Common use of Infringement by Third Party Clause in Contracts

Infringement by Third Party. (a) BMS shall notify ENZON of any infringement by a third party of any PATENT RIGHTS in the FIELD that BMS is aware of, and shall provide ENZON with the available evidence, if any, of such infringement. (b) ENZON shall have the exclusive right and sole discretion during the term of this Agreement to stop such infringement including bringing suit or other proceeding against the infringer in its own name and BMS shall be kept informed at all times of all such actions taken by ENZON. If ENZON requests, BMS may, at BMS' discretion, assist ENZON as a party to the lawsuit or other proceeding at ENZON's expense; however, ENZON shall retain control of the prosecution of such suit or proceeding, as the case may be. (c) ENZON shall bear all its costs incurred in connection with such lawsuit or other proceeding, and consequently shall be entitled to collect and retain for its own account such damages and profits as may be accrued as a result of such lawsuit or other proceeding; provided, however, that, if (and only if) such damages and profits have been determined on the basis of such infringement, then the total amount of such damages and profits, net of ENZON's lost royalties hereunder, litigation costs and expenses, shall be shared with BMS as follows: ENZON shall be entitled to [*] of such net amount; and BMS shall be entitled to the remainder. (d) If third party infringement in the FIELD in a particular country continues for more than six months after BMS' notice to ENZON under this Section 7.3, then any royalty obligation incurred by BMS under Section 4.3 hereof shall be reduced by [*] until such third party infringement terminates. For purposes of the above sentence, sales by a third party of infringing product in such country shall not be considered to be "third party infringement" unless such sales, together with sales of infringing product by any other third parties, equal or exceed [*] of BMS sales of PRODUCT in such country. (e) Nothing in this Agreement shall be construed as obligating ENZON, or giving BMS the right, to proceed against a third party infringer.

Infringement by Third Party. (a) BMS A. Either party shall notify ENZON the other party of any suspected infringement by a third party of any PATENT RIGHTS the Patent in the FIELD that BMS is aware ofField and the Territory, and each party shall provide ENZON with inform the available evidence, if any, other of any evidence of such infringementinfringement(s). (b) ENZON B. Eurobiotech shall have the exclusive first right to institute suit for infringement(s) in the Field and sole discretion during the term of Territory so long as this Agreement remains exclusive. At Eurobiotech's expense, SRI will reasonably assist Eurobiotech in such prosecutions if so requested by Eurobiotech, and will lend its name to stop such infringement including bringing suit actions if requested by Eurobiotech or other proceeding against required by law. Notwithstanding the infringer foregoing SRI shall have the right to participate and be represented in any such prosecutions by its own name counsel at its own expense. C. If SRI notifies Eurobiotech of its desire to institute suit for infringement(s) and BMS shall be kept informed at all times Eurobiotech fails to exercise its first right to do so within ninety (90) days of all such actions taken by ENZON. If ENZON requestsnotice, BMS then SRI may, at BMS' discretionits own expense, bring suit or take any other appropriate action. At SRI's expense, Eurobiotech will reasonably assist ENZON as SRI in such prosecutions if so requested by SRI, and will lend its name to such actions if requested by SRI or required by law. Notwithstanding the foregoing Eurobiotech shall have the right to participate and be represented in any such prosecutions by its own counsel at its own expense. D. No settlement of any suspected infringement(s), whether or not a suit has been instituted, may be entered into without the express written consent of Eurobiotech and SRI. E. Any amounts recovered pursuant to an infringement suit, settlement or otherwise shall be retained by and be the property of the party to bringing the lawsuit action. In the event Eurobiotech receives any monies or other proceeding at ENZON's expense; however, ENZON shall retain control of the prosecution of such suit or proceeding, as the case may be. (c) ENZON shall bear all its costs incurred in connection with such lawsuit or other proceeding, and consequently shall be entitled to collect and retain for its own account such damages and profits as may be accrued consideration from a third party as a result of Eurobiotech's exercise of its rights under Article 13 of this Agreement, Eurobiotech shall first be reimbursed for expenses incurred and paid for, SRI shall then receive a portion of the remainder in accordance with the applicable provision(s) of Article 6 as applied to all such lawsuit monies or other proceeding; providedconsiderations whether such monies or other considerations are denoted as "royalties," "damages," "releases" from prior acts, however, that, if (or any other designation. F. If Eurobiotech fails to exercise its first right to institute suit for infringement(s) and only if) such damages and profits have been determined on the basis of such infringementSRI elects not to institute suit, then SRI shall provide Eurobiotech with at least sixty (60) days notice of its intention to terminate Eurobiotech's licenses granted in those jurisdictions affected by the total amount of such damages and profits, net of ENZON's lost royalties hereunder, litigation costs and expenses, shall be shared with BMS as follows: ENZON shall be entitled infringement or to [*] of such net amount; and BMS shall be entitled to the remainder. (d) If third party infringement in the FIELD in a particular country continues for more than six months after BMS' notice to ENZON under this Section 7.3, then any royalty obligation incurred by BMS under Section 4.3 hereof shall be reduced by [*] until such third party infringement terminates. For purposes of the above sentence, sales by a third party of infringing product in such country shall not be considered to be "third party infringement" unless such sales, together with sales of infringing product by take any other third parties, equal or exceed [*] of BMS sales of PRODUCT action it sees fit in such countryits best judgement. (e) Nothing in this Agreement shall be construed as obligating ENZON, or giving BMS the right, to proceed against a third party infringer.

