Common use of Third Party Infringement Claims Clause in Contracts

Third Party Infringement Claims. If the production, sale or use of the Compound or any Product in the Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort or GSK (or their respective Affiliates, licensees or Sublicensees) (collectively, “Infringement Actions”), such Party shall promptly notify the other Party hereto in writing. The Party subject to such Infringement Action shall have the first right, but not the obligation, to direct and control the defense thereof; provided, however, that the other Party may participate in the defense and/or settlement thereof at its own expense with counsel of its choice. In any event, the Party that is subject to the Infringement Action agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement Action. The Party who is subject to the Infringement Action agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Compound or the manufacture, use or sale of the Compound or any Product within or outside the Territory, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. GSK may [… * …]. As used herein, “Damages” shall mean out-of-pocket costs incurred by GSK, including reasonable attorney’s fees, damages and other liabilities that are part of any final judgment awarded against GSK, and any amounts paid by GSK in a settlement of the action that is approved by XenoPort, such approval not to be unreasonably withheld or delayed. The Parties shall assist one another and cooperate in any such action at the other’s reasonable request.

Third Party Infringement Claims. If the production, sale sale, offer for sale, or use of the Compound or any Product in the Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort La Jolla or GSK BioMarin CF (or their respective Affiliates, licensees or Sublicensees) (collectively, “Infringement Actions”), such Party shall promptly notify the other Party hereto in writing, and the Parties shall promptly confer to consider the claim or assertion and the appropriate course of action. The Unless the Parties otherwise agree in writing, each Party subject to such Infringement Action shall have the first right, but not the obligation, right to direct and control the defense thereofdefend itself against a suit that names such Party as a defendant; provided, however, that the other Party may participate in the defense and/or settlement thereof at its own expense with counsel of its choice. In any event, the Party that is subject to the Infringement Action agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement Action. The Party who is subject to the Infringement Action agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Compound or the manufacture, use or sale of the Compound or any Product Products within or outside the Territory, or that admits the infringement or validity of any Third Party Patent, without the prior written consent approval of the other Party, which shall such approval not to be unreasonably withheld or delayedwithheld. GSK may [… * …]In any event, each Party shall reasonably assist the other Party and cooperate in connection with any litigation in which such Party is not that named as a defendant, at the defending Party’s request and expense. As used hereinFurther, “Damages” shall mean the Party that is subject to the Infringement Action agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement Action. The out-of-pocket costs incurred by GSK, including reasonable attorney’s fees, damages and the Parties in defending an Infringement Action (other liabilities that are part than any expenses incurred by the Party who has elected to participate in the defense and/or settlement thereof at its own expense with counsel of any final judgment awarded against GSK, and any amounts paid by GSK its choice as provided above) shall in a settlement of accordance with this Section 11.4 shall be shared as Other Operating Expense pursuant to the action that is approved by XenoPort, such approval not to be unreasonably withheld or delayed. The Parties shall assist one another and cooperate in any such action at the other’s reasonable requestFinancial Appendix.

Third Party Infringement Claims. If the production, sale or use of the Compound or any Licensed Product in or outside the Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort Licensee or GSK Licensor (or their respective Affiliates, licensees or Sublicensees) (collectively, “Infringement Actions”), such Party shall promptly notify the other Party hereto in writing. The Party subject to such Infringement Action shall have the first right, but not the obligation, right to direct and control the defense thereof, at its own expense with counsel of its choice; provided, however, that (i) if such Infringement Action involves the Territory, Licensee shall have the right to assume the defense thereof in the Territory and to direct and control the defense thereof, at its own expense with counsel of its choice, (ii) if such Infringement Action involves Japan, Licensor shall have the right to assume the defense thereof within Japan and to direct and control the defense thereof, at its own expense with counsel of its choice, (iii) if such Infringement Action involves both the Territory and Japan, the Parties shall cooperate in good faith with respect to their respective defenses of such Infringement Actions, and (iv) in all cases the other Party may participate in the defense and/or settlement thereof thereof, at its own expense with counsel of its choice. In any event, the Party that is subject to defending the Infringement Action (the “Defending Party”) agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement Action and the Parties shall reasonably cooperate in the defense of any such suit or Infringement Action. The Party who If Licensee is subject to the Infringement Action Defending Party, Licensee agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Compound Licensed Product or the manufacture, use or sale of the Compound or any Licensed Product within or outside the Territory, without the prior written consent of the other PartyLicensor, which shall not be unreasonably withheld or delayed. GSK may [… * …]. As used herein; and similarly if Licensor is the Defending Party, “Damages” shall mean out-of-pocket costs incurred by GSKLicensor agrees not to settle such Infringement Action, including reasonable attorney’s feesor make any admissions or assert any position in such Infringement Action, damages and other liabilities that are part of any final judgment awarded against GSK, and any amounts paid by GSK in a settlement manner that would adversely affect the Licensed Product, or the manufacturing, use or sale of the action that is approved by XenoPortLicensed Product, such approval in the Territory, without the prior written consent of Licensee, which shall not to be unreasonably withheld or delayed. The Parties shall assist one another and cooperate in any such action at the other’s reasonable request.

