Common use of Infringement by Third Parties Clause in Contracts

Infringement by Third Parties. Gen-Probe will have the right, but not the obligation, at its own expense to bring and control an action to enforce the Gen-Probe Patents, whether the infringement has occurred in the Company Field or not; provided, however, that Company will be entitled to join and participate in any such action at its own expense to the extent the alleged infringement would have a material adverse effect in the Company Field, provided that Gen-Probe will maintain control of and direction of such action. If Gen-Probe does not bring an action against the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred in the Company Field, Company may request that Gen-Probe bring and control such an action with respect to infringement in the Company Field, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction of such action. Each party shall promptly notify the other par1y if it learns of any infringement matter concerning the Gen-Probe Patents. The expense of the parties in bringing suit will first be reimbursed out of any moneys recovered, with the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant to any cost-sharing arrangement, the balance of any recovery shall be distributed: (a) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, (i) to Company in an amount equal to its lost profits or a reasonable royalty on the sales of the infringer (whichever measure of damages shall have been applied) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, and (ii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balance, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe and 80% to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field.

Infringement by Third Parties. Gen-Probe will have the right, but not the obligation7.1 LICENSEE, at its own expense to bring and control an action expense, shall use commercially reasonable efforts to enforce the Gen-Probe Patents, whether the any patent exclusively licensed hereunder against substantial and continuing infringement has occurred in the Company Field or not; providedby third parties and is entitled to retain recovery from such enforcement. It is understood, however, that Company will such obligation shall not be entitled deemed to join and participate in any require LICENSEE to take such action at its own expense to the extent the alleged infringement would have a material adverse effect in the Company Field, provided that Gen-Probe will maintain control of and direction of such action. If Gen-Probe does not bring an action against the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred in the Company Field, Company may request that Gen-Probe bring and control such an action actions with respect to each such infringement, and LICENSEE may take into account reasonable strategic and other considerations in determining which infringers to take action against, as well as when and whether to do so. After reimbursement of LICENSEE’s reasonable legal costs and expenses related to such recovery, LICENSEE agrees to pay a percentage of the monetary recovery it receives to UTMDACC, such percentage to be equal to the percentage that would apply under Section 4.1 if such monetary recovery was considered SUBLICENSE INCOME under this AGREEMENT; provided that for any monetary recovery that is for sales of LICENSED PRODUCTS lost to the infringement, in no event shall LICENSEE be responsible to pay UTMDACC amounts in excess of the royalty detailed in Section 4.1(d) for such lost sales. LICENSEE must notify UTMDACC in writing of any material potential infringement within thirty (30) calendar days of knowledge thereof. If within twelve (12) months of a request by UTMDACC to file suit, LICENSEE does not file suit against a third party that UTMDACC and LICENSEE mutually agree is a substantial infringer and that enforcement would be in the Company Fieldbest interest of the licensed products (such agreement not to be unreasonably withheld), which request or where there is a good-faith dispute on the matter, it is so determined pursuant to the dispute-resolution procedures of Section 15.6 below, then BOARD or UTMDACC may, at its sole discretion, enforce any patent licensed hereunder against the infringing activities of such infringer, with UTMDACC retaining [***] all recoveries from such enforcement after reimbursement of UTMDACC’s reasonable legal costs and expenses related to such recovery; provided LICENSEE shall explain always have the rationale and support for taking option to jointly participate in such an enforcement action, which Gen-Probe will consider including, at LICENSEE’s discretion, by jointly bringing the action with UTMDACC or joining as a party plaintiff. If LICENSEE joins such suit and shares in good faith subject the legal costs and expenses of the enforcement, then any recovery from such enforcement shall be shared by the parties in direct proportion to agreement between Company the reasonable legal costs and Gen-Probe on an appropriate sharing of costs of bringing such action, expenses paid by each party related to the recovery; provided that Gen-Probe will maintain control of and direction of such action. Each party in no event shall promptly notify the other par1y if it learns UTMDACC retain more than [***] of any infringement matter concerning recovery after reimbursement of the Gen-Probe Patentsparties’ legal costs. 7.2 In any suit or dispute involving an infringer, the parties agree to cooperate fully with each other. The At the request and expense of the parties party bringing suit, the other party will permit reasonable access during regular business hours, to all relevant personnel, records, papers, information, samples, specimens, and the like in bringing suit will first be reimbursed out of any moneys recoveredits possession, with and where LICENSEE is the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant to any cost-sharing arrangementsuit, the balance of any recovery shall be distributed: (a) with respect BOARD and UTMDACC will, subject to the portion (percentage) statutory authority of the total recovery that is reasonably related to infringement in the Company Field, (i) to Company in an amount equal to its lost profits or a reasonable royalty on the sales Attorney General of the infringer (whichever measure State of damages shall have been applied) with respect Texas, join the suit as a party plaintiff and sign all documents necessary to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, and (ii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balance, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe and 80% to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Fielddo so.

Infringement by Third Parties. Gen-Probe 9.1 Each PARTY will have promptly inform the other of any suspected infringement of any claims in the PATENT RIGHTS or the misuse, misappropriation, theft or breach of confidence of other proprietary rights in the LICENSED SUBJECT MATTER by a third party. LICENSEE has the right, but not the obligation, to institute an action for infringement, misuse, misappropriation, theft or breach of confidence of the proprietary rights against such third party and is entitled to retain recovery from such enforcement, provided however, after reimbursement of LICENSEE’s reasonable legal costs and expenses related to such enforcement, any award or damages awarded to LICENSEE that constitute lost profits shall be considered NET SALES for purposes of calculating royalties due LICENSORS. Additionally, if any award or damages awarded to LICENSEE constitute “reasonable royalties” pursuant to 35 USC §284 or punitive damages, LICENSEE agrees to pay LICENSORS [***] percent ([***]%) of any such reasonable royalties or punitive damages. At LICENSEE’S request and expense, and subject to the statutory duties of the Texas Attorney General, LICENSORS agree to join any such action brought by LICENSEE if necessary. If LICENSEE fails to bring such an action or proceeding within 120 days after receiving notice or otherwise having knowledge of such infringement, then LICENSORS may institute an action for infringement, misuse, misappropriation, theft or breach of confidence of the proprietary rights against such third party at its own expense and retain all recoveries from such enforcement, and/or reduce the license granted hereunder to bring semi-exclusive and control an grant a license to such third party. LICENSORS will provide LICENSEE with 20 days written notice before they commence any legal action to enforce terminate infringement of PATENT RIGHTS and LICENSEE may commence legal action at any time during the Gen-Probe Patents20 day notice period. LICENSEE must provide LICENSORS with evidence that it has commenced legal action within the 20 day notice period, whether the infringement has occurred in the Company Field or not; provided, however, that Company and all recoveries resulting from such action will be entitled divided equally between LICENSEE and LICENSORS after LICENSEE recovers its costs and expenses directly related to join and participate in any such action at its own expense to the extent the alleged infringement would have a material adverse effect in the Company Field, provided that Gen-Probe will maintain control of and direction of such action. If Gen-Probe does not bring an action against the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred in the Company Field, Company may request that Gen-Probe bring and control such an action with respect to infringement in the Company Field, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction of such action. Each party shall promptly notify the other par1y if it learns of . 9.2 In any infringement matter concerning suit or dispute, the Gen-Probe PatentsPARTIES agree to cooperate fully with each other. The At the request and expense of the parties in PARTY bringing suit will first be reimbursed out of any moneys recovered, with the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant to any cost-sharing arrangementsuit, the balance of any recovery shall be distributed: (a) with respect other PARTY will permit access to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Fieldall relevant personnel, (i) to Company in an amount equal to its lost profits or a reasonable royalty on the sales of the infringer (whichever measure of damages shall have been applied) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Fieldrecords, and (ii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balancepapers, if anyinformation, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe and 80% to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Fieldsamples, specimens, etc., during regular business hours.

