Common use of ACTION BY ASTI Clause in Contracts

ACTION BY ASTI. If (a) the Infringing Product is substantially similar to an ASTI Product (in that the Infringing Product incorporates the same active Therapeutic Agent or Agents as such ASTI Product and, in the case of an ASTI Product that utilizes Allergan drug delivery technology, a drug delivery system substantially similar to the Allergan drug delivery system) for which the License Option has expired unexercised, and (b) within 90 days after the written notice from either party described above (or at any time thereafter), Allergan has not taken appropriate action to restrain such alleged infringement, and (c) at such time, the annualized unit sales volume of such Infringing Product in a country over a period of at least two calendar quarters, equals or exceeds 25% of the annualized unit sales volume of the related ASTI Product in such country during the same period, then ASTI shall have the right, at its own expense and with the right to all recoveries, to take such action as it deems appropriate to restrain such alleged infringement. If ASTI takes any such action, Allergan shall cooperate with ASTI in its pursuit thereof, at ASTI's expense, to the extent reasonably requested by ASTI. If the third party in any such action brings a counteraction for invalidation or misuse of a patent covering the Allergan Technology or the ASTI Product, ASTI shall promptly notify Allergan, and Allergan may, within six months after the notification, join and participate in such action at its own expense. ASTI shall not settle any such action relating to any alleged infringement which in any manner would adversely affect Allergan Technology without the prior written consent of Allergan.