Common use of Infringement Actions by Third Parties Clause in Contracts

Infringement Actions by Third Parties. If a Party, or to its knowledge, any of its sublicensees or customers shall be sued by a Third party for infringement of a patent because of the development, manufacture, use or sale of Licensed Products, such Party shall promptly notify the other in writing of the institution of such suit. The Party sued shall control the defense of such suit at its own expense; provided, however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party shall have the right to control the defense of the claim in accordance with Section 9. Each Party shall cooperate fully in the defense of such suit and shall furnish to the other Party all evidence and assistance in its control. The Party sued shall make a preliminary decision to defend or not defend its interests in such suit and shall so notify the other Party in writing of its decision within *** days of the institution of such a suit. If a Party after electing to defend a suit should at any time elect to drop such defense, said Party shall immediately notify the other Party in writing and permit such other Party to control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party shall have the right, but not the obligation, to defend its interests in such a suit, and shall have the right to litigate, settle or otherwise dispose of such suit as it sees fit, provided, however, that TAP may not settle such suit in a manner that would materially impact or adversely affect the Santarus Patent Rights. Any judgments, settlements or damages payable with respect to legal proceedings covered by this Section 6.3 shall be paid by the Party which controls the litigation, subject to any claims against the other Party for breach of or indemnification under this Agreement or otherwise available at law or in equity.

Infringement Actions by Third Parties. If a Party, MN or to its knowledge, any of its sublicensees or customers Affiliates shall be sued by a Third party Party for infringement of a patent held by such Third Party because of the development, manufacture, use importation, use, offer for sale or sale of Licensed Productsthe Compound or Products under MPC Intellectual Property, such Party MN shall promptly notify the other MPC in writing of the institution of such suit. The Party sued MN shall have the first right, in its sole discretion, to control the defense of such suit at its own expense; provided, however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party in which event MPC shall have the right to control the defense be represented by advisory counsel of the claim in accordance with Section 9. Each Party its own selection, at its own expense, and shall cooperate fully in the defense of such suit and shall furnish to the other Party MN all evidence and assistance in MPC’s control. If MN does not elect within thirty (30) days after such notice from MN to MPC to so control the defense of such suit, MPC may undertake such control at its own expense, and MN shall then have the right to be represented by advisory counsel of its own selection and at its own expense, and MN shall cooperate fully in the defense of such suit and furnish to MPC all evidence and assistance in MN’s control. The Party sued shall make a preliminary decision controlling the suit may not settle the suit or otherwise consent to defend or not defend its interests an adverse judgment in such suit and shall so notify that diminishes the other Party in writing of its decision within *** days rights or interests of the institution non-controlling Party without the express written consent of the non-controlling Party. The royalty or other payments required to be paid by MN or its Affiliates to any Third Party as the result of a judgment or settlement under this Section 8.9 shall be creditable against the royalty payments pursuant to Section 4.3 due MPC with respect to the sale of such a suit. If a Party after electing to defend a suit should at any time elect to drop such defense, said Party shall immediately notify the other Party in writing and permit such other Party to control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party shall have the right, but not the obligation, to defend its interests Product in such a suit, and shall have the right to litigate, settle or otherwise dispose of such suit as it sees fitcountry, provided, however, that TAP may not settle such suit in a manner that would materially impact or adversely affect no event shall the Santarus Patent Rights. Any judgments, settlements or damages royalties payable with respect to legal proceedings covered by this MPC pursuant to Section 6.3 shall 4.3 be paid by reduced to less than fifty percent (50%) of the Party which controls the litigation, subject to any claims against the other Party for breach of or indemnification amount due under this Agreement or otherwise available at law or in equityAgreement.

Infringement Actions by Third Parties. If a PartySubject to the obligations of each Party pursuant to Article 16, if FRESENIUS, XCYTE or their respective Affiliates, or to its knowledgeFRESENIUS’ Sublicensees, any of its sublicensees or customers shall be is sued by a Third party Party for infringement of a Third Party’s patent because of the developmentuse of the Xcellerate™ Technology in the Field in the Territory, manufacture, use or sale of Licensed Products, such the Party which has been sued shall promptly notify the other Party in writing no event later than [*] days of the institution of such suit. The Party sued notice shall set forth the facts of such infringement and provide evidence of such infringement that is within the notifying Party’s control. If FRESENIUS or its Sublicensees are sued, FRESENIUS shall have the right, in its sole discretion, to control the defense of such suit at its own expense; provided, however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party and XCYTE shall have the right to control the defense be represented by advisory counsel of the claim in accordance with Section 9. Each Party its own selection, at its own expense, and shall cooperate fully in the defense of such suit and shall furnish to the other Party XCYTE all evidence and assistance in its control. The Party sued shall make a preliminary decision to defend or If FRESENIUS does not defend its interests in such suit and shall so notify the other Party in writing of its decision elect within [*** ] days of the institution after receipt of such a suit. If a Party after electing notice to defend a suit should at any time elect to drop such defense, said Party shall immediately notify the other Party in writing and permit such other Party to so control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party shall have the right, but not the obligation, to defend XCYTE may undertake such control at its interests in such a suitown expense, and FRESENIUS shall then have the right to litigatebe represented by advisory counsel of its own selection and at its own expense, and FRESENIUS shall cooperate fully in the defense of such suit and furnish to XCYTE all evidence and assistance in FRESENIUS’ control. The Party controlling the suit shall keep the other Party reasonably informed of the status of the suit under this Article 12. In no event may the Party controlling the suit settle or otherwise dispose of consent to an adverse judgment in such suit as it sees fit, provided, however, that TAP may not settle such suit in a manner that would materially impact diminishes the rights or adversely affect interests of the Santarus Patent Rightsnon-controlling Party without the express written consent of the non-controlling Party. Any judgments, awards, settlements or damages payable with respect to legal proceedings covered by this Section 6.3 Article 12 shall be paid by or to the Party which controls the litigation; provided, subject to any claims against however, that if the other Party has elected to be represented by advisory counsel, the other Party shall receive the actual reasonable cost of its legal fees for breach of or indemnification under this Agreement or otherwise available at law or in equitysuch advisory counsel.

