Common use of INFRINGEMENT AND OTHER ACTIONS Clause in Contracts

INFRINGEMENT AND OTHER ACTIONS. 9.1 Company and Licensor shall promptly notify each other promptly after becoming aware of any alleged infringement of the Patent Rights, or any challenge or threatened challenge to the validity, enforceability, or priority of any of the Patent Rights, and provide each other with any available evidence of such infringement, challenge or threatened challenge. 9.2 During the term of this Agreement, to the extent permitted by law for as long as Company is the exclusive licensee of the Patent Rights, Company shall have the right, but not the obligation, to prosecute or defend, at its own expense and using counsel of its choice, any infringement of and/or challenge to the Patent Rights. In furtherance of such right, Company may join Licensor as a party in any such suit (and Licensor will join at Company’s request), provided that Company pay all of Licensor’s reasonable out-of-pocket expenses if Licensor is requested to join by Company. Before commencing or responding to any such action, Company shall consult with Licensor regarding the advisability of the action. Company shall indemnify and hold Licensor harmless against any costs, expenses (including attorneys’ fees, whether incurred as the result of a third party claim or a claim to enforce this provision), or liability that may be found or assessed against Licensor in any such suit other than to the extent resulting from Licensor’s gross negligence or willful misconduct. Company may, in its sole discretion, settle or compromise any suit brought in connection with this Agreement, including under Articles 9.2 and 9.3, without the prior consent of Licensor unless such settlement or compromise would adversely affect the validity or enforceability of any Patent Right or would involve any additional obligation of Licensor not already undertaken by Licensor in this Agreement, in which case such settlement or compromise shall require the written consent of Licensor (such consent not to be unreasonably withheld). 9.3 If a claim or suit is asserted or brought against Company alleging that the manufacture or sale of any Licensed Product or Licensed Process by Company, an Affiliate, or any Sublicensee, or the use of such Licensed Product or Licensed Process by any customer, infringes proprietary rights of a third party, Company shall notify Licensor. Company may defend such suit, modify such Licensed Product or Licensed Process to avoid such infringement, and/or settle on terms that it deems advisable, unless such settlement would adversely affect the validity or enforceability of any Patent Right or would involve any additional obligation of Licensor not already undertaken by Licensor in this Agreement, in which case such settlement or compromise will require the written consent of Licensor (such consent not to be unreasonably withheld). If within six (6) months after receiving notice of any alleged infringement, Company shall have been unsuccessful in persuading the alleged infringer to desist, or shall not have Proprietary & Confidential - Do Not Redistribute TRACON Pharmaceuticals, Inc. brought and shall not be diligently prosecuting an infringement action, or if Company shall notify Licensor, at any time prior thereto, of its intention not to bring suit against the alleged infringer, then, and in those events only, Licensor shall have the right, but not the obligation, to defend, at its own expense and use counsel of its choice, any such action. The total cost of any such defense action undertaken solely by Licensor after such six-month period […***…], and […***…] any recovery or damages for infringement or otherwise derived therefrom. 9.4 Any recovery of damages in any suit defended or prosecuted by Company shall be applied (i) pro rata, in satisfaction of any unreimbursed expenses and legal fees of the parties relating to the suit; (ii) to ordinary damages, which shall be equal to (a) Company’s lost profits, (b) a reasonable royalty on the infringing sales, or (c) whatever measure of damages the court shall have applied to compensate for such lost sales and/or profits, […***…], and Company shall pay to Licensor […***…]; and (iii) the balance shall be divided […***…] percent ([…***…]%) to Company and […***…] percent ([…***…]%) to Licensor. However, notwithstanding the foregoing, if Licensor has defended or prosecuted a suit after the six-month period referred to in Article 9.3, then […***…]. 9.5 Company may credit […***…] of any litigation costs incurred by Company in a country in connection with any suit under Articles 9.2 and 9.3, including all amounts paid in judgment or settlement of litigation, against royalties or other fees thereafter payable to Licensor for such country. If […***…] of such litigation costs in a country exceed the royalties payable to Licensor in any year in which such costs are incurred, such amount shall be carried over and credited against royalty payments in future years for such country. 9.6 In any suit to enforce and/or defend the Patent Rights pursuant to this Agreement, the party not in control of such suit shall, at the request and expense of the controlling party, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like.

