Common use of Enforcement and Defense Rights Clause in Contracts

Enforcement and Defense Rights. (a) CytRx shall give Merck notice of either (i) any infringement of Patent Rights, or (ii) any misappropriation or misuse of CytRx Know-How, that may come to CytRx's attention. Merck and CytRx shall thereafter consult and cooperate fully to determine a course of action, including but not limited to the commencement of legal action by either or both Merck and CytRx, to terminate any infringement of Patent Rights or any misappropriation or misuse of CytRx Know-How. However, CytRx, upon notice to Merck, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of CytRx and Merck, or to control the defense of any declaratory judgment action relating to Patent Rights or CytRx Know-How. CytRx shall promptly inform Merck if it elects not to exercise such first right and Merck shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of Merck and, if necessary, CytRx. (b) In the event that CytRx elects not to initiate and prosecute an action as provided in paragraph (a), and Merck elects to do so, the costs of any course of action to terminate infringement of Patent Rights or misappropriation or misuse of CytRx Know-How, including the costs of any legal action commenced or the defense of any declaratory judgment, shall be shared equally by CytRx and Merck. (c) For any action to terminate any infringement of Patent Rights or any misappropriation or misuse of CytRx Know-How, in the event that Merck is unable to initiate or prosecute such action solely in its own name, CytRx will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Merck to initiate litigation to prosecute and maintain such action. In connection with any action, Merck and CytRx will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each party shall keep the other informed of developments in any action or proceeding, including, to the extent permissible by law, the status of any settlement negotiations and the terms of any offer related thereto. (d) Any recovery obtained by either or both Merck and CytRx in connection with or as a result of any action contemplated by this section, whether by settlement or otherwise, shall be shared in order as follows: (i) the party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action; (ii) the other party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (iii) the amount of any recovery remaining shall then be allocated between the parties on a pro rata basis under which CytRx shall --- ---- receive a proportion based on the royalties it lost and Merck shall receive a proportion based on its lost profits.

Enforcement and Defense Rights. Subject to the Merck License, the Vical License and the rights granted to Merck and Vical and the obligations of CytRx thereunder, CytRx agrees as follows: (a) CytRx shall give Merck PDC notice of either (i) any infringement of Patent Rights, or (ii) any misappropriation or misuse of CytRx Know-How, that may come to CytRx's ’s attention. Merck PDC and CytRx shall thereafter consult and cooperate fully to determine a course of action, including but not limited to the commencement of legal action by either or both any combination of PDC, Vical, Merck and CytRx, to terminate any infringement of Patent Rights or any misappropriation or misuse of CytRx Know-How. However, CytRx, Vical and / or Merck upon notice by CytRx to MerckPDC, shall have the first right to initiate and prosecute such legal action at its CytRx’s, Vical’s and / or Merck’s own expense and in the name of CytRx and, if necessary, PDC, Merck and Merck/ or Vical, or to control the defense of any declaratory judgment action relating to Patent Rights or CytRx Know-How. CytRx shall promptly inform PDC if all of CytRx, Merck if it elects and Vical elect not to exercise such first right and Merck PDC shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of Merck PDC and, if necessary, CytRx. (b) In the event that CytRx elects all of CytRx, Merck and Vical elect not to initiate and prosecute an action as provided in paragraph (a), and Merck PDC elects to do so, the costs of any course of action to terminate infringement of Patent Rights or misappropriation or misuse of CytRx Know-How, including the costs of any legal action commenced or the defense of any declaratory judgment, shall be shared equally by CytRx and MerckPDC. (c) For any action to terminate any infringement of Patent Rights or any misappropriation or misuse of CytRx Know-How, in the event that Merck PDC is unable to initiate or prosecute such action solely in its own name, CytRx will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Merck PDC to initiate litigation to prosecute and maintain such action. In connection with any action, Merck PDC and CytRx will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each party shall keep the other informed of developments in any action or proceeding, including, to the extent permissible by law, the status of any settlement negotiations and the terms of any offer related thereto. (d) Any recovery obtained by either or both Merck any combination of PDC, Vical, Merck, and CytRx in connection with or as a result of any action contemplated by this section, whether by settlement or otherwise, shall be shared in order as follows: (i) the party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action; (ii) the other party or parties shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (iii) and the amount of any recovery remaining shall then be allocated between the parties on a pro rata basis under which CytRx shall --- ---- receive a proportion based on the royalties it lost and PDC and to the extent applicable Merck and/or Vical shall receive any remaining amounts. (e) CytRx shall immediately give notice to PDC of any certification regarding any Patent Rights it has received pursuant to the United States “Drug Price Competition and Patent Term Restoration Act of 1984” under either 21 U.S.C. §§355(b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) or equivalent foreign provision and shall provide PDC with a proportion based on its lost profitscopy of such certification within (5) days of receipt. CytRx’s and PDC’s rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be defined in paragraphs (a)-(d) hereof, provided, however, if all of CytRx, Merck and Vical decide not to bring infringement proceedings against the entity making such a certification, CytRx shall give notice to PDC of such decision not to bring suit within thirty (36) days after receipt of notice of such certification. PDC may then, but is not required to, bring suit against the party that filed the certification. Any such suit by PDC, Vical, Merck, or CytRx shall either be in the name of PDC, in the name of Vical, in the name of Merck, or in the name of CytRx, or jointly by any combination of PDC, Vical, Merck and CytRx. For this purpose, the party not bringing suit shall execute such legal papers necessary for the prosecution of such suit as may be reasonably requested by the party bringing suit. (f) During the term of this Agreement, PDC shall bring to CytRx’s attention any prior art or other information known to PDC which is relevant to the patentability or validity of any of the Patents and which might cause a court to deem any of the Patents wholly or partly inoperative or invalid. PDC shall particularly specify such prior art or other information to CytRx at the time it learns thereof and not less than ninety (90) days prior to bringing any action against CytRx asserting the invalidity of any of the Patents.

