In this task, you're given a passage that represents a legal contract or clause between multiple parties. Your job is to write questions that ask the basic details corresponding to the legal contracts or clauses. Avoid questions that can be answered correctly without actually understanding the paragraph, and which might have multiple answers. The answer to each question should be unambiguous.

[Q]: Exhibit 10.5 Confidential Treatment Requested by Achaogen, Inc.   COLLABORATIVE DEVELOPMENT AND COMMERCIALIZATION AGREEMENT

  This Collaborative Development and Commercialization Agreement (Agreement) is entered into as of April 26, 2016 (Effective Date) by and between Microgenics Corporation (hereinafter Microgenics), having its principal place of business at 46500 Kato Road, Fremont, California 94538, and Achaogen Inc. (hereinafter Achaogen), having a place of business at 7000 Shoreline Court, #371, South San Francisco, California 94080. Both Microgenics and Achaogen are referred to herein individually as a Party and collectively as the Parties.   WHEREAS, Achaogen possesses certain intellectual property rights and know-how relating to drug compound Plazomicin;   WHEREAS, Microgenics has certain expertise and know-how relating to the development, manufacture and sale of immunoassays for in vitro diagnostic use;   WHEREAS, the Parties are undertaking, as of the Effective Date, activities under that certain Antibody Development Agreement, dated [***] (the Antibody Development Agreement), for the purpose of identifying and developing antibodies against Plazomicin and this Agreement is the Assay Commercialization Agreement referred to in Section 2.6 of the Antibody Development Agreement; and   WHEREAS, the Parties desire to collaborate on the development and commercialization of a therapeutic drug monitoring assay for the measurement of concentrations of Plazomicin in biological fluids.   NOW THEREFORE, in consideration of the foregoing premises and the covenants and promises contained herein, the Parties intending to be bound, hereby agree as follows:   1. Definitions   For the purposes of this Agreement and the Exhibits hereto, the following words and phrases shall have the following meanings (words defined in the Agreement shall have the meaning ascribed to them in that Section):   1.1 Achaogen Know-How shall mean all proprietary, technical and clinical information, data and know-how relating to Plazomicin and haptens and polyclonal antibodies related directly to Plazomicin, whether or not patentable, which is Controlled as of the Effective Date or acquired during the Term by Achaogen.   1.2 Achaogen Materials shall mean the materials set forth in Exhibit A.   1.3 Achaogen Patents shall mean the Patents and Patent applications set forth in Exhibit B hereto.   1.4 Affiliate shall mean, with respect to a Party, any corporation, or other business entity which directly controls, is controlled by or is under common control with that Party. A person or entity shall be regarded as in control of another entity if it owns, directly or indirectly, fifty percent (50%) or more of the outstanding equity securities of the subject entity which is entitled to vote in the election of directors, or a fifty percent (50%) or greater interest in the net assets or profits of the subject entity if such entity is not a corporation.

[***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions.





Confidential Treatment Requested by Achaogen, Inc.     1.5 Applicable Law shall mean all applicable provisions of all statutes, laws, rules, regulations, administrative codes, ordinances, decrees, orders, decisions, injunctions, awards judgments, permits and licenses of or from governmental authorities, including those relating to or governing the use or regulation of the subject item and the listing standards or agreements of any national or international securities exchange.   1.6 Assay shall mean an antibody-based immunoassay or immunoassays used for the  in vitro measurement of Plazomicin concentration in human blood and other body fluids,  [***], that (a) uses or otherwise would infringe Immunoassay Technologies, (b) is developed by Microgenics and its Affiliates under this Agreement, and (c) [***].   1.7 Commercially Reasonable Efforts shall mean efforts and resources normally utilized by a Party for a product owned by it or to which it has rights, which is of similar market potential at a similar stage in its product life, taking into account the competitiveness of the marketplace, the proprietary position of the product, the regulatory structure involved, the profitability of the applicable products, the relative benefit that accrues to actual and potential patients and other relevant factors; provided, that, in any event, Commercially Reasonable Efforts under this Agreement require that a Party (a) [***], (b) [***], and (c) [***].   1.8 Confidential Information shall mean all proprietary and confidential business, technical, scientific, and/or regulatory information relating to the Assay, Plazomicin, and/or the purpose of, or activities under, this Agreement, that is provided by or on behalf of a Disclosing Party to a Receiving Party hereunder, whether disclosed in writing or orally.   1.9 Control shall mean with respect to any (a) item of information, including know-how, or (b) intellectual property right, the possession (whether by ownership or license) by a Party of the ability to grant to the other Party access and/or a license as provided herein under such item or right without violating the terms of any agreement or other arrangements with any Third Party existing before or after the Effective Date.   1.10 Development and Manufacturing Phase shall mean that phase of the Research Program set forth in the Project Plan relating to the optimization of the Assay and the manufacture and validation of [***] ([***]) production lots of the Assay that meet the Specifications [***].   1.11 Feasibility Study Phase shall mean that phase of the Research Program set forth in the Project Plan comprising all studies conducted by Microgenics to establish the feasibility for developing the Assay by demonstrating (a) [***], (b) [***], (c) [***], (d) [***], (e) [***], and (f) [***].   1.12 First Commercial Sale shall mean (a) with respect to the Assay, the initial sale by or on behalf of Microgenics (or its Affiliates) of the Assay and (b) with respect to Plazomicin, the initial sale by or on behalf of Achaogen (or its Affiliates) of Plazomicin, in each case, to a Third Party in exchange for cash or some equivalent to which value can be assigned; provided, that a sale of the Assay or Plazomicin, as applicable, in connection with [***] of the Assay or Plazomicin, as applicable, or for [***] therefor will not constitute First Commercial Sale.   1.13 Good Clinical Practice or GCP shall mean the then current standard for clinical trials for assays, as set forth in the United States Federal Food, Drug and Cosmetics Act and applicable regulations

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Confidential Treatment Requested by Achaogen, Inc.   promulgated thereunder, as amended from time to time and such standards of good clinical practice as are required by the European Union and other organizations and governmental agencies in countries where the Assay is intended to be sold, to extent such standards are no less stringent than United States GCP.   1.14 Good Laboratory Practice or GLP shall mean the then current standards for laboratory activities for assays, as set forth in the United States Federal Food, Drug and Cosmetics Act and applicable regulations promulgated thereunder, as amended from time to time and such standards of good laboratory practice as are required by the European Union and other organizations and governmental agencies in countries where the Assay is intended to be sold, to extent such standards are no less stringent than United States GLP.   1.15 Good Manufacturing Practices or GMP shall mean the then current standards for the manufacture of assays, as set forth in the United States Federal Food Drug and Cosmetics Act and applicable regulations promulgated thereunder, as may be amended from time to time and such standards of good manufacturing practice as are required by the European Union and other organizations and governmental agencies in countries where the Assay is intended to be sold, to extent such standards are no less stringent than United States GMP.   1.16 Immunoassay Technologies shall mean technologies, including any patentable or unpatentable intellectual property rights appurtenant thereto, Controlled by Microgenics or its Affiliates suitable for developing and manufacturing assays, calibrators and controls for application on  [***], including  [***] assay technology,  [***] technology,  [***] technology,  [***] immunoassay, the Microgenics Cell Line, and Microgenics [***] Antibodies.   1.17 Microgenics Cell Line shall mean those certain cell lines (a) that were developed under the Antibody Development Agreement, or (b) that produce Microgenics [***] Antibodies and are Controlled by Microgenics and listed in Exhibit C, as such Exhibit may be amended from time to time upon the mutual written agreement of the Parties.   1.18 Microgenics Know-How shall mean all proprietary, technical information, data and know-how relating to the Assay or Immunoassay Technologies and reagents for use therewith which are Controlled as of the Effective Date or acquired or developed during the Term by Microgenics or its Affiliates.   1.19 Microgenics [***] Antibodies shall mean [***] antibodies developed by, or Controlled by, Microgenics or its Affiliates and directed to Plazomicin.   1.20 Patent shall mean any existing or future: (a) national, regional or international patent or patent application in any jurisdiction (including any provisional, divisional, continuation, continuation-in-part, non-provisional, converted provisional, or continued prosecution application, any utility model, petty patent, design patent and/or certificate of invention), (b) any extension, restoration, revalidation, reissue, re-examination and extension (including any supplementary protection certificate and the like) of any of the foregoing patents or patent applications, and (c) any ex-U.S. equivalents corresponding to any of the foregoing.   1.21 Plazomicin shall mean Achaogen's aminoglycoside antibiotic that is in Phase 3 clinical development as of the Effective Date and having the chemical structure shown on Exhibit D, and [***] thereof, regardless of commercial name.

