Common use of Prosecution of Infringement Clause in Contracts

Prosecution of Infringement. (a) The Parties shall promptly notify one another in writing of any and all (i) actual or threatened infringements by Third Parties of the Ambit Licensed Patents or Program Patents (in each case, a “Third Party Infringement”) known to either of them, and in any event within thirty (30) days of learning of such infringement or (ii) any misappropriation or misuse of any Ambit Know-How, Joint Program Know-How or Ambit Program Know-How known to them. (b) With respect to actual or threatened Third Party Infringement of the Ambit Licensed Patents, or the Program Patents (a “Field Infringement”), Astellas shall have the first right, but not the obligation, to file suit or take other appropriate action to cause the cessation of such Field Infringement of any such Patent Rights. To the extent Astellas takes such action, Astellas shall control such action, at Astellas’s sole expense, but shall not enter into settlements, stipulated judgments or other arrangements respecting such infringement without Ambit’s prior consent, not to be unreasonably withheld. If Astellas takes such action against a Field Infringement, Astellas shall indemnify, defend and hold Ambit harmless from all related costs, expenses and liabilities respecting any such actions against claimed infringement in accordance with and to the extent required pursuant to its indemnification obligations in Article 7. Ambit shall permit an action to be brought by Astellas in Ambit’s name if required by law and shall join such action as a party plaintiff if required to perfect or maintain jurisdiction to pursue such action. Ambit agrees to provide, at Astellas’s expense, all reasonable assistance that Astellas may reasonably require in any such action, including providing written evidence, deposition and trial testimony, for which Astellas shall pay to Ambit a reasonable hourly rate of compensation. (c) Astellas shall notify Ambit in writing of its intention with regard to any such Third Party Infringement promptly after it has notice of such infringement. In the event that Astellas does not within one hundred twenty (120) days of notice of such Third Party Infringement initiate, and thereafter continue to diligently pursue, appropriate actions to cause the cessation of such Third Party Infringement (or earlier notifies Ambit in writing of its intent not to take such actions), then as of the expiration of such one hundred twenty (120) day period or earlier notice, Ambit shall have the right to take all actions it deems appropriate against such Third Party Infringement, in which case Ambit shall pay any and all costs and expenses incurred in such action. Astellas agrees to provide all reasonable assistance that Ambit may reasonably require in any such action or litigation, including providing written evidence, deposition and trial testimony, for which Ambit shall pay to Astellas a reasonable hourly rate of compensation. (d) Any recovery obtained by either or both Astellas and Ambit in connection with or as a result of any action contemplated by this Section 8.4.1, whether by settlement or otherwise, shall be shared in order as follows: (i) The Party which initiated and prosecuted the action shall recoup all of its reasonable out-of-pocket costs and expenses incurred in connection with the action; (ii) The other Party shall then, to the extent possible, recover its reasonable out-of-pocket costs and expenses incurred in connection with the action (to the extent not already reimbursed); and (iii) […***…]. CONFIDENTIAL Ambit shall inform Astellas of any certification regarding any Ambit Licensed Patents or Program Patents it has received pursuant to either 21 U.S.C. §§355(b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) or its successor provisions or any similar provisions in a country in the Territory other than the United States and shall provide Astellas with a copy of such certification within two (2) days or receipt. Ambit’s and Astellas’s rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in Sections 8.4.1 (a)-(d) hereof, provided that within thirty (30) days of receiving notice of such certification Astellas shall advise Ambit as to whether or not Astellas expects to prosecute such infringement.