Enforcement and Defense Rights. Subject to the Merck License and the ------------------------------ rights granted to Merck and the obligations of CytRx thereunder, CytRx agrees as follows: (a) CytRx shall give Merck Vical notice of either (i) any infringement of Patent Rights, or (ii) any misappropriation or misuse of CytRx Know-How, that may come to CytRx's attention. Merck Vical and CytRx shall thereafter consult and cooperate fully to determine a course of action, including but not limited to the commencement of legal action by either or both Merck any combination of Vical, Merck, and CytRx, to terminate any infringement of Patent Rights or any misappropriation or misuse of CytRx Know-How. However, CytRx, and / or Merck upon notice by CytRx to MerckVical, shall have the first right to initiate and prosecute such legal action at its CytRx's and / or Merck's own expense and in the name of CytRx and, if necessary, Merck and Merck/ or Vical, or to control the defense of any declaratory judgment action relating to Patent Rights or CytRx Know-How. CytRx shall promptly inform Vical if both CytRx and Merck if it elects elect not to exercise such first right and Merck Vical shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of Merck Vical and, if necessary, CytRx. (b) In the event that both CytRx elects and Merck elect not to initiate and prosecute an action as provided in paragraph (a), and Merck Vical elects to do so, the costs of any course of action to terminate infringement of Patent Rights or misappropriation or misuse of CytRx Know-How, including the costs of any legal action commenced or the defense of any declaratory judgment, shall be shared equally by CytRx and MerckVical. (c) For any action to terminate any infringement of Patent Rights or any misappropriation or misuse of CytRx Know-How, in the event that Merck Vical is unable to initiate or prosecute such action solely in its own name, CytRx will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Merck Vical to initiate litigation to prosecute and maintain such action. In connection with any action, Merck Vical and CytRx will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each party shall keep the other informed of developments in any action or proceeding, including, to the extent permissible by law, the status of any settlement negotiations and the terms of any offer related thereto. (d) Any recovery obtained by either or both Merck any combination of Vical, Merck, and CytRx in connection with or as a result of any action contemplated by this section, whether by settlement or otherwise, shall be shared in order as follows: (i) the party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action; (; ii) the other party or parties shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (iii) and the amount of any recovery remaining shall then be allocated between the parties on a pro rata basis under which CytRx shall --- ---- receive a proportion based on the royalties it lost and Vical and to the extent applicable Merck shall receive any remaining amounts. (e) CytRx shall immediately give notice to Vical of any certification regarding any Patent Rights it has received pursuant to the United States "Drug Price Competition and Patent Term Restoration Act of 1984" under either 21 U.S.C. ss.ss.355(b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) or equivalent foreign provision and shall provide Vical with a proportion based on its lost profitscopy of such certification within (5) days of receipt. CytRx's and Vical's rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be defined in paragraphs (a)-(d) hereof, provided, however, if both CytRx and Merck decide not to bring infringement proceedings against the entity making such a certification, CytRx shall give notice to Vical of such decision not to bring suit within thirty (30) days after receipt of notice of such certification. Vical may then, but is not required to, bring suit against the party that filed the certification. Any such suit by Vical, Merck, or CytRx shall either be in the name of Vical, in the name of Merck, or in the name of CytRx, or jointly by any combination of Vical, Merck and CytRx. For this purpose, the party not bringing suit shall execute such legal papers necessary for the prosecution of such suit as may be reasonably requested by the party bringing suit.

