Common use of Infringement of Third Party Rights Clause in Contracts

Infringement of Third Party Rights. If, as a result of the manufacture, use or sale of any Product in any country of the Territory, a third party sues, threatens to xxx, or brings other action for patent infringement against Focal or Ethicon and/or any of their respective Affiliates (an "Infringement Claim"), or if either party shall become aware of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response to such claim and shall determine by mutual agreement an appropriate course of action. (A) If an Infringement Claim exists with respect to an Initial Product or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territory, then (1) Focal shall be responsible for obtaining such license from such third-party and shall pay all costs and fees associated with such license, and (2) Ethicon shall have the right to suspend performance of its obligations (other than payment obligations arising prior to such suspension) with respect to such Initial Product or Improved Product in the country or countries in which such Infringement Claim poses a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each shall bear [*] of the costs and fees associated with such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty to any such third party in any country of the Territory, then Ethicon shall have the right to deduct an amount equal to [*] of such payments made by Ethicon to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product; provided, however, that in no event shall such royalty or such portion of the Purchase Price be reduced in any quarter by more than [*]. Any portion of a deduction that is not available for the quarter due to the foregoing limitation may be carried forward and deducted from payments otherwise due hereunder for subsequent quarters. (C) [*]

Infringement of Third Party Rights. If, as a result of In the manufacture, use or sale of event that any Product in any country manufactured, used or sold under this Agreement becomes the subject of a Third Party claim or there is the Territory, potential for a third party sues, threatens to xxx, or brings other action claim for patent infringement against Focal anywhere in the world, and irrespective of whether Gilead or Ethicon and/or any of their respective Affiliates (an "Infringement Claim")Roche is charged with said infringement, or if either party the parties shall become aware of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response promptly meet to such consider the claim and shall determine by mutual agreement an the appropriate course of action. (A) . Unless the parties otherwise agree, the party against which such Third Party infringement claim is brought shall defend against such claim at its sole expense and the other party shall have the right, but not the obligation, to participate in any such suit, at its sole option and at its own expense. Such other party shall reasonably cooperate with the party conducting the defense of the claim, including if required to conduct such defense, furnishing a power of attorney. Neither party shall enter into any settlement that affects the other party's rights or interests without such other party's written consent, which consent shall not be unreasonably withheld. If an Infringement Claim exists in the opinion of Roche's counsel, a license with respect to an Initial Product such Third Party patents is necessary to avoid substantial risks which could prevent Roche from making, using, selling, offering for sale or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territoryimporting Product, then (1) Focal Roche shall be responsible notify Gilead of such conclusion and the basis for obtaining such license from such third-party it and shall pay all costs and fees associated with such licensegive Gilead a reasonable opportunity to discuss Roche's opinion. If Gilead concurs in Roche's opinion, and (2) Ethicon Roche shall have the right to suspend performance negotiate directly with such Third Party for a license, and Roche shall be entitled to apply [ ] of its obligations (other than payment obligations arising prior to such suspension) with respect to such Initial Product or Improved Product Third Party Royalties for Net Sales in the country or countries in which such Infringement Claim poses where the claim exists, as a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each shall bear [*] of the costs and fees associated with such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty to any such third party in any country of the Territory, then Ethicon shall have the right to deduct an amount equal to [*] of such payments made by Ethicon to such third party (1) from any credit against royalties payable to Focal on the sale of such Product in such country pursuant to due under Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product5.3; provided, however, that the aggregate credit taken in no event any given calendar quarter shall such royalty or such portion not exceed [ ] of the Purchase Price royalties payable to Gilead during that quarter, on a country-by-country basis, and shall be reduced subject to further limitations as expressly set forth in any quarter by more than [*]. Any portion of a deduction that is not available for the quarter due to the foregoing limitation may be carried forward and deducted from payments otherwise due hereunder for subsequent quartersSection 5. (C) [*]

Infringement of Third Party Rights. If, as In the event that any SDC Product(s) developed under this Agreement becomes the subject of a result of Third Party claim or there is the manufacture, use or sale of any Product in any country of the Territory, potential for a third party sues, threatens to xxx, or brings other action claim for patent infringement against Focal anywhere in the world, and irrespective of whether THERAPEUTICS or Ethicon and/or any of their respective Affiliates (an "Infringement Claim")INNOVATIVE is charged with said infringement, or if either party the Parties shall become aware of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response promptly meet to such consider the claim and shall determine by mutual agreement an the appropriate course of action. (A) If an Infringement Claim exists with respect to an Initial Product or an Improved Product that comprises . Unless the Lung Sealant Formulation or Parties otherwise agree, the Dural Sealant Formulation, Party against which such Third Party infringement claim is brought shall defend against such claim at its sole expense and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territory, then (1) Focal shall be responsible for obtaining such license from such third-party and shall pay all costs and fees associated with such license, and (2) Ethicon other Party shall have the right right, but not the obligation, to suspend performance participate in any such suit, at its sole option and at its own expense. Such other Party shall reasonably cooperate with the Party conducting the defense of its obligations (the claim, including if required to conduct such defense, furnishing a power of attorney. Neither Party shall W02-W97-oc:LGA\41332973.5 FINAL DEVELOPMENT AND LICENSING AGREEMENT CONFIDENTIAL DATED SEPTEMBER 5, 2003 BY AND BETWEEN INNOVATIVE MEDICAL SERVICES AND THERAPEUTICS, INC. Page 21 OF 43 enter into any settlement that affects the other than payment obligations arising prior to Party's rights or interests without such suspension) other Party's written consent, which consent shall not be unreasonably withheld. If in the opinion of INNOVATIVE's counsel, a license with respect to such Initial Product Third Party patents is necessary to avoid substantial risks which could prevent INNOVATIVE, THERAPEUTICS or Improved Product a sublicensee from making, using, marketing, offering for sale or selling an SDC Product(s), then INNOVATIVE shall notify THERAPEUTICS of such conclusion and the basis for it and give THERAPEUTICS a reasonable opportunity to discuss INNOVATIVE's opinion. If THERAPEUTICS concurs in INNOVATIVE's opinion, INNOVATIVE shall have the country or countries in which right, but not the obligation, to negotiate directly with such Infringement Claim poses Third Party for a license. If THERAPEUTICS does not concur with INNOVATIVE's opinion, the matter shall be submitted to an independent counsel, selected by mutual consent and paid equally by INNOVATIVE and THERAPEUTICS, to determine whether there is a substantial riskrisk of infringement of such Third Party rights. If such independent counsel determines that a substantial risk exists, then INNOVATIVE may, but shall not be required or obligated, to negotiate directly with such suspension right to remain in effect until Focal obtains Third Party on behalf of the Parties. If such independent counsel determines that a substantial risk does not exist, then INNOVATIVE may still negotiate for a license from such third party or the Infringement Claim is otherwise resolved Third Party if it elects to Ethicon's satisfaction. As used abovedo so, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does but shall not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each shall bear [*] of the costs and fees associated with such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty do so. 1. If the infringement results from the utilization of INNOVATIVE Patent Rights or INNOVATIVE Know-How in existence or acquired prior to any such third party in any country the Effective Date of the Territorythis Agreement, then Ethicon INNOVATIVE shall have the right not be entitled to deduct an amount equal to [*] reimbursement of any of such payments made by Ethicon expense under Section 3.6(c) of this Agreement or otherwise. If the infringement results from utilization of INNOVATIVE Patent Rights or INNOVATIVE Know-How developed or acquired after the Effective Date pf this Agreement, INNOVATIVE shall be entitled to such third party (1) from any royalties payable reimbursement of 50% for SDC Core Technology and 100% of specific medical patents related to Focal on the sale SDC Healthcare or Personal Care Products of such Product in such country pursuant to expense under Section 6(d3.6(c), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product; provided, however, that in no event shall such royalty or such portion of the Purchase Price be reduced in any quarter by more than [*]. Any portion of a deduction that is not available for the quarter due to the foregoing limitation may be carried forward and deducted from payments otherwise due hereunder for subsequent quarters. (C) [*]

Infringement of Third Party Rights. If, as LICENSEE or its Affiliate shall promptly notify MPC in writing of any allegation by a result of Third Party that the manufacture, use development, importation, use, offer for sale or sale of any a Compound or Product covered by the MPC Intellectual Property, infringes or may infringe the intellectual property rights of such Third Party in any country of the LICENSEE Territory. LICENSEE or its Affiliate or sublicensee shall have the first right to control the defense of any claim alleging that the manufacture, development, importation, use, offer for sale or sale of such Compound or Product in the LICENSEE Territory infringes any such Third Party rights or may settle on terms that it deems advisable in its sole discretion, provided that any final disposition of the litigation that will restrict the claims in or admit any invalidity of any MPC Patent shall not be made without full consultation with and approval by MPC, not to be unreasonably withheld. If LICENSEE or its Affiliate or sublicensee fails to proceed in a third party sues, threatens to xxx, or brings other action for patent infringement against Focal or Ethicon and/or any of their respective Affiliates (an "Infringement Claim"), or if either party shall become aware of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response to such claim and shall determine by mutual agreement an appropriate course of action. (A) If an Infringement Claim exists timely manner with respect to an Initial Product or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulationsuch defense, and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territory, then (1) Focal shall be responsible for obtaining such license from such third-party and shall pay all costs and fees associated with such license, and (2) Ethicon MPC shall have the right to suspend performance of its obligations (other than payment obligations arising prior to such suspension) with respect to such Initial Product or Improved Product in control the country or countries in which such Infringement Claim poses a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims defense of such third-party patent coverclaim. The Parties shall consult and cooperate fully to determine a course of action. If, the manufacturefinally, use LICENSEE or sale its Affiliate or sublicensee is required by order or judgment of any court in any jurisdiction, or LICENSEE or its Affiliate or sublicensee in its sole discretion after having obtained an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a Newoutside legal opinion, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and believes it is jointly determined to be necessary to obtain a license, obtains a license under such intellectual property right from such third partyThird Party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable makes payments to such third partyThird Party to avoid alleged infringement, and each shall bear then [*] of the costs and fees associated with royalty or other payments required to be paid by LICENSEE or its Affiliate or sublicensee to such license. In Third Party as the event that Ethicon result of a judgment or settlement under this Section 9.6 (“Third Party Payment”) shall be obligated creditable against the royalty payments pursuant to pay a license fee and/or royalty Section 5.3 due MPC with respect to any such third party in any country of the Territory, then Ethicon shall have the right to deduct an amount equal to [*] of such payments made by Ethicon to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d)country, and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product; provided, however, that in no event shall such royalty or such portion of the Purchase Price royalties payable to MPC be reduced in any quarter by more to less than [*]. Any ] of the amount due under this Agreement, and provided further any remaining portion the [*] of a deduction that is the Third Party Payment not available for the quarter due credited pursuant to the foregoing limitation this Section 9.6 may be carried forward and deducted from payments otherwise due hereunder over against the royalties payable to MPC for the subsequent quartersperiod in which the royalties are due. Each Party shall have the right to participate in the defense of any such claim with counsel of its choice at its own expense. (C) [*]