Prosecution of Infringement. (a) The Parties During the Term, each Party shall promptly notify one another in writing give prompt notice to the other of any Third Party act which may infringe the Acusphere Patent Rights or the Marks in the Territory and all (i) actual or threatened infringements by Third Parties shall cooperate with each other to terminate such infringement without litigation. Acusphere shall have the right and obligation, at its sole expense, to enforce Acusphere Patent Rights in the Territory; provided that in Secondary Jurisdictions, Acusphere shall be required to bring legal action against an infringer only if it is commercially reasonable to do so in light of the Ambit Licensed Patents or Program Patents (actual and anticipated sales of Product in each casesuch Jurisdiction and the strategic effect of such Jurisdiction on the rest of the 42 Territory, a “after consultation with Nycomed. Nycomed shall provide such assistance and cooperation to Acusphere as may be reasonable and necessary to successfully prosecute any action against Third Party Infringement”) known infringement at Acusphere's expense and may deduct the expenses thereof from any amounts payable to either of them, and in any event within thirty (30) days of learning of such infringement or (ii) any misappropriation or misuse of any Ambit Know-How, Joint Program Know-How or Ambit Program Know-How known to themAcusphere under this Agreement. (b) With respect to actual or threatened Third Party Infringement of In the Ambit Licensed Patentsevent Acusphere fails, or the Program Patents (a “Field Infringement”), Astellas shall have the first right, but not the obligation, to file suit or take other appropriate action to cause the cessation of such Field Infringement of any such Patent Rights. To the extent Astellas takes such action, Astellas shall control such action, at Astellas’s sole expense, but shall not enter into settlements, stipulated judgments or other arrangements respecting such infringement without Ambit’s prior consent, not to be unreasonably withheld. If Astellas takes such action against a Field Infringement, Astellas shall indemnify, defend and hold Ambit harmless from all related costs, expenses and liabilities respecting any such actions against claimed infringement in accordance with and to the extent required pursuant by the preceding paragraph, to its indemnification obligations in Article 7. Ambit shall permit an action institute proceedings against any Third Party infringement of the Acusphere Patent Rights and/or the Marks within ninety (90) days after notice given by either Party to be brought by Astellas in Ambit’s name if required by law and shall join the other of said Third Party infringement, Nycomed may take such action as it deems appropriate, including without limitation, the filing of a party plaintiff if required lawsuit against such Third Party. In such event Nycomed shall be entitled to perfect 100% of any damage award or maintain jurisdiction to pursue other compensation received as a result of such action. Ambit agrees Acusphere will provide such assistance and cooperation to provideNycomed as may be necessary, at Astellas’s Acusphere's expense. In such event, all reasonable assistance that Astellas may reasonably require the amount of Royalties payable by Nycomed on Net Sales in any such action, including providing written evidence, deposition the affected Jurisdiction or Jurisdictions shall be reduced to the Technology Access and trial testimony, for which Astellas shall pay to Ambit a reasonable hourly rate of compensationTrademark Usage Fee. (c) Astellas shall notify Ambit in writing of its intention with regard Notwithstanding the foregoing, neither Party may settle an action or proceeding against an infringer related to any such Third Party Infringement promptly after it has notice of such infringement. In the event that Astellas does not within one hundred twenty (120) days of notice of such Third Party Infringement initiateAcusphere Patent Rights or the Marks, and thereafter continue to diligently pursue, appropriate actions to cause without the cessation of such Third Party Infringement (or earlier notifies Ambit in writing of its intent not to take such actions), then as written consent of the expiration other Party, if such settlement involves payment of damages by such one hundred twenty (120) day period other Party or earlier notice, Ambit shall have the grant of a license or other right to take all actions it deems appropriate against such Third Party Infringement, in which case Ambit shall pay any and all costs and expenses incurred in such action. Astellas agrees market product covered by the Acusphere Patent Rights or to provide all reasonable assistance that Ambit may reasonably require in any such action or litigation, including providing written evidence, deposition and trial testimony, for which Ambit shall pay to Astellas a reasonable hourly rate of compensationuse the Marks. (d) Any recovery obtained by either or both Astellas and Ambit in connection with or as a result of any action contemplated by this Section 8.4.1, whether by settlement or otherwise, shall be shared in order as follows: (i) The Party which initiated and prosecuted the action shall recoup all of its reasonable out-of-pocket costs and expenses incurred in connection with the action; (ii) The other Party shall then, to the extent possible, recover its reasonable out-of-pocket costs and expenses incurred in connection with the action (to the extent not already reimbursed); and (iii) […***…]. CONFIDENTIAL Ambit shall inform Astellas of any certification regarding any Ambit Licensed Patents or Program Patents it has received pursuant to either 21 U.S.C. §§355(b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) or its successor provisions or any similar provisions in a country in the Territory other than the United States and shall provide Astellas with a copy of such certification within two (2) days or receipt. Ambit’s and Astellas’s rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in Sections 8.4.1 (a)-(d) hereof, provided that within thirty (30) days of receiving notice of such certification Astellas shall advise Ambit as to whether or not Astellas expects to prosecute such infringement.

