Common use of Third Party Litigation Clause in Contracts

Third Party Litigation. In the event that a Third Party institutes a patent or other infringement suit against any of NovaDel, PAR or HANA or any of its respective Affiliates during the Term, alleging manufacture, use or sale of a Licensed Product in the Territory, infringes one or more patent or other intellectual property rights held by such Third Party (an “Infringement Suit”), the Parties shall cooperate with one another in defending such suit. PAR, as the NDA holder, shall have the first right to direct and control, at its expense, any Infringement Suit (including settlement negotiations, settlement or compromise thereof) to the extent that it relates to the manufacture, use or sale of a Licensed Product but does not implicate the Licensed Technology or Licensed Process. In the event that the Infringement Suit relates to the use of the Licensed Technology or Licensed Process, NovaDel shall have the first right to direct and control, at its expense, any such Infringement Suit (including settlement negotiations, settlement or compromise thereof). To the extent that any amounts become payable to any Third Party as a result of such action, whether through judgment or settlement, then PAR shall, unless HANA is jointly promoting and commercializing the Licensed Product pursuant to Section 2.4 and subject to Section 12.2, bear [***] percent ([***]%) of such amounts with respect to the Exploitation of the Licensed Product; provided, however, that PAR shall have the right to credit [***] percent ([***]%) of any amounts paid by PAR through judgment or settlement with respect to such country against the royalty payments to be paid by PAR to HANA with respect to the sale of the Licensed Product under Section 6.3; provided further, however, that no royalty payment when due, regardless of the amount or number of credits available to PAR shall be reduced by more than [***] percent ([***]%) of the amounts otherwise owed pursuant to Section 6.3 in any calendar quarter. Credits not exhausted in any calendar quarter may be carried into future calendar quarters. Notwithstanding the foregoing, in the event that no payments are due or owing, or contemplated to be due or owing, by PAR to HANA under Article 6 with respect to the sale of the Licensed Product, then NovaDel shall pay to PAR such amount owed to a Third Party up to a cap of [***]% of such amount owed to such Third Party, less any amount already credited to PAR under this Section 10.3. Notwithstanding the foregoing, NovaDel shall have no obligation under this Section 10.3 for any costs, expenses or damages that are paid or payable to a Third Party as a result of an actual or alleged infringement by PAR or HANA to the extent such costs, expenses or damages result from the use of a Product Trademark.

Third Party Litigation. In the event that If a Third Party institutes a patent or other an infringement suit or action against any of NovaDel, PAR or HANA or any of Acorda and/or its respective Affiliates during Affiliate and/or sublicensee alleging that the Term, alleging manufacture, use or sale of a any Licensed Product by Acorda and/or an Affiliate and/or sublicensee, in a country in the Territory, Licensed Territory infringes one or more patent or other intellectual property rights right held by such Third Party (an “Infringement Suit”), Acorda (or such Affiliate or sublicensee) shall have the right to defend and settle such Infringement Suit at its sole expense. In such event, the Parties shall cooperate meet (which meeting may at any Party’s request be by telephone conference or videoconference) and discuss in good faith the best defenses to such Infringement Suit, and Institutions shall, subject to being indemnified against any liability and having the right to be separately represented by their own counsel at their own expense, provide Acorda with one another reasonable assistance and cooperation in defending such suit. PAR, as the NDA holder, shall have the first right to direct and control, at its expense, any Infringement Suit (including settlement negotiations, settlement or compromise thereof) to the extent that it relates to the manufacture, use or sale of a Licensed Product but does not implicate the Licensed Technology or Licensed Processat Acorda’s sole expense. In the event that the Infringement Suit relates to the use of the Licensed Technology or Licensed Process, NovaDel shall have the first right to direct and control, at its expense, any such Infringement Suit (including settlement negotiations, settlement or compromise thereof). To the extent that any amounts become payable to any Third Party as a result of such action, whether through judgment or settlement, then PAR shall, unless HANA is jointly promoting and commercializing the Licensed Product pursuant to Section 2.4 and subject to Section 12.2, bear [***] percent ([***]%) of such amounts with respect to the Exploitation of the Licensed Product; provided, however, that PAR Acorda shall have the right to credit [***] against royalties owed to the Institutions under Sections 3.2 and 3.3 fifty percent ([***]50%) of any amounts paid by PAR through judgment or settlement with respect to costs and expenses of such country against the royalty payments to be paid by PAR to HANA with respect defense and settlement, but solely to the sale extent such costs and expenses relate directly to the defense and settlement (if any) of any claims or allegations relating directly to infringement by the Licensed Product under Section 6.3; provided furtherProduct. If, however, that no royalty such Third Party makes a payment when dueto reimburse Acorda (and/or its Affiliate and/or sublicensee) for such costs and expenses of defending such infringement suit or action, regardless then Acorda will pay to Institutions, out of such Third Party payment, a pro rata amount (i.e., the ratio of the amount or number of credits available to PAR shall be reduced by more than [***] percent ([***]%) of the amounts otherwise Third Party payment compared to the total defense costs and expenses), but not to exceed the total amount that Acorda credited against royalties owed pursuant to Section 6.3 in any calendar quarter. Credits not exhausted in any calendar quarter may be carried into future calendar quartersunder the previous sentence. Notwithstanding the foregoing, Acorda (or such Affiliate or sublicensee) Certain portions of this Exhibit have been omitted pursuant to a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Commission. shall not settle any such Infringement Suit in a manner that materially adversely impacts the event that no payments are due or owingLicensed Patents without Institutions’ prior written consent, or contemplated such consent not to be due unreasonably withheld or owingdelayed. For clarity, by PAR to HANA under Article 6 with respect any costs and expenses of enforcing Licensed Patents, including those costs relating to the sale assertion of the a counterclaim alleging infringement of Licensed Product, then NovaDel shall pay to PAR such amount owed to Patents by a Third Party up in response to a cap an Infringement Suit, shall not be included in the calculation and allocation of [***]% of such amount owed to such Third Party, less any amount already credited to PAR costs and expenses under this Section 10.3. Notwithstanding 7.5, but instead shall be included in the foregoingcalculation and allocation of costs and expenses under Section 7.1, NovaDel shall have no obligation under this Section 10.3 for any costs7.2 or 7.3, expenses or damages that are paid or payable to a Third Party as a result of an actual or alleged infringement by PAR or HANA to the extent such costs, expenses or damages result from the use of a Product Trademarkapplicable.

