Common use of Enforcement and Defense Clause in Contracts

Enforcement and Defense. (i) With respect to any Infringement that involves activity other than a [***] or with respect to any Patent Challenge not covered in Section 10.3(b)(iv), [***] will have the sole right (but not the obligation) to take the appropriate steps to enforce any Patent within the [***] against such Infringement or to defend such Patent Challenge (as applicable), at its sole cost and discretion. [***] may, in any such instance, take steps including the initiation, prosecution and control any suit, proceeding or other legal action by counsel of its own choice. [***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. (ii) To the extent any Infringement involves the [***], [***] will have the first right (but not the obligation), at its [***], to take the appropriate steps to enforce any Patent within the [***] against [***], including without limitation the initiation of a suit, proceeding or other legal action by counsel of its own choice. [***] will have the right, at its [***], to be represented in any such suit, proceeding, or action by counsel of its own choice. (iii) If [***] fails to take the appropriate steps to enforce any applicable [***] within [***] after the date one Party has provided notice to the other Party of a Field Infringement, then [***] will have the right (but not the obligation), at its sole expense, to take the appropriate steps to enforce such Patent(s), including without limitation the initiation of a suit, proceeding or other legal action by counsel of its own choice. [***] will have the right, at its [***], to be represented in any such suit, proceeding, or action by counsel of its own choice. (iv) The Party controlling any suit, action or proceeding against a [***] pursuant to Section 10.3(b)(ii) or 10.3(b)(iii) shall also have the right to control the response to any Patent Challenge asserted by the alleged infringer(s) as a counterclaim or affirmative defense in such suit, proceeding, or action.

Enforcement and Defense. (a) During the Term, each of the Parties shall promptly notify the other in the event they learn of (i) With respect any known or suspected infringement of SurModics Patent Rights or Program Patent Rights that cover a Product in the Field, or (ii) any known or suspected misappropriation or misuse of SurModics Know-How that covers a Product in the Field (the “Infringement Notice"). The Parties 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 SurModics, to terminate any Infringement that involves activity other infringement of the SurModics Patent Rights or Program Patent Rights or any misappropriation or misuse of the SurModics Know-How. However, SurModics, 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 SurModics (or in the name of Merck and SurModics in the case of Joint Program Patent Rights), or to control the defense of any declaratory judgment action relating to SurModics Patent Rights, Program Patent Rights or SurModics Know-How. SurModics shall inform Merck if it elects not to exercise such first right promptly, but in no event later than a [***] or with respect to any Patent Challenge not covered in Section 10.3(b)(iv)from the date of the Infringement Notice by either Party, [***] will and Merck shall thereafter have the sole right (but not the obligation) to take the appropriate steps to enforce any Patent within the [***] against either initiate and prosecute such Infringement action or to defend control the defense of such Patent Challenge (as applicable)declaratory judgment action in the name of Merck and, at its sole cost and discretionif necessary, SurModics. [***] may, in any such instance, take steps including Each Party shall have the initiation, prosecution and control any suit, proceeding or other legal action right to be represented by counsel of its own choice. .[***] Certain information on this page has been ] (b) In the event that SurModics 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 such infringement of SurModics Patent Rights, Program Patent Rights or misappropriation or misuse of SurModics Know-How, including without limitation the costs of any legal action commenced or the defense of any declaratory judgment, shall be borne solely by Merck. * Portions omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission. (c) For any action to terminate any infringement of SurModics Patent Rights or Program Patent Rights or any misappropriation or misuse of SurModics Know-How, in the event that Merck is unable to initiate or prosecute such action solely in its own name, [*] In connection with any action, Merck and SurModics will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Confidential treatment has been requested with respect Each Party shall keep the other informed of developments in any action or proceeding, including, to the omitted portionsextent permissible by law, consultation on and approval of any settlement, the status of any settlement negotiations and the terms of any offer related thereto; provided, that neither Party may enter into a settlement or consent judgment or other voluntary final disposition of a suit under this Section that materially affects the other Party’s rights or interests without the consent of the other Party, which consent shall not be unreasonably withheld, or delayed. (d) Any recovery (including without limitation royalties, settlement fees or other consideration) obtained by either or both Merck and SurModics 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) [*] (ii) To the extent any Infringement involves the [***], [***] will have the first right (but not the obligation), at its [***], to take the appropriate steps to enforce any Patent within the [***] against [***], including without limitation the initiation of a suit, proceeding or other legal action by counsel of its own choice. [***] will have the right, at its [***], to be represented in any such suit, proceeding, or action by counsel of its own choice. (iii) If [***] fails ] (e) Notwithstanding anything herein to take the appropriate steps contrary, the Parties’ rights and obligations under this Section 7.4 shall apply only to enforce the extent that any applicable infringement, misappropriation or misuse pertains to SurModics Patent Rights, Program Patent Rights or SurModics Know-How that claim or cover one or more Products and this Section 7.4 shall not apply, and Merck shall have no rights hereunder, to the extent that any infringement, misappropriation or misuse pertains to SurModics Patent Rights, Program Patent Rights or SurModics Know-How that claim or cover any I-vation Platform incorporating a compound(s) other than TA Compounds, [***] within [***] after the date one Party has provided notice to the other Party of a Field Infringement, then [***] will have the right (but not the obligation), at its sole expense, to take the appropriate steps to enforce such Patent(s), including without limitation the initiation of a suit, proceeding or other legal action by counsel of its own choice. [***] will have the right, at its [***], to be represented in any such suit, proceeding, or action by counsel of its own choice. (iv) The Party controlling any suit, action or proceeding against a [***] pursuant to Section 10.3(b)(ii) or 10.3(b)(iii) shall also have the right to control the response to any Patent Challenge asserted by the alleged infringer(s) as a counterclaim or affirmative defense in such suit, proceeding, or action.

