Common use of PATENT PROSECUTION AND LITIGATION Clause in Contracts

PATENT PROSECUTION AND LITIGATION. 13.01 CPG shall be responsible for the filing, prosecution and maintenance of PATENTS at its own expense and shall diligently file, prosecute and maintain all PATENTS. CPG shall disclose to SB the complete texts of all patents and patent applications filed and/or controlled by CPG which relate to ADJUVANTS contained in PRODUCT and/or COMBINATIONS as well as all information received concerning the institution or possible institution of any interference, opposition, re-examination, reissue, revocation, nullification or any official proceeding involving a PATENT relevant to the licenses granted hereunder anywhere in the TERRITORY. SB shall have the right to review all such pending applications and other proceedings and make recommendations to CPG concerning them and their conduct and CPG shall adapt such modifications and/or proceedings to take any such reasonable and timely SB comment and recommendation into account. CPG agrees to keep SB promptly and fully informed of the course of patent prosecution or other proceedings including the provision to SB of copies of substantive communications, search reports and THIRD PARTY observations submitted to or received from patent offices throughout the TERRITORY. CPG shall provide such patent consultation to SB at no cost to SB. SB shall hold all information disclosed to it under this section as confidential subject to the provisions of Sections 12.04 and 12.05. 13.02 CPG shall not abandon or otherwise cause or allow to be forfeited any PATENT relevant to the licenses granted hereunder without providing prior written notice to SB to allow SB to request assumption of prosecution or maintenance of any such PATENT, either alone or in conjunction with CPG’s other CO-EXCLUSIVE licensee. In addition the parties shall mutually agree before authorizing any amendment to any PATENT that would irrevocably reduce, abandon or materially modify the claims of such PATENT. SB’s rights pursuant to Sections 13.01 and 13.02 shall be exercised in a timely manner. 13.03 In the event of the institution of any suit by a THIRD PARTY against CPG, SB or their AFFILIATES or SB’s sublicensees or distributors for patent infringement involving the manufacture, use, sale, distribution or marketing of PRODUCT and/or COMBINATION by SB, its AFFILIATES or sublicensees or distributors. Anywhere in the TERRITORY, the party sued shall promptly notify the other party in writing. SB shall have the right but not the obligation to defend such suit at its own expense. CPG and SB shall assist one another and cooperate in any such litigation at the other’s request with the requesting party reimbursing all out of pocket expenses of the other party. 13.04 In the event that CPG or SB becomes aware of actual or threatened infringement of a PATENT anywhere in the TERRITORY that relates to the FIELD, that party shall promptly notify the other party in writing. CPG and/or its licensors of PATENTS shall have the first right but not the obligation to bring, at its own expense, an infringement action against any THIRD PARTY If CPG and/or its licensors of PATENTS has not commenced a particular infringement action within ninety (90) days of notification of any such infringement, CPG shall at SB’s request, attempt to coordinate, with licensors of PATENTS and/or CO-EXCLUSIVE licensees of CPG, efforts to allow SB and such licensors and/or licensees to bring such infringement action at SB’s own expense. The party (parties) conducting such action shall have full control over their conduct, including settlement thereof provided, however, that no settlement shall be entered into without the agreement of CPG and SB. In any event, CPG and SB shall assist one another and cooperate in any such litigation at the other’s request and expense. 13.05 CPG and SB shall recover their respective actual out-of-pocket expenses, or equitable proportions thereof, associated with any patent litigation or settlement thereof from any recovery made by any party. Any excess amount shall be shared between SB and CPG, with the party conducting a particular infringement action receiving [*******] percent ([**]%) and the other party receiving [******] percent ([**]%) of such excess. Notwithstanding the foregoing in the event that other sublicensees of CPG participate in any such suit, any recovery shall be shared as mutually agreed by all parties. 13.06 The parties shall keep one another informed of the status of and of their respective activities regarding any patent litigation or settlement thereof concerning PRODUCT and/or COMBINATION. 13.07 If required and upon request of SB, CPG shall cooperate with SB to act as CPG’s agent for the purpose of making any application for any extensions of the term of PATENTS (including SPC’s) (in the United States of America as permitted under Title 35 of the United States Code) and shall provide reasonable assistance therefor to SB, at CPG’s expense. CPG shall not take any such action with respect to a SB proprietary PRODUCT, unless so requested by SB. The parties will discuss in good faith the applicable royalty rate of SPC’s, if and when such SPC’s have been obtained, based on the degree of market exclusivity provided. 13.08 CPG, on behalf of itself, and its successors hereby waives any and all actions and causes of action, claims and demands whatsoever in law or equity of any kind against SB and its AFFILIATES based upon the exercise by SB of its rights under this Section 13, except in the case of gross negligence and/or willful misconduct by SB. 13.09 SB recognises that bringing an infringement action under Section 13.04 may result in a counterclaim of invalidity of PATENTS and/or claims in PATENTS. In defending such counterclaim(s), SB agrees to take into reasonable consideration the legitimate rights and interests of CPG and/or any other licensee(s) of CPG.

PATENT PROSECUTION AND LITIGATION. 13.01 CPG 5.1 Biogen shall be solely responsible for the filing, prosecution and maintenance of PATENTS at its own expense and shall diligently file, prosecute and maintain all the PATENTS. CPG Tanox shall disclose to SB bear the complete texts cost of all patents matters relating to the maintenance and patent applications filed and/or controlled by CPG which relate prosecution of the PATENTS, such costs to ADJUVANTS contained in PRODUCT and/or COMBINATIONS as well as be creditable against any payments due Biogen. Biogen shall promptly notify Tanox of all information received concerning by Biogen relating to the institution or possible institution prosecution and maintenance of PATENTS, including, without limitation, any interference, opposition, re-examination, reissuelapse, revocation, nullification surrender, invalidation or abandonment of any official proceeding involving a PATENT relevant of the PATENTS. Biogen may, in its sole discretion, decide to refrain from, or cease to prosecute, or maintain any of the licenses granted hereunder anywhere in the TERRITORYPATENTS. SB In such an event, Biogen shall have the right to review all such pending applications and other proceedings and make recommendations to CPG concerning them and their conduct and CPG shall adapt such modifications and/or proceedings to take any such reasonable and timely SB comment and recommendation into account. CPG agrees to keep SB notify Tanox promptly and fully informed of the course of patent prosecution or other proceedings including the provision in sufficient time to SB of copies of substantive communications, search reports and THIRD PARTY observations submitted permit Tanox at its sole discretion to or received from patent offices throughout the TERRITORY. CPG shall provide continue such patent consultation to SB at no cost to SB. SB shall hold all information disclosed to it under this section as confidential subject to the provisions of Sections 12.04 and 12.05. 13.02 CPG shall not abandon or otherwise cause or allow to be forfeited any PATENT relevant to the licenses granted hereunder without providing prior written notice to SB to allow SB to request assumption of prosecution or maintenance of any at Tanox's expense. If Tanox elects to continue such PATENTprosecution or maintenance, either alone Biogen shall execute such documents and perform such acts at Biogen's expense as may be reasonably necessary for Tanox to so continue such prosecution or in conjunction with CPG’s other CO-EXCLUSIVE licensee. In addition the parties shall mutually agree before authorizing any amendment to any PATENT that would irrevocably reduce, abandon or materially modify the claims of such PATENT. SB’s rights pursuant to Sections 13.01 and 13.02 shall be exercised in a timely mannermaintenance. 13.03 5.2 In the event of the institution either party or its AFFILIATES, DISTRIBUTORS (or Tanox's SUBLICENSEES) becomes aware of any suit by actual or probable infringement of a THIRD PARTY against CPGPATENT claim licensed to Tanox under this Agreement, SB or their AFFILIATES or SB’s sublicensees or distributors for patent infringement involving the manufacture, use, sale, distribution or marketing of PRODUCT and/or COMBINATION by SB, its AFFILIATES or sublicensees or distributors. Anywhere in the TERRITORY, the party sued it shall promptly notify the other party in writingwriting of the details to the extent known of such infringement. SB shall have the right but not the obligation to defend such suit Tanox, in its sole discretion and at its own sole expense, may take action against any alleged infringer but would be required to take such action in the name of Biogen, if legally permissible, and if Biogen consents thereto. CPG and SB shall assist one another and cooperate in In determining whether to bring an action to enforce any such litigation PATENT, Tanox shall act in a commercially reasonable manner, giving due consideration to the threat represented by the infringement and the potential risk to the PATENT involved. In the event Tanox declines within six (6) months of notification of such infringement to either (i) cause infringement to cease such as, for example, by settlement, or (ii) initiate legal proceedings against the infringer. Biogen may, but is not obligated to (upon notice to Tanox) initiate legal proceedings against the infringer, at Biogen's expense and in its own name. Biogen, under the other’s request with circumstances of the requesting previous sentence, is not obligated to initiate proceedings against more than one infringer at a time. 5.3 In the event either Tanox or Biogen shall initiate or carry out legal proceedings to enforce any of the PATENTS licensed under this Agreement against an alleged infringer, the party reimbursing not initiating or carrying out such proceedings shall fully cooperate with, and supply all out of pocket expenses of reasonable assistance requested by, the other party. 