Third Party Litigation. In the event that a Third Party institutes a patent patent, trade secret, trademark or other infringement suit against any Emergent or its Affiliates or sublicensees during the term of NovaDelthis Agreement, PAR or HANA or any alleging that the practice by Emergent of the HPA Technology in the exercise of its respective Affiliates during the Term, alleging manufacture, use or sale of a Licensed Product in the Territory, rights as licensee under this Agreement infringes one or more patent patent, trademark, trade secret or other intellectual property rights held by such Third Party (an “Infringement Suit”), then (i) as between the Parties Parties, Emergent shall cooperate with one another in defending such suit. PAR, as assume direction and control of the NDA holder, shall have defense of claims arising therefrom (including the first right to direct and control, settle such claims at its expensesole discretion), any Infringement Suit and (including settlement negotiations, settlement or compromise thereofii) to the extent that it relates to the manufacture, use or sale of a Licensed Product but does not implicate the Licensed Technology or Licensed Process. In the event that the Infringement Suit relates to the use of the Licensed Technology or Licensed Process, NovaDel shall have the first right to direct Emergent may withhold and control, at its expense, any such Infringement Suit (including settlement negotiations, settlement or compromise thereof). To the extent that any amounts become payable to any Third Party as a result of such action, whether through judgment or settlement, then PAR shall, unless HANA is jointly promoting and commercializing the Licensed Product pursuant to Section 2.4 and subject to Section 12.2, bear deposit into an interest-bearing escrow account [***] percent ([***]%) of all amounts that Emergent would otherwise be obligated to pay to HPA pursuant to Article V (the “Escrowed Amount”), and Emergent’s payment obligations to HPA under Article V shall be reduced accordingly, until such amounts time as a final, non-appealable judgment is rendered with respect to such Infringement Suit by a court of competent jurisdiction, or the Exploitation time permitted for appeal of a final, appealable judgment has lapsed (the “Final Judgment”). If Final Judgment is rendered in favor of Emergent (or its Affiliates or sublicensees, as the case may be), then Emergent shall pay to HPA, within ten days after the entry of such judgment, the full amount of the Licensed Product; providedEscrowed Amount. If the Final Judgment is rendered partially or entirely in favor of such Third Party, howeverthen Emergent may apply the Escrowed Amount to the payment of its defense costs in connection with such Infringement Suit and to the payment of any award it is required to pay pursuant to such Final Judgment. If the Escrowed Amount exceeds such defense costs and award then Emergent, that PAR within ten (10) days following the date of the Final Judgment, shall have remit to HPA the right amount of such excess. If the Escrowed Amount does not equal or exceed the amount of such defense costs and award, then from and after the date of the Final Judgment, Emergent shall be entitled to credit withhold [***] percent ([***]%) of any all amounts paid by PAR through judgment or settlement with respect that Emergent would otherwise be required to pay to HPA pursuant to Article V until such country against time as the royalty payments to be paid by PAR to HANA with respect to aggregate amounts so withheld plus the sale of the Licensed Product under Section 6.3; provided further, however, that no royalty payment when due, regardless of Escrowed Amounts equals the amount or number of credits available to PAR shall be reduced by more than [***] percent ([***]%) of the amounts otherwise owed pursuant to Section 6.3 in any calendar quarter. Credits not exhausted in any calendar quarter may be carried into future calendar quarters. Notwithstanding the foregoing, in the event that no payments are due or owing, or contemplated to be due or owing, by PAR to HANA under Article 6 with respect to the sale of the Licensed Product, then NovaDel shall pay to PAR such amount owed to a Third Party up to a cap of [***]% of such amount owed to such Third Party, less any amount already credited to PAR under this Section 10.3. Notwithstanding the foregoing, NovaDel shall have no obligation under this Section 10.3 for any costs, expenses or damages that are paid or payable to a Third Party as a result of an actual or alleged infringement by PAR or HANA to the extent such costs, expenses or damages result from the use of a Product Trademarkdefense costs and award.

Third Party Litigation. In (a) If any Person institutes against PharmaZell any action that alleges that the event that a Third Party institutes a patent or other infringement suit against any Manufacture of NovaDel, PAR or HANA or any of its respective Affiliates during Supplied Material hereunder in accordance with the Term, alleging manufacture, use or sale of a Licensed Product in terms hereof infringes the Territory, infringes one or more patent or other intellectual property rights held by such Third Party (an “Infringement Suit”)Person, the Parties shall cooperate with one another in defending such suit. PARthen, as the NDA holderbetween PharmaZell and Intercept, Intercept shall have the first right, but not the obligation, to contest, and assume direction and control of the defense of, such action, including the right to direct and controlsettle such action; provided that, prior to any such settlement, PharmaZell provides its written consent (such consent not to be unreasonably withheld, conditioned or delayed). If Intercept determines not to defend against such action, then PharmaZell shall, at its sole cost and expense, any Infringement Suit (including settlement negotiations, settlement or compromise thereof) have the right but not the obligation to control the defense of such action except to the extent that it relates to a Specified Invention Patent; provided that, if an Other PharmaZell Invention Patent or Joint Invention Patent is at issue in the manufactureaction and is the only patent protecting a Product, use then PharmaZell shall in any event consult with Intercept with respect to any such action and shall obtain Intercept's written consent prior to taking any steps in respect of such action. Intercept shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. (b) Any costs and expenses relating to any defense undertaken pursuant to this Section 5.4 shall be borne by the Party controlling the defense. Any damages or sale other amounts recovered shall be first allocated to reimburse the Parties for their costs and expenses in making such recovery (which amounts shall be allocated pro rata if insufficient to cover the totality of a Licensed Product but does not implicate such expenses). Any remainder after such reimbursement is made shall be retained by the Licensed Technology or Licensed Process. Party that has exercised its right to control the defense of the action. (c) In the event that a Party entitled to defend an infringement action does so in accordance with this Section 5.4, the Infringement Suit relates other Party shall cooperate fully, including providing access to relevant documents and other evidence and