary to render continued Competitive Infringement in the Genzyme Territory non-infringing. Voyager will consider in good faith any request from Genzyme to initiate an Infringement Action in the Genzyme Territory against any Third Party with respect to such Competitive Infringement of any Voyager Platform Patent Right; provided, however, that Voyager shall not be required to initiate any such Infringement Action or permit Genzyme to initiate any such Infringement Action its sole discretion with respect to any Voyager Platform Patent Rightinfringement of rights licensed on a non-exclusive basis hereunder. Notwithstanding the foregoing, if Genzyme does not inform Voyager that it intends LA shall endeavor to either initiate such an Infringement Action or grant adequate rights and licenses to such Third Party within [***] after Genzyme’s receipt of a provide Reseller with notice of its consent or lack thereof on an expedited basis in the event of an emergency that requires Reseller to seek immediate relief in order to prevent further infringement pursuant of rights licensed on an exclusive basis hereunder. If, with LA's consent, Reseller institutes, at its sole cost and expense, such a suit or action, the handling of the litigation and any settlement thereof shall remain subject to Section 15.4.1 (Notice LA's approval, which shall not be unreasonably withheld. Reseller shall be entitled to recover all reasonable costs and expenses incurred in any such suit or action handled by Reseller from any financial recovery awarded or obtained, and the remainder shall be divided equally between LA and Reseller. LA shall incur no liability to Reseller by reason of Infringement)LA's failure or refusal to prosecute or by LA's refusal to permit Reseller to prosecute, then Voyager will have the second rightany alleged infringement by third parties, but not the obligation, nor by reason of any settlement to initiate such Infringement Action, but solely with respect to any Voyager Technology, Voyager Collaboration Technology, or Joint Collaboration Technologywhich LA may agree.

Infringement Actions. Following an Option Exercise Date, subject to the provisions Upon notification of any Voyager In-License, Genzyme shall have the sole and exclusive right, but not the obligation, to take any reasonable measures it deems appropriate with respect to any Competitive Infringement in the Genzyme Territory of any Genzyme Technology, Genzyme Collaboration Technology, Joint Collaboration Technology or Voyager Product-Specific Patent Rights, or with Voyager’s prior written consent, the Voyager Platform Patent Rights. Such measures may include (a) initiating or prosecuting an infringement, misappropriation or other appropriate suit or action (each an CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. “Infringement Action”) in the Genzyme Territory, or (b) subject to Section 11.1.5 (Genzyme Sublicense Rights), granting adequate rights and licenses to any Third Party necessary to render continued Competitive Infringement in the Genzyme Territory non-infringing. Voyager will consider in good faith any request from Genzyme to initiate an Infringement Action in the Genzyme Territory against any Third Party with respect to such Competitive Infringement of any Voyager Platform Patent Right; provided, however, that Voyager shall not be required to initiate any such Infringement Action or permit Genzyme to initiate any such Infringement Action with respect to any Voyager Platform Patent Right. Notwithstanding the foregoing, if Genzyme does not inform Voyager that it intends to either initiate such an Infringement Action or grant adequate rights and licenses to such Third Party within [***] after Genzyme’s receipt of a notice of potential infringement pursuant to Section 15.4.1 (Notice of Infringement)4.1, then Voyager will ADM shall have the second rightoption to enforce the Licensed Patents in the Licensed Field of Use itself or request Nutraceutix to enforce the Licensed Patents in the Licenced Field of Use. In the event ADM elects to enforce the Licenced Patents, but not the obligationreasonable costs of such action shall be borne by ADM. In the event ADM elects to have Nutraceutix enforce the Licenced Patents, ADM shall provide Nutraceutix with written notice thereof, and to initiate the extent deemed reasonably necessary by ADM, Nutraceutix shall commence an infringement action, in which event the reasonable costs of such Infringement Actionaction shall be borne equally by the Parties. In either event, but solely the benefits of any damages recovered (after each party recovers any share of its costs of such action) shall be divided in a manner that provides Nutraceutix with respect its Running Royalty and ADM with all remaining amounts. In any such infringement action, the party commencing the action (the "Participating Party") shall keep the other party (the "Non-participating Party") advised of the progress of the litigation and shall provide the Non-participating Party with drafts of the pleadings, discovery, motions, and briefs prior to filing for the Non-participating Party's review and comment. In addition, the Participating Party shall consult with the Non-participating Party with regard to every material decision required to be made during the litigation. The Participating Party shall adopt the Non-participating Party's comments and recommendations during the litigation except to the extent they may materially impact the Participating Party's commercial best interests, as determined by the Participating Party. In any Voyager Technologysuch infringement action or claim brought, Voyager Collaboration Technologythe Non-participating Party shall upon the Participating Party's request, cooperate with the Participating Party in all respects, and make available to the Participating Party all relevant information and witnesses who are employees or Joint Collaboration Technologywithin the control of the Non-participating Party. To the extent necessary, each Party agrees to be joined as a party in any litigation where it is an indispensable party.