INFRINGEMENT AND OTHER ACTIONS. 9.1 The Company and the Licensor shall promptly notify each provide written notice, to the other promptly after becoming aware party, of any alleged infringement by a third party of the Patent Rights, or any challenge or threatened challenge to the validity, enforceability, or priority of any of the Patent Rights, Rights and provide each such other party with any available evidence of such infringement, challenge or threatened challenge. 9.2 During the term of this Agreement, to the extent permitted by law for as long as Company is the exclusive licensee of the Patent Rights, Company shall have the right, but not the obligation, to prosecute or and/or defend, at its own expense and using utilizing counsel of its choice, any infringement of of, and/or challenge to to, the Patent Rights. In furtherance of such right, the Licensor hereby agrees that the Company may join the Licensor as a party in any such suit (and Licensor will join at Company’s request)suit, provided that Company pay all without expense to the Licensor. No settlement, consent judgment or other voluntary final disposition of Licensor’s reasonable out-of-pocket expenses if Licensor is requested to join by Company. Before commencing or responding to any such action, Company shall consult with Licensor regarding suit that would adversely affect the advisability rights of the actionLicensor may be entered into without the consent of the Licensor, which consent shall not be unreasonably withheld. The Company shall indemnify and hold the Licensor harmless against any costs, expenses (including attorneys’ fees, whether incurred as the result of a third party claim or a claim to enforce this provision), or liability that may be found or assessed against the Licensor in any such suit other than to the extent resulting from the Licensor’s 's gross negligence negligence, recklessness or willful misconduct. Company may, in its sole discretion, settle or compromise any suit brought in connection with this Agreement, including under Articles 9.2 and 9.3, without the prior consent of Licensor unless such settlement or compromise would adversely affect the validity or enforceability of any Patent Right or would involve any additional obligation of Licensor not already undertaken by Licensor in this Agreement, in which case such settlement or compromise shall require the written consent of Licensor (such consent not to be unreasonably withheld). 9.3 If In the event that a claim or suit is asserted or brought against the Company alleging that the manufacture or sale of any Licensed Product or Licensed Process by the Company, an AffiliateAffiliate of the Company, or any Sublicenseesublicensee, or the use of such Licensed Product or Licensed Process by any customercustomer of any of the foregoing, infringes proprietary rights of a third party, the Company shall notify give written notice thereof to the Licensor. The Company may defend such suitmay, in its sole discretion, modify such Licensed Product or Licensed Process to avoid such infringement, infringement and/or may settle on terms that it deems advisableadvisable in its sole discretion, unless subject to paragraph 9.2. Otherwise, the Company shall have the right, but not the obligation, to defend any such settlement would adversely affect claim or suit. In the validity or enforceability event the Company elects not to defend such suit, the Licensor shall have the right, but not the obligation to do so at its sole expense. 9.4 Any recovery of damages by the Company, in any such suit, shall be applied first in satisfaction of any Patent Right unreimbursed expenses and legal fees of the Company relating to the suit and then to the Licensor for any royalties credited in accordance with paragraph 9.5. The balance remaining from any such recovery shall be shared by the Licensor and the Company seventy percent (70%) to the Company and thirty percent (30%) to the Licensor. 9.5 The Company may credit up to fifty percent (50%) of any reasonable litigation costs incurred by the Company in any country pursuant to this Article 9 and up to 50% of all amounts paid in judgement or would involve any additional obligation settlement of litigation within the scope of this Article 9 against royalties payable to the Licensor not already undertaken by hereunder for such country and apply the same toward one-half of its actual, reasonable out-of-pocket litigation costs. If one-half of such litigation costs in such country exceeds 50% of royalties payable to the Licensor in this Agreementany year in which such costs are incurred than the amount of such costs, expenses and amounts paid in judgement or settlement, in which case excess of 50% of the royalties payable to the Licensor shall be carried over and credited against royalty payments in future years for such settlement or compromise will require the written consent of Licensor (such consent not to be unreasonably withheld). country. 9.6 If within six (6) months after receiving 90 days from receipt of notice by the Company of any alleged infringement, the Company shall have been unsuccessful in persuading the alleged infringer to desist, or shall not have Proprietary & Confidential - Do Not Redistribute TRACON Pharmaceuticals, Inc. brought and shall not be diligently prosecuting an infringement action, or if the Company shall notify the Licensor, at any time prior thereto, of its intention not to bring suit against the alleged infringer, then, and in those events only, the Licensor shall have the right, but not the obligation, to defendprosecute, at its own expense and use utilizing counsel of its choice, any infringement of the Patent Rights, and the Licensor may, for such actionpurposes, join the Company as a party plaintiff. The total cost of any such defense infringement action undertaken commenced solely by the Licensor after such six-month period […***…], shall be borne by the Licensor and […***…] the Licensor shall keep any recovery or damages for infringement or otherwise derived therefromtherefrom and such shall not be applicable to any royalty obligation of the Company. 9.4 Any recovery of damages in any suit defended or prosecuted by Company shall be applied (i) pro rata, in satisfaction of any unreimbursed expenses and legal fees of the parties relating to the suit; (ii) to ordinary damages, which shall be equal to (a) Company’s lost profits, (b) a reasonable royalty on the infringing sales, or (c) whatever measure of damages the court shall have applied to compensate for such lost sales and/or profits, […***…], and Company shall pay to Licensor […***…]; and (iii) the balance shall be divided […***…] percent ([…***…]%) to Company and […***…] percent ([…***…]%) to Licensor. However, notwithstanding the foregoing, if Licensor has defended or prosecuted a suit after the six-month period referred to in Article 9.3, then […***…]. 9.5 Company may credit […***…] of any litigation costs incurred by Company in a country in connection with any suit under Articles 9.2 and 9.3, including all amounts paid in judgment or settlement of litigation, against royalties or other fees thereafter payable to Licensor for such country. If […***…] of such litigation costs in a country exceed the royalties payable to Licensor in any year in which such costs are incurred, such amount shall be carried over and credited against royalty payments in future years for such country. 9.6 9.7 In any suit to enforce and/or defend the Patent Rights pursuant to this License Agreement, the party not in control of such suit shall, at the request and expense of the controlling party, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like.

