Common use of Right of First Enforcement Clause in Contracts

Right of First Enforcement. (a) Licensee, itself or through any of its Affiliates or sublicensees, shall have the first right (but not the obligation), at its own expense, to control enforcement of the Licensed Technology against any Third Party Infringement within the scope of its exclusive license and may name Pfizer as a party for standing purposes. Pfizer shall cooperate with and join, at Licensee’s request and expense, any such action and has the right to join any such action, including retaining separate counsel, at Pfizer’s own expense. Prior to commencing any such action, Licensee shall consult with Pfizer and shall give due consideration to Pfizer’s timely recommendations regarding the proposed action. Licensee shall give Pfizer timely notice of any proposed settlement of any such action instituted by Licensee and shall not, without the prior written consent of Pfizer, enter into any settlement that would: (i) adversely affect the validity, enforceability or scope of any of the Licensed Patent Rights; (ii) give rise to liability of Pfizer or its Affiliates; (iii) admit non-infringement of any Licensed Patent Rights; or (iv) otherwise impair Pfizer’s rights in any Licensed Technology or this Agreement. (b) If Licensee does not, with respect to its first right of enforcement under Section 8.2.1(a), either (i) obtain agreement from the alleged infringer to desist or (ii) confirm to Pfizer in writing, by the earlier of (A) sixty (60) days following Licensee’s receipt of notice of the alleged infringement or (B) fifteen (15) days before the expiration date for filing an infringement action, that Licensee, or any of its Affiliates or sublicensees, will initiate an infringement action, then Pfizer shall have the right, at its sole discretion, to control such enforcement of the Licensed Technology at its sole expense.

Right of First Enforcement. (a) Licensee, itself or through any of its Affiliates or sublicensees, shall have the first right (but not the obligation), at its own expense, to control enforcement of the Licensed Technology against any Third Party Infringement within the scope of its exclusive license (i.e., its license within the Fields) and may name Pfizer as a party for standing purposes. Pfizer shall cooperate with and join, at Licensee’s request and expense, any such action and has the right to join any such action, including retaining separate counsel, at Pfizer’s own expense. Prior to commencing any such action, Licensee shall consult with Pfizer and shall give due consideration to Pfizer’s timely recommendations regarding the proposed action. Licensee shall give Pfizer timely notice of any proposed settlement of any such action instituted by Licensee and shall not, without the prior written consent of Pfizer, enter into any settlement that would: (i) adversely affect the validity, enforceability or scope of any of the Licensed Patent Rights; (ii) give rise to liability of Pfizer or its Affiliates; (iii) admit non-infringement of any Licensed Patent Rights; or (iv) otherwise impair Pfizer’s rights in any Licensed Technology or this Agreement. (b) If Licensee does not, with respect to its first right of enforcement under Section 8.2.1(a), either (i) obtain agreement from the alleged infringer to desist or (ii) confirm to Pfizer in writing, by the earlier of (A) sixty (60) days following Licensee’s receipt of notice of the alleged infringement or (B) fifteen (15) days before the expiration date for filing an infringement action, that Licensee, or any of its Affiliates or sublicensees, will initiate an infringement action, then Pfizer shall have the right, at its sole discretion, to control such enforcement of the Licensed Technology at its sole expense.

