Common use of Infringement Action by Third Parties Clause in Contracts

Infringement Action by Third Parties. (a) In the event of the institution or threatened institution of any suit by a Third Party against R-Pharm for patent infringement involving the research, development, usage, making, sale, distribution, export within the Territory and/or import or marketing of the Product in the Field in the Territory, R-Pharm shall promptly notify Scynexis in writing of [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. such suit. [*] shall have the right to defend such suit at its own expense and shall be responsible for all damages incurred as a result thereof. [*] hereby agrees to assist and cooperate with [*], at [*] reasonable request and expense, in the defense of such suit (including, without limitation, consenting to being named as a nominal party thereto). During the pendency of such action, R-Pharm shall continue to make all payments due under this Agreement. (b) Any award from such Third Party that arises as a result of such action (whether by way of judgment, award, decree, settlement or otherwise) shall be allocated as follows: (i) if [*] finally prevails, such award shall be applied first to reimburse [*] for all costs and expenses incurred by it with respect to such action; (ii) if [*] with respect to any such action and finally prevails, [*] shall [*]; or (iii) if [*] any such action, the expenses of such defense shall be [*], and [*] any part of such award remaining after the reimbursement of such expenses, [*]. (c) The provisions of Section (a) above notwithstanding, [*] shall not [*] under Section (a) to the extent that any infringement or claim results from: (i) [*] or [*]; or (ii) [*]. [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. (d) In the event that one or more patent licenses from other third parties are required by R-Pharm or its Affiliates in order to research, develop, make or have made (from Compound supplied by Scynexis or its licensee), use, offer to sell, sell, market, distribute, export within the Territory and/or import Product in the Territory in the Field (hereinafter “Third Party Patent Licenses”), any consideration actually paid under such Third Party Patent Licenses by R-Pharm or its Affiliates for sale of such Product in the Field in a country of the Territory for such Calendar Quarter shall be creditable against the royalty payments due Scynexis by R-Pharm with respect to the sale of Products in such country. Notwithstanding the foregoing, in no event shall any amount owed to Scynexis be reduced by more than [*] as a result of such Third Party Patent Licenses. (e) [*] under this Agreement in the case of any claimed infringement or violation of any Third Party’s rights or unauthorized use or misappropriation of any Third Party’s technology.

Infringement Action by Third Parties. (a) In the event of the institution or threatened institution of any suit by a Third Party against R-Pharm Waterstone for patent infringement involving the research, development, usage, making, sale, distribution, export within the Territory and/or import or marketing of the Product in the Field in the Territory, R-Pharm Waterstone shall promptly notify Scynexis in writing of [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. such suit. [*] Scynexis shall have the right to defend such suit at its own expense and shall be responsible for all damages incurred as a result thereofexpense. [*] Waterstone hereby agrees to assist and cooperate with [*]Scynexis, at [*] Scynexis’ reasonable request and expense, in the defense of such suit (including, without limitation, consenting to being named as a nominal party thereto). During the pendency of such action, R-Pharm Waterstone shall continue to make all payments due under this Agreement. In the event Scynexis does not commence a defense action pursuant this Section 8.4(a) within sixty (60) days after Waterstone first notifies Scynexis of a suit by a Third Party, Waterstone shall have the right, but not the obligation, to defend such an action at its own expense and Scynexis shall assist and cooperate with Waterstone in such defense. (b) Any award from such Third Party that arises as a result of such action (whether by way of judgment, award, decree, settlement or otherwise) shall be allocated as follows: (i) if [*] Scynexis or Waterstone, as applicable, finally prevails, such award shall be applied first to reimburse [*] Scynexis or Waterstone, as applicable, for all costs and expenses incurred by it with respect to such action; (ii) if [*] with respect to any such action and finally prevails, [*] shall [*]be entitled to retain such award; or (iii) if [*] the Parties cooperate in the defense of any such action, the expenses of such defense shall be [*]borne by the Parties in such proportions as they may agree in writing, and [*] the Parties shall allocate between themselves any part of such award remaining after the reimbursement of such expenses, [*]in the same proportion as they have agreed to bear the expenses of such defense. (c) The provisions of Section (a) 8 above notwithstanding, [*] shall not [*] liability under Section (a8.4(a) to the extent that any infringement or claim results from: (i) [*] of the Product [*] or [*] where the Product [*]; or (ii) [*]. ] of the Product [*] = Certain confidential information contained that is not in this document, marked by brackets, has been omitted and filed separately accordance with the Securities and Exchange Commission pursuant to Rule 406 of [*], where the Securities Act of 1933Product, as amended[*] or [*]. (d) In the event that one or more patent licenses from other third parties are required by R-Pharm Waterstone or its Affiliates in order to research, develop, make or have made (from Compound supplied by Scynexis or its licensee)made, use, offer to sell, sell, market, distribute, export within the Territory and/or import Product in the Territory in the Field (hereinafter “Third Party Patent Licenses”), any consideration actually paid under such Third Party Patent Licenses by R-Pharm Waterstone or its Affiliates for sale of such Product in the Field in a country of the Territory for such Calendar Quarter shall be creditable against the royalty [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. payments due Scynexis by R-Pharm Waterstone with respect to the sale of Products in such country. Notwithstanding the foregoing, in no event shall any amount owed to Scynexis be reduced by more than [*] as a result of such Third Party Patent Licenses. (e) [*] Subject to the indemnification obligations of Scynexis set forth in Section 10.2(a)(a), this Section 8.4 states the entire responsibility of Scynexis under this Agreement in the case of any claimed infringement or violation of any Third Party’s rights or unauthorized use or misappropriation of any Third Party’s technology.