Infringement by Third Party. ACCENTIA will promptly inform MAYO of any suspected infringement of any Patent Right, and MAYO and ACCENTIA will have the right to institute an action for Infringement of the Patent Rights consistent with the following; (a) BMS shall notify ENZON of any infringement by a third party of any PATENT RIGHTS If MAYO and ACCENTIA agree to institute suit jointly, then the suit will be brought in the FIELD names of both Parties. ACCENTIA will exercise control over such action, provided, however, that BMS is aware ofMAYO may, If it so desires, be represented by counsel of its own selection, and shall provide ENZON with the available evidence, if any, of such infringement.at its own expense. Accentia / Mayo Execution Copy 10 February 2004 (b) ENZON shall have In the exclusive right and sole discretion during the term absence of this Agreement an agreement to stop such infringement including bringing institute a suit or other proceeding against the infringer in its own name and BMS shall be kept informed at all times of all such actions taken by ENZON. If ENZON requestsjointly, BMS mayMAYO may institute suit and, at BMS' discretionits option, assist ENZON join ACCENTIA as a party to plaintiff. MAYO will bear the lawsuit or other proceeding at ENZON's expense; however, ENZON shall retain control of the prosecution entire cost of such suit or proceedinglitigation, as the case may beIncluding attorneys’ fees. ACCENTIA will cooperate reasonably with MAYO, except financially, in such litigation. (c) ENZON In the absence of an agreement to institute a suit jointly, and if MAYO determines not to institute a suit, as provided in paragraph. (b) of this Section 9.01, then ACCENTIA may institute suit upon MAYO’s approval. In such case, ACCENTIA will bear the entire cost of such litigation, including attorneys’ fees and shall bear all be permitted to credit one-third of such expenses to Earned Royalties on a yearly basis. MAYO will cooperate reasonably with ACCENTIA, except financially, in such litigation and ACCENTIA will indemnify MAYO and its costs incurred Affiliates, including the trustees, officers, agents, and employees of the foregoing, in connection with such lawsuit respect to any damages or other proceeding, and consequently shall be entitled costs of any type arising out of or relating to collect and retain for its own account such damages and profits as may be accrued as a result of such lawsuit or other proceeding; provided, however, that, if (and only if) such damages and profits have been determined on the basis of such infringement, then the total amount of such damages and profits, net of ENZON's lost royalties hereunder, litigation costs and expenses, shall be shared with BMS as follows: ENZON shall be entitled to [*] of such net amount; and BMS shall be entitled to the remainderenforcement. (d) If third party infringement in the FIELD in ACCENTIA will not settle or enter into a particular country continues for more than six months after BMS' notice to ENZON under this Section 7.3, then any royalty obligation incurred by BMS under Section 4.3 hereof shall be reduced by [*] until such third party infringement terminates. For purposes voluntary disposition of the above sentence, sales by a third party of infringing product in such country shall not be considered to be "third party infringement" unless such sales, together with sales of infringing product by any other third parties, equal or exceed [*] of BMS sales of PRODUCT in such countryaction without MAYO’s prior written consent. (e) Nothing in this Agreement shall be construed as obligating ENZON, or giving BMS the right, to proceed against a third party infringer.

Infringement by Third Party. The COMPANY shall promptly inform MAYO of any suspected infringement of any licensed patent rights by a third party, and MAYO and the COMPANY shall have the right to institute an action for infringement of the licensed patent rights against such third party consistent with the following: (a) BMS If MAYO and the COMPANY agree to institute suit jointly, then the suit shall notify ENZON of any infringement by a third party of any PATENT RIGHTS be brought in the FIELD that BMS is aware ofnames of both parties. The costs of litigation, including attorneys' fees, shall be borne equally, and shall provide ENZON with the available evidencerecoveries, if any, whether by judgment, award, decree, arbitration, or settlement, shall be shared equally. The COMPANY shall exercise control over such action, provided, however, that MAYO may, if it so desires, be represented by counsel of such infringementits own selection, and at its own expense. (b) ENZON In the absence of an agreement to institute a suit jointly, MAYO may institute suit and, at its option, join the COMPANY as a plaintiff. MAYO shall have bear the exclusive right entire cost of such litigation, including attorneys' fees, and sole discretion during the term of this Agreement to stop such infringement including bringing suit or other proceeding against the infringer in its own name and BMS shall be kept informed at all times entitled to retain the entire amount of all any recovery by way of judgment, award, decree, arbitration, or settlement. The COMPANY shall cooperate reasonably with MAYO, except financially, in such actions taken by ENZON. If ENZON requests, BMS may, at BMS' discretion, assist ENZON as a party to the lawsuit or other proceeding at ENZON's expense; however, ENZON shall retain control of the prosecution of such suit or proceeding, as the case may belitigation. (c) ENZON In the absence of an agreement to institute a suit jointly, and if MAYO determines not to institute a suit, as provided in paragraph (b) of this Section 9.02, then the COMPANY may institute suit and, at its option, join MAYO as a plaintiff. The COMPANY shall bear all its costs incurred in connection with the entire cost of such lawsuit or other proceedinglitigation, including attorneys' fees, and consequently shall be entitled to collect and retain for its own account such damages and profits as may be accrued as a result of such lawsuit or other proceeding; provided, however, that, if (and only if) such damages and profits have been determined on the basis of such infringement, then the total entire amount of any recovery by way of judgment, award, decree, arbitration, or settlement. MAYO shall cooperate reasonably with the COMPANY, except financially, in such damages and profits, net of ENZON's lost royalties hereunder, litigation costs and expenses, shall be shared with BMS as follows: ENZON shall be entitled to [*] of such net amount; and BMS shall be entitled to the remainderlitigation. (d) If third either party infringement in the FIELD in institutes a particular country continues for more than six months after BMS' notice to ENZON suit under this Section 7.3and then decides to abandon the suit, then it shall first provide timely written notice to the other party of its intention to abandon the suit, and the other party, if it wishes, may continue prosecution of such suit, provided, however, that the sharing of expenses and of any royalty obligation incurred by BMS under Section 4.3 hereof recovery in such suit shall be reduced agreed-upon separately by [*] until such third party infringement terminates. For purposes of the above sentence, sales by a third party of infringing product in such country shall not be considered to be "third party infringement" unless such sales, together with sales of infringing product by any other third parties, equal or exceed [*] of BMS sales of PRODUCT in such country. (e) Nothing in this Agreement shall be construed as obligating ENZON, or giving BMS the right, to proceed against a third party infringer.