Right of First Enforcement. (a) Licensee, itself or through any of its Affiliates or sublicensees, LICENSEE shall have the first right (but not the obligation), at * Information redacted pursuant to a confidential treatment request by Gemphire Therapeutics Inc. under 5 U.S.C. §552(b)(4), Rule 406 under the Securities Act of 1933 and Rule 24b-2 of the Securities Exchange Act of 1934 and submitted separately with the Securities and Exchange Commission. its own expense, to control enforcement of the Licensed Technology against any Third Party Infringement within the scope of its exclusive license and may name Pfizer as a party for standing purposes. Pfizer shall cooperate with and join, at Licensee’s request and expense, any such action and has the right to join any such action, including retaining separate counsel, at Pfizer’s own expenseInfringement. Prior to commencing any such action, Licensee LICENSEE shall consult with Pfizer PFIZER and shall give due consideration to PfizerPFIZER’s timely recommendations regarding the proposed action. Licensee At LICENSEE’S reasonable request, PFIZER will in good faith consider joining LICENSEE as a co-party in any litigation related to the enforcement of the Licensed Technology against any Third Party Infringement. LICENSEE shall give Pfizer PFIZER timely notice of any proposed settlement of any such action instituted by Licensee LICENSEE and shall not, without the prior written consent of PfizerPFIZER, enter into any settlement that would: (i) adversely affect the validity, enforceability or scope of any of the Licensed Patent Rights; Technology, (ii) give rise to liability of Pfizer PFIZER or its Affiliates; , (iii) admit Third Party non-infringement of any Licensed Patent Rights; Technology, or (iv) otherwise impair PfizerPFIZER’s rights in any Licensed Technology or under this Agreement. (b) If Licensee LICENSEE does not, with respect to its first right of enforcement under Section 8.2.1(a), either (i) not obtain agreement from the alleged infringer to desist or fails to initiate an infringement action within: (ii) confirm to Pfizer in writing, by the earlier of (Ai) sixty (60) days following LicenseeLICENSEE’s receipt of notice of the alleged infringement infringement, or (Bii) fifteen thirty (1530) days before the expiration date for filing an infringement actionsuch actions, that Licenseewhichever comes first, or any of its Affiliates or sublicensees, will initiate an infringement action, then Pfizer PFIZER shall have the right, at its sole discretion, to control such enforcement of the Licensed Technology at its sole expense.

Right of First Enforcement. (a) Licensee, itself or through any of its Affiliates or sublicensees, Licensee shall have the first right (but not the obligation), at its own expense, to control enforcement of the Licensed Technology against any Third Party Infringement within the scope of its exclusive license and may name Pfizer as a party for standing purposes. Pfizer shall cooperate with and join, at Licensee’s request sole expense and expenseupon Licensee’s timely request, any such action and has the right to join any such action, including retaining separate counsel, at Pfizer’s own expense. Prior to commencing any such action, Licensee shall consult with Pfizer and shall give due consideration to Pfizer’s timely and reasonable recommendations regarding the proposed action. Licensee shall give Pfizer timely notice of any proposed settlement of any such action instituted by Licensee and shall not, without the prior written consent of Pfizer, which in the case of (i), (iii) and (iv) below shall not be unreasonably withheld, conditioned or delayed, enter into any settlement that would: (i) adversely affect the validity, enforceability or scope of any of the Licensed Patent Rights; , (ii) give rise to liability of Pfizer or its Affiliates; , (iii) admit non-infringement of any Licensed Patent Rights; , or (iv) otherwise impair Pfizer’s rights in any Licensed Technology or this Agreement. (b) If Licensee does not, with respect to its first right of enforcement under Section 8.2.1(a9.2.1(a), either (i) obtain agreement from the alleged infringer to desist or (ii) confirm fails or refuses to Pfizer in writing, initiate an infringement action by the earlier of (Ai) sixty (60) days following Licensee’s receipt of notice of the alleged infringement infringement, or (Bii) fifteen thirty (1530) days before the expiration date for filing an infringement action, that Licensee, or any of its Affiliates or sublicensees, will initiate an infringement actionsuch actions, then Pfizer shall have the right, at its sole discretion, to control such enforcement of the Licensed Technology at its sole expense, provided that Pfizer shall promptly notify Licensee in writing of any decision to take such enforcement action and, prior to taking such enforcement action, shall reasonably consult with Licensee with respect thereto and consider in good faith any reasons provided by Licensee to Pfizer for not taking any enforcement action with respect to the applicable infringement. Pfizer shall give Licensee timely notice of any proposed settlement of any such action controlled by Pfizer and shall not, without the prior written consent of Licensee, which in the case of (i), (iii) and (iv) below shall not be unreasonably withheld, conditioned or delayed, enter into any settlement that would: (i) Table of Contents adversely affect the validity or enforceability of any of the Licensed Patent Rights or the scope of any claims therein that cover a Compound or Product in clinical Development or Commercialized by or on behalf of Licensee, (ii) give rise to liability of Licensee or its Affiliates, (iii) admit noninfringement of any claims in any Licensed Patent Rights that cover a Compound or Product in clinical Development or Commercialized by or on behalf of Licensee or (iv) otherwise impair Licensee’s rights in any other Licensed Technology or this Agreement. (c) Notwithstanding anything herein to the contrary, the Parties expressly acknowledge and agree that Schedule 11.2.6 hereto shall not be deemed a notice of Third Party Infringement to Licensee, and that Pfizer shall not have a right or obligation to take any enforcement action with respect thereto. (d) To the extent that any Licensee-Selected Compound Patent Rights solely relate to the applicable Licensee-Selected Compound, the Parties agree that Sections 9.2.1(a) and (b) shall apply to such Licensee-Selected Compound Patent Rights as if they were included within the definition of Licensed Technology and the remainder of this Section 9.2.1(d) shall be disregarded for such Licensee-Selected Compound Patent Rights. To the extent that any Licensee-Selected Compound Patent Rights do not fall within the scope of the preceding sentence, Pfizer shall have the sole right, but not the obligation to enforce and defend the Licensee-Selected Compound Patent Rights for each Licensee-Selected Compound in the Territory at its own expense, provided that Licensee shall cooperate with and join any such action upon Pfizer’s timely request and, prior to commencing any such action, Pfizer shall consult with Licensee and shall give due consideration to Licensee’s timely and reasonable recommendations regarding the proposed action and any request by Licensee to enforce or defend such Patent Right at Licensee’s expense.