Infringement of Third Party Rights. If, as Each Party shall promptly notify the other in writing of any allegation by a result Third Party that the activity of either of the manufactureParties pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. (a) With respect to any claim alleging that (i) the Commercialization of Products in the Territory in accordance with the terms of this Agreement or (ii) the conduct of development activities by either Party under a Development Plan in accordance with the terms of this Agreement, use excluding Pre-Approval Required Development or sale Post-Approval Required Development, in either case ((i) and (ii)) infringes the intellectual property rights of any Product Third Party, the Parties shall discuss which Party shall defend the action, and absent an agreement otherwise, Eisai shall have the initial right to control any defense of any such claim by counsel of its own choice and reasonably acceptable to Arena, and Arena shall have the right, at its own expense (which shall not be costs or expenses of defense), to be represented in any country such action by counsel of the Territory, a third party sues, threatens to xxx, or brings other action for patent infringement against Focal or Ethicon and/or its own choice. Eisai shall involve Arena fully in Eisai’s defense of any of their respective Affiliates (an "Infringement Claim"), or if either party shall become aware of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response to such claim and shall determine by mutual agreement an appropriate course keep Arena fully informed of action. such claim and the defense, and shall reasonably consider and seek to accommodate any timely comments of Arena with respect thereto, including good faith and reasonable consideration of Arena’s global intellectual property litigation positions (A) If an Infringement Claim exists with Eisai obligated to take into account the reasonably likely impact outside the Territory of all its positions in and conduct of such defense, and not to unreasonably reject or unreasonably act contrary to, Arena’s advice and suggestions with respect to an Initial Product or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulationits global intellectual property litigation positions), and it is jointly determined if reasonably requested by Arena, the Parties shall enter into a reasonable and standard joint defense agreement with respect to any such infringement claim. If Eisai does not undertake in good faith that a third-party patent poses a substantial risk to the defense of any such Initial Product or Improved Product in any country infringement claim by the date 10 days before the time limit, if any, set forth in the TerritoryApplicable Laws for the filing of the initial response or defense to any such claim, then or if Eisai (1having commenced such defense) Focal shall be responsible for obtaining subsequently does not continue to pursue and conduct such license from such third-party and shall pay all costs and fees associated with such licensedefense diligently, and (2) Ethicon Arena shall have the right (but not the obligation) to suspend performance bring and control such defense by counsel of its obligations own choice. Each Party shall bear its own internal costs and expenses of any such defense. All out-of-pocket external costs and expenses of conducting such defense (other than payment obligations arising prior to including outside counsel fees), and all amounts payable by either Party as a judgment based on such suspension) claim or in settlement of such claim shall be shared as follows: for claims with respect to such Initial Product or Improved Product Eisai’s Commercialization of the Products in the country Territory or countries in which such Infringement Claim poses either Party’s conduct of clinical trials or other development work under a substantial riskDevelopment Plan, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used aboveexcluding any Pre-Approval Required Development and any Post- Approval Required Development, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each Eisai shall bear […*] **…]% and Arena shall bear […***…]%; provided that Arena shall not be required to pay any amount of its share of such expenses that exceeds, for any Calendar Quarter, 50% of the costs Product Purchase Price Payment earned by Arena for Finished Product supplied to Eisai during such Calendar Quarter and fees associated with any amount of Arena’s share of such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty to any such third party expenses not paid in any country of the Territory, then Ethicon shall have the right to deduct an amount equal to [*] of such payments made by Ethicon to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product; provided, however, that in no event shall such royalty or such portion of the Purchase Price be reduced in any quarter by more than [*]. Any portion of a deduction that is not available for the quarter Calendar Quarter due to the foregoing limitation may shall be carried forward and deducted from payments otherwise due hereunder for subsequent quarterspaid in future Calendar Quarters. (Cb) [*]With respect to any claim alleging that (i) the discovery, development prior to the Effective Date, the making or having made, or importing or selling in the Territory (to the extent that such importation or selling claim is based on the manufacture by or on behalf of Arena), of any Compound or Product or intermediate thereof, (ii) the conduct of the BLOOM-DM Trial, Pre-Approval Required Development or Post-Approval Required Development, or (iii) any activity by Arena or its Affiliates outside the Territory, infringes or may infringe the intellectual property rights of any Third Party, in each case ((i) - (iii)) Arena shall have the sole right, subject to Section 11.3, to control any defense of any such claims at its own expense (including outside counsel fees and all amounts payable by Arena as a judgment based on such claim or in settlement of such claim) and by counsel of its own choice.

Infringement of Third Party Rights. IfIf any Compound or Product used or sold by Horizon, as its Affiliates or Sublicensees becomes the subject of a result Third Party’s claim or assertion of the manufacture, use or sale infringement of any Product in any country of a Patent within the Territory, Horizon shall promptly notify Arrowhead and the Parties shall agree on and enter into a third party sues“common interest agreement” wherein the Parties agree to their shared, threatens mutual interest in the outcome of such potential dispute, and thereafter, the Parties shall promptly meet to xxx, consider the claim or brings other action for patent infringement against Focal or Ethicon and/or any of their respective Affiliates (an "Infringement Claim"), or if either party shall become aware of third-party patent rights, Focal assertion and Ethicon shall discuss in good faith an appropriate response to such claim and shall determine by mutual agreement an the appropriate course of action. . Horizon shall be solely responsible for the defense of any such infringement claims, provided that Horizon shall provide to Arrowhead the ability to join such action, at Arrowhead’s request and expense, to pursue such action in which a patent asserted by a Third Party under this Section 9.5, claims (Aa) If an Infringement Claim exists with respect to an Initial the composition of matter or use, sale, offer for sale, or importation in the Field of any Compound or Product or an Improved (b) the manufacture of any such Compound or Product that comprises using the Lung Sealant Formulation or process employed by Arrowhead as of the Dural Sealant FormulationEffective Date (any such patent, “Subject Patent”). To the extent directly related to the Subject Patent, Horizon shall keep Arrowhead regularly informed of the status and it is jointly determined in good faith that progress of any action to the extent involving a third-party patent poses a substantial risk to Subject Patent, shall reasonably consider Arrowhead’s comments on any such Initial Product or Improved Product in any country in the Territory, then (1) Focal shall be responsible for obtaining such license from such third-party and shall pay all costs and fees associated with such license, and (2) Ethicon shall have the right to suspend performance of its obligations (other than payment obligations arising prior to such suspension) action with respect to such Initial Product or Improved Product in Subject Patent, including determination of litigation strategy and filing of material papers to the country or countries in which such Infringement Claim poses a substantial riskcompetent court. In addition, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims Horizon shall provide Arrowhead with drafts of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined all material papers to be necessary to obtain a license from such third party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize filed with the license fees and/or royalty payable to such third party, and each shall bear [*] of the costs and fees associated with such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty to any such third party in any country of the Territory, then Ethicon shall have the right to deduct an amount equal to [*] of such payments made by Ethicon to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal court to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product; provided, however, that in no event shall such royalty or such portion of the Purchase Price be reduced in any quarter by more than [*]. Any portion of a deduction that is not available for the quarter due extent directly related to the foregoing limitation may be carried forward Subject Patent and deducted from payments otherwise due hereunder for subsequent quartersshall in good faith incorporate all reasonable comments thereto by Arrowhead before filing such papers. (C) [*]

Infringement of Third Party Rights. If, as a result of the manufacture, use or sale of any Product in any country of the Territory, a third party sues, threatens to xxx, or brings other action for patent infringement against Focal or Ethicon and/or any of their respective Affiliates (an "Infringement Claim"), or if either party shall become aware of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response to such claim and shall determine by mutual agreement an appropriate course of action. (A) If an Infringement Claim exists with respect to an Initial Product or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territory, then (1) Focal shall be responsible for obtaining such license from such third-party and shall pay all costs and fees associated with such license, and (2) Ethicon shall have the right to suspend performance of its obligations (other than payment obligations arising prior to such suspension) with respect to such Initial Product or Improved Product in the country or countries in which such Infringement Claim poses a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each shall bear [*] of the costs and fees associated with such license. 5.6.1 In the event that Ethicon a Third Party alleges that intellectual property rights owned, held or otherwise controlled by such Third Party are being infringed or have been infringed by one or both Parties in connection with the manufacture, use, sale, offer for sale or importation of a Development Candidate or New Product in the Hyseq Territory, Hyseq shall defend or settle, at Hyseq's expense and in Hyseq's sole discretion, any claim in any legal action or proceeding arising from such allegation. The Parties shall consult with each other concerning strategy, approaches and the consequences of approaches that may be obligated to pay a license fee and/or royalty to taken under this Section 5.6. 1. Kirin shall provide all reasonable assistance requested by Hyseq in connection with any such third party action or proceeding, provided that Hyseq shall reimburse Kirin for out-of-pocket expenses actually incurred by Kirin in providing such assistance. 5.6.2 In the event that a Third Party alleges that intellectual property rights owned, held or otherwise controlled by such Third Party are being infringed or have been infringed by one or both Parties in connection with the manufacture, use, sale, offer for sale or importation of a Development Candidate or New Product in the Kirin Territory, Kirin shall defend or settle, at CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. Kirin's expense and in Kirin's sole discretion, any claim in any country legal action or proceeding arising from such allegation. The Parties shall consult with each other concerning strategy, approaches and the consequences of approaches that may be taken under this Section 5.6.2. Hyseq shall provide all reasonable assistance requested by Kirin in connection with any such action or proceeding, provided however that Kirin shall reimburse Hyseq for out-of-pocket expenses actually incurred by Hyseq in providing such assistance. 5.6.3 In the event that a Third Party alleges that intellectual property rights owned, held or otherwise controlled by such Third Party are being infringed or have been infringed by one or both Parties in connection with the manufacture, use, sale, offer for sale or importation of a Development Candidate or New Product in the Other Territory, then Ethicon the Parties shall have cooperate in the right to deduct an amount equal to [*] defense or settlement of such payments made by Ethicon to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product; provided, however, that in no event shall such royalty or such portion of the Purchase Price be reduced claim in any quarter by more than [*]legal action or proceeding arising from such allegation. Any portion The Parties shall consult with each other concerning strategy, approaches and the consequences of a deduction approaches that is not available for the quarter due to the foregoing limitation may be carried forward and deducted from payments otherwise due hereunder for subsequent quarterstaken under this Section 5.6. (C) [*]