Enforcement and Defense Rights. (a) CytRx shall give Merck notice of either (i) any infringement of Patent Rights, or (ii) any misappropriation or misuse of CytRx Know-How, that may come to CytRx's attention. Merck and CytRx shall thereafter consult and cooperate fully to determine a course of action, including but not limited to the commencement of legal action by either or both Merck and CytRx, to terminate any infringement of Patent Rights or any misappropriation or misuse of CytRx Know-How. However, CytRx, upon notice to Merck, shall have the first right to initiate and prosecute such legal action at its own expense and in the name of CytRx and Merck, or to control the defense of any declaratory judgment action relating to Patent Rights or CytRx Know-How. CytRx shall promptly inform Merck if it elects not to exercise such first right and Merck shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of Merck and, if necessary, CytRx. (b) In the event that CytRx elects not to initiate and prosecute an action as provided in paragraph (a), and Merck elects to do so, the costs of any course of action to terminate infringement of Patent Rights or misappropriation or misuse of CytRx Know-How, including the costs of any legal action commenced or the defense of any declaratory judgment, shall be shared equally by CytRx and Merck. (c) For any action to terminate any infringement of Patent Rights or any misappropriation or misuse of CytRx Know-How, in the event that Merck is unable to initiate or prosecute such action solely in its own name, CytRx will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Merck to initiate litigation to prosecute and maintain such action. In connection with any action, Merck and CytRx will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each party shall keep the other informed of developments in any action or proceeding, including, to the extent permissible by law, the status of any settlement negotiations and the terms of any offer related thereto. (d) Any recovery obtained by either or both Merck and CytRx in connection with or as a result of any action contemplated by this section, whether by settlement or otherwise, shall be shared in order as follows: (i) the party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action; (ii) the other party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (iii) the amount of any recovery remaining shall then be allocated between the parties on a pro rata basis under which CytRx shall --- ---- receive a proportion based on the royalties it lost and Merck shall receive a proportion based on its lost profits.

Enforcement and Defense Rights. Subject to the Merck License and the rights ------------------------------ granted to Merck and the obligations of CytRx thereunder, CytRx agrees as follows: (a) CytRx shall give Merck Vical notice of either (i) any infringement of Patent Rights, or (ii) any misappropriation or misuse of CytRx Know-How, that may come to CytRx's attention. Merck Vical and CytRx shall thereafter consult and cooperate fully to determine a course of action, including but not limited to the commencement of legal action by either or both Merck any combination of Vical, Merck, and CytRx, to terminate any infringement of Patent Rights or any misappropriation or misuse of CytRx Know-How. However, CytRx, and / or Merck upon notice by CytRx to MerckVical, shall have the first right to initiate and prosecute such legal action at its CytRx's and / or Merck's own expense and in the name of CytRx and, if necessary, Merck and Merck/ or Vical, or to control the defense of any declaratory judgment action relating to Patent Rights or CytRx Know-How. CytRx shall promptly inform Vical if both CytRx and Merck if it elects elect not to exercise such first right and Merck Vical shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of Merck Vical and, if necessary, CytRx. (b) In the event that both CytRx elects and Merck elect not to initiate and prosecute an action as provided in paragraph (a), and Merck Vical elects to do so, the costs of any course of action to terminate infringement of Patent Rights or misappropriation or misuse of CytRx Know-How, including the costs of any legal action commenced or the defense of any declaratory judgment, shall be shared equally by CytRx and MerckVical. (c) For any action to terminate any infringement of Patent Rights or any misappropriation or misuse of CytRx Know-How, in the event that Merck Vical is unable to initiate or prosecute such action solely in its own name, CytRx will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Merck Vical to initiate litigation to prosecute and maintain such action. In connection with any action, Merck Vical and CytRx will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each party shall keep the other informed of developments in any action or proceeding, including, to the extent permissible by law, the status of any settlement negotiations and the terms of any offer related thereto. (d) Any recovery obtained by either or both Merck any combination of Vical, Merck, and CytRx in connection with or as a result of any action contemplated by this section, whether by settlement or otherwise, shall be shared in order as follows: (: i) the party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action; (ii) the other party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (iii) the amount of any recovery remaining shall then be allocated between the parties on a pro rata basis under which CytRx shall --- ---- receive a proportion based on the royalties it lost and Merck shall receive a proportion based on its lost profits.