Infringement Action by Third Parties. (a) In the event of the institution or threatened institution of any suit by a Third Party against R-Pharm ERS for patent or trademark infringement involving the researchmanufacture, development, usage, making, saleuse, distribution, export within the Territory and/or import sale Confidential treatment requested by Xxxxxxx-Xxxxx Squibb Company, Xxxxxxx-Xxxxx Squibb Biologics Company and ImClone Systems Incorporated. or marketing of the a Product in the Field in the Territory, R-Pharm ERS shall promptly notify Scynexis the Company in writing of [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. such suit. [*] Unless otherwise covered by Section 12.3(c), the Company shall have the right be required to diligently defend such suit at its own expense and shall control the defense of such action and, subject to Section 9.4(c), shall be responsible for all damages incurred as a result thereofthereof and shall indemnify ERS in connection therewith. [*] ERS hereby agrees to assist and cooperate with [*]the Company, at [*] the Company's reasonable request and expense, in the defense of such any suit related to the Technology or Trademark (including, without limitation, consenting to being named as a nominal party thereto). During the pendency of such actionaction and thereafter, R-Pharm ERS shall continue to make all payments due under this Agreement. (b) Any . If the Company finally prevails and receives an award from such Third Party that arises as a result of such action (whether by way of judgment, award, decree, settlement or otherwise) shall be allocated as follows: (i) if [*] finally prevails), such award shall be applied first retained entirely by the Company. (b) In the event of the institution or threatened institution of any suit by a Third Party against ERS for patent infringement involving the ERS Inventions which are used in the development, use, manufacture, distribution, promotion and/or sale of Compounds and/or Products in the Field, ERS shall promptly notify the Company in writing of such suit. ERS shall be required to reimburse [*] for all costs and expenses incurred by it with respect to diligently defend such action; (ii) if [*] with respect to any suit at its own expense, shall control the defense of such action and finally prevails, [*] shall [*]be responsible for all payment of damages incurred as a result thereof (or payment of any license fees incurred in connection with any license obtained by the Parties from such Third Party); or provided that (iiiA) if [*] any to the extent that such actionsuit relates to ERS Inventions used solely by the Company, the expenses Company shall diligently defend such suit at its own expense, shall control the defense of such defense action and shall be [*]responsible for all payment of damages incurred as a result thereof (or payment of any license fees incurred in connection with any license obtained by the Company from such Third Party) and (B) to the extent that such suit relates to ERS Inventions used by both ERS and the Company, and [*] any part the Parties shall cooperate in the defense of such award remaining after action and shall be responsible for payment of damages incurred as a result thereof (or payment of any license fees incurred in connection with any license obtained by the reimbursement Parties from such Third Party) on a basis which is proportionate to their relative usage of such expensesERS Inventions. In the event that a Party is solely responsible for defending an action involving ERS Inventions, [*]the other Party(ies) shall assist and cooperate with such Party, at such Party's reasonable request and expense. If a Party which is solely responsible for defending an action involving ERS Inventions finally prevails and receives an award from such Third Party as a result of such action (whether by way of judgment, award, decree, settlement or otherwise), such award shall be retained entirely by such Party. If the Parties cooperate in the defense of an action involving ERS Inventions pursuant to (B) above and such Parties finally prevail and receive an award from such Third Party as a result of such action (whether by way of judgment, award, decree, settlement or otherwise), such award shall be shared on an equitable basis by the Parties. (c) The provisions of Unless otherwise covered by Section 12.3(c), (aA) above notwithstanding, [*] shall not [*] under Section (a) to the extent that any infringement or claim results from: (i) [*] or [*]; or (ii) [*]. [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. (d) In the event that one the PDC determines that a license under Third Party patents or more patent licenses from other third parties are required by R-Pharm trademarks should be obtained to avoid infringement of such Third Party patents or its Affiliates trademarks in order to researchmake, develophave made, make use or have made (from Compound supplied by Scynexis or its licensee), use, offer to sell, sell, market, distribute, export within the Territory and/or import sell any Product in the Territory any country(ies) in the Field (hereinafter “Third Party Patent Licenses”)North America or in Japan, any consideration actually or royalties should be paid under to such Third Party Patent Licenses by R-Pharm or its Affiliates for sale in respect of sales of such