13.04 In the event . Except as described hereunder, any party that CPG institutes any suit to protect or SB becomes aware of actual or threatened infringement of a PATENT anywhere in the TERRITORY that relates to the FIELD, that party shall promptly notify the other party in writing. CPG and/or its licensors of enforce any such PATENTS shall have control of that suit and shall bear the first right but not reasonable expenses incurred by the obligation non-initiating party in providing such assistance and cooperation as is requested pursuant to bring, at its own expense, an infringement action against any THIRD PARTY If CPG and/or its licensors of PATENTS has not commenced a particular infringement action within ninety (90) days of notification of any such infringement, CPG shall at SB’s request, attempt to coordinate, with licensors of PATENTS and/or CO-EXCLUSIVE licensees of CPG, efforts to allow SB and such licensors and/or licensees to bring such infringement action at SB’s own expense. The party (parties) conducting such action shall have full control over their conduct, including settlement thereof provided, however, that no settlement shall be entered into without the agreement of CPG and SB. In any event, CPG and SB shall assist one another and cooperate in any such litigation at the other’s request and expensethis Article. 13.05 CPG 5.4 Any recovery obtained by Tanox as the result of legal proceedings initiated and SB shall recover their respective actual out-of-pocket expenses, or equitable proportions thereof, associated with paid for by Tanox to enforce any patent litigation or settlement thereof from any recovery made by any party. Any excess amount shall be shared between SB and CPG, with the party conducting a particular infringement action receiving [*******] percent ([**]%) and the other party receiving [******] percent ([**]%) of such excess. Notwithstanding the foregoing in the event that other sublicensees of CPG participate in any such suit, any recovery shall be shared as mutually agreed by all parties. 13.06 The parties shall keep one another informed of the status of and of their respective activities regarding any patent litigation or settlement thereof concerning PRODUCT and/or COMBINATION. 13.07 If required and upon request of SB, CPG shall cooperate with SB to act as CPG’s agent for the purpose of making any application for any extensions of the term of PATENTS (including SPC’s) (in the United States of America as permitted under Title 35 of the United States Code) and shall provide reasonable assistance therefor to SB, at CPG’s expense. CPG shall not take any such action with respect to a SB proprietary PRODUCT, unless so requested by SB. The parties will discuss in good faith the applicable royalty rate of SPC’s, if and when such SPC’s have been obtained, based on the degree of market exclusivity provided. 13.08 CPG, on behalf of itself, and its successors hereby waives any and all actions and causes of action, claims and demands whatsoever in law or equity of any kind against SB and its AFFILIATES based upon the exercise by SB of its rights licensed under this Section 13, except in the case of gross negligence and/or willful misconduct by SB. 13.09 SB recognises that bringing an infringement action under Section 13.04 may result in a counterclaim of invalidity of PATENTS and/or claims in PATENTS. In defending such counterclaim(s), SB agrees to take into reasonable consideration the legitimate rights and interests of CPG and/or any other licensee(s) of CPG.Agreement against an

PATENT PROSECUTION AND LITIGATION. 13.01 CPG 4.1 Licensee shall be solely responsible for prosecution, foreign filing and maintenance of the filingPatents in the Licensed Territory and shall pay all costs and expenses associated therewith, subject to recoupment as provided below in this Agreement. Licensor agrees to perform all such further acts and execute all such further applications, documents and instruments relating to the Patents and the prosecution and maintenance thereof, in the Licensed Territory, as Licensee may from time to time reasonably request in order to file and prosecute patent applications and to obtain, perfect, provide evidence for or protect the Patents and Licensee's rights thereunder. In furtherance of PATENTS at the foregoing, Licensor hereby exclusively appoints Licensee to execute such applications, documents and instruments in Licensor's name and on its own expense behalf as its duly authorized agent and attorney-in-fact and, except as provided in Section 4.3, this appointment shall be deemed to be a power coupled with an interest and shall diligently filebe irrevocable during the Term. Licensee shall confirm to Licensor upon Licensor's request, prosecute no less frequently than annually, that Licensee has duly paid all maintenance fees in connection with the Patents. 4.2 All costs and maintain all PATENTS. CPG expenses incurred by Licensee in furtherance of its activities under Section 4.1, including Patent Maintenance Costs and Patent Prosecution Costs, shall disclose to SB the complete texts of all patents and patent applications filed and/or controlled be promptly paid by CPG which relate to ADJUVANTS contained in PRODUCT and/or COMBINATIONS as well as all information received concerning the institution or possible institution of any interferenceLicensee; PROVIDED, opposition, re-examination, reissue, revocation, nullification or any official proceeding involving a PATENT relevant to the licenses granted hereunder anywhere in the TERRITORY. SB that Licensee shall have the right to review all recoup Patent Maintenance Costs in accordance with Section 5.8(a). 4.3 Licensee shall not take any action or omit to take any action that could result in the abandonment of any Patent without providing Licensor at least sixty (60) days' prior written notice and sufficient opportunity to take such pending applications and other proceedings and make recommendations steps as may be necessary to CPG concerning them and their conduct and CPG shall adapt avoid abandonment of any such modifications and/or proceedings Patent. If Licensee purports to take any such reasonable action or omits to take any such action, and timely SB comment Licensor gives Licensee notice of its desire to avoid such abandonment with respect thereto, the appointment of Licensee as Licensor's duly authorized agent and recommendation into account. CPG agrees attorney-in-fact pursuant to keep SB promptly Section 4.1 shall be deemed revoked as to such Patent from and fully informed after the date of the course of patent prosecution or other proceedings including the provision such notice by Licensor to SB of copies of substantive communications, search reports and THIRD PARTY observations submitted to or received from patent offices throughout the TERRITORY. CPG shall provide such patent consultation to SB at no cost to SB. SB shall hold all information disclosed to it under this section as confidential subject to the provisions of Sections 12.04 and 12.05Licensee. 13.02 CPG 4.4 Licensor shall not abandon take any action or otherwise cause or allow to be forfeited omit any PATENT relevant to action which could result in the licenses granted hereunder abandonment of any Patent without providing Licensee at least sixty (60) days' prior written notice and sufficient opportunity to SB take such steps as may be necessary to allow SB to request assumption of prosecution or maintenance avoid abandonment of any such PATENT, either alone or in conjunction with CPG’s other CO-EXCLUSIVE licensee. In addition the parties shall mutually agree before authorizing any amendment to any PATENT that would irrevocably reduce, abandon or materially modify the claims of such PATENT. SB’s rights pursuant to Sections 13.01 and 13.02 shall be exercised in a timely mannerPatent. 13.03 In the event 4.5 If any action alleging invalidity or non-infringement of any of the institution of any suit Patents is brought by a THIRD PARTY third party against CPGLicensor or any Endolaser Inventor, SB or their AFFILIATES or SB’s sublicensees or distributors for patent infringement involving the manufacture, use, sale, distribution or marketing of PRODUCT and/or COMBINATION by SB, its AFFILIATES or sublicensees or distributors. Anywhere in the TERRITORY, the party sued Licensor shall promptly notify the other party in writing. SB provide notice thereof to Licensee and Licensee shall have the right but not to intervene and take over the obligation to defend such suit at its own expense. CPG and SB shall assist one another and cooperate in any such litigation at the other’s request with the requesting party reimbursing all out of pocket expenses sole defense of the other party. 13.04 In the event that CPG or SB becomes aware action and to assert claims on behalf of actual or threatened infringement of a PATENT anywhere in the TERRITORY that relates to the FIELD, that party shall promptly notify the other party in writing. CPG and/or its licensors of PATENTS shall have the first right but not the obligation to bring, Licensor and Licensee at its own expense, an infringement action against any THIRD PARTY If CPG and/or its licensors of PATENTS has not commenced a particular infringement action within ninety (90) days of notification subject to Licensor's obligation to indemnify under Section 7.5. Licensor shall provide Licensee written notice of any such infringementclaim, CPG shall at SB’s request, attempt to coordinate, with licensors proceeding or suit as promptly as practicable but in no event later than ten (10) days after Licensor's receipt of PATENTS and/or CO-EXCLUSIVE licensees notice thereof. (a) Licensor will promptly inform Licensee of CPG, efforts to allow SB and such licensors and/or licensees to bring such any act by a Third Party which it believes is an infringement action at SB’s own expense. The party of a Patent in the Licensed Territory. (partiesb) conducting such action Licensee shall have full control over their conductthe sole right to enforce the Patents in the Licensed Territory and to settle and/or litigate the matter with the Third Party infringer. (c) If Licensee chooses to enforce any Patent against a third party infringer, including settlement thereof providedby commencement and maintenance of an infringement action, howeverLicensee shall pay all Patent Litigation Costs. Any monetary recovery (whether by settlement, that no settlement award or judgment) received by Licensee as a result of an infringement claim or counterclaim by Licensee against a Third Party shall be entered into without the agreement of CPG and SB. In any event, CPG and SB shall assist one another and cooperate in any such litigation at the other’s request and expense. 13.05 CPG and SB shall recover their respective actual out-of-pocket expenses, or equitable proportions thereof, associated with any patent litigation or settlement thereof from any recovery made by any party. Any excess amount shall be shared between SB and CPG, with the party conducting a particular infringement action receiving [*******] percent ([**]%) and the other party receiving [******] percent ([**]%) of such excess. Notwithstanding the foregoing in the event that other sublicensees of CPG participate in any such suit, any recovery shall be shared allocated as mutually agreed by all parties. 13.06 The parties shall keep one another informed of the status of and of their respective activities regarding any patent litigation or settlement thereof concerning PRODUCT and/or COMBINATION. 13.07 If required and upon request of SB, CPG shall cooperate with SB to act as CPG’s agent for the purpose of making any application for any extensions of the term of PATENTS (including SPC’s) (in the United States of America as permitted under Title 35 of the United States Code) and shall provide reasonable assistance therefor to SB, at CPG’s expense. CPG shall not take any such action with respect to a SB proprietary PRODUCT, unless so requested by SB. The parties will discuss in good faith the applicable royalty rate of SPC’s, if and when such SPC’s have been obtained, based on the degree of market exclusivity provided. 13.08 CPG, on behalf of itself, and its successors hereby waives any and all actions and causes of action, claims and demands whatsoever in law or equity of any kind against SB and its AFFILIATES based upon the exercise by SB of its rights under this Section 13, except in the case of gross negligence and/or willful misconduct by SB. 13.09 SB recognises that bringing an infringement action under Section 13.04 may result in a counterclaim of invalidity of PATENTS and/or claims in PATENTS. In defending such counterclaim(s), SB agrees to take into reasonable consideration the legitimate rights and interests of CPG and/or any other licensee(s) of CPG.follows:

PATENT PROSECUTION AND LITIGATION. 13.01 CPG 5.1 The Purchaser shall be solely responsible for patent prosecution, foreign patent filing and patent maintenance of the filingPatents, all of which shall be paid for by the Purchaser. The Seller agrees to do all such further acts and execute all such further applications, documents and instruments relating to the Patents and the prosecution and maintenance thereof as the Purchaser may from time to time require or request in order to make and prosecute Patent applications and to obtain, perfect, provide evidence or protect the Patents and the Purchaser's rights hereunder. In furtherance of PATENTS at the foregoing, the Seller hereby exclusively appoints the Purchaser to execute such applications, documents and instruments in the Seller's name and on its own expense behalf as its duly authorized agent and attorney-in-fact and this appointment shall be deemed to be a power coupled with an interest and shall diligently filebe irrevocable during the Variable Payment Term. Seller's acts in furtherance of the forgoing shall be at Purchaser's sole cost and expense, subject to Seller's indemnification obligation under Section 6.2 to the extent applicable. 5.2 The Seller agrees to cooperate with the Purchaser's efforts to prosecute and maintain all PATENTS. CPG shall disclose the Patents, and to SB provide such assistance as the complete texts Purchaser reasonably requests in furtherance of all patents the Purchaser's efforts to prosecute and patent applications filed and/or controlled maintain such Patents, subject to reimbursement of the Seller's reasonable expenses by CPG which relate to ADJUVANTS contained in PRODUCT and/or COMBINATIONS as well as all information received concerning the institution Purchaser, with a maximum daily rate of $2,000, plus reasonable travel expenses, if any. 5.3 If any action alleging invalidity or possible institution non-infringement of any interferenceof the Patents is brought by a third party against the Seller, oppositionthen the Seller shall provide notice thereof as set forth below, re-examination, reissue, revocation, nullification or any official proceeding involving a PATENT relevant to and the licenses granted hereunder anywhere in the TERRITORY. SB Purchaser shall have the right to review all such pending applications intervene and other proceedings and make recommendations to CPG concerning them and their conduct and CPG shall adapt such modifications and/or proceedings to take any such reasonable and timely SB comment and recommendation into account. CPG agrees to keep SB promptly and fully informed over the sole defense of the course of patent prosecution or other proceedings including the provision to SB of copies of substantive communications, search reports action and THIRD PARTY observations submitted to or received from patent offices throughout the TERRITORY. CPG shall provide such patent consultation to SB at no cost to SB. SB shall hold all information disclosed to it under this section as confidential subject to the provisions of Sections 12.04 and 12.05. 13.02 CPG shall not abandon or otherwise cause or allow to be forfeited any PATENT relevant to the licenses granted hereunder without providing prior written notice to SB to allow SB to request assumption of prosecution or maintenance of any such PATENT, either alone or in conjunction with CPG’s other CO-EXCLUSIVE licensee. In addition the parties shall mutually agree before authorizing any amendment to any PATENT that would irrevocably reduce, abandon or materially modify the assert claims of such PATENT. SB’s rights pursuant to Sections 13.01 and 13.02 shall be exercised in a timely manner. 13.03 In the event on behalf of the institution of any suit by a THIRD PARTY against CPG, SB or their AFFILIATES or SB’s sublicensees or distributors for patent infringement involving Seller and the manufacture, use, sale, distribution or marketing of PRODUCT and/or COMBINATION by SB, its AFFILIATES or sublicensees or distributors. Anywhere in the TERRITORY, the party sued shall promptly notify the other party in writing. SB shall have the right but not the obligation to defend such suit at its own expense. CPG and SB shall assist one another and cooperate in any such litigation at the other’s request with the requesting party reimbursing all out of pocket expenses of the other party. 13.04 In the event that CPG or SB becomes aware of actual or threatened infringement of a PATENT anywhere in the TERRITORY that relates to the FIELD, that party shall promptly notify the other party in writing. CPG and/or its licensors of PATENTS shall have the first right but not the obligation to bring, Purchaser at its own expense, subject to the Seller's indemnification obligation under Section 6.2. The Seller shall provide the Purchaser written notice of any such claim, proceeding or suit as promptly as practicable but in no event later than fifteen (15) days after the Seller's receipt of notice thereof. (a) The Seller shall promptly inform the Purchaser of any act by a third party which it believes is an infringement or similar violation of any of the Purchaser's rights under the Patents after the Seller discovers facts or circumstances which suggests to the Seller that any such infringement may have occurred, be occurring or will occur. (b) The Purchaser will have the sole right to determine whether to pursue its legal remedies against any purported third party infringer, including the right to settle and/or litigate the matter with the third party infringer. (c) If the Purchaser chooses to enforce any Patent against a third party infringer or to otherwise pursue legal recourse against a third party infringer, the Purchaser will be responsible for all costs and expenses in connection with the enforcement proceeding. Any monetary recovery (whether by settlement, award or judgment) as a result of an infringement claim or counterclaim by the Purchaser against a third party shall be allocated as set forth in Section 5.4(d). The Seller consents to being joined to the action as an interested party, and will, at the Purchaser's expense of no more than $2,000 per day plus reasonable travel expenses, cooperate in all respects and, to the extent possible, have the Seller's representatives and employees testify when requested. The Seller shall also maintain during the Variable Payment Term and make available upon the Purchaser's request to the Purchaser and the Purchaser's attorneys and other appropriate representatives all relevant records, papers, information samples, and the like pertaining to the Technology and the Patents. (d) If Purchaser chooses to enforce any Patent against a third party infringer, by commencement and maintenance of an infringement action or other action seeking to enforce its rights under any of the Patent, Purchaser shall pay all patent litigation costs. Any monetary recovery (whether by settlement, award or judgment) received by Purchaser as a result of an infringement claim or counterclaim by Purchaser against any THIRD PARTY If CPG and/or its licensors a third party shall be allocated as follows: FIRST, to Purchaser until an amount equal to all patent litigation costs, together with interest thereon at an annual rate equal to the prime rate, as published in THE WALL STREET JOURNAL, as of PATENTS the date of determination, plus 200 basis points, has not commenced a particular infringement action within ninety (90) days of notification been recouped in full; and SECOND, as to all amounts of any such infringementmonetary recovery that are allocable on the basis of date of sale or other transfer to the period of time up to and through the Closing Date, CPG shall at SB’s request, attempt to coordinate, with licensors [*CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] of PATENTS and/or CO-EXCLUSIVE licensees of CPG, efforts to allow SB and such licensors and/or licensees to bring such infringement action at SB’s own expense. The party (parties) conducting such action shall have full control over their conduct, including settlement thereof provided, however, that no settlement amounts shall be entered into without the agreement retained by Purchaser; and THIRD, as to all amounts of CPG and SB. In any event, CPG and SB shall assist one another and cooperate in any such litigation at monetary recovery that are allocable on the other’s request basis of date of sale or other transfer to the period of time after the Closing Date, such amounts shall be paid to Seller and expense. 13.05 CPG Purchaser, respectively, as if any such amount that is a fixed amount were a lump sum payment from a Licensee and SB shall recover their respective actual out-of-pocket expenses, as if any future royalties or equitable proportions thereof, associated with any patent litigation similar contingent payments constituting part of the recovery or settlement thereof were royalties from any recovery made by any party. Any excess amount shall be shared between SB and CPGa Licensee, with the party conducting a particular infringement action receiving [*******] percent ([**]%) and the other party receiving [******] percent ([**]%) of such excess. Notwithstanding the foregoing all as provided in the event that other sublicensees of CPG participate in any such suit, any recovery shall be shared as mutually agreed by all partiesSection 3.4. 13.06 The parties shall keep one another informed of the status of and of their respective activities regarding any patent litigation or settlement thereof concerning PRODUCT and/or COMBINATION. 13.07 If required and upon request of SB, CPG shall cooperate with SB to act as CPG’s agent for the purpose of making any application for any extensions of the term of PATENTS (including SPC’s) (in the United States of America as permitted under Title 35 of the United States Code) and shall provide reasonable assistance therefor to SB, at CPG’s expense. CPG shall not take any such action with respect to a SB proprietary PRODUCT, unless so requested by SB. The parties will discuss in good faith the applicable royalty rate of SPC’s, if and when such SPC’s have been obtained, based on the degree of market exclusivity provided. 13.08 CPG, on behalf of itself, and its successors hereby waives any and all actions and causes of action, claims and demands whatsoever in law or equity of any kind against SB and its AFFILIATES based upon the exercise by SB of its rights under this Section 13, except in the case of gross negligence and/or willful misconduct by SB. 13.09 SB recognises that bringing an infringement action under Section 13.04 may result in a counterclaim of invalidity of PATENTS and/or claims in PATENTS. In defending such counterclaim(s), SB agrees to take into reasonable consideration the legitimate rights and interests of CPG and/or any other licensee(s) of CPG.