Infringement by Third Party. (a) BMS 13.1 Either party shall notify ENZON the other party of any suspected infringement by a third party of any PATENT RIGHTS a Patent in the FIELD that BMS is aware ofField and the Territory, and each party shall provide ENZON with inform the available evidence, if any, other of any evidence of such infringementinfringement(s). (b) ENZON 13.2 Bioenvision shall have the exclusive first right to institute suit for infringement(s) in the Field and sole discretion during Territory. At Bioenvision's expense, Ilex will reasonably assist Bioenvision in such prosecutions if so requested by Bioenvision, and will lend its name to such actions if requested by Bioenvision or required by law to prosecute, defend or maintain any such action. Notwithstanding the term of this Agreement foregoing, Ilex shall have the right to stop participate and be represented in any such infringement including bringing suit or other proceeding against the infringer in prosecutions by its own name counsel at its own expense. 13.3 If Ilex notifies Bioenvision of its desire to institute suit for infringement(s) and BMS shall be kept informed at all times Bioenvision fails to exercise its first right to do so within ninety (90) days of all such actions taken by ENZON. If ENZON requestsnotice, BMS then Ilex may, at BMS' discretionits own expense, bring suit or take any other appropriate action. At Ilex's expense, Bioenvision will reasonably assist ENZON as Ilex in such prosecutions if so requested by Ilex, and will lend its name to such actions if requested by Ilex or required by law to prosecute, defend or maintain any such action. Notwithstanding the foregoing, Bioenvision shall have the right to participate and be represented in any such prosecutions by its own counsel at its own expense. 13.4 No settlement of any suspected infringement(s), whether or not a suit has been instituted, may be entered into without the express written consent of Bioenvision and Ilex. 13.5 Any amounts recovered pursuant to an infringement suit, settlement or otherwise shall be retained by and be the property of the party to bringing the lawsuit action. In the event Bioenvision receives any monies or other proceeding at ENZON's expense; however, ENZON shall retain control of the prosecution of such suit or proceeding, as the case may be. (c) ENZON shall bear all its costs incurred in connection with such lawsuit or other proceeding, and consequently shall be entitled to collect and retain for its own account such damages and profits as may be accrued consideration from a third party as a result of Bioenvision's exercise of its rights under Article 13 of this Agreement, Bioenvision shall first be reimbursed for expenses incurred and paid for, Ilex shall then receive a portion of the remainder in accordance with the applicable provision(s) of Article 4 as applied to all such lawsuit monies or other proceeding; providedconsiderations whether such monies or other considerations are denoted as "royalties," "damages," "releases" from prior acts, however, that, if (and only if) such damages and profits have been determined on the basis of such infringement, then the total amount of such damages and profits, net of ENZON's lost royalties hereunder, litigation costs and expenses, shall be shared with BMS as follows: ENZON shall be entitled to [*] of such net amount; and BMS shall be entitled to the remainder. (d) If third party infringement in the FIELD in a particular country continues for more than six months after BMS' notice to ENZON under this Section 7.3, then any royalty obligation incurred by BMS under Section 4.3 hereof shall be reduced by [*] until such third party infringement terminates. For purposes of the above sentence, sales by a third party of infringing product in such country shall not be considered to be "third party infringement" unless such sales, together with sales of infringing product by or any other third parties, equal or exceed [*] of BMS sales of PRODUCT in such countrydesignation. (e) Nothing in this Agreement shall be construed as obligating ENZON, or giving BMS the right, to proceed against a third party infringer.