Enforcement and Defense. (a) If either Party becomes aware of any Third Party activity, including any Development activity (whether or not an exemption from infringement liability for such Development activity is available under applicable Law), that infringes (or that is directed to the Development of a product that would infringe) a Clearside Patent Right or Arctic Vision Patent Certain information has been excluded from this agreement (indicated by “[***]”) because such information (i) With respect is not material and (ii) would be competitively harmful if publicly disclosed. Right, then the Party becoming aware of such activity shall give prompt written notice to any the other Party regarding such alleged infringement or misappropriation (collectively, “Infringement that involves activity other than a Activity”). (b) [***] or with respect shall have the first right, but not the obligation, to control and attempt to resolve any Infringement Activity related to the product-specific Clearside Patent Challenge not covered Rights in Section 10.3(b)(iv), the Territory by commercially appropriate steps [***] will have the sole right (but not the obligation) to take the appropriate steps to enforce any Patent within the [***] against such Infringement or to defend such Patent Challenge (as applicable)], at its sole cost and discretion. [***] may, in any such instance, take steps including the initiation, prosecution and control any suit, proceeding filing of an infringement or other legal action by misappropriation suit using counsel of its own choice. [***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. (ii) To the extent any Infringement involves the [***], [***] will shall have the first right (right, but not the obligation), at its [***], to take control and attempt to resolve any Infringement Activity related to the other Clearside Patent Rights in the Territory by commercially appropriate steps to enforce any Patent within the [***] against [***], including without limitation the initiation filing of a suit, proceeding an infringement or other legal action by misappropriation suit using counsel of its own choice. [***] will have shall (i) keep [***] reasonably informed regarding such infringement or misappropriation suit (including by providing [***] with drafts of each filing within a reasonable period before the rightdeadline for such filing and promptly providing [***] with copies of all final filings and correspondence), at its (ii) consult with [***] on such infringement or misappropriation suit, and (iii) consider in good faith all comments from [***] regarding such infringement or misappropriation suit and incorporate all reasonable comments or suggested changes proposed by [***], except any comments or suggested changes that would reasonably be expected to have a negative impact on [***]. [***] shall be represented [***] in any connection with such infringement or misappropriation suit, proceeding, or action by counsel of its own choice. (iii) . If [***] fails to take resolve such Infringement Activity in the appropriate steps Territory, or to enforce any applicable initiate a suit with respect thereto by the date that is [***] within before any deadline for taking action to avoid any loss of material enforcement rights or remedies, then, [***] after the date one Party has provided notice may, subject to the other Party of a Field Infringementfollowing sentence, then have the right, but not the obligation, to attempt to resolve such Infringement Activity by commercially appropriate steps [***] will have the right (but not the obligation), at its sole expense, to take the appropriate steps to enforce such Patent(s)], including without limitation the initiation filing of a suit, proceeding an infringement or other legal action by misappropriation suit using counsel of its own choice. In the circumstance where [***] will have has the right, at its right to resolve such Infringement Activity: [***]. (c) Any amounts recovered by a Party as a result of an action pursuant to Section 9.03(b), whether by settlement or judgment, shall be [***]. (d) In any event, at the request and expense of the Party bringing an infringement or misappropriation action under Section 9.03(b), the other Party shall provide reasonable assistance in any such action (including entering into a common interest agreement if reasonably deemed necessary by any Party) and be joined as a party to the suit if necessary for the initiating or defending Party to bring or continue such suit. Neither Party may settle any action or proceeding brought under Section 9.03(b), or knowingly take any other action in the course thereof, in a manner that materially adversely affects the other Party’s interest in any Clearside Patent Rights or Arctic Vision Patent Rights without the written consent of such other Party. Each Party shall always have the right to be represented in any such suit, proceeding, or action by counsel of its own choice. (iv) The selection and its own expense in any suit or other action instituted by the other Party controlling any suit, action or proceeding against a [***] pursuant to Section 10.3(b)(ii) or 10.3(b)(iii) shall also have the right to control the response to any Patent Challenge asserted by the alleged infringer(s) as a counterclaim or affirmative defense in such suit, proceeding, or action9.03(b).