Infringement of Third Party Rights. If, as a result of (a) If the manufacture, use use, sale or offer for sale of any Product results in any country of the Territory, Proceeding by a third party sues, threatens to xxx, or brings other action for Third Party alleging patent infringement against Focal P&GP or Ethicon and/or any of their respective Affiliates Noven (an "a “Third Party Infringement Claim"Suit”), P&GP or if either Noven, as the case may be, shall promptly notify the other party shall become aware in writing of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response to such claim and shall determine by mutual agreement an appropriate course of action. (A) If an Infringement Claim exists with respect to an Initial Product or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territory, then (1) Focal shall be responsible for obtaining such license from such third-party and shall pay all costs and fees associated with such license, and (2) Ethicon Proceeding. P&GP shall have the right first right, but not the obligation, to suspend performance of its obligations (other than payment obligations arising prior to such suspension) with respect to such Initial Product or Improved Product in the country or countries in which such Infringement Claim poses a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each shall bear [*] of the costs and fees associated with such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty to defend any such third party in Third Party Infringement Suit, at its own expense, using counsel reasonably acceptable to Noven. P&GP may settle any country of the Territory, then Ethicon shall have the right to deduct an amount equal to [*] of such payments made by Ethicon to Proceeding under such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Productterms as P&GP deems advisable; provided, however, that no Settlement of any such Proceeding may be entered into, in no event shall whole or in part, by P&GP without the prior written consent of Noven; and provided further, that if such royalty or such portion Proceeding does not implicate any of the Purchase Price Technology (including the Noven Patents), Noven’s consent shall not be reduced unreasonably withheld or delayed. In the event that Noven elects not to consent to any such Settlement, Noven shall assume the defense of the claims and the Noven Patents from P&GP and, to the extent it is determined that Noven’s withholding of its consent to the Settlement was unreasonable, Noven shall indemnify P&GP for any further liability, claims or Proceedings related thereto or arising therefrom to the extent any damages, liabilities, costs and expenses of P&GP are in excess of any amounts P&GP otherwise would have been responsible for under the terms and conditions of the proposed Settlement. P&GP shall keep Noven reasonably informed of all significant developments in connection with any such Third Party Infringement Suit and Noven shall cooperate fully at P&GP’s expense in the defense of the Proceeding. If P&GP chooses not to defend a Third Party Infringement Suit that implicates the Technology, Noven shall have the right, but not the obligation, to defend the Third Party Infringement Suit, at its own expense, using counsel reasonably acceptable to P&GP. Noven may settle any such Proceeding under such terms that Noven deems advisable; provided, however, that no Settlement of any such Proceeding may be entered into, in whole or in part, by Noven without the consent of P&GP, which consent shall not be unreasonably withheld or delayed. Noven shall keep P&GP reasonably informed of all significant developments in connection with any such Third Party Infringement Suit and P&GP shall cooperate fully at its own expense in the defense of the Third Party Infringement Suit. (b) If either P&GP or Noven believes that a license to a Third Party patent is necessary to develop or commercialize the Technology in any quarter country or jurisdiction in the Territory, regardless of whether a Proceeding has been commenced by more than [the Third Party against P&GP or Noven, then the party having such belief shall advise the other party in writing. Thereafter, P&GP and Noven shall attempt to agree to a mutually acceptable arrangement under which a license to the third party patent may be obtained. If the parties cannot reach agreement on the issue of what constitutes a mutually acceptable arrangement because either P&GP or Noven does not concur in the belief that the license of the third party patent is necessary, the parties shall submit the issue to a mutually acceptable, independent patent counsel who is familiar with and experienced in the pharmaceutical industry in such country or jurisdiction, who will determine whether such third party patent license is necessary for the development or commercialization of the Technology in such country or jurisdiction. In the event the parties are unable to agree on a mutually acceptable, independent patent counsel to resolve the dispute, the dispute shall be resolved in accordance with the dispute resolution provisions of Section 11.02. (c) If the independent patent counsel selected in accordance with Section 4.02(b) or the arbitrator selected in accordance with Section 11.02 determines that the third party patent license is necessary and that the reason the license is necessary is because the third party patent is directed to a transdermal patch with claims that overlap rights that Noven claims in and to the Technology, then (i) Noven shall pay the costs and expenses of the independent patent counsel or the arbitrator, as the case may be, and (ii) P&GP and Noven shall negotiate in good faith a mutually acceptable arrangement under which the third party patent license will be obtained. Thereafter, in the event such a third party patent license is obtained, the royalties payable thereunder shall be borne by P&GP and *]. Any portion ** of a deduction such royalties shall be deducted from the amount of Royalties that is not available otherwise would have been payable to Noven for the quarter in which the royalties payable to such third party are incurred; provided, however, that (x) the payment of such royalties to the third party shall not affect the methodology of how the Royalties payable to Noven are calculated, (y) any costs, expenses or royalties associated with obtaining any or all rights under the third party patent shall be excluded from the calculation of Net Outside Sales of the Products, and (z) under no circumstances shall the deduction of *** of such royalties cause a reduction of more *** in the total amount of Royalties due to Noven for the foregoing limitation relevant quarter. Notwithstanding the foregoing, in the event the third party patent at issue was owned by or licensed to or for the benefit of *** as of the date of this Agreement, (I) Noven shall have no obligation to pay the costs and expenses of the independent patent counsel or the arbitrator, as the case may be, (II) the payment of any royalties to *** or any successor or assignee of *** in respect of the patent shall not affect the methodology of how the Royalties payable to Noven are calculated, (III) any costs, expenses or royalties associated with obtaining any or all rights under the patent shall be carried forward excluded from the calculation of Net Outside Sales of the Products, and deducted from payments otherwise due (IV) there shall be no reduction in the amount of Royalties payable to Noven hereunder for subsequent quartersas a result of any costs, expenses or royalties associated with obtaining any or all rights under the patent. (Cd) [*]If the independent patent counsel selected in accordance with Section 4.02(b) or the arbitrator selected in accordance with Section 11.02 determines that the third party patent license is not necessary or that the license is necessary but the reason the license is necessary is not attributable to any overlap of the rights Noven claims in and to the Technology and claims under the third party patent, then (i) P&GP shall pay the costs and expenses of the independent patent counsel or the arbitrator, as the case may be, (ii) any costs, expenses or royalties associated with obtaining any or all rights under the third party patent shall be borne by P&GP, (iii) any costs, expenses or royalties associated with obtaining any or all rights under the third party patent shall be excluded from the calculation of Net Outside Sales of the Products, and (iv) there shall not be any reduction in the amount of any Royalties or other amounts payable to Noven hereunder.

Infringement of Third Party Rights. If, as a result If LICENSEE’s or any Permitted Seller’s conduct or exercise of the its rights under this Agreement or manufacture, use use, sale, import, export, or sale distribution of any Product in any a country of the Territory, Territory becomes the basis of a third party sues, threatens to xxx, claim of infringement or brings other action for misappropriation of any patent infringement against Focal or Ethicon and/or trade secret of any of their respective Affiliates Third Party in the Territory (an "Infringement a “Third Party IP Claim"”), or if either party LICENSEE shall become aware of third-party patent rights, Focal promptly give written notice to LICENSOR and Ethicon the Parties shall discuss in good faith an appropriate response confer to such consider the claim and shall determine by mutual agreement an appropriate course of action. (Ai) If an Infringement Claim exists If, following the First Commercial Sale in each country in the Territory where Existing Product is being sold as of the Effective Date or the launch date in a country in the Territory in which Existing Product has not been sold as of the Effective Date, a Third Party institutes a patent infringement or trade secret misappropriation suit against LICENSEE in a country in the Territory alleging that the manufacture, sale, use or importation of a Product by or on behalf of LICENSEE in such country in the Territory under this Agreement infringes the patents or misappropriates the trade secrets of a Third Party, and such claim is not based on any LICENSEE-Added IP (such suit (or series of directly related such suits in such country by or on behalf of the same Third Party with respect to the same manufacture, sale, use, or importation by or on behalf of LICENSEE) to the extent not based on any LICENSEE-Added IP, an Initial Product or an Improved Product that comprises “Indemnified Third Party IP Claim”), LICENSOR shall defend before any competent forum and indemnify and hold harmless LICENSEE, its Affiliates and any other Permitted Seller with respect to such claim, subject to the Lung Sealant Formulation following two paragraphs. It is however understood that, notwithstanding anything to the contrary in this Agreement, LICENSEE shall pay, on a country-by-country basis, the initial €[*] Euro) incurred with respect to the sum of any Indemnified Third Party IP Claim (or the Dural Sealant Formulationdefence thereof) in a particular country in the Territory (including any associated damages, liabilities, expenses and/or loss, reasonable legal expenses and it is jointly reasonable attorneys’ fees directly resulting therefrom) plus any amounts due under any Supported Third Party License related thereto, which are addressed in Section 7.9 (such costs related to Indemnified Third Party IP Claim and Supported Third Party License, collectively, “IP Claim Costs”)). In the event IP Claim Costs exceed €[*] Euro) in a particular country of the Territory for any particular Indemnified Third Party IP Claim, LICENSOR shall pay [*]% ([*] percent) of IP Claim Costs with respect thereto in such country and LICENSEE shall pay [*]% ([*] percent) of the IP Claim Costs with respect thereto in such country of the Territory. LICENSEE shall pay its portion of any IP Costs to LICENSOR as determined in good faith that a third-party patent poses a substantial risk to such Initial accordance with the foregoing within [*] of receiving an invoice therefor from LICENSOR. LICENSOR shall, acting reasonably and with the aim at preserving the commercial viability of the Product or Improved Product in any country in the Territory, then (1) Focal shall be responsible for obtaining such license from such third-party have the sole right to assume direction and shall pay all costs and fees associated with such licensecontrol of the defence, settlement, and (2) Ethicon shall have the right to suspend performance disposition of its obligations (other than payment obligations arising prior to such suspension) with respect to such Initial Product or Improved Product in the country or countries in which such Infringement Claim poses a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each shall bear [*] of the costs and fees associated with such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty to any such third party in any country of the Territory, then Ethicon shall have the right to deduct an amount equal to [*] of such payments made by Ethicon to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product; provided, however, that in no event shall such royalty or such portion of the Purchase Price be reduced in any quarter by more than [*]. Any portion of a deduction that is not available for the quarter due to the foregoing limitation may be carried forward and deducted from payments otherwise due hereunder for subsequent quarters. (C) [*]Indemnified Third

Infringement of Third Party Rights. If, as a result (a) If any warning letter or other notice of the manufacture, use or sale of any Product in any country of the Territory, infringement from a third party sues, threatens to xxxis received by a Party, or brings a legal suit, proceeding or other action for patent is brought against a Party, alleging infringement against Focal of the Technology or Ethicon and/or any Patent Rights of their respective Affiliates (an "Infringement Claim")such third party by reason of the conduct of the Development Activities, the use, Development, Manufacture or Commercialization of the Product in the Field, or if either party the use of any Alopexx Patent Rights or Joint Program Patent Rights hereunder, that Party shall become aware of third-party patent rightspromptly provide full details to the other Party, Focal and Ethicon the Parties shall discuss in good faith an appropriate response as soon as possible the overall strategy for defense of such matter and the best way to respond. Notwithstanding the foregoing, Alopexx shall have the obligation to defend any such claim and shall determine by mutual agreement an appropriate course of suit, proceeding or other action. (A) If an Infringement Claim exists with respect to an Initial Product or an Improved Product , provided that comprises the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territory, then (1) Focal shall be responsible for obtaining such license from such third-party and shall pay all costs and fees associated with such license, and (2) Ethicon BCI shall have the right to suspend performance of participate any such suit, proceeding or other action with separate counsel at its obligations (own expense. The Parties shall cooperate with each other than payment obligations arising prior to in all reasonable respects in any such suspension) suit, proceeding or other action, and all expenses with respect to any such Initial Product suit, proceeding or Improved Product other action in the country or countries Territory shall be borne equitably by the Parties. Each Party shall promptly furnish the other Party with a copy of each communication relating to the alleged infringement that is received by such Party, including all documents filed in which such Infringement Claim poses a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulationany litigation. (Bb) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each shall bear [*] of the costs and fees associated with such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty to any such third party in any country of the Territory, then Ethicon Alopexx shall have the right to deduct an amount equal to [*] settle the related suit, proceeding or other action with the applicable third party, provided that if the taking of any action or any proposed settlement involves the making of any statement, express or implied, concerning the validity of the Alopexx Patent Rights or the Joint Program Patent Rights, BCI shall be notified in writing before Alopexx takes such action or makes such settlement. In the event such settlement results in derogation of BCI’s rights under this Agreement, Alopexx shall proceed with prior written consent of BCI, which consent shall not unreasonably be conditioned, delayed, or withheld, with the scope of such payments made by Ethicon BCI consent limited to the extent such settlement directly relates to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product; provided, however, that in no event shall such royalty or such portion of the Purchase Price be reduced in any quarter by more than [*]. Any portion of a deduction that is not available for the quarter due to the foregoing limitation may be carried forward and deducted from payments otherwise due hereunder for subsequent quartersBCI rights. (C) [*]