Infringement by Third Party. (a) BMS Either party shall notify ENZON the other party of any suspected infringement by a third party of any PATENT RIGHTS the Patent in the FIELD that BMS is aware ofField and the Territory, and each party shall provide ENZON with inform the available evidence, if any, other of any evidence of such infringement. (b) ENZON infringement(s). Biomed shall have the exclusive first right to institute suit for infringement(s) in the Field and sole discretion during the term of Territory so long as this Agreement remains exclusive. At Biomed's expense, EuroLife will reasonably assist Biomed in such prosecutions if so requested by Biomed, and will lend his name to stop such infringement including bringing suit or other proceeding against the infringer in its own name and BMS shall be kept informed at all times of all such actions taken if requested by ENZONBiomed or required by law. Notwithstanding the foregoing EuroLife shall have the right to participate and be represented in any such prosecutions by his own counsel at his own expense. If ENZON requestsEuroLife notifies Biomed of his desire to institute suit for infringement(s) and Biomed fails to exercise its first right to do so within ninety (90) days of such notice, BMS then EuroLife may, at BMS' discretionhis own expense, bring suit or take any other appropriate action. At Biomed's expense, Biomed will reasonably assist ENZON as EuroLife in such prosecutions if so requested by EuroLife, and will lend its name to such actions if requested by EuroLife or required by law. Notwithstanding the foregoing EuroLife shall have the right to participate and be represented in any such prosecutions by his own counsel at his own expense. No settlement of any suspected infringement(s), whether or not a suit has been instituted, may be entered into without the express written consent of EuroLife and Biomed. Any amounts recovered pursuant to an infringement suit, settlement or otherwise shall be retained by and be the property of the party to bringing the lawsuit action. In the event Biomed receives any monies or other proceeding at ENZON's expense; however, ENZON shall retain control of the prosecution of such suit or proceeding, as the case may be. (c) ENZON shall bear all its costs incurred in connection with such lawsuit or other proceeding, and consequently shall be entitled to collect and retain for its own account such damages and profits as may be accrued consideration from a third party as a result of Biomed's exercise of its rights under this Agreement, Biomed shall first be reimbursed for expenses incurred and paid for, EuroLife shall then receive a portion of the remainder in accordance with the applicable provision(s) of Article 6 as applied to all such lawsuit monies or other proceeding; providedconsiderations whether such monies or other considerations are denoted as "royalties," "damages," "releases" from prior acts, however, that, if (or any other designation. If Biomed fails to exercise its first right to institute suit for infringement(s) and only if) such damages and profits have been determined on the basis of such infringementEuroLife elects not to institute suit, then EuroLife shall provide Biomed with at least sixty (60) days notice of its intention to terminate Biomed's licenses granted in those jurisdictions affected by the total amount of such damages and profits, net of ENZON's lost royalties hereunder, litigation costs and expenses, shall be shared with BMS as follows: ENZON shall be entitled infringement or to [*] of such net amount; and BMS shall be entitled to the remainder. (d) If third party infringement in the FIELD in a particular country continues for more than six months after BMS' notice to ENZON under this Section 7.3, then any royalty obligation incurred by BMS under Section 4.3 hereof shall be reduced by [*] until such third party infringement terminates. For purposes of the above sentence, sales by a third party of infringing product in such country shall not be considered to be "third party infringement" unless such sales, together with sales of infringing product by take any other third parties, equal or exceed [*] of BMS sales of PRODUCT action it sees fit in such countryits best judgement. (e) Nothing in this Agreement shall be construed as obligating ENZON, or giving BMS the right, to proceed against a third party infringer.

Infringement by Third Party. NILE and MAYO will promptly inform the other Party in writing of any alleged infringement of any Patent and provide the other Party with available evidence of such infringement, and MAYO and NILE will have the right to institute an action for infringement of the Patents consistent with the following: (a) BMS shall notify ENZON of any infringement by a third party of any PATENT RIGHTS If MAYO and NILE agree to institute suit jointly, then the suit will be brought in the FIELD names of both parties. NILE will exercise control over such action, provided, however, that BMS is aware ofMAYO may, if it so desires, be represented by counsel of its own selection, and shall provide ENZON with the available evidence, if any, of such infringementat its own expense. (b) ENZON shall have In the exclusive right and sole discretion during the term absence of this Agreement an agreement to stop such infringement including bringing institute a suit or other proceeding against the infringer in its own name and BMS shall be kept informed at all times of all such actions taken by ENZON. If ENZON requestsjointly, BMS mayMAYO may institute suit and, at BMS' discretionits option, assist ENZON join NILE as a party to plaintiff. MAYO will bear the lawsuit entire cost of such litigation, including attorneys' fees. NILE will cooperate reasonably with MAYO, except financially, in such litigation. MAYO will not settle or other proceeding at ENZON's expense; however, ENZON shall retain control enter into a voluntary disposition of the prosecution of such suit or proceeding, as the case may beaction without NILE's prior written consent. (c) ENZON shall bear all its costs incurred in connection with such lawsuit or other proceedingIn the absence of an agreement to institute a suit jointly, and consequently shall be entitled if MAYO determines not to collect and retain for institute a suit, as provided in paragraph (b) of this Section 9.02, then NILE may institute suit and, at its own account such damages and profits as may be accrued as option, join MAYO if MAYO is a result necessary party to the litigation. NILE will bear the entire cost of such lawsuit litigation, including attorneys' fees. MAYO will cooperate reasonably with NILE, except financially, in such litigation NILE will not settle or other proceeding; provided, however, that, if (and only if) such damages and profits have been determined on enter into a voluntary disposition of the basis of such infringement, then the total amount of such damages and profits, net of ENZONaction without MAYO's lost royalties hereunder, litigation costs and expenses, shall be shared with BMS as follows: ENZON shall be entitled to [*] of such net amount; and BMS shall be entitled to the remainderprior written consent. (d) If third party infringement Absent an agreement to the contrary, any costs under (a) above will be borne equally by the Parties and any recoveries will be shared in proportion to the FIELD economic damages suffered by each Party. Otherwise, each Party will bear its own expenses and any recovery will be applied as follows: (i) first, to reimburse the Party bringing the action; (ii) second, to reimburse the expenses of the other Party in a particular country continues for more than six months after BMS' notice to ENZON under this Section 7.3connection with such action; and (iii) third, then any royalty obligation incurred by BMS under Section 4.3 hereof shall be reduced by [***] until such third party infringement terminates. For purposes of the above sentence, sales by a third party of infringing product in such country shall not be considered to be "third party infringement" unless such sales, together with sales of infringing product by any other third parties, equal or exceed percent ([***]%) to MAYO and [***] of BMS sales of PRODUCT in such countrypercent ([***]%) to NILE. (e) Nothing If either Party institutes a suit under this Section 9.02 and then decides to abandon the suit, it will first provide timely written notice to the other Party of its intention to abandon the suit, and the other Party, if it wishes, may continue prosecution of such suit, provided, however, that the sharing of expenses and of any recovery in this Agreement shall such suit will be construed as obligating ENZON, or giving BMS agreed-upon separately by the right, to proceed against a third party infringerParties.