Infringement Actions by Third Parties. If a Party, MN or to its knowledge, any of its sublicensees or customers shall be sued by a Third party Party for infringement of a patent held by such Third Party because of the development, manufacture, use importation, marketing, use, offer for sale or sale of Compound or Licensed Products, such Party MN shall promptly notify the other KR in writing of the institution of such suit. The Party sued MN shall have the first right, in its sole discretion, to control the defense of such suit at its own expense; provided, however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party in which event KR shall have the right to control the defense be represented by advisory counsel of the claim in accordance with Section 9. Each Party its own selection, at its own expense, and shall cooperate fully in the defense of such suit and shall furnish to the other Party MN all evidence and assistance in KR’s control. If MN does not elect within thirty (30) days after such notice from MN to KR to so control the defense of such suit, KR may undertake such control at its own expense, and MN shall then have the right to be represented by advisory counsel of its own selection and at its own expense, and MN shall cooperate fully in the defense of such suit and furnish to KR all evidence and assistance in MN’s control. The Party sued shall make a preliminary decision controlling the suit may not settle the suit or otherwise consent to defend or not defend its interests an adverse judgment in such suit and shall so notify that diminishes the other Party in writing of its decision within *** days rights or interests of the institution of such a suit. If a non-controlling Party after electing to defend a suit should at any time elect to drop such defense, said Party shall immediately notify without the other Party in writing and permit such other Party to control the suit at such other Party's expense, in the name express written consent of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party shall have the right, but not the obligation, to defend its interests in such a suit, and shall have the right to litigate, settle or otherwise dispose of such suit as it sees fit, provided, however, that TAP may not settle such suit in a manner that would materially impact or adversely affect the Santarus Patent Rightsnon-controlling Party. Any judgments, settlements Third Party royalty or damages payable with respect other payments required to legal proceedings covered by be paid as the result of a judgment or settlement under this Section 6.3 8.9 shall be paid borne equally by the Party which controls the litigationParties, subject to any claims against the other Party for breach provisions of or indemnification under this Agreement or otherwise available at law or in equityArticle 12.

Infringement Actions by Third Parties. (a) If a PartyINNOVIVE, or to its knowledge, knowledge any of its sublicensees SUBLICENSEES or customers customers, shall be sued by a Third third party for infringement of a patent because of the development, manufacture, import, use or sale of Licensed Productsthe COMPOUND or the PRODUCT in the TERRITORY, such Party INNOVIVE shall promptly notify the other SHINYAKU in writing of the institution of such suit. The Party sued shall control the defense of such suit at its own expense; provided, however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party shall have the right to control the defense of the claim in accordance with Section 9. Each Party shall cooperate fully in the defense of such suit and shall furnish to the other Party all evidence and assistance in its control. The Party sued shall make a preliminary decision to defend or not defend its interests in such suit and shall so notify the other Party in writing of its decision within *** days of the institution of such a suit. If a Party after electing to defend a suit should at any time elect to drop In such defenseoccasions, said Party SHINYAKU shall immediately notify the other Party cooperate in writing and permit such other Party to control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit and furnish to INNOVIVE available evidence and assistance in its control. INNOVIVE agrees to keep SHINYAKU informed with respect to all material developments in such a lawsuit and to reasonably consult with SHINYAKU regarding the defense and any settlement of such a lawsuit. In the event that INNOVIVE shall be sued by a third party for infringement of a patent or shall receive threat of suit, then INNOVIVE shall be entitled to control the other Party defense of and/or settle such suit or claim in its sole discretion. SHINYAKU shall have promptly notify INNOVIVE in writing of the rightinstitution of a suit against SHINYAKU, but not or to its knowledge any of its SUBLICENSEES or customers, by a third party for infringement of a patent because of the obligationdevelopment, to defend its interests manufacture, import, use or sale of the COMPOUND or the PRODUCT in such a suit, and Japan. (b) INNOVIVE shall have the right to litigatecredit against the royalty and other payments to be paid by INNOVIVE to SHINYAKU with respect to the sale of the PRODUCTS under ARTICLE 5 all (i) damages or costs awarded against INNOVIVE, settle and royalties or otherwise dispose other payments that INNOVIVE is ordered to or agrees to pay, with respect to a suit or claim by a third party for patent infringement, including without limitation any settlement amounts paid, and (ii) any costs (including reasonable attorney fees) incurred by INNOVIVE in the defense or settlement of such suit as it sees fitor claim (together, the “Offset Amount”); provided, however, that TAP may such offset shall not settle exceed [*] percent ([*]%) of such suit payments otherwise due to SHINYAKU in each QUARTER pursuant to Section 7.1 under this Agreement, and further provided that any portion of the Offset Amount that is not offset in a manner that would materially impact or adversely affect particular QUARTER may be carried forward for offset in subsequent QUARTERS. [*] Confidential treatment requested; certain information omitted and filed separately with the Santarus Patent Rights. Any judgments, settlements or damages payable with respect to legal proceedings covered by this Section 6.3 shall be paid by the Party which controls the litigation, subject to any claims against the other Party for breach of or indemnification under this Agreement or otherwise available at law or in equitySEC.