INFRINGEMENT AND OTHER ACTIONS. 9.1 The Company and the Licensor shall promptly notify each provide written notice, to the other promptly after becoming aware party, of any alleged infringement by a third party of the Patent Rights, or any challenge or threatened challenge to the validity, enforceability, or priority of any of the Patent Rights, Rights and provide each such other party with any available evidence of such infringement, challenge or threatened challenge. 9.2 During the term of this Agreement, to the extent permitted by law for as long as Company is the exclusive licensee of the Patent Rights, Company shall have the right, but not the obligation, to prosecute or and/or defend, at its own expense and using utilizing counsel of its choice, any infringement of of, and/or challenge to to, the Patent Rights. In furtherance of such right, the Licensor hereby agrees that the Company may join the Licensor as a party in any such suit (and Licensor will join at Company’s request)suit, provided that Company pay all without expense to the Licensor. No settlement, consent judgment or other voluntary final disposition of Licensor’s reasonable out-of-pocket expenses if Licensor is requested to join by Company. Before commencing or responding to any such action, Company shall consult with Licensor regarding suit which would adversely affect the advisability rights of the actionLicensor may be entered into without the consent of the Licensor, which consent shall not be unreasonably withheld. The Company shall indemnify and hold the Licensor harmless against any costs, expenses (including attorneys’ fees, whether incurred as the result of a third party claim or a claim to enforce this provision), or liability that may be found or assessed against the Licensor in any such suit other than to the extent resulting from the Licensor’s 's gross negligence negligence, recklessness or willful wilful misconduct. Company may, in its sole discretion, settle or compromise any suit brought in connection with this Agreement, including under Articles 9.2 and 9.3, without the prior consent of Licensor unless such settlement or compromise would adversely affect the validity or enforceability of any Patent Right or would involve any additional obligation of Licensor not already undertaken by Licensor in this Agreement, in which case such settlement or compromise shall require the written consent of Licensor (such consent not to be unreasonably withheld). 9.3 If In the event that a claim or suit is asserted or brought against the Company alleging that the manufacture or sale of any Licensed Product or Licensed Process by the Company, an AffiliateAffiliate of the Company, or any Sublicenseesublicensee, or the use of such Licensed Product or Licensed Process by any customercustomer of any of the foregoing, infringes proprietary rights of a third party, the Company shall notify give written notice thereof to the Licensor. The Company may defend such suitmay, in its sole discretion, modify such Licensed Product or Licensed Process to avoid such infringement, infringement and/or may settle on terms that it deems advisableadvisable in its sole discretion, unless subject to paragraph 9.2. Otherwise, the Company shall have the right, but not the obligation, to defend any such settlement would adversely affect claim or suit. In the validity or enforceability event the Company elects not to defend such suit, the Licensor shall have the right, but not the obligation to do so at its sole expense. 9.4 Any recovery of damages by the Company, in any such suit, shall be applied first in satisfaction of any Patent Right unreimbursed expenses and legal fees of the Company relating to the suit and then to the Licensor for any royalties credited in accordance with paragraph 9.4. The balance remaining from any such recovery shall be treated as royalties received by the Company from sublicensees and shared by the Licensor and the Company eighty percent (80%) to the Company and twenty percent (20%) to the Licensor. 9.5 The Company may credit up to fifty percent (50%) of any reasonable litigation costs incurred by the Company in any country pursuant to this Article 9 and up to 50% of all amounts paid in judgement or would involve any additional obligation settlement of litigation within this Article 9 scope of against royalties thereafter payable to the Licensor not already undertaken by hereunder for such country and apply the same toward one-half of its actual, reasonable out-of-pocket litigation costs. If one-half of such litigation costs in such country exceeds 50% of royalties payable to the Licensor in this Agreementany year in which such costs are incurred than the amount of such costs, expenses and amounts paid in judgement or settlement, in which case excess of such settlement or compromise will require 50% of the written consent of Licensor (royalties payable shall be carried over and credited against royalty payments in future years for such consent not to be unreasonably withheld). country. 