Common use of Enforcement and Defense Clause in Contracts

Enforcement and Defense. 7.5.1 Each Party shall give the other Party notice of either (i) any infringement of Arvinas Patent Rights or Joint Patent Rights, or (ii) any misappropriation or misuse of Arvinas Know-How, in each case that is reasonably relevant to the Development or Commercialization of any Compound or Product exclusively licensed by Pfizer hereunder and that comes to such Party’s attention. Pfizer and Arvinas shall thereafter consult and cooperate fully to determine a course of action, including the commencement of legal action by either or both Pfizer and Arvinas, to terminate any such infringement of Arvinas Patent Rights or Joint Patent Rights or any misappropriation or misuse of Arvinas Know-How, subject to the provisions set forth below. 7.5.2 Except as provided under Section 7.6 or any mutually agreed amendment made in accordance with Section 7.2.2(f), Arvinas, upon notice to Pfizer, shall have the first right to initiate and prosecute any such legal action at its own expense, or to control the defense of any declaratory judgment action, relating to Arvinas Patent Rights or Arvinas Know-How. Pfizer shall have the right to join any such action initiated by Arvinas to the extent permissible by law. With respect to any such legal action regarding an infringement of any Arvinas Patent Right that directly impacts any exclusive rights of Pfizer hereunder regarding any Compound or Product, if Arvinas does not initiate any such legal action, at least [**] prior to the deadline for bringing an action without resulting loss of rights, of any written request by Pfizer for Arvinas to do so following consultation in accordance with Section 7.5.1, Pfizer shall have the right, but shall not be obligated, to bring an infringement action with respect to such infringement solely to the extent directly related to Pfizer’s exclusive rights hereunder (i.e., not related to any PROTACs directed to any target other than a Target) at its own expense, and under its own direction and control, or settle any such action, proceeding or dispute by license, subject to the following. Arvinas shall have the right to participate and be represented in any such suit by its own counsel at its own expense, provided that Pfizer shall retain overall responsibility for the prosecution of such suit or proceedings in such event. No settlement of any such action or proceeding which restricts the scope, or adversely affects the enforceability, of an Arvinas Patent Right, or which could be reasonably expected to have a material adverse financial impact on Arvinas, may be entered into by Pfizer without the prior written consent of Arvinas, which consent shall not be unreasonably withheld, delayed or conditioned. 7.5.3 Pfizer, upon notice to Arvinas, shall have the first right to initiate and prosecute any legal action at its own expense and in the name of Arvinas and Pfizer, or to control the defense of any declaratory judgment action, relating to Joint Patent Rights. Pfizer shall promptly inform Arvinas if it elects not to exercise such first right and Arvinas shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action. Each Party shall have the right to be represented by counsel of its own choice. No settlement of any such action or proceeding which restricts the scope, or adversely affects the enforceability, of any Joint Patent Right, or which could reasonably be expected to have a material adverse financial impact on the other Party, may be entered into by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld, delayed or conditioned. 7.5.4 For any action to terminate any infringement of Arvinas Patent Rights or Joint Patent Rights, or any misappropriation or misuse of Arvinas Know-How, in the event that a Party is unable to initiate or prosecute any such action permitted hereunder 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 such Party to initiate litigation to prosecute and maintain such action. If Yale University is required to join as a party in such action, Arvinas shall use all reasonable efforts to cause Yale University to join and provide reasonable assistance. In connection with any action brought hereunder, Pfizer and Arvinas will cooperate fully and will provide each other with any information or assistance that either may reasonably request. The requesting Party shall reimburse the other Party for the documented external costs the other Party reasonably incurs in providing any such assistance as specifically requested in writing. Each Party shall keep the other informed of developments in any action or proceeding, hereunder including, to the extent permissible by applicable Laws, consultation on and approval of any settlement, the status of any settlement negotiations and the terms of any offer related thereto. 