Infringement Actions by Third Parties. If a Party, or to its knowledge, any of its sublicensees or customers shall be sued by In the event that a Third party for infringement of Party files an action against a party, its Affiliates, distributors or sublicensees alleging that such party’s or its Affiliates’, distributors’ or sublicensees’ activities under this Agreement infringe such Third Party’s patent because of the development, manufacture, use or sale of Licensed Productsother intellectual property rights, such Party party shall promptly notify give written notice to the other party, and the parties will consult and cooperate on the best course of action. If the alleged infringing process, method or composition is claimed under the Licensed Technology in writing of the institution of such suit. The Party sued Territory, UP shall have the right, in its sole discretion, to control the defense of such suit at its own expense; provided, however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party in which event AltaRex shall have the right to control the defense be represented by advisory counsel of the claim in accordance with Section 9. Each Party its own selection, at its own expense, and shall cooperate fully in the defense of such suit and shall furnish to the other Party UP all evidence and assistance in its control. The Party sued shall make a preliminary decision If UP does not elect within thirty (30) days after such notice to defend or not defend its interests in such suit and shall so notify the other Party in writing of its decision within *** days of the institution of such a suit. If a Party after electing to defend a suit should at any time elect to drop such defense, said Party shall immediately notify the other Party in writing and permit such other Party to control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party shall have the right, but not the obligation, to defend AltaRex may undertake such control at its interests in such a suitown expense, and UP shall then have the right to litigatebe represented by advisory counsel of its own selection, settle or otherwise dispose at its own expense, and UP shall cooperate fully in the defense of such suit as it sees fit, provided, however, that TAP and furnish to AltaRex all evidence and assistance in UP’s control. The party controlling the suit may not settle the suit or otherwise consent to an adverse judgment in such suit in a manner that would materially impact diminishes the rights or adversely affect interests of the Santarus Patent Rightsnon-controlling party without the express written consent of the non-controlling party. Any judgments, settlements or damages payable with respect to legal proceedings covered by this Section 6.3 9.6 shall be paid by the Party party which controls the litigation, subject to any claims against the other Party for breach of or party’s indemnification obligations under this Agreement or otherwise available at law or in equityArticle 10 below.

Infringement Actions by Third Parties. If a PartyPMC, CORIXA or their respective Affiliates, or to its knowledgePMC's Sublicensees, any of its sublicensees or customers shall be is sued by a Third party Third-Party for infringement of a Third-Party's patent because of the development, manufacture, use or sale of Licensed ProductsProduct or manufacture or use of Material, such the Party which has been sued shall promptly notify the other Party in writing of the institution of such suit. The Party sued CORIXA shall have the right, in its sole discretion, to control the defense of such suit at its own expense; provided, however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party in which event PMC shall have the right to control the defense be represented by advisory counsel of the claim in accordance with Section 9. Each Party its own selection, at its own expense, and shall cooperate fully in the defense of such suit and shall furnish to the other Party CORIXA all evidence and assistance in its control. The Party sued shall make a preliminary decision to defend or If CORIXA does not defend its interests in such suit and shall so notify the other Party in writing of its decision elect within *** thirty (30) days of the institution after receipt of such a suit. If a Party after electing notice to defend a suit should at any time elect to drop such defense, said Party shall immediately notify the other Party in writing and permit such other Party to so control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party shall have the right, but not the obligation, to defend PMC may undertake such control at its interests in such a suitown expense, and CORIXA shall then have the right to litigatebe represented by advisory counsel of its own selection and at its own expense, settle or otherwise dispose and CORIXA shall cooperate fully in the defense of such suit as it sees fit, provided, however, that TAP and furnish to PMC all evidence and assistance in CORIXA's control. The Party controlling the suit may not settle the suit or otherwise consent to an adverse judgment in such suit in a manner that would materially impact diminishes the rights or adversely affect interests of the Santarus Patent Rightsnon-controlling Party without the express written consent of the non-controlling Party. Any judgments, awards, settlements or damages payable with respect to legal proceedings covered by this Section 6.3 Article 10 shall be paid by the Party which controls the litigation, subject to any claims against the other Party for breach of or indemnification under this Agreement or otherwise available at law or in equity.

Infringement Actions by Third Parties. If a PartyEOS, SGI or their respective Affiliates, or to its knowledgeEOS's Sublicensees, any of its sublicensees or customers shall be is sued by a Third party Third-Party for infringement of a Third-Party's patent because of the developmentuse of the Drug Conjugation Technology, manufacture, use or sale of Licensed Products, such the Party which has been sued shall promptly notify the other in writing Party no event later than thirty (30) days of the institution of such suit. The Party sued notice shall set forth the facts of such infringement and provide evidence of such infringement that is within the notifying Party's control. SGI shall have the right, in its sole discretion, to control the defense of such suit at its own expense; provided, however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party in which event EOS shall have the right to control the defense be represented by advisory counsel of the claim in accordance with Section 9. Each Party its own selection, at its own expense, and shall cooperate fully in the defense of such suit and shall furnish to the other Party SGI all evidence and assistance in its control. The Party sued shall make a preliminary decision to defend or If SGI does not defend its interests in such suit and shall so notify the other Party in writing of its decision elect within *** thirty (30) days of the institution after receipt of such a suit. If a Party after electing notice to defend a suit should at any time elect to drop such defense, said Party shall immediately notify the other Party in writing and permit such other Party to so control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party shall have the right, but not the obligation, to defend EOS may undertake such control at its interests in such a suitown expense, and SGI shall then have the right to litigatebe represented by advisory counsel of its own selection and at its own expense, and SGI shall cooperate fully in the defense of such suit and furnish to EOS all evidence and assistance in SGI's control. The Party controlling the suit shall keep the other Party reasonably informed of the status of the suit under this Article 12. In no event may the Party controlling the suit settle or otherwise dispose of consent to an adverse judgment in such suit as it sees fit, provided, however, that TAP may not settle such suit in a manner that would materially impact diminishes the rights or adversely affect interests of the Santarus Patent Rightsnon-controlling Party without the express written consent of the non-controlling Party. Any judgments, awards, settlements or damages payable with respect to legal proceedings covered by this Section 6.3 Article 12 shall be paid by or to the Party which controls the litigation; PROVIDED, subject to any claims against HOWEVER, that if the other Party has elected to be represented by advisory counsel, the other Party shall receive the actual reasonable cost of its legal fees for breach of or indemnification under this Agreement or otherwise available at law or in equitysuch advisory counsel.