Enforcement and Defense. 7.3.1 The Parties shall give notice to each other of either (i) With respect to any Infringement that involves activity other than a infringement of [***] Patent Rights, Joint Patent Rights, or with respect to Joint Platform Patent Rights, or (ii) any Patent Challenge not covered in Section 10.3(b)(iv), misappropriation or misuse of [***] will have the sole right (but not the obligation) Know-How, that may come to take the appropriate steps to enforce any Patent within the [***] against such Infringement or to defend such Patent Challenge (as applicable), at its sole cost and discretionattention. [**] and [**] mayshall thereafter consult and cooperate fully to determine a course of action, in any such instance, take steps including but not limited to the initiation, prosecution and control any suit, proceeding or other commencement of legal action by counsel of its own choice. either or both [***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. (ii) To the extent any Infringement involves the [***], [***] will have the first right (but not the obligation), at its [***], to take the appropriate steps to enforce terminate any Patent within the infringement of [***] against Patent Rights, Joint Patent Rights, or Joint Platform Patent Rights. [***], including without limitation upon notice to [**], shall have the initiation of a suit, proceeding or other first right to initiate and prosecute such legal action by counsel of at its own choiceexpense and in the name of [**] and/or [**], or to control the defense of any declaratory judgment action relating to [**] Patent Rights or Joint Patent Rights. [***] will have the right], at its upon notice to [***], shall have the first right to initiate and prosecute such legal action at its own expense and in the name of [**] and/or [**], or to control the defense of any declaratory judgment action relating to Joint Platform Patent Rights. Each Party shall have the right to be represented in any such suit, proceeding, or action by counsel of its own choice. (iii) 7.3.2 [**] shall promptly inform [**] if it elects not to exercise its first right under Section 7.3.1 to initiate and prosecute legal action related to [**] Patent Rights or Joint Patent Rights, and [**] 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 [**] and, if necessary, [**]. If [***] fails elects to take do so, the appropriate steps costs of any agreed-upon course of action to enforce any applicable terminate infringement of [***] within [***] after the date one Party has provided notice to the other Party of a Field Infringement, then [***] will have the right (but not the obligation), at its sole expense, to take the appropriate steps to enforce such Patent(s)Patent Rights or Joint Patent Rights, including without limitation the initiation costs of a suit, proceeding or other any legal action commenced or the defense of any declaratory judgment, shall be paid by counsel of its own choice[**]. [***] will have the right, at its shall promptly inform [**] if it elects not to exercise its first right under Section 7.3.1 to initiate and prosecute legal action related to Joint Platform Patent Rights, and [**] 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 [**] and, if necessary, Company. If [**] elects to do so, the costs of any agreed-upon course of action to terminate infringement of Joint Platform Patent Rights, including without limitation the costs of any legal action commenced or the defense of any declaratory judgment, shall be paid by [**], . Each Party shall have the right to be represented in any such suit, proceeding, or action by counsel of its own choice. (iv) The Party controlling 7.3.3 For any suit, action or proceeding against a to terminate any infringement of [**] Patent Rights, Joint Patent Rights, or Joint Platform Patent Rights, or any misappropriation or misuse of [**] Know-How, in the event that a Party is unable to initiate or prosecute such action solely in its own name, the other Party will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for the Party to initiate litigation to prosecute and maintain such action under this Section 7.3 or otherwise. In connection with any action or potential action, [**] and [**] will cooperate fully and will provide each other with any information or assistance that either may reasonably request, including cooperating with regard to any pre-litigation review of the [**] Patent Rights, Joint Patent Rights, and Joint Platform Patent Rights. Each Party shall keep the other informed of developments in any action or proceeding. For any proceeding to terminate any infringement of [**] Patent Rights, Joint Patent Rights, or Joint Platform Patent Rights that is not controlled by [**] under this Section 7.3 and not related to infringement of the [**] Platform Patent Rights, [**] shall obtain prior approval from [**] of any settlement offer or settlement agreement. 