PATENT PROSECUTION AND LITIGATION. 13.01 CPG 8.01 ▇▇▇▇▇ shall be responsible for the filing, prosecution and maintenance of PATENTS at its own expense and shall diligently file, prosecute and maintain all PATENTS. CPG ▇▇▇▇▇ shall promptly disclose to SB GSK the complete texts of all patents and patent applications (including invention reports) filed and/or controlled by CPG ▇▇▇▇▇ which relate to ADJUVANTS contained in PRODUCT and/or COMBINATIONS as well as all information received concerning the institution or possible institution of any interference, opposition, re-examination, reissue, revocation, nullification or any official proceeding involving a PATENT relevant to the licenses granted hereunder anywhere in the TERRITORY. SB GSK shall have the right to review all such pending applications and other proceedings and make recommendations to CPG ▇▇▇▇▇ concerning them and their conduct and CPG ▇▇▇▇▇ shall adapt such modifications and/or proceedings to take any such reasonable and timely SB GSK comment and recommendation into account. CPG ▇▇▇▇▇ agrees to keep SB GSK promptly and fully informed of the course of patent prosecution or other proceedings including the provision to SB GSK of copies of substantive communications, search reports and THIRD PARTY observations submitted to or received from patent offices throughout the TERRITORY. CPG ▇▇▇▇▇ shall provide such patent consultation to SB GSK at no cost to SBGSK. SB GSK shall hold all information disclosed to it under this section Section as confidential subject to the provisions of Sections 12.04 7.05, 7.06 and 12.057.07. 13.02 CPG shall not abandon or otherwise cause or allow to be forfeited any PATENT relevant to the licenses granted hereunder without providing prior written notice to SB to allow SB to request assumption of prosecution or maintenance of any such PATENT, either alone or in conjunction with CPG’s other CO-EXCLUSIVE licensee. In addition the parties shall mutually agree before authorizing any amendment to any PATENT that would irrevocably reduce, abandon or materially modify the claims of such PATENT. SB’s rights pursuant to Sections 13.01 and 13.02 shall be exercised in a timely manner. 13.03 8.02 In the event of the institution of any suit by a THIRD PARTY against CPG▇▇▇▇▇, SB GSK or their AFFILIATES or SBGSK’s sublicensees or distributors for patent infringement involving the manufacture, use, sale, distribution or marketing of PRODUCT and/or COMBINATION by SBGSK, its AFFILIATES or sublicensees or distributors. Anywhere distributors anywhere in the TERRITORY, the party sued shall promptly notify the other party in writing. SB GSK shall have the right but not the obligation to defend such suit at its own expense. CPG ▇▇▇▇▇ and SB GSK shall assist one another and cooperate in any such litigation at the other’s request with the requesting party reimbursing all out of pocket expenses of the other party. 13.04 8.03 In the event that CPG ▇▇▇▇▇ or SB GSK becomes aware of actual or threatened infringement of a PATENT anywhere in the TERRITORY that relates to the FIELD, that party shall promptly notify the other party in writing. CPG ▇▇▇▇▇ and/or its the licensors to ▇▇▇▇▇ of the PATENTS shall have the first right but not the obligation to bring, at its own expense, an infringement action against any THIRD PARTY PARTY. If CPG ▇▇▇▇▇ and/or its the licensors to ▇▇▇▇▇ of the PATENTS has not commenced a particular infringement action within ninety (90) days of notification of any such infringement, CPG ▇▇▇▇▇ shall at SBGSK’s request, attempt to coordinate, with the licensors to ▇▇▇▇▇ of PATENTS and/or CO-EXCLUSIVE licensees of CPGthe PATENTS, efforts to allow SB GSK and such licensors and/or licensees to bring such infringement action at SBGSK’s own expense. GSK may take over litigation if ▇▇▇▇▇ agrees in advance in its sole business judgment, in which case GSK cannot settle without ▇▇▇▇▇’▇ consent. The party (parties) conducting such action actions shall have full control over their conduct, including settlement thereof provided, however, that no settlement shall be entered into without the agreement of CPG and SBthereof. In any event, CPG ▇▇▇▇▇ and SB GSK shall assist one another and cooperate in any such litigation at the other’s request and expense. 13.05 CPG 8.04 ▇▇▇▇▇ and SB GSK shall recover their respective actual out-of-pocket expenses, or equitable proportions thereof, associated with any patent litigation or settlement thereof from any recovery made by any party. Any excess amount shall be shared between SB GSK and CPG▇▇▇▇▇, with the party conducting a particular infringement action receiving [*******] percent ([**]%) and the other party receiving [******] percent ([**]%) of such excess. Notwithstanding the foregoing in the event that other sublicensees of CPG ▇▇▇▇▇ participate in any such suit, any recovery shall be shared as mutually agreed by all parties. 13.06 8.05 The parties shall keep one another informed of the status of and of their respective activities regarding any patent litigation or settlement thereof concerning PRODUCT and/or COMBINATION. 13.07 If required and upon request of SB, CPG shall cooperate with SB to act as CPG’s agent for the purpose of making any application for any extensions of the term of PATENTS (including SPC’s) (in the United States of America as permitted under Title 35 of the United States Code) and shall provide reasonable assistance therefor to SB, at CPG’s expense. CPG shall not take any such action with respect to a SB proprietary PRODUCT, unless so requested by SB. The parties will discuss in good faith the applicable royalty rate of SPC’s, if and when such SPC’s have been obtained, based on the degree of market exclusivity provided.8.06 [intentionally left blank] 13.08 CPG8.07 ▇▇▇▇▇, on behalf of itself, and its successors hereby waives any and all actions and causes of action, claims and demands whatsoever in law or equity of any kind against SB GSK and its AFFILIATES based upon the exercise by SB GSK of its rights under this Section 138, except in the case of gross negligence and/or willful misconduct by SBGSK. 13.09 SB recognises 8.08 GSK recognizes that bringing an infringement action under Section 13.04 8.04 may result in a counterclaim of invalidity of PATENTS and/or claims in PATENTS. In defending such counterclaim(s), SB GSK agrees to take into reasonable consideration the legitimate rights and interests of CPG ▇▇▇▇▇ and/or any other licensee(s) of CPG▇▇▇▇▇.

PATENT PROSECUTION AND LITIGATION. 13.01 CPG 7.1 TDT shall be responsible for the payment of all reasonable costs incurred relating to the Patent Rights, whether incurred pursuant to this Agreement, or pursuant to the Prior License and outstanding as of the date of this Agreement, including all costs incurred by TJU relating to the preparation, filing, prosecution prosecution, issuance, reissuance, reexamination, interference and maintenance of PATENTS at its own expense and shall diligently filethe Patent Rights, prosecute and maintain all PATENTS. CPG shall disclose to SB provided that if the complete texts aggregate of all patents such costs for any Agreement Year, not including interference costs, is in excess of $8,000, TDT shall be entitled to apply an amount equal to one quarter (l/4) of the amount of such costs in excess of $8,000 as a credit against royalties due to TJU pursuant to Section 3.1 above for the then current or any subsequent Agreement Year, provided that in no event shall the royalties due to TJU in any Agreement Year be reduced by more than fifty percent (50%) and in no event shall the license fees due to TJU pursuant to Section 3.2 be reduced. TJU shall, following consultation with TDT, select patent counsel to cause patent applications under the Patent Rights to be filed and/or controlled by CPG which relate and prosecuted. In the event TDT wishes to ADJUVANTS contained in PRODUCT and/or COMBINATIONS as well as all information received concerning the institution or possible institution relieve itself of any interferenceobligation to pay for the future reasonable expenses of preparation, oppositionfiling, re-examinationprosecution, reissueissuance, revocationreissuance, nullification or any official proceeding involving a PATENT relevant to the licenses granted hereunder anywhere in the TERRITORY. SB shall have the right to review all such pending applications and other proceedings and make recommendations to CPG concerning them and their conduct and CPG shall adapt such modifications and/or proceedings to take any such reasonable and timely SB comment and recommendation into account. CPG agrees to keep SB promptly and fully informed of the course of patent prosecution or other proceedings including the provision to SB of copies of substantive communicationsreexamination, search reports and THIRD PARTY observations submitted to or received from patent offices throughout the TERRITORY. CPG shall provide such patent consultation to SB at no cost to SB. SB shall hold all information disclosed to it under this section as confidential subject to the provisions of Sections 12.04 and 12.05. 13.02 CPG shall not abandon or otherwise cause or allow to be forfeited any PATENT relevant to the licenses granted hereunder without providing prior written notice to SB to allow SB to request assumption of prosecution interference or maintenance of any such PATENTPatent Rights submitted to TDT by TJU under this Section, either alone or in conjunction it may provide TIU with CPG’s other CO-EXCLUSIVE licensee. In addition the parties shall mutually agree before authorizing any amendment to any PATENT that would irrevocably reduce, abandon or materially modify the claims one hundred and twenty (120) days notice of such PATENTdecision, whereupon TJU may assume such costs and thereafter those Patent Rights for which IDT elects not to pay such patent costs shall be the sole property of TJU and shall not be subject to the right and licenses provided for in ARTICLE II. SB’s rights TDT shall be responsible for all reasonable expenses incurred prior to, or as a result of irrevocable action taken prior to, the effective date of such decision. 7.2 TDT shall take all appropriate steps to ensure that, if eligible, TIU will be able to obtain patent term extension(s) pursuant to Sections 13.01 35 U.S.C. 156 et seq., as appropriate. TDT shall keep TJU fully informed with respect to its submissions to governmental authorities for regulatory review for Products which may be eligible for patent term extension. TDT acknowledges that time is of the essence with respect to submission of the application for patent term extension. TDT shall send written notice to TJU within five (S) business days of the date a Product receives permission under the provision of the law under which the applicable regulatory review period occurred for commercial marketing or use (“Approval Date”). TDT shall provide all necessary information in its possession and 13.02 reasonable assistance in preparing an application, if TJU is eligible, for patent term extension in compliance with 35 U.S.C. 156 et. seq. and any applicable governmental regulations within thirty (30) days after Approval Date. TDT agrees to cooperate fully with TJU in preparing such application for patent term extension. If eligible, TJU shall file, in its own name, such application for patent term extension. TDT, if requested, agrees to join in such application for patent term extension. TDT shall fully support such application and shall provide such information as may reasonably be exercised requested in a timely mannersupport of the application by TJU or by the government. 13.03 7.3 In the event either party becomes aware of the institution a suspected infringement of any suit by a THIRD PARTY against CPG, SB or their AFFILIATES or SB’s sublicensees or distributors for patent infringement involving the manufacture, use, sale, distribution or marketing of PRODUCT and/or COMBINATION by SB, its AFFILIATES or sublicensees or distributors. Anywhere included in the TERRITORYPatent Rights, the party sued it shall promptly notify the other party in writingof such suspected infringement. SB The parties shall have the right but not the obligation to defend such suit at its own expense. CPG and SB shall assist one another and cooperate in any such litigation at the other’s request with the requesting party reimbursing all out of pocket expenses of the other party. 