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Confidential Treatment Requested by Achaogen, Inc.   1.22 Primary Countries shall mean (a) the countries set forth on  Exhibit E  and (b) any other country in the Territory which the Parties mutually agree in writing shall be a Primary Country in accordance with Section 4.2.5, in each case, for which the Parties intend to pursue initial registration, commercialization and launch of the Assay.   1.23 Project Plan shall mean the plan of work to be conducted under the Research Program pursuant to Section 2.1 (Project Plan) hereof as attached as Exhibit F.   1.24 Regulatory  Approval shall mean all authorizations, registrations or clearances with or by the appropriate Regulatory Authorities which are required for the marketing, promotion, pricing and sale of either the Assay or Plazomicin, as applicable, in any country or regulatory jurisdiction in the Territory.   1.25 Regulatory Authority shall mean any national, supra-national, regional, state or local regulatory agency, department, bureau, commission, council or other governmental entity involved in the granting of Regulatory Approval, including the United States Food and Drug Administration.   1.26 Research Program shall mean the collaborative program of research relating to the development of the Assay to be carried out by the Parties pursuant to this Agreement.   1.27 Secondary Countries shall mean all countries in the Territory, other than the Primary Countries.   1.28 Shortfall License shall mean a temporary, fully-paid up, royalty-free, worldwide non-exclusive license granted by Microgenics (including on behalf of its Affiliates as appropriate), under Section 4.3.2.3, to (a) the Immunoassay Technologies and (b) all other intellectual property rights (including Patent applications, Patents, trade secrets, copyrights, and trademarks) (i) of Microgenics (or its Affiliates as appropriate) arising out of the performance of this Agreement or the Antibody Development Agreement, or (ii) Controlled by Microgenics (or its Affiliates as appropriate) that are necessary or desirable for or used in the manufacture and commercialization of the Assay, which license would be for the manufacture, use, sale, offer for sale and import of the Assay. Such license shall be fully sub-licensable to any Third Party for purposes of manufacturing and commercializing the Assay (including the components thereof) under Section 4.3.2.3.   1.29 Specifications shall mean the specifications applicable to the Assay, as set forth on Exhibit G.   1.30 Territory shall mean the world.   1.31 Third Party(ies) shall mean any person(s) or entity(ies) other than Achaogen, Microgenics or their respective Affiliates.   1.32 Trademarks shall mean all registered and unregistered trademarks (including all common law rights thereto), service marks, trade names, brand names, logos, taglines, slogans, certification marks, Internet domain names, trade dress, corporate names, business names and other indicia of origin, together with the goodwill associated with any of the foregoing and all applications, registrations, extensions and renewals thereof throughout the world, and all rights therein provided by international treaties and conventions.

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Confidential Treatment Requested by Achaogen, Inc.   1.33 Transfer License shall mean a royalty-bearing, worldwide exclusive license granted by Microgenics (including on behalf of its Affiliates as appropriate), under Section 9.4.4.1, to (a) the Immunoassay Technologies and (b) all Patent applications, Patents, trade secrets and other know-how, (i) of Microgenics (or its Affiliates as appropriate) arising out of the performance of this Agreement or the Antibody Development Agreement, or (ii) Controlled by Microgenics (or its Affiliates as appropriate) as of the termination date of this Agreement that are necessary for or used in the development, manufacture, and commercialization of the Assay, which license would be solely for the development, manufacture, use, sale, offer for sale and import of the Assay in connection solely with the use of Plazomicin. Such license shall be fully sub-licensable to any Third Party for purposes of manufacturing and commercializing the Assay (including the components thereof) [***].   1.34 Additional Definitions. Each of the following definitions is set forth in the Section of the Agreement indicated below.   Definition Section AAA 13.8.2 Abandoned Commercialization 4.2.7.1 Abandoned Development 4.2.7.1 Achaogen Preamble Achaogen Indemnified Parties 11.2 Achaogen Inventions 8.1 Agreement Preamble Alliance Manager 5.1.1 Antibody Development Agreement Recitals Assay Commercialization Plan 4.2.4 Audit Outcome 4.4.2 Back-up Supplier 4.3.2.2 Binding Forecast 4.2.2 Commercial Leader 5.3.1 Convicted Entity or Convicted Individual 10.4.4 Debarred Entity 10.4.2 Debarred Individual 10.4.1 Development Leader 5.3.1 Disclosing Party 12.1 Dispute 13.8.1 Effective Date Preamble Excluded Entity or Excluded Individual 10.4.3 FDA 10.4.5 FDA Disqualified/Restricted List 10.4.5 Force Majeure Event 13.1 Functional Leaders 5.3.1 Joint Project Team or JPT 5.3.1 JSC 5.2 [***] Products 8.1 Joint Patent 8.2.2 Launch Plan 4.2.4 Losses 11.1

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Confidential Treatment Requested by Achaogen, Inc.   Definition Section Microgenics Preamble Microgenics Indemnified Parties 11.1 Microgenics Inventions 8.1 Minimum Threshold 4.2.3 Minimum Threshold Period 4.2.3 Party or Parties Preamble Plazomicin Commercialization Plan 4.2.1 Receiving Party 12.1 Regulatory Finding 3.3.1.2 Regulatory Leader 5.3.1 Responsible Party 8.3.1 Review Party 8.3.1 Supply Resumption Date 4.3.2.2 Term 9.1 Third Party Claims 11.1 VAT 7.3.2     2 Research and Development Collaboration   2.1 Project Plan. The Parties shall collaborate on the Research Program in accordance with the Project Plan, as set forth as Exhibit F. As may be necessary or reasonable from time-to-time, the JPT may suggest appropriate revisions to the Project Plan to the JSC for its review in accordance with Section 5.3.2 and, if approved by the JSC in accordance with Section 5.1, the Project Plan may be amended from time to time by the JSC.   2.2 Party Responsibilities.   2.2.1 General. Microgenics and Achaogen shall each perform their respective obligations under the Research Program, using Commercially Reasonable Efforts, in accordance with the Project Plan and in compliance with Applicable Law.   2.2.2 Achaogen. Achaogen shall supply to Microgenics,  [***], (a) Achaogen Materials, including Plazomicin and Plazomicin clinical patient samples, in such quantities as are set forth in Exhibit A or otherwise mutually agreed by the Parties or set forth in the Project Plan; and (b) all necessary and in Achaogen's possession Plazomicin pharmacological and biochemical information, including  [***] etc., to enable the JPT to correctly design the Assay and Microgenics to work with the appropriate Regulatory Authorities to secure Regulatory Approval for the Assay. Microgenics shall not transfer any portion of the Achaogen Materials to any Third Party or use the Achaogen Materials for any purpose other than the purposes of performing its obligations under, and in accordance with, this Agreement and the applicable Project Plan. Microgenics shall hold, store and transport all supplies of the Achaogen Materials in compliance with all Applicable Laws and  [***]. Microgenics shall maintain complete and accurate records relating to the disposition of all Achaogen Materials.   2.2.3 Microgenics. Subject to the provisions of this Agreement (including Article 3 (Regulatory Submissions and Meetings)), Microgenics shall be responsible for the research, development, manufacture and sale of the Assay. Microgenics shall manufacture the Assay according to the Specifications