making its employees available at reasonable business hours. If a Party pursues the use of the Licensed Technology or Licensed Process, NovaDel shall have the first right to direct and control, at its expense, any such Infringement Suit (including settlement negotiations, settlement or compromise thereof). To the extent that any amounts become payable to any Third Party as a result defense of such an infringement action, whether through judgment or settlement, then PAR shall, unless HANA is jointly promoting it shall consider in good faith any comments from the other Party and commercializing shall keep the Licensed Product pursuant to Section 2.4 and subject to Section 12.2, bear [***] percent ([***]%) of such amounts with respect to the Exploitation of the Licensed Product; provided, however, that PAR shall have the right to credit [***] percent ([***]%) other Party reasonably informed of any amounts paid by PAR through judgment or settlement with respect steps taken to remedy such country against the royalty payments to be paid by PAR to HANA with respect to the sale of the Licensed Product under Section 6.3; provided further, however, that no royalty payment when due, regardless of the amount or number of credits available to PAR shall be reduced by more than [***] percent ([***]%) of the amounts otherwise owed pursuant to Section 6.3 in any calendar quarter. Credits not exhausted in any calendar quarter may be carried into future calendar quarters. Notwithstanding the foregoing, in the event that no payments are due or owing, or contemplated to be due or owing, by PAR to HANA under Article 6 with respect to the sale of the Licensed Product, then NovaDel shall pay to PAR such amount owed to a Third Party up to a cap of [***]% of such amount owed to such Third Party, less any amount already credited to PAR under this Section 10.3. Notwithstanding the foregoing, NovaDel shall have no obligation under this Section 10.3 for any costs, expenses or damages that are paid or payable to a Third Party as a result of an actual or alleged infringement by PAR or HANA to the extent such costs, expenses or damages result from the use of a Product Trademarkinfringement.

Third Party Litigation. In ​ (a) If any Person institutes against PharmaZell any action that alleges that the event that a Third Party institutes a patent or other infringement suit against any Manufacture of NovaDel, PAR or HANA or any of its respective Affiliates during Supplied Material hereunder in accordance with the Term, alleging manufacture, use or sale of a Licensed Product in terms hereof infringes the Territory, infringes one or more patent or other intellectual property rights held by such Third Party (an “Infringement Suit”)Person, the Parties shall cooperate with one another in defending such suit. PARthen, as the NDA holderbetween PharmaZell and Intercept, Intercept shall have the first right, but not the obligation, to contest, and assume direction and control of the defense of, such action, including the right to direct and controlsettle such action; provided that, prior to any such settlement, PharmaZell provides its written consent (such consent not to be unreasonably withheld, conditioned or delayed). If Intercept determines not to defend against such action, then PharmaZell shall, at its sole cost and expense, any Infringement Suit (including settlement negotiations, settlement or compromise thereof) have the right but not the obligation to control the defense of such action except to the extent that it relates to a Specified Invention Patent; provided that, if an Other PharmaZell Invention Patent or Joint Invention Patent is at issue in the manufactureaction and is the only patent protecting a Product, use then PharmaZell shall in any event consult with Intercept with respect to any such action and shall obtain Intercept's written consent prior to taking any steps in respect of such action. Intercept shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. (b) Any costs and expenses relating to any defense undertaken pursuant to this Section 5.4 shall be borne by the Party controlling the defense. Any damages or sale other amounts recovered shall be first allocated to reimburse the Parties for their costs and expenses in making such recovery (which amounts shall be allocated pro rata if insufficient to cover the totality of a Licensed Product but does not implicate such expenses). Any remainder after such reimbursement is made shall be retained by the Licensed Technology or Licensed ProcessParty that has exercised its right to control the defense of the action. ​ (c) In the event that a Party entitled to defend an infringement action does so in accordance with this Section 5.4, the Infringement Suit relates other Party shall cooperate fully, including providing access to relevant documents and other evidence and making its employees available at reasonable business hours. If a Party pursues the use of the Licensed Technology or Licensed Process, NovaDel shall have the first right to direct and control, at its expense, any such Infringement Suit (including settlement negotiations, settlement or compromise thereof). To the extent that any amounts become payable to any Third Party as a result defense of such an infringement action, whether through judgment or settlement, then PAR shall, unless HANA is jointly promoting it shall consider in good faith any comments from the other Party and commercializing shall keep the Licensed Product pursuant to Section 2.4 and subject to Section 12.2, bear [***] percent ([***]%) of such amounts with respect to the Exploitation of the Licensed Product; provided, however, that PAR shall have the right to credit [***] percent ([***]%) other Party reasonably informed of any amounts paid by PAR through judgment or settlement with respect steps taken to remedy such country against the royalty payments to be paid by PAR to HANA with respect to the sale of the Licensed Product under Section 6.3; provided further, however, that no royalty payment when due, regardless of the amount or number of credits available to PAR shall be reduced by more than [***] percent ([***]%) of the amounts otherwise owed pursuant to Section 6.3 in any calendar quarterinfringement. Credits not exhausted in any calendar quarter may be carried into future calendar quarters. Notwithstanding the foregoing, in the event that no payments are due or owing, or contemplated to be due or owing, by PAR to HANA under Article 6 with respect to the sale of the Licensed Product, then NovaDel shall pay to PAR such amount owed to a Third Party up to a cap of [***]% of such amount owed to such Third Party, less any amount already credited to PAR under this Section 10.3. Notwithstanding the foregoing, NovaDel shall have no obligation under this Section 10.3 for any costs, expenses or damages that are paid or payable to a Third Party as a result of an actual or alleged infringement by PAR or HANA to the extent such costs, expenses or damages result from the use of a Product Trademark.​