Right of First Enforcement. (a) Licensee, itself or through any of its Affiliates or sublicensees, AXSOME shall have the first right (but not the obligation), at its own sole cost and expense, to control enforcement of the Licensed Technology LICENSED IP against any Third Party Infringement within the scope of THIRD PARTY INFRINGEMENT. AXSOME shall be entitled to name PFIZER as an additional party in applicable actions or proceedings if necessary in order to enable AXSOME to exercise its exclusive license and may name Pfizer as a party for standing purposes. Pfizer shall cooperate with and join, at Licensee’s request and expense, any such action and has the right to join any control enforcement against such action, including retaining separate counsel, at Pfizer’s own expenseTHIRD PARTY INFRINGEMENT. Prior to commencing any such action, Licensee AXSOME shall consult with Pfizer PFIZER and shall give due consideration to PfizerPFIZER’s timely recommendations regarding the proposed action. Licensee AXSOME shall give Pfizer PFIZER timely notice of any proposed settlement of any such action instituted by Licensee and or proceedings related to a THIRD PARTY INFRINGEMENT. AXSOME shall not, without the prior written consent of PfizerPFIZER, which consent shall not be unreasonably withheld or delayed, enter into any settlement that would: (i) adversely affect the validity, enforceability or scope of any of the Licensed Patent Rights; LICENSED PATENT RIGHTS, or (ii) give rise to liability of Pfizer or its Affiliates; (iii) admit admits non-infringement of any Licensed Patent Rights; LICENSED PATENT RIGHTS. AXSOME shall not, without the prior written consent of PFIZER, which PFIZER shall have sole discretion in granting, enter into any settlement that (i) gives rise to liability of PFIZER or its AFFILIATES, or (ivii) otherwise impair Pfizerimpairs PFIZER’s rights in any Licensed Technology LICENSED IP or this AgreementAGREEMENT. (b) If Licensee AXSOME does not, with respect to its first right of enforcement under Section 8.2.1(a8.4.2(a), either (i) obtain agreement from the alleged infringer to desist desist, or (ii) confirm fails or refuses to Pfizer in writing, initiate an infringement action by the earlier of (Ai) sixty one hundred-twenty (60120) days following LicenseeAXSOME’s receipt of notice of the alleged infringement or (Bii) fifteen (15) days before the expiration date for filing an infringement action, that Licensee, or any of its Affiliates or sublicensees, will initiate an infringement actionsuch actions, then Pfizer PFIZER shall have the right, at its sole discretion, to control such enforcement of the Licensed Technology LICENSED IP at its sole expense, and notwithstanding the provisions of Section 8.4.3, shall be entitled to retain any and all applicable recoveries; provided, however PFIZER shall not, without the prior written consent of AXSOME, which AXSOME consent shall not be unreasonably withheld, enter into any settlement that (i) gives rise to liability of AXSOME or its AFFILIATES, or (ii) impairs AXSOME’s rights in any LICENSED IP or this AGREEMENT.