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Confidential Treatment Requested by Achaogen, Inc.   attached hereto as  Exhibit G (which may be amended from time to  time by the JSC in accordance with Section  5.1) and in accordance with the timelines set forth in the Project Plan. Without limiting the foregoing, Microgenics shall develop and commercialize the Assay such that it is capable of being run on no less than [***] ([***]) distinct [***] platforms, which [***] platforms shall be mutually agreed upon by the Parties in good faith.   2.3 Information Exchange, Records and Compliance.   2.3.1 Technology Transfer.  Achaogen shall provide Microgenics with all Achaogen Know-How  [***] reasonably necessary for Microgenics to carry out its responsibilities under the Research Program and to obtain Regulatory Approvals for the Assay. Microgenics shall provide Achaogen with all Microgenics Know-How  [***] reasonably necessary for Achaogen to carry out its responsibilities under the Research Program and to conduct clinical trials of Plazomicin. All information exchanged shall be subject to the confidentiality requirements set forth in Article 12 (Confidentiality) hereof.   2.3.2 Record Keeping/Compliance. During the Term and for a period of [***] ([***]) years thereafter (or such longer period of time as required by Applicable Laws), each Party shall maintain records in sufficient detail and in good scientific manner appropriate for obtaining and maintaining Regulatory Approvals. Achaogen shall have the right (either by itself or through a Third Party reasonably acceptable to Microgenics), during normal business hours and upon reasonable notice, to inspect records pertinent to Microgenics' obligations under this Agreement. To the extent such records contain Confidential Information of Microgenics, Achaogen shall maintain such Confidential Information disclosed therein in confidence in accordance with Article 12. Achaogen shall have the right to arrange for its employee(s) and/or consultant(s) involved in the activities contemplated hereunder, during normal business hours and upon reasonable notice, to discuss the development activities and results contemplated under this Agreement in detail with the technical personnel and consultant(s) of Microgenics. Each Party shall comply with all applicable GLP, GCP, GMP, ISO 9001 and ISO 13485:2003 requirements and other Applicable Laws in the conduct of the Research Program and in the activities contemplated under this Agreement, including the development, manufacture and commercialization of the Assay.   2.4 Installation and Training. Upon Achaogen's request, Microgenics shall, [***], install any necessary equipment and train appropriate staff at clinical sites designated by Achaogen for the performance of clinical trials by Achaogen, in connection with obtaining Regulatory Approval for Plazomicin, and in order to enable such sites to use the Assay in connection with such use of Plazomicin and provide training for such sites' personnel on how to operate such equipment. For clarity, [***] shall be [***] responsible for the costs of (a) any clinical trials conducted for purposes of obtaining Regulatory Approval for the Assay (as opposed to Regulatory Approval for Plazomicin) and (b) any activities conducted in a given country in the Territory following the receipt of Regulatory Approval for the Assay for such country (e.g. commercial activities).   2.5 Quality Agreement. No later than  [***]  ([***]) days after the Effective Date (or such later date as may be otherwise agreed upon by the Parties in writing), the Parties shall enter into a quality agreement defining the commitments of both Parties to ensure that the Assay and related services developed and commercialized under this Agreement satisfy the quality and regulatory requirements required by this Agreement.  Microgenics shall manage all Achaogen Materials (including clinical patient samples) according to customer property requirements described in such quality agreement.   2.6 BARDA Requirements. The Parties acknowledge and agree that Achaogen receives funding

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Confidential Treatment Requested by Achaogen, Inc.   from the United States government through the Biomedical Advanced Research and Development Authority within the office of the Assistance Secretary for Preparedness and Response in the United States Department of Health and Human Services (BARDA) in connection with Achaogen's development of new antibacterial treatment of MDR gram-negative bacterial infection. In connection with the foregoing, the terms and conditions of this Agreement shall be subject in their entirety to the terms and conditions set forth on Appendix A of Exhibit H. In the event of any conflict between the terms and conditions of the main body of this Agreement and Appendix A of Exhibit H, Appendix A of Exhibit H shall control.   3 Regulatory Submissions and Meetings    3.1 Coordination. Achaogen and Microgenics shall [***] coordinate the therapeutic and diagnostic regulatory filings and communications with Regulatory Authorities in the Territory. Achaogen will be responsible for all activities regarding the Regulatory Approval of Plazomicin (and, as between the Parties, Achaogen shall retain ownership of all regulatory filings and Regulatory Approvals for Plazomicin), and, subject to the terms and conditions of this Agreement,  [***] will be responsible for all activities regarding the Regulatory Approval of [***] (and, as between the Parties, [***] shall retain ownership of all regulatory filings and Regulatory Approvals for [***]). For the avoidance of doubt, the Parties acknowledge and agree that, notwithstanding anything herein to the contrary, but subject to Section 3.2 and Section 4.2.7, (a) Achaogen shall have the sole discretion, at any time during the Term, to determine whether to conduct any clinical trial or make any regulatory filing, submission or correspondence with respect to Plazomicin; and (b) [***], subject to Section 4.2.7, at any time during the Term, to conduct any clinical trial (provided, that, in the event of a clinical trial that involves the use or administration of [***], [***]) or make any regulatory filing, submission or correspondence with respect to [***].   3.2 Reporting and Consultation. [***] shall keep [***] regularly informed in connection with the preparation of all regulatory filings, submissions or correspondence related to  [***] and  [***] shall have the right to review and comment on any regulatory filing, submission or correspondence related to [***] (including any [***]), to be submitted to any health authority by [***]. In connection therewith, [***] shall provide to [***] for review the text of any such regulatory filing, submission or correspondence for [***] prior to submission and  [***] shall consider in good faith all comments provided by  [***]; provided that any disputes with respect to comments provided by [***] shall be resolved by the JSC. In addition, [***] shall consult with [***] with respect to all material matters required for regulatory filings, submissions or correspondence, under this Agreement; provided, however, that, subject to Section 3.1,  [***] shall have sole responsibility hereunder for all regulatory filings (including  [***] or their ex-United States equivalent), submissions or correspondence, including preparing and analyzing all  [***] information required pursuant to any and all Applicable Laws, and preparing and analyzing any additional data and information required by any applicable Regulatory Authority (other than any data or information regarding [***]). Upon written request from [***], [***] shall promptly provide to [***] copies of all submitted regulatory filings, submissions, and material correspondence to and from any Regulatory Authorities; provided, that [***] may redact from such copies information that does not relate to the Assay, Plazomicin or this Agreement and the activities hereunder.   3.3 Correspondence from Regulatory Authority.   3.3.1.1 If either Party receives any material communication from the Regulatory Authorities relating to  [***] or has any meetings (telephonic or in person) with any Regulatory Authority for any material reason regarding [***], such Party shall promptly notify the other Party and, upon mutual agreement, decide whether it is necessary for the other Party to be present in any

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Confidential Treatment Requested by Achaogen, Inc.   discussions with the Regulatory Authorities regarding  [***]; provided,  however, that, notwithstanding the foregoing, Achaogen shall have the right to participate in (a)  [***], (b)  [***], or (c)  [***] pertaining to Achaogen Materials or Achaogen Know-How. For clarity, as between the Parties,  [***] shall be responsible for leading any meetings or other discussions with the  [***].  [***]  shall not make any representations or discuss the uses of  [***] with any Regulatory Authority except to the extent it relates to [***]. Neither Party shall disclose, without the other Party's prior written consent, Confidential Information of such other Party in any regulatory filing, submission or correspondence or at a meeting with any Regulatory Authority, except to the extent required by Applicable Laws or otherwise under the Project Plan.

3.3.1.2 In addition, Microgenics shall notify Achaogen within [***] ([***]) business days of any regulatory finding or violation identified by a Regulatory Authority that may potentially impact the activities contemplated under the Project Plan or the development, manufacture or commercialization of the Assay (a Regulatory Finding). With respect to each Regulatory Finding, if any, Microgenics shall provide (1) (a)  [***], or (b)  [***], or (c)  [***] and (2) Microgenics' [***]; provided, that, in each case of clauses (a), (b), and (c), Microgenics' may redact from such copies or reports information that does not relate to the Assay, Plazomicin or this Agreement and the activities hereunder. Without limiting the next to last sentence of Section 3.5, Microgenics shall notify Achaogen promptly of any notification or information received from a Regulatory Authority, that: (i) would reasonably be expected to impair the integrity or reputation of Plazomicin or the Assay; (ii) raises any material concerns regarding the safety or efficacy of Plazomicin or the Assay; (iii) indicates or suggests a potential material liability of either Party to Third Parties in connection with Plazomicin or the Assay; (iv) is reasonably likely to lead to a recall or market withdrawal with respect to Plazomicin or the Assay; or (v) [***].

3.4 Package Insert Information.  Notwithstanding anything to the contrary contained herein, but subject to any applicable review and comment rights of the other Party, and dispute resolution escalation procedures set forth in Section 13.8, [***] shall have final decision making authority on all package insert language directed  [***], and [***] shall have final decision making authority on all Assay package insert language directed [***].   3.5 Filings.  On a country-by-country basis, a Regulatory Approval from the applicable Regulatory Authority(ies) is required for the Assay prior to launch in such country. Upon Achaogen's request, Microgenics shall reasonably cooperate with Achaogen with respect to any regulatory filings, submissions, or correspondence made by Achaogen related to Plazomicin in any country in the Territory, including promptly providing data, information and advice regarding the Assay, including the manufacture (including any recall information) and use thereof. This Agreement generally assumes that there is a current 510(k) pathway for obtaining Regulatory Approval for the Assay; provided, that, if a PMA pathway is required, the Parties acknowledge and agree that [***] reviewed by the Parties and may need to be adjusted to the extent agreed upon between the Parties and subject to the proviso in the foregoing sentence. For the avoidance of doubt, Achaogen shall have sole right to control any such regulatory filings, submissions, correspondence or other matters related to Plazomicin including any joint submissions or filings, but not [***], and to communicate with Regulatory Authorities related thereto. No later than [***] (or such later date as otherwise agreed to by the Parties), the Parties shall enter into an agreement setting forth the Parties respective responsibilities for adverse event and complaint reporting, the exchange of safety data and, to the extent agreed by the Parties to be appropriate and relevant, recall matters.   3.6 Right of Reference. [***] hereby grants to [***] a non-exclusive, non-transferable (except