Infringement of Third Party Rights. If, as a result of (a) If one or more patents covering the manufacture, use Marketing or sale of any Product in any country of the TerritoryProduct, but not the Raw Material itself, has issued to a third party sues, threatens to xxx, or brings other action for patent infringement against Focal or Ethicon and/or any of their respective Affiliates (an "Infringement Claim"), or in the Territory and if either party shall become aware of thirdW-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response to such claim and shall determine by mutual agreement an appropriate course of action. (A) If an Infringement Claim exists with respect to an Initial Product or an Improved Product X reasonably determines that comprises the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territory, then (1) Focal shall be responsible for obtaining such license from such third-party and shall pay all costs and fees associated with such license, and (2) Ethicon shall have the right to suspend performance of its obligations (other than payment obligations arising prior to such suspension) with respect to such Initial Product or Improved Product in the country or countries in which such Infringement Claim poses a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary advisable to obtain a license from such third partyparty under such patent or patents, Focal and Ethicon then W-X shall be jointly responsible for negotiating such license, it being understood that each shall make every effort devote all reasonable efforts to minimize the obtaining a license fees and/or royalty payable to from such third party. W-X shall be solely responsible for all royalties and other payments to a third party under any license resulting from the provisions of this Section 11.6(a). If W-X determines that such a license is unnecessary, W-X may agree to indemnify Unigene for any and each shall bear [*] all liability that Unigene might incur in connection with the manufacture or sale of the costs and fees associated with Raw Material by Unigene or the marketing or sale of the Product by W-X in the absence of such a license. In the event that Ethicon shall be obligated to pay W-X determines that such a license fee and/or royalty is unnecessary and does not agree to any indemnify Unigene in accordance with the preceding sentence, then Unigene may terminate this Agreement with respect to the country or countries involved, pursuant to Section 14.4(a). In the event that W-X determines that such a license is necessary and (i) the patent owner is unwilling to grant such a license, or (ii) the cost of such a license would render the Product commercially infeasible, then either W-X or Unigene may terminate this Agreement with respect to the country or countries involved, pursuant to Section 14.4(a). (b) If one or more patents covering the Raw Material has issued to a third party in the Territory and if Unigene reasonably determines that it is advisable to obtain a license from such third party in any country under such patent or patents, then Unigene shall make the necessary arrangements to obtain such license under such third party patent rights so that Unigene may continue to meet its supply obligations hereunder. Any costs for such license or sublicense shall be the sole responsibility of Unigene. In the event that Unigene, despite its reasonable efforts, is unable to obtain such a license, then W-X may use its commercially reasonable efforts to obtain such a license from such third party and, if it shall obtain such a license, it shall grant a sublicense thereunder to Unigene, and Unigene and W-X shall be responsible, respectively, for seventy-five percent (75%) and twenty-five percent (25%) of the Territory, then Ethicon shall have the right to deduct an amount equal to [*] of such payments made by Ethicon to such third party (1) from any royalties payable thereunder. If W-X is not able to, or elects not to Focal on negotiate such a license, then Unigene may terminate this Agreement with respect to the sale of such Product in such country or countries involved, pursuant to Section 6(d14.4(a). (c) In the event that a third party institutes or threatens a patent, trade secret or other infringement suit against W-X or its Affiliates or Sublicensees during the term of this Agreement, alleging that their Marketing, sale or use of the Product in the Territory infringes one or more patent or other intellectual property rights held by such third party, then W-X shall have the first right (but not the obligation), at its sole expense, to assume direction and control of the defense of claims arising therefrom (2) if Ethicon is paying a Purchase Price including the right to Focal for settle such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Productclaims at its sole discretion); provided, however, that W-X shall obtain the written consent of Unigene prior to ceasing to defend, settling or otherwise disposing of such claims; provided, further, that if Unigene shall refuse to provide such consent, then Unigene shall indemnify W-X pursuant to Section 13.3 for any and all Losses that W-X, its Affiliates or Sublicensees may suffer as a result of such refusal. If W-X determines not to assume such direction and control, Unigene shall have the right, at its sole expense, to defend, settle or otherwise dispose of such claims on such terms as Unigene, in no its sole discretion, shall deem appropriate. In the event shall such royalty or such portion that W-X controls the defense of an action challenging claims under the Unigene Patents, all of the Purchase Price reasonable expenses and costs, including, without limitation, attorneys' fees and damage awards, incurred by W-X in connection therewith that are not offset by proceeds therefrom shall be creditable against the royalties due under Section 6.1(b); provided, however, that no royalty payment when due, regardless of the amount or number of credits available to W-X in accordance with this Agreement, shall be reduced in any quarter by more than [*]. Any portion of a deduction that is not available for the quarter due to the foregoing limitation may be carried forward and deducted from payments otherwise due hereunder for subsequent quartersfifty percent (50%). (Cd) [*]In the event that a third party institutes a patent, trade secret or other infringement suit against Unigene, W-X or their respective Affiliates or sublicensees during the term of this Agreement, each party shall, at its own cost and expense, use all reasonable efforts to assist and cooperate with the other party in connection with the defense of such suit. (e) If (i) as a result of any claim made against W-X or any of its Affiliates or Sublicensees during the term of this Agreement alleging that the Marketing or sale of the Product by such entity infringes or misappropriates any patent or any other proprietary right of a third party, a judgment is entered by a court of competent jurisdiction from which no appeal is taken within the time permitted for appeal, such that W-X cannot sell the Product in a Priority Market without infringing the patent or other proprietary rights of such third party, and (ii) Unigene and/or W-X are unable to obtain the license referred to in this Section 11.6 within sixty (60) days after such entry of judgment, or such consideration to be paid to a third party for such license would make the Product commercially impracticable, then W-X shall have the right for thirty (30) days after the expiration of such sixty (60) day period to terminate this Agreement by written Notice to Unigene. (f) Nothing in this Section 11.6 shall prevent either party, at its own expense, from obtaining any license or other rights from third parties it deems appropriate in order to permit the full and unhindered exercise of its rights under this Agreement. (g) The provisions of this Section 11.6 set forth the parties' exclusive and sole remedies against each other in respect of the subject matter thereof.

Infringement of Third Party Rights. If(a) If either Party becomes aware of a patent or patent application that, as when issued, might provide a result of basis for a Third Party argument that its valid rights are being infringed by the manufactureuse, use offer for sale or sale of any the Product in any country of the Territory, a third party sues, threatens to xxx, or brings other action for patent infringement against Focal or Ethicon and/or any of their respective Affiliates (an "Infringement Claim"), or if either party shall become aware of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response to such claim and shall determine by mutual agreement an appropriate course of action. (A) If an Infringement Claim exists with respect to an Initial Product or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territory, then (1) Focal such Party shall be responsible for obtaining promptly inform the other Party of such license from such third-party and shall pay all costs and fees associated with such licensepatent or patent application, and (2) Ethicon the Parties shall have the right cooperate with each other so that each Party can determine whether valid rights of a Third Party are likely to suspend performance of its obligations (other than payment obligations arising prior to such suspension) with respect to such Initial Product or Improved Product in the country or countries in which such Infringement Claim poses a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulationbe so infringed. (Bb) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each shall bear [*] of the costs and fees associated with such license. In the event that Ethicon shall a Third Party institutes any suit against Par and/or Alfacell for patent infringement that could reasonably be obligated expected to pay a license fee and/or royalty to any such third party have an adverse effect on the Commercialization or value of the Product in any country of the Territory, then Ethicon the Party sued shall have promptly notify the right to deduct an amount equal to [*] other Party in writing. Par shall assume the defense of such payments made by Ethicon to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Productsuit at Par’s expense; provided, however, that if Alfacell is also a defendant in no event such action and Alfacell shall such royalty or such portion of the Purchase Price be reduced in any quarter by more than [*]. Any portion of a deduction have reasonably concluded that is not available for the quarter due to the foregoing limitation there may be carried forward legal defenses available to it that are different from or additional to those available to Par, Alfacell shall have the right to select, at Alfacell’s expense, Confidential information omitted and deducted from payments otherwise due hereunder for subsequent quartersfiled with the Securities and Exchange Commission. Asterisks denote such omission. separate counsel to participate in such legal defenses on Alfacell’s behalf; provided, further that notwithstanding any such different or additional legal defenses of Alfacell, Par shall have the first right to control the defense of any such patent infringement suit pursuant to this Section 9.4 and Par may settle or compromise such suit with the prior written consent of Alfacell, which consent shall not be unreasonably withheld. To the extent that any Damages become payable to any Third Party whether as a result of judgment or through settlement of such suit, ***. (c) If either Party becomes aware of a patent or patent application of a Third Party that could reasonably be expected to have an adverse effect on the Commercialization or value of the Product in the Territory and for which pursuit of a license would be reasonable in connection with Commercialization of the Product in the Territory, the Commercialization Committee shall: (A) determine whether or not Alfacell should seek such a license, (B) recommend whether or not to enter into such a license as negotiated by Alfacell, (C) [*]determine how the expenses of such a license shall be borne by the Parties and (D) insure that Par is a beneficiary thereof consistent with the licenses granted herein. If the Commercialization Committee cannot agree with regard to any item set forth in the preceding sentence, such issue shall be determined by the CEOs of the Parties.