13.04 In the event that CPG or SB becomes aware of actual or threatened infringement of a PATENT anywhere in the TERRITORY that relates to the FIELD, that party shall promptly notify the other party in writing. CPG and/or its licensors of PATENTS shall have the first right but not the obligation to bring, at its own expense, an infringement action against any THIRD PARTY If CPG and/or its licensors of PATENTS has not commenced a particular infringement action commence discussions within ninety (90) days of said• notification for the purpose of jointly evaluating said suspected infringement and for the purpose of determining what action shall be taken by the parties or either of them with respect thereto. If no agreement is reached as to the existence or non-existence of an infringement concerning any such patent, the question of the existence of a sufficient degree of infringement to justify the institution of legal action shall be decided by an arbitrator who is an independent patent attorney selected by mutual agreement who shall hear and decide the question based only on oral argument lasting less than one day. The parties shall equally share the arbitrator’s expenses. If the arbitrator concludes that the information and evidence then available arc insufficient to conclude that there is such infringement sufficient to justify institution of legal action, no action shall be brought by either party unless and until newly discovered evidence resulting in agreement between the parties or a contrary arbitrator’s decision, is obtained. 7.4 In the event there is agreement as to the existence of any such infringement, CPG shall at SB’s requestor such is decided by the arbitrator, attempt to coordinateTDT, with licensors of PATENTS and/or CO-EXCLUSIVE licensees of CPGin the first instance, efforts to allow SB and such licensors and/or licensees to bring such infringement action at SB’s own expense. The party (parties) conducting such action shall have full control over their conductthe first right to take such actions, including settlement thereof providedsublicensing the alleged infringer or instituting litigation, howeverwhich it deems necessary in order to ▇▇▇▇▇ the infringement, that no settlement and shall be entered into without have the agreement right to name TJU as a party plaintiff, if necessary, to the maintenance of CPG and SB. In any event, CPG and SB shall assist one another and cooperate in any such litigation at the other’s request and expenseaction. 13.05 CPG 7.5 The parties recognize that the scope and/or validity of any patent included in the Patent Rights which is involved in litigation is likely to be railed as an issue by any actual or ..: alleged infringer, and SB shall recover their respective actual that an adverse decision relating to that patent might significantly reduce the royalties due and payable by TDT under this Agreement The parties further recognize that any litigation enforcing that subject patent is likely to involve document production, deposition testimony, discovery responses, and trial appearances by TJU and/or its inventors and other personnel. Accordingly, in the event that TDT initiates and controls any litigation where the scope or validity of any patent included in the Patent Rights is in issue, TDT agrees to reimburse TJU for its reasonable out-of-pocket expenses of every kind and character, except legal fees and costs, necessarily incurred by TJU and its personnel in connection with the litigation. In connection with such litigation, TJU, at TJU’s expense, may select its own counsel to consult with lead trial counsel of TDT’s choice, to advise TIU concerning the progress of the ongoing litigation and to otherwise represent TJU and its personnel in connection with the litigation. TDT shall also reimburse TJU for such other reasonable expenses, or equitable proportions thereofincluding out-of-pocket disbursements for travel, associated stenographers fees, photocopying, etc. as may be necessarily incurred by TJU in connection with the litigation. In the event TDT institutes and controls any litigation involving any patent litigation or settlement thereof included in the Patent Rights, TDT shall hold TJU harmless from any and all damages which may be assessed 3gainst TJU on account of any provision of the patent or antitrust laws, or otherwise, unless such damages arise out of acts or omissions attributable solely to TJU. 7.6 If TDT docs not bring suit against the alleged infringer, according to the provisions of Section 7.4, within one hundred twenty (120) days after agreement concerning infringement is reached or the arbitrator so decides, TJU shall have the right, but not the obligation, to take such action as it deems appropriate to ▇▇▇▇▇ the infringement, including bringing suit for such infringement, joining TDT as a party plaintiff, if necessary, to maintain such action. Provided that TJU has instituted the action against the alleged infringer to ▇▇▇▇▇ the infringement, TJU shall be permitted to settle the lawsuit by licensing the alleged infringer. In the event TJU licenses the infringer, TJU shall share any amounts received from that license equally with TDT, after deductions of TJU’s expenses in connection with such action. In the event litigation is instituted by TJU, TDT shall have the right to be represented by counsel of its own selection, at its own expense and shall be provided an opportunity to consult with TJU on all matters of significance relating to the preparation and prosecution of the case for trial. 7.7 In any event, the party bringing or controlling the litigation shall diligently prosecute the litigation. The parties agree to cooperate and consult with each other in the prosecution of the litigation. 7.8 Any recovery in any litigation brought in accordance with this Article VII, whether by settlement or judgment, shall be applied first, to the unreimbursed costs of such litigation of the party that did not bring the action; and second, to the costs of such litigation (including counsel fees) of the party that did bring the action; and the remainder of such recovery shall be retained by the party bringing the action; provided, that if the action was brought by TDT, then to the extent any recovery by TDT represents lost sales of Product or lost profits resulting from lost sales of Product by TDT, TDT shall pay to TJU an amount equal to the royalties TJU would have received pursuant to Section 3.1 above had such lost sales of Product been made by any partyTDT, its Affiliates or its sublicenses, as applicable. Any excess To the extent the recovery represents lost profits; the lost profits amount shall be shared between SB and CPGconverted to lost sales of Product based on TDT’s profit margin for the Products for the respective Agreement Year, with the party conducting a particular infringement action receiving [*******] percent ([**]%) and the other party receiving [******] percent ([**]%) of such excess. Notwithstanding the foregoing in the event that other sublicensees of CPG participate in any such suit, any recovery royalty amount due shall be shared as mutually agreed by all parties. 13.06 The parties shall keep one another informed of the status of and of their respective activities regarding any patent litigation or settlement thereof concerning PRODUCT and/or COMBINATION. 13.07 If required and upon request of SB, CPG shall cooperate with SB to act as CPG’s agent for the purpose of making any application for any extensions of the term of PATENTS (including SPC’s) (in the United States of America as permitted under Title 35 of the United States Code) and shall provide reasonable assistance therefor to SB, at CPG’s expense. CPG shall not take any such action with respect to a SB proprietary PRODUCT, unless so requested by SB. The parties will discuss in good faith the applicable royalty rate of SPC’s, if and when such SPC’s have been obtained, calculated based on the degree of market exclusivity providedsuch lost sale amount. 13.08 CPG, on behalf of itself, and its successors hereby waives any and all actions and causes of action, claims and demands whatsoever in law or equity of any kind against SB and its AFFILIATES based upon the exercise by SB of its rights under this Section 13, except in the case of gross negligence and/or willful misconduct by SB. 13.09 SB recognises that bringing an infringement action under Section 13.04 may result in a counterclaim of invalidity of PATENTS and/or claims in PATENTS. In defending such counterclaim(s), SB agrees to take into reasonable consideration the legitimate rights and interests of CPG and/or any other licensee(s) of CPG.

PATENT PROSECUTION AND LITIGATION. 13.01 CPG 8.1 Each party shall have and retain sole and exclusive title to all inventions, discoveries, designs, works of authorship and other know-how which are made, conceived, reduced to practice or generated by its employees, agents, or other persons acting under its 27 authority. As to all inventions, discoveries, designs, works of authorship and other know-how made, conceived, reduced to practice or generated jointly by employees, agents, or other persons acting under the authority of HGS and SP, the parties shall own an equal undivided interest therein. In the event of jointly owned inventions, HGS shall be responsible for the filing, prosecution and maintenance of PATENTS at its own patents and patent applications directed thereto under the terms and conditions of Paragraph 8.2, however, each of HGS and SP shall be responsible for an equal share of the cost and expense thereof. HGS shall consult with SP with respect to strategies for filing, prosecution and maintenance of patents and patent applications for which it bears responsibility under this Section 8.1, and shall diligently keep SP reasonably informed with regard to filing, prosecution and maintenance activity for such patents and patent applications, provided, however, that HGS shall have final decision-making authority with respect to filing, prosecution and maintenance of any patents and patent applications for which it is responsible. If a joint owner does not desire to file, prosecute or maintain a patent or patent application to a joint invention, such owner shall assign its ownership interest therein to the other joint owner and shall no longer be responsible for the cost and expense thereof, and shall have no further right to consult, review or comment with respect to the filing, prosecution and maintenance of said patent or patent application. All patents and patent applications to joint inventions which are LICENSED TECHNOLOGY and/or SP TECHNOLOGY shall be LICENSED PATENTS and SP PATENTS, respectively, subject to the terms and conditions of this Agreement; otherwise, any joint owner shall be free to dispose of its interest therein without accounting to any other owner. 28 (a) HGS shall have the right within its sole discretion to prepare, file, prosecute and maintain all PATENTSLICENSED PATENTS owned by HGS. CPG With respect to LICENSED PATENTS as to which SP retains a license hereunder, subject to Paragraph 8.10, HGS shall disclose to SB the complete texts of all patents and patent applications filed and/or controlled by CPG which relate to ADJUVANTS contained in PRODUCT and/or COMBINATIONS as well as all information received concerning the institution or possible institution of any interference, opposition, re-examination, reissue, revocation, nullification or any official proceeding involving a PATENT relevant keep SP reasonably informed with respect to the licenses granted hereunder anywhere filing and prosecution thereof (including interference proceedings). In the event that HGS does not intend to prepare, file, prosecute and/or maintain patent protection in any country with respect to LICENSED TECHNOLOGY other than expressed sequence tags (ESTs) as to which SP retains a license hereunder, HGS shall, at SP's option, do so at the TERRITORYcost and expense of SP. SB In the event that a THIRD PARTY who has entered into an agreement with HGS as contemplated by Paragraph 2.11 (a) also makes such a request in a country, such costs shall be apportioned between SP and such THIRD PARTY. (b) SP shall have the right within its sole discretion to review all such pending applications prepare, file, prosecute and other proceedings maintain SP PATENTS. With respect to SP PATENTS as to which HGS retains a license hereunder, subject to Paragraph 8.11, SP shall keep HGS reasonably informed with respect to the filing and make recommendations prosecution thereof (including interference proceedings). In the event that SP does not intend to CPG concerning them prepare, file, prosecute and/or maintain patent protection in any country with respect to SP TECHNOLOGY as to which HGS retains a license hereunder, SP shall, at HGS' option, do so at the cost and expense of HGS. (c) SP will provide HGS reasonable assistance to enable HGS to prepare, file, prosecute and maintain LICENSED PATENTS pursuant to section 8.2(a). HGS will provide SP reasonable assistance to enable SP to prepare, file, prosecute and maintain SP PATENTS pursuant to section 8.2(b). 29 8.3 Each party, on behalf of itself, its AFFILIATES and its and their conduct respective directors, employees, officers, shareholders, agents, successors and CPG shall adapt such modifications and/or proceedings to take assigns hereby waives any such reasonable and timely SB comment all actions and recommendation into account. CPG agrees to keep SB promptly causes of action, claims and fully informed demands whatsoever, in law or equity of any kind it or they may have against the course other party, its AFFILIATES and its or their respective officers, directors, employees, shareholders, agents, successors and assigns, which may arise from performance of patent prosecution or other proceedings including the provision to SB of copies of substantive communications, search reports and THIRD PARTY observations submitted to or received from patent offices throughout the TERRITORY. CPG shall provide such patent consultation to SB at no cost to SB. SB shall hold all information disclosed to it activities under this section as confidential subject to the provisions of Sections 12.04 and 12.05Section, except those which result from gross negligence, recklessness, or willful misconduct. 