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Confidential Treatment Requested by Achaogen, Inc.   in connection with a permitted assignment, sublicense or subcontract) right of reference (as defined in 21 CFR 314.3(b)) with respect to clinical trial data and results related to [***], solely as necessary for [***] to prepare, submit and maintain regulatory submissions related to  [***] and Regulatory Approvals for  [***].  [***] hereby grants to  [***] a non-exclusive, non-transferable (except in connection with a permitted assignment, sublicense or subcontract) right of reference (as defined in 21 CFR 314.3(b)) with respect to [***] clinical trial data (including  [***]), information (including the  [***], as applicable) and results related to  [***], solely as necessary for [***] to prepare, submit and maintain regulatory submissions related to [***] and Regulatory Approvals for [***].    3.7 [***]. In connection with the  [***] of  [***] in any  [***] in the Territory,  [***] shall  [***] of the  [***] in [***] in [***] with such [***] of [***]. The Parties shall discuss in good faith (via the JPT) and mutually agree as to [***] shall [***] for [***], which discussion and decision shall occur no later than [***] ([***]) year [***]. In the event that the Parties later agree to [***] for [***] in a [***], the Parties (through the JPT and JSC) shall amend the Project Plan to [***], subject to [***], and [***] shall [***].   4 Manufacture and Commercialization of Assay   4.1 Manufacture. Except as provided elsewhere in this Agreement, including Section 4.3 (Supply) and Section 9.4.4 (Effect of Termination), during the Term, Microgenics shall be solely and exclusively responsible for the worldwide manufacture of the Assay in accordance with GMP standards, the Specifications and Applicable Law. For clarity, from and after the expiration or termination of this Agreement, nothing in this Agreement shall restrict Microgenics from developing, manufacturing or commercializing the Assay as and to the same extent as any third party.   4.2 Commercialization. Upon successful completion of the Development and Manufacturing Phase and upon receipt of the applicable Regulatory Approval in a given country in the Territory required in order to sell the Assay in such country, Microgenics shall use Commercially Reasonable Efforts to exclusively commercialize and market the Assay, under the Thermo Scientific tradename and packaging and utilizing Microgenics' and its Affiliate's commercial infrastructure, in each country within the Territory in which Achaogen is commercializing Plazomicin for so long as Achaogen is commercializing Plazomicin in such country. Solely to the extent Achaogen elects to promote an assay which may be capable of measuring Plazomicin in a given Primary Country ([***]) in the Territory, and subject to receipt and conditions of any applicable Regulatory Approvals, Achaogen shall prioritize the promotion of the Assay relative to any other assay which may be capable of measuring Plazomicin, in its marketing and sales efforts in such Primary Country; provided, however, that in the event (a) Microgenics [***] is unable to supply the Assay in quantities sufficient to meet each applicable Binding Forecast, including [***], or (b) [***], Achaogen may prioritize the promotion of assays capable of measuring Plazomicin in the affected country(ies). For clarity, and notwithstanding anything to the contrary in this Agreement, including this Section 4.2, Achaogen expressly reserves and retains the right to, directly or indirectly (including through contractors or collaborators), research, develop, manufacture, use or commercialize assays capable of measuring Plazomicin other than the Assay; provided, that, Achaogen may not, directly or indirectly (including through contractors or collaborators) commercialize any immunoassay [***], other than the Assay in accordance herewith, [***]; provided, further, that the restriction on Achaogen's right to commercialize immunoassays [***], other than the Assay, shall be of no force or effect if Microgenics is unable to supply the Assay for [***] ([***]) days at any time [***] or if the Parties mutually determine that Microgenics will not be able to supply the Assay. Additional commercialization and supply terms may be added to this Agreement in the form of an amendment. Without limiting the foregoing:

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Confidential Treatment Requested by Achaogen, Inc.   4.2.1 Plazomicin Commercialization Plan. As soon as commercially reasonable, but no later than [***] ([***]) days after the Effective Date of this Agreement, Achaogen shall share its global commercialization plans for Plazomicin with Microgenics (Plazomicin Commercialization Plan). The Plazomicin Commercialization Plan shall include the list of  countries consistent with the Primary Country list for commercialization of Plazomicin, anticipated launch timing, initial volume forecasts and such other information as may be determined by the JPT. Microgenics will develop timelines on a country basis to the extent it receives adequate Plazomicin Commercialization Plan details with respect to a given country. Achaogen agrees to keep such Plazomicin Commercialization Plan updated via regular communication with the JSC. For clarity, (a) the Plazomicin Commercialization Plan shall be Confidential Information of Achaogen hereunder, and (b) Achaogen [***] in preparing and conducting activities under the Plazomicin Commercialization Plan.

4.2.2 Volumes and Pricing.

4.2.2.1 On a regular basis, beginning at least [***] ([***]) months prior to the anticipated date of the First Commercial Sale of Plazomicin in the Territory, Achaogen will share confidential, non-binding (except as described below) good faith volume forecasts in units for the Assay and updates thereof in the Plazomicin Commercialization Plan through the JSC in order for the Parties to develop a  [***] market introduction including achieving Regulatory Approval [***] for the Assay in all relevant countries and regions. Thereafter, and on a  [***] basis, Achaogen shall supply Microgenics with a confidential, good faith rolling  [***]  ([***]) month forecast (in units, broken-down by country (or regions)) as to Achaogen's estimated unit demand for worldwide commercial demand for the Assay (it being agreed and understood that such forecasts shall be Confidential Information of Achaogen hereunder); provided, however, only the first [***] ([***]) months of each [***] ([***]) month forecast shall be binding (a Binding Forecast) and the remaining [***] ([***]) months of such forecast shall be non-binding (for clarity, when each [***] forecast update is provided, [***] of the previous forecast (i.e., [***] of the Binding Forecast previously submitted) shall not be changed as they become [***] of the current forecast and [***] of the current Binding Forecast). For clarity, except as otherwise provided in this Agreement with respect to the Binding Forecast, Achaogen shall have no liability whatsoever with respect to such forecasts, including no liability for any Assay manufactured or materials ordered by or on behalf of Microgenics based on such forecasts. Microgenics shall supply the quantities of the Assay set forth in the applicable Binding Forecasts and shall use Commercially Reasonable Efforts to ensure that [***], in each case, in accordance with Section 4.3; provided, however, [***].

4.2.2.2 The Parties acknowledge and agree that  [***] shall have  [***] with respect to the pricing of the Assay in any country in the Territory; provided, however,  [***] shall  [***] to price the Assay in a given country at an amount no greater than (i) (a) $[***] in the United States or (b) $[***] in any other country, or (ii)  [***] percent ([***]%) of the applicable list price of any other [***] assay marketed in such country; provided, further, that [***] shall [***] to take into account [***]. In the event that (x) [***] to price the Assay at an amount greater than the foregoing subclauses (i) and (ii), then the JSC shall review the available data and discuss the Assay price in accordance with Section 5.2.1(h), and/or (y) the Assay pricing [***], the JSC will review the available data and discuss various alternative solutions.

4.2.3 Minimum Thresholds.  In the event that, during the applicable Minimum Threshold Periods (as defined below), Microgenics does not receive the applicable Minimum Threshold Revenue (as defined below) during a given calendar year, Achaogen agrees to pay  [***] Microgenics for such region during such calendar year (on a prorated basis, as applicable). For purposes of this Section 4.2.3,

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Confidential Treatment Requested by Achaogen, Inc.   4.2.3.1 The First Minimum Threshold Period shall begin on the  [***]  ([***]) anniversary of the date on which the First Commercial Sale of the Assay in [***] occurred and shall end on the [***] ([***]) anniversary of the date on which the First Commercial Sale of the Assay in [***] occurred. For example, if the First Commercial Sale of the Assay in [***] occurred on [***] then the First Minimum Threshold Period would begin on [***] and would end on [***];

4.2.3.2 The Second Minimum Threshold Period shall begin on the [***] ([***]) anniversary of the earlier of the date on which the First Commercial Sale of the Assay occurred in (i) [***] of the following countries - [***] (each an [***] Country); or (ii) an  [***] Country and  [***]; or (iii)  [***]  ([***]) of the Primary Country list ([***]) (subclause (i), (ii), or (iii), as applicable, the Start Date), and shall end on the earlier of (a) the  [***]  ([***]) anniversary of the Start Date or (b) the date this Agreement expires or terminates;

4.2.3.3 Minimum Threshold Revenue shall mean, with respect to each of the First Minimum Threshold Period and the Second Minimum Threshold Period, USD $[***] of annual gross revenue received by Microgenics from sales of the Assay in the Territory (for clarity, during any overlap between the First Minimum Threshold Period and the Second Minimum Threshold Period, the total Minimum Threshold Revenue would be USD $[***]); provided, however, that the Minimum Threshold Revenue (i) shall be determined by [***] for a given Assay, less [***] directly associated with such sale and Assay and permitted to be taken in accordance with generally accepted accounting principles in the United States, and (ii) that in the event the Minimum Threshold Period begins or ends during a given calendar year, the Minimum Threshold Revenue for such calendar year shall be prorated accordingly.