Infringement by Third Parties. Gen-Probe will 8.01 - Upon learning of the infringement of PATENT RIGHTS by a third party, the party learning of such infringement shall promptly inform the other party in writing of that fact along with any evidence available pertaining to the infringement. STEMCO shall have the right, but at its own expense, to take whatever steps are necessary to stop the infringement and recover damages. In such case, STEMCO will keep DUKE informed of the steps taken and the progress of any legal actions taken. STEMCO will pay to DUKE royalties pursuant to Article 4.02 herein on any such damages recovered and allocated by the court, or in the absence of such allocation by the court, reasonably allocated by the mutual agreement of STEMCO and DUKE, as consideration for lost sales of LICENSED PRODUCTS that are in excess of out-of-pocket legal expenses incurred by STEMCO in enforcing the PATENT RIGHTS plus STEMCO’s reimbursement to DUKE for its out-of-pocket expenses in cooperating with STEMCO in prosecution or arbitration of such infringement. Any damages recovered by STEMCO in excess of those allocated as set forth above shall be shared, with [ *** ] receiving [ *** ] percent ([ *** ]%) and [ *** ] receiving [ *** ] percent ([ *** ]%). If STEMCO does not undertake, within sixty (60) days of the obligationdate of the notice of infringement, to enforce the PATENT RIGHTS against the infringing party, DUKE shall have the right, at its own expense to bring and control an action take whatever steps are necessary to enforce the Gen-Probe Patents, whether stop the infringement has occurred in the Company Field or not; providedand recover damages, however, that Company will and shall be entitled to join retain damages so recovered and participate in any such action at its own expense to allocated by the extent the alleged infringement would have a material adverse effect court, or in the Company Field, provided that Gen-Probe will maintain control of and direction absence of such action. If Genallocation by the court, reasonably allocated by the mutual agreement of STEMCO and DUKE, as consideration for lost sales of LICENSED PRODUCTS that are in excess of out-Probe does not bring an action against of-pocket legal expenses incurred by DUKE in enforcing the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred PATENT RIGHTS plus DUKE’s reimbursement to STEMCO for its out-of-pocket expenses in the Company Field, Company may request that Gen-Probe bring and control such an action cooperating with respect to infringement DUKE in the Company Field, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction prosecution or arbitration of such actioninfringement. Each party Any damages recovered by DUKE in excess of those allocated as set forth above shall promptly notify the other par1y if it learns of any infringement matter concerning the Gen-Probe Patents. The expense of the parties in bringing suit will first be reimbursed out of any moneys recoveredshared, with [ *** ] receiving [ *** ] percent ([ *** ]%) and [ *** ] receiving [ *** ] percent ([ *** ]%). [ * * * ] = Certain information on this page has been omitted and filed separately with the party bringing the suit being reimbursed firstSecurities and Exchange Commission. Except as otherwise agreed pursuant to any cost-sharing arrangement, the balance of any recovery shall be distributed: (a) Confidential treatment has been requested with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, (i) to Company in an amount equal to its lost profits or a reasonable royalty on the sales of the infringer (whichever measure of damages shall have been applied) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, and (ii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balance, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe and 80% to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Fieldomitted portions.

Infringement by Third Parties. Gen-Probe will (a) Amylin shall have the first right, but not the obligation, at its own expense expense, to enforce Leptin Patent Rights against Third Parties and to defend the Leptin Patent Rights against any challenges in the Territory within the Product Field. In the event Amylin shall so elect, Amylin shall control any such action; provided that, Amgen shall, at its own expense, be entitled to participate in, and to have counsel selected by Amgen participate in, such action. Recoveries in any actions under this Section 6.2(a) shall be used first to reimburse the Parties’ costs and expenses (including attorneys’ fees) for such action (on an equal basis) and any remainder shall belong to Amylin, except that Amgen shall receive out of any such remaining recovery received by Amylin an amount as follows: (i) as to ordinary damages, Amgen shall receive payment equivalent to payments that would have been due to Amgen under this Agreement had the infringing sales that Amylin lost to the infringer been made by Amylin and (ii) as to special or punitive damages, such amount shall be allocated between the Parties in the same proportion as ordinary damages under clause (i); and provided further that the amounts paid under (i) and (ii) shall not exceed 50% of the total recovery of Amylin from such action or proceeding. (b) Amylin shall have the right to enforce and defend the Rockefeller Patents only to the extent of Amgen’s rights under the Rockefeller License with respect thereto. (c) In the event Amylin does not commence an enforcement and/or defense action pursuant to Section 6.2(a) or (b) within sixty (60) days after Amylin first notifies Amgen or Amgen first notifies Amylin of potential infringement of the Leptin Patent Rights or the Rockefeller Patents in the Territory (or of the filing of a declaratory judgment action, in the case of defense actions), Amgen shall be entitled to bring and control prosecute such an action to enforce the Gen-Probe Patents, whether the infringement has occurred in the Company Field or not; provided, however, that Company will be entitled to join and participate in any such action at its own expense and to the extent the alleged infringement would retain one hundred percent (100%) of any recoveries in such action, unless Amylin participates, Amylin shall, at its own expense, be entitled to participate in, and to have a material adverse effect in the Company Fieldcounsel selected by Amylin participate in, provided that Gen-Probe will maintain control of and direction of such action. If Gen-Probe does not bring an Recoveries in any actions in which Amylin participates under this Section 6.2(c) shall be used first to reimburse the Parties’ costs and expenses (including attorneys’ fees) for such action against the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred in the Company Field, Company may request that Gen-Probe bring and control such an action with respect to infringement in the Company Field, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe (on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of equal basis) and direction of such action. any remainder shall belong to Amgen. (d) Each party Party shall promptly notify the other par1y if it learns Party upon becoming aware of any potential Third Party infringement matter concerning the Gen-Probe Patents. The expense of the parties in bringing suit will first be reimbursed out Licensed Patent Rights. (e) Neither Party shall enter into any settlement of any moneys recoveredaction under this Section 6.2 that affects the other Party’s rights or interests under this Agreement without such other Party’s written consent, with the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant to any cost-sharing arrangement, the balance of any recovery which consent shall not be distributed: (a) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, (i) to Company in an amount equal to its lost profits unreasonably withheld or a reasonable royalty on the sales of the infringer (whichever measure of damages shall have been applied) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, and (ii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balance, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe and 80% to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Fielddelayed.

Infringement by Third Parties. Gen-Probe will have the right, but not the obligation, at its own expense to bring and control an action to enforce the Gen-Probe Patents, whether the infringement has occurred in the Company Field or not; provided, however, that Company will be entitled to join and participate in any such action at its own expense to the extent the alleged infringement would have a material adverse effect in the Company Field, provided that Gen-Probe will maintain control of and direction of such action. If Gen-Probe does not bring an action against the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred in the Company Field, Company may request that Gen-Probe bring and control such an action with respect to infringement in the Company Field, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction of such action. Each party Party shall promptly notify advise the other par1y if it learns in writing of any infringement matter concerning the Gen-Probe Patents. The expense or suspected infringement of any of the parties in bringing suit will first be reimbursed out rights under the Licensed Patents licensed hereby that Licensed Rights cover a Licensed Product (the Licensed Rights”) by a third party (an "Infringement"). In the case of any moneys recovered, with the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant to any cost-sharing arrangement, the balance Infringement of any recovery Licensed Rights by any third party (an “Infringer”) during the term of this Agreement, obligation, under Licensee's icensee's expense, to own control Infringement of the Licensed Rights, or to defend the Licensed Rights in any declaratory judgment action brought by third parties which alleges the invalidity, unenforceability or noninfringement of the Licensed Rights under the Licensed Patents and to otherwise enforce such Licensed Rights or such other intellectual property right. Licensor shall assist Licensee as reasonably requested, at Licensee's expense, Infringer. Any amount recovered as a result of any action taken by Licensee hereunder shall be distributed: (a) with respect first applied to reimbursing Licensee for its out-of-pocket expenses incurred in connection therewith and the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, (i) to Company in an amount equal to its lost profits or a reasonable royalty on the sales of the infringer (whichever measure of damages shall have been applied) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, and (ii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balanceremainder, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe appropriately between Licensee and 80% to Company Licensor with respect reference to the portion (percentage) relative monetary injury suffered by each of them by reason of the total recovery that is infringement for which said amounts are recovered. If, following reasonable notice from the Licensor, Licensee shall fail to take any action against any Infringer which Licensor may reasonably related deem necessary or desirable to infringement prevent such Infringement, or to recover damages therefor, in addition to any other remedy available to it, Licensor may, upon notice to Licensee, take any steps Licensor may deem appropriate against such Infringer Licensee shall assist Licensor, at Licensor's action against any such Infringer. Any amount recovered as a result of any such action taken by Licensor shall first be applied to reimbursing Licensor for its out-of-pocket expenses incurred in connection therewith and the Company Field; remainder, if any, shall be divided appropriately between Licensee and (2) 100% to Gen-Probe Licensor with respect reference to the portion (percentage) relative monetary injury suffered by each of them by reason of the total recovery that is reasonably related infringement for which said amounts are recovered. Neither Party may settle or compromise any such suit or action for Infringement pursuant to infringement outside this section without the Company Fieldwritten consent of the other Party, which consent shall not be unreasonably withheld or delayed. This paragraph shall survive the termination or expiration of this Agreement.