Third Party Infringement Claims. If the production, sale or use of the Compound or any Product a Third Party Infringement Claim occurs in the Territory pursuant with respect to this Agreement results one or more elements of the RLS Licensed Technical Information or RLS Licensed Software, or in Teletrac's opinion is likely to occur, Teletrac will use reasonable commercial efforts, at its option and expense, either to challenge such Third Party Infringement Claim or otherwise procure for Licensee the right to continue to use, maintain and provide support for the Radio Location System, or to replace or modify the alleged infringing element so that such element becomes non-infringing, provided that such replacement or modification does not materially affect performance of the Radio Location System. If Teletrac has spent, or anticipates that it will be required to spend, more than U.S. $100,000 for such efforts, then Teletrac may give Licensee a claim, suit or proceeding alleging patent infringement against XenoPort or GSK ninety (or their respective Affiliates, licensees or Sublicensees90) (collectively, “Infringement Actions”), day option to pursue such Party shall promptly notify the other Party hereto in writing. The Party subject to such Infringement Action shall have the first right, but not the obligation, to direct efforts on its own and control the defense thereof; provided, however, that the other Party may participate in the defense and/or settlement thereof at its own expense with counsel of expense. If Licensee elects to pursue such efforts on its choice. In any eventown, then Licensee may deduct from the Annual Royalty Payments due to Teletrac in the future, the reasonable expenses Licensee has incurred in obtaining non-infringing elements, up to a maximum amount of U.S.$250,000. If Licensee has not elected to pursue such efforts on its own within such ninety (90) day option period, then Licensee must notify Teletrac in writing either (i) that this License Agreement shall continue in full force and effect without regard to such Third Party that is subject to Infringement Claim and without any reduction in the Infringement Action agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement Action. The Party who is subject to the Infringement Action agrees not to settle such Infringement ActionAnnual Royalty Payment, or make any admissions or assert any position in (ii) that Licensee elects to terminate this License Agreement due to such Third Party Infringement Action, in a manner that would adversely affect the Compound or the manufacture, use or sale of the Compound or any Product within or outside the Territory, without the prior written consent of the other PartyClaim, which shall not be unreasonably withheld or delayeddeemed to be a termination under Section 7.1. GSK may [… * …]. As used herein, “Damages” shall mean out-of-pocket costs incurred by GSK, including reasonable attorney’s fees, damages and other liabilities that are part If the use of any final judgment awarded against GSKRLS Licensed Software or RLS Licensed Technical Information is enjoined and the foregoing remedies cannot reasonably be accomplished, or if Licensee elects to continue this License Agreement but fails to procure the right to use the infringing element or to replace or modify the infringing element so that it becomes non-infringing, then Teletrac may require the return of the infringing RLS Licensed Software or RLS Licensed Technical Information, and Licensee's right to use such RLS Licensed Software or RLS Licensed Technical Information shall thereupon terminate. In no event shall Teletrac have any obligation to repay or refund any amounts previously paid to it by GSK in a settlement of the action that is approved by XenoPort, such approval not to be unreasonably withheld or delayed. The Parties shall assist one another and cooperate in any such action at the other’s reasonable requestLicensee.

Third Party Infringement Claims. If the production, sale or use of the any Compound or any Product in the Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort or GSK Astellas (or their respective Affiliates, licensees Affiliates or SublicenseesSubdistributors) (collectively, “Infringement Actions”), such Party shall promptly notify the other Party hereto in writing. The Party subject to such Infringement Action shall have the first right, but not the obligation, right to direct and control the defense thereofthereof (including the conclusion of a potential settlement, but limited to the rights granted pursuant to this Agreement) using counsel reasonably acceptable to the other Party, and the Infringement Action shall be at the expense of the Party subject to such Infringement Action; provided, however, that the other Party may participate in the defense and/or settlement thereof at its own expense with counsel of its choice. In any event, the Party that is subject to the Infringement Action agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement Action. The Party who is subject to the Infringement Action Astellas agrees not to settle such any Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Compound Product or the manufacture, use or sale of the Compound or any Product within thereof in or outside the Territory, without the prior written consent of XenoPort. XenoPort agrees not to settle any Infringement Action in a manner that would adversely affect the other PartyProduct or the manufacture, which shall not be unreasonably withheld use or delayedsale thereof in the Territory, without the prior written consent of Astellas. GSK Astellas may [… * …]treat its Damages from such Infringement Action as Third Party Royalties under Section 7.3.1 above, and XenoPort may treat its Damages from such Infringement Action as payments for Third Party IP under Section 2.5 above. As used herein, “Damages” shall mean out-of-pocket costs incurred by GSKa Party, including reasonable attorney’s fees, damages and other liabilities that are part of any final judgment awarded against GSKsuch Party, and any amounts paid by GSK such Party in a settlement of the action that is approved by XenoPortthe other Party, such approval not to be unreasonably withheld or delayed. The Parties shall assist one another and cooperate in any such action at the other’s reasonable request.

Third Party Infringement Claims. If the productionmanufacture, sale or use of the Compound or any Product Licensed Products in the Field in the Luoxin Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort Synergy or GSK Luoxin (or their respective Affiliates, licensees or Sublicenseessublicensees) (collectively, “Infringement Actions”), such Party shall promptly notify the other Party hereto in writing. The Party subject to such Infringement Action Synergy shall have the first right, but not right and the obligation, obligation to direct and control the defense thereofof such Infringement Action, at its own expense with counsel of its choice; provided, however, that the other Party Luoxin may participate in the defense and/or settlement thereof thereof, at its own expense with counsel of its choice. In any event, the Party that is subject to the Infringement Action Synergy agrees to keep the other Party hereto Luoxin reasonably informed of all material developments in connection with any such Infringement ActionAction for which Synergy exercises its right to direct and control the defense. The Party who is subject to the Infringement Action Synergy agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would materially adversely affect the Compound rights or the manufacture, use or sale interests of the Compound or any Product within or outside the TerritoryLuoxin, without the prior written consent of the other PartyLuoxin, which shall not be unreasonably withheld or delayed. GSK may [… * …]. As used herein, “Damages” shall mean out-of-pocket costs incurred by GSK, including reasonable attorney’s fees, damages If Synergy does not direct and other liabilities control the defense of an Infringement Action that are part of any final judgment awarded is brought against GSK, and any amounts paid by GSK Luoxin in a settlement timely manner, then Luoxin shall have such right and it shall agree to keep Synergy reasonably informed of all material developments in connection with such Infringement Action and it shall not settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would materially adversely affect the action that is approved by XenoPortrights or interests of Synergy, such approval without the prior written consent of Synergy, which shall not to be unreasonably withheld or delayed. The Parties shall assist one another [*] Certain information on this page has been omitted and cooperate in any such action at filed separately with the other’s reasonable requestSecurities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.

Third Party Infringement Claims. If the productionDevelopment, sale Manufacture, or use Commercialization of the Compound or any Licensed Product in the Field in the Cutia Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort Foamix or GSK Cutia (or their respective Affiliates, licensees or Sublicenseessublicensees) (collectively, “Third Party Infringement Actions”), such Party shall promptly notify the other Party hereto in writing. The Party subject to such Infringement Action shall have the first right, but not the obligation, to Foamix may direct and control the defense thereofof such Third Party Infringement Action, at its own expense with counsel of its choice; provided, however, that the other Party Cutia may participate in the defense and/or and settlement thereof thereof, at its own expense with counsel of its choice. In any event, the Party that is subject to the Infringement Action agrees to Foamix shall keep the other Party hereto Cutia reasonably informed of all material developments in connection with any such Infringement Action. The Third 222330578 v11 Party who is subject to the Infringement Action for which Foamix exercises its right to direct and control the defense. Foamix agrees not to settle such Third Party Infringement Action, or make any admissions or assert any position in such Third Party Infringement Action, in a manner that would materially adversely affect the Compound rights or the manufacture, use or sale interests of the Compound or any Product within or outside the TerritoryCutia, without the prior written consent of the other PartyCutia, which shall not be unreasonably withheld or delayed. GSK If Foamix does not exercise its right to direct and control the defense of a Third Party Infringement Action that is brought against Cutia, then Cutia may [… * …]. As used herein, “Damages” exercise such right and it shall mean out-of-pocket costs incurred by GSK, including reasonable attorney’s fees, damages and other liabilities that are part keep Foamix reasonably informed of any final judgment awarded against GSKall material developments in connection with such Third Party Infringement Action, and it shall not settle such Third Party Infringement Action, or make any amounts paid by GSK admissions or assert any position in such Third Party Infringement Action, in a settlement manner that would materially adversely affect the rights or interests of Foamix, without the action that is approved by XenoPortprior written consent of Foamix, such approval which shall not to be unreasonably withheld or delayed. The Parties shall assist one another and cooperate in any such action at the other’s reasonable request.