9.6 If within six ninety (690) months after receiving days from receipt of notice by the Company of any alleged infringement, the Company shall have been unsuccessful in persuading the alleged infringer to desist, or shall not have Proprietary & Confidential - Do Not Redistribute TRACON Pharmaceuticals, Inc. brought and shall not be diligently prosecuting an infringement action, or if the Company shall notify the Licensor, at any time prior thereto, of its intention not to bring suit against the alleged infringer, then, and in those events only, the Licensor shall have the right, but not the obligation, to defendprosecute, at its own expense and use utilizing counsel of its choice, any infringement of the Patent Rights, and the Licensor may, for such actionpurposes, join the Company as a party plaintiff. The total cost of any such defense infringement action undertaken commenced solely by the Licensor after such six-month period […***…], shall be borne by the Licensor and […***…] the Licensor shall keep any recovery or damages for infringement or otherwise derived therefromtherefrom and such shall not be applicable to any royalty obligation of the Company. 9.4 Any recovery of damages in any suit defended or prosecuted by Company shall be applied (i) pro rata, in satisfaction of any unreimbursed expenses and legal fees of the parties relating to the suit; (ii) to ordinary damages, which shall be equal to (a) Company’s lost profits, (b) a reasonable royalty on the infringing sales, or (c) whatever measure of damages the court shall have applied to compensate for such lost sales and/or profits, […***…], and Company shall pay to Licensor […***…]; and (iii) the balance shall be divided […***…] percent ([…***…]%) to Company and […***…] percent ([…***…]%) to Licensor. However, notwithstanding the foregoing, if Licensor has defended or prosecuted a suit after the six-month period referred to in Article 9.3, then […***…]. 9.5 Company may credit […***…] of any litigation costs incurred by Company in a country in connection with any suit under Articles 9.2 and 9.3, including all amounts paid in judgment or settlement of litigation, against royalties or other fees thereafter payable to Licensor for such country. If […***…] of such litigation costs in a country exceed the royalties payable to Licensor in any year in which such costs are incurred, such amount shall be carried over and credited against royalty payments in future years for such country. 9.6 9.7 In any suit to enforce and/or defend the Patent Rights pursuant to this License Agreement, the party not in control of such suit shall, at the request and expense of the controlling party, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like.

INFRINGEMENT AND OTHER ACTIONS. 9.1 10.1 The Company and the Licensor shall promptly notify each provide written notice, to the other promptly after becoming aware party, of any alleged infringement by a third party of the Patent Rights, or any challenge or threatened challenge to the validity, enforceability, or priority of any of the Patent Rights, Rights and provide each such other party with any available evidence of such infringement, challenge or threatened challenge. 9.2 10.2 During the term of this Agreement, to the extent permitted by law for as long as Company is the exclusive licensee of the Patent Rights, Company shall have the right, but not the obligation, to prosecute or and/or defend, at its own expense and using utilizing counsel of its choice, any infringement of of, and/or challenge to to, the Patent Rights. In furtherance of such right, the Licensor hereby agrees that the Company may join the Licensor as a party in any such suit (and Licensor will join at Company’s request)suit, provided that Company pay all without expense to the Licensor. No settlement, consent judgment or other voluntary final disposition of Licensor’s reasonable out-of-pocket expenses if Licensor is requested to join by Company. Before commencing or responding to any such action, Company shall consult with Licensor regarding suit which would adversely affect the advisability rights of the actionLicensor may be entered into without the consent of the Licensor, which consent shall not be unreasonably withheld. The Company shall indemnify and hold the Licensor harmless against any costs, expenses (including attorneys’ fees, whether incurred as the result of a third party claim or a claim to enforce this provision), or liability that may be found or assessed against the Licensor in any such suit other than to the extent resulting from the Licensor’s gross 's negligence or willful wilful misconduct. Company may, in its sole discretion, settle or compromise any suit brought in connection with this Agreement, including under Articles 9.2 and 9.3, without the prior consent of Licensor unless such settlement or compromise would adversely affect the validity or enforceability of any Patent Right or would involve any additional obligation of Licensor not already undertaken by Licensor in this Agreement, in which case such settlement or compromise shall require the written consent of Licensor (such consent not to be unreasonably withheld). 9.3 If 10.3 In the event that a claim or suit is asserted or brought against the Company alleging that the manufacture or sale of any Licensed Product or Licensed Process by the Company, an AffiliateAffiliate of the Company, or any Sublicenseesublicensee, or the use of such Licensed Product or Licensed Process by any customercustomer of any of the foregoing, infringes proprietary rights of a third party, the Company shall notify give written notice thereof to the Licensor. The Company may defend such suitmay, in its sole discretion, modify such Licensed Product or Licensed Process to avoid such infringement, infringement and/or may settle on terms that it deems advisableadvisable in its sole discretion, unless subject to paragraph 10.2. Otherwise, the Company shall have the right, but not the obligation, to defend any such settlement would adversely affect claim or suit. In the validity or enforceability event the Company elects not to defend such suit, the Licensor shall have the right, but not the obligation to do so at its sole expense. 