Defense. The right to defend the applicable [[EPIZYME:Organization]] Patent, Collaboration Patent or Joint Patent against such assertion of invalidity or unenforceability shall be determined in the same manner as the right to enforce such Patent pursuant to [Section 8.5]; provided that, if the assertion is made in a suit that is already being controlled by a Party pursuant to [Section 8.4 or 8.5]5], the controlling Party shall retain control of such defense. The other Party may participate in any such claim, suit, or proceeding with counsel of its choice at its own expense. If a Party elects not to defend or control the defense of the [[EPIZYME:Organization]] Patents, Collaboration Patents or Joint Patents, or otherwise fails to initiate and maintain the defense of any such claim, suit, or proceeding, then the other Party may conduct and control the defense of any such claim, suit, or proceeding at its own expense.

Defense. Each Party will notify the other Party promptly upon learning of a Claim that is subject to indemnification pursuant to Section 13.1; provided, however, that any failure by the Indemnified Party to provide prompt notice to the Indemnifying Party will not relieve such Indemnifying Party from, or reduce its, indemnification obligation under Section 13.1, unless any delay in providing notice results in actual prejudice to the Indemnifying Party. The Indemnifying Party may control, at its own expense, the defense of the Claim in good faith with counsel of its choice as long as such counsel is reasonably acceptable to the Indemnified Party. The Indemnified Party will use reasonable efforts to cooperate in the defense and may participate at its own expense using its own counsel. No compromise or settlement of any Claim may be made by the Indemnifying Party without the Indemnified Party’s written consent (such consent not to be unreasonably withheld, conditioned or delayed) unless # there is no finding or admission of any violation of Applicable Law or any violation of the rights of any Person, # the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, and # the Indemnified Party’s rights under this TSA are not adversely affected.

Defense. If both Parties are charged with infringement pursuant to a claim described in Section 6.4(a), the Parties shall defend such claim jointly, unless they agree otherwise. If only one Party is charged with infringement, such Party will have the first right but not the obligation to defend such claim. If the charged Party does not commence actions to defend such claim within ​ (​) calendar days after being so charged, then the other Party shall have the right, but not the obligation, to defend any such claim. In any event, the non-defending Party shall reasonably cooperate with the Party conducting the defense of the claim and shall have the right to participate with separate counsel at its own expense, and the defending Party shall consider comments by the non-defending Party in good faith. The Party defending the claim shall bear the cost and expenses of the defense of any such Third Party infringement claim and shall have sole rights to any recovery. If the Parties jointly defend the claim, BioXcel shall bear ​ percent (​), and Nektar shall bear ​ percent (​) of any costs and expenses of the defense of any such Third Party infringement claim; provided, however, that, notwithstanding the foregoing, if the claim relates solely to one Party’s Compound, such Party will bear one hundred percent (100%) of the costs and expenses of the defense of such claim, shall have sole rights to any recovery and shall have the sole right, but not the obligation, to defend, settle and otherwise handle the disposition of such claim. If either Party recovers monetary damages from any Third Party while jointly defending the claim, such recovery shall be allocated first to the reimbursement of any actual, unreimbursed costs and expenses incurred by the Parties in such litigation (including, for this purpose, a reasonable allocation of expenses of internal counsel) pro rata in accordance with the aggregate amounts spent by both Parties, and any remaining amounts shall be split ​ percent (​) to BioXcel and ​ percent (​) to Nektar, unless the Parties agree in writing to a different allocation. Neither Party shall enter into any settlement concerning activities under this Agreement or the Combined Therapy that affects the other Party’s rights under this Agreement or imposes any obligations on the other Party, including any admissions of wrongdoing on behalf of the other Party, without such other Party’s prior written consent, not to be unreasonably withheld or delayed, except that a Party may settle any claim that solely relates to its Compound without the consent of the other Party as long as such other Party’s rights under this Agreement are not adversely impacted (in which case, it will obtain such other Party’s prior written consent, not to be unreasonably withheld or delayed).

Defense. In the event that a claim is brought against either Party alleging the infringement, violation or misappropriation of any Third Party intellectual property right based on the manufacture, use, sale or importation of the Licensed Products in the Field and in the Territory, the Parties shall promptly meet to discuss the defense of such claim, and the Parties shall, as appropriate, enter into a joint defense agreement with respect to the common interest privilege protecting communications regarding such claim in a form reasonably acceptable to the Parties.

Defense. In the event that a claim is brought against either Party alleging the infringement, violation or misappropriation of any Third Party intellectual property right based on the manufacture, use, sale or importation of the Licensed Products in the Field and in the Territory, the Parties shall promptly meet to discuss the defense of such claim, and the Parties shall, as appropriate, enter into a joint defense agreement with respect to the common interest privilege protecting communications regarding such claim in a form reasonably acceptable to the Parties.

Agreement as Defense. This Agreement may be pleaded as a full and complete defense to any subsequent action or other proceeding arising out of, relating to, or having anything to do with any and all Claims, counterclaims, defenses or other matters capable of being alleged, which are specifically released and discharged by this Agreement. This Agreement may also be used to abate any such action or proceeding and/or as a basis of a cross complaint for damages.

Agreement as Defense. This Agreement may be pleaded as a full and complete defense to any subsequent action or other proceeding arising out of, relating to, or having anything to do with any and all Claims, counterclaims, defenses or other matters capable of being alleged, which are specifically released and discharged by this Agreement. This Agreement may also be used to abate any such action or proceeding and/or as a basis of a cross complaint for damages.

Defense. In the event that a claim is brought against either Party alleging the infringement, violation or misappropriation of any Third Party intellectual property right based on the manufacture, use, sale or importation of the Licensed Products in the Field and in the Territory, the Parties shall promptly meet to discuss the defense of such claim, and the Parties shall, as appropriate, enter into a joint defense agreement with respect to the common interest privilege protecting communications regarding such claim in a form reasonably acceptable to the Parties.

Agreement as a Defense/Costs of Enforcement. Executive agrees that if he asserts any claim, action, charge or suit against the Releasees, the Releasees, or any of them, may plead this Agreement as an absolute defense. Executive further agrees that if Executive breaches this Agreement and brings a Released Claim against any of the Releasees or otherwise breaches this Agreement, Executive shall be liable for any and all expenses incurred by the person or entity who has to defend the action, including reasonable attorney’s fees; provided however, that this Paragraph 2(f) shall not apply to charges filed by Executive with the EEOC or other federal or state regulatory or law enforcement agency or to claims initiated by Executive to challenge the validity of the release of ADEA claims under this Agreement, including the knowing and voluntary nature of the ADEA release under the OWBPA.

Defense. To the extent either Party receives notice by counterclaim, or otherwise, challenging the invalidity or unenforceability of any Patent Rights within the Foreground IP (a “Third Party Action”), it will notify the other Party, including providing all relevant information related to such claim. Where such allegation is made by a Third Party that owns or controls, and is developing, producing or commercializing a Competitive Product that infringes such Patent Rights, Customer will have the first right, but not the obligation, to control the defense of such Third Party Action. If Customer elects not to defend such Third Party Action, or fails to take the requisite actions to defend such Third Party Action within a ​ period or such shorter time if such failure would materially prejudice Customer’s right to defend such Third Party Action, Ginkgo will have the right (but not the obligation) to assume and control such defense. With respect to other Third Party Actions, the Parties will jointly control the defense of such Third Party Action.