Right of First Enforcement. (a) Licensee, itself or through any of its Affiliates or sublicensees, LICENSEE shall have the first right (but not the obligation), at its own expense, to control enforcement of the Licensed Technology against any Third Party Infringement within the scope of its exclusive license and may name Pfizer PFIZER as a party for standing purposes. Pfizer shall cooperate with and join, at Licensee’s request and expense, any such action and has the right to join any such action, including retaining separate counsel, at Pfizer’s own expense. Prior to commencing any such actionaction (unless delay would result in the loss of rights), Licensee LICENSEE shall consult with Pfizer PFIZER and shall give due consideration to Pfizerconsider PFIZER’s timely recommendations regarding the proposed action. Licensee LICENSEE shall give Pfizer PFIZER timely notice of any proposed settlement of any such action instituted by Licensee LICENSEE and shall not, without the prior written consent of PfizerPFIZER (not to be unreasonably withheld), enter into any settlement that would: (i) adversely affect the validity, enforceability or scope of any of the Licensed Patent Rights; , (ii) give rise to liability of Pfizer PFIZER or its Affiliates; , (iii) admit non-infringement of any Licensed Patent Rights; , or (iv) otherwise impair PfizerPFIZER’s rights in any Licensed Technology or this Agreement. (b) If Licensee Subject to subsection (c) hereof, if LICENSEE does not, with respect to its first right of enforcement under Section 8.2.1(a), either (i) not obtain agreement from the alleged infringer to desist or fails to initiate an infringement action: (iii) confirm to Pfizer in writing, by the earlier of (A) sixty (60) within [**] days following LicenseeLICENSEE’s receipt of notice of the alleged infringement infringement, or (Bii) fifteen (15) no later than [**] days before the expiration date for filing an infringement such action, that Licenseewhichever comes first, or any of its Affiliates or sublicensees, will initiate an infringement action, then Pfizer PFIZER shall have the right, at its sole discretion, to control such enforcement of the Licensed Technology at its sole expense. (c) In the case of a Paragraph IV Certification, the deadline for LICENSEE to file an action before PFIZER can exercise the enforcements right in subsection (b) hereof is [**] days before the expiration date for filing such action, unless LICENSEE has notified PFIZER in writing at least [**] days before the expiration date for filing such action that LICENSEE does not intend to file an action with respect to such Paragraph IV Certification. “Paragraph IV Certification” means any certification filed pursuant to 21 U.S.C. §355(b)(2)(A)(iv) or 355(j)(2)(A)(vii)(IV), or any notice under any future analogous provisions of U.S. law applicable to biologics (or any amendment or successor statute thereto), or any comparable law under any other jurisdiction.

Right of First Enforcement. (a) Licensee, itself or through any of its Affiliates or sublicensees, Pfizer shall have the first right (but not the obligation), at its own expense[***], to control enforcement of the Licensed Technology and Joint Developed IP or any continuation or divisional thereof against any actual or threatened Third Party Infringement within in the scope of its exclusive license ROW and may name Pfizer as a party for standing purposes. Pfizer shall cooperate with and join, at Licensee’s request and expense, any such action and has the right to join any such action, including retaining separate counsel, at in Pfizer’s own expensename [***]. Prior to commencing any such action, Licensee Pfizer shall consult with Pfizer Licensee and shall give due consideration to PfizerLicensee’s timely and reasonable recommendations regarding the proposed action. Pfizer shall give Licensee timely notice of any proposed settlement of any such action instituted by Pfizer and shall not, without the prior written consent of Licensee, which shall not be unreasonably withheld, conditioned or delayed, enter into any settlement that would adversely affect the validity, enforceability or scope of the Licensed Technology. Subject to Pfizer’s rights set forth in Section 10.2.1(c) below, Licensee shall have the first right (but not the obligation), [***], to control enforcement of the Licensed Technology and Joint Developed IP against any Third Party Infringement in the United States and Japan. If Licensee elects to control enforcement in the United States, Pfizer shall cooperate, as reasonably requested by Licensee, in a manner consistent with this Section 10.2. 