ACTION.
THEREAFTER, BIOLINERX SHALL KEEP IKARIA INFORMED, AND SHALL FROM TIME TO TIME
CONSULT WITH IKARIA REGARDING THE STATUS OF ANY SUCH SUIT OR ACTION AND SHALL
PROVIDE IKARIA WITH COPIES OF ALL MATERIAL DOCUMENTS (I.E., COMPLAINTS, ANSWERS,
COUNTERCLAIMS, MATERIAL MOTIONS, ORDERS OF THE COURT, MEMORANDA OF LAW AND LEGAL
BRIEFS, INTERROGATORY RESPONSES, DEPOSITIONS, MATERIAL PRE-TRIAL FILINGS, EXPERT
REPORTS, AFFIDAVITS FILED IN COURT, TRANSCRIPTS OF HEARINGS AND TRIAL TESTIMONY,
TRIAL EXHIBITS AND NOTICES OF APPEAL) FILED IN, OR OTHERWISE RELATING TO, SUCH
SUIT OR ACTION.
ANY RECOVERY OBTAINED AS A RESULT OF ANY PROCEEDING PURSUANT TO
THIS SUBSECTION (B)(II), BY SETTLEMENT OR OTHERWISE, SHALL BE APPLIED IN THE
FOLLOWING ORDER OF PRIORITY: (A) FIRST, EACH PARTY SHALL BE REIMBURSED, ON A PRO
RATA BASIS, FOR ALL COSTS INCURRED BY SUCH PARTY IN CONNECTION WITH SUCH SUIT;
AND (B) SECOND, ANY REMAINDER SHALL BE SHARED [**]% FOR BIOLINERX AND [**]% FOR
IKARIA.
(III)
IF BIOLINERX CHOOSES NOT TO INITIATE A SUIT OR TAKE OTHER
APPROPRIATE ACTION UNDER SUBSECTION (B)(II) ABOVE TO PROTECT SUBLICENSED IP FROM
COMPETITIVE INFRINGEMENT AND
21
BGN EXERCISES ITS RIGHTS UNDER THE BGN LICENSE AGREEMENT TO PROSECUTE, PREVENT,
OR TERMINATE SUCH COMPETITIVE INFRINGEMENT, ANY AMOUNT RECEIVED BY BIOLINERX IN
CONNECTION THEREWITH, WHETHER BY SETTLEMENT OR OTHERWISE, [**].
(C)
CLAIMED INFRINGEMENT.
IF A PARTY BECOMES AWARE OF ANY CLAIM THAT
THE DEVELOPMENT, MANUFACTURE, OR COMMERCIALIZATION OF PRODUCTS FOR USE IN THE
FIELD IN THE TERRITORY INFRINGES PATENT RIGHTS OR ANY OTHER INTELLECTUAL
PROPERTY RIGHTS OF ANY THIRD PARTY, SUCH PARTY SHALL PROMPTLY NOTIFY THE OTHER
PARTY.
IN ANY SUCH INSTANCE, IKARIA SHALL HAVE THE EXCLUSIVE RIGHT TO SETTLE
SUCH CLAIM.
(D)
PATENT INVALIDITY CLAIM.
IF A THIRD PARTY AT ANY TIME ASSERTS A
CLAIM THAT ANY BIOLINERX PATENT RIGHTS IS INVALID OR OTHERWISE UNENFORCEABLE (AN
"INVALIDITY CLAIM"), WHETHER (I) AS A DEFENSE IN AN INFRINGEMENT ACTION BROUGHT
BY IKARIA OR BIOLINERX PURSUANT TO SUBSECTION (B) ABOVE, OR (II) IN AN ACTION
BROUGHT AGAINST IKARIA OR BIOLINERX REFERRED TO IN SUBSECTION (C) ABOVE, OR
(III) OTHERWISE, THE PARTIES SHALL COOPERATE WITH EACH OTHER IN PREPARING AND
FORMULATING A RESPONSE TO SUCH INVALIDITY CLAIM.
NEITHER PARTY SHALL SETTLE OR
COMPROMISE ANY INVALIDITY CLAIM WITHOUT THE CONSENT OF THE OTHER PARTY, WHICH
CONSENT SHALL NOT BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED.
(E)
CONDUCT OF CERTAIN ACTIONS; COSTS.
IKARIA SHALL HAVE THE SOLE AND
EXCLUSIVE RIGHT TO SELECT COUNSEL FOR ANY SUIT INITIATED BY IT REFERENCED IN
SUBSECTION (B)(I) ABOVE OR AGAINST IT REFERENCED IN SUBSECTION (C) ABOVE, AND
BIOLINERX SHALL HAVE THE SOLE AND EXCLUSIVE RIGHT TO SELECT COUNSEL FOR ANY SUIT
INITIATED BY IT REFERENCED IN SUBSECTION (B)(II) ABOVE.
IF REQUIRED UNDER
APPLICABLE LAW IN ORDER FOR A PARTY (THE "LEAD PARTY") TO INITIATE OR MAINTAIN
SUCH SUIT, THE OTHER PARTY SHALL JOIN AS A PARTY TO THE SUIT.
SUCH OTHER PARTY
SHALL OFFER REASONABLE ASSISTANCE TO THE LEAD PARTY IN CONNECTION THEREWITH AT
NO CHARGE TO THE LEAD PARTY EXCEPT FOR REIMBURSEMENT OF SUCH OTHER PARTY'S
REASONABLE OUT-OF-POCKET EXPENSES