|ARRAY BIOPHARMA INC filed this Form 10-K on 08/11/2017|
[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
against Third Party products in the Ono Territory that infringe the Joint Patents but that are not “Infringing Products”, the Parties shall discuss and agree at the time when the Parties consult with respect to the strategy of such enforcement action in response to such Third Party infringement.
(i) Array and Ono shall recover their respective actual out-of-pocket expenses (including attorneys’ fees), or equitable proportions thereof, associated with any litigation against infringers undertaken pursuant to Section 11.3(a) (i) or (ii) above or settlement thereof from any resulting recovery made by either Party. Any excess amount of such a recovery shall be allocated as follows: (i) if Ono initiated such litigation, [ * ] of such excess amount shall be retained by Ono and [ * ] by Array, and (ii) if Array initiated such litigation, Array shall retain [ * ] of such excess amount and Ono shall obtain [ * ] of such excess amount, to the extent such excess amount represents damages relating to Manufacture or sale or use of an Infringing Product in the Ono Territory.
(ii) With respect to enforcement actions against infringers relating to Joint Patents undertaken pursuant to 11.3(a)(iii) above, the Parties shall discuss and agree in good faith at the time when the Parties consult with respect to the strategy of such enforcement action in response to such Third Party infringement.
(c) Cooperation. The Parties shall keep one another informed of the status of their respective activities regarding any litigation or settlement thereof concerning the Array Patents or the Array Know-How within the Ono Territory, and shall assist one another and cooperate in any such litigation at the other’s reasonable request (including joining as a party plaintiff to the extent necessary and requested by the other Party).
11.4 Third Party Infringement Claims.
(a) If the production, sale or use of any Product in the Ono Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against Array and/or Ono (or their respective Affiliates, licensees or Sublicensees) (collectively, “Infringement Actions”), the Party subject to such claim, suit or proceeding (“Subject Party”) shall promptly notify the other Party hereto in writing and shall discuss with the other Party the strategy for defending such Infringement Actions but shall have the right to direct and control the defense thereof in its sole discretion and at its own expense, with counsel of its choice; provided, however, the other Party may participate in the defense and/or settlement thereof, at its own expense with counsel of its choice. In any event, the Subject Party agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement Action. Ono agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the allegedly infringing Product