Infringement by Third Parties. Gen-Probe will (a) If, at any time on or after the Effective Date, either party shall become aware of any infringement or threatened infringement of the Noven Patents or any unfair competition, inappropriate or unauthorized use, disparagement or other tortious act by any third party in relation to the Licensed Product, then the party having such knowledge shall give prompt notice thereof to the other party. (b) Subject to Section 9.02, Endo shall have the right, but not the obligation, at its own expense sole cost and expense, using counsel reasonably acceptable to bring and control an Noven, to take such action as it deems appropriate to enforce the Gen-Probe Noven Patents in the Territory against any Competing Product that may be infringing the Noven Patents, whether including initiating an appropriate Proceeding or threatening to initiate an appropriate Proceeding to prevent or eliminate the infringement has occurred of such Noven Patents with regard to any Competing Product, or the unfair competition, inappropriate or unauthorized use, disparagement or other tortious act by any third party in relation to the Licensed Product in the Company Field or not; providedTerritory. Subject to Section 9.01(c) below, howeverNoven agrees to cooperate with Endo, at Noven's cost and expense (which cost and expense shall not include the fees of the attorneys that Company will be entitled to join represent Endo, even if such attorneys represent Noven as well), if and participate in any such action at its own expense to the extent the alleged infringement would have reasonably requested by Endo, including joining as a material adverse effect in the Company Fieldparty to such Proceeding, provided that Gen-Probe will if necessary to maintain control of and direction of such action. If Gen-Probe does not bring an action against the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred in the Company Field, Company may request that Gen-Probe bring and control such an action standing. (c) Endo shall consult with Noven with respect to infringement in the Company Field, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject its decision whether to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction of such action. Each party shall promptly notify the other par1y if it learns of take any infringement matter concerning the Gen-Probe Patents. The expense action of the parties nature specified in bringing suit will first be reimbursed out of any moneys recoveredSection 9.01(b), with the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant giving due consideration to any cost-sharing arrangement, the balance of any recovery shall be distributed: (a) Noven's views with respect to the portion (percentage) necessity or desirability of the total recovery that is reasonably related to infringement in the Company Field, (i) to Company in an amount equal to its lost profits or a reasonable royalty on the sales of the infringer (whichever measure of damages shall have been applied) taking such action and with respect to whether and how any such Proceeding should be maintained, settled, or appealed throughout the portion (percentage) pendency of such Proceeding. In deciding whether to initiate any Proceeding brought to prevent or eliminate infringement of the total recovery that is reasonably related Noven Patents, Endo shall give careful consideration to infringement in what extent the Company Fieldclaims of any Noven Patent reads on the allegedly infringing article, the identity of the alleged infringers, and (ii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales extent of the infringer measure of damages is applied) alleged infringement by quantifying the harm being suffered or projected to be suffered by Endo as a reasonable approximation result of the royalties that Company would have owed alleged infringement. Endo shall keep Noven apprised throughout, and until final disposition of, any Proceeding brought to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) prevent or eliminate infringement of the total recovery that is reasonably related Noven Patents, and give due consideration to infringement outside Noven's views in connection with such Proceeding. (d) Endo shall not enter into any settlement, agreement, consent judgment or other voluntary final disposition of a Proceeding or threatened Proceeding under this Section 9.01, in whole or in part, without the Company Field. The balanceprior written consent of Noven, if anywhich shall not be unreasonably withheld. (e) All amounts awarded as damages, remaining after Company has been compensated for lost profits or lost sales within otherwise in connection with any action specified in Section 9.01(b) taken by Endo shall be deemed to be Gross Margin under Section 6.03 and subject to split between the Company Field parties after the fees, costs and Gen.-Probe has been compensated for lost royalties expenses of each of Noven and Endo in respect of infringement the Proceeding have first been reimbursed. (f) If Endo elects not to take any action of the nature specified in Section 9.01(b) within sixty (60) days of becoming aware or receiving notice under Section 9.01 (a) of any infringement, threatened infringement, unfair competition, disparagement or other tortious act identified in Section 9.01(a), Endo shall give Noven notice of such decision, and Noven thereafter shall have the Company Field and Gen-Probe has recovered right to take any action of the nature specified in Section 9.01(g). In such event, all direct damages amounts awarded as damages, profits or otherwise in respect of infringement outside the Company Field connection with any action taken by Noven shall be divided paid to and become the sole property of Noven. (g) Except for the rights specifically granted to Endo pursuant to Section 9.01(b) above, Noven shall have the sole and exclusive right to protect and enforce its Intellectual Property Rights in any Proceeding. All associated fees, costs and expenses shall be borne by Noven and all amounts awarded as follows: (1damages, profits or otherwise in connection with any action specified in this Section 9.01(g) 20% to Gen-Probe and 80% to Company with respect to taken by Noven shall be the portion (percentage) sole property of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company FieldNoven.

Infringement by Third Parties. Gen-Probe will have If any Interneuron Patent, Warner Patent or RPR Patent is infringed by a Third Party in connection with the manufacture, import, use, sale or offer for sale of a product competitive with the Licensed Product, the Party first having knowledge of such infringement shall promptly notify the other in writing. The notice shall set forth the facts of that infringement in reasonable detail. The Party having the primary right, but not the obligation, to institute, prosecute and control any action or proceeding with respect to such infringement (the "Enforcing Party") shall be Interneuron for infringement of Interneuron Patents, and Warner for infringement of Warner Patents or any RPR Patents for which Interneuron otherwise has the right to institute, prosecute or control any such action or proceeding under the terms of the Interneuron-RPR License Agreement. The non-Enforcing Party shall have the right at its own expense to participate in any action brought by the Enforcing Party and to be represented by counsel of its own choice. If the Enforcing Party fails to bring an action or proceeding within a period of ninety (90) days after written notice from the other Party, the other Party shall have the right at its own expense to bring and control an action to enforce the Gen-Probe Patents, whether the infringement has occurred in the Company Field or not; provided, however, that Company will be entitled to join and participate in any such action at by counsel of its own expense choice, and the Enforcing Party shall have the right to participate in such action and be represented by counsel of its own choice and shall further reimburse the extent non-Enforcing Party for one-half of the alleged infringement would have a material adverse effect non-Enforcing Party's costs and expenses in the Company Field, provided that Gen-Probe will maintain control of and direction of bringing such actionaction or proceeding. If Gen-Probe does not bring an a Party brings any such action against the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred in the Company Fieldor proceeding hereunder, Company may request that Gen-Probe bring and control such an action with respect to infringement in the Company Field, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction of such action. Each party shall promptly notify the other par1y if it learns of any infringement matter concerning Party agrees to give the Gen-Probe PatentsEnforcing Party reasonable assistance and authority to control, file and prosecute the suit as necessary. The expense costs and expenses of the parties in Party bringing suit will first under this Section (including the internal costs and expenses specifically attributable to said suit) shall be reimbursed first out of any moneys recovered, with damages or other monetary awards recovered in favor of the party bringing the suit being reimbursed firstParties. Except as otherwise agreed pursuant to any cost-sharing arrangement, the balance of any recovery Any remaining damages shall be distributed: provided to Warner and such amount (a) with respect after payment of costs and expenses attributable to the portion (percentagesuit) of the total recovery that is reasonably related shall be deemed to infringement be Net Sales in the Company Field, (i) to Company applicable country for the year in an which such amount equal to its lost profits or a reasonable royalty on the sales of the infringer (whichever measure of damages shall have been applied) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, and (ii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balance, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe and 80% to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Fieldactually received by Warner.

Infringement by Third Parties. Gen-Probe will 7.1 LICENSEE shall have the rightobligation of enforcing at its expense any patent exclusively licensed hereunder against infringement by third parties. In the event that LICENSEE is awarded a recovery from an infringer or misappropriating party in excess of the reasonable costs and expenses for bringing such infringement or misappropriation action, LICENSEE shall pay to BOARD twenty-five percent (25%) of any such excess recovery. In the event that LICENSEE does not file suit against a substantial infringer of such patents within six (6) months of receipt of a written demand from BOARD to bring suit, BOARD and LICENSEE will consult with one another in an effort to determine whether a reasonably prudent licensee would institute litigation to enforce the patent in question in light of all relevant business and economic factors (including, but not limited to, the obligation, at its own expense to bring and control an action to enforce the Gen-Probe Patents, whether the infringement has occurred in the Company Field or not; provided, however, that Company will be entitled to join and participate in any such action at its own expense to the extent the alleged infringement would have a material adverse effect in the Company Field, provided that Gen-Probe will maintain control of and direction projected costs of such action. If Gen-Probe does not bring an action litigation, the likelihood of success on the merits, the probable amount of any damage award, the prospects for satisfaction of any judgment against the alleged infringer within 60 days after written notice from Company infringer, the possibility of counterclaims against LICENSEE and BOARD, the alleged infringement has occurred in diversion of LICENSEE'S human and economic resources, the Company Fieldimpact of any possible adverse outcome on LICENSEE'S and BOARD'S respective reputations and goodwill). After such consultation, Company may request that Genif BOARD and LICENSEE have not reached agreement and LICENSEE does not file suit forthwith against the substantial infringer, then BOARD shall have the right to convert the previously licensed exclusive rights to non-Probe bring and control such an action with respect to infringement in the Company Field, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, exclusive provided that Gena reasonably prudent licensee would have brought such suit in light of the above-Probe will maintain control of mentioned circumstances. 7.2 In any suit or dispute involving an infringer, the parties shall cooperate fully, and direction of such action. Each party shall promptly notify upon the other par1y if it learns of any infringement matter concerning request and at the Gen-Probe Patents. The expense of the parties in party bringing suit will first be reimbursed out of any moneys recoveredsuit, with the other party shall make available to the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant to any cost-sharing arrangementat reasonable times and under appropriate conditions all relevant personnel, the balance of any recovery shall be distributed: (a) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Fieldrecords, (i) to Company in an amount equal to its lost profits or a reasonable royalty on the sales of the infringer (whichever measure of damages shall have been applied) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Fieldpapers, information, samples, specimens, and (ii) then to Gen-Probe the like which are in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balance, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe and 80% to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Fieldits possession.