10.4 Any recovery of damages by the Company, in any such suit, shall be applied first in satisfaction of any Patent Right unreimbursed expenses and legal fees of the Company relating to the suit and then to the Licensor for any royalties credited in accordance with paragraph 10.5. The balance remaining from any such recovery shall be treated as royalties received by the Company from sublicensees and shared by the Licensor and the Company in accordance with Paragraph 4.1.2 hereof. 10.5 The Company may credit up to fifty percent (50%) of any litigation costs incurred by the Company in any country pursuant to this Article 10 and up to 50% of all amounts paid in judgement or would involve any additional obligation settlement of litigation pursuant to this Article 10 against royalties thereafter payable to the Licensor not already undertaken by hereunder for such country and apply the same toward one-half of its actual, reasonable out-of-pocket litigation costs. If one-half of such litigation costs in such country exceeds 50% of royalties payable to the Licensor in this Agreementany year in which such costs are incurred than the amount of such costs, expenses and amounts paid in judgement or settlement, in which case excess of such settlement or compromise will require 50% of the written consent of Licensor (royalties payable shall be carried over and credited against royalty payments in future years for such consent not to be unreasonably withheld). country. 10.6 If within six (6) months after receiving notice of any alleged infringement, the Company shall have been unsuccessful in persuading the alleged infringer to desist, or shall not have Proprietary & Confidential - Do Not Redistribute TRACON Pharmaceuticals, Inc. brought and shall not be diligently prosecuting an infringement action, or if the Company shall notify the Licensor, at any time prior thereto, of its intention not to bring suit against the alleged infringer, then, and in those events only, the Licensor shall have the right, but not the obligation, to defendprosecute, at its own expense and use utilizing counsel of its choice, any infringement of the Patent Rights, and the Licensor may, for such actionpurposes, join the Company as a party plaintiff. The total cost of any such defense infringement action undertaken commenced solely by the Licensor after such six-month period […***…], shall be borne by the Licensor and […***…] the Licensor shall keep any recovery or damages for infringement or otherwise derived therefromtherefrom and such shall not be applicable to any royalty obligation of the Company. 9.4 Any recovery of damages in any suit defended or prosecuted by Company shall be applied (i) pro rata, in satisfaction of any unreimbursed expenses and legal fees of the parties relating to the suit; (ii) to ordinary damages, which shall be equal to (a) Company’s lost profits, (b) a reasonable royalty on the infringing sales, or (c) whatever measure of damages the court shall have applied to compensate for such lost sales and/or profits, […***…], and Company shall pay to Licensor […***…]; and (iii) the balance shall be divided […***…] percent ([…***…]%) to Company and […***…] percent ([…***…]%) to Licensor. However, notwithstanding the foregoing, if Licensor has defended or prosecuted a suit after the six-month period referred to in Article 9.3, then […***…]. 9.5 Company may credit […***…] of any litigation costs incurred by Company in a country in connection with any suit under Articles 9.2 and 9.3, including all amounts paid in judgment or settlement of litigation, against royalties or other fees thereafter payable to Licensor for such country. If […***…] of such litigation costs in a country exceed the royalties payable to Licensor in any year in which such costs are incurred, such amount shall be carried over and credited against royalty payments in future years for such country. 9.6 10.7 In any suit to enforce and/or defend the Patent Rights pursuant to this License Agreement, the party not in control of such suit shall, at the request and expense of the controlling party, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like.

INFRINGEMENT AND OTHER ACTIONS. 9.1 The Company and the Licensor shall promptly notify each provide written notice, to the other promptly after becoming aware party, of any alleged infringement by a third party of the Patent Rights, or any challenge or threatened challenge to the validity, enforceability, or priority of any of the Patent Rights, Rights and provide each such other party with any available evidence of such infringement, challenge or threatened challenge. 9.2 During the term of this Agreement, to the extent permitted by law for as long as Company is the exclusive licensee of the Patent Rights, Company shall have the right, but not the obligation, to prosecute or and/or defend, at its own expense and using utilizing counsel of its choice, any infringement of of, and/or challenge to to, the Patent Rights. In furtherance of such right, the Licensor hereby agrees that the Company may join the Licensor as a party in any such suit (and Licensor will join at Company’s request)suit, provided that Company pay all without expense to the Licensor. No settlement, consent judgment or other voluntary final disposition of Licensor’s reasonable out-of-pocket expenses if Licensor is requested to join by Company. Before commencing or responding to any such action, Company shall consult with Licensor regarding suit which would adversely affect the advisability rights of the