Infringement Actions by Third Parties. If a Party, or to its knowledge, any of its sublicensees or customers shall be sued by In the event that a Third party for infringement of Party files an action against a party, its Affiliates, distributors or sublicensees alleging that such party's or its Affiliates', distributors' or sublicensees' activities under this Agreement infringe such Third Party's patent because of the development, manufacture, use or sale of Licensed Productsother intellectual property rights, such Party party shall promptly notify give written notice to the other party, and the parties will consult and cooperate on the best course of action. If the alleged infringing process, method or composition is claimed under the Licensed Technology in writing of the institution of such suit. The Party sued Territory, UP shall have the right, in its sole discretion, to control the defense of such suit at its own expense; provided, however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party in which event AltaRex shall have the right to control the defense be represented by advisory counsel of the claim in accordance with Section 9. Each Party its own selection, at its own expense, and shall cooperate fully in the defense of such suit and shall furnish to the other Party UP all evidence and assistance in its control. The Party sued shall make a preliminary decision If UP does not elect within thirty (30) days after such notice to defend or not defend its interests in such suit and shall so notify the other Party in writing of its decision within *** days of the institution of such a suit. If a Party after electing to defend a suit should at any time elect to drop such defense, said Party shall immediately notify the other Party in writing and permit such other Party to control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party shall have the right, but not the obligation, to defend AltaRex may undertake such control at its interests in such a suitown expense, and UP shall then have the right to litigatebe represented by advisory counsel of its own selection, settle or otherwise dispose at its own expense, and UP shall cooperate fully in the defense of such suit as it sees fit, provided, however, that TAP and furnish to AltaRex all evidence and assistance in UP's control. The party controlling the suit may not settle the suit or otherwise consent to an adverse judgment in such suit in a manner that would materially impact diminishes the rights or adversely affect interests of the Santarus Patent Rightsnon-controlling party without the express written consent of the non-controlling party. Any judgments, settlements or damages payable with respect to legal proceedings covered by this Section 6.3 9.6 shall be paid by the Party party which controls the litigation, subject to any claims against the other Party for breach of or party's indemnification obligations under this Agreement or otherwise available at law or in equityArticle 10 below.

Infringement Actions by Third Parties. If a PartyAP Cells, or to its knowledge, any of its Affiliates, sublicensees or customers shall be sued becomes the subject of a suit by a Third party for Party that alleges infringement of a Third Party's patent because arising out of the development, manufacture, use or sale of Licensed ProductsProducts and the alleged infringing process, such Party method or composition is claimed under the Licensed Patent Rights or otherwise provided to AP Cells as Licensed Technology, AP Cells shall promptly notify the other Epimmune in writing of the institution of such suit. The Party sued As between the parties, AP Cells shall have the right, subject to the reasonable approval of Epimmune, to control the defense of such suit at its AP Cells' own expense; provided, however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party in which event Epimmune shall have the right to control the defense be represented by advisory counsel of the claim in accordance with Section 9. Each Party its own selection, at its own expense, and shall cooperate fully in the defense of such suit and shall furnish to the other Party AP Cells all evidence and assistance in its Epimmune's control. The Party sued shall make a preliminary decision If AP Cells does not elect within thirty (30) days after such notice to defend or not defend its interests in such suit and shall so notify the other Party in writing of its decision within *** days of the institution of such a suit. If a Party after electing to defend a suit should at any time elect to drop such defense, said Party shall immediately notify the other Party in writing and permit such other Party to control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party shall have the right, but not the obligation, to defend Epimmune may undertake such control at its interests in such a suitown expense, and AP Cells shall then have the right to litigatebe represented by advisory counsel of its own selection, settle or otherwise dispose at its own expense, and AP Cells shall cooperate fully in the defense of such suit as it sees fit, provided, however, that TAP may and otherwise furnish to Epimmune all evidence and assistance in AP Cells' control. The party controlling the suit shall not settle enter into any settlement of such suit or otherwise consent to an adverse judgment in a manner such suit that would materially impact admits the invalidity or adversely affect unenforceability of any patent within the Santarus Licensed Patent Rights, or the unpatentability of any invention covered by a patent application within the Licensed Patent Rights, or exceeds the rights under the Licensed Technology granted hereunder. Any judgments, settlements or damages payable with respect to legal proceedings covered by this Section 6.3 Article 7 shall be paid by the Party which party that controls the litigation, subject to any claims against the other Party for breach of or indemnification under this Agreement or otherwise available at law or in equityArticle 10 and to Section 4.2.3.

Infringement Actions by Third Parties. If a Party, MN or to its knowledge, any of its sublicensees or customers MN Affiliates shall be sued by a Third party Party in a country or jurisdiction in the MN Territory for infringement of a patent held by such Third Party because of the use of MS Intellectual Property for the development, manufacture, use importation, exportation, use, offer for sale, sale, market or sale distribution of Licensed Compound, API or Products, such Party MN shall promptly notify the other MS in writing of the institution of such suit. The Party sued MN shall have the first right, in its sole discretion, to control the defense of such suit at its own expense; provided, however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party in which event MS shall have the right to control the defense be represented by advisory counsel of the claim in accordance with Section 9. Each Party its own selection, at its own expense, and shall cooperate fully in the defense of such suit and shall furnish to the other Party MN all evidence and assistance in its MS’s control. The Party sued shall make a preliminary decision If MN does not elect within thirty (30) days after such notice from MN to defend or not defend its interests in such suit and shall MS to so notify the other Party in writing of its decision within *** days of the institution of such a suit. If a Party after electing to defend a suit should at any time elect to drop such defense, said Party shall immediately notify the other Party in writing and permit such other Party to control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party MS shall have the right, but not the obligation, to defend undertake such control at its interests in such a suitown expense, and MN shall then have the right to litigatebe represented by advisory counsel of its own selection and at its own expense, settle or otherwise dispose and MN shall, at its own expense, cooperate fully in the defense of such suit and furnish to MS all evidence and assistance in MN’s control. The Party controlling the suit shall not settle the suit or otherwise consent to an adverse judgment in such suit that diminishes the rights or interests of the non-controlling Party without the express written consent of the non-controlling Party. In the event that royalty or other payments are required to be paid by MN or any MN Affiliates to such Third Party as it sees fitthe result of a judgment or settlement under this Section 8.11, such royalty or other payments actually paid in such country or jurisdiction in any Calendar Quarter of such Royalty Year shall be creditable against the subsequent Section 4.3 Royalty Payments and/or Section 4.7 Royalty Payments in such country or jurisdiction for such Calendar Quarter, provided, however, that TAP may not settle in no event shall such suit Section 4.3 Royalty Payments and Section 4.7 Royalty Payments in a manner that would materially impact such country or adversely affect the Santarus Patent Rights. Any judgments, settlements jurisdiction in any Calendar Quarter be [***] so long as MN’s obligation to make payment of Section 4.3 Royalty Payments or damages payable with respect to legal proceedings covered by this Section 6.3 shall be paid by the Party which controls the litigation, subject to any claims against the other Party for breach of 4.7 Royalty Payments continues in such country or indemnification under this Agreement or otherwise available at law or in equityjurisdiction.