Third Party Litigation. In the event that If a Third Party institutes a patent or other an infringement suit or action against any of NovaDel, PAR or HANA or any of Acorda and/or its respective Affiliates during Affiliate and/or sublicensee alleging that the Term, alleging manufacture, use or sale of a any Licensed Product by Acorda and/or an Affiliate and/or sublicensee, in a country in the Territory, Licensed Territory infringes one or more patent or other intellectual property rights right held by such Third Party (an “Infringement Suit”), Acorda (or such Affiliate or sublicensee) shall have the right to defend and settle such Infringement Suit at its sole expense. In such event, the Parties shall cooperate meet (which meeting may at any Party’s request be by telephone conference or videoconference) and discuss in good faith the best defenses to such Infringement Suit, and Institutions shall, subject to being indemnified against any liability and having the right to be separately represented by their own counsel at their own expense, provide Acorda with one another reasonable assistance and cooperation in defending such suit. PAR, as the NDA holder, shall have the first right to direct and control, at its expense, any Infringement Suit (including settlement negotiations, settlement or compromise thereof) to the extent that it relates to the manufacture, use or sale of a Licensed Product but does not implicate the Licensed Technology or Licensed Processat Acorda’s sole expense. In the event that the Infringement Suit relates to the use of the Licensed Technology or Licensed Process, NovaDel shall have the first right to direct and control, at its expense, any such Infringement Suit (including settlement negotiations, settlement or compromise thereof). To the extent that any amounts become payable to any Third Party as a result of such action, whether through judgment or settlement, then PAR shall, unless HANA is jointly promoting and commercializing the Licensed Product pursuant to Section 2.4 and subject to Section 12.2, bear [***] percent ([***]%) of such amounts with respect to the Exploitation of the Licensed Product; provided, however, that PAR Acorda shall have the right to credit against royalties owed to the Institutions under Sections 3.2 and 3.3 [***] percent of any costs and expenses of such defense and settlement, but solely to the extent such costs and expenses relate directly to the defense and settlement ([***]%if any) of any amounts paid claims or allegations relating directly to infringement by PAR through judgment or settlement with respect to such country against the royalty payments to be paid by PAR to HANA with respect to the sale of the Licensed Product under Section 6.3; provided furtherProduct. If, however, that no royalty such Third Party makes a payment when dueto reimburse Acorda (and/or its Affiliate and/or sublicensee) for such costs and expenses of defending such infringement suit or action, regardless then Acorda will pay to Institutions, out of such Third Party payment, a pro rata amount (i.e., the ratio of the amount or number of credits available to PAR shall be reduced by more than [***] percent ([***]%) of the amounts otherwise Third Party payment compared to the total defense costs and expenses), but not to exceed the total amount that Acorda credited against royalties owed pursuant to Section 6.3 in any calendar quarter. Credits not exhausted in any calendar quarter may be carried into future calendar quartersunder the previous sentence. Notwithstanding the foregoing, Acorda (or such Affiliate or sublicensee) Certain portions of this Exhibit have been omitted pursuant to a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Commission. shall not settle any such Infringement Suit in a manner that materially adversely impacts the event that no payments are due or owingLicensed Patents without Institutions’ prior written consent, or contemplated such consent not to be due unreasonably withheld or owingdelayed. For clarity, by PAR to HANA under Article 6 with respect any costs and expenses of enforcing Licensed Patents, including those costs relating to the sale assertion of the a counterclaim alleging infringement of Licensed Product, then NovaDel shall pay to PAR such amount owed to Patents by a Third Party up in response to a cap an Infringement Suit, shall not be included in the calculation and allocation of [***]% of such amount owed to such Third Party, less any amount already credited to PAR costs and expenses under this Section 10.3. Notwithstanding 7.5, but instead shall be included in the foregoingcalculation and allocation of costs and expenses under Section 7.1, NovaDel shall have no obligation under this Section 10.3 for any costs7.2 or 7.3, expenses or damages that are paid or payable to a Third Party as a result of an actual or alleged infringement by PAR or HANA to the extent such costs, expenses or damages result from the use of a Product Trademarkapplicable.

Third Party Litigation. 12.4.1 In the event that a Third Party institutes a patent of any actual or other infringement threatened suit against any of NovaDelABX, PAR AZ or HANA their respective Affiliates, sublicensees, Distributors or any of its respective Affiliates during customers alleging that the Term, alleging manufacture, use or sale Exploitation of a Licensed Product in hereunder infringes the Territory, infringes one or more patent Patent Right or other intellectual property rights held by such Third Party of any Person (an “Infringement Suit”), the Parties Party first becoming aware of such Infringement Suit shall cooperate promptly give written notice to the other Party. Except as otherwise provided in Article 15, AZ shall have the sole right, but not the obligation, at its sole cost and expense, through counsel of its choosing, to assume direction and control of the defense of any such Infringement Suit with one another respect to the AZ Products (including the right to settle such claims at its sole discretion) and ABX shall have the sole right, but not the obligation, at its sole cost and expense, through counsel of its choosing, to assume direction and control of the defense of any such Infringement Suit with respect to the ABX Products (including the right to settle such claims at its sole discretion). 12.4.2 Notwithstanding Section 12.4.1, in defending the event any such suit. PARInfringement Suit alleges that the use of the Core Technology in the Research Programs or the Antibodies and Candidate Drugs resulting therefrom, as infringes the NDA holderPatent Rights or other intellectual property rights of a Third Party, ABX shall have the first right to direct and controlright, but not the obligation, at its sole cost and expense, any Infringement Suit (including settlement negotiationsthrough counsel of its choosing, settlement or compromise thereof) to the extent that it relates to the manufacture, use or sale of a Licensed Product but does not implicate the Licensed Technology or Licensed Process. In the event that the Infringement Suit relates to the use assume direction and control of the Licensed Technology or Licensed Process, NovaDel shall have the first right to direct and control, at its expense, defense of any such Infringement Suit (including settlement negotiationsthe right to settle such claims at its sole discretion, settlement provided that ABX shall obtain the consent of AZ (which consent shall not be unreasonably withheld or compromise thereof). To delayed) prior to compromising, settling or ceasing to defend any such claim that could have an adverse effect on AZ or an AZ Product) and, irrespective of the Party that assumed such direction and control, shall be solely responsible