Prosecution of Infringement. During the Term, each Party shall give prompt written notice to the other Party of any Third Party act in the Territory that (a) The Parties shall promptly notify one another concerns any product(s) that contain buprenorphine as the sole API and (b) may infringe the Licensed Patents and/or the Licensed Marks in writing of the Territory. BDSI shall, as between the Parties, have the sole and exclusive right with respect to Licensed Marks and Licensed Patents, but not, in either case, the obligation, to bring and control any and all action or proceeding (i) concerning any potential or actual or threatened infringements by Third Parties infringement of the Ambit Licensed Patents or Program Patents (in each case, a “Third Party Infringement”) known to either of them, and in any event within thirty (30) days of learning of such infringement Licensed Marks or (ii) concerning any potential or actual misappropriation or misuse of any Ambit Licensed Know-How. If BDSI is unable to initiate or to prosecute such action solely in its own name or it is otherwise Commercially Reasonable and reasonably advisable to obtain an effective or interim remedy, Joint Program Know-How or Ambit Program Know-How known to them. Purdue shall, if and as requested by BDSI and at BDSI’s sole expense (b) With respect to actual or threatened Third Party Infringement of the Ambit Licensed Patents, or the Program Patents (a “Field Infringement”which shall be reasonable and documented), Astellas shall have the first right, but not the obligation, join such action and take such other reasonable steps requested by BDSI as are necessary for BDSI to file suit or take other appropriate action initiate litigation to cause the cessation of such Field Infringement of any such Patent Rights. To the extent Astellas takes prosecute and maintain such action, Astellas shall control provided, that, under no circumstances will Purdue be obligated to, amend or alter any of the terms of this Agreement in a manner adverse to Purdue’s interests in order to enable BDSI to initiate litigation to prosecute and maintain such action. Purdue shall provide, at AstellasBDSI’s sole expenseexpense (which shall be reasonable and documented), but shall not enter into settlementssuch other assistance and cooperation to BDSI as may be necessary to prosecute any action against such Third Party. Any damages, stipulated judgments monetary awards, or other arrangements respecting such infringement without Ambit’s prior consentamounts recovered or received in settlement by BDSI shall be applied proportionately first to defray the unreimbursed reasonable, not documented costs and expenses (including reasonable attorneys’ fees) incurred by Purdue and BDSI in the action, with the remaining balance thereof (A) to be unreasonably withheld. If Astellas takes such action against a Field Infringement, Astellas shall indemnify, defend and hold Ambit harmless from all related costs, expenses and liabilities respecting any such actions against claimed infringement in accordance with retained by BDSI if and to the extent required pursuant that the amounts recovered or received by BDSI pertain to its indemnification obligations in Article 7. Ambit shall permit an action to be brought by Astellas in Ambit’s name if required by law and shall join such action as a party plaintiff if required to perfect or maintain jurisdiction to pursue such action. Ambit agrees to provide, at Astellas’s expense, all reasonable assistance that Astellas may reasonably require in any such action, including providing written evidence, deposition and trial testimony, for which Astellas shall pay to Ambit a reasonable hourly rate of compensation. (c) Astellas shall notify Ambit in writing of its intention with regard to any such Third Party Infringement promptly after it has notice of such infringement. In the event that Astellas does not within one hundred twenty (120) days of notice of such Third Party Infringement initiate, and thereafter continue to diligently pursue, appropriate actions to cause the cessation of such Third Party Infringement (or earlier notifies Ambit in writing of its intent not to take such actions), then as of the expiration of such one hundred twenty (120) day period or earlier notice, Ambit shall have the right to take all actions it deems appropriate against such Third Party Infringement, in which case Ambit shall pay any and all costs and expenses incurred in such action. Astellas agrees to provide all reasonable assistance that Ambit may reasonably require in any such action or litigation, including providing written evidence, deposition and trial testimony, for which Ambit shall pay to Astellas a reasonable hourly rate of compensation. (d) Any recovery obtained by either or both Astellas and Ambit in connection with or as a result of any action contemplated by this Section 8.4.1, whether by settlement or otherwise, shall be shared in order as follows: (i) The Party which initiated and prosecuted the action shall recoup all of its reasonable out-of-pocket costs and expenses incurred in connection with the action; (ii) The other Party shall then, to the extent possible, recover its reasonable out-of-pocket costs and expenses incurred in connection with the action (to the extent not already reimbursed); and (iii) […***…]. CONFIDENTIAL Ambit shall inform Astellas of any certification regarding any Ambit Licensed Patents or Program Patents it has received pursuant to either 21 U.S.C. §§355(b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) or its successor provisions or any similar provisions in a country in the Territory other than the United States and shall provide Astellas with a copy of such certification within two (2) days any Buprenorphine-Specific Patents or receipt. Ambit’s and Astellas’s rights that pertain to Buprenorphine-Specific Patents but are recovered or received with respect to the initiation manufacture, use, sale, or import of a product other than a Licensed Product or (B) to be split *** to Purdue and prosecution *** to BDSI if and to the extent that the amounts recovered or received by BDSI directly pertain to any Buprenorphine-Specific Patents and the manufacture, use, sale, or import of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in Sections 8.4.1 (a)-(d) hereof, provided that within thirty (30) days of receiving notice of such certification Astellas shall advise Ambit as to whether or not Astellas expects to prosecute such infringementLicensed Product.