Infringement Actions by Third Parties. If a Party, MN or to its knowledge, any of its sublicensees or customers MN Affiliates shall be sued by a Third party Party in a country or jurisdiction in the MN Territory for infringement of a patent held by such Third Party because of the use of MS Intellectual Property for the development, manufacture, use importation, exportation, use, offer for sale, sale, market or sale distribution of Licensed Compound, API or Products, such Party MN shall promptly notify the other MS in writing of the institution of such suit. The Party sued MN shall have the first right, in its sole discretion, to control the defense of such suit at its own expense; provided, however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party in which event MS shall have the right to control the defense be represented by advisory counsel of the claim in accordance with Section 9. Each Party its own selection, at its own expense, and shall cooperate fully in the defense of such suit and shall furnish to the other Party MN all evidence and assistance in its MS’s control. The Party sued shall make a preliminary decision If MN does not elect within thirty (30) days after such notice from MN to defend or not defend its interests in such suit and shall MS to so notify the other Party in writing of its decision within *** days of the institution of such a suit. If a Party after electing to defend a suit should at any time elect to drop such defense, said Party shall immediately notify the other Party in writing and permit such other Party to control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party MS shall have the right, but not the obligation, to defend undertake such control at its interests in such a suitown expense, and MN shall then have the right to litigatebe represented by advisory counsel of its own selection and at its own expense, settle or otherwise dispose and MN shall, at its own expense, cooperate fully in the defense of such suit and furnish to MS all evidence and assistance in MN’s control. The Party controlling the suit shall not settle the suit or otherwise consent to an adverse judgment in such suit that diminishes the rights or interests of the non-controlling Party without the express written consent of the non-controlling Party. In the event that royalty or other payments are required to be paid by MN or any MN Affiliates to such Third Party as it sees fitthe result of a judgment or settlement under this Section 8.11, such royalty or other payments actually paid in such country or jurisdiction in any Calendar Quarter of such Royalty Year shall be creditable against the subsequent Section 4.3 Royalty Payments and/or Section 4.7 Royalty Payments in such country or jurisdiction for such Calendar Quarter, provided, however, that TAP may not settle in no event shall such suit Section 4.3 Royalty Payments and Section 4.7 Royalty Payments in a manner that would materially impact such country or adversely affect the Santarus Patent Rightsjurisdiction in any Calendar Quarter be [***] so long as MN’s obligation to make payment of Section 4.3 Royalty Payments or Section 4.7 Royalty Payments continues in such country or jurisdiction. Any judgments, settlements or damages payable with respect to legal proceedings covered by this Section 6.3 shall be paid by the Party which controls the litigation, subject to any claims against the other Party for breach of or indemnification under this Agreement or otherwise available at law or in equity.[*** Indicates Confidential Treatment Requested]

Infringement Actions by Third Parties. If a Party, or to its knowledge, any of its Affiliates, sublicensees or customers shall be sued by a Third third party for infringement of a patent because of the development, manufacture, use or sale of Licensed Research Compounds or Products, such Party shall promptly notify the other in writing of the institution of such suit. The Party sued shall have the right, in its sole discretion, to control the defense of such suit at its own expense; provided, however, if the Party being sued is being indemnified for such claim by in which event the other Party, then the indemnifying Party shall have the right to control the defense of the claim in accordance with Section 9. Each Party shall cooperate fully in the defense of such suit and shall furnish to the other Party sued all evidence and assistance in its control. The Party sued shall make a preliminary decision to defend or not defend its interests in such suit and shall so notify the other Party in writing of its decision within *** days of the institution of such a suit. If a Party after electing to defend a suit should at any time elect to drop such defense, said Party shall immediately notify the other Party in writing and permit such other Party to control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party shall have the right, but not the obligation, to defend its interests in such a suit, and shall have the right to litigate, settle or otherwise dispose of such suit as it sees fit, provided, however, that TAP may not settle such suit in a manner that would materially impact or adversely affect the Santarus Patent Rights. Any judgments, settlements or damages payable with respect to legal proceedings covered by this Section 6.3 Article 12 shall be paid by the Party which controls the litigation, subject to any claims against the other Party for breach of or indemnification under this Amended and Restated Agreement or otherwise available at law or in equity. Any third party royalty payments required to be paid as the result of a judgment or settlement under this Article 12 shall be paid by the Party controlling the suit subject to any claims against the other Party for breach of or indemnification under this Amended and Restated Agreement or otherwise available at law or in equity; provided, however, in the case of a Product sold by WYETH, if such third party royalty payments arise from the infringement of a patent having a claim or claims which cover the screening activities of Ligand under the Research Program, the third party royalty payments shall be creditable against royalties owed Ligand under this Amended and Restated Agreement in the circumstance where WYETH permits Ligand to defend the suit; provided, further, that in the event WYETH defends the suit the credit taken for any third party royalties shall not be in excess of fifty percent (50%) of the royalty due Ligand under this Amended and Restated Agreement for Product sales which caused such third party royalty payments, subject to any claims for breach of or indemnification under this Amended and Restated Agreement or otherwise available at law or in equity.