for all costs and expenses and any damage awards or other payments (including royalties) or penalties to the extent incurred therefrom that are not offset by proceeds therefrom. While any amounts become payable to any Third Party as a result of such actionInfringement Suit is pending, whether through judgment or settlement, then PAR shall, unless HANA is jointly promoting and commercializing the Licensed Product pursuant to Section 2.4 and subject to Section 12.2, bear [***] percent ([***]%) of such amounts with respect to the Exploitation regardless of the Licensed Product; providedParty that is defending such suit, however, that PAR AZ shall have the right to credit deposit [***Confidential treatment requested] percent ([***]%) of any amounts paid by PAR through judgment or settlement with respect to such country against the royalty payments to be paid by PAR to HANA with respect to the sale of the Licensed Product milestone and royalty obligations payable to ABX under Section 6.3; provided furtherthis Agreement into a interest-bearing escrow account until the date that such suit is resolved, however, that no royalty payment when due, regardless with the reasonable and verifiable out of the amount or number of credits available to PAR shall be reduced by more than [***] percent ([***]%) of the amounts otherwise owed pursuant to Section 6.3 in any calendar quarter. Credits not exhausted in any calendar quarter may be carried into future calendar quarters. Notwithstanding the foregoing, in the event that no payments are due or owing, or contemplated to be due or owing, by PAR to HANA under Article 6 with respect to the sale of the Licensed Product, then NovaDel shall pay to PAR such amount owed to a Third Party up to a cap of [***]% pocket costs and expenses of such amount owed to such Third Partyescrow account borne by ABX. For the avoidance of doubt, less any amount already credited to PAR under this Section 10.3. Notwithstanding the foregoing, NovaDel foregoing provision shall have no obligation under this Section 10.3 for any costs, expenses or damages that are paid or payable to a Third Party as a result of an actual or alleged infringement by PAR or HANA not apply to the extent that any such costsalleged infringement is specific to a Collaboration Antigen or the Exploitation of antibody products directed against such Collaboration Antigen, expenses or damages result as distinguished from the use application of a Product Trademarkthe Core Technology or the Exploitation of antibody products derived from such technology, irrespective of the specific antigen.

Third Party Litigation. In the event that a Third Party institutes a patent of any actual or other infringement threatened suit against any Dynavax, AstraZeneca or its Affiliates, Sublicensees, Distributors or customers alleging that the Development and/or Commercialization of NovaDelCDs, PAR Product or HANA Combination Product, or that the Development and/or Commercialization of a Collaboration Patent or the Background Technologies or any part thereof by or on behalf of its respective Affiliates during the Term, alleging manufacture, use or sale of a Licensed Product in the TerritoryAstraZeneca under this Agreement, infringes one or more patent the Patent or other intellectual property rights held by such Third Party of any Person (an “Infringement Suit”), the Parties Party first becoming aware of such Infringement Suit shall cooperate with one another in defending such suitpromptly give written notice to the other Party. PAR, as the NDA holder, AstraZeneca shall have the first right, but not the obligation, through counsel of its choosing, to assume direction and control of the defence of claims arising therefrom (including the right to direct settle such claims at its sole discretion, subject to the provisions of this Section 14.5). If AstraZeneca notifies Dynavax in writing that it does not wish to assume such direction and control, at its expense, any Infringement Suit (including settlement negotiations, settlement or compromise thereof) to the extent that it relates to the manufacture, use or sale of a Licensed Product but does not implicate the Licensed Technology or Licensed Process. In the event that the Infringement Suit relates to the use of the Licensed Technology or Licensed Process, NovaDel Dynavax shall have the first right to direct and controlright, but not the obligation to, at its sole cost and expense, any defend against such Infringement Suit (including settlement negotiations, settlement or compromise thereof). To the extent that any amounts become payable to any Third Party as a result of such action, whether through judgment or settlement, then PAR shall, unless HANA is jointly promoting and commercializing the Licensed Product pursuant to Section 2.4 and subject to Section 12.2, bear [***] percent ([***]%) of such amounts with respect to the Exploitation of the Licensed Productclaims; provided, however, that PAR Dynavax shall obtain the written consent of AstraZeneca prior to ceasing to defend, settling or otherwise disposing of such claims. Dynavax shall be entitled to be joined in any proceedings that may be brought against AstraZeneca in relation to Dynavax’s Background Technology. If Dynavax does so elect to be joined, it shall pay its own costs and expenses in relation to the proceedings. AstraZeneca shall not make any admission or settle or otherwise compromise any proceedings brought against it in relation to Dynavax’s Background Technology without first obtaining the written consent of Dynavax, which shall not be unreasonably withheld or delayed. [ * ] = 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. Notwithstanding anything in the foregoing, each Party shall have the right to credit [***] percent ([***]%) defend itself, using the counsel of its choice and at its own expense, any amounts paid claims or law suits brought against it by PAR through judgment or settlement with respect to such country against the royalty payments to be paid by PAR to HANA with respect to the sale of the Licensed Product under Section 6.3; provided further, however, that no royalty payment when due, regardless of the amount or number of credits available to PAR shall be reduced by more than [***] percent ([***]%) of the amounts otherwise owed pursuant to Section 6.3 in any calendar quarter. Credits not exhausted in any calendar quarter may be carried into future calendar quarters. Notwithstanding the foregoing, in the event that no payments are due or owing, or contemplated to be due or owing, by PAR to HANA under Article 6 with respect to the sale of the Licensed Product, then NovaDel shall pay to PAR such amount owed to a Third Party up to a cap of [***]% of such amount owed to such Third Party, less any amount already credited to PAR under this Section 10.3. Notwithstanding the foregoing, NovaDel and each Party shall have no obligation under this Section 10.3 the right to settle any such claims or law suits on its own behalf, so long as such settlement does not provide for any coststhe payment of money by the other Party or performance obligations, expenses or damages that are paid or payable to a Third Party as a result of an actual or alleged infringement by PAR or HANA to restrictions imposed upon, the extent such costs, expenses or damages result from the use of a Product Trademarkother Party.