Infringement by Third Parties. Gen-Probe will have the right, but not the obligationLICENSEE, at its own expense to bring and control an action to expense, may enforce the Gen-Probe Patents, whether the infringement has occurred in the Company Field or not; provided, however, that Company will be entitled to join and participate in any such action at its own expense to the extent the alleged infringement would have a material adverse effect in the Company Field, provided that Gen-Probe will maintain control of and direction of such action. If Gen-Probe does not bring an action patent exclusively licensed hereunder against the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred in the Company Field, Company may request that Gen-Probe bring and control such an action with respect to infringement in the Company FieldLICENSED TERRITORY by third parties and is entitled to retain recovery from such enforcement. After reimbursement of LICENSEE’S reasonable legal costs and expenses related to such recovery, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject LICENSEE agrees to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction of such action. Each party shall promptly notify the other par1y if it learns of any infringement matter concerning the Gen-Probe Patents. The expense of the parties in bringing suit will first be reimbursed out of any moneys recovered, with the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant to any cost-sharing arrangement, the balance of any recovery shall be distributedpay ANNAMED either: (a) with respect to the portion (percentage) of the total royalty detailed in Article V for any monetary recovery that is reasonably related to infringement in the Company Field, (i) to Company in an amount equal to its lost profits or a reasonable royalty on the for sales of the infringer (whichever measure of damages shall have been applied) with respect LICENSED PRODUCTS lost due to the portion infringement and fifty percent (percentage50%) of the total recovery that is reasonably related to infringement in the Company Field, and (ii) then to Gen-Probe in an amount equal to the royalties and any other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) received; or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion fifty percent (percentage50%) of reasonable royalties awarded and any other damages received in any recovery in which the total recovery that compensatory award is reasonably related to infringement outside the Company Fieldsolely for reasonable royalties. The balance, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties LICENSEE must notify ANNAMED in respect writing of any potential infringement within thirty (30) calendar days of knowledge thereof. If LICENSEE decides not to pursue an infringement enforcement action within six month of knowledge of such infringement, LICENSEE will notify ANNAMED and then ANNAMED may, at its discretion, after considering the Company Field commercially reasonable bases for LICENSEE’s decision not to pursue such infringement enforcement action, pursue the enforcement of any patent licensed hereunder on behalf of itself and Gen-Probe has recovered all direct damages LICENSEE. In such case, the parties will discuss in respect good faith the appropriate settlement of infringement outside such case and/or the Company Field appropriate distribution of any recovery from such action, which shall be divided as follows: (1) 20% depend on LICENSEE’s involvement with and contribution to Gen-Probe such case and 80% to Company with respect to the portion (percentage) effect of the total recovery that is reasonably related LICENSEE’s ability to infringement commercialize the LICENSED SUBJECT MATTER in the Company Field; LICENSED TERRITORY. In any suit or dispute involving an infringer, the parties agree to cooperate fully with each other. At the request and (2) 100% to Gen-Probe with respect to the portion (percentage) expense of the total recovery that is reasonably related party bringing suit, the other party will permit access during regular business hours, to infringement outside all relevant personnel, records, papers, information, samples, specimens, and the Company Fieldlike in its possession.

Infringement by Third Parties. Gen6.2.1 If any of C-Probe will Chip's Intellectual Property is infringed by a third party, C-Chip will, after consultation with Licensee, decide upon the course of action to take in order to put an end to the infringement and/or to seize any product manufactured, marketed, distributed or sold in violation of C-Chip's Intellectual Property. 6.2.2 If C-Chip judges in its reasonable discretion that C-Chip's Intellectual Property rights have been infringed upon by a third party, it shall take any and all necessary measures it deems reasonable in the rightcircumstances, but not the obligationwithout any obligation to do so, at its own cost and expense including institution of legal proceedings. C-Chip shall keep Licensee informed regarding the progress of such necessary measures. Licensee shall have the right to bring and control an action to enforce the Gen-Probe Patents, whether the infringement has occurred in the Company Field or not; provided, however, that Company will be entitled to join and participate in any such action legal proceedings or settlement negotiations at its own cost and expense and by counsel of its own choice. 6.2.3 Licensee shall have the right at its own cost and expense and by counsel of its own choice to the extent the alleged infringement would have institute and prosecute legal proceedings against suspected infringers of C-Chip's Intellectual Property rights as Licensee may deem necessary or desirable to safeguard its rights under this Agreement if C-Chip does not institute legal proceedings within ninety (90) days after gaining knowledge thereof by C-Chip on its own or receipt of a material adverse effect in the Company Fieldnotice from Licensee sufficiently detailed to institute such legal proceedings, provided that GenLicensee shall not have the right to settle, compromise or take any action in any dispute which diminishes, limits or inhibits the scope, validity or enforceability of C-Probe will maintain control Chip's Intellectual Property without the express written consent of C-Chip. In such case, Licensee shall keep all proceeds resulting from such legal proceedings and direction of shall have the right to settle such action. If Gen-Probe does not bring an action against the alleged infringer within 60 days after written notice from Company proceedings save and the alleged infringement has occurred in the Company Field, Company may request that Gen-Probe bring and control except if such an action with respect to infringement in the Company Field, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction of such action. Each party shall promptly notify the other par1y if it learns settlement includes any invalidation of any infringement matter concerning of C-Chip's Intellectual Property. During the Gencourse of any such proceedings, Licensee shall keep C-Probe Patents. The expense Chip informed regarding the progress of the parties in bringing suit will first be reimbursed out of any moneys recoveredproceedings, with the party bringing the suit being reimbursed firstand C-Chip shall fully provide necessary support and cooperation at Licensee's expense. Except as otherwise agreed pursuant to any costC-sharing arrangement, the balance of any recovery shall be distributed: (a) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, (i) to Company in an amount equal to its lost profits or a reasonable royalty on the sales of the infringer (whichever measure of damages Chip shall have been applied) the right to participate in such proceedings or settlement discussions at its cost with respect to the portion (percentage) counsel of the total recovery that is reasonably related to infringement in the Company Field, and (ii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balance, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe and 80% to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Fieldits choice.

Infringement by Third Parties. Gen-Probe will 8.01 - Upon learning of the infringement of PATENT RIGHTS by a third party, the party learning of such infringement shall promptly inform the other party in writing of that fact along with any evidence available pertaining to the infringement. STEMCO shall have the right, but at its own expense, to take whatever steps are necessary to stop the infringement and recover damages. In such case, STEMCO will keep DUKE informed of the steps taken and the progress of any legal actions taken. STEMCO will pay to DUKE [ * ] on any such damages recovered and allocated by the court, or in the absence of such allocation by the court, reasonably allocated by the mutual agreement of STEMCO and DUKE, as consideration for lost sales of LICENSED PRODUCTS that are in excess of out-of-pocket legal expenses incurred by STEMCO in enforcing the PATENT RIGHTS plus STEMCO’s reimbursement to DUKE for its out-of-pocket expenses in cooperating with STEMCO in prosecution or arbitration of such infringement. Any damages recovered by STEMCO in excess of those allocated as set forth above shall be [ * ]. If STEMCO does not undertake, within sixty (60) days of the obligationdate of the notice of infringement, to enforce the PATENT RIGHTS against the infringing party, DUKE shall have the right, at its own expense to bring and control an action take whatever steps are necessary to enforce the Gen-Probe Patents, whether stop the infringement has occurred in the Company Field or not; providedand recover damages, however, that Company will and shall be entitled to join retain damages so recovered and participate in any such action at its own expense to allocated by the extent the alleged infringement would have a material adverse effect court, or in the Company Field, provided that Gen-Probe will maintain control of and direction absence of such action. If Genallocation by the court, reasonably allocated by the mutual agreement of STEMCO and DUKE, as consideration for lost sales of LICENSED PRODUCTS that are in excess of out-Probe does not bring an action against of-pocket legal expenses incurred by DUKE in enforcing the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred PATENT RIGHTS plus DUKE’s reimbursement to STEMCO for its out-of-pocket expenses in the Company Field, Company may request that Gen-Probe bring and control such an action cooperating with respect to infringement DUKE in the Company Field, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction prosecution or arbitration of such actioninfringement. Each party Any damages recovered by DUKE in excess of those allocated as set forth above shall promptly notify be [ * ]. [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the other par1y if it learns of any infringement matter concerning the Gen-Probe Patents. The expense Securities and Exchange Commission pursuant to Rule 406 of the parties in bringing suit will first be reimbursed out Securities Act of any moneys recovered1933, with the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant to any cost-sharing arrangement, the balance of any recovery shall be distributed: (a) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, (i) to Company in an amount equal to its lost profits or a reasonable royalty on the sales of the infringer (whichever measure of damages shall have been applied) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, and (ii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balance, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe and 80% to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Fieldamended.