Infringement of Third Party Rights. If, as a result of FDMX shall promptly investigate and defend at its expense all claims that the manufacture, use use, sale or sale other disposition of any FDMX Product in infringes, induces the infringement of, or otherwise violates any country patent, copyright, mask work, trademark, trade secret, or proprietary or other information of any third party, and FDMX shall pay and discharge all judgments or decrees against Customer which result from those claims. FDMX may, with Customer’s consent (which Customer shall not unreasonably withhold), settle any such claim on terms of FDMX’s choosing, if those terms do not conflict with this Agreement. FDMX shall not be obligated to the extent (i) Customer fails to give FDMX prompt notice of the Territoryclaim, a third party sues, threatens appropriate authority to xxxsettle or defend it, or brings other action for patent infringement against Focal or Ethicon and/or any of their respective Affiliates (an "Infringement Claim")the information and assistance reasonably necessary to conduct the defense, or if either party shall become aware (ii) the claims of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response to such claim and shall determine by mutual agreement an appropriate course of action. infringement arise from or are based upon (A) Customer’s or any third party’s (x) use of a FDMX Product in a manner for which it was not intended or (x) enhancements, modifications, alteration or implementation of a FDMX Product, or (B) the combination of a FDMX Product with anything FDMX did not directly furnish to Customer. If (i) an Infringement Claim exists injunction issues against Customer’s manufacturing, use, or marketing of a FDMX Product, or (ii) in FDMX’s opinion that FDMX Product such an injunction is likely to issue, then FDMX shall at its expense use reasonable efforts to: (x) obtain for Customer rights sufficient in scope to allow Customer to continue to make, use, sell, and market that FDMX Product, or (y) replace or modify that FDMX Product so that it becomes non-infringing. The foregoing states the entire obligation of FDMX with respect to an Initial Product or an Improved Product that comprises the Lung Sealant Formulation injunction or the Dural Sealant Formulationlike. FDMX shall not be liable under this infringement section for any claim, and it Customer’s rights under this infringement section shall not attach to a claim, to the extent that claim is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product based on information, devices, or Improved Product in any country in the Territory, then (1) Focal shall be responsible for obtaining such license from such third-party and shall pay all costs and fees associated with such license, and (2) Ethicon shall have the right to suspend performance of its obligations (processes furnished by someone other than payment obligations arising prior FDMX. Customer shall indemnify, defend and hold FDMX harmless against any expense, judgment or loss for alleged infringement or violation of any patents, copyrights, mask works, trade secrets, trademarks, or proprietary or other information which result from FDMX’s compliance with Customer’s designs, specifications or instructions. *** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to such suspension) with respect to such Initial Product or Improved Product in the country or countries in which such Infringement Claim poses a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfactionconfidentiality request. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each shall bear Omissions are designated as [*] of the costs and fees associated with such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty to any such third party in any country of the Territory, then Ethicon shall have the right to deduct an amount equal to [*] of such payments made by Ethicon to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product; provided, however, that in no event shall such royalty or such portion of the Purchase Price be reduced in any quarter by more than [*]. Any portion A complete version of a deduction that is not available for the quarter due this exhibit has been provided separately to the foregoing limitation may be carried forward Securities and deducted from payments otherwise due hereunder for subsequent quarters. (C) [*]Exchange Commission. 9

Infringement of Third Party Rights. If, as a result of In the manufacture, use or sale of event that any Product in any country manufactured, used or sold under this Agreement becomes the subject of a Third Party claim or there is the Territory, potential for a third party sues, threatens to xxx, or brings other action claim for patent infringement against Focal anywhere in the world, and irrespective of whether Gilead or Ethicon and/or any of their respective Affiliates (an "Infringement Claim")Roche is charged with said infringement, or if either party the parties shall become aware of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response promptly meet to such consider the claim and shall determine by mutual agreement an the appropriate course of action. (A) . Unless the parties otherwise agree, the party against which such Third Party infringement claim is brought shall defend against such claim at its sole expense and the other party shall have the right, but not the obligation, to participate in any such suit, at its sole option and at its own expense. Such other party shall reasonably cooperate with the party conducting the defense of the claim, including if required to conduct such defense, furnishing a power of attorney. Neither party shall enter into any settlement that affects the other party’s rights or interests without such other party’s written consent, which consent shall not be unreasonably withheld. If an Infringement Claim exists in the opinion of Roche’s counsel, a license with respect to an Initial Product such Third Party patents is necessary to avoid substantial risks which could prevent Roche from making, using, selling, offering for sale or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territoryimporting Product, then (1) Focal Roche shall be responsible notify Gilead of such conclusion and the basis for obtaining such license from such third-party it and shall pay all costs and fees associated with such licensegive Gilead a reasonable opportunity to discuss Roche’s opinion. If Gilead concurs in Roche’s opinion, and (2) Ethicon Roche shall have the right to suspend performance negotiate directly with such Third Party for a license, and Roche shall be entitled to apply [ * ] of its obligations (other than payment obligations arising prior to such suspension) with respect to such Initial Product or Improved Product Third Party Royalties for Net Sales in the country or countries in which such Infringement Claim poses where the claim exists, as a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each shall bear [*] of the costs and fees associated with such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty to any such third party in any country of the Territory, then Ethicon shall have the right to deduct an amount equal to [*] of such payments made by Ethicon to such third party (1) from any credit against royalties payable to Focal on the sale of such Product in such country pursuant to due under Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product5.3; provided, however, that the aggregate credit taken in no event any given calendar quarter shall such royalty or such portion not exceed [ * ] of the Purchase Price royalties payable to Gilead during that quarter, on a country-by-country basis, and shall be reduced subject to further limitations as expressly set forth in any quarter Section 5.3. If Gilead does not concur with Roche’s opinion, the matter shall be submitted to an independent counsel, selected by more than [*]mutual consent and paid equally by Roche and Gilead, to determine whether there is a substantial risk of infringement of such Third Party rights. Any portion If such independent counsel determines that a substantial risk exists, then Roche may negotiate directly with such Third Party and receive royalty credit as set forth above. If such independent counsel determines that a substantial risk does not exist, then Roche may still negotiate for a license from such Third Party if it elects to do so, but Roche shall not have the right of a deduction that is not available royalty reduction provided for the quarter due to the foregoing limitation may be carried forward and deducted from payments otherwise due hereunder for subsequent quartersin this Section 10.4. (C) [*]

Infringement of Third Party Rights. If(a) If either Party becomes aware of a patent or patent application that, as when issued, might provide a result of basis for a Third Party argument that its valid rights are being infringed by the manufactureuse, use offer for sale or sale of any the Product in any country of the Territory, a third party sues, threatens to xxx, or brings other action for patent infringement against Focal or Ethicon and/or any of their respective Affiliates (an "Infringement Claim"), or if either party shall become aware of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response to such claim and shall determine by mutual agreement an appropriate course of action. (A) If an Infringement Claim exists with respect to an Initial Product or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territory, then (1) Focal such Party shall be responsible for obtaining promptly inform the other Party of such license from such third-party and shall pay all costs and fees associated with such licensepatent or patent application, and (2) Ethicon the Parties shall have the right cooperate with each other so that each Party can determine whether valid rights of a Third Party are likely to suspend performance of its obligations (other than payment obligations arising prior to such suspension) with respect to such Initial Product or Improved Product in the country or countries in which such Infringement Claim poses a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulationbe so infringed. (Bb) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each shall bear [*] of the costs and fees associated with such license. In the event that Ethicon shall a Third Party institutes any suit against Par and/or Alfacell for patent infringement that could reasonably be obligated expected to pay a license fee and/or royalty to any such third party have an adverse effect on the Commercialization or value of the Product in any country of the Territory, then Ethicon the Party sued shall have promptly notify the right to deduct an amount equal to [*] other Party in writing. Par shall assume the defense of such payments made by Ethicon to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Productsuit at Par’s expense; provided, however, that if Alfacell is also a defendant in no event such action and Alfacell shall such royalty or such portion of the Purchase Price be reduced in any quarter by more than [*]. Any portion of a deduction have reasonably concluded that is not available for the quarter due to the foregoing limitation there may be carried forward legal defenses available to it that are different from or additional to those available to Par, Alfacell shall have the right to select, at Alfacell’s expense, separate counsel to participate in such legal defenses on Alfacell’s behalf; provided, further that notwithstanding any such different or additional legal defenses of Alfacell, Par shall have the first right to control the defense of any such patent infringement suit pursuant to this Section 9.4 and deducted from payments otherwise due hereunder for subsequent quartersPar may settle or compromise such suit with the prior written consent of Alfacell, which consent shall not be unreasonably withheld. To the extent that any Damages become payable to any Third Party whether as a result of judgment or through settlement of such suit, ***. (c) If either Party becomes aware of a patent or patent application of a Third Party that could reasonably be expected to have an adverse effect on the Commercialization or value of the Product in the Territory and for which pursuit of a license would be reasonable in connection with Commercialization of the Product in the Territory, the Commercialization Committee shall: (A) determine whether or not Alfacell should seek such a license, (B) recommend whether or not to enter into such a license as negotiated by Alfacell, (C) [*]determine how the expenses of such a license shall be borne by the Parties and (D) insure that Par is a beneficiary thereof consistent with the licenses granted herein. If the Commercialization Committee cannot agree with regard to any item set forth in the preceding sentence, such issue shall be determined by the CEOs of the Parties.

Infringement of Third Party Rights. If, as a result of the manufacture, use or sale of any Product in any country of the Territory, a third party sues, threatens to xxx, or brings other action for patent infringement against Focal or Ethicon and/or any of their respective Affiliates (an "Infringement Claim"), or if either party shall become aware of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response to such claim and shall determine by mutual agreement an appropriate course of action. (A) If an Infringement Claim exists with respect to an Initial Product or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territory, then (1) Focal shall be responsible for obtaining such license from such third-party and shall pay all costs and fees associated with such license, and (2) Ethicon shall have the right to suspend performance of its obligations (other than payment obligations arising prior to such suspension) with respect to such Initial Product or Improved Product in the country or countries in which such Infringement Claim poses a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each shall bear [*] of the costs and fees associated with such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty to any such third party in any country of the Territory, then Ethicon shall have the right to deduct an amount equal to [*] of such payments made by Ethicon to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product; provided, however, that in no event shall such royalty or such portion of the Purchase Price be reduced in any quarter by more than [*]. Any portion of a deduction that is not available for the quarter due to the foregoing limitation may be carried forward and deducted from payments otherwise due hereunder for subsequent quarters. (C) [*]If a third party sues or brings other action for patent infringement against Focal or Ethicon and/or any of their respective Affiliates (an "Infringement Suit") in any country in the Territory with respect to any Product and it can be reasonably determined, as evidenced by a written opinion of counsel, that (1) such Infringement Suit is likely to be successful, and (2) a reasonable commercial license can not be negotiated (it being understood that Focal shall have the primary responsibility for seeking to obtain any such license with respect to the Initial Products and Improved Products), then Ethicon shall have the right to terminate this Agreement with respect to its rights to such Product in such country.