Third Party Litigation. In the event that a Third Party institutes a patent (a) Principal shall cooperate in any litigation brought by third parties against Lender, or other infringement suit by Lender against any of NovaDel, PAR third party (other than Principal or HANA its affiliates or any of its respective Affiliates during the Term, alleging manufacture, use or sale of a Licensed Product in the Territory, infringes one or more patent or other intellectual property rights held by such Third Party (an “Infringement Suit”Principal Indemnified Party), the Parties shall cooperate with one another in defending such suit. PAR, as the NDA holder, shall have the first right involving or related to direct and control, at its expense, Principal’s duties or any Infringement Suit (including settlement negotiations, settlement or compromise thereof) to the extent that it relates to the manufacture, use or sale acts of a Licensed Product but does not implicate the Licensed Technology or Licensed Process. In the event that the Infringement Suit relates to the use of the Licensed Technology or Licensed Process, NovaDel shall have the first right to direct and control, at its expense, any such Infringement Suit (including settlement negotiations, settlement or compromise thereof). To the extent that any amounts become payable to any Third Party as a result of such action, whether through judgment or settlement, then PAR shall, unless HANA is jointly promoting and commercializing the Licensed Product Principal pursuant to Section 2.4 and subject to Section 12.2this Agreement, bear [***] percent ([***]%) Lender’s duties or any acts of such amounts with respect to the Exploitation of the Licensed Product; provided, however, that PAR shall have the right to credit [***] percent ([***]%) of any amounts paid by PAR through judgment or settlement with respect to such country against the royalty payments to be paid by PAR to HANA with respect to the sale of the Licensed Product under Section 6.3; provided further, however, that no royalty payment when due, regardless of the amount or number of credits available to PAR shall be reduced by more than [***] percent ([***]%) of the amounts otherwise owed Lender pursuant to Section 6.3 in any calendar quarter. Credits not exhausted in any calendar quarter may be carried into future calendar quarters. Notwithstanding the foregoing, in the event that no payments are due or owingthis Agreement, or contemplated to concerning any Investment, which cooperation shall include but not be due limited to, providing documents and information, testifying in depositions or owingcourt proceedings, by PAR to HANA under Article 6 with respect to and seeking insurance coverage for such litigation and/or the sale of the Licensed Productclaims involved in such litigation, then NovaDel shall pay to PAR such amount owed to a Third Party up to a cap of [***]% of such amount owed to such Third Party, less any amount already credited to PAR under this Section 10.3including coverage for litigation costs and attorneys’ fees. Notwithstanding the foregoing, NovaDel shall have no obligation under this Section 10.3 for any costs, expenses or damages that are paid or payable to a Third Party as a result of an actual or alleged infringement by PAR or HANA Except to the extent such costs, expenses or damages result from matter is the use subject of a Product Trademarkclaim by Lender for indemnification under Article 9, Lender shall reimburse Principal for all out-of-pocket costs of Principal reasonably incurred by Principal or any Principal Indemnified Party in complying with this Section 7.04(a). (b) Lender shall cooperate in any litigation brought by third parties against Principal, or by Principal against any third party (other than Lender or its affiliates or any Lender Indemnified Party), involving or related to Principal’s duties or any acts of Principal pursuant to this Agreement, Lender’s duties or any acts of Lender pursuant to this Agreement, or concerning any Investment, which cooperation shall include but not be limited to, providing documents and information, testifying in depositions or court proceedings, and seeking insurance coverage for such litigation and/or claims involved in such litigation, including coverage for litigation costs and attorney’s fees. Principal shall reimburse Lender for all out-of-pocket costs of Lender reasonably incurred by Lender or any Lender Indemnified Party in complying with this Section 7.04(b).

Third Party Litigation. In the event that a Third Party institutes a patent (a) Principal shall cooperate in any litigation brought by third parties against Lender, or other infringement suit by Lender against any of NovaDel, PAR third party (other than Principal or HANA its affiliates or any of its respective Affiliates during the Term, alleging manufacture, use or sale of a Licensed Product in the Territory, infringes one or more patent or other intellectual property rights held by such Third Party (an “Infringement Suit”Principal Indemnified Party), the Parties shall cooperate with one another in defending such suit. PAR, as the NDA holder, shall have the first right involving or related to direct and control, at its expense, Principal’s duties or any Infringement Suit (including settlement negotiations, settlement or compromise thereof) to the extent that it relates to the manufacture, use or sale acts of a Licensed Product but does not implicate the Licensed Technology or Licensed Process. In the event that the Infringement Suit relates to the use of the Licensed Technology or Licensed Process, NovaDel shall have the first right to direct and control, at its expense, any such Infringement Suit (including settlement negotiations, settlement or compromise thereof). To the extent that any amounts become payable to any Third Party as a result of such action, whether through judgment or settlement, then PAR shall, unless HANA is jointly promoting and commercializing the Licensed Product Principal pursuant to Section 2.4 and subject to Section 12.2this Agreement, bear [***] percent ([***]%) Lender’s duties or any acts of such amounts with respect to the Exploitation of the Licensed Product; provided, however, that PAR shall have the right to credit [***] percent ([***]%) of any amounts paid by PAR through judgment or settlement with respect to such country against the royalty payments to be paid by PAR to HANA with respect to the sale of the Licensed Product under Section 6.3; provided further, however, that no royalty payment when due, regardless of the amount or number of credits available to PAR shall be reduced by more than [***] percent ([***]%) of the amounts otherwise owed Lender pursuant to Section 6.3 in any calendar quarter. Credits not exhausted in any calendar quarter may be carried into future calendar quarters. Notwithstanding the foregoing, in the event that no payments are due or owingthis Agreement, or contemplated to concerning any Investment, which cooperation shall include but not be due limited to, providing documents and information, testifying in depositions or owingcourt proceedings, by PAR to HANA under Article 6 with respect to and seeking insurance coverage for such litigation and/or the sale of the Licensed Productclaims involved in such litigation, then NovaDel shall pay to PAR such amount owed to a Third Party up to a cap of [***]% of such amount owed to such Third Party, less any amount already credited to PAR under this Section 10.3including coverage for litigation costs and attorneys’ fees. Notwithstanding the foregoing, NovaDel shall have no obligation under this Section 10.3 for any costs, expenses or damages that are paid or payable to a Third Party as a result of an actual or alleged infringement by PAR or HANA Except to the extent such costs, expenses or damages result from matter is the use subject of a Product Trademarkclaim by Lender for indemnification under Article 9, Lender shall reimburse Principal for all out-of-pocket costs of Principal reasonably incurred by Principal or any Principal Indemnified Party in complying with this Section 7.04(a). (b) Lender shall cooperate in any litigation brought by third parties against Principal, or by Principal against any third party (other than Lender or its affiliates or any Lender Indemnified Party), involving or related to Principal’s duties or any acts of Principal pursuant to this Agreement, Lender’s duties or any acts of Lender pursuant to this Agreement, or concerning any Investment, which cooperation shall include but not be limited to, providing documents and information, testifying in depositions or court proceedings, and seeking insurance coverage for such litigation and/or claims involved in such litigation, including coverage for litigation costs and attorney's fees. Principal shall reimburse Lender for all out-of-pocket costs of Lender reasonably incurred by Lender or any Lender Indemnified Party in complying with this Section 7.04(b).