1. Pfizer hereby authorizes Licensee to: (a) provide in any BLA or, in connection with the BPCIA, a list of Licensed Patent Rights and Pfizer Developed IP as required under the BPCIA; (b) exercise any rights exercisable by Licensee as an exclusive licensee under the BPCIA; and (c) exercise any rights that may be exercisable by Licensee as reference product sponsor under the BPCIA, including (1) engaging in the Patent Right resolution provisions of the BPCIA with regard to Pfizer Patent Rights Covering the TL1A Antibody or any Products; and (2) determining which Patent Rights will be the subject of an immediate patent infringement action under 42 U.S.C. § 262(l)(6) of the BPCIA; provided that with respect to Licensee’s exercise of rights under the BPCIA, Licensee shall consult with a representative of Pfizer designated by Pfizer in writing and qualified to receive confidential information pursuant to § 262(l)(1) of the BPCIA with respect to Licensee’s exercise of any rights exercisable as reference product sponsor, including providing such representative with timely copies of material correspondence relating to such matters, providing such representative the opportunity, reasonably in advance of any related Licensee action, to comment thereon and to consult with and consider in good faith the requests and suggestions of Pfizer with respect to such matters. In order to establish standing, Pfizer, upon the request of Licensee, agrees to timely commence or to join any such litigation [***], and to cooperate with Licensee in such litigation [***]. Licensee shall give Pfizer timely notice of any proposed settlement of any such action instituted by Licensee and shall not, without the prior written consent of PfizerPfizer [***], which in the case of (i), (iii) and (iv) below shall not be unreasonably withheld, conditioned or delayed, enter into any settlement that would: (i) adversely affect the validity, enforceability or scope of any of the Licensed Patent Rights; , (ii) give rise to liability of Pfizer or its Affiliates; , (iii) admit non-infringement of any Licensed Patent Rights; , or (iv) otherwise impair Pfizer’s rights in any Licensed Technology or this Agreement. (b) If Licensee Pfizer does not, with respect to its first right of enforcement under Section 8.2.1(a10.2.1(a), either (i) obtain agreement from the alleged infringer to desist or (ii) confirm fails or refuses to Pfizer in writing, initiate an infringement action by the earlier of (Ai) sixty (60) days [***] following LicenseePfizer’s receipt of notice of the alleged infringement infringement, or (Bii) fifteen (15) days [***] before the expiration date for filing an infringement action, that Licensee, or any of its Affiliates or sublicensees, will initiate an infringement actionsuch actions, then Pfizer shall inform Licensee within earlier of (i) [***] following Pfizer’s receipt of notice of the alleged infringement, or (ii) [***] before the expiration date for filing such actions that Licensee shall have the right, at its sole discretion, to control such enforcement of the Licensed Technology in the ROW at its sole expense., [***]. Licensee will then notify Pfizer within [***] whether it elects to control such enforcement of the Licensed Technology in the ROW [***]. [***]

Right of First Enforcement. (a) Licensee, itself or through any of its Affiliates or sublicensees, Sellas shall have the first right (but not the obligation), at its own expense, to control enforcement of the Licensed Technology Patent Rights against any Third Party Infringement within the scope of its exclusive license (i.e., within the Territory and in the Field) and may name Pfizer GenFleet as a party for standing purposes. Pfizer shall cooperate with and join, at Licensee’s request and expense, any such action and has the right to join any such action, including retaining separate counsel, at Pfizer’s own expense. Prior to commencing any such action, Licensee Sellas shall reasonably consult with Pfizer GenFleet and Sellas shall give due consideration to PfizerGenFleet’s timely recommendations regarding the proposed action. Licensee Sellas shall give Pfizer GenFleet timely notice of any proposed settlement of any such action instituted by Licensee Sellas and shall not, without the prior written consent of PfizerGenFleet, enter into any settlement that would: (i) adversely affect the validity, enforceability would give rise to liability of GenFleet or scope of any its Affiliates; or (ii) otherwise admit invalidity or unenforceability of the Licensed Patent Rights; (ii) give rise to liability . GenFleet shall reasonably cooperate in a timely manner in any enforcement of Pfizer or its Affiliates; (iii) admit non-infringement of any the Licensed Patent Rights; or (iv) otherwise impair Pfizer’s rights in Rights against any Licensed Technology or this AgreementThird Party. (b) For any action to enforce any infringement of the Licensed Patent Rights against a Third Party in the Territory, if Sellas is unable, as a matter of law, to initiate or prosecute such action solely in its own name, GenFleet will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Sellas to prosecute and maintain such action under this Section 8.2.1. (c) If Licensee Sellas does not, with respect to its first right of enforcement under Section 8.2.1(a), either (i) obtain agreement from the alleged infringer to desist or (ii) confirm fails or refuses to Pfizer in writing, initiate an infringement action by the earlier of (Ai) sixty (60) days [***] following Licensee’s Sellas’ receipt of notice of the alleged infringement infringement, or (Bii) fifteen (15) days [***] before the expiration date for filing an infringement action, that Licensee, or any of its Affiliates or sublicensees, will initiate an infringement actionsuch actions, then Pfizer GenFleet shall have the right, at its sole discretion, to control such enforcement of the Licensed Technology Patent Rights at its sole expense.