Infringement Actions by Third Parties. If a PartyNexell, or to its knowledge, any of its Affiliates, sublicensees or customers shall be sued by a Third party Party for infringement of a Third Party's patent because of the development, manufacture, use or sale of Licensed Products, such Party Nexell shall promptly notify the other Epimmune in writing of the institution of such suit. The Party sued If the alleged infringing process, method or composition is claimed under the Licensed Patent Rights, Nexell shall promptly cease the manufacture, use, sale, offering for sale or importation of the allegedly infringing process, method or composition claimed under the Licensed Patent Rights and Nexell shall have the right, subject to the reasonable approval of Epimmune, to control the defense of such suit at its Nexell's own expense; provided, however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party in which event Epimmune shall have the right to control the defense be represented by advisory counsel of the claim in accordance with Section 9. Each Party its own selection, at its own expense, and shall cooperate fully in the defense of such suit and shall furnish to the other Party Nexell all evidence and assistance in its control. The Party sued shall make a preliminary decision If Nexell does not elect within thirty (30) days after such notice to defend or not defend its interests in such suit and shall so notify the other Party in writing of its decision within *** days of the institution of such a suit. If a Party after electing to defend a suit should at any time elect to drop such defense, said Party shall immediately notify the other Party in writing and permit such other Party to control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party shall have the right, but not the obligation, to defend Epimmune may undertake such control at its interests in such a suitown expense, and Nexell shall then have the right to litigatebe represented by advisory counsel of its own selection, settle or otherwise dispose at its own expense, and Nexell shall cooperate fully in the defense of such suit as it sees fit, provided, however, that TAP and otherwise furnish to Epimmune all evidence and assistance in Nexell's control. The party controlling the suit may not settle the suit or otherwise consent to an adverse judgment in such suit in a manner that would materially impact diminishes the rights or adversely affect interests of the Santarus Patent Rightsnon- controlling party without the express written consent of the non-controlling party. Any judgments, settlements or damages payable with respect to legal proceedings covered by this Section 6.3 Article 7 shall be paid by the Party party which controls the litigation, subject to any claims against the other Party for breach of or indemnification under this Agreement or otherwise available at law or in equity.

Infringement Actions by Third Parties. If a PartyNexell, or to its knowledge, any of its Affiliates, sublicensees or customers shall be sued by a Third party Party for infringement of a Third Party's patent because of the development, manufacture, use or sale of Licensed Products, such Party Nexell shall promptly notify the other Epimmune in writing of the institution of such suit. The Party sued If the alleged infringing process, method or composition is claimed under the Licensed Patent Rights, Nexell shall promptly cease the manufacture, use, sale, offering for sale or importation of the allegedly infringing process, method or composition claimed under the Licensed Patent Rights and Nexell shall have the right, subject to the reasonable approval of Epimmune, to control the defense of such suit at its Nexell's own expense; provided, however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party in which event Epimmune shall have the right to control the defense be represented by advisory counsel of the claim in accordance with Section 9. Each Party its own selection, at its own expense, and shall cooperate fully in the defense of such suit and shall furnish to the other Party Nexell all evidence and assistance in its control. The Party sued shall make a preliminary decision If Nexell does not elect within thirty (30) days after such notice to defend or not defend its interests in such suit and shall so notify the other Party in writing of its decision within *** days of the institution of such a suit. If a Party after electing to defend a suit should at any time elect to drop such defense, said Party shall immediately notify the other Party in writing and permit such other Party to control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party shall have the right, but not the obligation, to defend Epimmune may undertake such control at its interests in such a suitown expense, and Nexell shall then have the right to litigatebe represented by advisory counsel of its own selection, settle or otherwise dispose at its own expense, and Nexell shall cooperate fully in the defense of such suit as it sees fit, provided, however, that TAP and otherwise furnish to Epimmune all evidence and assistance in Nexell's control. The party controlling the suit may not settle the suit or otherwise consent to an adverse judgment in such suit in a manner that would materially impact diminishes the rights or adversely affect interests of the Santarus Patent Rightsnon-controlling party without the express written consent of the non-controlling party. Any judgments, settlements or damages payable with respect to legal proceedings covered by this Section 6.3 Article 7 shall be paid by the Party party which controls the litigation, subject to any claims against the other Party for breach of or indemnification under this Agreement or otherwise available at law or in equity.

Infringement Actions by Third Parties. If a Party, or to its knowledge, any of its sublicensees Affiliates or customers Sublicensees shall be sued by a Third party or threatened to be sued for infringement of a patent or other intellectual property rights of a Third Party because of the reasonable development, manufacture, use or sale of Licensed ProductsCollaboration Compounds, Collaboration Lead Compounds or Products or any other action undertaken by such Party under this Agreement, such Party shall promptly notify the other in writing of the *** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. Ligand Initial [/s/WR] Organon Initial [/s/JV] institution or threat of such suitaction. The Party sued or threatened to be sued shall have the right, in its sole discretion, to control the defense and settlement of such suit claim at its own expense; provided, however, if the Party being sued is being indemnified for such claim by in which event the other Party, then the indemnifying Party shall have the right to control the defense of the claim in accordance with Section 9. Each Party shall cooperate fully in the defense of such suit and shall furnish to the other Party sued all evidence and assistance in its control. The Party sued shall make a preliminary decision to defend or not defend its interests in such suit and shall so notify the other Party in writing of its decision within *** days of the institution of such a suit. If a Party after electing to defend a suit should at any time elect to drop such defense, said Party shall immediately notify the other Party in writing and permit such other Party to control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party shall have the right, but not the obligation, to defend its interests in such a suit, and shall have the right to litigate, settle or otherwise dispose of such suit as it sees fit, provided, however, that TAP may not settle such suit in a manner that would materially impact or adversely affect the Santarus Patent Rights. Any judgments, settlements or damages payable with respect to legal proceedings covered by this Section 6.3 Article 7 shall be paid by the Party which controls the litigation, subject to any claims against the other Party for breach of or indemnification under this Agreement or otherwise available at law or in equity. Any Third Party royalty payments required to be paid as the result of a judgment or settlement under this Article 7 shall be paid by the Party controlling the suit subject to any claims against the other Party for breach of this Agreement or otherwise available at law or in equity; provided, however, (a) in the case of a Product sold by Organon, if such Third Party royalty payments or damages arise from the infringement of a patent published or granted before the date of this Agreement having a claim or claims which cover the screening activities of Ligand or use of Ligand Background Technology under the Research Program, the Third Party royalty payments or damages shall be creditable against the royalty due Ligand under Article 6; or (b) in the case of a Product sold by Organon, if such Third Party royalty payments arise from the infringement of a granted patent published after the date of this Agreement having a claim or claims which cover the screening activities of Ligand or use of Ligand Background Technology under the Research Program, *** per cent (***% ) of the Third Party royalty payments shall be creditable against the royalty due Ligand under Article 6, but in no event shall the royalty due Ligand be reduced by more than ***per cent (***%) under this subsection (b).