Prosecution of Infringement. (a) The Parties During the Term, each Party shall promptly notify one another in writing give prompt notice to the other Party of any and all (i) actual or threatened infringements by Third Parties of the Ambit Licensed Patents or Program Patents (in each case, a “Third Party Infringement”) known act which may infringe Meda’s rights under the Licensed Patent Rights and/or the Marks in the Territory and shall cooperate with the other Party to either of themterminate such infringement. If legal proceedings become necessary, and in any event within thirty (30) days of learning of such infringement or (ii) any misappropriation or misuse of any Ambit Know-How, Joint Program Know-How or Ambit Program Know-How known to them. (b) With respect to actual or threatened Third Party Infringement of the Ambit Licensed Patents, or the Program Patents (a “Field Infringement”), Astellas Meda shall have the first rightright to bring and control such action or proceeding concerning the potential or actual infringement of Meda’s rights under this Agreement, but not using counsel reasonably acceptable to BDSI, and Meda shall solely bear the obligationcost with respect thereto. The above notwithstanding, to file suit or take other appropriate action to cause the cessation of such Field Infringement of without BDSI’s prior written consent Meda may only settle any such Patent Rights. To the extent Astellas takes such action, Astellas shall control such action, at Astellas’s sole expense, but shall not enter into settlements, stipulated judgments or other arrangements respecting such infringement without Ambitclaim with BDSI’s prior written consent, such consent not to be unreasonably withheld. If Astellas takes such action against a Field Infringement, Astellas BDSI shall indemnify, defend and hold Ambit harmless from all related costs, expenses and liabilities respecting any such actions against claimed infringement in accordance with and to the extent required pursuant to its indemnification obligations in Article 7. Ambit shall permit an action to be brought by Astellas in Ambit’s name if required by law and shall join such action as a party plaintiff if required to perfect or maintain jurisdiction to pursue such action. Ambit agrees to provide, at AstellasMeda’s expense, all such assistance and cooperation to Meda as may be necessary to successfully prosecute any action against such Third Party. Any damages, monetary awards, or other amounts recovered or received in settlement by Meda shall be applied proportionately first to defray the unreimbursed costs and expenses (including reasonable assistance that Astellas may reasonably require attorneys’ fees) incurred by Meda and BDSI in the action. If any balance remains, Meda shall be entitled to retain an amount equal to *** percent (***%) of the portion of such balance with the remaining balance being paid to BDSI by Meda. Notwithstanding the foregoing, if Meda wishes BDSI to share the costs of pursuing any actual, potential, or alleged infringer of Meda’s rights under the Licensed Patent Rights and/or Marks in the Territory, it shall provide written notice thereof to BDSI within *** of Meda’s becoming aware of the actual, potential, or alleged infringement. Upon written notice thereof, the parties shall enter into good faith discussions for a period not to exceed *** concerning the possibility and terms of any such actioncost-sharing, including providing written evidence, deposition provided that (i) neither Party shall have any obligation to enter into such an arrangement and trial testimony, for which Astellas shall pay to Ambit a reasonable hourly rate of compensation. (cii) Astellas shall notify Ambit in writing of its intention with regard to any such Third Party Infringement promptly after it has notice arrangement will provide for the sharing of any damages, monetary awards, or other amounts recovered or received in settlement of such infringementmatter in a manner, based on the portion of such costs to be shared by BDSI, proportionately more favorable to BDSI than the sharing of any such damages, monetary awards, or other amounts recovered or received in settlement absent such cost-sharing, as contemplated under the first paragraph of this Section 7.03. In the event that Astellas does not Meda fails to institute proceedings or undertake reasonable efforts to terminate any Third Party infringement of the Licensed Patent Rights and/or Marks in the Territory within one hundred twenty *** of the later of: (120a) days receiving notification from BDSI of any such infringement or (b) sending notice to BDSI of such Third Party Infringement initiateaction, and thereafter continue or the parties are unable to diligently pursue, appropriate