actionLicensor may be entered into without the consent of the Licensor, which consent shall not be unreasonably withheld. The Company shall indemnify and hold the Licensor harmless against any costs, expenses (including attorneys’ fees, whether incurred as the result of a third party claim or a claim to enforce this provision), or liability that may be found or assessed against the Licensor in any such suit other than to the extent resulting from the Licensor’s 's gross negligence negligence, recklessness or willful misconduct. Company may, in its sole discretion, settle or compromise any suit brought in connection with this Agreement, including under Articles 9.2 and 9.3, without the prior consent of Licensor unless such settlement or compromise would adversely affect the validity or enforceability of any Patent Right or would involve any additional obligation of Licensor not already undertaken by Licensor in this Agreement, in which case such settlement or compromise shall require the written consent of Licensor (such consent not to be unreasonably withheld). 9.3 If In the event that a claim or suit is asserted or brought against the Company alleging that the manufacture or sale of any Licensed Product or Licensed Process by the Company, an AffiliateAffiliate of the Company, or any Sublicenseesublicensee, or the use of such Licensed Product or Licensed Process by any customercustomer of any of the foregoing, infringes proprietary rights of a third party, the Company shall notify give written notice thereof to the Licensor. The Company may defend such suitmay, in its sole discretion, modify such Licensed Product or Licensed Process to avoid such infringement, infringement and/or may settle on terms that it deems advisableadvisable in its sole discretion, unless subject to paragraph 9.2. Otherwise, the Company shall have the right, but not the obligation, to defend any such settlement would adversely affect claim or suit. In the validity or enforceability event the Company elects not to defend such suit, the Licensor shall have the right, but not the obligation to do so at its sole expense. 9.4 Any recovery of damages by the Company, in any such suit brought by the Company, shall be applied first in satisfaction of any Patent Right or would involve unreimbursed expenses and legal fees of the Company relating to the suit. The balance remaining from any additional obligation such recovery shall be shared 80% to the Company and 20% to the Licensor. Any recovery of Licensor not already undertaken damages by Licensor in this Agreementthe Licensor, in which case any such settlement or compromise will require suit brought by the written consent Licensor, shall be applied first in satisfaction of any unreimbursed expense and legal fees of the Licensor (relating to such consent not suit. The balance remaining from any such recovery shall be shared 80% to be unreasonably withheld). the Licensor and 20% to the Company. 9.5 If within six (6) months after receiving notice of any alleged infringement, the Company shall have been unsuccessful in persuading the alleged infringer to desist, or shall not have Proprietary & Confidential - Do Not Redistribute TRACON Pharmaceuticals, Inc. brought and shall not be diligently prosecuting an infringement action, or if the Company shall notify the Licensor, at any time prior thereto, of its intention not to bring suit against the alleged infringer, then, and in those events only, the Licensor shall have the right, but not the obligation, to defendprosecute, at its own expense and use utilizing counsel of its choice, any infringement of the Patent Rights, and the Licensor may, for such actionpurposes, join the Company as a party plaintiff. The total cost of any such defense infringement action undertaken commenced solely by the Licensor after such six-month period […***…], shall be borne by the Licensor and […***…] the Licensor shall keep any recovery or damages for infringement or otherwise derived therefrom. 9.4 Any recovery of damages in therefrom and such shall not be applicable to any suit defended or prosecuted by Company shall be applied (i) pro rata, in satisfaction of any unreimbursed expenses and legal fees payment obligation of the parties relating to the suit; (ii) to ordinary damages, which shall be equal to (a) Company’s lost profits, (b) a reasonable royalty on the infringing sales, or (c) whatever measure of damages the court shall have applied to compensate for such lost sales and/or profits, […***…], and Company shall pay to Licensor […***…]; and (iii) the balance shall be divided […***…] percent ([…***…]%) to Company and […***…] percent ([…***…]%) to Licensor. However, notwithstanding the foregoing, if Licensor has defended or prosecuted a suit after the six-month period referred to in Article 9.3, then […***…]. 9.5 Company may credit […***…] of any litigation costs incurred by Company in a country in connection with any suit under Articles 9.2 and 9.3, including all amounts paid in judgment or settlement of litigation, against royalties or other fees thereafter payable to Licensor for such country. If […***…] of such litigation costs in a country exceed the royalties payable to Licensor in any year in which such costs are incurred, such amount shall be carried over and credited against royalty payments in future years for such country. 9.6 In any suit to enforce and/or defend the Patent Rights pursuant to this License Agreement, the party not in control of such suit shall, at the request and expense of the controlling party, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like.