Infringement by Third Party. NILE and MAYO will promptly inform the other Party in writing of any alleged infringement of any MAYO Patent and provide the other Party with available evidence of such infringement, and MAYO and NILE will have the right to institute an action for infringement of the MAYO Patents consistent with the following: Amended and Restated License Agreement page 27 of 35 Nile Therapeutics// Mayo Execution Copy 14 November 2013 (a) BMS shall notify ENZON of any infringement by a third party of any PATENT RIGHTS If MAYO and NILE agree to institute suit jointly, then the suit will be brought in the FIELD names of both parties. NILE will exercise control over such action, provided, however, that BMS is aware ofMAYO may, if it so desires, be represented by counsel of its own selection, and shall provide ENZON with the available evidence, if any, of such infringementat its own expense. (b) ENZON shall have In the exclusive right and sole discretion during the term absence of this Agreement an agreement to stop such infringement including bringing institute a suit or other proceeding against the infringer in its own name and BMS shall be kept informed at all times of all such actions taken by ENZON. If ENZON requestsjointly, BMS mayNILE may institute suit and, at BMS' discretionits option, assist ENZON join MAYO as a party to plaintiff. In that event, NILE will bear the lawsuit entire cost of such litigation, including attorneys' fees. MAYO will cooperate reasonably with NILE, except financially, in such litigation. NILE will not settle or other proceeding at ENZON's expense; however, ENZON shall retain control enter into a voluntary disposition of the prosecution of such suit or proceedingaction without MAYO’s prior written consent, as the case may bewhich consent shall not be unreasonably withheld. (c) ENZON shall bear all its costs incurred in connection with such lawsuit or other proceedingIn the absence of an agreement to institute a suit jointly, and consequently shall be entitled if NILE determines not to collect and retain for institute a suit, as provided in paragraph (b) of this Section 9.02, then MAYO may institute suit and, at its own account such damages and profits as may be accrued option, join NILE as a result plaintiff in the litigation. MAYO will bear the entire cost of such lawsuit litigation, including attorneys' fees. NILE will cooperate reasonably with MAYO, except financially, in such litigation. MAYO will not settle or other proceeding; providedenter into a voluntary disposition of the action without NILE’s prior written consent, however, that, if (and only if) such damages and profits have been determined on the basis of such infringement, then the total amount of such damages and profits, net of ENZON's lost royalties hereunder, litigation costs and expenses, which consent shall not be shared with BMS as follows: ENZON shall be entitled to [*] of such net amount; and BMS shall be entitled to the remainderunreasonably withheld. (d) If third party infringement in Absent an agreement to the FIELD in a particular country continues for more than six months after BMS' notice contrary, any recovery from any such action shall (i) first be applied to ENZON under this Section 7.3, then any royalty obligation incurred by BMS under Section 4.3 hereof shall be reduced by [*] until such third party infringement terminates. For purposes reimburse the costs and expenses of the above sentenceParty bringing the action; (ii) second, sales by a third party to reimburse the costs and expenses of infringing product the other Party in such country shall not be considered to be "third party infringement" unless such sales, together connection with sales of infringing product by any other third parties, equal or exceed the action; and (c) […*] of BMS sales of PRODUCT in such country**…]. (e) Nothing If either Party institutes a suit under this Section 9.02 and then decides to abandon the suit, it will first provide timely written notice to the other Party of its intention to abandon the suit, and the other Party, if it wishes, may continue prosecution of such suit, provided, however, that the sharing of expenses and the treatment of any recovery in this Agreement shall such suit will be construed as obligating ENZON, or giving BMS agreed-upon separately by the right, to proceed against a third party infringerParties.