Infringement of Third Party Rights. IfIf any warning letter or other notice of infringement is received by a party, as or legal suit or other action is brought against a result party, alleging infringement of third party rights in the manufacture, use or use, sale, offer for sale in the Territory of any Product in Licensed Products or use of any country Ipsen Patent Rights, that party shall promptly provide full details to the other party, and the parties shall discuss the best way to respond. ACADIA shall have the first right but not the obligation to defend any such suit involving alleged infringement of the Territory, a third party suesPatents , threatens to xxx, or brings other action for patent infringement against Focal or Ethicon and/or any at its own expense and by counsel of their respective Affiliates (an "Infringement Claim"), or if either party shall become aware of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response to such claim and shall determine by mutual agreement an appropriate course of action. (A) If an Infringement Claim exists with respect to an Initial Product or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulationits own choice, and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territory, then (1) Focal shall be responsible for obtaining such license from such third-party and shall pay all costs and fees associated with such license, and (2) Ethicon shall have the right to suspend performance of its obligations (other than payment obligations arising prior to such suspension) settle with respect to such Initial Product or Improved Product in the country or countries in which such Infringement Claim poses a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal provided that if any action or proposed settlement involves the making of any statement, express or implied, concerning the validity of any Ipsen Patent Rights, the consent of IPSEN must be obtained before taking such action or making such settlement. IPSEN shall give all reasonable assistance to ACADIA with regard to the defense of such legal suit or action and Ethicon shall have the right, at its own expense, to be jointly responsible for negotiating represented in any such licensesuit or action by counsel of its own choice. If ACADIA decides not to defend any such suit, it being understood that each IPSEN shall make every effort have the right but not the obligation to minimize the license fees and/or royalty payable to defend such suit involving alleged infringement of third partyparty Patents, at its own expense and by counsel of its own choice, and each shall bear [*] of the costs and fees associated with such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty to any such third party in any country of the Territory, then Ethicon shall have the right to deduct an amount equal settle such suit with such third party, provided that if any action or proposed settlement involves the making of any statement, express or implied, concerning the validity of any Ipsen Patent Rights, the consent of ACADIA must be obtained before taking such action or making such settlement. ACADIA shall give all reasonable assistance to [*] IPSEN with regard to the defense of such payments made by Ethicon legal suit or action and shall have the right, at its own expense, to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product; provided, however, that in no event shall such royalty or such portion of the Purchase Price be reduced represented in any quarter such action by more than [*]. Any portion counsel of a deduction that is not available for the quarter due to the foregoing limitation may be carried forward and deducted from payments otherwise due hereunder for subsequent quartersits own choice. (C) [*]

Infringement of Third Party Rights. If23.1. The Supplier shall fully indemnify and keep indemnified the Company (and for the avoidance of doubt any Group Company) against all actions, as a result proceedings, damages, costs, claims, charges and expenses arising from or incurred by reason of any infringement or alleged infringement of any Intellectual Property Rights arising from the provision of the manufacture, use Goods and/or Services by the Supplier by or sale on behalf of a member of the Company’s Group and the Company shall as soon as practicable notify the Supplier in writing of any Product alleged infringement of which the Company becomes aware; make no admission without the Supplier’s prior written consent; and if the Supplier so requests, the Company shall allow the Supplier to conduct any negotiations or litigation and/or settle any claim. The Company shall give the Supplier all reasonable assistance (at the Supplier’s cost). All costs, fees (including attorney’s fees), judgments and settlements shall be borne by the Supplier. 23.2. If at any time an allegation of infringement of Intellectual Property Rights is made in any country respect of the TerritorySoftware, a third party suesGoods and/or Services or Documentation or if in the Company’s reasonable opinion such an allegation is likely to be made, threatens to xxxthe Supplier may, at its own expense, modify or replace the Software, Goods and/or Services, or brings other action for patent Documentation so as to avoid the infringement against Focal without detracting from the overall performance the Supplier making good to the Company and any applicable member of the Company’s Group any loss of productivity or Ethicon and/or use during modification or refund to the Company and any applicable member of their respective Affiliates (an "Infringement Claim"), or if either party shall become aware the Company’s Group all sums paid in respect of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response to such claim and shall determine by mutual agreement an appropriate course of actionthe infringing item. (A) 23.3. If the above remedies fail after all reasonable efforts by the Supplier within a reasonable period, without prejudice to any other remedies available to the Company: 23.3.1. the Company may, at the expense of the Supplier, procure an Infringement Claim exists with respect alternative solution from a Third Party to an Initial Product or an Improved Product that comprises satisfy its requirements relating to the Lung Sealant Formulation or Goods and/or Services; or 23.3.2. the Dural Sealant Formulation, and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in Supplier shall refund the Territory, then (1) Focal shall be responsible Fees paid for obtaining such license from such third-party and shall pay all costs and fees associated with such license, and (2) Ethicon shall have the right to suspend performance of its obligations (other than payment obligations arising prior to such suspension) with respect to such Initial Product or Improved Product in the country or countries in which such Infringement Claim poses a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined Goods and/or Services found to be necessary or alleged to obtain a license from such third party, Focal and Ethicon shall be jointly responsible infringing as well as any payment made for negotiating such license, it being understood that each shall make every effort to minimize the license fees any related Goods and/or royalty payable to such third party, and each shall bear [*] of the costs and fees associated with such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty to any such third party in any country of the Territory, then Ethicon shall Services which have the right to deduct an amount equal to [*] of such payments made by Ethicon to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product; provided, however, that in no event shall such royalty been delivered or such portion of the Purchase Price be reduced in any quarter by more than [*]. Any portion of a deduction that is not available for the quarter due to the foregoing limitation may be carried forward and deducted from payments otherwise due hereunder for subsequent quartersperformed. (C) [*]

Infringement of Third Party Rights. If6.8.1 In the event that a Third Party alleges that such Third Party's intellectual property rights are being or have been infringed by (i) Medeva's or TGC's selling, as a result of the manufacturemanufacturing, use having manufactured or sale of any Product in any country of the Territoryusing, a third party suespursuant to this Agreement or Supply Agreement, threatens to xxxBulk Licensed Product, Licensed Products or products covered by Joint Patents, or brings other action for patent infringement against Focal (ii) a Third Party's use of Bulk Licensed Product, Licensed Products or Ethicon and/or any of their respective Affiliates (an "Infringement Claim")products covered by Joint Patents, or if either party shall become aware of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response to such claim and shall determine by mutual agreement an appropriate course of action. (A) If an Infringement Claim exists with respect to an Initial Product or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territory, then (1) Focal shall be responsible for obtaining such license from such third-party and shall pay all costs and fees associated with such license, and (2) Ethicon Medeva shall have the right to suspend performance defend or settle in its sole discretion any legal action or proceeding arising therefrom (a "Third Party Infringement"). In addition, in the event that a patent application or patent held or otherwise controlled by Third Party may be subject to challenge, opposition or other similar actions or proceedings, including without limitation interference proceedings, Medeva shall have the right to take appropriate steps to initiate and pursue such actions or proceedings. TGC and Medeva shall consult with each other concerning strategy, approaches and the consequences of its obligations (other than payment obligations arising approaches to be undertaken pursuant to this Section 6.8, and TGC shall provide and shall cause the Patent Owner to provide, if applicable, all reasonable assistance requested by Medeva in connection with any such action or proceeding, provided however that Medeva reimburses the out- of-pocket expenses of TGC and the Patent Owner, if applicable, in providing such assistance. 6.8.2 If a Third Party Infringement alleges infringement of a Third Party intellectual property right about which TGC notified Medeva prior to such suspension) with respect the execution of this Agreement or a Third Party intellectual property right about which neither Medeva nor TGC was aware prior to such Initial Product or Improved Product in the country or countries in which such Infringement Claim poses a substantial riskexecution of this Agreement, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal and Ethicon Medeva shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each shall bear [*[ * ] of the costs and fees associated with expenses (including without limitation reasonable attorney's fees) incurred in defending or settling such license. In the event that Ethicon Third Party Infringement, and TGC shall be obligated to pay a license fee and/or royalty to any such third party in any country of the Territory, then Ethicon shall have the right to deduct an amount equal to [*responsible for [ * ] of such payments made by Ethicon to such third party (1) from any royalties payable to Focal on the sale costs and expenses. However, if a Third Party Infringement arises out of such Product in such country pursuant to Section 6(d)a breach of TGC's warranties or representations under this Agreement, and (2) if Ethicon is paying a Purchase Price to Focal then TGC shall be responsible for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product; provided, however, that in no event shall such royalty or such portion [ * ] of the Purchase Price costs and expenses actually incurred by Medeva in defending or settling such Third Party Infringement. Payment by TGC of costs and expenses for which TGC is responsible under this Section 6.8.2 shall be reduced in any quarter by more than [*]. Any portion made within sixty (60) days after the date of a deduction that is not available for the quarter due to the foregoing limitation may be carried forward and deducted from payments otherwise due hereunder for subsequent quartersTGC's receipt of Medeva's invoice with respect thereto. (C) [*]

Infringement of Third Party Rights. If(a) If (i) in the opinion of counsel reasonably acceptable to both Licensor and Myriad, one or more Patents covering the research, development, Manufacture, use, or sale of the Licensed Compound or the Licensed Product has issued to a Third Party in any country such that Myriad cannot sell the Licensed Product in such country without infringing such Patent or (ii) as a result of any claim made against Myriad or any of its Affiliates or Sublicensees during the manufactureterm of this Agreement alleging that the research, use development, Manufacture, use, or sale of the Licensed Compound or Licensed Product by such entity infringes or misappropriates any Patent or any other intellectual property right of a Third Party in any country, a judgment is entered by a court of competent jurisdiction from which no appeal is taken within the time permitted for appeal, such that Myriad cannot sell the Licensed Product in any such country without infringing the Patent or other proprietary rights of the Territorysuch Third Party, a third party suesMyriad shall use its reasonable, threatens to xxx, or brings other action for patent infringement against Focal or Ethicon and/or any of their respective Affiliates (an "Infringement Claim"), or if either party shall become aware of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response efforts to such claim negotiate and shall determine by mutual agreement an appropriate course of action. (A) If an Infringement Claim exists with respect to an Initial Product or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territory, then (1) Focal shall be responsible for obtaining such license from such third-party and shall pay all costs and fees associated with such license, and (2) Ethicon shall have the right to suspend performance of its obligations (other than payment obligations arising prior to such suspension) with respect to such Initial Product or Improved Product in the country or countries in which such Infringement Claim poses a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third partyThird Party that would permit Myriad to research, Focal and Ethicon shall be jointly responsible for negotiating such licensedevelop, it being understood that each shall make every effort to minimize Manufacture, use or sell the license fees and/or royalty payable to such third partyLicensed Compound or the Licensed Product, and each shall bear [*] of as the costs and fees associated with such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty to any such third party in any country of the Territorycase may be, then Ethicon shall have the right to deduct an amount equal to [*] of such payments made by Ethicon to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Productcountry; provided, however, that Myriad shall not be obligated to attempt to negotiate a license if Myriad in no event good faith believes that such negotiation is likely to be futile. If Myriad obtains such a license in such country, any royalties paid by Myriad, its Affiliates, or Sublicensees under such license with respect to the sale of the Licensed Product in such country shall be totaled at the end of each Fiscal Quarter and shall be creditable against future royalties paid to Licensor hereunder up to an amount equal to of the royalties paid to Licensor hereunder in respect of sales made in such royalty country during such Fiscal Quarter. If Myriad is unable to obtain a license or if Myriad in good faith believes that such negotiation is likely to be futile, Myriad shall have the right to terminate this Agreement with respect to such country by written notice to Licensor. Nothing contained in this Section shall be construed to limit Myriad’s right to terminate this Agreement pursuant to Section 7.3. If Myriad is unable to obtain such a license, or such portion consideration to be paid to a Third Party for such license would make the Licensed Product commercially impracticable with respect to such country, then Myriad shall have the right to terminate this Agreement with respect to such country by written notice to Licensor. (b) In the event that a Third Party institutes a patent, trade secret, or other infringement suit against Myriad or its Affiliates or Sublicensees during the term of this Agreement, alleging that the research, development, Manufacture, use, or sale of the Purchase Price Licensed Compound or the Licensed Product infringes one or more patent or other intellectual property rights held by such Third Party, then Myriad shall have the first right, but not the obligation, at its sole cost and expense, to assume direction and control of the defense of claims arising therefrom but shall not enter into a disposition with respect thereto, or enter into a settlement agreement with respect thereto, which, in either case, admits that any Licensed Product infringes any Third Party right, without Licensor’s prior written consent, which consent shall not be reduced unreasonably withheld. If Myriad determines not to assume such direction and control, Licensor shall have the right, at its sole cost and expense, to defend, settle or otherwise dispose of such claims on such terms as Licensor, in its sole discretion, shall deem appropriate; provided, however, that Licensor shall obtain the written consent of Myriad prior to ceasing to defend, settling, or otherwise disposing of such claims. In the event Myriad controls such defense, all of the reasonable costs and expenses, including, without limitation, damage awards, incurred by Myriad in connection therewith that are not offset by proceeds therefrom shall be fully creditable against the royalties due under Section 4.3; provided, however, that Myriad may apply such credit in any quarter by more than [*]given Fiscal Quarter against a maximum of of the total royalties payable to Licensor during such Fiscal Quarter. Any portion of a deduction that is Credits not available for the quarter due to the foregoing limitation exhausted in any Fiscal Quarter may be carried forward and deducted from payments otherwise due hereunder for subsequent quartersinto future Fiscal Quarters. (Cc) [*]Except as provided in Section 5.4(b), in the event that a Third Party institutes a Patent, trade secret, or other infringement suit against Myriad, Licensor, or their respective Affiliates or Sublicensees during the term of this Agreement, each party shall, at its own cost and expense, use all reasonable efforts to assist and cooperate with the other party in connection with the defense of such suit. (d) Nothing in this Section 5.4 shall prevent either party, at its own expense, from obtaining any license or other rights from Third Parties it deems appropriate in order to permit the full and unhindered exercise of its rights under this Agreement. (e) The provisions of this Section 5.4 set forth the parties’ exclusive and sole remedies against each other in respect of the subject matter hereof.