4.2.4 Market Introduction. The Parties will reasonably agree regarding details related to commercialization of the Assay once the [***] are clarified by Achaogen in the Plazomicin Commercialization Plan. Within [***] ([***]) months of receiving the initial Plazomicin Commercialization Plan, Microgenics will provide Achaogen with (a) a detailed market introduction plan for the Assay (the Launch Plan) and (b) a global commercialization plan for the Assay, in a form to be determined by the JSC (the Assay Commercialization Plan). During the Term, Microgenics shall provide Achaogen [***] with (i) an updated Launch Plan [***], and (ii) an updated Assay Commercialization Plan  [***]. For clarity, (i) the Launch Plan and Assay Commercialization Plan shall be Confidential Information of Microgenics hereunder, and (ii) Microgenics is  [***] in preparing and conducting activities under the Launch Plan and Assay Commercialization Plan.

4.2.5 Geographies. Other than the Primary Countries set forth on Exhibit E, the Parties shall mutually agree upon any Secondary Countries where Achaogen plans to introduce Plazomicin, which such Secondary Countries shall thereafter be deemed to be Primary Countries and included in the Plazomicin Commercialization Plan and the Assay Commercialization Plan, in all cases no later than [***] prior to the anticipated launch of Plazomicin in any such country; provided, however, the parties agree that actual product registration may take longer than [***] ([***]) months.

4.2.6 Selling, Marketing and Customer Support to Clinical Labs.  Microgenics will establish and maintain a commercial infrastructure for the supply of the Assay, as well as adequate product support, customer support and regulatory support in each market where the Assay is introduced, including [***]. For clarity, Achaogen [***] the Assay to physicians and other prescribers and related individuals and organizations; provided, that, for clarity, Microgenics [***] of the Assay to any such physicians or other prescribers or related individuals and organizations.

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Confidential Treatment Requested by Achaogen, Inc.   4.2.7 Abandoned or Uninitiated Development or Commercialization of Assay.

4.2.7.1 If, during the Term, Achaogen determines in good faith that Microgenics has ceased to develop, commercialize and market the Assay in a specific country within the Territory in which Achaogen has obtained or is in the process of obtaining Regulatory Approval for Plazomicin for a period of at least [***] ([***]) months (Abandoned Commercialization or Abandoned Development, as applicable), then Achaogen may deliver to Microgenics written notice that Achaogen deems Microgenics to have Abandoned Commercialization. If Achaogen delivers such written notice to Microgenics, such notice shall set forth the basis for Achaogen's good faith determination. If Microgenics disagrees with Achaogen's determination that Microgenics has Abandoned Commercialization, then the Parties will meet within  [***] ([***]) business days to discuss such disagreement. If the Parties cannot agree after such discussion, then the terms of Section 13.8 shall apply to resolve such Dispute.

4.2.7.2 If it is finally determined pursuant to the procedures set forth in Section 4.2.7.1 that Microgenics has Abandoned Commercialization, then, within [***] ([***]) business days of such determination, Microgenics will commercialize and market the Assay for  [***] ([***]) months after the written determination is received. After the [***]  ([***]) months period has expired, Microgenics will continue to supply the Assay to Achaogen or its distributor pursuant to the terms of a supply agreement that the Parties will negotiate during the first [***] ([***]) months of the [***] month period described in the prior sentence; provided, that such supply agreement shall include an initial (i.e., for a period of no less than  [***]  ([***]) months) supply price that is no greater than  [***]  ([***]%) of the lowest price at which Microgenics has made the Assay available to its distributors, or any Third Party if there is no distributor, in the affected country.  Microgenics shall  [***] promptly assist Achaogen (and/or its designee) in obtaining all necessary Regulatory Approvals and/or modifying and/or transferring existing Regulatory Approvals to enable Achaogen (and/or its designee) to develop, make, have made, use, market, distribute, import, sell and offer for sale the Assay ([***]) in any applicable country.

4.2.7.3 Solely in the event of Abandoned Development, the Parties acknowledge and agree that this Agreement does not supersede Section 5.3 of the Antibody Development Agreement and that Achaogen reserves all of its rights under Section 5.3 of the Antibody Development Agreement, including in the event of Abandoned Development.

4.3 Supply.   4.3.1 Clinical Supply. Microgenics shall supply to Achaogen the amount of Assay ordered by Achaogen, if any, for use in any clinical trials or other development of Plazomicin in accordance with the delivery and shipment terms set forth in the Project Plan to the extent applicable. Achaogen shall provide to Microgenics confidential, non-binding good faith clinical trial and other development supply forecasts for each [***] ([***]) month period starting on [***] and [***] of each calendar year and shall deliver each forecast in writing at least [***] ([***]) days prior to the commencement of the applicable [***] ([***]) month period. The Parties shall agree on the exact date for the delivery of such Assay. Achaogen shall reimburse Microgenics at (a) a price of USD $[***] per patient result used to make diagnostic decisions for the applicable patient or (b) in the event the Assay is being commercialized at the time of supply, [***]; provided, however, in each case, if Microgenics utilizes any data from any clinical trial or other study conducted by Achaogen with Assay supplied under this Section 4.3.1, Achaogen shall have no obligation to reimburse Microgenics for such Assay.

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Confidential Treatment Requested by Achaogen, Inc.   4.3.2 Continued Supply.

4.3.2.1 Microgenics shall ensure the continued worldwide supply of the Assay in quantities at least sufficient to meet each applicable Binding Forecast. Without limiting the foregoing, Microgenics agrees to maintain a safety stock of rare reagents sufficient to meet each applicable Binding Forecast for the Assay. Microgenics shall provide Achaogen at least [***] ([***]) months (or [***]) prior written notice of any possible shortfall in meeting each applicable Binding Forecast or other commercial demand for the Assay, and the Parties shall promptly meet and discuss all reasonable commercial resolutions if Microgenics is unable to assure supply as needed to meet each applicable Binding Forecast pursuant to the terms set forth in Section 4.3.2.2.

4.3.2.2 In addition, in order to ensure security of supply of the Assay, within  [***]  o f Microgenics' receipt of the first Regulatory Approval for the Assay in any country in the Territory, Microgenics shall designate [***] (the Back-up Supplier) which such Back-up Supplier shall be and remain qualified as a manufacturer of the Assay for the supply of the Assay for sale in the Territory. Microgenics shall [***] ensure that the Back-up Supplier can supply the Assay for sale in the Territory within [***] days. Microgenics will develop a manufacturing transition plan that will highlight [***] needed to complete the transition to the back-up supplier. This plan will be presented to the JSC prior to first commercial launch of the Assay.

4.3.2.3 If, for any reason, [***], both Microgenics and the Back-up Supplier (as applicable) are unable to supply the Assay in quantities sufficient to meet the quantities of the Assay either (a) as set forth in each applicable Binding Forecast or (b) based on such other measure of commercial demand as agreed to by the Parties in writing, in either case, during any given  [***]  ([***]) month period for a given country in the Territory, then Microgenics hereby grants Achaogen or its designee a Shortfall License, which license shall survive until [***] ([***]) months following the date that either Microgenics or the Back-up Supplier (as applicable) is in a position again to fulfill such demand (as such positioning is demonstrated [***]) (the Supply Resumption Date). The Shortfall License shall expire automatically [***] ([***]) months after the Supply Resumption Date; provided, however, that (a) Achaogen shall be entitled to use, sell, offer for sale, and import any assay that are in inventory prior to the expiration of the Shortfall License (even if such activity occurs after expiration of the Shortfall License). Additionally, [***], Microgenics shall (i) make its personnel available for a reasonable period of time (not to exceed  [***]  ([***]) months) to effect a successful technology transfer with respect to the manufacture and commercialization of such Assay under the terms of this paragraph, (ii) provide Achaogen with copies of the physical embodiment of all processes, protocols, procedures, methods, tests and other intellectual property rights licensed to Achaogen under the Shortfall License, as applicable, related to Assay (including the manufacture thereof), (iii) supply [***] (including [***]) reasonably required to perform [***] as may be required by the applicable Regulatory Authorities, and upon request by Achaogen,  [***], provide Achaogen (and/or its designee) with  [***] related to the Assay, and (iv) promptly assist Achaogen (and/or its designee) in obtaining all necessary Regulatory Approvals and/or modifying and/or transferring existing Regulatory Approvals to enable Achaogen (and/or its designee) to develop, make, have made, use, market, distribute, import, sell and offer for sale the Assay ([***]).