Third Party Infringement Claims. If the productionmanufacture, sale or use of the Compound or any Product Licensed Products in the Applicable Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort SAMR or GSK Aridis (or their respective Affiliates, licensees or Sublicenseessublicensees) (collectively, “Infringement Actions”), such Party shall promptly notify the other Party hereto in writing. The Party subject to such Infringement Action SAMR shall have the first right, but not the obligation, right to direct and control the defense thereofof such Infringement Action, at its own expense with counsel of its choice; provided, however, that the other Party Aridis may participate in the defense and/or settlement thereof thereof, at its own expense with counsel of its choice. In any event, the Party that is subject to the Infringement Action SAMR agrees to keep the other Party hereto Aridis reasonably informed of all material developments in connection with any such Infringement ActionAction for which SAMR exercises its right to direct and control the defense. The Party who is subject to the Infringement Action SAMR agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that that, as Aridis notifies SAMR would materially adversely affect the Compound rights or the manufacture, use or sale interests of the Compound or any Product within or outside the TerritoryAridis, without the prior written consent of the other PartyAridis, which shall not be unreasonably withheld or delayed. GSK may [… * …]. As used hereinIf SAMR does not exercise its right to direct and control the defense of an Infringement Action that is brought against SAMR, “Damages” then Aridis shall mean out-of-pocket costs incurred by GSKhave such right and it shall agree to keep SAMR reasonably informed of all material developments in connection with such Infringement Action and it shall not settle such Infringement Action, including reasonable attorney’s feesor make any admissions or assert any position in such Infringement Action, damages and other liabilities that are part of any final judgment awarded against GSK, and any amounts paid by GSK in a settlement manner that would, as Aridis notifies SAMR, materially adversely affect the rights or interests of SAMR, without the action that is approved by XenoPortprior written consent of SAMR, such approval which shall not to be unreasonably withheld or delayed. The Parties shall assist one another and cooperate in any such action at the other’s reasonable request.

Third Party Infringement Claims. If the productionManufacture, use or sale or use of the Compound or any Product Licensed Products in the Field in the Kaken Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort Spruce or GSK Kaken (or their respective Affiliates, licensees or Sublicensees) (collectively, “Infringement Actions”), such Party shall promptly notify the other Party hereto in writing. The Subject to Article 11, the Party subject to such for which the Infringement Action is brought against (the “Accused Party”) shall have the first right, but not the obligation, right to direct and control the defense thereofof such Infringement Action, at its own expense with counsel of its choice; provided, however, that the other Party may participate in the defense and/or settlement thereof thereof, at its own expense with counsel of its choice. In any event, the Accused Party that is subject to the Infringement Action agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement ActionAction for which the Accused Party exercises its right to direct and control the defense. The Accused Party who is subject to the Infringement Action agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Compound rights or the manufacture, use or sale interests of the Compound or any Product within or outside the Territoryother Party, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. GSK may [… * …]. As used hereinSubject to Article 11, “Damages” if the Accused Party does not exercise its right to direct and control the defense of an Infringement Action that is brought against the other Party, then the other Party shall mean out-of-pocket costs incurred by GSKhave such right and it shall agree to keep the Accused Party reasonably informed of all material developments in connection with such Infringement Action and it shall not settle such Infringement Action, including reasonable attorney’s feesor make any admissions or assert any position in such Infringement Action, damages and other liabilities that are part of any final judgment awarded against GSK, and any amounts paid by GSK in a settlement manner that would materially adversely affect the rights or interests of the action that is approved by XenoPortAccused Party, such approval without the prior written consent of the Accused Party, which shall not to be unreasonably withheld or delayed. The Parties shall assist one another and cooperate in any such action at the other’s reasonable request.

Third Party Infringement Claims. (a) If the production, sale or use of the Compound or any Product in the Ono Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort or GSK Array and/or Ono (or their respective Affiliates, licensees or Sublicensees) (collectively, “Infringement Actions”), the Party subject to such Party claim, suit or proceeding (“Subject Party”) shall promptly notify the other Party hereto in writing. The writing and shall discuss with the other Party subject to the strategy for defending such Infringement Action Actions but shall have the first right, but not the obligation, right to direct and control the defense thereofthereof in its sole discretion and at its own expense, with counsel of its choice; provided, however, that the other Party may participate in the defense and/or settlement thereof thereof, at its own expense with counsel of its choice. In any event, the Subject Party that is subject to the Infringement Action agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement Action. The Party who is subject to the Infringement Action Ono agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Compound allegedly infringing Product [ * ] = 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. or the manufactureManufacture, use or sale of such Product in any country of the Compound world, without the prior written consent of Array; and Array agrees not to settle such Infringement Action, or make any Product admissions or assert any position in such Infringement Action, in a manner that would adversely affect the allegedly infringing Product, or the Manufacture, use or sale of such Product, within or outside the Ono Territory, without the prior written consent of the other PartyOno, which shall not be unreasonably withheld or delayed. GSK may [… * …]. As used herein, “Damages” shall mean out-of-pocket costs incurred by GSK, including reasonable attorney’s fees, damages and other liabilities that are part of any final judgment awarded against GSK, and any amounts paid by GSK in a settlement of the action that is approved by XenoPort, such approval not to be unreasonably withheld or delayed. The Parties shall assist one another and cooperate in any such action at the other’s reasonable request.