Third Party Litigation. In the event that If a Third Party institutes a patent or other an infringement suit or action against any of NovaDel, PAR or HANA or any of Acorda and/or its respective Affiliates during Affiliate and/or sublicensee alleging that the Term, alleging manufacture, use or sale of a any Licensed Product by Acorda and/or an Affiliate and/or sublicensee, in a country in the Territory, Licensed Territory infringes one or more patent or other intellectual property rights right held by such Third Party (an “Infringement Suit”), Acorda (or such Affiliate or sublicensee) shall have the right to defend and settle such Infringement Suit at its sole expense. In such event, the Parties shall cooperate meet (which meeting may at any Party’s request be by telephone conference or videoconference) and discuss in good faith the best defenses to such Infringement Suit, and Institutions shall, subject to being indemnified against any liability and having the right to be separately represented by their own counsel at their own expense, provide Acorda with one another reasonable assistance and cooperation in defending such suit. PAR, as the NDA holder, shall have the first right to direct and control, at its expense, any Infringement Suit (including settlement negotiations, settlement or compromise thereof) to the extent that it relates to the manufacture, use or sale of a Licensed Product but does not implicate the Licensed Technology or Licensed Processat Acorda’s sole expense. In the event that the Infringement Suit relates to the use of the Licensed Technology or Licensed Process, NovaDel shall have the first right to direct and control, at its expense, any such Infringement Suit (including settlement negotiations, settlement or compromise thereof). To the extent that any amounts become payable to any Third Party as a result of such action, whether through judgment or settlement, then PAR shall, unless HANA is jointly promoting and commercializing the Licensed Product pursuant to Section 2.4 and subject to Section 12.2, bear [***] percent ([***]%) of such amounts with respect to the Exploitation of the Licensed Product; provided, however, that PAR Acorda shall have the right to credit [***] against royalties owed to the Institutions under Sections 3.2 and 3.3 fifty percent ([***]50%) of any amounts paid by PAR through judgment or settlement with respect to costs and expenses of such country against the royalty payments to be paid by PAR to HANA with respect defense and settlement, but solely to the sale extent such costs and expenses relate directly to the defense and settlement (if any) of any claims or allegations relating directly to infringement by the Licensed Product under Section 6.3; provided furtherProduct. If, however, that no royalty such Third Party makes a payment when dueto reimburse Acorda (and/or its Affiliate and/or sublicensee) for such costs and expenses of defending such infringement suit or action, regardless then Acorda will pay to Institutions, out of such Third Party payment, a pro rata amount (i.e., the ratio of the amount or number of credits available to PAR shall be reduced by more than [***] percent ([***]%) of the amounts otherwise Third Party payment compared to the total defense costs and expenses), but not to exceed the total amount that Acorda credited against royalties owed pursuant to Section 6.3 in any calendar quarter. Credits not exhausted in any calendar quarter may be carried into future calendar quartersunder the previous sentence. Notwithstanding the foregoing, Acorda (or such Affiliate or sublicensee) shall not settle any such Infringement Suit in a manner that materially adversely impacts the event that no payments are due or owingLicensed Patents without Institutions’ prior written consent, or contemplated such consent not to be due unreasonably withheld or owingdelayed. For clarity, by PAR to HANA under Article 6 with respect any costs and expenses of enforcing Licensed Patents, including those costs relating to the sale assertion of the a counterclaim alleging infringement of Licensed Product, then NovaDel shall pay to PAR such amount owed to Patents by a Third Party up in response to a cap an Infringement Suit, shall not be included in the calculation and allocation of [***]% of such amount owed to such Third Party, less any amount already credited to PAR costs and expenses under this Section 10.3. Notwithstanding 7.5, but instead shall be included in the foregoingcalculation and allocation of costs and expenses under Section 7.1, NovaDel shall have no obligation under this Section 10.3 for any costs7.2 or 7.3, expenses or damages that are paid or payable to a Third Party as a result of an actual or alleged infringement by PAR or HANA to the extent such costs, expenses or damages result from the use of a Product Trademarkapplicable.