13.02 CPG shall not abandon or otherwise cause or allow to be forfeited any PATENT relevant to the licenses granted hereunder without providing prior written notice to SB to allow SB to request assumption of prosecution or maintenance of any such PATENT, either alone or in conjunction with CPG’s other CO-EXCLUSIVE licensee. In addition the parties shall mutually agree before authorizing any amendment to any PATENT that would irrevocably reduce, abandon or materially modify the claims of such PATENT. SB’s rights pursuant to Sections 13.01 and 13.02 shall be exercised in a timely manner. 13.03 (a) In the event of the institution of any suit by a THIRD PARTY against CPG, SB SP or their AFFILIATES or SB’s sublicensees or distributors its licensees for patent infringement involving the manufacture, use, import, export, offer for sale, sale, distribution or marketing of PRODUCT and/or COMBINATION by SBSP PRODUCT, its AFFILIATES or sublicensees or distributors. Anywhere in the TERRITORY, the party sued SP shall promptly notify the other party HGS in writing. SB As between HGS and SP, SP shall have be solely responsible for the right but not cost and expense of such action and any liability which results therefrom. (b) In the obligation to defend such suit at its own expense. CPG and SB shall assist one another and cooperate in any such litigation at the other’s request with the requesting party reimbursing all out of pocket expenses event of the other partyinstitution of any suit by a THIRD PARTY against HGS or its licensees, for patent infringement involving the manufacture, use, import, export, offer for sale, sale, distribution or marketing of any product sold by HGS or its licensees involving or developed using LICENSED TECHNOLOGY and/or SP TECHNOLOGY, HGS shall promptly notify SP in writing. As between HGS and SP, HGS shall be solely responsible for the cost and expense of such action and any liability which results therefrom. 13.04 8.5 In the event that CPG HGS or SB SP becomes aware of actual or threatened infringement of a SP PATENT or LICENSED PATENT anywhere in the TERRITORY that relates to the FIELDTERRITORY, that party shall promptly notify the other party in writing. CPG and/or its licensors The owner of PATENTS the SP PATENT or LICENSED PATENT shall have the first right but not the obligation to bring, at its own expense, an 30 infringement action against any THIRD PARTY and to use the other party's name in connection therewith. If CPG and/or its licensors the owner of PATENTS has the patent does not commenced commence a particular infringement action within ninety (90) days, the other party, after notifying the owner in writing, shall be entitled to bring such infringement action, in its own name and/or in the name of the patent owner, at its own expense to the extent that such party is licensed thereunder. The foregoing notwithstanding, in the event that an alleged infringer certifies pursuant to 21 U.S.C. ss.355(b)(2)(A)(iv) against an issued SP PATENT or LICENSED PATENT covering a product, as between the patent owner and the owner of the product, the party receiving notice of such certification shall immediately notify the other party of such certification, and if fourteen (14) days prior to expiration of notification the forty five (45) day period set forth in 21 U.S.C. ss.355(c)(3)(C), the owner of any such infringementthe SP PATENT or LICENSED PATENT fails to commence an infringement action, CPG the party receiving notice, in its sole discretion, at its own expense and to the extent that it is licensed under the SP PATENT or LICENSED PATENT, shall at SB’s request, attempt to coordinate, with licensors of PATENTS and/or CO-EXCLUSIVE licensees of CPG, efforts to allow SB and such licensors and/or licensees be entitled to bring such infringement action at SB’s in its own expensename and/or in the name of the patent owner. The party (parties) conducting such an action under this Paragraph 8.5 shall have full control over their its conduct, including settlement thereof provided, however, that no provided such settlement shall not be entered into made without the agreement prior written consent of CPG the other licensing party or licensed party if it would adversely affect the patent rights of such party. The licensing party (i.e., the patent owner) and SB. In any eventthe licensed party (e.g., CPG and SB the owner of the product) shall reasonably assist one another and cooperate in any such litigation at the other’s request 's request, each such party paying its own costs and expense. 13.05 CPG expenses. The party conducting the litigation shall periodically reimburse the other party for its reasonable and SB shall recover their respective actual out-of-pocket expensesexpenses for assisting in the litigation, or equitable proportions thereof, associated with any patent litigation or settlement thereof from any which reimbursement shall be made within thirty (30) days of receipt by the party 31 8.6 Any recovery made by any party. Any excess amount a party as the result of an action for patent infringement it has conducted under Paragraph 8.5 shall be shared between SB and CPGdistributed as follows: (i) The party conducting the action shall recover its actual out -of-pocket expenses. (ii) To the extent that the recovery exceeds the total of item (i), with the excess shall be kept by the party conducting the action, provided, however, that to the extent that (a) the recovery is based on an award of lost sales/profits, and (b) the party conducting the action would have incurred a particular infringement action receiving [*******] percent ([**]%) and royalty obligation to the other party receiving [******] percent ([**]%) based upon such sales, the party to whom such royalties would have been due shall receive a proportion of such excess. Notwithstanding the foregoing in excess recovery corresponding to the event that other sublicensees of CPG participate in any such suit, any recovery shall be shared as mutually agreed by all partiesroyalty percentage it would have otherwise been due. 13.06 8.7 The parties shall periodically keep one another reasonably informed of the status of and of of, their respective activities regarding regarding, any patent such litigation or settlement thereof concerning PRODUCT and/or COMBINATIONthereof. 13.07 If required and upon request 8.8 To the extent that the owner of SBa SP PATENT or a LICENSED PATENT also owns a product (covered by an NDA or HRD) which product is covered by a granted claim of said SP PATENT or LICENSED PATENT, CPG the owner of said SP PATENT or LICENSED PATENT shall cooperate with SB have the first right to act as CPG’s agent for the purpose of making any application for any seek extensions of the terms of the patent and to seek to obtain SPCs. If the owner of a SP PATENT or a LICENSED PATENT does not own a product covered by a granted claim of said SP PATENT or LICENSED PATENT, then the owner of a product (covered by an NDA or HRD) which product is licensed under and is covered by a 32 (a) All rights and licenses granted under or pursuant to this Agreement by one party to another party are, for all purposes of Section 365(n) of Title 11 of the U.S. Code ("Title 11"), licenses of rights to intellectual property as defined in Title 11. The licensing party agrees during the term of PATENTS this Agreement to maintain and preserve any current copies of all such intellectual property which are in existence and in its possession as of the commencement of a case under Title 11 by or against the licensing party. If a case is commenced by or against the licensing party under Title 11, then, unless and until this Agreement is rejected as provided in Title 11, the licensing party (in any capacity, including debtor-in-possession) and its successors and assigns (including, without limitation, a Title 11 Trustee) shall, as the party who is a licensee may elect in a written request, immediately upon such request (A) (i) perform all of the obligations provided in this Agreement to be performed by the licensing party, or (ii) provide to the party who is a licensee all such intellectual property (including SPC’sall embodiments thereof) 33 (b) If a Title 11 case is commenced by or against the licensing party, this Agreement is rejected as provided in Title 11 and the party who is a licensee elects to retain its rights hereunder as provided in Title 11, then the licensing party (in any capacity, including debtor-in-possession) and its successors and assigns (including, without, limitation, a Title 11 Trustee) shall provide to the United States party who is a licensee all such intellectual property (including all embodiments thereof) held by the licensing party and such successors and assigns immediately upon the party who is a licensee's written request thereof. Whenever, the licensing party or any of America as permitted under Title 35 its successors or assigns provides to the party who is a licensee any of the United States Codeintellectual property licensed hereunder (or any embodiment thereof) and pursuant to this Paragraph 8.9, the party who is a licensee shall provide reasonable assistance therefor have the right to SB, at CPG’s expense. CPG shall not take any such action perform the obligations of the licensing party hereunder with respect to such intellectual property, but neither such provision nor such performance by the party who is a SB proprietary PRODUCTlicensee shall release the licensing party from any such obligation or liability for failing to perform it; provided, unless so requested however, that in such event the party who is a licensee shall not be entitled to compel specific performance by SBthe licensing party under this Agreement except to the extent of enforcing the exclusivity of the license granted hereunder. 34 (c) All rights, powers, remedies, obligations and conditions of the party who is a licensee provided herein are in addition to and not in substitution for any and all other rights, powers, remedies, obligations and conditions of the licensing party or the party who is a licensee now or hereafter existing at law or in equity (including, without limitation, Title 11) in the event of the commencement of a Title 11 case by or against the licensing party. The party who is a licensee, in addition to the rights, powers and remedies expressly provided herein, shall be subject to all obligations and conditions, and shall be entitled to exercise all other such rights and powers and resort to all other such remedies as may now or hereafter exist at law or in equity (including, without limitation, Title 11) in such event. The parties will discuss in good faith agree that they intend the applicable royalty rate foregoing rights and obligations of SPC’sthe party who is a licensee to apply to the maximum extent permitted by law, if and when such SPC’s have been obtainedincluding without limitation for purposes of Title 11, based on (i) the degree right of market exclusivity provided. 13.08 CPGaccess to any intellectual property (including all embodiments thereof) of the licensing party, on behalf or any third party with whom the licensing party contracts to perform an obligation of itself, and its successors hereby waives any and all actions and causes of action, claims and demands whatsoever in law or equity of any kind against SB and its AFFILIATES based upon the exercise by SB of its rights licensing party under this Section 13Agreement, except and, in the case of gross negligence and/or willful misconduct by SBthe third party, which is necessary for the development, registration and manufacture of a product licensed hereunder, and (ii) the right to contract directly with any third party described in clause (i) in this sentence to complete the contracted work. 13.09 SB recognises that bringing an infringement action 8.10 The obligations of HGS to keep SP informed under Paragraphs 8.2(a) shall only apply to LICENSED PATENTS which claim LICENSED TECHNOLOGY which HGS is required to disclose to SP pursuant to Section 5. 35 8.11 The obligations of SP to keep HGS informed under Paragraph 8.2(b) shall not apply to any SP PATENT directed to SP PRODUCTS until the earlier of publication of the SP PATENT and/or SP obtaining exclusive rights to the SP PRODUCT under Section 13.04 may result in a counterclaim of invalidity of PATENTS and/or claims in PATENTS. In defending such counterclaim(s), SB agrees to take into reasonable consideration the legitimate rights and interests of CPG and/or any other licensee(s) of CPG2.5.

