Common use of Defense and Settlement of Third Party Claims Clause in Contracts

Defense and Settlement of Third Party Claims. (a) If a Third Party asserts that a patent, trademark or other intellectual properties owned by it is infringed by the importation, manufacture, use or sale of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier or if either Party learns of a claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier infringes or otherwise violates the intellectual property rights of any Third Party, then such Party will promptly notify the other Party in writing. Novartis has the right, if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis will have the first right, but not the obligation, to defend against any such claim at its own expense. If Novartis does not assume control of such defense, then Emisphere will have the right to control such defense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist and cooperate in any such infringement litigation at the defending Party’s reasonable request. If the Party controlling such defense is not the Party against whom such action was originally brought, then the Party controlling such defense will not agree to the settlement of any such action without the prior written consent of the other Party.

Defense and Settlement of Third Party Claims. (a) If a Third Party asserts that a patent, trademark or other intellectual properties owned by it is infringed by the importation, manufacture, use or sale of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier or if either Party learns of a claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier infringes or otherwise violates the intellectual property rights of any Third Party, then such Party will promptly notify the other Party in writing. Novartis has the right, if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis will have the first right, but not the obligation, to defend against any such claim at its own expense. If Novartis does not assume control of such defense, then Emisphere will have the right to control such defense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status *** - indicates material omitted pursuant to a Confidential Treatment Request and filed separately with the Securities and Exchange Commission. of such action and shall consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist and cooperate in any such infringement litigation at the defending Party’s reasonable request. If the Party controlling such defense is not the Party against whom such action was originally brought, then the Party controlling such defense will not agree to the settlement of any such action without the prior written consent of the other Party. (b) If Novartis conducts the defense, Novartis will use Commercially Reasonable Efforts as to how and whether to defend against such charge of infringement. (c) Such application and deduction shall not apply to infringement caused by Novartis’ use of its name, trade name, logo or Novartis Patent Rights or Novartis Know-How.

Defense and Settlement of Third Party Claims. (a) If a Third Party asserts that a patent, trademark or other intellectual properties owned by it is infringed by the importation, manufacture, use or sale of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier or if either Party learns of a claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier infringes or otherwise violates the intellectual property rights of any Third Party, then such Party will promptly notify the other Party in writing. Novartis has the right, if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis will have the first right, but not the obligation, to defend against any such claim at its own expense. If Novartis does not assume control of such defense, then Emisphere will have the right to control such defense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist and cooperate in any such infringement litigation at the defending Party’s reasonable request. If the Party controlling such defense is not the Party against whom such action was originally brought, then the Party controlling such defense will not agree to the settlement of any such action without the prior written consent of the other Party. *** - indicates material omitted pursuant to a Confidential Treatment Request and filed separately with the Securities and Exchange Commission. (b) If Novartis conducts the defense, Novartis will use Commercially Reasonable Efforts as to how and whether to defend against such charge of infringement. (c) Such application and deduction shall not apply to infringement caused by Novartis’ use of its name, trade name, logo or Novartis Patent Rights or Novartis Know-How.

Defense and Settlement of Third Party Claims. (a) If a Third Party asserts that a patent, trademark patent or other intellectual properties property owned by it is infringed by the importation, manufacture, use or sale of any Novartis Compound, Novartis Protected Compound or Novartis Combination, or any drug product containing any of the Lead Carrierforegoing, in any jurisdiction, then Novartis shall bear all costs associated with defending or licensing such intellectual property. (b) If a Third Party asserts that a patent or other intellectual property owned by it is infringed by the Commercial Carrier or the Back-Up Carrier or if either Party learns of a claim or assertion that the developmentimportation, manufacture, useuse or sale of any CombinatoRx Compound or CombinatoRx Combination, marketingor any drug product containing either of the foregoing, promotionin any jurisdiction, then CombinatoRx shall bear all of costs associated with defending or licensing such intellectual property. (c) If a Third Party asserts that a patent or other intellectual property owned by it is infringed by the importation, exportationmanufacture, offer for sale, use or sale or distribution of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier infringes or otherwise violates the intellectual property rights of any Third PartyCompound or drug product which uses or exploits Novartis Tool Compound Project Intellectual Property in any jurisdiction, then such the Prosecuting Party will promptly notify the other Party in writing. Novartis has the right, if it so wishes, to shall be solely responsible for defending against such assertions, and shall bear all costs associated with defending or licensing such intellectual property. The other Party shall provide all reasonable assistance requested by the Prosecuting Party in connection with any such assertions and controlling proceeding. Notwithstanding the foregoing, neither Party shall settle or compromise any related litigation at its own cost and expense. Novartis will have the first right, but not the obligation, to defend against any such claim at its own expense. If Novartis does not assume control of such defense, then Emisphere will have the right to control such defense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall consider recommendations made by the other a Third Party in respect thereto. The Party not controlling such defense will assist and cooperate in any such infringement litigation at a manner that would limit the defending Party’s reasonable request. If the Party controlling such defense is not the Party against whom such action was originally brought, then the Party controlling such defense will not agree to the settlement scope or validity of any such action Patent contained in the Novartis Tool Compound Project Intellectual Property without the prior written consent of the other PartyParty [*] PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. AN UNREDACTED VERSION OF THIS EXHIBIT HAS BEEN FILED WITH THE COMMISSION.