Third Party Infringement Claims. If the productionManufacture, use or sale or use of the Compound or any Product Licensed Products in the Field in the Terns Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort Genfit or GSK Terns (or their respective Affiliates, licensees or Sublicensees) (collectively, “Infringement Actions”), such Party shall promptly notify the other Party hereto in writing. The Subject to Article 11, the Party subject to such for which the Infringement Action is brought against (the “Accused Party”) shall have the first right, but not the obligation, right to direct and control the defense thereofof such Infringement Action, at its own expense with counsel of its choice; provided, however, that the other Party may participate in the defense and/or settlement thereof thereof, at its own expense with counsel of its choice. In any event, the Accused Party that is subject to the Infringement Action agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement ActionAction for which the Accused Party exercises its right to direct and control the defense. The Accused Party who is subject to the Infringement Action agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Compound rights or the manufacture, use or sale interests of the Compound or any Product within or outside the Territoryother Party, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. GSK may [… * …]. As used hereinSubject to Article 11, “Damages” if the Accused Party does not exercise its right to direct and control the defense of an Infringement Action that is brought against the other Party, then the other Party shall mean out-of-pocket costs incurred by GSKhave such right and it shall agree to keep the Accused Party reasonably informed of all material developments in connection with such Infringement Action and it shall not settle such Infringement Action, including reasonable attorney’s feesor make any admissions or assert any position in such Infringement Action, damages and other liabilities that are part of any final judgment awarded against GSK, and any amounts paid by GSK in a settlement manner that would materially adversely affect the rights or interests of the action that is approved by XenoPortAccused Party, such approval without the prior written consent of the Accused Party, which shall not to be unreasonably withheld or delayed. The Parties shall assist one another Certain information has been excluded from this agreement (indicated by “[***]”) because such information (i) is not material and cooperate in any such action at the other’s reasonable request(ii) would be competitively harmful if publicly disclosed.

Third Party Infringement Claims. If the production, sale or Licensee shall promptly notify Licensor in writing of any claims that Licensee’s use of the Compound Technology, Licensor Patent Rights and/or Licensor Know-How infringes or improperly or unlawfully uses the proprietary rights of any Product in the Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort or GSK (or their respective Affiliates, licensees or Sublicensees) (collectively, “Infringement Actions”), such Party shall promptly notify the other Party hereto in writingThird Party. The Party subject to such Infringement Action Licensor shall have the first sole right, but not the obligation, to direct take all such steps and control proceedings and to do all other acts and things as may in Licensor’s sole discretion be necessary to defend such claims and Licensee shall permit Licensor to have the defense thereof; providedsole conduct of any such steps and proceedings, however, including the right to settle them (whether or not Licensee is a party to them) provided that the other Party may participate in the defense and/or settlement thereof at its own expense with counsel of its choice. In Licensor shall have no right to defend or settle any event, the Party that is subject claims directed to the Infringement Action agrees to keep Product or Antibody, either alone or in combination with the other Technology where the Product or Antibody infringes any Third Party hereto reasonably informed of all material developments in connection with any such Infringement Action. The Party who is subject to the Infringement Action agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Compound or the manufacture, use or sale of the Compound or any Product within or outside the Territory, intellectual property rights without the prior Licensee’s written consent of the other Party, which shall not be unreasonably withheld or delayed. GSK may [… * …]. As used herein, “Damages” shall mean out-of-pocket costs incurred by GSK, including reasonable attorney’s fees, damages and other liabilities that are part of any final judgment awarded against GSK, and any amounts paid by GSK in a settlement of the action that is approved by XenoPort, such approval ( not to be unreasonably withheld or delayed). The Parties Licensee hereby agrees to co-operate fully as is reasonably necessary with Licensor, at Licensor’s sole cost and expense, including lending its name to the proceedings as may be necessary. Licensor shall assist one be entitled to retain any and all monies received from such proceedings, after first reimbursing Licensee for any expenses of Licensee due pursuant to this Section 8.4. For clarity no Party shall enter into any settlement of any claim described in this Section 8.4 that adversely affects another and cooperate in any Party’s proprietary rights, that requires another Party to pay money to a Third Party or that imposes liability on another Party without the other Party’s written consent such action at the other’s reasonable requestconsent not to be unreasonably conditioned, withheld or delayed.

Third Party Infringement Claims. If the productionManufacture, use or sale or use of the Compound or any Product Products in the Field in the Advaccine Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort Inovio or GSK Advaccine (or their respective Affiliates, licensees or Sublicensees) (collectively, “Infringement Actions”), such Party shall promptly notify the other Party hereto in writing. The Subject to Article 11, the Party subject to such for which the Infringement Action is brought against (the “Accused Party”) shall have the first right, but not the obligation, right to direct and control the defense thereofof such Infringement Action, at its own expense with counsel of its choice; provided, however, that the other Party may participate in the defense and/or settlement thereof thereof, at its own expense with counsel of its choice. In any event, the Accused Party that is subject to the Infringement Action agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement ActionAction for which the Accused Party exercises its right to direct and control the defense. The Accused Party who is subject to the Infringement Action agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Compound rights or the manufacture, use or sale interests of the Compound or any Product within or outside the Territoryother Party, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. GSK may Subject to Article 11, if the Accused Party does not exercise its right to direct and control the defense of an Infringement Action that is brought against the other Party, then the other Party shall have such right and it shall agree to keep the Accused Party reasonably informed of all material developments in connection with such Infringement Action and it shall not settle such Infringement Action, or make any admissions or assert CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [… * …***]. As used herein, “Damages” shall mean out-of-pocket costs incurred by GSKHAS BEEN OMITTED BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE COMPANY IF PUBLICLY DISCLOSED any position in such Infringement Action, including reasonable attorney’s fees, damages and other liabilities that are part of any final judgment awarded against GSK, and any amounts paid by GSK in a settlement manner that would materially adversely affect the rights or interests of the action that is approved by XenoPortAccused Party, such approval without the prior written consent of the Accused Party, which shall not to be unreasonably withheld or delayed. The Parties shall assist one another and cooperate in any such action at the other’s reasonable request.

Third Party Infringement Claims. If the production, sale or use of the Compound or any Product in the Harmony Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort Bioprojet or GSK Harmony (or their respective Affiliates, licensees or Sublicensees) (collectively, “Infringement Actions”), such Party shall promptly notify the other Party hereto in writing. The Party subject to such Infringement Action shall have the first right, but not the obligation, right to direct and control the defense thereof, at its own expense with counsel of its choice; provided, however, that the other Party may participate in the defense and/or settlement thereof thereof, at its own expense with counsel of its choice. In any event, the Party that is subject to the Infringement Action agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement Action. The Party who is subject to the Infringement Action Harmony agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Compound a Product or the manufacture, use or sale of the Compound or any a Product within or outside the Harmony Territory, without the prior written consent of the other PartyBioprojet, which shall not be unreasonably withheld withheld, conditioned or delayed. GSK may [… * …]. As used herein; and Bioprojet agrees not to settle such Infringement Action, “Damages” shall mean out-of-pocket costs incurred by GSKor make any admissions or assert any position in such Infringement Action, including reasonable attorney’s fees, damages and other liabilities that are part of any final judgment awarded against GSK, and any amounts paid by GSK in a settlement manner that would adversely affect a Product, or the packaging, use or sale of a Product, within the action that is approved by XenoPortHarmony Territory, such approval without the prior written consent of Harmony, which shall not to be unreasonably withheld withheld, conditioned or delayed. The Parties shall assist one another and cooperate in any such action at the other’s reasonable request.