Infringement Actions by Third Parties. If a Party, MN or to its knowledge, any of its Affiliates or sublicensees or customers shall be sued by a Third party Party for infringement of a patent because of ** CERTAIN INFORMATION (INDICATED BY ASTERISKS) HAS BEEN OMITTED FROM THIS DOCUMENT PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. AN UNREDACTED VERSION OF THIS DOCUMENT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. the development, manufacture, use importation, use, offer for sale or sale of Licensed the Compound or Products, such Party MN shall promptly notify the other KR in writing of the institution of such suit. The Party sued MN shall have the first right, in its sole discretion, to control the defense of such suit at its own expense; provided, however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party in which event KR shall have the right to control the defense be represented by advisory counsel of the claim in accordance with Section 9. Each Party its own selection, at its own expense, and shall cooperate fully in the defense of such suit and shall furnish to the other Party MN all evidence and assistance in KR’s control. If MN does not elect within thirty (30) days after such notice from MN to KR to so control the defense of such suit, KR may undertake such control at its own expense, and MN shall then have the right to be represented by advisory counsel of its own selection and at its own expense, and MN shall cooperate fully in the defense of such suit and furnish to KR all evidence and assistance in MN’s control. The Party sued shall make a preliminary decision controlling the suit may not settle the suit or otherwise consent to defend or not defend its interests an adverse judgment in such suit and shall so notify that diminishes the other Party in writing of its decision within *** days rights or interests of the institution of such a suit. If a non-controlling Party after electing to defend a suit should at any time elect to drop such defense, said Party shall immediately notify without the other Party in writing and permit such other Party to control the suit at such other Party's expense, in the name express written consent of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party shall have the right, but not the obligation, to defend its interests in such a suit, and shall have the right to litigate, settle or otherwise dispose of such suit as it sees fit, provided, however, that TAP may not settle such suit in a manner that would materially impact or adversely affect the Santarus Patent Rightsnon-controlling Party. Any judgments, settlements Third Party royalty payments required to be paid as the result of a judgment or damages payable with respect to legal proceedings covered by settlement under this Section 6.3 8.9 shall be paid by the Party which controls the litigation, subject to any claims against the other Party for breach provisions of or indemnification under this Agreement or otherwise available at law or in equitySection 4.3 above.

Infringement Actions by Third Parties. If a PartyEOS, SGI or their respective Affiliates, or to its knowledgeEOS’s Sublicensees, any of its sublicensees or customers shall be is sued by a Third party Third-Party for infringement of a Third-Party’s patent because of the developmentuse of the Drug Conjugation Technology, manufacture, use or sale of Licensed Products, such the Party which has been sued shall promptly notify the other in writing Party no event later than [*] ([*])[*] of the institution of such suit. The Party sued notice shall set forth the facts of such infringement and provide evidence of such infringement that is within the notifying Party’s control. SGI shall have the right, in its sole discretion, to control the defense of such suit at its own expense; provided, however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party in which event EOS shall have the right to control the defense be represented by advisory counsel of the claim in accordance with Section 9. Each Party its own selection, at its own expense, and shall cooperate fully in the defense of such suit and shall furnish to the other Party SGI all evidence and assistance in its control. The Party sued shall make a preliminary decision to defend or If SGI does not defend its interests in such suit and shall so notify the other Party in writing of its decision elect within [*] ([** days of the institution ])[*] after receipt of such a suit. If a Party after electing notice to defend a suit should at any time elect to drop such defense, said Party shall immediately notify the other Party in writing and permit such other Party to so control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party shall have the right, but not the obligation, to defend EOS may undertake such control at its interests in such a suitown expense, and SGI shall then have the right to litigatebe represented by advisory counsel of its own selection and at its own expense, and SGI shall cooperate fully in the defense of such suit and furnish to EOS all evidence and assistance in SGI’s control. The Party controlling the suit shall keep the other Party reasonably informed of the status of the suit under this Article 12. In no event may the Party controlling the suit settle or otherwise dispose of consent to an adverse judgment in such suit as it sees fit, provided, however, that TAP may not settle such suit in a manner that would materially impact diminishes the rights or adversely affect interests of the Santarus Patent Rightsnon-controlling Party without the express written consent of the non-controlling Party. Any judgments, awards, settlements or damages payable with respect to legal proceedings covered by this Section 6.3 Article 12 shall be paid by or to the Party which controls the litigation; provided, subject to any claims against however, that if the other Party has elected to be represented by advisory counsel, the other Party shall receive the actual reasonable cost of its legal fees for breach of or indemnification under this Agreement or otherwise available at law or in equitysuch advisory counsel.