Defense and Settlement of Third Party Claims. (a) If a Third Party asserts that a patent, trademark Patent or other intellectual properties right owned by it is infringed by the importation, manufacture, use or sale of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier or if either Party learns of a claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportationsale, offer for sale, sale or distribution of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier infringes or otherwise violates the intellectual property rights importation of any Third PartyProduct, then such Party will promptly notify the other Party in writing. Novartis has the right, if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis will Astellas shall have the first primary right, but not the obligation, to defend against any such claim assertions. In the event Astellas elects to defend against any such Third Party claims in accordance with this Section 10.5, Astellas shall have the sole right to control the defense of any such Third Party claims and to elect to settle such claims, provided that it shall consult with and keep Maxygen reasonably informed with respect thereto. Maxygen may join any defense brought by Astellas pursuant to this Section 10.5, with its own counsel at its own expense. If Novartis does , or in the event that Astellas elects not assume control of to exercise its right to defend against any such defenseThird Party claims, then Emisphere will Maxygen shall have the right right, but not the obligation, to control defend against such defense Third Party claims with its own counsel at its own expense. In any event, the each Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep assist the other Party advised of the status of such action and shall consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist and cooperate in any such infringement litigation at the defending other Party’s reasonable request. If the Party controlling such defense is not the Party against whom such action was originally brought, then the Party controlling such defense will not agree request without expense to the settlement requesting Party. Neither Party shall settle or consent to the entry of any judgment in any such action without the prior written consent of case that would adversely affect the other Party’s rights hereunder without the other Party’s prior written consent, not to be unreasonably withheld, conditioned or delayed. Astellas may include Damages under this Section 10.5 as Third Party Payments under Section 5.16 of the Financial Exhibit, provided however that such Damages are only included as Third Party Payments under Section 2.1.3(a) of the Financial Exhibit to the extent such Damages are attributable to patent infringement excluding any increase due to willful patent infringement. For purposes of this Agreement, “Damages” shall mean damages and other liabilities that are required to be paid to such Third Party, in restitution of or payment for the infringement, as part of any final judgment awarded against such Party and any amounts paid by such Party (with the other Party’s prior written consent) in a settlement of the assertion (if additional claims have been asserted by such Third Party, then to the extent allocable to settlement of the applicable infringement claims).

Defense and Settlement of Third Party Claims. (a) 14.4.1 If a Third Party asserts that a patent, trademark or other intellectual properties IP Right owned by it is infringed by the importation, manufacture, use or sale of the Lead Carrierany Licensed Compound or Licensed Product by Angiotec, the Commercial Carrier or the Back-Up Carrier or if either Party learns of a claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of the Lead Carrier, the Commercial Carrier Licensed Compounds or the Back-Up Carrier Licensed Products infringes or otherwise violates the intellectual property rights of any Third Party, then such Party will promptly notify the other Party in writing. Novartis has the right, if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis Angiotech will have the first sole right, but not the obligation, to defend against any control such claim defense at its own expense. If Novartis Angiotech does not assume control of such defense, then Emisphere will CombinatoRx shall have the right to control such defense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist and cooperate in any such infringement litigation at the defending Party’s 's reasonable request. If the Party controlling such defense is not the Party against whom such action was originally brought, then the Party controlling such defense will not agree to the settlement of any such action without the prior written consent of the other Party. 14.4.2 If Angiotech conducts the defense, Angiotech will use Commercially Reasonable Efforts to determine how and whether to defend against such charge of infringement. 14.4.3 During the period in which such litigation is pending and following the resolution thereof, Angiotech shall bear all other costs incurred in connection therewith (including litigation costs, attorneys fees, costs of settlement) including damage awards and any other payment resulting therefrom in the event Angiotech is barred as a result of such litigation from further sales in the country concerned. 14.4.4 Such application and deduction shall not apply to infringement caused by Angiotech' or its Affiliates' use of their respective name, trade name, logo or the Angiotech Patents or Angiotech Know-How. [**] PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. AN UNREDACTED VERSION OF THIS EXHIBIT HAS BEEN FILED WITH THE COMMISSION.