Infringement by Third Party. NILE and MAYO will promptly inform the other Party in writing of any alleged infringement of any Patent and provide the other Party with available evidence of such infringement, and MAYO and NILE will have the right to institute an action for infringement of the Patents consistent with the following: (a) BMS shall notify ENZON of any infringement by a third party of any PATENT RIGHTS If MAYO and NILE agree to institute suit jointly, then the suit will be brought in the FIELD names of both Parties. NILE will exercise control over such action, provided, however, that BMS is aware ofMAYO may, if it so desires, be represented by counsel of its own selection, and shall provide ENZON with the available evidence, if any, of such infringementat its own expense. (b) ENZON shall have In the exclusive right and sole discretion during the term absence of this Agreement an agreement to stop such infringement including bringing institute a suit or other proceeding against the infringer in its own name and BMS shall be kept informed at all times of all such actions taken by ENZON. If ENZON requestsjointly, BMS mayMAYO may institute suit and, at BMS' discretionits option, assist ENZON join NILE as a party to plaintiff. MAYO will bear the lawsuit entire cost of such litigation, including attorneys’ fees. NILE will cooperate reasonably with MAYO, except financially, in such litigation. MAYO will not settle or other proceeding at ENZON's expense; however, ENZON shall retain control enter into a voluntary disposition of the prosecution of such suit or proceeding, as the case may beaction without NILE’s prior written consent. (c) ENZON shall bear all its costs incurred in connection with such lawsuit or other proceedingIn the absence of an agreement to institute a suit jointly, and consequently shall be entitled if MAYO determines not to collect and retain for institute a suit, as provided in paragraph (b) of this Section 9.02, then NILE may institute suit and, at its own account such damages and profits as may be accrued as option, join MAYO if MAYO is a result necessary party to the litigation. NILE will bear the entire cost of such lawsuit litigation, including attorneys’ fees. MAYO will cooperate reasonably with NILE, except financially, in such litigation. NILE will not settle or other proceeding; provided, however, that, if (and only if) such damages and profits have been determined on enter into a voluntary disposition of the basis of such infringement, then the total amount of such damages and profits, net of ENZON's lost royalties hereunder, litigation costs and expenses, shall be shared with BMS as follows: ENZON shall be entitled to [*] of such net amount; and BMS shall be entitled to the remainderaction without MAYO’s prior written consent. (d) If third party infringement Absent an agreement to the contrary, any costs under (a) above will be borne equally by the Parties and any recoveries will be shared in proportion to the FIELD economic damages suffered by each Party. Otherwise, each Party will bear its own expenses and any recovery will be applied as follows: (i) first, to reimburse the Party bringing the action; (ii) second, to reimburse the expenses of the other Party in a particular country continues for more than six months after BMS' notice to ENZON under this Section 7.3connection with such action; and (iii) third, then any royalty obligation incurred by BMS under Section 4.3 hereof shall be reduced by [***] until such third party infringement terminates. For purposes of the above sentence, sales by a third party of infringing product in such country shall not be considered to be "third party infringement" unless such sales, together with sales of infringing product by any other third parties, equal or exceed ([***]%) to MAYO and [***] of BMS sales of PRODUCT in such country([***]%) to NILE. (e) Nothing If either Party institutes a suit under this Section 9.02 and then decides to abandon the suit, it will first provide timely written notice to the other Party of its intention to abandon the suit, and the other Party, if it wishes, may continue prosecution of such suit, provided, however, that the sharing of expenses and of any recovery in this Agreement shall such suit will be construed as obligating ENZON, or giving BMS agreed-upon separately by the right, to proceed against a third party infringerParties.

Infringement by Third Party. The COMPANY and MAYO will promptly inform the other party of any suspected infringement of any Patent Right, and MAYO and the COMPANY will have the right to institute an action for infringement of the Patent Rights consistent with the following: (a) BMS shall notify ENZON of any infringement by a third party of any PATENT RIGHTS If MAYO and the COMPANY agree to institute suit jointly, then the suit will be brought in the FIELD names of both parties. The COMPANY will exercise control over such action, provided, however, that BMS is aware ofMAYO may, if it so desires, be represented by counsel of its own selection, and shall provide ENZON with the available evidence, if any, of such infringementat its own expense. (b) ENZON shall have In the exclusive right and sole discretion during the term absence of this Agreement an agreement to stop such infringement including bringing institute a suit or other proceeding against the infringer in its own name and BMS shall be kept informed at all times of all such actions taken by ENZON. If ENZON requestsjointly, BMS mayMAYO may institute suit and, at BMS' discretionits option, assist ENZON as join the COMPANY, if COMPANY is a necessary party to the lawsuit or other proceeding at ENZON's expense; litigation, as a plaintiff provided, however, ENZON shall retain control that COMPANY may, if it so desires, be represented by counsel of its own selection, and at its own expense. MAYO will bear the entire cost of such litigation, including attorneys’ fees. The COMPANY will cooperate reasonably with MAYO, except financially, in such litigation. MAYO will not settle or enter into a voluntary disposition of the prosecution of such suit or proceedingaction without COMPANY’s prior written consent, as the case may bewhich consent shall not be unreasonably withheld. (c) ENZON shall bear all its costs incurred in connection with such lawsuit