7.3.4 Any recovery obtained by either or both [**] and [**] in connection with or as a result of any action contemplated by Section 7.3, whether by settlement or otherwise, shall be shared in order as follows: (a) the Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action; (b) the other Party shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and (c) [**]. 7.3.5 Each Party shall inform the other Party of any certification regarding any [**] Patent Rights or Joint Patent Rights it has received pursuant to Section 10.3(b)(iieither 21 U.S.C. §§355(b)(2)(A)(iv) or 10.3(b)(iii(j)(2)(A)(vii)(IV), or its successor provisions or any similar provisions in a country in the Territory other than the United States, and shall provide a copy of such certification within [**] ([**]) days of receipt. [**] has the first right to initiate and prosecute any legal action as a result of such certification; provided, however, that [**] shall also inform [**] of such decision to initiate such action within [**] ([**]) days of receipt of the certification, after which time [**] shall have the right to initiate and prosecute such action. Regardless of which Party has the right to initiate and prosecute such action, both Parties shall, as soon as practicable after receiving notice of such certification, convene and consult with each other regarding the appropriate course of conduct for such action. The non-initiating Party shall have the right to be kept fully informed and participate in decisions regarding the appropriate course of conduct for such action, and the right to join and participate in such action. [**] and [**] rights and obligations with respect to the prosecution of any legal action as a result of such certification and any recovery obtained as a result of such legal action shall be as defined in Section 7.3.3 and Section 7.3.4. 7.3.6 [**] shall inform [**] of any matter of which it becomes aware concerning the submission of an application to the U.S. Food & Drug Administration under Section 351(k) of the U.S. Public Health Services Act (42 USC 262(k)), or to a similar agency under any similar provisions in a country in the Territory, seeking approval of a biosimilar or interchangeable biological product with regard to which [**] is a reference product sponsor involving [**] Patent Rights or Joint Patent Rights (“Biosimilar Application”). [**] shall provide [**] with the unopened Biosimilar Application within [**] ([**]) days of receipt. Notwithstanding the foregoing provisions of Sections 7.3.1-7.3.5, [**] shall have the sole right, in its discretion, to control any legal action and any activity taken to resolve a dispute with respect to any infringement of [**] Patent Rights or Joint Patent Rights with respect to any Biosimilar Application, including selection of any patents for listing under 42 U.S.C. §262(l), and [**] shall have no rights in connection therewith. For any action with respect to any infringement of [**] Patent Rights or Joint Patent Rights with respect to any Biosimilar Application, in the event that [**] is unable to initiate or prosecute such action solely in its own name, [**] will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for [**] to initiate, prosecute, and maintain such action. In connection with any action, [**] shall cooperate with [**] and provide [**] with information and assistance that [**] may reasonably request, including as defined in Section 7.3.3. 7.3.7 [**] [**] Patent Rights. Notwithstanding anything to the contrary in this Agreement, [**] shall have the sole right, in its sole discretion, to initiate and prosecute legal action at its own expense to terminate (i) any infringement of [**] Patent Rights, or (ii) any misappropriation or misuse of [**] Know-How, or to control the response defense of any declaratory judgment action relating to any the foregoing or otherwise relating to [**] Patent Challenge asserted by the alleged infringer(s) as a counterclaim Rights or affirmative defense in such suit, proceeding, or action[**] Know-How.