PATENT PROSECUTION AND LITIGATION. 13.01 CPG 7.01 (a) TJU shall diligently prosecute and maintain PATENT RIGHTS utilizing counsel reasonably satisfactory to COMPANY. Following the EFFECTIVE DATE, COMPANY shall reimburse TJU for all ongoing costs related to PATENT RIGHTS, including all costs relating to preparation, filing and prosecution, issuance, reissuance, reexamination, interference and maintenance. COMPANY shall reimburse TJU or its attorneys within sixty (60) days of receiving an invoice for such costs. All reasonable costs incurred prior to the EFFECTIVE DATE of this AGREEMENT relating to PATENT RIGHTS, including all costs incurred by TJU relating to the preparation, filing and prosecution, issuance, reissuance, reexamination, interference and maintenance, shall be reimbursed to TJU by COMPANY within sixty (60) days after the FIRST FINANCING. TJU agrees to keep COMPANY reasonably well informed with respect to the status and progress of any patent prosecutions and maintenance activities, to consult in good faith with COMPANY and take into account COMPANY's reasonable comments and requests with respect thereto, and to permit COMPANY to have direct access to TJU's patent counsel to discuss such activities. Both parties agree to provide reasonable cooperation to each other to facilitate the prosecution of patents pursuant to this AGREEMENT. In the event COMPANY wishes to relieve itself of any obligation to pay for the future reasonable expenses of preparation, filing, prosecution, issuance, reissuance, reexamination, interference or maintenance of any PATENT RIGHTS submitted to COMPANY by TJU under this paragraph, it may provide TJU with one-hundred and twenty (120) days notice of such decision, whereupon TJU may assume such costs and thereafter those PATENT RIGHTS for which COMPANY elects not to cover patent costs shall be the sole property of TJU and not be subject to the right and licenses provided for in ARTICLE II. COMPANY shall be responsible for all reasonable expenses incurred prior to, or as a result of irrevocable action taken prior to, the filing, prosecution and maintenance effective date of PATENTS at its own expense and shall diligently file, prosecute and maintain all PATENTSsuch decision. CPG shall disclose Should TJU elect to SB the complete texts of all patents and abandon any patent applications filed and/or controlled by CPG which relate or issued patent comprising PATENT RIGHTS, or if TJU otherwise fails to ADJUVANTS contained in PRODUCT and/or COMBINATIONS as well as all information received concerning the institution prosecute or possible institution of maintain any interferencePATENT RIGHTS, opposition, re-examination, reissue, revocation, nullification or any official proceeding involving a PATENT relevant to the licenses granted hereunder anywhere in the TERRITORY. SB COMPANY shall have the right right, but not the obligation, to review all commence or continue such pending applications prosecution and other proceedings and make recommendations to CPG concerning them and their conduct and CPG shall adapt such modifications and/or proceedings to take maintain any such PATENT RIGHTS under its own control and expense. COMPANY shall then have no royalty or other obligation to TJU based solely on such PATENT RIGHTS which TJU elects to abandon, but COMPANY's obligations to TJU based on other PATENT RIGHTS or TJU KNOW-HOW shall remain unaffected. 7.01 (b) On sales of a PRODUCT in a country other than the United States which are covered by an issued patent within PATENT RIGHTS in such country, COMPANY may apply as a credit against royalties on such sales due under Article 3.04 of this AGREEMENT *** of patent expenses paid by COMPANY in securing such patent covering such PRODUCT in such country. Patent expenses on a patent covering a particular PRODUCT or PRODUCTS in a particular country are not creditable against royalties on other PRODUCTS in such country or against royalties on such PRODUCTS in other countries. 7.02 COMPANY shall take the reasonably appropriate steps to ensure that, if eligible, TJU will be able to obtain patent term extension(s) pursuant to 35 U.S.C. 156 et seq., as appropriate. COMPANY shall keep TJU fully informed with respect to its submissions to governmental authorities for regulatory review for PRODUCTS which may be eligible for patent term extension. COMPANY acknowledges that time is of the essence with respect to submission of the application for patent term extension. COMPANY shall send written notice to TJU within three (3) business days of the date a PRODUCT receives permission under the provision of the law under which the applicable regulatory review period occurred for commercial marketing or use ("APPROVAL DATE"). COMPANY shall provide all necessary information in its possession and reasonable assistance in preparing an application, if TJU is eligible, for patent term extension in compliance with 35 U.S.C. 156 et. seq. and timely SB comment and recommendation into accountany applicable governmental regulations within thirty (30) days after APPROVAL DATE. CPG COMPANY agrees to keep SB promptly cooperate fully with TJU in preparing such application for patent term extension. If eligible, TJU shall file, in their own name, such application for patent term extension. COMPANY, if requested, agrees to join in such application for patent term extension. COMPANY shall fully support such application and fully informed of the course of patent prosecution or other proceedings including the provision to SB of copies of substantive communications, search reports and THIRD PARTY observations submitted to or received from patent offices throughout the TERRITORY. CPG shall provide such patent consultation to SB at no cost to SB. SB shall hold all information disclosed to it under this section as confidential subject to may reasonably be requested in support of the provisions of Sections 12.04 and 12.05application by TJU or by the government. 13.02 CPG shall not abandon or otherwise cause or allow to be forfeited any PATENT relevant to 7.03 Both TJU and COMPANY are responsible for notifying the licenses granted hereunder without providing prior written notice to SB to allow SB to request assumption of prosecution or maintenance other of any such PATENT, either alone or in conjunction with CPG’s other CO-EXCLUSIVE licenseeinfringement of PATENT RIGHTS which may come to their attention. In addition the parties TJU and COMPANY shall mutually agree before authorizing any amendment to any PATENT that would irrevocably reduce, abandon or materially modify the claims of such PATENT. SB’s rights pursuant to Sections 13.01 and 13.02 shall be exercised consult one another in a timely mannermanner concerning any appropriate response thereto. 13.03 In the event of the institution of any suit by a THIRD PARTY against CPG, SB or their AFFILIATES or SB’s sublicensees or distributors for patent infringement involving the manufacture, use, sale, distribution or marketing of PRODUCT and/or COMBINATION by SB, its AFFILIATES or sublicensees or distributors. Anywhere in the TERRITORY, the party sued shall promptly notify the other party in writing. SB 7.04 COMPANY shall have the right right, but not the obligation obligation, to defend prosecute such suit infringement at its own expense. CPG COMPANY shall not settle or compromise any such suit in a manner that imposes any obligations or restrictions on TJU or grants any rights to the PATENT RIGHTS, without TJU's prior written permission. Such rights shall be subject to the continuing right of TJU to intervene at TJU's own expense and SB shall assist one another and cooperate join COMPANY in any claim or suit for infringement of the PATENT RIGHTS. Any consideration received by COMPANY in settlement of any claim or suit shall first be applied to pay the litigation expenses of COMPANY and TJU (proportionately based on the relative amounts of such expenses) and the balance shall be treated as royalties received by COMPANY from sublicensees and shared by TJU and COMPANY in accordance with Section 3.05 hereof. COMPANY may credit against payments of royalties hereunder one-half of any litigation costs, expenses, penalties, judgments or royalties assessed against COMPANY or its AFFILIATES pursuant to this Section 7.04, provided that royalties paid to TJU are not reduced by more than *** in any year with excess expenses carried over and credited against royalty payments in future years. Any royalties actually withheld from TJU under this paragraph shall be considered litigation expenses of TJU, which shall be reimbursed on a pro rata basis as described in this paragraph. 7.05 If COMPANY fails to prosecute such infringement, TJU shall have the right, but not the obligation, to prosecute such infringement at its own expense. In such event, financial recoveries will be entirely retained by TJU. 7.06 In any action to enforce any of the PATENT RIGHTS, either party at the other’s request with the requesting party reimbursing all out of pocket expenses and expense of the other party. 13.04 In , shall cooperate to the event that CPG or SB becomes aware fullest extent reasonably possible. This provision shall not be construed to require either party to undertake any activities, including legal discovery, at the request of actual or threatened infringement any third party except as may be required by lawful process of a PATENT anywhere in the TERRITORY that relates to the FIELD, that party shall promptly notify the other party in writing. CPG and/or its licensors court of PATENTS shall have the first right but not the obligation to bring, at its own expense, an infringement action against any THIRD PARTY If CPG and/or its licensors of PATENTS has not commenced a particular infringement action within ninety (90) days of notification of any such infringement, CPG shall at SB’s request, attempt to coordinate, with licensors of PATENTS and/or CO-EXCLUSIVE licensees of CPG, efforts to allow SB and such licensors and/or licensees to bring such infringement action at SB’s own expense. The party (parties) conducting such action shall have full control over their conduct, including settlement thereof provided, however, that no settlement shall be entered into without the agreement of CPG and SB. In any event, CPG and SB shall assist one another and cooperate in any such litigation at the other’s request and expensecompetent jurisdiction. 13.05 CPG and SB shall recover their respective actual out-of-pocket expenses, or equitable proportions thereof, associated with any patent litigation or settlement thereof from any recovery made by any party. Any excess amount shall be shared between SB and CPG, with the party conducting a particular infringement action receiving [*******] percent ([**]%) and the other party receiving [******] percent ([**]%) of such excess. Notwithstanding the foregoing in the event that other sublicensees of CPG participate in any such suit, any recovery shall be shared as mutually agreed by all parties. 13.06 The parties shall keep one another informed of the status of and of their respective activities regarding any patent litigation or settlement thereof concerning PRODUCT and/or COMBINATION. 13.07 If required and upon request of SB, CPG shall cooperate with SB to act as CPG’s agent for the purpose of making any application for any extensions of the term of PATENTS (including SPC’s) (in the United States of America as permitted under Title 35 of the United States Code) and shall provide reasonable assistance therefor to SB, at CPG’s expense. CPG shall not take any such action with respect to a SB proprietary PRODUCT, unless so requested by SB. The parties will discuss in good faith the applicable royalty rate of SPC’s, if and when such SPC’s have been obtained, based on the degree of market exclusivity provided. 13.08 CPG, on behalf of itself, and its successors hereby waives any and all actions and causes of action, claims and demands whatsoever in law or equity of any kind against SB and its AFFILIATES based upon the exercise by SB of its rights under this Section 13, except in the case of gross negligence and/or willful misconduct by SB. 13.09 SB recognises that bringing an infringement action under Section 13.04 may result in a counterclaim of invalidity of PATENTS and/or claims in PATENTS. In defending such counterclaim(s), SB agrees to take into reasonable consideration the legitimate rights and interests of CPG and/or any other licensee(s) of CPG.