or other proceedingIn the absence of an agreement to institute a suit jointly, and consequently shall be entitled if MAYO determines not to collect and retain for its own account such damages and profits institute a suit, as may be accrued as a result provided in paragraph (b) of such lawsuit or other proceeding; provided, however, that, if (and only if) such damages and profits have been determined on the basis of such infringementthis Section 9.01, then the total amount COMPANY may institute suit and, at its option, join MAYO, if MAYO is a necessary party to the litigation, as a plaintiff. The COMPANY will bear the entire cost of such damages and profitslitigation, net including attorneys’ fees. The earned royalty will be reduced by up to fifty percent (50%) until such time as COMPANY has recovered the entire costs associated with such litigation, including attorneys’ fees. MAYO will cooperate reasonably with the COMPANY, except financially, in such litigation. COMPANY will not settle or enter into a voluntary disposition of ENZON's lost royalties hereunderthe action without MAYO’s prior written consent, litigation costs and expenses, which consent shall not be shared with BMS as follows: ENZON shall be entitled to [*] of such net amount; and BMS shall be entitled to the remainderunreasonably withheld. (d) If third Absent an agreement to the contrary, any costs under (a) above will be borne equally by the parties. Otherwise, each party infringement in the FIELD in a particular country continues for more than six months after BMS' notice to ENZON under this Section 7.3, then will bear its own expenses and any royalty obligation incurred by BMS under Section 4.3 hereof shall recovery will be reduced by [*] until such third party infringement terminates. For purposes of the above sentence, sales by a third party of infringing product in such country shall not be considered to be "third party infringement" unless such sales, together with sales of infringing product by any other third parties, equal or exceed [*] of BMS sales of PRODUCT in such country. (e) Nothing in this Agreement shall be construed applied as obligating ENZON, or giving BMS the right, to proceed against a third party infringer.follows:

Infringement by Third Party. (a) BMS shall notify ENZON of any infringement by In the event that either party determines that a third party is making, using or selling a product that may "Substantially Infringe," as defined below, the NVE MRAM Technology, such party will promptly notify the other party in writing. 1. NVE may, at its sole option and expense and within ninety (90) days from the receipt of any PATENT RIGHTS in notice of a Substantial Infringement (the FIELD that BMS is aware of"Infringement Notice Period"), either (i) bring suit against such alleged infringer and shall provide ENZON with diligently pursue such suit or (ii) cause the available evidence, if any, cessation of such infringement.. All recoveries in such suit shall belong to NVE. NVE-Cypress License Agreement CONFIDENTIAL April 12, 2002 2. Notwithstanding the ability of NVE to respond to Substantial Infringement as described immediately above, NVE grants to Cypress the right, upon notice to NVE during the Infringement Notice Period (b) ENZON including any mutually agreed extensions), to enforce the Patent Rights on behalf of NVE as if such enforcement were performed by NVE itself, subject to any previous allocation of such right to enforce the Patent Rights that NVE may have previously granted. In any action taken to enforce such Rights, Cypress shall have the exclusive right further rights to (i) seek and sole discretion during obtain injunctive relief and/or (ii) subject to mutual agreement by and among Cypress, NVE and the term sublicensee (with each of this Agreement Cypress and NVE being obligated to stop negotiate in good faith regarding such infringement including bringing suit or other proceeding against the infringer in its own name and BMS shall be kept informed at all times of all agreement), grant sublicenses for a royalty, such actions taken by ENZON. If ENZON requests, BMS may, at BMS' discretion, assist ENZON as a party to the lawsuit or other proceeding at ENZON's expense; however, ENZON shall retain control sublicenses being of the prosecution same or lesser scope than that of the license granted to Cypress herein. NVE and Cypress expressly understand that the existence of any limitations on Cypress's rights to enforce the Patent Rights arising out of NVE's previous license agreements does not constitute breach of NVE's representations and warranties under this License and Joint Ownership Agreement or the Stock Purchase Agreement. In any such suit or proceedingenforcement by Cypress, as the case may be. (c) ENZON shall bear all Cypress will be solely responsible for its costs incurred in connection with such lawsuit or attorney's fees and other proceedingcosts, and consequently shall will be entitled to collect and retain all recoveries from whatever enforcement actions it takes, without any obligation to account to NVE for its own account any such damages and profits as may be accrued as a result of such lawsuit or other proceeding; provided, however, that, if (and only if) such damages and profits have been determined on the basis of such infringement, then the total amount of such damages and profits, net of ENZON's lost royalties hereunder, litigation costs and expenses, shall be shared with BMS as follows: ENZON shall be entitled to [*] of such net amount; and BMS shall be entitled to the remainderrecoveries. (d) If third party infringement in the FIELD in a particular country continues for more than six months after BMS' notice to ENZON under this Section 7.3, then any royalty obligation incurred by BMS under Section 4.3 hereof shall be reduced by [*] until such third party infringement terminates. For purposes of the above sentence, sales by a third party of infringing product in such country shall not be considered to be "third party infringement" unless such sales, together with sales of infringing product by any other third parties, equal or exceed [*] of BMS sales of PRODUCT in such country. (e) Nothing in this Agreement shall be construed as obligating ENZON, or giving BMS the right, to proceed against a third party infringer.