Enforcement and Defense. (a) NITROMED shall give MERCK notice of either (i) With respect any infringement of Patent Rights, (ii) any misappropriation or misuse of NITROMED Know-How; or (iii) infringement, misappropriation or misuse of the Research Information and Inventions, that may come to any Infringement that involves activity other than NITROMED's attention. MERCK and NITROMED shall thereafter consult and cooperate fully to determine a [***] or with respect to any Patent Challenge not covered in Section 10.3(b)(iv)course of action, [***] will have the sole right (including but not limited to the obligation) to take the appropriate steps to enforce any Patent within the [***] against such Infringement or to defend such Patent Challenge (as applicable), at its sole cost and discretion. [***] may, in any such instance, take steps including the initiation, prosecution and control any suit, proceeding or other commencement of legal action by counsel either or both MERCK and NITROMED, to terminate any infringement of its own choicePatent Rights, Research Information and Inventions or any misappropriation or misuse of NITROMED Know-How. [***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect However, NITROMED, upon notice to the omitted portions. (ii) To the extent any Infringement involves the [***]MERCK, [***] will shall have the first right to initiate and prosecute such legal action (but not other than for the obligation), MERCK Information and Inventions) at its own expense and in the name of NITROMED and MERCK, or to control the defense of any declaratory judgment action relating to Patent Rights, Research Information and Inventions or NITROMED Know-How. NITROMED 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, NITROMED and the Parties shall share the expense of such suit equally; provided that MERCK shall pay all costs and shall recoup NITROMED's [***], to take the appropriate steps to enforce any Patent within the percent ([***] ]%) share as a set-off against royalties or milestones until NITROMED's share has been fully paid; provided that the royalty payment to NITROMED in any Calendar Quarter shall not be reduced by more than [***], including without limitation the initiation of a suit, proceeding or other legal action by counsel of its own choice. ] percent ([***] will ]%) of the monies otherwise owed to NITROMED; and any amounts not able to be reduced due to the immediately foregoing limitation shall be carried forward to future Calendar Quarters for crediting against future royalties in such country. Each Party shall have the right, at its [***], right to be represented in any such suit, proceeding, or action by counsel of its own choice. (iiib) If [***] fails For any action to take terminate any infringement of Patent Rights or any misappropriation or misuse of NITROMED Know-How, in the appropriate steps event that MERCK is unable to enforce initiate or prosecute such action solely in its own name, NITROMED 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. (c) Prior to commencing any applicable [***] within [***] after the date one action pursuant to subsections (a) or (b) above, each Party has provided notice to shall consult with the other Party and shall consider the views of the other Party regarding the advisability of the proposed action. In connection with any action, MERCK and NITROMED will cooperate fully and will provide each other with any information or assistance that either may reasonably request any such action. MERCK shall keep NITROMED informed of developments in any action or proceeding, including the consultation and approval of any settlement negotiations and the terms of any offer related thereto. Neither Party shall enter into any settlement, consent judgment, or other voluntary final disposition without the prior written consent of the other Party. (d) Any recovery obtained by either or both MERCK and NITROMED in connection with or as a Field Infringementresult of any action contemplated by this Section 7.3, then [***] will have whether by settlement or otherwise, shall be shared in order as follows: (i) the right Party which initiated and prosecuted the action shall recoup all of its costs and expenses incurred in connection with the action; (but not ii) the obligation), at its sole expenseother Party shall then, to take the appropriate steps extent possible, recover its costs and expenses incurred in connection with the action; (iii) the amount of any recovery remaining from ordinary damages shall then be allocated between the Parties such that MERCK shall receive an amount equal to enforce such Patent(s), including without limitation its lost profits or a reasonable royalty on the initiation of a suit, proceeding or other legal action by counsel of its own choice. [***] will have the right, at its [***], to be represented in any such suit, proceedinginfringing sales, or action whichever measure of damages the court shall have applied, and that NITROMED shall receive a reasonable approximation of the royalties and other amounts that MERCK would have paid to NITROMED if MERCK had sold the infringing products rather than the infringer, and on a pro rata basis taking into consideration the relative economic losses suffered by counsel of its own choice.each Party; and (iv) The Party controlling the amount of any suit, action recovery remaining from special or proceeding against a [***] punitive damages shall be shared equally by the Parties in any such award. (e) NITROMED shall inform MERCK of any certification regarding any Patent Rights it has received pursuant to Section 10.3(b)(iieither 21 U.S.C. ss.ss.355(b)(2)(A)(iv) or 10.3(b)(iii(j)(2)(A)(vii)(IV) or its successor provisions or any similar provisions in a country in the Territory other than the United States and shall also provide MERCK with a copy of such certification within five (5) days of receipt. NITROMED's and MERCK'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 as defined in Sections 7.3(a)-(d) hereof; provided, however, NITROMED shall exercise its first right to initiate and prosecute any action and shall inform MERCK of such decision within ten (10) days of receipt of the certification, after which time MERCK shall have the right to control initiate and prosecute such action. (f) In the response to any Patent Challenge asserted by the alleged infringer(s) as event that a counterclaim Third Party brings an action against NITROMED or affirmative defense in such suitMERCK alleging invalidity, proceedingunenforceability, or non-infringement of the Patent Rights, the Parties shall cooperate as defined above and shall mutually agree upon an appropriate course of action.