4.4 Audit Rights.   4.4.1 [***] during the Term, commencing on the  [***] ([***]) [***] of the Effective Date, Achaogen shall have the right to inspect and audit  [***] per calendar year (either by itself or through a Third Party reasonably acceptable to Microgenics) the Assay manufacturing process, facilities, procedures,

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Confidential Treatment Requested by Achaogen, Inc.   and records upon reasonable notice (which shall be no less than [***] ([***]) calendar days prior notice, unless a shorter period is mutually agreed to by the Parties), and during normal business hours. Notwithstanding the foregoing, Achaogen shall have the right to conduct for cause audits (either by itself or through a Third Party reasonably acceptable to Microgenics)  [***] during normal business hours of the [***], including in the event of a failure to supply the Assay as specified under Section 4.3.2. Any information shared with Achaogen or a Third Party under this Section 4.4.1 shall be considered Confidential Information. In connection with any such inspection or audit, Microgenics shall have no obligation to provide Achaogen and/or a Third Party access to Microgenics' Confidential Information related to any product other than the Assay.    4.4.2 Additionally, during the Term, Microgenics shall inform Achaogen within [***] ([***]) business days after receipt of any notice of an audit or inspection by ay Regulatory Authority which directly or indirectly relates to the Assay or the Assay manufacturing or distribution operations and Microgenics shall promptly provide to Achaogen in writing the results of any such audit or inspection within [***] ([***]) business days of receipt, including (a) a copy of any inspection reports, Form 483s, warning letters or similar such reports or warnings (Audit Outcome), to the extent such Audit Outcome solely addresses the Assay, or (b) a summary of such Audit Outcome, including verbatim text copies of portions thereof pertaining to the Assay, to the extent such Audit Outcome addresses the Assay and other matters, or (c) a summary of such Audit Outcome, to the extent that the Assay is not mentioned in such Audit Outcome; provided, that, in each case of clauses (a), (b), and (c), Microgenics' may redact from such copies or reports information that does not relate to the Assay, Plazomicin or this Agreement and the activities hereunder, and a summary of Microgenics proposed strategy for addressing any issues or violations noted during the course of such audit or inspection.   4.5 Labeling.   4.5.1 Assay Labeling. Microgenics shall be responsible for ensuring that all Assay packaging and labeling are in compliance with its Regulatory Approvals and Applicable Law.   4.5.2 Information for Labeling and Promotional Materials for Plazomicin.  At the request of Achaogen, Microgenics shall provide to Achaogen such information related to the Assay which is in Microgenics' possession, for Achaogen's use and reference in the packaging and labeling (including package insert) and promotional materials for Plazomicin.

4.5.3 Changes to Labeling. Achaogen will promptly notify Microgenics of any changes to Plazomicin labeling relevant for the Assay, including  [***].  [***], such changes will be implemented by Achaogen with  [***] in order to allow Microgenics to change any labeling on the Assay as a result of such changes to Plazomicin labeling. Similarly, Microgenics will promptly notify Achaogen of any changes to the Assay labeling, and Microgenics will implement such changes with [***] in order to allow Achaogen to change any labeling on Plazomicin as a result of such changes to the Assay labeling; provided, however, that Microgenics shall not make any such changes directed to Plazomicin (including, [***]) or which would otherwise require a change to the labeling for Plazomicin, without Achaogen's prior written approval.

5 Governance.   5.1 Alliance Managers.   5.1.1 No later than [***] ([***]) days after the Effective Date, each of the Parties shall

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Confidential Treatment Requested by Achaogen, Inc.   appoint one (1) representative as its alliance manager (Alliance Manager). The Alliance Managers shall have the right to attend all JSC and JPT meetings as non-voting participants and may bring to the attention of the JSC or JPT any matters or issues either of them reasonably believes should be discussed, and shall have such other responsibilities as set forth in Section 5.1.2 or as the Parties may mutually agree. Each Party may replace its Alliance Manager at any time or may designate different Alliance Managers by notice in writing to the other Party.    5.1.2 The Alliance Managers shall have responsibility for creating and maintaining a constructive work environment between the Parties. Without limiting the generality of the foregoing, each Alliance Manager shall:   5.1.2.1 identify and bring disputes and issues, including disputes that cannot be resolved by the JPT, that may result in disputes to the attention of the JSC in a timely manner, and function as the point of first referral in all matters of conflict resolution. In doing so, it is not intended that the Alliance Manager(s) act as a substitute for, or insert any delay in, the formal dispute resolution mechanisms set forth in Section 13.8, but rather that the Alliance Manager(s) shall endeavor to maintain a positive and constructive relationship between the Parties at the working level;   5.1.2.2 provide a single point of communication for seeking consensus both internally within the Parties' respective organizations and between the Parties;

5.1.2.3 plan and coordinate cooperative efforts, internal communications and external communications between the Parties with respect to this Agreement; and

5.1.2.4 take responsibility for ensuring that meetings and the production of meeting agendas and minutes occur as set forth in this Agreement, and that relevant action items resulting from such meetings are appropriately carried out or otherwise addressed.

5.2 Joint Steering Committee. The Parties agree that the Research Program shall be managed by a Joint Steering Committee (JSC) and that the JSC shall otherwise have responsibility for the general oversight of activities hereunder. No later than [***] ([***]) days after the Effective Date, each of the Parties shall appoint two (2) representatives to the JSC. The JSC shall be led by two (2) co-chairs, one (1) appointed by Microgenics and one (1) appointed by Achaogen. The JSC will make decisions by consensus, with Microgenics and Achaogen each having one vote. In the event of an impasse, the matter shall be resolved pursuant to Section 5.2.3 (Decision-Making). A Party may change any of its representatives at any time by giving [***] ([***]) days prior written notice to the other Party.   5.2.1 Responsibilities. In addition to its general responsibility to oversee and coordinate the development of the Assay according to the Project Plan and to assure the regular flow of information between the Parties, the JSC shall:   (a) develop the Project Plan, monitor the progress of the Research Program, and review and approve all proposed changes to the Project Plan;   (b) amend the Specifications for the Assay;   (c) review and approve the [***] in accordance with Section [***] hereof;   (d) oversee the activities of the JPT;   (e) review and approve the most appropriate regulatory pathway for obtaining Regulatory

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Confidential Treatment Requested by Achaogen, Inc.     Approval of the Assay;   (f) review and approve the contents of all applications for Regulatory Approval and related and supporting submissions to Regulatory Authorities;   (g) develop and manage clinical samples supply;   (h) discuss pricing policy for the Assay in the Territory, including  [***] and similar matters, to the extent permitted under Applicable Law; provided that, for clarity, [***];   (i) resolve disputes escalated by the Alliance Managers; provided that, if after [***], the JSC is unable to resolve any such dispute, such dispute shall be resolved in accordance with Section 5.2.3.2;   (j) confirm completion of each event described in Section 7.1 if the Joint Project Team has not agreed that a Milestone has been completed; and   (k) manage and coordinate the supply and commercialization of the Assay, including the initial commercial launch of the Assay and monitoring the progress of the Assay Commercialization Plan and Launch Plan.   5.2.2 Meetings. The JSC shall meet at least [***] during the Term at such place and time as is agreed upon by the Parties; provided, however, that in the event of an emergent situation, including a situation in which a decision by the JSC is required, a meeting shall be held within [***] ([***]) days after written request for such meeting by either Party. Meetings of the JSC may be conducted in person, by telephone or videoconference as agreed by the JSC or the Parties. When held in person, the location of the meetings shall alternate between Achaogen's facilities and Microgenics' facilities, unless otherwise mutually agreed by the Parties. The Alliance Managers shall be responsible for planning and scheduling the meetings and preparing the agenda. The Alliance Managers will record the minutes of each meeting (alternating between Achaogen and Microgenics). Minutes of each meeting of the JSC shall be exchanged for review, comment and approval by the members; provided that, if after [***] ([***]) days following the distribution of the minutes, neither Party has raised any objection, the minutes shall be deemed to have been approved by the Parties. Thereafter, the minutes shall be signed by the co-chairs and distributed to each of the Parties. Additionally, upon invitation by the JSC, the Functional Leaders (or other JPT members) may attend JSC meetings as non-voting members, and each JSC member may reasonably invite other guests to the meetings, in order to discuss special technical or commercial topics relevant to the applicable agenda; provided, that any guests are subject to the confidentiality provisions set forth in Article 12 (Confidentiality).   5.2.3 Decision-Making.   5.2.3.1 All decisions of the JSC shall be made in good faith in the interest of furthering the purposes of this Agreement and the JSC members shall use good faith efforts to make decisions unanimously.   5.2.3.2 If the JSC is unable to agree on any matter after good faith attempts to resolve such disagreement [***], then for matters that are [***], the JSC may refer the disagreement to a meeting between a senior executive (other than a JSC member) representing each Party (currently [***] for Achaogen and [***] for Microgenics) which meeting shall take place as soon as practicable, but in no event later than [***] ([***]) days after the date of the relevant referral. If the senior executives for Achaogen and Microgenics cannot resolve such disagreement over such [***] matter in a mutually acceptable manner within  [***]  ([***]) business days after such meeting then the matter shall be decided in accordance with Section 13.8.2. Notwithstanding the foregoing, except as otherwise provided in, and subject to the terms and conditions of, this Agreement: (a) [***], with appropriate consideration of the interests of [***], will have [***] that impact the development,