7.5.5 If either Party brings an action or proceeding under this Section 7.5 and subsequently ceases to pursue or withdraws from such action or proceeding, it shall promptly notify the other Party and the other Party may substitute itself for the withdrawing Party under the terms of this Section 7.5. 7.5.6 In the event that either Party exercises the rights conferred in this Section 7.5 and recovers any damages or other sums in such action, suit or proceeding or in settlement thereof, such damages or other sums recovered shall first be applied to all out-of-pocket costs and expenses incurred by the Parties in connection therewith, including attorneys’ fees. Except as otherwise provided in this Section 7.5, each Party will bear its own expenses with respect to any suit or other proceeding against an infringer. If such recovery is insufficient to cover all out-of-pocket costs and expenses of both Parties, it shall be shared in proportion to the total of such costs and expenses incurred by each Party. If after such reimbursement any funds shall remain from such damages or other sums recovered, such funds shall be divided as follows: (i) as to ordinary damages based on lost sales or profit, a) if Pfizer is the Party bringing suit or bears [**] of the out-of-pocket costs and expenses of Arvinas in such action, or if Arvinas is the Party bringing suit but Pfizer has agreed as of the initiation of such action to bear [**] percent ([**]%) of the out-of-pocket costs and expenses incurred by Arvinas in connection therewith, Pfizer shall retain such funds and Arvinas shall receive payment equivalent to royalty payments that would have been due to Arvinas under this Agreement had the infringing sales that Pfizer lost to the infringer been made by Pfizer, c) and if Arvinas is the Party bringing suit and Pfizer has not agreed as of the initiation of such action to bear [**] percent ([**]%) of the out-of-pocket costs and expenses incurred by Arvinas in connection therewith, Arvinas shall retain [**] percent ([**]%) of such funds and provide [**] percent ([**]%) thereof to Pfizer, and (ii) as to special or punitive damages, the Parties shall collect in proportion to the ordinary damages received, provided that Arvinas shall in any event receive at least [**] percent ([**]%) thereof. 7.5.7 [**]. 7.5.8 [**]

Enforcement and Defense. 7.5.1 Each Party shall give the other Party notice of either (i) any infringement of Arvinas Patent Rights, Collaboration Compound Patent Rights or Joint Patent Rights, or (ii) any misappropriation or misuse of Arvinas Know-HowLicensed IP, in each case that is reasonably relevant to the Development or Commercialization of any Collaboration Compound or Product exclusively licensed by Pfizer Bayer hereunder and that comes to such Party’s attention. Pfizer Bayer and Arvinas shall thereafter consult and cooperate fully to determine a course of action, including the commencement of legal action by either or both Pfizer Bayer and Arvinas, to terminate any such infringement of Arvinas Patent Rights Rights, Collaboration Compound Patent Rights, or Joint Patent Rights Rights, or any such misappropriation or misuse of Arvinas Know-HowLicensed IP, subject to the provisions set forth below. 7.5.2 Except as provided under Section 7.6 or any mutually agreed amendment made in accordance with Section 7.2.2(f)7.6, Arvinas, upon notice to PfizerBayer, shall have the first right to initiate and prosecute any such legal action at its own expense, or to control the defense of any declaratory judgment action, relating to Arvinas Patent Rights or Arvinas Know-Howother Licensed IP. Pfizer Bayer shall have the right to join any such action initiated by Arvinas to the extent permissible by law. With respect to any such legal action regarding an infringement of any Arvinas Patent Right that directly impacts any exclusive rights of Pfizer Bayer hereunder regarding any Collaboration Compound or Product, if Arvinas does not initiate any such legal action, at least [**] prior to the deadline for bringing an action without resulting loss of rights, of upon any written request by Pfizer Bayer for Arvinas to do so following consultation in accordance with Section 7.5.1, Pfizer Bayer shall have the right, but shall not be obligated, to bring an infringement action with respect to such infringement solely to the extent directly related to PfizerBayer’s exclusive rights hereunder (i.e., not related to any PROTACs directed to any target other than a Collaboration Target) at its own expense, and under its own direction and control, or settle any such action, proceeding or dispute by license, subject to the following. Arvinas shall have the right to participate and be represented in any such suit by its own counsel at its own expense, provided that Pfizer Bayer shall retain overall responsibility for the prosecution of such suit or proceedings in such event. No settlement of any such action or proceeding which restricts the scope, or adversely affects the enforceability, of an Arvinas Patent Right, or which could be reasonably expected to have a material adverse financial impact on Arvinas, may be entered into by Pfizer Bayer without the prior written consent of Arvinas, which consent shall not be unreasonably withheld, delayed or conditioned. 