Infringement Actions. Following an Option Exercise DateIf Licensor receives Licensee’s infringement notice under Section 8.2 of this Agreement and within a reasonable time thereafter Licensor is unsuccessful in eliminating the infringement, subject to the provisions of any Voyager In-License, Genzyme Licensor shall have the sole and exclusive rightfirst right to bring, but not the obligationat its own expense, to take any reasonable measures it deems appropriate with respect to any Competitive Infringement in the Genzyme Territory of any Genzyme Technology, Genzyme Collaboration Technology, Joint Collaboration Technology or Voyager Product-Specific Patent Rights, or with Voyager’s prior written consent, the Voyager Platform Patent Rights. Such measures may include (a) initiating or prosecuting an infringement, misappropriation or other appropriate suit or infringement action (each an CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. “Infringement Action”) in the Genzyme Territory, or (b) subject to Section 11.1.5 (Genzyme Sublicense Rights), granting adequate rights and licenses to any Third Party necessary to render continued Competitive Infringement in the Genzyme Territory non-infringing. Voyager will consider in good faith any request from Genzyme to initiate an Infringement Action in the Genzyme Territory against any Third Party with respect within a reasonable time no longer than three (3) months from the date of Licensee’s notice of an infringement under Section 8.2 of this Agreement. If the infringement materially and adversely affects Licensee’s and its Affiliates’ market share relating to the AHPC Formulaid Product and Licensor waives its right to bring such Competitive Infringement an infringement action in writing to Licensee or has not eliminated such infringement or initiated an infringement suit within five (5) months from the date of Licensee’s notice of infringement, Licensee, after notifying Licensor in writing, shall be entitled to bring such infringement action at its own expense. In the latter event, any Voyager Platform Patent Rightsums recovered by Licensee in any such infringement action or in its settlement shall belong to Licensee; provided, however, that, for purposes of Section 4.1 of this Agreement, any damages attributable to loss of sales of the AHPC Formulaid Product shall be considered an amount received by Licensee or an Affiliate from the sale for value of the AHPC Formulaid Product in the period(s) to which such damages relate and Royalties thereon shall be deemed timely remitted by Licensee to Licensor hereunder if remitted to Licensor within sixty (60) days of the date on which such damages are received by Licensee and, in the case of settlement, Licensee shall reasonably and in good faith determine the portion of the settlement that Voyager represents compensation for loss of sales of the AHPC Formulaid Product and such portion shall not be required treated as if such portion were damages attributable to initiate loss of sales of the AHPC Formulaid Product. The party conducting such action shall. have full control over its conduct, including settlement thereof. Regardless of which party brings the suit, Licensor and Licensee shall assist one another and cooperate in any such Infringement Action or permit Genzyme to initiate any such Infringement Action with respect to any Voyager Platform Patent Right. Notwithstanding litigation at the foregoing, if Genzyme does not inform Voyager that it intends to either initiate such an Infringement Action or grant adequate rights and licenses to such Third Party within [***] after Genzymeother’s receipt of a notice of infringement pursuant to Section 15.4.1 (Notice of Infringement), then Voyager will have the second right, but not the obligation, to initiate such Infringement Action, but solely with respect to any Voyager Technology, Voyager Collaboration Technology, or Joint Collaboration Technologyrequest.

Infringement Actions. Following an Option Exercise Date, subject to the provisions LAJ shall cooperate with LA in all -------------------- respects at LA's reasonable request in connection with any action or proceeding prosecuted by LA involving LA's Trademarks or other intellectual property rights. LAJ shall promptly notify LA of any Voyager In-License, Genzyme such infringements or any acts of unfair competition by third parties that come to LAJ's attention. LA shall have the sole and exclusive right, but not the obligationexercisable at its discretion, to take any reasonable measures it deems appropriate with institute in its own name and/or LAJ's name and to control, all actions against third parties relating to LA's Trademarks, and other intellectual property rights, at LA's expense. With respect to any Competitive Infringement such actions, LA shall employ counsel of its own choice to direct the handling of the litigation and any settlement thereof. LA shall be entitled to receive and retain all amounts awarded, if any, as damages, profits or otherwise in the Genzyme Territory of any Genzyme Technologyconnection with such suits handled by LA. LAJ shall not, Genzyme Collaboration Technology, Joint Collaboration Technology or Voyager Product-Specific Patent Rights, or with Voyager’s without LA's prior written consent, institute any suit or take any action on account of such infringements, acts of unfair competition or unauthorized uses, provided that LA's consent shall not be unreasonably withheld. LA shall endeavor to provide LAJ with notice of its consent or lack thereof on an expedited basis in the Voyager Platform Patent Rightsevent of an emergency that requires LAJ to seek immediate relief in order to prevent further infringement of the rights licensed hereunder. Such measures may include (a) initiating If, with LA's consent, LAJ institutes, at its sole cost and expense, such a suit or prosecuting an infringementaction, misappropriation or other appropriate the handling of the litigation and any settlement thereof shall remain subject to LA's approval. LAJ shall be entitled to recover all reasonable costs and expenses incurred in any such suit or action (each an CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”handled by LAJ from any financial recovery awarded or obtained, and the damages LAJ incurred, to the extent compensatory damages were awarded therefor, and the remainder shall be retained by LA. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933LA shall incur no liability to LAJ by reason of LA's failure or refusal to prosecute, AS AMENDEDor by LA's refusal to permit LAJ to prosecute, any alleged infringement by third parties, nor by reason of any settlement to which LA may agree. “Infringement Action”) For instances in which the Genzyme procedures set forth in this Section are expressly prohibited by the laws or regulations of the Territory, or (b) subject to Section 11.1.5 (Genzyme Sublicense Rights), granting adequate rights and licenses to any Third Party necessary to render continued Competitive Infringement in the Genzyme Territory non-infringing. Voyager will consider in good faith any request from Genzyme to initiate an Infringement Action in the Genzyme Territory against any Third Party with respect to such Competitive Infringement of any Voyager Platform Patent Right; provided, however, that Voyager parties shall not be required to initiate any such Infringement Action or permit Genzyme to initiate any such Infringement Action with respect to any Voyager Platform Patent Right. Notwithstanding the foregoing, if Genzyme does not inform Voyager that it intends to either initiate such an Infringement Action or grant adequate rights and licenses to such Third Party within [***] after Genzyme’s receipt of a notice of infringement pursuant to Section 15.4.1 (Notice of Infringement), then Voyager will have the second right, but not the obligation, to initiate such Infringement Action, but solely with respect to any Voyager Technology, Voyager Collaboration Technology, or Joint Collaboration Technologymutually agree upon alternative procedures.

Infringement Actions. Following an Option Exercise DateIf Licensor receives Licensee's infringement notice under Section 8.2 above and within a reasonable time thereafter Licensor is unsuccessful in eliminating the infringement, subject to the provisions of any Voyager In-License, Genzyme Licensor shall have the sole and exclusive rightfirst right to bring, but not the obligationat its own expense, to take any reasonable measures it deems appropriate with respect to any Competitive Infringement in the Genzyme Territory of any Genzyme Technology, Genzyme Collaboration Technology, Joint Collaboration Technology or Voyager Product-Specific Patent Rights, or with Voyager’s prior written consent, the Voyager Platform Patent Rights. Such measures may include (a) initiating or prosecuting an infringement, misappropriation or other appropriate suit or infringement action (each an CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. “Infringement Action”) in the Genzyme Territory, or (b) subject to Section 11.1.5 (Genzyme Sublicense Rights), granting adequate rights and licenses to any Third Party necessary to render continued Competitive Infringement in the Genzyme Territory non-infringing. Voyager will consider in good faith any request from Genzyme to initiate an Infringement Action in the Genzyme Territory against any Third Party with respect within a reasonable time no longer than six (6) months from the date of Licensee's notice of an infringement under Section 8.2 above. If Licensor waives its right to bring such Competitive Infringement an infringement action in writing to Licensee or has not eliminated such infringement or initiated an infringement suit within six (6) months from the date of Licensee's notice of infringement, Licensee, after notifying Licensor in writing, shall be entitled to bring such infringement action at its own expense. The party not bringing such infringement action shall provide assistance, at the requesting party’s expense, as may be reasonably requested by the party bringing such action, including without limitation joining an infringement suit as a party. In the event that Licensee brings an infringement action in accordance herewith, any Voyager Platform Patent Rightsums recovered by Licensee in any such infringement action or in its settlement shall belong to Licensee; provided, however, that Voyager for purposes of Section 5.3 above, after Licensee has recovered its costs and expenses (including but not limited to attorney’s fees) of such infringement action, any remaining damages attributable to the loss of sales of the Licensee Product shall be considered an amount received by Licensee or an Affiliate from the sale for value of the Licensee Product in the period(s) to which such damages relate with royalties calculated pursuant to Article V above, and any applicable royalties thereon shall be deemed timely remitted by Licensee to Licensor hereunder if remitted to Licensor within sixty (60) days of the date on which such damages are received by Licensee, and, in the case of settlement, Licensee shall reasonably and in good faith determine the portion of the settlement that represents compensation for loss of sales of the Licensee Product and such portion shall be treated as if such portion were damages attributable to loss of sales of the Licensee Product. The party conducting such action shall have full control over its conduct, including settlement thereof, provided that no offer of settlement or compromise shall be binding on a party without its prior written consent (which consent shall not be required to initiate unreasonably withheld) unless such settlement fully releases such party without any such Infringement Action liability, loss, cost or permit Genzyme to initiate any such Infringement Action with respect to any Voyager Platform Patent Right. Notwithstanding the foregoing, if Genzyme does not inform Voyager that it intends to either initiate such an Infringement Action or grant adequate rights and licenses obligation to such Third Party within [***] after Genzyme’s receipt of a notice of infringement pursuant to Section 15.4.1 (Notice of Infringement), then Voyager will have the second right, but not the obligation, to initiate such Infringement Action, but solely with respect to any Voyager Technology, Voyager Collaboration Technology, or Joint Collaboration Technologyparty.