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Confidential Treatment Requested by Achaogen, Inc.   manufacture or marketing of [***] and (b) [***], with appropriate consideration of the interests of [***], will have [***] that [***] impact the development, manufacture or marketing of [***]; provided, that, [***] shall not have decision-making authority regarding (i) [***], or (ii) [***], which such decisions shall require the mutual agreement of the Parties, or (iii) [***] (which the Parties acknowledge will be ultimately dictated by [***]), or (iv) [***].    5.2.4 Expenses. Microgenics and Achaogen shall be responsible for all expenses incurred by its JSC members in connection with performing their duties hereunder, including all costs of travel, lodging and meals.   5.2.5 No Authority to Amend. For the avoidance of doubt, the JSC (and any Party exercising decision-making authority under Section 5.2.3.2) shall not have the authority to amend this Agreement, but the JSC shall have authority to amend the Project Plan and the Specifications as expressly set forth herein (and, for clarity, [***] shall not have decision-making authority with respect to any [***]).   5.3 Joint Project Team; Functional Leaders.   5.3.1 Formation. The Parties shall form a joint project team (the Joint Project Team or JPT). The JPT shall be comprised of a total of six (6) project team members from Microgenics and Achaogen, with Microgenics and Achaogen each designating a development leader, a regulatory leader, and a commercial leader (respectively, the Development Leader, the Regulatory Leader and the Commercial Leader, and collectively, the Functional Leaders) who shall be the principal point of contact for each Party for matters relating to its respective function, and shall be responsible for implementing and coordinating, on a day-to-day basis, all activities and facilitating the exchange of information between the Parties regarding the Project Plan for his or her function. Notwithstanding the foregoing, the Regulatory Leaders and Commercial Leaders may be appointed at such time as the Parties deem appropriate to facilitate the development of the Assay and a successful commercial launch of Plazomicin and the Assay.   5.3.2 Responsibilities. The JPT shall have responsibility for coordinating all development, regulatory, commercial and other business and technical activities under this Agreement. In addition to its general responsibility to deliver the development of the Assay according to the Project Plan and to assure the regular flow of information between the Parties, the JPT shall:     (a) recommend changes to the Project Plan, Launch Plan and Assay Commercialization Plan to the JSC,   (b) monitor the activities vs budget to the JSC,   (c) recommend changes to the Specifications for the Assay to the JSC;   (d) communicate progress to the JSC;   (e) plan the regulatory pathway for obtaining Regulatory Approval of the Assay; and   (f) prepare all applications for Regulatory Approval and related and supporting submissions to Regulatory Authorities.   5.3.3 Members. No later than [***] ([***]) days after the Effective Date, each Party shall provide the other with the names of its JPT members and Functional Leaders (other than the Regulatory Leaders and Commercial Leaders). Microgenics and Achaogen may replace its JPT members and Functional Leaders at any time and for any reason upon written notice to the other Party.   5.3.4 Sub-Teams. The JPT and Functional Leaders may delegate tasks and

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Confidential Treatment Requested by Achaogen, Inc.   responsibilities to sub-managers, working groups and other team members as they deem appropriate to efficiently and effectively perform their respective obligations hereunder.   5.3.5 Meetings. The JPT shall meet as soon as practicable after the Effective Date and thereafter during the performance of the Project Plan, at least [***], and at such additional times as the JPT or the Parties reasonably deem appropriate; provided, that, following the completion of the Project Plan, the JPT shall continue to meet no less frequently than [***]. Meetings of the JPT may be conducted in person, by telephone or videoconference as agreed by the JPT or the Parties. Additionally, the JPT and the Functional Leaders (or their designees) shall maintain close regular communications with each other as to the status of the ongoing and planned activities under the Project Plan, Launch Plan and Assay Commercialization Plan. Each JPT member may reasonably invite other guests to the meetings, in order to discuss special technical or commercial topics relevant to the applicable agenda; provided, that any guests are subject to the confidentiality provisions set forth in Article 12.   5.3.6 No Authority to Amend.  Neither the JPT nor the Functional Leaders (or their designees) shall have authority to amend this Agreement or the Project Plan, but may make recommendations regarding such amendments to the JSC.   5.3.7 Dispute Resolution. The JPT and the Functional Leaders will cooperate with each other and work in good faith to resolve any disagreements between them or their respective teams. Any such disagreements that are not resolved by the JPT shall be raised to the Alliance Managers for internal escalation if needed.   5.3.8 Records. The JPT shall keep accurate and complete records of their activities and meetings and shall, from time to time as requested by the JSC, provide the JSC with appropriate updates and information to keep the JSC apprised of the progress of the Project Plan, Launch Plan and Assay Commercialization Plan. All records of the JPT that are disclosed to the other Party and which relate to the Project Plan shall be available at all times to the JSC and to each Party on a confidential basis solely for use with respect to such Party's activities conducted pursuant to this Agreement.   5.3.9 Expenses. Microgenics and Achaogen shall be responsible for all expenses incurred by its JPT members in connection with performing their duties hereunder, including all costs of travel, lodging and meals.   5.4 Reporting. The Parties shall keep each other promptly informed on an ongoing basis through the Joint Project Team and the JSC on the progress of the Project Plan, the Launch Plan and the Assay Commercialization Plan, including forecasts of expected performance and completion of activities. Without limiting the foregoing, within [***] ([***]) days following [***] of each calendar year during the Term, Microgenics shall provide to Achaogen a written progress report in English, in a form to be agreed upon by the JSC, which shall include any information required under the Project Plan and as otherwise reasonably determined by the JSC relating to the progress of the goals or performance of the development, commercialization and other activities under the Project Plan, the Launch Plan and the Assay Commercialization Plan.   6 Grant of License   6.1 Exclusive License by Achaogen. During the Term, and without limiting Section 4.2, Achaogen hereby grants to Microgenics a royalty-free, exclusive, worldwide license to use the Achaogen

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Confidential Treatment Requested by Achaogen, Inc.   Know-How, Achaogen Patents, and Achaogen Materials to research, develop, manufacture, use, market and sell the Assay in the Territory. [***].    6.2 License by Microgenics. During the Term, Microgenics hereby grants to Achaogen and its Affiliates a royalty- free, non-exclusive, sub-licenseable, worldwide license, under and with respect to the Immunoassay Technologies, Microgenics Know- How and any Patents or Patent applications Controlled by Microgenics or its Affiliates to the extent reasonably necessary for Achaogen to perform its obligations or exercise its rights under this Agreement or as is otherwise reasonably necessary to make, have made, use, sell, offer for sale, import and otherwise commercialize Plazomicin. For the avoidance of doubt, the foregoing license grant does not provide any license or right for Achaogen to make, have made, use, sell, offer for sale, import or otherwise commercialize the Assay, except in connection with Achaogen's exercise of the Shortfall License or Transfer License.   6.3 [***] Products and Joint Patents. Each Party shall be entitled to grant non-exclusive licenses to any Third Party under its interest in a  [***] Products or Joint Patent  [***]. [***], and if in certain countries the grant of a license, in order to be effective, requires declarations from the other Party, the other Party shall reasonably cooperate and provide the necessary declarations.   6.4 No Implied License. Achaogen retains all rights in and to the Achaogen Patents and Achaogen Know-How. Microgenics retains all rights in and to the Immunoassay Technologies and Microgenics Know-How. Only the licenses and other rights expressly granted by one Party to the other Party under terms of this Agreement are of any legal force or effect. No other licenses or other rights are granted, conveyed or created (whether by implication, estoppel or otherwise).   7 Consideration to Microgenics    7.1 Development Payments.  In consideration of the development efforts of Microgenics under the Research Program, Achaogen shall pay to Microgenics the following one-time payments upon the occurrence of the corresponding events:     (a) USD $[***] upon the successful completion of Phase 0:  [***] as determined in accordance with the Project Plan, including delivery by Microgenics of all deliverables required by the Project Plan for Phase 0;     (b) USD $[***] upon the successful completion of Phase 1:  [***] as determined in accordance with the Project Plan, including delivery by Microgenics of all deliverables required by the Project Plan for Phase 1;     (c) USD $[***] upon the successful completion of Phase 2:  [***] as determined in accordance with the Project Plan, including delivery by Microgenics of all deliverables required by the Project Plan for Phase 2;      (d) USD $[***] upon the successful completion of Phase 3:  [***] as determined in accordance with the Project Plan, including delivery by Microgenics of all deliverables required by the Project Plan for Phase 3;     (e) USD $[***] upon the successful completion of the first milestone of Phase 4:  [***] as determined in accordance with the Project Plan, including delivery by Microgenics of