7.5.3 Pfizer, upon notice to Arvinas, shall have the first right to initiate and prosecute any legal action at its own expense and in the name of Arvinas and Pfizer, or to control the defense of any declaratory judgment action, relating to Joint Patent Rights. Pfizer shall promptly inform Arvinas if it elects not to exercise such first right and Arvinas shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action. Each Party shall have the right to be represented by counsel of its own choice. No settlement of any such action or proceeding which restricts the scope, or adversely affects the enforceability, of any Joint Patent Right, or which could reasonably be expected to have a material adverse financial impact on the other Party, may be entered into by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld, delayed or conditioned. 7.5.4 For any action to terminate any infringement of Arvinas Patent Rights or Joint Patent Rights, or any misappropriation or misuse of Arvinas Know-How, in the event that a Party is unable to initiate or prosecute any such action permitted hereunder 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 such Party to initiate litigation to prosecute and maintain such action. If Yale University is required to join as a party in such action, Arvinas shall use all reasonable efforts to cause Yale University to join and provide reasonable assistance. In connection with any action brought hereunder, Pfizer and Arvinas will cooperate fully and will provide each other with any information or assistance that either may reasonably request. The requesting Party shall reimburse the other Party for the documented external costs the other Party reasonably incurs in providing any such assistance as specifically requested in writing. Each Party shall keep the other informed of developments in any action or proceeding, hereunder including, to the extent permissible by applicable Laws, consultation on and approval of any settlement, the status of any settlement negotiations and the terms of any offer related thereto. 7.5.5 If either Party brings an action or proceeding under this Section 7.5 and subsequently ceases to pursue or withdraws from such action or proceeding, it shall promptly notify the other Party and the other Party may substitute itself for the withdrawing Party under the terms of this Section 7.5. 7.5.6 In the event that either Party exercises the rights conferred in this Section 7.5 and recovers any damages or other sums in such action, suit or proceeding or in settlement thereof, such damages or other sums recovered shall first be applied to all out-of-pocket costs and expenses incurred by the Parties in connection therewith, including attorneys’ fees. Except as otherwise provided in this Section 7.5, each Party will bear its own expenses with respect to any suit or other proceeding against an infringer. If such recovery is insufficient to cover all out-of-pocket costs and expenses of both Parties, it shall be shared in proportion to the total of such costs and expenses incurred by each Party. If after such reimbursement any funds shall remain from such damages or other sums recovered, such funds shall be divided as follows: (i) as to ordinary damages based on lost sales or profit, a) if Pfizer is the Party bringing suit or bears [**] of the out-of-pocket costs and expenses of Arvinas in such action, or if Arvinas is the Party bringing suit but Pfizer has agreed as of the initiation of such action to bear [**] percent ([**]%) of the out-of-pocket costs and expenses incurred by Arvinas in connection therewith, Pfizer shall retain such funds and Arvinas shall receive payment equivalent to royalty payments that would have been due to Arvinas under this Agreement had the infringing sales that Pfizer lost to the infringer been made by Pfizer, c) and if Arvinas is the Party bringing suit and Pfizer has not agreed as of the initiation of such action to bear [**] percent ([**]%) of the out-of-pocket costs and expenses incurred by Arvinas in connection therewith, Arvinas shall retain [**] percent ([**]%) of such funds and provide [**] percent ([**]%) thereof to Pfizer, and (ii) as to special or punitive damages, the Parties shall collect in proportion to the ordinary damages received, provided that Arvinas shall in any event receive at least [**] percent ([**]%) thereof. 7.5.7 [**]. 7.5.8 [**]