Enforcement and Defense. (a) For Funded Patent Rights, ZNOMICS shall give MERCK notice of either (i) With respect any infringement of Funded Patent Rights, or (ii) any misappropriation or misuse of ZNOMICS Know-How, that may come to ZNOMICS's attention. MERCK and ZNOMICS 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 ZNOMICS. to terminate any Infringement that involves activity other than a [***] infringement of Funded Patent Rights or with respect any misappropriation or misuse of ZNOMICS Know-How. However, ZNOMICS. upon notice to any Patent Challenge not covered in Section 10.3(b)(iv)MERCK, [***] will shall have the sole first right (but not to initiate and prosecute such legal action at its own expense and in the obligation) to take the appropriate steps to enforce any Patent within the [***] against such Infringement name of ZNOMICS and MERCK, or to defend control the defense of any declaratory judgment action relating to Funded Patent Rights or ZNOMICS Know-How. ZNOMICS shall promptly inform MERCK if it elects not to exercise such Patent Challenge (as applicable)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, at its sole cost and discretionif necessary, ZNOMICS. [***] may, in any such instance, take steps including Each Party shall have the initiation, prosecution and control any suit, proceeding or other legal action right to be represented by counsel of its own choice. [***] . (b) In the event that ZNOMICS elects not to initiate and prosecute an action as provided in paragraph (a), and MERCK elects to do so, the costs of any agreed-upon course of action to terminate infringement of Funded Patent Rights or misappropriation or misuse of ZNOMICS Know-How, including without limitation the costs of any legal * Certain information on portions of this page has exhibit have been omitted pursuant to a request for confidential treatment and those portions have been filed separately with the Securities and Exchange Commission. Confidential treatment action commenced or the defense of any declaratory judgment, shall be shared equally by ZNOMICS and MERCK. (c) For any action to terminate any infringement of Funded Patent Rights or any misappropriation or misuse of ZNOMICS Know-How, in the event that MERCK is unable to initiate or prosecute such action solely in its own name, ZNOMICS 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 ZNOMICS 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, consultation on and approval of any settlement, the status of any settlement negotiations and the terms of any offer related thereto. (d) Any recovery obtained by either or both MERCK and ZNOMICS 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 taking into consideration the relative economic losses suffered by each Party. (e) ZNOMICS shall inform MERCK of any certification regarding any Patent Rights it has been requested received pursuant to either 21 U.S.C. §§355(b)(2)(A}(iv) or U)(2)(A)(vii)(IV) or its successor provisions, or any similar provisions in a country in the Territory other than the United States, and shall provide MERCK with a copy of such certification within five (5) days of receipt. ZNOMICS's and MERCK's rights with respect to the omitted portions. 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 as defined in paragraphs 7.4 (iia)-(d) To the extent any Infringement involves the [***]hereof; provided, [***] will have the however, that ZNOMICS shall exercise its first right to initiate and prosecute any action and shall inform MERCK of such decision within ten (but not 10) days of receipt of the obligation)certification, at its [***], to take the appropriate steps to enforce any Patent within the [***] against [***], including without limitation the initiation of a suit, proceeding or other legal action by counsel of its own choice. [***] will have the right, at its [***], to be represented in any such suit, proceeding, or action by counsel of its own choice. (iii) If [***] fails to take the appropriate steps to enforce any applicable [***] within [***] after the date one Party has provided notice to the other Party of a Field Infringement, then [***] will have the right (but not the obligation), at its sole expense, to take the appropriate steps to enforce such Patent(s), including without limitation the initiation of a suit, proceeding or other legal action by counsel of its own choice. [***] will have the right, at its [***], to be represented in any such suit, proceeding, or action by counsel of its own choice. (iv) The Party controlling any suit, action or proceeding against a [***] pursuant to Section 10.3(b)(ii) or 10.3(b)(iii) which time MERCK shall also have the right to control initiate and prosecute such action. Regardless of which Party has the response right to any Patent Challenge asserted by initiate and prosecute such action, both Partjes shall, as soon as practicable after receiving notice of such certification, convene and consult with each other regarding the alleged infringer(s) as a counterclaim or affirmative defense appropriate course of conduct for such action. The non-initiating Party shall have the right to be kept fully informed and participate in decisions regarding the appropriate course of conduct for such action, and the right to join and participate in such suit, proceeding, or action.