Third Party Infringement Claims. If the productionmanufacture, sale or use of the Compound or any Product Licensed Products in the Field in the Collaboration Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort KemPharm or GSK (KVK, or their respective Affiliates, licensees or Sublicensees) sublicensees (collectively, “Infringement Actions”), such Party shall promptly notify the other Party hereto in writing. The Party subject to such Infringement Action KemPharm shall have the first right, but not the obligation, to direct and control the defense thereofof such Infringement Action, [*] with counsel of its choice; provided, however, that the other Party if KVK has not been named as a defendant, KVK may participate in the defense and/or settlement thereof at its own expense thereof, [*] with counsel of its choice. If KVK has been named as a defendant, KemPharm shall, whether through its own counsel or separate counsel in the event of a conflict, defend KVK [*], with regard solely to said Third Party Infringement Claims. In any event, the Party that is subject to the Infringement Action KemPharm agrees to keep the other Party hereto KVK reasonably informed of all material developments in connection with any such Infringement Action. The Party who is subject Action for which KemPharm exercises its right to direct and control the defense and shall provide any additional information about the Infringement Action that KVK reasonably requests. Each Party shall share with the other Party all Information available to it regarding such Infringement Actions, pursuant to a mutually agreeable “common defense agreement” executed by the Parties under which the Parties agree to their shared, mutual interest in the outcome of any such Infringement Actions. KemPharm agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would materially adversely affect the Compound rights or the manufacture, use or sale interests of the Compound or any Product within or outside the TerritoryKVK, without the prior written consent of the other PartyKVK, which shall not be unreasonably withheld or delayed. GSK may [… * …]If a license from a Third Party is reasonably required in order for KVK to Commercialize the Licensed Products or otherwise perform its obligations under this agreement, the Parties shall mutually agree on such license and negotiate in good faith as to the allocation of such license. As used hereinThe JSC shall review the Third-Party licensed IP expenses at least annually. Notwithstanding the foregoing, “Damages” under no circumstances shall mean out-of-pocket costs incurred by GSKKVK be responsible or pay for any licensing fees related to use or sale (i) prior to the Effective Date, including reasonable attorney’s fees(ii) after the Term of this Agreement, damages and other liabilities that are part of any final judgment awarded against GSK, and any amounts paid by GSK in a settlement (iii) outside of the action that is approved by XenoPortField, such approval not to be unreasonably withheld or delayed. The Parties shall assist one another and cooperate in any such action at (iv) outside of the other’s reasonable requestCollaboration Territory.

Third Party Infringement Claims. If the production, sale or use of the Compound or any Product in the Licensed Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement Infringement (collectively, “Third Party Infringement Actions”) against XenoPort OptiNose or GSK (Avanir or their respective Affiliates, licensees or Sublicensees) (collectively, “Infringement Actions”)sublicensees, such Party shall promptly notify the other Party hereto in writing. The OptiNose shall have the first right, but not the obligation, to direct and control the defense of Third Party Infringement Actions and Avanir may participate in the defense and/or settlement thereof, at its own expense with counsel of its choice; provided, however, that if the Third Party Infringement Action is filed against Avanir, OptiNose shall: (i) notify Avanir of its intention to assume control of the defense and actually initiates the defense of such Third Party Infringement Action within [***] of Avanir or OptiNose first becoming aware of the same; and (ii) indemnify and hold harmless Avanir and the Avanir Indemnitees against any Liabilities arising from such Third Party Infringement Action and/or OptiNose’s control of the defense thereof, [***]. Subject to this Section 9.4 above, the Party subject to such Third Party Infringement Action shall have the first right, but not the [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. obligation, to direct and control the defense thereof; provided, however, that the other Party may participate in the defense and/or settlement thereof at its own expense with counsel of its choice. In any event, the Party that is subject to the Third Party Infringement Action (or the Party controlling the defense of the Third Party Infringement Action, as the case may be) agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Third Party Infringement Action. The Party who is subject to the Third Party Infringement Action agrees not to (or the Party controlling the defense of the Third Party Infringement Action, as the case may be) shall not, [***] settle such Third Party Infringement Action, or make any admissions or assert any position in such Third Party Infringement Action, in a manner that would adversely affect the Compound or the manufacture, use or sale of the Compound or any Product within or outside the Territory, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. GSK may reasonably likely to: [… * …***]. As used herein, “Damages” shall mean out-of-pocket costs incurred by GSK, including reasonable attorney’s fees, damages and other liabilities that are part of any final judgment awarded against GSK, and any amounts paid by GSK in a settlement of the action that is approved by XenoPort, such approval not to be unreasonably withheld or delayed. The Parties shall assist one another and cooperate in any such action at the other’s reasonable request.

Third Party Infringement Claims. If the productionManufacture, use or sale or use of the Compound or any Product Products in the Field in the Advaccine Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort Inovio or GSK Advaccine (or their respective Affiliates, licensees or Sublicensees) (collectively, “Infringement Actions”), such Party shall promptly notify the other Party hereto in writing. The Subject to Article 11, the Party subject to such for which the Infringement Action is brought against (the “Accused Party”) shall have the first right, but not the obligation, right to direct and control the defense thereofof such Infringement Action, at its own expense with counsel of its choice; provided, however, that the other Party may participate in the defense and/or settlement thereof thereof, at its own expense with counsel of its choice. In any event, the Accused Party that is subject to the Infringement Action agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement ActionAction for which the Accused Party exercises its right to direct and control the defense. The Accused Party who is subject to the Infringement Action agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Compound rights or the manufacture, use or sale interests of the Compound or any Product within or outside the Territoryother Party, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. GSK may [… * …]. As used hereinSubject to Article 11, “Damages” if the Accused Party does not exercise its right to direct and control the defense of an Infringement Action that is brought against the other Party, then the other Party shall mean out-of-pocket costs incurred by GSKhave such right and it shall agree to keep the Accused Party reasonably informed of all material developments in connection with such Infringement Action and it shall not settle such Infringement Action, including reasonable attorney’s feesor make any admissions or assert any position in such Infringement Action, damages and other liabilities that are part of any final judgment awarded against GSK, and any amounts paid by GSK in a settlement manner that would materially adversely affect the rights or interests of the action that is approved by XenoPortAccused Party, such approval without the prior written consent of the Accused Party, which shall not to be unreasonably withheld or delayed. The Parties shall assist one another and cooperate in any such action at the other’s reasonable request.