Infringement by Third Parties. Gen-Probe will Ethicon shall have the first right, but not the obligation, at its sole expense and with counsel of its own expense to bring and control an action choice, to enforce the Gen-Probe PatentsBackground MVIS Intellectual Property and Developed MVIS Intellectual Property against any infringer that is making, whether using, selling, or importing any product that is competitive with the Licensed Products in the Field, including the right to file suit for patent infringement joining MVIS as a party. MVIS shall permit the use of its name in all such suits, sign all necessary papers, and will attempt to do all reasonable things necessary at Ethicon's expense, to facilitate the prosecution of such infringement suits. In such litigation, Ethicon will defend the validity of the asserted patent claims of the Background MVIS Intellectual Property and Developed Intellectual Property; however, Ethicon is not obligated to appeal any adverse decision by a lower court on the validity of Background MVIS Intellectual Property and Developed Intellectual Property if Ethicon reasonably believes that it does not have a reasonable chance of prevailing. Ethicon will not settle any such litigation in a manner that admits to the invalidity of the Background MVIS Intellectual Property and Developed MVIS Intellectual Property or otherwise compromises the validity or enforceability of the Developed MVIS Intellectual Property without MVIS's prior written consent. Ethicon shall incur no liability to MVIS as a consequence of such litigation, the conduct of such litigation or any unfavorable decision resulting from it, *This portion of the Exhibit has been omitted pursuant to a Request for Confidential Treatment under Rule 24b-2 under the Securities Exchange Act of 1934, as amended. The complete Exhibit, including the portions for which confidential treatment has been requested, has been filed separately with the Securities and Exchange Commission. including any decision holding any of the Background MVIS Intellectual Property or Developed MVIS Intellectual Property invalid or unenforceable. Within 120 days of becoming aware of the infringement has occurred of any Background MVIS Intellectual Property or Developed MVIS Intellectual Property, Ethicon shall decide whether to institute an infringement suit. If Ethicon fails to decide whether to institute an infringement suit within such 120 day period, then MVIS shall have the right at its sole discretion to institute such suit or other appropriate action in the Company Field name of either or not; providedboth parties. In such event, howeverEthicon shall permit the use of its name in all such suits, that Company sign all necessary papers, and will be entitled attempt to join and participate in do all reasonable things necessary at MVIS's expense, to facilitate the prosecution of such infringement suits. Any recovery of damages by either Party by way of judgment, award, decree or settlement resulting from any such action at its own expense suit against a Third Party infringer pursuant to this Article 9.3 shall be allocated as follows: Such recovery shall first be used to reimburse each Party for all litigation costs and expenses (including attorney's fees and charges) in connection with such litigation paid by either Party; The parties shall share any remaining portion of such recovery in the proportion of their economic loss resulting from the infringement. Notwithstanding the provisions of this Article 9.3, if the making, using, selling, or importing of a product competitive to the Licensed Product in the Field would infringe Background MVIS Intellectual Property that is licensed by MVIS from one or more Third Parties, MVIS's obligations under this Article 9.3 shall be limited to the extent the alleged infringement would have a material adverse effect in the Company Fieldnecessary to make them consistent with its rights and obligations under its license agreement with such Third Party licensors. In such event, provided that Gen-Probe will maintain control of and direction of MVIS shall exercise its rights under such action. If Gen-Probe does not bring an action against the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred in the Company Field, Company may request that Gen-Probe bring and control such an action license agreements with respect to infringement in the Company Field, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction enforcement of such action. Each party shall promptly notify the other par1y if it learns of any infringement matter concerning the Gen-Probe Patents. The expense of the parties licensed Third Party Intellectual Property Rights in bringing suit will first be reimbursed out of any moneys recovered, consultation with Ethicon and in a manner that is as consistent as possible with the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant to any cost-sharing arrangement, the balance requirements of any recovery shall be distributed: (a) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, (i) to Company in an amount equal to its lost profits or a reasonable royalty on the sales of the infringer (whichever measure of damages shall have been applied) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, and (ii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balance, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe and 80% to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Fieldthis Article 9.3.

Infringement by Third Parties. Gen-Probe will have the right, but not the obligation7.1 LICENSEE, at its own expense to bring and control an action expense, shall have the first right (but no obligation) to enforce the Gen-Probe Patents, whether the all PATENT RIGHTS against infringement has occurred in the Company Field or not; provided, however, that Company will be by third parties and is entitled to join retain recovery from such enforcement. After reimbursement of LICENSEE’s reasonable legal costs and participate in any expenses related to such action at its own expense recovery incurred by LICENSEE, LICENSEE agrees to the extent the alleged infringement would have a material adverse effect in the Company Field, provided that Gen-Probe will maintain control of and direction of such action. If Gen-Probe does not bring an action against the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred in the Company Field, Company may request that Gen-Probe bring and control such an action with respect to infringement in the Company Field, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction of such action. Each party shall promptly notify the other par1y if it learns of any infringement matter concerning the Gen-Probe Patents. The expense of the parties in bringing suit will first be reimbursed out of any moneys recovered, with the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant to any cost-sharing arrangement, the balance of any recovery shall be distributedpay MD ▇▇▇▇▇▇▇▇ either: (a) with respect to the portion (percentageapplicable royalty detailed in Section 4.1(d) of the total for any monetary recovery that is reasonably related to infringement in the Company Field, (i) to Company in an amount equal to its lost profits or a reasonable royalty on the for sales of the infringer (whichever measure of damages shall have been applied) with respect LICENSED PRODUCTS lost due to the portion infringement and [***] percent (percentage[***]%) of the total recovery that is reasonably related to infringement in the Company Field, and (ii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of punitive damages is applied) received by LICENSEE; or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% [***] percent ([***]%) of reasonable royalties awarded and received by LICENSEE, and [***] percent ([***]%) of related punitive damages received by LICENSEE in any monetary recovery in which the award is for reasonable royalties. 7.2 If it is necessary to Genname BOARD or MD ▇▇▇▇▇▇▇▇ as a party in such action to enforce PATENT RIGHTS against an infringer, then LICENSEE must first obtain BOARD'S and MD ANDERSON’S prior written permission, which permission shall not be unreasonably withheld, provided that BOARD and MD ▇▇▇▇▇▇▇▇ shall have reasonable prior input on choice of counsel on any matter where such counsel represents BOARD or MD ▇▇▇▇▇▇▇▇, and LICENSEE and such counsel agree to follow all required procedures of the Texas Attorney General regarding retention of outside counsel for state entities. 7.3 MD ▇▇▇▇▇▇▇▇ shall promptly notify LICENSEE if MD ANDERSON’S Office of Technology Commercialization becomes aware of any infringement or potential infringement of any PATENT RIGHTS. If LICENSEE does not first exercise its right under Section 7.1 within twelve (12) months of knowledge of infringement, then, BOARD or MD ▇▇▇▇▇▇▇▇ may, at its sole discretion, enforce any patent licensed hereunder on behalf of itself and LICENSEE, with MD ▇▇▇▇▇▇▇▇ retaining all recoveries from such enforcement. If BOARD and/or MD ▇▇▇▇▇▇▇▇ pursues such infringement action, BOARD and/or MD ▇▇▇▇▇▇▇▇ may, as part of the resolution thereof, grant non-Probe with respect exclusive license rights to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balancealleged infringer, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe and 80% to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Fieldnotwithstanding LICENSEE’s exclusive license rights.