Infringement of Third Party Rights. If, as Each Party shall promptly notify the other in writing of any allegation by a result Third Party that the activity of either of the manufactureParties pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. (a) With respect to any claim alleging that (i) the Commercialization of Products in the Territory in accordance with the terms of this Agreement or (ii) the conduct of development activities by either Party under a Development Plan in accordance with the terms of this Agreement, use excluding Pre-Approval Required U.S. Development or sale Post-Approval Required U.S. Development, in either case ((i) and (ii)) infringes the intellectual property rights of any Product Third Party, the Parties shall discuss which Party shall defend the action, and absent an agreement otherwise, Eisai shall have the initial right to control any defense of any such claim by counsel of its own choice and reasonably acceptable to Arena, and Arena shall have the right, at its own expense (which shall not be costs or expenses of defense), to be represented in any country such action by counsel of the Territory, a third party sues, threatens to xxx, or brings other action for patent infringement against Focal or Ethicon and/or its own choice. Eisai shall involve Arena fully in Eisai’s defense of any of their respective Affiliates (an "Infringement Claim"), or if either party shall become aware of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response to such claim and shall determine by mutual agreement an appropriate course keep Arena fully informed of action. such claim and the defense, and shall reasonably consider and seek to accommodate any timely comments of Arena with respect thereto, including good faith and reasonable consideration of Arena’s global intellectual property litigation positions (A) If an Infringement Claim exists with Eisai obligated to take into account the reasonably likely impact outside the Territory of all its positions in and conduct of such defense, and not to unreasonably reject or unreasonably act contrary to, Arena’s advice and suggestions with respect to an Initial Product or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulationits global intellectual property litigation positions), and it is jointly determined if reasonably requested by Arena, the Parties shall enter into a reasonable and standard joint defense agreement with respect to any such infringement claim. If Eisai does not undertake in good faith that a third-party patent poses a substantial risk to the defense of any such Initial Product or Improved Product in any country infringement claim by the date 10 days before the time limit, if any, set forth in the TerritoryApplicable Laws for the filing of the initial response or defense to any such claim, then or if Eisai (1having commenced such defense) Focal shall be responsible for obtaining subsequently does not continue to pursue and conduct such license from such third-party and shall pay all costs and fees associated with such licensedefense diligently, and (2) Ethicon Arena shall have the right (but not the obligation) to suspend performance bring and control such defense by counsel of its obligations own choice. Each Party shall bear its own internal costs and expenses of any such defense. All out-of-pocket external costs and expenses of conducting such defense (other than payment obligations arising prior to including outside counsel fees), and all amounts payable by either Party as a judgment based on such suspension) claim or in settlement of such claim shall be shared as follows: for claims with respect to such Initial Product or Improved Product Eisai’s Commercialization of the 109 ***Confidential Treatment Requested Products in the country Territory or countries in which such Infringement Claim poses either Party’s conduct of clinical trials or other development work under a substantial riskDevelopment Plan, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used aboveexcluding any Pre-Approval Required U.S. Development and any Post-Approval Required U.S. Development, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each Eisai shall bear [...*] of the costs **...]% and fees associated with such license. In the event that Ethicon Arena shall be obligated to pay a license fee and/or royalty to any such third party in any country of the Territory, then Ethicon shall have the right to deduct an amount equal to bear [...*] of such payments made by Ethicon to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product**...]%; provided, howeverthat Arena shall not be required to pay any amount of its share of such expenses that exceeds, that in no event shall such royalty or such portion for any Calendar Quarter, 50% of the Product Purchase Price be reduced Payment earned by Arena for Finished Product supplied to Eisai during such Calendar Quarter and any amount of Arena’s share of such expenses not paid in any quarter by more than [*]. Any portion of a deduction that is not available for the quarter Calendar Quarter due to the foregoing limitation may shall be carried forward and deducted from payments otherwise due hereunder for subsequent quarterspaid in future Calendar Quarters. (Cb) [*]With respect to any claim alleging that (i) the discovery, development prior to the Effective Date, the making or having made, or importing or selling in the Territory (to the extent that such importation or selling claim is based on the manufacture by or on behalf of Arena), of any Compound or Product or intermediate thereof, (ii) the conduct of the BLOOM-DM Trial, Pre-Approval Required U.S. Development or Post-Approval Required U.S. Development, or (iii) any activity by Arena or its Affiliates outside the Territory, infringes or may infringe the intellectual property rights of any Third Party, in each case ((i) - (iii)) Arena shall have the sole right, subject to Section 11.3, to control any defense of any such claims at its own expense (including outside counsel fees and all amounts payable by Arena as a judgment based on such claim or in settlement of such claim) and by counsel of its own choice.

Infringement of Third Party Rights. If, as Each Party shall promptly notify the other in writing of any allegation by a result Third Party that the activity of either of the manufactureParties pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. (a) With respect to any claim alleging that (i) the Commercialization of Products in the Territory in accordance with the terms of this Agreement or (ii) the conduct of development activities by either Party under a Development Plan in accordance with the terms of this Agreement, use excluding Pre-Approval Required U.S. Development or sale Post-Approval Required U.S. Development, in either case ((i) and (ii)) infringes the intellectual property rights of any Product Third Party, the Parties shall discuss which Party shall defend the action, and absent an agreement otherwise, Eisai shall have the initial right to control any defense of any such claim by counsel of its own choice and reasonably acceptable to Arena, and Arena shall have the right, at its own expense (which shall not be costs or expenses of defense), to be represented in any country such action by counsel of the Territory, a third party sues, threatens to xxx, or brings other action for patent infringement against Focal or Ethicon and/or its own choice. Eisai shall involve Arena fully in Eisai’s defense of any of their respective Affiliates (an "Infringement Claim"), or if either party shall become aware of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response to such claim and shall determine by mutual agreement an appropriate course keep Arena fully informed of action. such claim and the defense, and shall reasonably consider and seek to accommodate any timely comments of Arena with respect thereto, including good faith and reasonable consideration of Arena’s global intellectual property litigation positions (A) If an Infringement Claim exists with Eisai obligated to take into account the reasonably likely impact outside the Territory of all its positions in and conduct of such defense, and not to unreasonably reject or unreasonably act contrary to, Arena’s advice and suggestions with respect to an Initial Product or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulationits global intellectual property litigation positions), and it is jointly determined if reasonably requested by Arena, the Parties shall enter into a reasonable and standard joint defense agreement with respect to any such infringement claim. If Eisai does not undertake in good faith that a third-party patent poses a substantial risk to the defense of any such Initial Product or Improved Product in any country infringement claim by the date 10 days before the time limit, if any, set forth in the TerritoryApplicable Laws for the filing of the initial response or defense to any such claim, then or if Eisai (1having commenced such defense) Focal shall be responsible for obtaining subsequently does not continue to pursue and conduct such license from such third-party and shall pay all costs and fees associated with such licensedefense diligently, and (2) Ethicon Arena shall have the right (but not the obligation) to suspend performance bring and control such defense by counsel of its obligations own choice. Each Party shall bear its own internal costs and expenses of any such defense. All out-of-pocket external costs and expenses of conducting such defense (other than payment obligations arising prior to including outside counsel fees), and all amounts payable by either Party as a judgment based on such suspension) claim or in settlement of such claim shall be shared as follows: for claims with respect to such Initial Product or Improved Product Eisai’s Commercialization of the Products in the country Territory or countries in which such Infringement Claim poses either Party’s conduct of clinical trials or other development work under a substantial riskDevelopment Plan, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used aboveexcluding any Pre-Approval Required U.S. Development and any Post-Approval Required U.S. Development, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each Eisai shall bear […*] **…]% and Arena shall bear […***…]%; provided that Arena shall not be required to pay any amount of its share of such expenses that exceeds, for any Calendar Quarter, 50% of the costs Product Purchase Price Payment earned by Arena for Finished Product supplied to Eisai during such Calendar Quarter and fees associated with any amount of Arena’s share of such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty to any such third party expenses not paid in any country of the Territory, then Ethicon shall have the right to deduct an amount equal to [*] of such payments made by Ethicon to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product; provided, however, that in no event shall such royalty or such portion of the Purchase Price be reduced in any quarter by more than [*]. Any portion of a deduction that is not available for the quarter Calendar Quarter due to the foregoing limitation may shall be carried forward and deducted from payments otherwise due hereunder for subsequent quarterspaid in future Calendar Quarters. (Cb) [*]With respect to any claim alleging that (i) the discovery, development prior to the Effective Date, the making or having made, or importing or selling in the Territory (to the extent that such importation or selling claim is based on the manufacture by or on behalf of Arena), of any Compound or Product or intermediate thereof, (ii) the conduct of the BLOOM-DM Trial, Pre-Approval Required U.S. Development or Post-Approval Required U.S. Development, or (iii) any activity by Arena or its Affiliates outside the Territory, infringes or may infringe the intellectual property rights of any Third Party, in each case ((i) - (iii)) Arena shall have the sole right, subject to Section 11.3, to control any defense of any such claims at its own expense (including outside counsel fees and all amounts payable by Arena as a judgment based on such claim or in settlement of such claim) and by counsel of its own choice.