Third Party Infringement Claims. If the productionDevelopment, sale Manufacture, or use Commercialization of the Compound or any Licensed Product in the Field in the Hansoh Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort Keros or GSK Hansoh (or their respective Affiliates, licensees or Sublicenseessublicensees) (collectively, “Third Party Infringement Actions”), such Party shall promptly notify the other Party hereto in writing. The Party subject to such Infringement Action Hansoh shall have the first right, but not the obligation, to direct and control the defense thereofof such Third Party Infringement Action, at its own expense with counsel of its choice; provided, however, that the other Party Keros may participate in the defense and/or settlement thereof thereof, at its own expense with counsel of its choice. In any event, the Party that is subject to the Infringement Action Hansoh agrees to keep the other Party hereto Keros reasonably informed of all material developments in connection with any such Infringement Action. The Third Party who is subject to the Infringement Action for which Hansoh exercises its right to direct and control the defense. Hansoh agrees not to settle such Third Party Infringement Action, or make any admissions or assert any position in such Third Party Infringement Action, in a manner that would materially adversely affect the Compound rights or the manufacture, use or sale interests of the Compound or any Product within or outside the TerritoryKeros, without the prior written consent of the other PartyKeros, which shall not be unreasonably withheld or delayed. GSK may [… * …]. As used hereinIf Hansoh does not exercise its right to direct and control the defense of a Third Party Infringement Action that is brought against Hansoh, “Damages” then Keros shall mean out-of-pocket costs incurred by GSK, including reasonable attorney’s fees, damages have such right at its own expense and other liabilities that are part to use counsel of any final judgment awarded against GSKits choice, and it shall agree to keep Hansoh reasonably informed of all material developments in connection with such Third Party Infringement Action, and it shall not settle such Third Party Infringement Action, or make any amounts paid by GSK admissions or assert any position in such Third Party Infringement Action, in a settlement manner that would materially adversely affect the rights or interests of Hansoh, without the action that is approved by XenoPortprior written consent of Hansoh, such approval which shall not to be unreasonably withheld or delayed. The With respect to any Third Party Infringement Action in the Hansoh Territory, the Party controlling the response to the Third Party Infringement Action shall [***]. In the event of any recovery in connection with a Third Party Infringement Action, the Parties shall assist one another and cooperate in allocate any such action at recovery in accordance with Section 9.4(e)(i)-(ii), where, solely for the other’s reasonable requestpurposes of recovery allocation under this Section 9.5, the controlling Party under this Section 9.5 shall be deemed an “Enforcing Party” and the applicable Third Party Infringement Action resulting in such recovery shall be deemed an “Enforcement Action” as described in Section 9.4(e)(i)-(ii).

Third Party Infringement Claims. If the production, sale or use of the any Compound or any Product in the Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort or GSK Astellas (or their respective Affiliates, licensees Affiliates or SublicenseesSubdistributors) (collectively, “Infringement Actions”), such Party shall promptly notify the other Party hereto in writing. The Party subject to such Infringement Action shall have the first right, but not the obligation, right to direct and control the defense thereofthereof (including the conclusion of a potential settlement, but limited to the rights granted pursuant to this Agreement) using counsel reasonably acceptable to the other Party, and the Infringement Action shall be at the expense of the Party subject to such Infringement Action; provided, however, that the other Party may participate in the defense and/or settlement thereof at its own expense with counsel of its choice. In any event, the Party that is subject to the Infringement Action agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement Action. The Party who is subject to the Infringement Action Astellas agrees not to settle such any Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Compound Product or the manufacture, use or sale of the Compound or any Product within thereof in or outside the Territory, without the prior written consent of XenoPort. XenoPort agrees not to settle any Infringement Action in a manner that would adversely affect the other PartyProduct or the manufacture, which shall not be unreasonably withheld use or delayedsale thereof in the Territory, without the prior written consent of Astellas. GSK Astellas may [… * …]treat its Damages from such Infringement Action as Third Party Royalties under Section 7.3.1 above, and XenoPort may treat its Damages from such Infringement Action as payments for Third Party IP under Section 2.5 above. As used herein, “Damages” shall mean out-of-pocket costs incurred by GSKa Party, including reasonable attorney’s fees, damages and other liabilities that are part of any final judgment awarded against GSKsuch Party, and any amounts paid by GSK such Party in a settlement of the action that is approved by XenoPortthe other Party, such approval not to be unreasonably withheld or delayed. The Parties shall assist one another and cooperate in any such action at the other’s reasonable request* 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.

Third Party Infringement Claims. If the productionDevelopment, sale Manufacture, or use Commercialization of the Compound or any Licensed Product in the Field in the Apollomics Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort GlycoMimetics or GSK Apollomics (or their respective Affiliates, licensees or Sublicenseessublicensees) (collectively, “Third Party Infringement Actions”), such Party shall promptly notify the other Party hereto in writing. The Party subject to such Infringement Action GlycoMimetics shall have the first right, but not the obligation, to direct and control the defense thereofof such Third Party Infringement Action, at its own expense with counsel of its choice; provided, however, that the other Party Apollomics may participate in the defense and/or settlement thereof thereof, at its own expense with counsel of its choice. In any event, the Party that is subject to the Infringement Action GlycoMimetics agrees to keep the other Party hereto Apollomics reasonably informed of all material developments in connection with any such Infringement Action. The Third Party who is subject to the Infringement Action for which GlycoMimetics exercises its right to direct and control the defense. GlycoMimetics agrees not to settle such Third Party Infringement Action, or make any admissions or assert any position in such Third Party Infringement Action, in a manner that would materially adversely affect the Compound rights or the manufacture, use or sale interests of the Compound or any Product within or outside the TerritoryApollomics, without the prior written consent of the other PartyApollomics, which shall not be unreasonably withheld or delayed. GSK may [… * …]. As used hereinIf GlycoMimetics does not exercise its right to direct and control the defense of a Third Party Infringement Action that is brought against Apollomics, “Damages” then Apollomics shall mean out-of-pocket costs incurred by GSK, including reasonable attorney’s fees, damages have such right at its own expense and other liabilities that are part to use counsel of any final judgment awarded against GSKits choice, and it shall agree to keep GlycoMimetics reasonably informed of all material developments in connection with such Third Party Infringement Action, and it shall not settle such Third Party Infringement Action, or make any amounts paid by GSK admissions or assert any position in such Third Party Infringement Action, in a settlement manner that would materially adversely affect the rights or interests of GlycoMimetics, without the action that is approved by XenoPortprior written consent of GlycoMimetics, such approval which shall not to be unreasonably withheld or delayed. The With respect to any Third Party Infringement Action in the Apollomics Territory, the Party controlling the response to the Third Party Infringement Action shall bear all costs of such action. In the event of any recovery in connection with a Third Party Infringement Action, the Parties shall assist one another and cooperate in allocate any such action at recovery in accordance with Section 9.4(d)(i)-(iv), where, solely for the other’s reasonable requestpurposes of recovery allocation under this Section 9.5, the controlling Party under this Section 9.5 shall be deemed an “Enforcing Party” and the applicable Third Party Infringement Action resulting in such recovery shall be deemed an “enforcement action” as described in Section 9.4(d)(i)-(iv).