Infringement by Third Parties. Gen-Probe will have 9.1 If either HPI or MBI becomes aware of any infringement or potential infringement of the rightPatent Rights, but not the obligation, at its own expense to bring and control an action to enforce the Gen-Probe Patents, whether the infringement has occurred in the Company Field or not; provided, however, that Company will be entitled to join and participate in any such action at its own expense to the extent the alleged infringement would have a material adverse effect in the Company Field, provided that Gen-Probe will maintain control of and direction of such action. If Gen-Probe does not bring an action against the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred in the Company Field, Company may request that Gen-Probe bring and control such an action with respect to infringement in the Company Field, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction of such action. Each party each shall promptly notify the other par1y if it learns of such in writing. HPI, at its expense, shall have the first right to enforce any Patent Rights exclusively licensed hereunder against infringement matter concerning by third parties within the Gen-Probe PatentsLicensed Field, which right may be granted by HPI to its Affiliate or sublicensee. The expense With respect to infringement of the parties Patent Rights within the Licensed Field, if HPI does not file suit against a substantial infringer or take alternative action reasonably acceptable to MBI to end such infringement in bringing suit will first be reimbursed out the Licensed Field, within six (6) months of knowledge thereof, then, provided that such infringement is still on going, MBI may, at its sole discretion, enforce the Patent Rights against such infringement in the Licensed Field. Recoveries from any moneys recovered, with such enforcement in the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant to any cost-sharing arrangement, the balance of any recovery Licensed Field shall be distributedfirst to reimburse the enforcing party (whether the MBI or the HPI) for the cost and expense related to such enforcement action, and the remainder shall be paid to the enforcing party; provided that if HPI is the enforcing party, HPI agrees to pay MBI any amount that MBI is required to pay UTMDACC under Section 7.1 of the UTMDACC Agreements, which is either: (a) with respect the applicable royalty payment due to the portion (percentageUTMDACC detailed in Section 4.1(d) of the total UTMDACC Agreements for any monetary recovery that is reasonably related to infringement in the Company Field, (i) to Company in an amount equal to its lost profits or a reasonable royalty on the for sales of Licensed Product lost due to the infringer infringement and fifty percent (whichever measure 50%) of related punitive damages received by HPI or its Affiliate; or (b) fifty percent (50%) of reasonable royalties awarded and received by HPI or its Affiliate, and fifty percent (50%) of related punitive damages received by HPI or its Affiliate in any monetary recovery in which the award is for reasonable royalties. As between the Parties, MBI shall have been applied) with respect the sole and exclusive right, at its sole discretion, to enforce any Patent Rights against infringement by third parties outside the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Licensed Field, and (ii) then shall bear all related expenses and retain all related recoveries, which right may be granted by MBI to Gen-Probe in its Affiliate or sublicensee. 9.2 In any suit or dispute involving an amount equal infringer, the Parties agree to cooperate fully with each other. At the royalties request and other fees due Gen-Probe based on such sales (if a sales expense of the infringer measure of damages is applied) or a reasonable approximation of party bringing suit, the royalties that Company would have owed other Party will permit access during regular business hours, to Gen-Probe on sales of Products that Company lost to all relevant personnel, records, papers, information, samples, specimens, and the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balance, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties like in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe and 80% to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Fieldits possession.

Infringement by Third Parties. Gen-Probe will Triangle shall have the right, but not the obligation, first right to enforce or have enforced at its own no expense to bring Licensor any Patent Rights to the extent exclusively licensed hereunder against infringement by third parties and control an action to enforce the Gen-Probe Patents, whether the infringement has occurred in the Company Field or not; provided, however, that Company will shall be entitled to join and participate retain recovery from such enforcement. Upon Triangle's undertaking to pay all expenditures reasonably incurred by Licensor, each Licensor shall reasonably cooperate in any such action at enforcement and, as necessary, join as a party therein. After first deducting its own expense costs and expenses incurred in respect of enforcement (to the extent the alleged infringement would have not otherwise awarded by settlement or a material adverse effect in the Company Fieldcourt), provided that Gen-Probe will maintain control of and direction of such action. If Gen-Probe does not bring an action against the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred in the Company Field, Company may request that Gen-Probe bring and control such an action with respect to infringement in the Company Field, which request Triangle shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe pay Licensor Royalties (calculated per Section 3.3) on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction of such action. Each party shall promptly notify the other par1y if it learns of any infringement matter concerning the Gen-Probe Patents. The expense of the parties in bringing suit will first be reimbursed out of any moneys recovered, with the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant to any cost-sharing arrangement, the balance of any monetary recovery shall be distributed: (a) with respect to the portion (percentage) of the total extent such monetary recovery that is reasonably related held to infringement in the Company Field, (i) to Company in an amount equal to its lost profits or be a reasonable royalty or damages in lieu thereof. In the event that Triangle does not file suit against or commence settlement negotiations with a substantial infringer of Licensor's Patent Rights within [*] after receipt of a written demand from Licensor that Triangle bring suit, then the parties will consult with one another in an effort to determine whether a reasonably prudent licensee would institute litigation to enforce the patent in question in light of all relevant business and economic factors (including, but not limited to, the projected cost of such litigation, the likelihood of success on the sales merits, the probable amount of any damage award, the infringer (whichever measure prospects for satisfaction of damages shall any judgment against the alleged infringer, the possibility of counterclaims against Triangle and Licensor, the diversion of Triangle's human and economic resources, the impact of any possible adverse outcome on Triangle and the effect any publicity might have been applied) with respect to on Triangle's and Licensor's respective reputations and goodwill). If the portion (percentage) of parties cannot agree, the total recovery determination will be made by a mutually and reasonably acceptable third party consultant. If after such process, it is determined that is reasonably related to infringement in the Company Field, a suit should be filed and (ii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) Triangle does not file suit or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balance, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe and 80% to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field.commence settlement * CONFIDENTIAL TREATMENT REQUESTED

Infringement by Third Parties. Gen-Probe Each party shall inform the other party of any infringement or suspected infringement of the Patents or infringement (including any misappropriation) of the Technology of which such party becomes aware within ten (10) business days after such party becomes aware of any such infringement or suspected infringement. For a period of thirty (30) days after receipt by AccuMed of, or AccuMed's sending of, such notice of infringement, AccuMed will have the right, but not exclusive right to commence an action and otherwise assert rights in the obligation, Patents and the Technology against any such infringers or suspected infringers and will have the right at its own expense sole discretion to bring and control an action to enforce make any settlement or compromise with the Genthird-Probe Patents, whether the infringement has occurred in the Company Field or not; provided, however, that Company will be entitled to join and participate in any such action at its own expense to the extent the alleged infringement would have a material adverse effect in the Company Fieldparty infringer, provided that Gen-Probe will maintain control the terms of and direction any such settlement may not modify the exclusivity of such actionthe licenses granted to LICENSEE in this Agreement or otherwise diminish LICENSEE'S economic rights or expectations hereunder. If Gen-Probe does not bring an action AccuMed shall elect to prosecute any such infringer, LICENSEE shall take such steps as are reasonably requested by AccuMed to enable it to protect its rights under the Patents and under the Technology against the alleged infringer within 60 days after written notice from Company and the alleged any such infringement has occurred in the Company Field, Company may request that Gen-Probe bring and control such an action with respect to infringement in the Company Field, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction of such actionor suspected infringement. Each party shall promptly notify the other par1y if it learns of any infringement matter concerning the Gen-Probe Patents. The expense of the parties in bringing suit will first be reimbursed out of any moneys recovered, with the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant to any cost-sharing arrangement, the balance of any recovery shall be distributed: (a) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, If (i) AccuMed fails to Company in commence an amount equal to action or otherwise assert its lost profits or a reasonable royalty on the sales of the infringer (whichever measure of damages shall have been applied) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement rights in the Company Field, Patents and the Technology against any such infringers or suspected infringers within such thirty (30) day period and (ii) LICENSEE provides AccuMed with the opinion of patent counsel mutually acceptable to the parties stating that there is a likelihood of infringement or misappropriation by such suspected infringers (an "Infringement Opinion"), then LICENSEE may bring an action or proceeding (including any alternative dispute resolution process) to Genenjoin the infringement, to recover damages for it, or both and AccuMed grants LICENSEE the right to use AccuMed's name in connection therewith and will have the right at LICENSEE'S sole discretion to make any settlement or compromise with the third-Probe party infringer, in accordance with and subject to the provisions set forth below. If an Infringement Opinion is delivered to AccuMed and, accordingly, LICENSEE is permitted to bring such action, then LICENSEE may elect to deduct a percentage of its out-of-pocket costs and expenses (but otherwise will bear all other costs and expenses), which includes without limitation court costs and attorneys' fees for such action up to a maximum deduction of fifty percent (the "Fee Percentage") and shall notify AccuMed of such election and the applicable Fee Percentage when the Infringement Opinion is delivered by LICENSEE to AccuMed. LICENSEE shall be permitted to deduct from future Minimum Guaranteed Payments and Required Royalties, as they become due under this Agreement, that portion of its out-of-pocket expenses in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales Fee Percentage thereof. All proceeds of the infringer measure of damages is applied) any action or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balance, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe and 80% to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field.proceeding