Enforcement and Defense. (a) Each of EXELIXIS and MERCK shall give the other Party notice of either (i) With respect any infringement of [ * ] Patent Rights and/or [ * ] Patent Rights, or (ii) any misappropriation or misuse of [ * ] Know-How, that may come to any Infringement that involves activity other than either EXELIXIS’ or MERCK’s attention. MERCK and EXELIXIS shall thereafter consult and cooperate fully to determine a [***] or with respect to any Patent Challenge not covered in Section 10.3(b)(iv)course of action, [***] will have the sole right (including but not limited to the obligation) to take the appropriate steps to enforce any Patent within the [***] against such Infringement or to defend such Patent Challenge (as applicable), at its sole cost and discretion. [***] may, in any such instance, take steps including the initiation, prosecution and control any suit, proceeding or other commencement of legal action by counsel either or both MERCK and EXELIXIS, to terminate any infringement of its own choice[ * ] Patent Rights and/or [ * ] Patent Rights or any misappropriation or misuse of [ * ] Know-How. [***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. (ii) To the extent any Infringement involves the [***[ * ], [***] will upon written notice to [ * ], shall have the first right (but not the obligation), to initiate and prosecute such legal action at its [***own expense and in the name of [ * ], or to take control the appropriate steps defense of any declaratory judgment action relating to enforce any [ * ] Patent within the [***Rights, [ * ] against [***]Know-How, including without limitation the initiation of a suit, proceeding or other legal action by counsel of its own choice[ * ] Patent Rights. [***[ * ] will shall promptly notify [ * ] in writing if it elects not to exercise such first right and [ * ] shall thereafter have the right, at its [***right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of [ * ], . Each Party shall have the right to be represented in any such suit, proceeding, or action by counsel of its own choice. (iiib) If [***In the event that [ * ] fails elects not to take the appropriate steps to enforce any applicable [***] within [***] after the date one Party has initiate and prosecute an action as provided notice to the other Party of a Field Infringement, then [***] will have the right in paragraph (but not the obligationa), at its sole expenseand [ * ] elects to do so, the costs of any agreed-upon course of action to take the appropriate steps to enforce such Patent(s)terminate infringement of [ * ] Patent Rights or [ * ] Patent Rights or misappropriation or misuse of [ * ] Know-How, including without limitation the initiation costs of a suit, proceeding or other any legal action by counsel commenced or the defense of its own choice. [***] will have the rightany declaratory judgment, at its [***shall be [ * ], to be represented in any such suit, proceeding, or action by counsel of its own choice. (ivc) The For any action to terminate any infringement of [ * ] Patent Rights or [ * ] Patent Rights or any misappropriation or misuse of [ * ] Know-How, in the event that [ * ] is unable to initiate or prosecute such action solely in its own name, [ * ] will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for [ * ] to initiate litigation to prosecute and maintain such action. In connection with any action, MERCK and EXELIXIS will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each Party controlling shall keep the other informed of developments in any suit, action or proceeding against a [***] pursuant proceeding, including, to Section 10.3(b)(ii) or 10.3(b)(iii) the extent permissible by law, the consultation and approval of any settlement negotiations and the terms of any offer related thereto. The foregoing notwithstanding, neither Party shall also have the right to control settle any patent infringement litigation under this Section 6.4 without the response to prior written consent of the other Party if such settlement would: (i) impose an injunction or other similar restriction of the other Party; (ii) impose any financial obligations on the other Party; (iii) materially diminish or adversely affect the scope, exclusivity or duration of any Patent Challenge asserted Rights licensed under this Agreement; and/or (iv) would constitute an admission of guilt or liability by or on behalf of the alleged infringer(sother Party, such consent not to be unreasonably withheld, delayed or conditioned. (d) Any recovery obtained by either or both MERCK and EXELIXIS in connection with or as a counterclaim result of any action contemplated by this Section 6.4, whether by settlement or affirmative defense 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 as follows: (A) [ * ]; and (B) [ * ]. (e) [ * ] shall inform [ * ] of any certification regarding any [ * ] Patent Rights it has received pursuant to either 21 U.S.C. §§355(b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) or it successor provisions or any similar provisions in a country in the Territory other than the United States and shall provide [ * ] with a copy of such suitcertification within [ * ] of receipt. [ * ] shall inform [ * ] of any certification regarding any [ * ] Patent Rights it has received pursuant to either 21 U.S.C. §§355(b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) or it successor provisions or any similar provisions in a country in the Territory other than the United States and shall provide EXELIXIS with a copy of such certification within [ * ] of receipt. EXELIXIS’ and MERCK’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 as defined in Sections 6.4(a)-(d) hereof; provided, proceedinghowever, or [ * ] shall exercise its first right to initiate and prosecute any action and shall inform [ * ] of such decision within [ * ] of receipt of the certification, after which time [ * ] shall have the right to initiate and prosecute such action.