Third Party Infringement Claims. If the productionManufacture, use or sale or use of the Compound or any Product Licensed Products in the Field in the 3D Medicines Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort Aravive or GSK 3D Medicines (or their respective Affiliates, licensees or Sublicensees) (collectively, “Infringement Actions”), such Party shall promptly notify the other Party hereto in writing. The Subject to Article 11, the Party subject to such for which the Infringement Action is brought against (the “Accused Party”) shall have the first right, but not the obligation, right to direct and control the defense thereofof such Infringement Action, at its own expense with counsel of its choice; provided, however, that the other Party may participate in the defense and/or settlement thereof thereof, at its own expense with counsel of its choice. In any event, the Accused Party that is subject to the Infringement Action agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement ActionAction for which the Accused Party exercises its right to direct and control the defense. The Accused Party who is subject to the Infringement Action agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Compound rights or the manufacture, use or sale interests of the Compound or any Product within or outside the Territoryother Party, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. GSK may [… * …]. As used hereinSubject to Article 11, “Damages” if the Accused Party does not exercise its right to direct and control the defense of an Infringement Action that is brought against the other Party, then the other Party shall mean out-of-pocket costs incurred by GSKhave such right and it shall agree to keep the Accused Party reasonably informed of all material developments in connection with such Infringement Action and it shall not settle such Infringement Action, including reasonable attorney’s feesor make any admissions or assert any position in such Infringement Action, damages and other liabilities that are part of any final judgment awarded against GSK, and any amounts paid by GSK in a settlement manner that would materially adversely affect the rights or interests of the action that is approved by XenoPortAccused Party, such approval without the prior written consent of the Accused Party, which shall not to be unreasonably withheld or delayed. The Parties shall assist one another and cooperate in any such action at the other’s reasonable request.

Third Party Infringement Claims. If the productionmanufacture, sale or use of the Compound or any Product Products in the Field in the Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent Patent infringement against XenoPort KemPharm or GSK (Company, or their respective Affiliates, licensees or Sublicensees) Sublicensees (collectivelyeach, an “Infringement ActionsAction”), such Party shall promptly notify the other Party hereto in writing. The Party subject to such Infringement Action Company shall have the first right, [*****], but not the obligation, to direct defend any Infringement Action and control to compromise or settle such Infringement Action. If Company declines or fails to assert its intention to defend such Infringement Action within [*****] days after sending (in the event that KemPharm is the notifying Party) or receipt (in the event that Company is the notifying Party) of notice under this Section 9.4, then KemPharm shall have the right to defend such Infringement Action. The Party defending such Infringement Action shall have the sole and exclusive right to select counsel for such Infringement Action. Each Party shall share with the other Party all Information available to it regarding such Infringement Actions, pursuant to a mutually agreeable “common defense thereofagreement” executed by the Parties under which the Parties agree to their shared, mutual interest in the outcome of any such Infringement Actions; provided, however, that no Party shall be required to disclose Information to the other Party may participate in the defense and/or settlement thereof at its own expense with counsel of its choice. In any event, the Party that is subject to the Infringement Action agrees to keep extent such disclosure would cause the other loss of attorney/client privilege. Neither Party hereto reasonably informed of all material developments in connection with any such Infringement Action. The Party who is subject to the Infringement Action agrees not to shall settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would materially adversely affect the Compound rights or the manufacture, use or sale interests of the Compound or any Product within or outside the Territoryother Party hereunder, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. GSK may For clarity, the foregoing sentence shall not serve to limit or condition Company’s exercise of its rights under Section 8.5(d)(iii). Subject to the respective indemnity obligations of the Parties set forth in Article 11, the Party controlling the defense of the Infringement Action shall pay all costs associated with such Infringement Action other than the expenses of the other Party if the other Party elects to join such Infringement Action (as provided in the last sentence of this Section 9.4); provided, that, without limitation of KemPharm’s indemnification obligations under Article 11, [… * …*****]. As used hereinEach Party shall have the right to join an Infringement Action defended by the other Party, “Damages” shall mean out-of-pocket costs incurred by GSK, including reasonable attorney’s fees, damages and other liabilities that are part of any final judgment awarded against GSK, and any amounts paid by GSK in a settlement of the action that is approved by XenoPort, such approval not to be unreasonably withheld or delayed. The Parties shall assist one another and cooperate in any such action at the other’s reasonable requestits own expense.