INFRINGEMENT AND OTHER ACTIONS. 9.1 The Company and Licensor shall promptly notify each provide written notice, to the other promptly after becoming aware party, of any alleged infringement by a third party of the Patent Rights, or any challenge or threatened challenge to the validity, enforceability, or priority of any of the Patent Rights, Rights and provide each such other party with any available evidence of such infringement, challenge or threatened challenge. Licensor and Company shall consult one another in a timely manner concerning any appropriate response to the infringement. 9.2 During the term of this Agreement, to the extent permitted by law for as long as Company is the exclusive licensee of the Patent Rights, Company shall have the right, but not the obligation, to prosecute or and/or defend, at its own expense and using utilizing counsel of its choice, any infringement of of, and/or challenge to to, the Patent Rights. In furtherance of such right, Licensor hereby agrees that the Company may join Licensor as a party in any such suit (and Licensor will join at the Company’s request), provided that the Company pay all of Licensor’s reasonable out-of-pocket expenses if Licensor is requested to join by Companyexpenses. Before commencing or responding to any such action, Company shall consult with Licensor regarding the advisability of the action. The Company shall indemnify and hold Licensor harmless against any costs, expenses (including attorneys’ feesexpenses, whether incurred as the result of a third party claim liability, claims or a claim to enforce this provision), damages made against or liability that may be found or assessed against sustained by Licensor in any connection with such suit involvement, other than to the extent resulting from Licensor’s gross 's negligence or willful misconduct. Company may, in its sole discretion, may not settle or compromise any such suit brought in connection with this Agreement, including under Articles 9.2 and 9.3, without the prior consent of Licensor unless such settlement a manner that imposes additional obligations or compromise would adversely affect the validity or enforceability of any Patent Right or would involve any additional obligation of restrictions on Licensor not already undertaken imposed by Licensor in this Agreement, in which case such settlement or compromise Agreement without Licensor’s written permission. Any recovery of damages pursuant to this Paragraph 9.2 shall require be retained entirely by the written consent of Licensor (such consent not Company and allocated pursuant to be unreasonably withheld)9.4 below. 9.3 If In the event that a claim or suit is asserted or brought against the Company alleging that the manufacture or sale of any Licensed Product or Licensed Process by the Company, an AffiliateAffiliate of the Company, or any Sublicenseesublicensee, or the use of such Licensed Product or Licensed Process by any customercustomer of any of the foregoing, infringes proprietary rights of a third party, the Company shall notify give written notice thereof to Licensor. The Company may defend such suitmay, in its sole discretion, modify such Licensed Product or Licensed Process to avoid such infringement, infringement and/or may settle on terms that it deems advisableadvisable in its sole discretion, unless subject to paragraph 9.2. Otherwise, the Company shall have the right, but not the obligation, to defend any such settlement would adversely affect claim or suit. In the validity or enforceability event the Company elects not to defend such suit, Licensor shall have the right, but not the obligation to do so at its sole expense. 9.4 Any recovery of damages by the Company, in any such suit, shall be applied first in satisfaction of any Patent Right or would involve unreimbursed expenses and legal fees of the Company relating to the suit. The balance remaining from any additional obligation of Licensor not already undertaken such recovery shall be treated as royalties received by the Company from sublicensees and shared by Licensor and the Company in accordance with Paragraphs 4.1 and 4.2 hereof as applicable. 9.5 The Company may credit the cost of any litigation costs incurred by the Company in any country pursuant to this AgreementArticle 9 including all amounts paid in judgment or settlement of litigation within the scope of this Article 9 against royalties or other fees thereafter payable to the Licensors hereunder for such country. If the costs of such litigation in such country exceeds the royalties payable to the Licensors in any year in which such costs are incurred then the amount of such costs, expenses and amounts paid in judgment or settlement, in which case excess of the royalties payable shall be carried over and credited against royalty payments in future years for such settlement or compromise will require the written consent of Licensor (such consent not to be unreasonably withheld). country. 9.6 If within six (6) months after receiving notice of any alleged infringement, the Company shall have been unsuccessful in persuading the alleged infringer to desist, or shall not have Proprietary & Confidential - Do Not Redistribute TRACON Pharmaceuticals, Inc. brought and shall not be diligently prosecuting an infringement action, or if the Company shall notify Licensor, at any time prior thereto, of its intention not to bring suit against the alleged infringer, then, and in those events only, Licensor shall have the right, but not the obligation, to defendprosecute, at its own expense and use utilizing counsel of its choice, any infringement of the Patent Rights, and the Company may, for such actionpurposes, join the Licensor as a party plaintiff. The total cost of any such defense infringement action undertaken commenced solely by Licensor after such six-month period […***…], shall be borne by Licensor and […***…] Licensor shall keep any recovery or damages for infringement or otherwise derived therefromtherefrom and such shall not be applicable to any royalty obligation of the Company. 9.4 Any recovery of damages in any suit defended or prosecuted by Company shall be applied (i) pro rata, in satisfaction of any unreimbursed expenses and legal fees of the parties relating to the suit; (ii) to ordinary damages, which shall be equal to (a) Company’s lost profits, (b) a reasonable royalty on the infringing sales, or (c) whatever measure of damages the court shall have applied to compensate for such lost sales and/or profits, […***…], and Company shall pay to Licensor […***…]; and (iii) the balance shall be divided […***…] percent ([…***…]%) to Company and […***…] percent ([…***…]%) to Licensor. However, notwithstanding the foregoing, if Licensor has defended or prosecuted a suit after the six-month period referred to in Article 9.3, then […***…]. 9.5 Company may credit […***…] of any litigation costs incurred by Company in a country in connection with any suit under Articles 9.2 and 9.3, including all amounts paid in judgment or settlement of litigation, against royalties or other fees thereafter payable to Licensor for such country. If […***…] of such litigation costs in a country exceed the royalties payable to Licensor in any year in which such costs are incurred, such amount shall be carried over and credited against royalty payments in future years for such country. 9.6 9.7 In any suit to enforce and/or defend the Patent Rights pursuant to this Agreement, the party not in control of such suit shall, at the request and expense of the controlling party, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like.