actions to cause reach an agreement concerning the cessation of such Third Party Infringement (or earlier notifies Ambit in writing of its intent not to take such actions), then as sharing of the expiration costs of pursuing any actual, potential, or alleged infringer (and increased share of any proceeds from such one hundred twenty action for the benefit of BDSI, as contemplated by the preceding paragraph) within *** of Meda’s notice indicating its desire to enter into such discussions, BDSI may take (120) day period or earlier notice, Ambit but shall have the right no obligation to take all actions take) such action as it deems appropriate appropriate, including the filing of a lawsuit against such Third Party InfringementParty. In such event Meda will provide such assistance and cooperation to BDSI as may be necessary, in which case Ambit at BDSI’s cost and expense, and BDSI shall pay be entitled to retain the entire balance of any and all costs and expenses incurred in recovery or settlement from any such action. Astellas agrees to provide all reasonable assistance that Ambit may reasonably require in any such action or litigation, including providing written evidence, deposition and trial testimony, for which Ambit shall pay to Astellas a reasonable hourly rate of compensation. (d) Any recovery obtained by either or both Astellas and Ambit in connection with or as a result of any action contemplated by this Section 8.4.1, whether by settlement or otherwise, shall be shared in order as follows: (i) The Party which initiated and prosecuted the action shall recoup all of its reasonable out-of-pocket costs and expenses incurred in connection with the action; (ii) The other Party shall then, to the extent possible, recover its reasonable out-of-pocket costs and expenses incurred in connection with the action (to the extent not already reimbursed); and (iii) […***…]. CONFIDENTIAL Ambit shall inform Astellas of any certification regarding any Ambit Licensed Patents or Program Patents it has received pursuant to either 21 U.S.C. §§355(b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) or its successor provisions or any similar provisions in a country in the Territory other than the United States and shall provide Astellas with a copy of such certification within two (2) days or receipt. Ambit’s and Astellas’s rights with respect to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in Sections 8.4.1 (a)-(d) hereof, provided that within thirty (30) days of receiving notice of such certification Astellas shall advise Ambit as to whether or not Astellas expects to prosecute such infringement.

Prosecution of Infringement. During the term of this Agreement, each Party shall promptly inform the other Parties of any suspected infringement, misappropriation or theft of the Licensed Technology by a Third Party. Any action or proceeding against such Third Party shall be instituted as following: (a) The Parties Licensor shall promptly notify one another in writing of any and all (i) actual have the first right but not the obligation to institute an action for infringement, misappropriation or threatened infringements by Third Parties theft of the Ambit Licensed Patents or Program Patents (in each case, a “Technology against such Third Party Infringement”) known to either of them, and in any event within thirty (30) days of learning of such infringement or (ii) any misappropriation or misuse of any Ambit Know-How, Joint Program Know-How or Ambit Program Know-How known to themParty. (b) With respect to actual If Licensor has not within three (3) months from the date on which it is notified or threatened Third Party Infringement otherwise becomes aware of the Ambit Licensed Patents, an infringement or the Program Patents (a “Field Infringement”), Astellas shall have the first right, but not the obligation, to file suit or take other appropriate action to cause the cessation of such Field Infringement of any such Patent Rights. To the extent Astellas takes such action, Astellas shall control such action, at Astellas’s sole expense, but shall not enter into settlements, stipulated judgments or other arrangements respecting misappropriation either terminated such infringement without Ambit’s prior consent, not to be unreasonably withheld. If Astellas takes such or initiated legal action against a Field Infringementthe infringer or defendant, Astellas shall indemnifyit shall, defend and hold Ambit harmless from all related costsupon written request of either Licensee, expenses and liabilities respecting any grant to such actions against claimed infringement in accordance with and Licensee the right to the extent required pursuant to its indemnification obligations in Article 7. Ambit shall permit prosecute an action