Third Party Infringement Claims. If a Party becomes aware of any Third Party claim that the productiondevelopment, sale manufacture or use Commercialization of a Licensed Product infringes the Compound or Patent Rights of any Product Third Party in the Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort or GSK (or their respective Affiliates, licensees or Sublicensees) (collectively, a “Third Party Infringement ActionsClaim”), such Party shall promptly notify the other Party hereto in writing. The Party subject to such Infringement Action Chromocell shall have the first right, but not the obligationwithin thirty (30) days after receiving written notice of a Third Party Infringement Claim, to direct and control assume the defense thereof, as well as the right to take other appropriate action that it believes is reasonably required to defend any such actual or threatened claim of infringement; provided that any counterclaims shall be handled in accordance with the enforcement provision of Section 6.4.2; and provided, howeverfurther, (a) that Benuvia and its counsel (at the sole cost and expense of Benuvia) may participate in (but not control the conduct of) the defense of such Third Party Infringement Claim; and (b) that no settlement of any such Third Party Infringement Claim shall be entered into unless Benuvia shall have consented to such settlement in writing (which consent shall not be unreasonably withheld, conditioned or delayed). If Chromocell assumes the defense of a Third Party Infringement Claim, Chromocell shall (w) conduct the defense of the Third Party Infringement Claim in good faith, (x) have the right to appoint lead counsel in the defense of any such lawsuit and to control the litigation, (y) be responsible for all legal fees and costs in such litigation (other than Benuvia’s counsel and other legal fees incurred by Benuvia), and (z) be responsible for any and all financial compensation for damages awarded therein subject to indemnification obligations by Benuvia of Chromocell if and to the extent that any Third Party may Infringement Claim is upheld based on actions of Benuvia. In order for Benuvia to have an opportunity to effectively participate in the defense of the Third Party Infringement Claim, Chromocell shall (1) ensure that its counsel, upon reasonable request by Benuvia in writing, provides Benuvia or its counsel promptly with copies of requested pleadings and written claims, demands, notices or other documents obtained in connection with such lawsuit, as permitted by law or otherwise and (2) consider in good faith the recommendations made by Benuvia. Benuvia agrees that it shall join such suit if the relevant court would lack jurisdiction if Benuvia was absent from such suit, and Benuvia shall execute such legal papers and cooperate, at Chromocell’s expense, in the defense of such suit as may be reasonably requested by Xxxxxxxxxx. If Chromocell does not assume the defense of the Third Party Infringement Claim as set forth in this Section 6.5, Benuvia shall (A) have the right but not the obligation to appoint lead counsel in the defense of any such lawsuit and to control the litigation, (B) be responsible for all legal fees and costs in such litigation (other than Chromocell’s counsel), and (C) be responsible for any and all financial compensation for damages awarded therein subject to indemnification obligations by Chromocell of Benuvia if and to the extent that any Third Party Infringement Claim is upheld based on actions of Chromocell. Chromocell agrees that it shall join such suit if the relevant court would lack jurisdiction if Chromocell, its Affiliates and/or settlement thereof Chromocell Sublicensees was absent from such suit, and Chromocell, its Affiliates and/or Chromocell Sublicensees shall execute such legal papers and cooperate, at Benuvia’s expense, in the defense of such suit as may be reasonably required by Benuvia. For the avoidance of doubt, if Benuvia assumes the defense of a Third Party Infringement Claim, Chromocell and its own counsel (at the sole expense with counsel of its choiceChromocell) may participate in (but not control the conduct of) the defense of such Third Party Infringement Claim. In any eventcase, the Party that is subject to the Infringement Action agrees to keep the other Party hereto reasonably informed no settlement of all material developments in connection with any such Third Party Infringement Action. The Party who is subject to Claim shall be entered into unless Benuvia first consults with and solicits input in writing from Chromocell regarding the Infringement Action agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Compound or the manufacture, use or sale of the Compound or any Product within or outside the Territory, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. GSK may [… * …]. As used herein, “Damages” shall mean out-of-pocket costs incurred by GSK, including reasonable attorney’s fees, damages and other liabilities that are part terms of any final judgment awarded against GSK, such settlement and any amounts paid by GSK in a settlement of the action that is approved by XenoPortobtains Chromocell’s consent to such settlement, such approval consent not to be unreasonably withheld withheld, conditioned or delayed. The Parties Further, Benuvia shall assist one another (1) ensure that its counsel, upon reasonable request by Xxxxxxxxxx in writing, provides Chromocell or its counsel promptly with copies of requested pleadings and cooperate written claims, demands, notices or other documents obtained in any connection with such action at lawsuit, as permitted by law or otherwise and (2) consider in good faith the other’s reasonable requestrecommendations made by Chromocell.

Third Party Infringement Claims. If a Third Party sues a Party (the production“Sued Party”) alleging that the Sued Party’s, sale or use the Sued Party’s Sublicensee’s, Development, Manufacture or Commercialization of the Compound or any Product in the Otsuka Territory pursuant to this Agreement results in a claim, suit infringes or proceeding alleging patent infringement against XenoPort will infringe such Third Party’s Patent Rights or GSK misappropriates or will misappropriate such Third Party’s Know-How (or their respective Affiliates, licensees or Sublicensees) (collectively, “Third Party Infringement ActionsSuit”), such then the Sued Party shall promptly notify the other Party hereto in writingof such Third Party Infringement Suit. The Parties shall promptly meet to consider the appropriate course of action and may, if appropriate, agree on and enter into a “common interest agreement” wherein the Parties agree to their shared, mutual interest in the outcome of such Third Party subject Infringement Suit. Absent such agreement, the Sued Party shall defend the Third Party Infringement Suit; provided that Section 9.4 shall govern the right of Otsuka to such Infringement Action shall have assert a counterclaim of infringement of any Perception Patent Rights, Joint Patent Rights or Otsuka Product Improvement Patents. At the first rightSued Party’s request [***], but not the obligation, to direct and control the defense thereof; provided, however, that the other Party may participate will provide reasonable assistance to the Sued Party in connection with the Sued Party’s defense and/or settlement thereof at its own expense with counsel of its choiceany such Third Party Infringement Suit. In any eventIf the other Party has not joined in such Third Party Infringement Suit, the Sued Party that is subject to the Infringement Action agrees to will keep the other Party hereto reasonably informed on a Calendar Quarter basis prior to and during the pendency of such Third Party Infringement Suit. The Sued Party will not enter into any settlement of any Third Party Infringement Suit that is instituted or threatened to be instituted against the other Party without the other Party’s prior written consent, which will not be unreasonably withheld, conditioned or delayed; except that, such consent will not be required if such settlement includes a release of all material developments liability in connection with favor of the other Party. Further, the Sued Party shall not settle or compromise any such Third Party Infringement Action. The Party who is subject to the Infringement Action agrees not to settle such Infringement ActionSuit, or make knowingly take any admissions or assert any position other action in such Infringement Actionthe course thereof, in a manner that would materially adversely affect affects the Compound other Party’s rights or the manufacture, use or sale of the Compound or any Product within or outside the Territoryinterests, without the prior written consent of the such other Party, which shall not be unreasonably withheld or delayed. GSK may [… * …]. As used herein, “Damages” shall mean out-of-pocket costs incurred by GSK, including reasonable attorney’s fees, damages and other liabilities that are part of any final judgment awarded against GSK, and any amounts paid by GSK in a settlement of the action that is approved by XenoPort, such approval consent not to be unreasonably withheld withheld, conditioned or delayed. The Parties shall assist one another [***]. If, as part of a settlement or compromise of a Third Party Infringement Suit, Otsuka enters into an agreement with a Third Party to obtain a license under or otherwise acquire rights to Third Party Intellectual Property Rights, all payments by Otsuka to such Third Party under such agreement (including all upfront payments, milestone payments, license fees, royalties and cooperate in any other amounts payable to such action at Third Party for such rights) may be applied to the other’s reasonable requestroyalty reduction pursuant to Section 8.4.3(c).