Enforcement and Defense. (a) For Funded Patent Rights, ZNOMICS shall give MERCK notice of either (i) With respect any infringement of Funded Patent Rights, or (ii) any misappropriation or misuse of ZNOMICS Know-How, that may come to any Infringement that involves activity other than ZNOMICS's attention. MERCK and ZNOMICS shall thereafter consult and cooperate fUlly to determine a [***] or with respect to any Patent Challenge not covered in Section 10.3(b)(iv)course of action, [***] will have the sole right (including but not limited to the obligation) to take the appropriate steps to enforce any Patent within the [***] against such Infringement or to defend such Patent Challenge (as applicable), at its sole cost and discretion. [***] may, in any such instance, take steps including the initiation, prosecution and control any suit, proceeding or other commencement of legal action by counsel either or both MERCK and ZNOMICS. to terminate any infringement of its own choiceFunded Patent Rights or any misappropriation or misuse of ZNOMICS Know-How. [***] Certain information on this page has been omitted and filed separately with the Securities and Exchange CommissionHowever, ZNOMICS. Confidential treatment has been requested with respect upon notice to the omitted portions. (ii) To the extent any Infringement involves the [***]MERCK, [***] will shall have the first right (but not the obligation), to initiate and prosecute such legal action at its [***]own expense and in the name of ZNOMICS and MERCK, or to take control the appropriate steps defense of any declaratory judgment action relating to enforce any Funded Patent within the [***] against [***], including without limitation the initiation of a suit, proceeding Rights or other legal action by counsel of its own choiceZNOMICS Know-How. [***] will ZNOMICS shall promptly inform MERCK if it elects not to exercise such first right and MERCK shall thereafter have the rightright to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of MERCK and, at its [***]if necessary, ZNOMICS. Each Party shall have the right to be represented in any such suit, proceeding, or action by counsel of its own choice. (iiib) If [***] fails In the event that ZNOMICS elects not to take the appropriate steps to enforce any applicable [***] within [***] after the date one Party has initiate and prosecute an action as provided notice to the other Party of a Field Infringement, then [***] will have the right in paragraph (but not the obligationa), at its sole expenseand MERCK elects to do so, the costs of any agreed-upon course of action to take the appropriate steps to enforce such Patent(s)terminate infringement of Funded Patent Rights or misappropriation or misuse of ZNOMICS Know-How, including without limitation the initiation costs of a suit, proceeding or other any legal action commenced or the defense of any declaratory judgment, shall be shared equally by counsel of its own choice. [***] will have the right, at its [***], to be represented in any such suit, proceeding, or action by counsel of its own choiceZNOMICS and MERCK. (ivc) The For any action to terminate any infringement of Funded Patent Rights or any misappropriation or misuse of ZNOMICS Know-How, in the event that MERCK is unable to initiate or prosecute such action solely in its own name, ZNOMICS 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 ZNOMICS will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each Party controlling shall keep the other informed of developments in any suit, action or proceeding against proceeding, including, to the extent permissible by law, consultation on and approval of any settlement, the status of any settlement negotiations and the terms of any offer related thereto. (d) Any recovery obtained by either or both MERCK and ZNOMICS 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 taking into consideration the relative economic losses suffered by each Party. (e) ZNOMICS shall inform MERCK of any certification regarding any Patent Rights it has received pursuant to Section 10.3(b)(iieither 21 U.S.C. §§355(b)(2)(A}(iv) or 10.3(b)(iiiU)(2)(A)(vii)(IV) or its successor provisions, or any similar provisions in a country in the Territory other than the United States, and shall also provide MERCK with a copy of such certification within five (5) days of receipt. ZNOMICS's and MERCK'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 as defined in paragraphs 7.4 (a)-(d) hereof; provided, however, that ZNOMICS shall exercise its first right to initiate and prosecute any action and shall inform MERCK of such decision within ten (10) days of receipt of the certification, after which time MERCK shall have the right to control initiate and prosecute such action. Regardless of which Party has the response right to any Patent Challenge asserted by initiate and prosecute such action, both Partjes shall, as soon as practicable after receiving notice of such certification, convene and consult with each other regarding the alleged infringer(s) as a counterclaim or affirmative defense appropriate course of conduct for such action. The non-initiating Party shall have the right to be kept fully informed and participate in decisions regarding the appropriate course of conduct for such action, and the right to join and participate in such suit, proceeding, or action.