Infringement of Third Party Rights. IfIf a claim is brought by a Third Party alleging patent infringement by Licensee, as a result of Licensor, their Affiliates, or their sublicensees with respect to the manufacture, use use, sale, offer for sale or sale importation of Licensed Products, or any third party challenges the validity or enforceability of any Product in claims of any country Licensed Patents, each Party will give prompt written notice to the other Party of the Territory, a third party sues, threatens such claim. The Parties shall promptly use commercially reasonable efforts to xxx, or brings other action for patent infringement against Focal or Ethicon and/or any of their respective Affiliates (an "Infringement Claim"), or if either party shall become aware of third-party patent rights, Focal and Ethicon shall discuss consult in good faith an appropriate response to develop a commercially reasonable strategy or strategies, which shall take into account the reasonable economic interests of both parties, for jointly and/or cooperatively responding to any such infringement claim and shall determine by mutual agreement an appropriate course or challenge to the validity or enforceability of action. any Licensed Patents. If (Ai) If an Infringement Claim exists with respect the efforts of the Parties are unable to an Initial Product agree upon such a strategy within fifteen (15) business days of the notice described above or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined (ii) Licensor does not use commercially reasonable efforts to consult in good faith that with Licensee concerning such a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territorystrategy, then (1) Focal shall be responsible for obtaining such license from such third-party and shall pay all costs and fees associated with such licenseas described above, and (2) Ethicon Licensee shall have the first and primary right (but not the obligation) at its own expense to suspend performance defend, control the defense of, and/or settle any such infringement claim against Licensee, its Affiliates, or their sublicensees or challenge of the validity or enforceability of the Licensed Patents, using counsel of its obligations own choice. Licensor shall cooperate reasonably, as requested by Licensee and at Licensee expense (other than payment obligations arising prior which expense shall be reasonable). With respect to any such suspensiondefense. If, within six (6) months of the expiration of the fifteen (15) business day period noted above, Licensee (i) shall have been unsuccessful in defending such a challenge to the validity or enforceability of any claim of the Licensed Patents, (ii) shall not have brought and shall not be diligently prosecuting litigation with respect to such Initial Product challenge, or Improved Product in the country or countries in which such Infringement Claim poses a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (Biii) If an Infringement Claim exists has not entered into settlement discussions with respect to a Newsuch challenge, Product or an Improved Product if Licensee notifies Licensor that does it has decided not comprise to undertake any of the Lung Sealant Formulation foregoing with respect to such challenge, then Licensor shall then have the right, at its expense, to defend any Third Party challenge to the validity or enforceability of any claims in the Dural Sealant FormulationLicensed Patents (but not any other claim or allegation referenced above except with respect to any defense of any Third Party claim of infringement by Licensor), and it is jointly determined to be necessary to obtain a license from such third partyLicensee shall cooperate, Focal as reasonably requested by Licensor and Ethicon shall be jointly responsible for negotiating such licenseat Licensor expense, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each shall bear [*] of the costs and fees associated with such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty respect to any such third party in any country of the Territory, then Ethicon shall have the right to deduct an amount equal to [*] of such payments made by Ethicon to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product; provided, however, that in no event shall such royalty or such portion of the Purchase Price be reduced in any quarter by more than [*]. Any portion of a deduction that is not available for the quarter due to the foregoing limitation may be carried forward and deducted from payments otherwise due hereunder for subsequent quartersdefense. (C) [*]

Infringement of Third Party Rights. If, as a result of the manufacture, use or sale of any Product in any country of the Territory, a third party sues, threatens to xxx, or brings other action for patent infringement against Focal or Ethicon and/or any of their respective Affiliates (an "Infringement Claim"), or if either party shall become aware of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response to such claim and shall determine by mutual agreement an appropriate course of action. (A) If an Infringement Claim exists AMGEN AS NAMED PARTY. [***] any action naming Amgen [***] and claiming the infringement of (i) any Third Party Trademark through the development or Commercialization of Licensed Product; or (ii) Third Party Patent through the making, using, selling or having sold Licensed Product. The Parties shall confer with each other and cooperate during the defense of any action in which both Amgen and InterMune are named parties. InterMune shall assist and cooperate with Amgen in the defense of any such action and if Amgen finds it necessary or desirable to join InterMune as a party, InterMune shall execute all papers or perform such other acts as may reasonably be required by Amgen. [***] be entitled to [***] and [***] in any [***] [***] shall bear all associated costs and expenses (including attorneys' fees) incurred after the Effective Date and pay all damages and settlement amounts with respect to an Initial Product or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territory, then (1) Focal shall be responsible for obtaining such license from such third-party and shall pay all costs and fees associated with such license, and (2) Ethicon shall have the right to suspend performance of its obligations (other than payment obligations arising prior to such suspension) with respect to such Initial Product or Improved Product in the country or countries in which such Infringement Claim poses a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each shall bear [*] of the costs and fees associated with such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty to any such third party in any country of the Territory, then Ethicon shall have the right to deduct an amount equal to [*] of such payments made by Ethicon to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Product; provided, however, that in no event shall such royalty or such portion of the Purchase Price be reduced in any quarter by more than [*]. Any portion of a deduction that is not available for the quarter due **] shall have no obligation to bear such costs and expenses and pay such damages and settlement amounts to the foregoing limitation may be carried forward and deducted from payments otherwise due hereunder for subsequent quartersextent attributable to [***] Licensed Products. (CB) INTERMUNE AS NAMED PARTY. InterMune [*]**] any action which names InterMune but does not name Amgen and which claims the infringement of (i) any Third Party Trademark through the development or Commercialization of Licensed Product; or (ii) Third Party Patent through the using, selling or having sold Licensed Product. If necessary and at InterMune's expense, Amgen will assist and cooperate with InterMune in any such defense. InterMune shall bear all costs and expenses (including attorneys' fees) and pay all damages and settlement amounts with respect to the Territory, arising out of or in connection with any such action.

Infringement of Third Party Rights. If(a) If (i) in the opinion of counsel reasonably acceptable to both Licensor and Myriad, one or more Patents covering the research, development, Manufacture, use, or sale of the Licensed Compound or the Licensed Product has issued to a Third Party in any country such that Myriad cannot sell the Licensed Product in such country without infringing such Patent or (ii) as a result of any claim made against Myriad or any of its Affiliates or Sublicensees during the manufactureterm of this Agreement alleging that the research, use development, Manufacture, use, or sale of the Licensed Compound or Licensed Product by such entity infringes or misappropriates any Patent or any other intellectual property right of a Third Party in any country, a judgment is entered by a court of competent jurisdiction from which no appeal is taken within the time permitted for appeal, such that Myriad cannot sell the Licensed Product in any such country without infringing the Patent or other proprietary rights of the Territorysuch Third Party, a third party suesMyriad shall use its reasonable, threatens to xxx, or brings other action for patent infringement against Focal or Ethicon and/or any of their respective Affiliates (an "Infringement Claim"), or if either party shall become aware of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response efforts to such claim negotiate and shall determine by mutual agreement an appropriate course of action. (A) If an Infringement Claim exists with respect to an Initial Product or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territory, then (1) Focal shall be responsible for obtaining such license from such third-party and shall pay all costs and fees associated with such license, and (2) Ethicon shall have the right to suspend performance of its obligations (other than payment obligations arising prior to such suspension) with respect to such Initial Product or Improved Product in the country or countries in which such Infringement Claim poses a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation. (B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third partyThird Party that would permit Myriad to research, Focal and Ethicon shall be jointly responsible for negotiating such licensedevelop, it being understood that each shall make every effort to minimize Manufacture, use or sell the license fees and/or royalty payable to such third partyLicensed Compound or the Licensed Product, and each shall bear [*] of as the costs and fees associated with such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty to any such third party in any country of the Territorycase may be, then Ethicon shall have the right to deduct an amount equal to [*] of such payments made by Ethicon to such third party (1) from any royalties payable to Focal on the sale of such Product in such country pursuant to Section 6(d), and (2) if Ethicon is paying a Purchase Price to Focal for such Product pursuant to Section 7, from that portion of such Purchase Price equal to the royalty that would be payable to Focal pursuant to Section 6(d) if Focal were not supplying such a Productcountry; provided, however, that Myriad shall not be -------- ------- obligated to attempt to negotiate a license if Myriad in no event good faith believes that such negotiation is likely to be futile. If Myriad obtains such a license in such country, any royalties paid by Myriad, its Affiliates, or Sublicensees under such license with respect to the sale of the Licensed Product in such country shall be totaled at the end of each Fiscal Quarter and shall be creditable against future royalties paid to Licensor hereunder up to an amount equal to [ ] of the royalties paid to Licensor hereunder in respect of sales made in such royalty country during such Fiscal Quarter. If Myriad is unable to obtain a license or if Myriad in good faith believes that such negotiation is likely to be futile, Myriad shall have the right to terminate this Agreement with respect to such country by written notice to Licensor. Nothing contained in this Section shall be construed to limit Myriad's right to terminate this Agreement pursuant to Section 7.3. If Myriad is unable to obtain such a license, or such portion consideration to be paid to a Third Party for such license would make the Licensed Product commercially impracticable with respect to such country, then Myriad shall have the right to terminate this Agreement with respect to such country by written notice to Licensor. (b) In the event that a Third Party institutes a patent, trade secret, or other infringement suit against Myriad or its Affiliates or Sublicensees during the term of this Agreement, alleging that the research, development, Manufacture, use, or sale of the Purchase Price Licensed Compound or the Licensed Product infringes one or more patent or other intellectual property rights held by such Third Party, then Myriad shall have the first right, but not the obligation, at its sole cost and expense, to assume direction and control of the defense of claims arising therefrom but shall not enter into a disposition with respect thereto, or enter into a settlement agreement with respect thereto, which, in either case, admits that any Licensed Product infringes any Third Party right, without Licensor's prior written consent, which consent shall not be reduced unreasonably withheld. If Myriad determines not to assume such direction and control, Licensor shall have the right, at its sole cost and expense, to defend, settle or otherwise dispose of such claims on such terms as Licensor, in its sole discretion, shall deem appropriate; provided, however, that Licensor shall -------- ------- obtain the written consent of Myriad prior to ceasing to defend, settling, or otherwise disposing of such claims. In the event Myriad controls such defense, all of the reasonable costs and expenses, including, without limitation, damage awards, incurred by Myriad in connection therewith that are not offset by proceeds therefrom shall be fully creditable against the royalties due under Section 4.3; provided, -------- however, that Myriad may apply such credit in any quarter by more than [*]given Fiscal Quarter against a ------- maximum of [ ] of the total royalties payable to Licensor during such Fiscal Quarter. Any portion of a deduction that is Credits not available for the quarter due to the foregoing limitation exhausted in any Fiscal Quarter may be carried forward and deducted from payments otherwise due hereunder for subsequent quartersinto future Fiscal Quarters. (Cc) [*]Except as provided in Section 5.4(b), in the event that a Third Party institutes a Patent, trade secret, or other infringement suit against Myriad, Licensor, or their respective Affiliates or Sublicensees during the term of this Agreement, each party shall, at its own cost and expense, use all reasonable efforts to assist and cooperate with the other party in connection with the defense of such suit. (d) Nothing in this Section 5.4 shall prevent either party, at its own expense, from obtaining any license or other rights from Third Parties it deems appropriate in order to permit the full and unhindered exercise of its rights under this Agreement. (e) The provisions of this Section 5.4 set forth the parties' exclusive and sole remedies against each other in respect of the subject matter hereof.