INFRINGEMENT AND OTHER ACTIONS. 9.1 The Company and Licensor shall promptly notify each provide written notice, to the other promptly after becoming aware party, of any alleged infringement by a third party of the Patent Rights, or any challenge or threatened challenge to the validity, enforceability, or priority of any of the Patent Rights, Rights and provide each such other party with any available evidence of such infringement, challenge or threatened challenge. 9.2 During the term of this Agreement, to the extent permitted by law for as long as Company is the exclusive licensee of the Patent Rights, Company shall have the right, but not the obligation, to prosecute or and/or defend, at its own expense and using utilizing counsel of its choice, any infringement of of, and/or challenge to to, the Patent Rights. In furtherance of such right, Licensor hereby agrees that the Company may join Licensor as a party in any such suit (and Licensor will join at the Company’s request), provided that the Company pay pays all of Licensor’s reasonable out-of-pocket expenses if Licensor is requested to join by Companyexpenses. Before commencing or responding to any such action, Company shall consult with Licensor regarding the advisability of the action. The Company shall indemnify and hold Licensor harmless against any costs, expenses (including attorneys’ fees, whether incurred as the result of a third party claim or a claim to enforce this provision), or liability that may be found or assessed against Licensor in any such suit other than to the extent resulting from Licensor’s gross negligence or willful misconduct. Any recovery of damages pursuant to this Section 9.2 shall be retained entirely by the Company may, in its sole discretion, settle or compromise any suit brought in connection with this Agreement, including under Articles 9.2 and 9.3, without the prior consent of Licensor unless such settlement or compromise would adversely affect the validity or enforceability of any Patent Right or would involve any additional obligation of Licensor not already undertaken by Licensor in this Agreement, in which case such settlement or compromise shall require the written consent of Licensor (such consent not allocated pursuant to be unreasonably withheld)Section 9.4 below. 9.3 If In the event that a claim or suit is asserted or brought against the Company alleging that the manufacture or sale of any Licensed Product or Licensed Process by the Company, an AffiliateAffiliate of the Company, or any Sublicenseesublicensee, or the use of such Licensed Product or Licensed Process by any customercustomer of any of the foregoing, infringes proprietary rights of a third party, the Company shall notify give written notice thereof to Licensor. The Company may defend such suitmay, in its sole discretion, modify such Licensed Product or Licensed Process to avoid such infringement, infringement and/or may settle on terms that it deems advisableadvisable in its sole discretion, unless subject to Section 9.2 above. Otherwise, the Company shall have the right, but not the obligation, to defend any such settlement would adversely affect claim or suit. In the validity or enforceability event the Company elects not to defend such suit, Licensor shall have the right, but not the obligation to do so at its sole expense. 9.4 Any recovery of damages by the Company, in any such suit, shall be applied first in satisfaction of any Patent Right or would involve unreimbursed expenses and legal fees of the Company relating to the suit. The balance remaining from any additional obligation of Licensor not already undertaken such recovery shall be treated as royalties received by the Company from sublicensees and shared by Licensor and the Company in this Agreement, in which case such settlement or compromise will require the written consent of Licensor (such consent not to be unreasonably withheld). accordance with Section 4.1.1. 9.5 If within six six- (6) months after receiving notice of any alleged infringement, the Company shall have been unsuccessful in persuading the alleged infringer to desist, or shall not have Proprietary & Confidential - Do Not Redistribute TRACON Pharmaceuticals, Inc. brought and shall not be diligently prosecuting an infringement action, or if the Company shall notify Licensor, at any time prior thereto, of its intention not to bring suit against the alleged infringer, then, and in those events only, Licensor shall have the right, but not the obligationeobligation, to defendprosecute, at its own expense and use utilizing counsel of its choice, any infringement of the Patent Rights, and the Company may, for such actionpurposes, join the Licensor as a party plaintiff. The total cost of any such defense infringement action undertaken commenced solely by Licensor after such six-month period […***…], shall be borne by Licensor and […***…] Licensor shall keep any recovery or damages for infringement or otherwise derived therefrom. 9.4 Any recovery of damages in therefrom and such shall not be applicable to any suit defended or prosecuted by Company shall be applied (i) pro rata, in satisfaction of any unreimbursed expenses and legal fees royalty obligation of the parties relating to the suit; (ii) to ordinary damages, which shall be equal to (a) Company’s lost profits, (b) a reasonable royalty on the infringing sales, or (c) whatever measure of damages the court shall have applied to compensate for such lost sales and/or profits, […***…], and Company shall pay to Licensor […***…]; and (iii) the balance shall be divided […***…] percent ([…***…]%) to Company and […***…] percent ([…***…]%) to Licensor. However, notwithstanding the foregoing, if Licensor has defended or prosecuted a suit after the six-month period referred to in Article 9.3, then […***…]. 9.5 Company may credit […***…] of any litigation costs incurred by Company in a country in connection with any suit under Articles 9.2 and 9.3, including all amounts paid in judgment or settlement of litigation, against royalties or other fees thereafter payable to Licensor for such country. If […***…] of such litigation costs in a country exceed the royalties payable to Licensor in any year in which such costs are incurred, such amount shall be carried over and credited against royalty payments in future years for such country. 9.6 In any suit to enforce and/or defend the Patent Rights pursuant to this Agreement, the party not in control of such suit shall, at the request and expense of the controlling party, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like.