Product in the Field in a country of the Territory for such Calendar Quarter shall be creditable against the royalty payments due Scynexis by R-Pharm with respect to the sale of Products in such country. Notwithstanding country(ies) in North America or in Japan (provided that the foregoingParties agree for the purposes of this Section 9.4(c), in no event that the PDC shall any amount owed be deemed to Scynexis be reduced have determined that licenses obtained prior to the execution of this Agreement that are held by more than [*] the Company should have been so obtained), or (B) if the Company or ERS finally loses and is required to pay damages or an award to a Third Party as a result of such Third Party Patent Licenses.an action commenced under Section 9.4(a) (whether by way of judgment, award, decree, settlement or otherwise); then: (ei) the Distribution Fees due from ERS to the Company pursuant to Sections 6.3 with respect to rights in North America shall be increased by an amount equal to [**] of any royalties or damages attributable to Net Sales in North America, up to a maximum increase equal to: (1) [**] under this Agreement of Net Sales of Products in North America during any calendar quarter during calendar years 2002 through and including 2006; and (2) [**] of Net Sales of Products in North America during any calendar quarter following 2006; and (ii) with respect to rights in Japan, the Company shall be entitled to allocate an amount Confidential treatment requested by Xxxxxxx-Xxxxx Squibb Company, Xxxxxxx-Xxxxx Squibb Biologics Company and ImClone Systems Incorporated. equal to any royalties or damages attributable to Net Sales in Japan against Cost of Goods Sold (in accordance with the Financial Appendix) up to a maximum amount equal to: (1) [**] of Net Sales of Products in Japan during any calendar quarter during calendar years 2002 through and including 2006; and (2) [**] of Net Sales of Products in the case of Japan during any claimed infringement or violation of any Third Party’s rights or unauthorized use or misappropriation of any Third Party’s technologycalendar quarter following 2006.

Infringement Action by Third Parties. 9.5.1 Each Party shall within five (a5) In business days notify the event of the institution or threatened institution other Party in writing upon becoming aware of any suit claim by a Third Party, whether raised directly or by way of counterclaim or affirmative defense, against Alpharma and/or Tris for alleged infringement of Third Party against R-Pharm for patent infringement involving rights through the research, development, usage, making, salehaving made, distributionusing, export within the Territory and/or import selling, or marketing of the having sold any Product in the Field in Territory. 9.5.2 If such infringement claim relates to the TerritoryTris Technology and is covered by Section 12.1.4, R-Pharm shall promptly notify Scynexis in writing of [*] = Certain confidential information contained in this documentor the Tris Marks, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. such suit. [*] shall have the right to defend such suit at its own expense and shall be responsible for all damages incurred as a result thereof. [*] hereby agrees to assist and cooperate with [*], at [*] reasonable request and expense, in then the defense of such suit shall be controlled by Tris, at its sole cost and expense. Tris shall be solely responsible for any damages or other payments related to such claim (whether the claim is made against either or both Parties) and shall also have the right to control settlement of such claim; provided, however, that any such settlement shall not, without Alpharma's consent, adversely impact Alpharma's rights or reasonable economic expectations hereunder. Any monetary award recovered from such suit shall be retained by Tris. 9.5.3 Unless otherwise covered by Section 9.5.2 (and except as provided in Section 9.5.4), if such infringement claim relates to the Tris Technology, the Parties shall discuss, in good faith, how best to control the defense of any such claim; provided, however, that Alpharma will control the defense of such a claim and shall also have the right to control settlement of such claim; provided that no such settlement shall be entered into which adversely impacts the Tris Technology without the consent of Tris, which shall not be unreasonably withheld or delayed. The costs and expenses of defending any suit under this Section 9.5.3 and any damages resulting from such suit (including, without limitationbut not limited to, consenting the cost of withdrawing the Product from the market) shall be borne by the Parties as follows: **** percent (****%) by Tris, and **** percent (****%) by Alpharma, and any monetary awards recovered from such suit shall be shared by the Parties as follows: each Party shall be entitled to being named as recovery all costs and expenses incurred by such Party with respect to such action on a nominal party theretopro rata basis and, if after such recovery of all such costs and expenses, any funds shall remain, Tris shall be entitled to **** percent (****%) and Alpharma shall be entitled to **** percent (****%). During If such infringement claim which relates to Tris Technology encompasses both Products under this Agreement and products controlled by parties other than Alpharma, Alpharma's share of the damages shall be limited to Alpharma's percentage of the total sales of all products encompassed by the litigation claim (including the Products). 