PATENT PROSECUTION AND LITIGATION. 13.01 CPG 10.1 All right, title and interest to the VICAL TECHNOLOGY and all patent rights and other intellectual property rights therein shall be responsible belong solely to VICAL. VICAL shall have the sole right and responsibility for the filing, prosecution and maintenance of PATENTS patents and patent applications directed thereto. 10.2 All right, title and interest to the HGS TECHNOLOGY and all patent rights and other intellectual property rights therein shall belong solely to HGS. HGS shall have the sole right and responsibility for the filing, prosecution and maintenance of patents and patent applications directed thereto. 10.3 With respect to any patent covering HGS IMPROVEMENTS or VICAL IMPROVEMENTS that is a joint invention of both HGS and VICAL, HGS and VICAL shall share equally in the cost and expense thereof. Unless the parties otherwise agree, HGS shall be the lead party on HGS IMPROVEMENTS and VICAL shall be the lead party on VICAL IMPROVEMENTS. The lead party shall consult with the other with respect to strategies for filing, prosecution and maintenance of patents and patent applications for which it bears responsibility under this paragraph, and shall keep the other reasonably informed with regard to filing, prosecution and maintenance activity for such patents and patent applications. In the event the lead party does not intend to prepare, file, prosecute and/or maintain patent protection in any country with respect to such joint invention, the lead party shall notify the other party and the other party may assume such responsibility at its own expense cost and expense. Any patent on such joint invention shall diligently be considered both an HGS PATENT and a VICAL PATENT. 10.4 Both parties will provide the other reasonable assistance to enable the other to prepare, file, prosecute and maintain all PATENTS. CPG shall disclose patents pursuant to SB the complete texts of all patents and patent applications filed and/or controlled by CPG which relate to ADJUVANTS contained in PRODUCT and/or COMBINATIONS as well as all information received concerning the institution or possible institution of any interference, opposition, re-examination, reissue, revocation, nullification or any official proceeding involving a PATENT relevant to the licenses granted hereunder anywhere in the TERRITORY. SB shall have the right to review all such pending applications and other proceedings and make recommendations to CPG concerning them and their conduct and CPG shall adapt such modifications and/or proceedings to take any such reasonable and timely SB comment and recommendation into account. CPG agrees to keep SB promptly and fully informed of the course of patent prosecution or other proceedings including the provision to SB of copies of substantive communications, search reports and THIRD PARTY observations submitted to or received from patent offices throughout the TERRITORY. CPG shall provide such patent consultation to SB at no cost to SB. SB shall hold all information disclosed to it under this section as confidential subject to the provisions of Sections 12.04 and 12.05Article 10. 13.02 CPG shall not abandon or otherwise cause or allow to be forfeited any PATENT relevant to the licenses granted hereunder without providing prior written notice to SB to allow SB to request assumption of prosecution or maintenance of any such PATENT, either alone or in conjunction with CPG’s other CO-EXCLUSIVE licensee. In addition the parties shall mutually agree before authorizing any amendment to any PATENT that would irrevocably reduce, abandon or materially modify the claims of such PATENT. SB’s rights pursuant to Sections 13.01 and 13.02 shall be exercised in a timely manner. 13.03 10.5 In the event of the institution of any suit by a THIRD PARTY PARTY, (a) against CPGVICAL, SB its AFFILIATES, or their AFFILIATES or SB’s sublicensees or distributors its licensees (other than HGS) for patent infringement involving the manufacture, use, import, export, offer for sale, sale, distribution or marketing of PRODUCT and/or COMBINATION by SBEXCLUSIVE VICAL PRODUCT, its AFFILIATES or sublicensees or distributors. Anywhere in the TERRITORY, the party sued VICAL shall promptly notify HGS in writing. As between HGS and VICAL, VICAL shall be solely responsible for the cost and expense of such action and any liability, which results therefrom; (b) against HGS, its AFFILIATES, or its licensees (other than VICAL) for patent infringement involving the manufacture, use, import, export, offer for sale, sale, distribution or marketing of EXCLUSIVE HGS PRODUCT, HGS shall promptly notify VICAL in writing. As between HGS and VICAL, HGS shall be solely responsible for the cost and expense of such action and any liability, which results therefrom; (c) The party defending an action under this Paragraph 10.5 shall have full control over its conduct, including settlement thereof provided such settlement shall not be made without the prior written consent of the other party in writing. SB shall have if it would adversely affect the right but not the obligation to defend patent rights of such suit at its own expense. CPG and SB shall assist one another and cooperate in any such litigation at the other’s request with the requesting party reimbursing all out of pocket expenses of the other partylicensed hereunder. 13.04 10.6 In the event that CPG HGS or SB VICAL becomes aware of actual or threatened infringement of a VICAL PATENT anywhere in or HGS PATENT that claims an EXCLUSIVE VICAL PRODUCT or EXCLUSIVE HGS PRODUCT or the TERRITORY that relates to the FIELDuse thereof, that party shall promptly notify the other party in writing. CPG and/or its licensors The owner of PATENTS the VICAL PATENT or HGS PATENT shall have the first right but not the obligation to bring, at its own expense, an infringement action against any THIRD PARTY and to use the other party's name in connection therewith. If CPG and/or its licensors the owner of PATENTS has the patent does not commenced commence a particular infringement action within ninety (90) days, the other party, after notifying the owner in writing, shall be entitled to bring such infringement action, in its own name and/or in the name of the patent owner, at its own expense to the extent that such party is licensed thereunder. The foregoing notwithstanding, in the event that an alleged infringer certifies pursuant to 21 U.S.C. Section 355(b)(2)(A)(iv) against an issued VICAL PATENT or HGS PATENT that claims EXCLUSIVE VICAL PRODUCT or EXCLUSIVE HGS PRODUCT or the use thereof, as between the patent owner and the owner of the product, the party receiving notice of such certification shall immediately notify the other party of such certification, and if fourteen (14) days prior to expiration of notification the forty five (45) day period set forth in 21 U.S.C. Section 355(c)(3)(C), the owner of any such infringementthe patent fails to commence an infringement action, CPG the party receiving notice, in its sole discretion, at its own expense and to the extent that it is licensed under the patent, shall at SB’s request, attempt to coordinate, with licensors of PATENTS and/or CO-EXCLUSIVE licensees of CPG, efforts to allow SB and such licensors and/or licensees be entitled to bring such infringement action at SB’s in its own expensename and/or in the name of the patent owner. The party (parties) conducting such an action under this Paragraph 10.6 shall have full control over their its conduct, including settlement thereof provided, however, that no provided such settlement shall not be entered into made without the agreement prior written consent of CPG the other party if it would adversely affect the patent rights of such party licensed hereunder. The licensing party (i.e., the patent owner) and SB. In any eventthe licensed party (i.e., CPG and SB the owner of the product) shall reasonably assist one another and cooperate in any such litigation at the other’s request 's request, each such party paying its own costs and expense. 13.05 CPG expenses. The party conducting the litigation shall periodically reimburse the other party for its reasonable and SB shall recover their respective actual out-of-pocket expenses incurred at the request of the party conducting the litigation for assisting in the litigation, which reimbursement shall be made within thirty (30) days of receipt by the party conducting the litigation of itemized invoices from the assisting party documenting such expenses, or equitable proportions thereof, associated with any patent litigation or settlement thereof from any . 10.7 Any recovery made by any party. Any excess amount a party as the result of an action for patent infringement it has conducted under Paragraph 10.6 shall be shared between SB distributed as follows: (a) The party conducting the action shall recover its actual out -of-pocket expenses, and CPGthen shall reimburse the other party for any unreimbursed actual and out-of-pocket expenses. (b) To the extent that the recovery exceeds the total of item (a), with the excess shall be kept by the party conducting the action, provided, however, that to the extent that (i) the recovery is based on an award of lost sales/profits, and (ii) the party conducting the action would have incurred a particular infringement action receiving [*******] percent ([**]%) and royalty obligation to the other party receiving [******] percent ([**]%) based upon such sales, the party to whom such royalties would have been due shall receive a proportion of such excess. Notwithstanding the foregoing in excess recovery corresponding to the event that other sublicensees of CPG participate in any such suit, any recovery shall be shared as mutually agreed by all partiesroyalty percentage it would have otherwise been due. 13.06 10.8 The parties shall periodically keep one another reasonably informed of the status of and of their respective activities regarding any patent such litigation or settlement thereof concerning PRODUCT and/or COMBINATIONthereof. 13.07 If required and upon request of SB, CPG shall cooperate with SB to act as CPG’s agent for the purpose of making any application for any extensions of the term of PATENTS (including SPC’s) (in the United States of America as permitted under Title 35 of the United States Code) and shall provide reasonable assistance therefor to SB, at CPG’s expense. CPG shall not take any such action with respect to a SB proprietary PRODUCT, unless so requested by SB. The parties will discuss in good faith the applicable royalty rate of SPC’s, if and when such SPC’s have been obtained, based on the degree of market exclusivity provided. 13.08 CPG, on behalf of itself, and its successors hereby waives any and all actions and causes of action, claims and demands whatsoever in law or equity of any kind against SB and its AFFILIATES based upon the exercise by SB of its rights under this Section 13, except in the case of gross negligence and/or willful misconduct by SB. 13.09 SB recognises that bringing an infringement action under Section 13.04 may result in a counterclaim of invalidity of PATENTS and/or claims in PATENTS. In defending such counterclaim(s), SB agrees to take into reasonable consideration the legitimate rights and interests of CPG and/or any other licensee(s) of CPG.