Infringement by Third Parties. Gen-Probe (a) A Party will promptly notify the other Party in writing of any alleged or threatened infringement within the Field (or Restricted Field as the case may be) of any patent included within the Patent Rights of which such Party becomes aware. Insofar as CELLCURE enjoys an exclusive licence in the relevant jurisdiction, CELLCURE will have the right, but not right to bring and control any action or proceeding with respect to such alleged or threatened infringement within the obligation, Field (or Restricted Field as the case may be) ("Proceeding") at its own expense and represented by legal advisers of its own choice. (b) In the event CELLCURE brings a Proceeding, ESI will co-operate fully with CELLCURE including, if required, undertaking any action or agreeing to bring and control an action be joined as a party to enforce such Proceeding, the Gen-Probe Patentscosts of which will be at CELLCURE'S expense, whether provided that: (i) ESI will retain the infringement has occurred in right to be represented by legal advisers of its own choice at ESl'S expense; (ii) CELLCURE will keep ESI fully informed of the Company Field or not; providedstatus of such Proceeding on a weekly basis or, howeveras reasonably requested by ESI, that Company from time to time. (c) In the event CELLCURE commences a Proceeding, ESI will be entitled to join ten and participate three quarters of a percent (10.75%) of any recovery realised as a result of such Proceeding after reimbursement of any and all litigation expenses and reasonable costs of CELLCURE, (d) In the event ESI notifies CELLCURE in writing of any such action infringement referred to in Clause 4.1(a) and CELLCURE fails to commence a Proceeding within ninety days of being notified by ESI, ESI may commence a Proceeding at its own expense and may be represented by legal advisers of its own choice. In the event ESI brings a Proceeding, CELLCURE will provide all reasonable assistance to the extent the alleged infringement would have a material adverse effect ESI in the Company Field, provided that Gen-Probe will maintain control of relation to such Proceeding and direction of such action. If Gen-Probe does not bring an action against the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred in the Company Field, Company may request that Gen-Probe bring and control such an action with respect to infringement in the Company Field, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction of such action. Each party shall promptly notify the other par1y if it learns of any infringement matter concerning the Gen-Probe Patents. The expense of the parties in bringing suit will first be reimbursed out of any moneys recovered, with the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant to any cost-sharing arrangement, the balance of any recovery shall be distributed: (a) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, (i) to Company in an amount equal to its lost profits or a reasonable royalty on the sales of the infringer (whichever measure of damages shall have been applied) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement terms as set out in the Company Field, and (ii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and Clause 4.1 (b) 100% as if CELLCURE were ESI and ESI were CELLCURE. (e) In the event ESI brings a Proceeding pursuant to Gen-Probe with respect Clause 4.1(d), ESI will be entitled to the portion (percentage) any recovery realised as a result of the total recovery that is reasonably related to infringement outside the Company Field. The balance, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe and 80% to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Fieldsuch Proceeding.

Infringement by Third Parties. GenEither party shall promptly notify the other party of any infringement of any LICENSED PATENTS, misappropriation of a trade secret or declaration of an interference proceeding relating to LICENSED PATENTS or LICENSED KNOW-Probe will HOW, and shall provide the other party with all available evidence relating thereto. K-A and ORTHO shall then consult with each other as to the best manner in which to proceed. K-A shall have the right, but not the obligation, to bring, defend and maintain any appropriate suit or action. If K-A requests ORTHO to join K-A in such suit or action and ORTHO agrees to do so, ORTHO shall execute all papers and perform such other acts as may be reasonably required and may, at its own expense option, be represented by counsel of its choice. K-A shall pay ORTHO its reasonable expenses (including its attorney's fees) in connection with any such suit or action. Should K-A lack standing to bring any such action, then K-A may cause ORTHO to do so upon first undertaking to indemnify and control an hold ORTHO harmless (to the extent permissible by law) from all consequent liability and to promptly reimburse all reasonable expense (including attorney fees) stemming therefrom. In the event K-A fails to take action with respect to enforce such matters within a reasonable period, not more than six (6) months, following receipt of such notice and evidence, ORTHO shall have the Gen-Probe Patentsright, whether but not the infringement has occurred in the Company Field obligation, to bring, defend and maintain any appropriatesuit or not; provided, however, that Company will be entitled action. If ORTHO finds it necessary to join K-A in such suit or action, K-A shall execute all papers and participate perform such other acts as may be reasonably required and may, at its option, be represented by counsel of its choice. ORTHO shall pay to K-A the reasonable expenses of K-A (including its attorney's fees) in connection with any such suit or action. Absent an agreement between the parties to jointly bring any action or suit hereunder and share the expenses thereof, any amount recovered in any such action at its own expense to the extent the alleged infringement would have a material adverse effect in the Company Field, provided that Gen-Probe will maintain control of and direction of such action. If Gen-Probe does not bring an action against the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred in the Company Field, Company may request that Gen-Probe bring and control such an action with respect to infringement in the Company Field, which request or suit shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction of such action. Each party shall promptly notify the other par1y if it learns of any infringement matter concerning the Gen-Probe Patents. The expense of the parties in bringing suit will first be reimbursed out of any moneys recovered, with retained by the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant to any cost-sharing arrangement, the balance of any recovery shall be distributed: (a) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, (i) to Company in an amount equal to bearing its lost profits or a reasonable royalty on the sales of the infringer (whichever measure of damages shall have been applied) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, and (ii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balance, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe and 80% to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Fieldexpenses thereof.

Infringement by Third Parties. Gen-Probe will have the right, but not the obligation7.1 LICENSEE, at its own expense to bring and control an action expense, shall use commercially reasonable efforts to enforce the Gen-Probe Patents, whether the any patent exclusively licensed hereunder against substantial and continuing infringement has occurred in the Company Field or not; providedby third parties and is entitled to retain recovery from such enforcement. It is understood, however, that Company will such obligation shall not be entitled deemed to join and participate in any require LICENSEE to take such action at its own expense to the extent the alleged infringement would have a material adverse effect in the Company Field, provided that Gen-Probe will maintain control of and direction of such action. If Gen-Probe does not bring an action against the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred in the Company Field, Company may request that Gen-Probe bring and control such an action actions with respect to each such infringement, and LICENSEE may take into account reasonable strategic and other considerations in determining which infringers to take action against, as well as when and whether to do so. After reimbursement of LICENSEE’s reasonable legal costs and expenses related to such recovery, LICENSEE agrees to pay a percentage of the monetary recovery it receives to UTMDACC, such percentage to be equal to the percentage that would apply under Section 4.1 if such monetary recovery was considered SUBLICENSE INCOME under this AGREEMENT; provided that for any monetary recovery that is for sales of LICENSED PRODUCTS lost to the infringement, in no event shall LICENSEE be responsible to pay UTMDACC amounts in excess of the royalty detailed in Section 4.l(d) for such lost sales. LICENSEE must notify UTMDACC in writing of any material potential infringement within thirty (30) calendar days of knowledge thereof. If within twelve (12) months of a request by UTMDACC to file suit, LICENSEE does not file suit against a third party that UTMDACC and LICENSEE mutually agree is a substantial infringer and that enforcement would be in the Company Fieldbest interest of the licensed products (such agreement not to be unreasonably withheld), which request or where there is a good-faith dispute on the matter, it is so determined pursuant to the dispute-resolution procedures of Section 15.6 below, then BOARD or UTMDACC may, at its sole discretion, enforce any patent licensed hereunder against the infringing activities of such infringer, with UTMDACC retaining [*] of all recoveries from such enforcement after reimbursement of UTMDACC’s reasonable legal costs and expenses related to such recovery; provided LICENSEE shall explain always have the rationale and support for taking option to jointly participate in such an enforcement action, which Gen-Probe will consider including, at LICENSEE’s discretion, by jointly bringing the action with UTMDACC or joining as a party plaintiff. If LICENSEE joins such suit and shares in good faith subject to agreement between Company the legal costs and Gen-Probe on an appropriate sharing expenses of costs of bringing the enforcement, then any recovery from such action, enforcement shall be shared by the parties [*]; provided that Gen-Probe will maintain control of and direction of such action. Each party in no event shall promptly notify the other par1y if it learns UTMDACC retain more than [*] of any infringement matter concerning recovery after reimbursement of legal costs. 7.2 In any suit or dispute involving an infringer, the Gen-Probe Patentsparties agree to cooperate fully with each other. The At the request and expense of the parties party bringing suit, the other party will permit reasonable access during regular business hours, to all relevant personnel, records, papers, information, samples, specimens, and the like in bringing suit will first be reimbursed out of any moneys recoveredits possession, with and where LICENSEE is the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant to any cost-sharing arrangementsuit, the balance of any recovery shall be distributed: (a) with respect BOARD and UTMDACC will, subject to the portion (percentage) statutory authority of the total recovery that is reasonably related to infringement in the Company Field, (i) to Company in an amount equal to its lost profits or a reasonable royalty on the sales Attorney General of the infringer (whichever measure State of damages shall have been applied) with respect Texas, join the suit as a party plaintiff and sign all documents necessary to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, and (ii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balance, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe and 80% to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Fielddo so.