Third Party Litigation. In the event that a Third Party institutes a patent Patent, Trademark or other infringement suit (including any suit alleging the invalidity or unenforceability of the Patents of a Party or its Affiliates, or claiming confusion, deception or dilution of a Trademark) against any of NovaDel, PAR either Party or HANA or any of its respective Affiliates Affiliates, licensees or Sublicensees during the Term, alleging manufactureuse of the Licensed Technology, use Licensed Trademarks or sale of a Licensed Product in the Territoryany other activities hereunder, infringes one or more patent Patent, Trademark or other intellectual property rights held by such Third Party (an “"Infringement Suit”"), the Parties shall cooperate with one another in defending such suit. PAR, If NovaDel is named as the NDA holder, shall have the first right to direct and control, at its expense, any Infringement Suit (including settlement negotiations, settlement or compromise thereof) a party to the extent litigation, and NovaDel determines that it relates to issues raised in the manufacture, use litigation adversely impact NovaDel Patents or sale of a Licensed Product but does not implicate the Licensed Technology or Licensed Process. In the event that the Infringement Suit relates to the use of the Licensed Technology or Licensed ProcessJoint Patents, NovaDel shall have the first right, not he obligation, to control that aspect of the litigation. Licensee shall cooperate with NovaDel in the defense of that aspect of the litigation. If NovaDel is not named as a party to the litigation and is not added as a party to the litigation, however, NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel shall have the right to direct and control, at its expense, any such Infringement Suit (including settlement negotiations, settlement or compromise thereof)consult with Licensee in the presentation of the defense. To the extent that any amounts become payable to any Third Party as a result of such action, whether through judgment or settlement, then PAR shall, unless HANA is jointly promoting and commercializing the Licensed Product pursuant to Section 2.4 and subject to Section 12.2, Licensee shall bear [***] percent ([***]%) of its own costs and expenses associated with any such amounts with respect Infringement Suit to the extent that it relates to INFORMATION MARKED BY [***] HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTION HAS BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. the Exploitation of the any Licensed Product; provided, however, that PAR and NovaDel shall have the right to credit bear [***] percent ([***]%) of any amounts paid by PAR through judgment or settlement with respect its own costs of cooperation and participation. If Licensee elects not to such country against defend the royalty payments to be paid by PAR to HANA with respect Third Party Litigation, and NovaDel is named as a party to the sale of litigation, NovaDel shall have the Licensed Product under Section 6.3; provided furtherright, howeverbut not the responsibility, that no royalty payment when dueto do so at its own expense. In such case, regardless of the amount or number of credits available to PAR Licensee shall be reduced by more than bear [***] percent ([***]%) of the amounts otherwise owed pursuant to Section 6.3 in any calendar quarter. Credits not exhausted in any calendar quarter may be carried into future calendar quarters. Notwithstanding the foregoing, in the event that no payments are due or owing, or contemplated to be due or owing, by PAR to HANA under Article 6 with respect to the sale its own costs of the Licensed Product, then NovaDel shall pay to PAR such amount owed to a Third Party up to a cap of [***]% of such amount owed to such Third Party, less any amount already credited to PAR under this Section 10.3. Notwithstanding the foregoing, NovaDel shall have no obligation under this Section 10.3 for any costs, expenses or damages that are paid or payable to a Third Party as a result of an actual or alleged infringement by PAR or HANA to the extent such costs, expenses or damages result from the use of a Product Trademarkcooperation and participation.

Third Party Litigation. 12.4.1 In the event that a Third Party institutes a patent of any actual or other infringement threatened suit against any of NovaDelABX, PAR AZ or HANA their respective Affiliates, sublicensees, Distributors or any of its respective Affiliates during customers alleging that the Term, alleging manufacture, use or sale Exploitation of a Licensed Product in hereunder infringes the Territory, infringes one or more patent Patent Right or other intellectual property rights held by such Third Party of any Person (an “Infringement Suit”), the Parties Party first becoming aware of such Infringement Suit shall cooperate promptly give written notice to the other Party. Except as otherwise provided in Article 15, AZ shall have the sole right, but not the obligation, at its sole cost and expense, through counsel of its choosing, to assume direction and control of the defense of any such Infringement Suit with one another respect to the AZ Products (including the right to settle such claims at its sole discretion) and ABX shall have the sole right, but not the obligation, at its sole cost and expense, through counsel of its choosing, to assume direction and control of the defense of any such Infringement Suit with respect to the ABX Products (including the right to settle such claims at its sole discretion). 12.4.2 Notwithstanding Section 12.4.1, in defending the event any such suit. PARInfringement Suit alleges that the use of the Core Technology in the Research Programs or the Antibodies and Candidate Drugs resulting therefrom, as infringes the NDA holderPatent Rights or other intellectual property rights of a Third Party, ABX shall have the first right to direct and controlright, but not the obligation, at its sole cost and expense, any Infringement Suit (including settlement negotiationsthrough counsel of its choosing, settlement or compromise thereof) to the extent that it relates to the manufacture, use or sale of a Licensed Product but does not implicate the Licensed Technology or Licensed Process. In the event that the Infringement Suit relates to the use assume direction and control of the Licensed Technology or Licensed Process, NovaDel shall have the first right to direct and control, at its expense, defense of any such Infringement Suit (including settlement negotiations, settlement or compromise thereof). To the extent that any amounts become payable to any Third Party as a result of such action, whether through judgment or settlement, then PAR shall, unless HANA is jointly promoting and commercializing the Licensed Product pursuant to Section 2.4 and subject to Section 12.2, bear [***] percent ([***]%) of such amounts with respect to the Exploitation of the Licensed Product; provided, however, that PAR shall have the right to credit [***] percent settle such claims at its sole discretion, provided that ABX shall obtain the consent of AZ ([***]%which consent shall not be unreasonably withheld or delayed) of prior to compromising, settling or ceasing to defend any amounts paid by PAR through judgment such claim that could have an adverse effect on AZ or settlement with respect to such country against the royalty payments to be paid by PAR to HANA with respect to the sale an AZ Product) and, irrespective of the Licensed Product under Section 6.3; provided furtherParty that assumed such direction and control, however, that no royalty payment when due, regardless of the amount or number of credits available to PAR shall be reduced by more than [***] percent solely responsible for all costs and expenses and any damage awards or other payments ([***]%including royalties) of the amounts otherwise owed pursuant to Section 6.3 in any calendar quarter. Credits not exhausted in any calendar quarter may be carried into future calendar quarters. Notwithstanding the foregoing, in the event that no payments are due or owing, or contemplated to be due or owing, by PAR to HANA under Article 6 with respect to the sale of the Licensed Product, then NovaDel shall pay to PAR such amount owed to a Third Party up to a cap of [***]% of such amount owed to such Third Party, less any amount already credited to PAR under this Section 10.3. Notwithstanding the foregoing, NovaDel shall have no obligation under this Section 10.3 for any costs, expenses or damages that are paid or payable to a Third Party as a result of an actual or alleged infringement by PAR or HANA penalties to the extent such costs, expenses or damages result from the use of a Product Trademark.incurred therefrom that are not offset by proceeds therefrom. [Confidential treatment requested]