RESPECT TO ANY SUCH SUIT,
(I) NOT TO UNREASONABLY WITHHOLD, DELAY OR CONDITION ITS PERMISSION TO INITIATE
OR SETTLE SUCH AN ACTION AND (II) IN ANY ACTION AS TO WHICH UNIVERSITY'S CONSENT
IS GRANTED TO PERMIT LICENSEE TO JOIN THE UNIVERSITY IN SUCH SUIT.
SHOULD
UNIVERSITY BE MADE A PARTY TO ANY SUCH SUIT WHICH LICENSEE ELECTS TO INITIATE OR
DEFEND ON BEHALF OF THE UNIVERSITY (BUT NOT ANY SUCH SUIT WHICH UNIVERSITY
ELECTS TO INITIATE OR DEFEND), LICENSEE MUST REIMBURSE UNIVERSITY FOR ANY
REASONABLE COSTS, EXPENSES, OR FEES THAT UNIVERSITY INCURS AS A RESULT OF SUCH
SUIT, INCLUDING ANY AND ALL COSTS INCURRED BY UNIVERSITY IN OPPOSING ANY SUCH
MOTION OR OTHER ACTION.
IF REQUESTED BY UNIVERSITY, LICENSEE SHALL ADVANCE SUCH
COSTS ON A MONTHLY BASIS.
UPON LICENSEE'S PAYMENT OF ALL COSTS INCURRED BY
UNIVERSITY AS A RESULT OF LICENSEE'S JOINDER MOTION OR OTHER ACTION, THESE
ACTIONS BY LICENSEE WILL NOT BE CONSIDERED A DEFAULT IN THE PERFORMANCE OF ANY
MATERIAL OBLIGATION UNDER THIS AGREEMENT.
IN ALL CASES, LICENSEE WILL KEEP
UNIVERSITY AND LICENSOR REASONABLY APPRISED OF THE STATUS AND PROGRESS, AND WILL
COLLABORATE WITH RESPECT TO THE PROSECUTION OR DEFENSE, OF ANY LITIGATION
PROSECUTED OR DEFENDED BY LICENSEE.
THE UNIVERSITY MAY, AT ITS OWN EXPENSE,
RETAIN SEPARATE COUNSEL TO PARTICIPATE IN ANY SUCH ACTION OR PROCEEDING IN WHICH
IT IS OR IS REASONABLY LIKELY TO BECOME A PARTY SO THAT IT CAN CONTROL ITS OWN
PROSECUTION OR DEFENSE, BUT THE UNIVERSITY SHALL STILL BE OBLIGATED TO
COLLABORATE, AS APPROPRIATE, WITH LICENSEE AND LICENSOR.
LICENSOR AND LICENSEE
EACH AGREE THAT IT WILL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE
UNIVERSITY,
22
SETTLE, COMPROMISE OR CONSENT TO THE ENTRY OF ANY JUDGMENT IN ANY ACTION OR
PROCEEDING RELATED TO THE MATTERS CONTEMPLATED IN THIS SECTION.
9.2.2
IN ANY ACTION COMMENCED OR DEFENDED PURSUANT TO
SECTION 9.2.1 BY LICENSEE, THE EXPENSES OF LICENSEE, INCLUDING COSTS, FEES,
ATTORNEY FEES, AND DISBURSEMENTS, MUST BE PAID BY LICENSEE.
ANY RECOVERY MADE
BY LICENSEE FROM SUCH ACTION, THROUGH COURT JUDGMENT OR SETTLEMENT, MAY FIRST BE
APPLIED TO REIMBURSE LICENSEE FOR ITS LITIGATION EXPENSES WITH RESPECT TO ALL
SUCH ACTIONS; [*
*
*] PERCENT [*
*
*] OF ANY REMAINING RECOVERIES SHALL BE
PAID TO LICENSOR.
10.
INFRINGEMENT OF THIRD PARTY RIGHTS
10.1
THIRD PARTY CLAIMS.
IN THE EVENT OF A JUDGMENT
IN ANY SUIT IN WHICH A THIRD PARTY ASSERTS PATENT RIGHTS COVERING THE USE OF API
FOR MENOPAUSE INDICATIONS, WHICH JUDGMENT REQUIRES LICENSEE TO PAY DAMAGES OR A
ROYALTY IN RESPECT OF THE PRODUCT TO SUCH THIRD PARTY OR IN THE EVENT OF A
SETTLEMENT OF SUCH SUIT OR THREATENED SUIT CONSENTED TO BY LICENSOR (WHICH
CONSENT SHALL NOT BE UNREASONABLY WITHHELD) REQUIRING DAMAGES OR ROYALTY
PAYMENTS TO BE MADE IN RESPECT OF THE PRODUCT, THE PAYMENTS THEREAFTER DUE TO
LICENSOR PURSUANT TO SECTIONS 5.2, 5.3, 5.4, 5.5 AND 5.6 SHALL BE REDUCED BY AN
AMOUNT EQUAL TO NO GREATER THAN [*
*
*] PERCENT [*
*
*] OF THE FULL AMOUNTS