to be against the infringer or defendant. Licensee shall pay all its expenses, including costs and legal fees incurred in bringing and prosecuting such infringement or misappropriation action. Licensor will cooperate with the Licensees in any suit for infringement or misappropriation brought by Astellas in Ambit’s name if required by law and shall join such action as a party plaintiff if required to perfect or maintain jurisdiction to pursue such actioneither Licensee. Ambit agrees to provide, at Astellas’s expense, all reasonable assistance that Astellas may reasonably require in any such action, including providing written evidence, deposition and trial testimony, for which Astellas shall pay to Ambit a reasonable hourly rate of compensation. (c) Astellas shall notify Ambit in writing of its intention with regard to any such Third Party Infringement promptly after it has notice of such infringement. In the event that Astellas does not within one hundred twenty (120) days of notice of such Third Party Infringement initiate, and thereafter continue to diligently pursue, appropriate actions to cause the cessation of such Third Party Infringement (or earlier notifies Ambit in writing of its intent not to take such actions), then as of the expiration of such one hundred twenty (120) day period or earlier notice, Ambit Licensor shall have the right to take all actions it deems appropriate against such Third Party Infringement, consult with either Licensee and to participate in which case Ambit shall pay any and all costs and expenses incurred be represented by independent counsel in such actionlitigation at its own expense. Astellas agrees to provide all reasonable assistance that Ambit may reasonably require in any such action or litigation, including providing written evidence, deposition and trial testimony, The Licensees shall periodically reimburse Licensor for which Ambit shall pay to Astellas a reasonable hourly rate of compensation. (d) Any recovery obtained by either or both Astellas and Ambit in connection with or as a result of any action contemplated by this Section 8.4.1, whether by settlement or otherwise, shall be shared in order as follows: (i) The Party which initiated and prosecuted the action shall recoup all of its reasonable out-of-pocket costs and expenses (excluding independent counsel fees) incurred in connection cooperating with either Licensee. If either Licensee desires to settle or compromise a suit or action in a manner that adversely impacts Licensor or the action;Licensed Technology, such Licensee shall not so settle or compromise such suit or action without the written consent of Licensor, which may be withheld in its sole discretion. (iic) The other Should Licensor commence suit under the provisions of this Section 4.1 and thereafter elect to abandon the same, Licensor shall give timely notice to the Licensees and either Licensee may, if it desires, continue prosecution of such action. (d) Should either of the Licensees commence suit under the provisions of this Section 4.1 and thereafter elect to abandon the same, such Licensee shall give timely notice to Licensor who may, if it desires, continue prosecution of such action. (e) In any action pursuant to this Section, all recoveries, whether by judgment, award, decree or settlement, from infringement, misappropriation, or theft of the Licensed Technology shall be apportioned as follows: (a) each Party shall then, first recover an amount that is equal to or in direct proportion to the extent possible, recover its reasonable out-of-pocket total costs and expenses incurred in connection with the action (by such Party directly related to the extent not already reimbursed); and (iii) […***…]. CONFIDENTIAL Ambit shall inform Astellas of any certification regarding any Ambit Licensed Patents or Program Patents it has received pursuant to either 21 U.S.C. §§355(b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) or its successor provisions or any similar provisions in a country in the Territory other than the United States and shall provide Astellas with a copy prosecution of such certification within two action or proceeding, (2b) days each Party shall then recover an amount equal to or receipt. Ambitin direct proportion to each Party’s lost profits, and Astellas’s rights with respect (c) the remainder shall then be paid to the initiation and prosecution of any legal action as a result of such certification or any recovery obtained as a result of such legal action shall be as defined in Sections 8.4.1 (a)-(d) hereof, provided that within thirty (30) days of receiving notice of such certification Astellas shall advise Ambit as to whether or not Astellas expects to prosecute such infringementParty prosecuting the action.