Defense and Settlement of Third Party Claims. (a) 7.4.1 If a Third Party asserts that a patent, trademark or other intellectual properties IP Protection Right owned by it is infringed by the importation, manufacture, use or sale of the Lead Carrierany Licensed Combinations, the Commercial Carrier or Licensed Products, or the Back-Up Carrier Collaboration Combination, or Collaboration Products, or if either Party learns of a claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of the Lead CarrierLicensed Combinations, the Commercial Carrier or Licensed Products, or the Back-Up Carrier Collaboration Combination, or Collaboration Products infringes or otherwise violates the intellectual property rights of any Third Party, then such Party (hereinafter the “Defending Party”) will promptly notify the other Party in writing. Novartis has the right, if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis will The Defending Party shall have the first sole right, but not the obligation, to defend against any such claim at its own expense. If Novartis control defense of actions; and if the Defending Party does not assume control of such defense, then Emisphere will the other Party shall have the right to control such defense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist and cooperate in any such infringement litigation at the defending Party’s reasonable request. If the Party controlling such defense is not the Party against whom such action was originally brought, then the Party controlling such defense will not agree to the settlement of any such action without the prior written consent of the other Party. 7.4.2 If Fovea conducts the defense, Fovea will use Commercially Reasonable Efforts to determine how and whether to defend against such charge of infringement. 7.4.3 During the period in which such litigation is pending and following the resolution thereof, the Defending Party shall bear all other costs incurred in connection therewith (including litigation costs, attorneys fees, costs of settlement) including damage awards and any other payment resulting therefrom in the event Fovea is barred as a result of such litigation from further sales in the country concerned. 7.4.4 Such application and deduction shall not apply to infringement caused by Fovea’s or its Affiliates’ use of their respective name, trade name, logo or the Patents or knowhow owned or otherwise controlled by Fovea.

Defense and Settlement of Third Party Claims. (a) 7.4.1 If a Third Party asserts that a patent, trademark or other intellectual properties IP Protection Right owned by it is infringed by the importation, manufacture, use or sale of the Lead Carrierany Licensed Combinations, the Commercial Carrier or the Back-Up Carrier Licensed Products, or Collaboration Combinations, or Collaboration Products, or if either Party learns of a claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of the Lead CarrierLicensed Combinations, the Commercial Carrier or the Back-Up Carrier Licensed Products, or Collaboration Combinations, or Collaboration Products infringes or otherwise violates the intellectual property rights of any Third Party, then such Party (hereinafter the “Defending Party”) will promptly notify the other Party in writing. Novartis has the right, if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis will The Defending Party shall have the first sole right, but not the obligation, to defend against any such claim at its own expense. If Novartis control defense of actions; and if the Defending Party does not assume control of such defense, then Emisphere will the other Party shall have the right to control such defense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist and cooperate in any such infringement litigation at the defending Party’s reasonable request. If the Party controlling such defense is not the Party against whom such action was originally brought, then the Party controlling such defense will not agree to the settlement of any such action without the prior written consent of the other Party. 7.4.2 If Fovea conducts the defense, Fovea will use Commercially Reasonable Efforts to determine how and whether to defend against such charge of infringement. 7.4.3 During the period in which such litigation is pending and following the resolution thereof, the Defending Party shall bear all other costs incurred in connection therewith (including litigation costs, attorneys fees, costs of settlement) including damage awards and any other payment resulting therefrom in the event Fovea is barred as a result of such litigation from further sales in the country concerned. 7.4.4 Such application and deduction shall not apply to infringement caused by Fovea’s or its Affiliates’ use of their respective name, trade name, logo or the Patents or knowhow owned or otherwise controlled by Fovea.

Defense and Settlement of Third Party Claims. (a) If a Third Party asserts that a patent, trademark or other intellectual properties owned by it is infringed by the importation, manufacture, use or sale of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier or if either Party learns of a claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier infringes or otherwise violates the intellectual property rights of any Third Party, then such Party will promptly notify the other Party in writing. Novartis has the right, if it so wishes, to be *** solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis *** will have the first right, but not the obligation, to defend against any such claim at its own expense. If Novartis *** does not assume control of such defense, then Emisphere *** will have the right to control such defense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist and cooperate in any such infringement litigation at the defending Party’s reasonable request. If the Party controlling such defense is not the Party against whom such action was originally brought, then the Party controlling such defense will not agree to the settlement of any such action without the prior written consent of the other Party. (b) If *** conducts the defense, *** will use Commercially Reasonable Efforts as to how and whether to defend against such charge of infringement. (c) Such application and deduction shall not apply to infringement caused by ***’ use of its name, trade name, logo or *** Patent Rights or *** Know-How.