Infringement by Third Parties. Gen-Probe will have (a) If CKD becomes aware of any infringement, actual or suspected, or any other unauthorized use of the rightLicensed Patent rights by Third Party infringers in the Territory within the Field of Use (a “Field Infringement”), but not it shall promptly give notice to Cara in writing specifying the obligationparticulars of the unauthorized use. Cara, at its own expense sole discretion, shall have the right to bring and take whatever action it deems advisable in connection with the Field Infringement. Cara shall notify CKD of whatever action is taken, or if none is taken. If Cara decides to take action of any kind against the Field Infringement, Cara shall have sole control an action to enforce of the Gen-Probe Patents, whether the infringement has occurred in the Company Field or not; provided, however, that Company will be entitled to join and participate in conduct of any such action at its own action. Cara shall bear the entire cost and expense to associated with the extent the alleged infringement would have conduct of any such action, and any recovery or compensation that may be awarded as a material adverse effect in the Company Field, provided that Gen-Probe will maintain control of and direction result of such action, including but not limited to any settlement that may be reached, shall belong to Cara. If Gen-Probe does not bring an action against the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred CKD, if requested by Cara, shall cooperate fully with Cara, at Cara’s expense, in the Company Fieldconduct of any such action. Such cooperation shall not entitle CKD to any claim for recovery or compensation in respect thereof, Company may request that Gen-Probe bring and control all such an action recovery or compensation shall belong solely to Cara. In the event CKD has any commercial damages and losses directly from Field Infringement by Third Party, CKD shall keep Cara informed of them and Cara shall agree to cooperate with CKD for a remedy and defense. CKD shall not take any actions with respect to infringement any such Field Infringement that materially negatively affects Cara’s rights or interests in the Company Field, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction of such actionLicensed Patent rights. Each party shall promptly notify the other par1y if it learns of any infringement matter concerning the Gen-Probe PatentsCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. The expense of the parties in bringing suit will first be reimbursed out of any moneys recovered, with the party bringing the suit being reimbursed firstTHE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. Except as otherwise agreed pursuant to any cost-sharing arrangement, the balance of any recovery shall be distributed: (a) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, (i) to Company in an amount equal to its lost profits or a reasonable royalty on the sales of the infringer (whichever measure of damages shall have been applied) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, and (ii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company FieldOMISSIONS ARE DESIGNATED [*]. The balance, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% to Gen-Probe and 80% to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company FieldA COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

Infringement by Third Parties. Gen-Probe will have the right, but not the obligation, at its own expense to bring and control an action to enforce the Gen-Probe Patents, whether the infringement has occurred in the Company Field or not; provided, however, that Company will be entitled to join and participate in any such action at its own expense to the extent the alleged infringement would have a material adverse effect in the Company Field, provided that Gen-Probe will maintain control of and direction of such action. If Gen-Probe does not bring an action against the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred in the Company Field, Company may request that Gen-Probe bring and control such an action with respect to infringement in the Company Field, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction of such action. 8.2.1 Each party Party shall promptly notify the other par1y if it learns Party in writing of any alleged or threatened infringement matter concerning of any Licensed Patent in the GenField or Product Patent of which it becomes aware (a “Competitive Infringement”). In any such instance Licensor shall have the sole right, at its option, to bring such alleged or threatened Competitive Infringement to an end and Licensee shall provide reasonable assistance to Licensor in connection therewith, at Licensee’s cost and expense (the costs and expenses of the Licensor in connection therewith, including the investigation and analysis thereof, to be reimbursed to Licensor by Licensee on an as-Probe Patentsincurred basis). The Licensee shall be entitled to be represented by independent counsel of its own choice and at its own expense. Licensor shall keep Licensee and/or its designated legal counsel reasonably informed as to the progress in connection with the foregoing Competitive Infringement. If Licensor fails to initiate a suit or take other appropriate action that it has the right to initiate or take pursuant to this Section 8.2 with respect to a Competitive Infringement in the Territory within ninety (90) days after becoming aware of the basis for such suit or action, then Licensee may, in its discretion, provide Licensor with written notice requiring Licensor to initiate a suit or take other appropriate action with respect to such Competitive Infringement in the Territory, such suit or other appropriation action to be taken at the sole cost and expense of Licensee. Notwithstanding anything to the parties contrary contained in bringing suit will first be reimbursed out this Agreement, Licensor shall have the unilateral right to enter into any settlement without the prior written consent of any moneys recovered, Licensee with the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant respect to any cost-sharing arrangement, Competitive Infringement suit or action to the balance of any recovery shall be distributed: (a) extent such settlement would not adversely affect the Licensee’s rights or benefits with respect to the portion (percentage) Development or Commercialization of the total Product, in which case, Licensee’s prior written consent shall be required, which consent shall not be unreasonably withheld. 8.2.2 If Licensor recovers monetary damages in any enforcement action pursuant to Section 8.2.1, such recovery that is reasonably related to infringement in the Company Field, shall be allocated (i) to Company in an amount equal to its lost profits or a reasonable royalty on the sales of the infringer (whichever measure of damages shall have been applied) with respect first to the portion reimbursement of any unreimbursed expenses incurred by Licensor in such enforcement action, (percentageii) of the total recovery that is reasonably related second to infringement any expenses incurred by Licensee in the Company Fieldsuch enforcement action, and (iiiii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balance, if any, any remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field amounts shall be divided allocated to Licensor and Licensee in such proportion so as follows: (1) 20% to Gen-Probe and 80% to Company with respect to compensate each Party for their respective provable losses resulting from the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company FieldCompetitive Infringement.

Infringement by Third Parties. Gen-Probe will have the right, but not the obligation, at its own expense to bring and control an action to enforce the Gen-Probe Patents, whether the infringement has occurred in the Company Field or not; provided, however, that Company will be entitled to join and participate in any such action at its own expense to the extent the alleged infringement would have a material adverse effect in the Company Field, provided that Gen-Probe will maintain control of and direction of such action. If Gen-Probe does not bring an action against the alleged infringer within 60 days after written notice from Company and the alleged infringement has occurred in the Company Field, Company may request that Gen-Probe bring and control such an action with respect to infringement in the Company Field, which request shall explain the rationale and support for taking such an action, which Gen-Probe will consider in good faith subject to agreement between Company and Gen-Probe on an appropriate sharing of costs of bringing such action, provided that Gen-Probe will maintain control of and direction of such action. Each party shall promptly notify the other par1y party if it learns of any infringement matter concerning the Gen-Probe Patents. The expense of the parties in bringing suit will first be reimbursed out of any moneys recovered, with the party bringing the suit being reimbursed first. Except as otherwise agreed pursuant to any cost-sharing arrangement, the balance of any recovery shall be distributed: (a) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, (i) to Company in an amount equal to its lost profits or a reasonable royalty on the sales of the infringer (whichever measure of damages shall have been applied) with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field, and (ii) then to Gen-Probe in an amount equal to the royalties and other fees due Gen-Probe based on such sales (if a sales of the infringer measure of damages is applied) or a reasonable approximation of the royalties that Company would have owed to Gen-Probe on sales of Products that Company lost to the infringer (if a lost profits measure of damages is applied); and (b) 100% [*] to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field. The balance, if any, remaining after Company has been compensated for lost profits or lost sales within the Company Field and Gen.-Probe has been compensated for lost royalties in respect of infringement within the Company Field and Gen-Probe has recovered all direct damages in respect of infringement outside the Company Field shall be divided as follows: (1) 20% [*] to Gen-Probe and 80% [*] to Company with respect to the portion (percentage) of the total recovery that is reasonably related to infringement in the Company Field; and (2) 100% [*] to Gen-Probe with respect to the portion (percentage) of the total recovery that is reasonably related to infringement outside the Company Field.