Prosecution of Infringement. (a) The Parties During the Term, each Party shall promptly notify one another in writing give prompt notice to the other Party of any and all (i) actual or threatened infringements by Third Parties of the Ambit Licensed Patents or Program Patents (in each case, a “Third Party Infringement”) known to either of them, and in any event within thirty (30) days of learning of such infringement or (ii) any misappropriation or misuse of any Ambit Know-How, Joint Program Know-How or Ambit Program Know-How known to them. (b) With respect to actual or threatened Third Party Infringement of act which may infringe the Ambit Licensed Patents, or the Program Patents (a “Field Infringement”), Astellas shall have the first right, but not the obligation, to file suit or take other appropriate action to cause the cessation of such Field Infringement of any such BEMA Patent Rights. To , and/or the extent Astellas takes such action, Astellas shall control such action, at Astellas’s sole expense, but shall not enter into settlements, stipulated judgments or other arrangements respecting such infringement without Ambit’s prior consent, not to be unreasonably withheld. If Astellas takes such action against a Field Infringement, Astellas shall indemnify, defend and hold Ambit harmless from all related costs, expenses and liabilities respecting any such actions against claimed infringement Marks in accordance with and to the extent required pursuant to its indemnification obligations in Article 7. Ambit shall permit an action to be brought by Astellas in Ambit’s name if required by law Territory and shall join such action as a party plaintiff if required cooperate with the other Party to perfect or maintain jurisdiction to pursue such action. Ambit agrees to provide, at Astellas’s expense, all reasonable assistance that Astellas may reasonably require in any such action, including providing written evidence, deposition and trial testimony, for which Astellas shall pay to Ambit a reasonable hourly rate of compensation. (c) Astellas shall notify Ambit in writing of its intention with regard to any such Third Party Infringement promptly after it has notice of terminate such infringement. In the event that Astellas does not within one hundred twenty (120) days of notice of such Third Party Infringement initiateIf legal proceedings become necessary, and thereafter continue to diligently pursue, appropriate actions to cause the cessation of such Third Party Infringement (or earlier notifies Ambit in writing of its intent not to take such actions), then as of the expiration of such one hundred twenty (120) day period or earlier notice, Ambit Arius shall have the right to take all actions it deems appropriate bring and control such action or proceeding, using its choice of counsel, and Arius shall solely bear the cost with respect thereto. The above notwithstanding, without Arius Two’s prior written consent Arius may only settle any such claim so long as the terms of such settlement do not (a) impair Arius Two’s rights under this Agreement, (b) impair Arius Two’s rights in the BEMA Patent Rights and the Marks, or (c) impose any additional costs directly on Arius Two. Arius Two shall provide, at Arius’ expense, such assistance and cooperation to Arius as may be necessary to successfully prosecute any action against such Third Party Infringement, in which case Ambit Party. Any damages or other monetary awards recovered by Arius shall pay any and all be applied proportionately first to defray the unreimbursed costs and expenses (including reasonable attorneys’ fees) incurred by Arius and Arius Two in such the action. Astellas agrees to provide all reasonable assistance that Ambit may reasonably require in If any such action or litigationbalance remains, including providing written evidence, deposition and trial testimony, for which Ambit Arius shall pay to Astellas a Arius Two an amount equal to the Royalty that Arius Two would otherwise be entitled to under this Agreement if such remaining balance was treated as Net Sales. If any balance remains after payment to Arius Two, such balance shall be the property of Arius. In the event Arius fails to institute proceedings or undertake reasonable hourly rate efforts to terminate any Third Party infringement of compensation. the BEMA Patent Rights within *** of the later of (da) Any recovery obtained by either or both Astellas and Ambit in connection with or as a result receiving notification from Arius Two of any action contemplated by this Section 8.4.1, whether by settlement or otherwise, shall be shared in order as follows: (i) The Party which initiated and prosecuted the action shall recoup all of its reasonable out-of-pocket costs and expenses incurred in connection with the action; (ii) The other Party shall then, to the extent possible, recover its reasonable out-of-pocket costs and expenses incurred in connection with the action (to the extent not already reimbursed); and (iii) […***…]. CONFIDENTIAL Ambit shall inform Astellas of any certification regarding any Ambit Licensed Patents or Program Patents it has received pursuant to either 21 U.S.C. §§355(b)(2)(A)(iv) such infringement or (j)(2)(A)(vii)(IVb) or its successor provisions or any similar provisions in a country in the Territory other than the United States and shall provide Astellas with a copy sending notice to Arius Two of such certification within two action, Arius Two may take (2but shall have no obligation to do so) days or receipt. Ambit’s and Astellas’s rights with respect to the initiation and prosecution of any legal such action as it deems appropriate, including the filing of a result of lawsuit against such certification or any recovery obtained Third Party. In such event Arius will provide such assistance and cooperation to Arius Two as a result of such legal action shall may be as defined in Sections 8.4.1 (a)-(d) hereofnecessary, provided that within thirty (30) days of receiving notice of such certification Astellas shall advise Ambit as to whether or not Astellas expects to prosecute such infringementat Arius Two’s cost and expense.