Infringement by Third Party. (a) BMS A. Either party shall notify ENZON the other party of any suspected infringement by a third party of any PATENT RIGHTS the Patent in the FIELD that BMS is aware ofField and the Territory, and each party shall provide ENZON with inform the available evidence, if any, other of any evidence of such infringementinfringement(s). (b) ENZON B. Bioenvision shall have the exclusive first right to institute suit for infringement(s) in the Field and sole discretion during the term of Territory so long as this Agreement remains exclusive. At Bioenvision's expense, Stegram will reasonably assist Bioenvision in such prosecutions if so requested by Bioenvision, and will lend its name to stop such infringement including bringing suit actions if requested by Bioenvision or other proceeding against required by law. Notwithstanding the infringer foregoing Stegram shall have the right to participate and be represented in any such prosecutions by its own name counsel at its own expense. C. If Stegram notifies Bioenvision of its desire to institute suit for infringement(s) and BMS shall be kept informed at all times Bioenvision fails to exercise its first right to do so within ninety (90) days of all such actions taken by ENZON. If ENZON requestsnotice, BMS then Stegram may, at BMS' discretionits own expense, bring suit or take any other appropriate action. At Stegram's expense, Bioenvision will reasonably assist ENZON as Stegram in such prosecutions if so requested by Stegram, and will lend its name to such actions if requested by Stegram or required by law. Notwithstanding the foregoing Bioenvision shall have the right to participate and be represented in any such prosecutions by its own counsel at its own expense. D. No settlement of any suspected infringement(s), whether or not a suit has been instituted, may be entered into without the express written consent of Bioenvision and Stegram. E. Any amounts recovered pursuant to an infringement suit, settlement or otherwise shall be retained by and be the property of the party to bringing the lawsuit action. In the event Bioenvision receives any monies or other proceeding at ENZON's expense; however, ENZON shall retain control of the prosecution of such suit or proceeding, as the case may be. (c) ENZON shall bear all its costs incurred in connection with such lawsuit or other proceeding, and consequently shall be entitled to collect and retain for its own account such damages and profits as may be accrued consideration from a third party as a result of Bioenvision's exercise of its rights under this Agreement, Bioenvision shall first be reimbursed for expenses incurred and paid for, Stegram shall then receive a portion of the remainder in accordance with the applicable provision(s) of Article 6 as applied to all such lawsuit monies or other proceeding; providedconsiderations whether such monies or other considerations are denoted as "royalties," "damages," "releases" from prior acts, however, that, if (or any other designation. F. If Bioenvision fails to exercise its first right to institute suit for infringement(s) and only if) such damages and profits have been determined on the basis of such infringementStegram elects not to institute suit, then Stegram shall provide Bioenvision with at least sixty (60) days notice of its intention to terminate Bioenvision's licenses granted in those jurisdictions affected by the total amount of such damages and profits, net of ENZON's lost royalties hereunder, litigation costs and expenses, shall be shared with BMS as follows: ENZON shall be entitled infringement or to [*] of such net amount; and BMS shall be entitled to the remainder. (d) If third party infringement in the FIELD in a particular country continues for more than six months after BMS' notice to ENZON under this Section 7.3, then any royalty obligation incurred by BMS under Section 4.3 hereof shall be reduced by [*] until such third party infringement terminates. For purposes of the above sentence, sales by a third party of infringing product in such country shall not be considered to be "third party infringement" unless such sales, together with sales of infringing product by take any other third parties, equal or exceed [*] of BMS sales of PRODUCT action it sees fit in such countryits best judgement. (e) Nothing in this Agreement shall be construed as obligating ENZON, or giving BMS the right, to proceed against a third party infringer.

Infringement by Third Party. The COMPANY shall promptly inform MAYO of any suspected infringement of any licensed patent rights by a third party, and MAYO and the COMPANY shall have the right to institute an action for infringement of the licensed patent rights against such third party consistent with the following: (a) BMS If MAYO and the COMPANY agree to institute suit jointly, then the suit shall notify ENZON of any infringement by a third party of any PATENT RIGHTS be brought in the FIELD that BMS is aware ofnames of both parties. The costs of litigation, including attorneys' fees, shall be borne equally, and shall provide ENZON with the available evidencerecoveries, if any, whether by judgment, award, decree, arbitration, or settlement, shall be shared equally. The COMPANY shall exercise control over such action, provided, however, that MAYO may, if it so desires, be represented by counsel of such infringementits own selection, and at its own expense. (b) ENZON In the absence of an agreement to institute a suit jointly, the COMPANY may institute suit and, at its option, join MAYO as a plaintiff. The COMPANY shall have bear the exclusive right entire cost of such litigation, including attorneys' fees, and sole discretion during the term of this Agreement to stop such infringement including bringing suit or other proceeding against the infringer in its own name and BMS shall be kept informed at entitled to retain from the amount of any recovery by way of judgment, award, decree, arbitration, or settlement all times of all costs and expenses associated with the enforcement action and the remainder shall be considered Net Sales. MAYO shall cooperate reasonably with the COMPANY, except financially, in such actions taken by ENZON. If ENZON requests, BMS may, at BMS' discretion, assist ENZON as a party to the lawsuit or other proceeding at ENZON's expense; however, ENZON shall retain control of the prosecution of such suit or proceeding, as the case may belitigation. (c) ENZON In the absence of an agreement to institute a suit jointly, and if the COMPANY determines not to institute a suit, as provided in paragraph (b) of this Section 9.02, then MAYO may institute suit and, at its option, join the COMPANY as a plaintiff. MAYO shall bear all its costs incurred in connection with the entire cost of such lawsuit or other proceedinglitigation, including attorneys' fees, and consequently shall be entitled to collect and retain for its own account such damages and profits as may be accrued as a result of such lawsuit or other proceeding; provided, however, that, if (and only if) such damages and profits have been determined on the basis of such infringement, then the total entire amount of any recovery by way of judgment, award, decree, arbitration, or settlement. The COMPANY shall cooperate reasonably with MAYO, except financially, in such damages and profits, net of ENZON's lost royalties hereunder, litigation costs and expenses, shall be shared with BMS as follows: ENZON shall be entitled to [*] of such net amount; and BMS shall be entitled to the remainderlitigation. (d) If third either party infringement in the FIELD in institutes a particular country continues for more than six months after BMS' notice to ENZON suit under this Section 7.3and then decides to abandon the suit, then it shall first provide timely written notice to the other party of its intention to abandon the suit, and the other party, if it wishes, may continue prosecution of such suit, provided, however, that the sharing of expenses and of any royalty obligation incurred by BMS under Section 4.3 hereof recovery in such suit shall be reduced agreed-upon separately by [*] until such third party infringement terminates. For purposes of the above sentence, sales by a third party of infringing product in such country shall not be considered to be "third party infringement" unless such sales, together with sales of infringing product by any other third parties, equal or exceed [*] of BMS sales of PRODUCT in such country. (e) Nothing in this Agreement shall be construed as obligating ENZON, or giving BMS the right, to proceed against a third party infringer.