9.5.5 Unless otherwise covered by Sections 9.5.2, 9.5.3 or 9.5.4, with respect to infringement claims relating to the Product, as well as infringements relating to the Trademarks, Alpharma will be responsible for and will control the defense and/or settlement of such claim. **** 9.5.6 Except as specifically set forth in Section 9.5.4, during the pendency of such actionany action under this Section 9.5, R-Pharm and thereafter, Alpharma shall continue to make all payments due under this Agreement. (b) Any award from such Third Party that arises as a result of such action (whether by way of judgment, award, decree, settlement or otherwise) shall be allocated as follows: (i) if [*] finally prevails, such award shall be applied first to reimburse [*] for all costs and expenses incurred by it with respect to such action; (ii) if [*] with respect to any such action and finally prevails, [*] shall [*]; or (iii) if [*] any such action, the expenses of such defense shall be [*], and [*] any part of such award remaining after the reimbursement of such expenses, [*]. (c) The provisions of Section (a) above notwithstanding, [*] shall not [*] under Section (a) to the extent that any infringement or claim results from: (i) [*] or [*]; or (ii) [*]. [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. (d) In the event that one or more patent licenses from other third parties are required by R-Pharm or its Affiliates in order to research, develop, make or have made (from Compound supplied by Scynexis or its licensee), use, offer to sell, sell, market, distribute, export within the Territory and/or import Product in the Territory in the Field (hereinafter “Third Party Patent Licenses”), any consideration actually paid under such Third Party Patent Licenses by R-Pharm or its Affiliates for sale of such Product in the Field in a country of the Territory for such Calendar Quarter shall be creditable against the royalty payments due Scynexis by R-Pharm with respect to the sale of Products in such country. Notwithstanding the foregoing, in no event shall any amount owed to Scynexis be reduced by more than [*] as a result of such Third Party Patent Licenses. (e) [*] under this Agreement in the case of any claimed infringement or violation of any Third Party’s rights or unauthorized use or misappropriation of any Third Party’s technology.

Infringement Action by Third Parties. (a) In the event of the institution or threatened institution of any suit by a Third Party against R-Pharm for patent infringement involving the research, development, usage, making, sale, distribution, export within the Territory and/or import or marketing of the Product in the Field in the Territory, R-Pharm shall promptly notify Scynexis in writing of such suit. [*] shall have the right to defend [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. such suit. [*] shall have the right to defend such suit at its own expense and shall be responsible for all damages incurred as a result thereof. [*] hereby agrees to assist and cooperate with [*], at [*] reasonable request and expense, in the defense of such suit (including, without limitation, consenting to being named as a nominal party thereto). During the pendency of such action, R-Pharm shall continue to make all payments due under this Agreement. (b) Any award from such Third Party that arises as a result of such action (whether by way of judgment, award, decree, settlement or otherwise) shall be allocated as follows: (i) if [*] finally prevails, such award shall be applied first to reimburse [*] for all costs and expenses incurred by it with respect to such action; (ii) if [*] with respect to any such action and finally prevails, [*] shall [*]; or (iii) if [*] any such action, the expenses of such defense shall be [*], and [*] any part of such award remaining after the reimbursement of such expenses, [*]. (c) The provisions of Section (a) above notwithstanding, [*] shall not [*] under Section (a) to the extent that any infringement or claim results from: (i) [*] or [*]; or (ii) [*]. . (d) In the event that one or more 66 [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. (d) In the event that one or more . patent licenses from other third parties are required by R-Pharm or its Affiliates in order to research, develop, make or have made (from Compound supplied by Scynexis or its licensee), use, offer to sell, sell, market, distribute, export within the Territory and/or import Product in the Territory in the Field (hereinafter “Third Party Patent Licenses”), any consideration actually paid under such Third Party Patent Licenses by R-Pharm or its Affiliates for sale of such Product in the Field in a country of the Territory for such Calendar Quarter shall be creditable against the royalty payments due Scynexis by R-Pharm with respect to the sale of Products in such country. Notwithstanding the foregoing, in no event shall any amount owed to Scynexis be reduced by more than [*] as a result of such Third Party Patent Licenses. (e) [*] under this Agreement in the case of any claimed infringement or violation of any Third Party’s rights or unauthorized use or misappropriation of any Third Party’s technology.