Infringement Actions by Third Parties. (a) If a PartyTRIS, AYTU or to its knowledgetheir Affiliates, any of its sublicensees or customers shall be sued or threatened with suit during the Term or with respect to actions during the Term by a Third party Party for infringement of any patent of a patent because Third Party or for misappropriation of any Third Party know-how, trade secret, proprietary, technical or confidential or the development, manufacture, use manufacture and commercialization of a Product (which for purposes of this Section 7 includes an AG Product) in the Territory (other than infringement or misappropriation of any copyright or trademark arising out of the marketing and/or sale of Licensed Productsa Product in the Territory during the Term) (each, an “Infringement Action”), such Party shall promptly notify the other in writing of the institution of such suit. The Party sued shall control the defense of such suit at its own expense; provided, however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party shall have the right to control the defense of the claim in accordance with Section 9. Each Party shall cooperate fully in the defense of such suit and shall furnish to the other Party all evidence and assistance in its control. The Party sued shall make a preliminary decision to defend or not defend its interests in such suit and shall so notify the other Party in writing of its decision within *** days of (whether such action was brought against AYTU or TRIS). During the institution of such a suit. If a Party after electing Term and thereafter with respect to defend a suit should at any time elect to drop such defenseevents arising during the Term, said Party shall immediately notify the other Party in writing and permit such other Party to control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party TRIS shall have the right, but not the obligation, to undertake control of and manage and defend its interests in such a suitInfringement Action, including, without limitation, selection of counsel, and settling such Infringement Action subject to AYTU’s consent as set forth below. AYTU shall, promptly upon TRIS’s request, provide reasonable assistance in conducting the litigation. TRIS shall have the right to litigatesettle the Infringement Action only with the consent of AYTU, settle not to be unreasonably withheld, conditioned or otherwise dispose delayed. For the avoidance of such suit as it sees fitdoubt, provided, however, that TAP may AYTU shall not have the right to settle such suit in a manner that would materially impact or adversely affect the Santarus Patent Rightsaction. Any judgments, settlements or damages payable with respect to legal proceedings covered by this Section 6.3 shall be paid by the Party which controls the litigation, subject to any claims against the other Party for breach of or indemnification under this Agreement or otherwise available at law or in equityEXPLANATORY NOTE: [**] INDICATES THE PORTION OF THIS EXHIBIT THAT HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IN PUBLICLY DISCLOSED.

Infringement Actions by Third Parties. If a Party, or to its knowledge, any of its sublicensees Affiliates or customers Sublicensees shall be sued by a Third party or threatened to be sued for infringement of a patent or other intellectual property rights of a Third Party because of the reasonable development, manufacture, use or sale of Licensed ProductsCollaboration Compounds, Collaboration Lead Compounds or Products or any other action undertaken by such Party under this Agreement, such Party shall promptly notify the other in writing of the institution or threat of such suitaction. The Party sued or threatened to be sued shall have the right, in its sole discretion, to control the defense and settlement of such suit claim at its own expense; provided, however, if the Party being sued is being indemnified for such claim by in which event the other Party, then the indemnifying Party shall have the right to control the defense of the claim in accordance with Section 9. Each Party shall cooperate fully in the defense of such suit and shall furnish to the other Party sued all evidence and assistance in its control. The Party sued shall make a preliminary decision to defend or not defend its interests in such suit and shall so notify the other Party in writing of its decision within *** days of the institution of such a suit. If a Party after electing to defend a suit should at any time elect to drop such defense, said Party shall immediately notify the other Party in writing and permit such other Party to control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party shall have the right, but not the obligation, to defend its interests in such a suit, and shall have the right to litigate, settle or otherwise dispose of such suit as it sees fit, provided, however, that TAP may not settle such suit in a manner that would materially impact or adversely affect the Santarus Patent Rights. Any judgments, settlements or damages payable with respect to legal proceedings covered by this Section 6.3 Article 7 shall be paid by the Party which controls the litigation, subject to any claims against the other Party for breach of or indemnification under this Agreement or otherwise available at law or in equity. Any Third Party royalty payments required to be paid as the result of a judgment or settlement under this Article 7 shall be paid by the Party controlling the suit subject to any claims against the other Party for breach of this Agreement or otherwise available at law or in equity; provided, however, in the case of a Product sold by Xxxxxx-Xxxxxxx, if such Third Party royalty payments arise from the infringement of a patent or other intellectual property rights having a claim or claims which cover the screening activities or Background Technologies of Ligand under the Research Program, the Third Party -------------- *** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. royalty payments shall be equally shared by Xxxxxx-Xxxxxxx and Ligand, but in no event shall the royalty owed by Ligand under this provision exceed the royalty due to Ligand for the Product under Article 6 .

Infringement Actions by Third Parties. If a PartyUT, or to its knowledge, any of its Affiliates, sublicensees or customers shall be sued by a Third party Party for infringement of a Third Party's patent because of the development, manufacture, use or sale of Licensed Products, such Party UT shall promptly notify the other Cortech in writing of the institution of such suit. The Party sued If the alleged infringing process, method or composition is claimed under the Licensed Patent Rights, UT shall promptly cease the manufacture, use, sale, offering for sale or importation of the allegedly infringing process, method or composition claimed under the Licensed Patent Rights and UT shall have the right, subject to the reasonable approval of Cortech, to control the defense of such suit at its UT's own expense; provided, however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party in which event Cortech shall have the right to control the defense be represented by advisory counsel of the claim in accordance with Section 9. Each Party its own selection, at its own expense, and shall cooperate fully in the defense of such suit and shall furnish to the other Party UT all evidence and assistance in its control. The Party sued shall make a preliminary decision If UT does not elect within thirty (30) days after such notice to defend or not defend its interests in such suit and shall so notify the other Party in writing of its decision within *** days of the institution of such a suit. If a Party after electing to defend a suit should at any time elect to drop such defense, said Party shall immediately notify the other Party in writing and permit such other Party to control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, then the other Party shall have the right, but not the obligation, to defend Cortech may undertake such control at its interests in such a suitown expense, and UT shall then have the right to litigatebe represented by advisory counsel of its own selection, settle or otherwise dispose at its own expense, and UT shall cooperate fully in the defense of such suit as it sees fit, provided, however, that TAP and otherwise furnish to Cortech all evidence and assistance in UT's control. The party controlling the suit may not settle the suit or otherwise consent to an adverse judgment in such suit in a manner that would materially impact diminishes the rights or adversely affect interests of the Santarus Patent Rightsnon-controlling party without the express written consent of the non-controlling party. Any judgments, settlements or damages payable with respect to legal proceedings covered by this Section 6.3 Article 8 shall be paid by the Party party which controls the litigation, subject to any claims against the other Party for breach of or indemnification under this Agreement or otherwise available at law or in equity.