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Confidential Treatment Requested by Achaogen, Inc.     all deliverables required by the Project Plan for the first milestone of Phase 4;     (f) USD $[***] upon the successful completion of the second milestone of Phase 4: [***] as determined in accordance with the Project Plan, including delivery by Microgenics of all deliverables required by the Project Plan for the second milestone of Phase 4;     (g) USD $[***] upon the successful completion of the third milestone of Phase 4:  [***] as determined in accordance with the Project Plan, including delivery by Microgenics of all deliverables required by the Project Plan for the third milestone of Phase 4;     (h) [***],  USD $[***] upon the successful completion of the fourth milestone of Phase 4:  [***]  a s determined in accordance with the Project Plan, including delivery by Microgenics of all deliverables required by the Project Plan for the fourth milestone of Phase 4;     (i) USD $[***] upon the successful completion of the first milestone of Phase 5:  [***] as determined in accordance with the Project Plan, including delivery by Microgenics of all deliverables required by the Project Plan for the first milestone of Phase 5;     (j) USD $[***] upon the successful completion of the second milestone of Phase 5: [***] as determined in accordance with the Project Plan, including delivery by Microgenics of all deliverables required by the Project Plan for the second milestone of Phase 5;     (k) [***]; and     (l) [***] and assuming [***], USD $[***] upon [***]; provided, however, this amount [***].   Thereafter, no additional payments shall be due and payable to Microgenics by Achaogen for any Assay [***].   7.2 Invoices; Mechanism of Payment. Upon the completion of each event as described in Section 7.1, Microgenics will invoice Achaogen within [***] ([***]) business days. Microgenics agrees to submit invoices to Achaogen (on a timely basis) for all payments due hereunder. Invoices shall reference Achaogen's contract number and the purchase order number. The invoices due under this Agreement shall be submitted to:   Achaogen Inc. 7000 Shoreline Court, #371 South San Francisco, CA 94080   Reference: Achaogen Contract No. _____________, Attn.: _______ Email:   All payments due Microgenics under this Agreement shall be made by Achaogen in United States dollars within [***] ([***]) days after receipt of the applicable invoice by ACH transfer to the credit and account of Microgenics at the following account: [***].

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Confidential Treatment Requested by Achaogen, Inc.   7.3 Taxes.   7.3.1 Withholding. Microgenics shall be liable for all income and other taxes (including interest) imposed upon any payments made by Achaogen to Microgenics under this Agreement. In the event that any Applicable Law requires Achaogen to withhold taxes with respect to any payment to be made by Achaogen pursuant to this Agreement, Achaogen will notify Microgenics of such withholding requirement prior to making the payment to Microgenics and provide such assistance to Microgenics, including the provision of such documentation as may be required by a tax authority, as may be reasonably necessary in Microgenics' efforts to claim an exemption from or reduction of such taxes. Achaogen will, in accordance with such Law withhold taxes from the amount due, remit such taxes to the appropriate tax authority, and furnish Microgenics with proof of payment of such taxes within [***] ([***]) days following the payment. If taxes are paid to a tax authority, Achaogen shall provide reasonable assistance to Microgenics to obtain a refund of taxes withheld, or obtain a credit with respect to taxes paid.   7.3.2 VAT. All payments due to Microgenics from Achaogen pursuant to this Agreement shall be paid exclusive of any value-added tax (VAT) (which, if applicable, shall be [***]). If Microgenics is required to report any such tax, Achaogen shall promptly provide Microgenics with applicable receipts and other documentation necessary or appropriate for such report.   8 Intellectual Property Rights; Ownership   8.1 Ownership of Discoveries and Inventions. Achaogen shall own all discoveries and inventions made by one or both of the Parties as part of the Research Program, whether or not patentable, relating (i) solely to Plazomicin, the Achaogen Patents, the Achaogen Know-How, and Achaogen Materials or (ii) [***] (each of (i) and (ii), Achaogen Inventions). Microgenics shall own all inventions and discoveries made by one or both of the Parties as part of the Research Program, whether or not patentable, relating solely to Microgenics Cell Lines, Microgenics [***] Antibodies, the Assay, Immunoassay Technologies and Microgenics Know-How (Microgenics Inventions). For all other inventions and discoveries, whether or not patentable, made by the Parties as part of the Research Program, whether individually or jointly, inventorship shall be determined pursuant to the inventorship principles arising under the patent laws of the United States of America, [***] ([***] Products). Each Party shall ensure that each of its employees and other representatives performing activities hereunder has agreed to assign to it all discoveries and inventions made by such employee or other representative in the course of his or her employment.   8.2 Patent Procurement.   8.2.1 Achaogen and Microgenics shall each disclose to the other any inventions and discoveries made during the course of the Research Program. Achaogen shall be responsible for the prosecution and maintenance of any Patent applications and Patents claiming or covering any Achaogen Inventions, and Microgenics shall be responsible for the prosecution and maintenance of any Patent applications and Patents claiming or covering any Microgenics Inventions; provided, that  [***] shall not, without first obtaining [***] prior written consent, file any Patent claiming or covering the [***]; provided, further, that, in the event that any such Patent applications covering or claiming any  [***] are filed without first obtaining  [***] prior written consent, then  [***] hereby grants [***] a perpetual, irrevocable, fully paid-up, royalty-free, worldwide, sublicenseable, non-exclusive license under such Patent applications and any Patents issuing therefrom or related thereto for the purpose of developing, manufacturing, using or commercializing [***].

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Confidential Treatment Requested by Achaogen, Inc.     8.2.2 With respect to any Patent applications and Patents claiming or covering any [***] Products, the Parties shall meet to determine in what countries, if any, Patent applications claiming such [***] Products should be filed and the appropriate filing Party (a Joint Patent). The Parties shall [***] by the Party filing such patent applications in connection with any Joint Patents. If a Party elects [***] related to any Joint Patent, the other Party shall provide written notice upon the decision to [***] and the Party not giving such notice shall have the right to assume responsibility for any such prosecution or maintenance, [***].   8.3 Prosecution, Review, Cooperation.   8.3.1 The Party responsible for prosecuting and maintaining a given Patent pursuant to Section 8.2.1 or 8.2.2 (i.e., Microgenics with respect to Patents claiming or covering any Microgenics Inventions and the Assay Patent and the Party agreed to by the Parties with respect to Joint Patents) (the Responsible Party) shall keep the other Party (the Review Party) reasonably informed regarding the status of the filing, prosecution and maintenance of each applicable Patents, and shall provide the Review Party with copies of all documentation concerning each applicable Patent, including all correspondence to and from any Governmental Authority relating thereto. Prior to filing an applicable Patent application for, or material prosecution documents or other submissions relating to, an applicable Patent, the Responsible Party shall provide the Review Party with a reasonable opportunity to review and comment on the proposed application, document or submission, and the Responsible Party shall reasonably consider all such comments and incorporate such comments. In the event that the Responsible Party elects to abandon any applicable Patent, the Responsible Party shall notify the Review Party in writing (such notice, an Abandonment Notice) at least  [***]  ([***]) days prior to any filing or payment due date or any other due date that requires action to prevent loss of rights, and in the event that the Review Party provides the Responsible Party with written notice within  [***] ([***]) days of receipt of the applicable Abandonment Notice, the Review Party shall thereafter have the right, [***], to conduct such filing, prosecution and maintenance for the applicable Patent.   8.3.2 Each of the Parties shall execute or have executed by its employees, representatives and agents such documents as may be reasonably necessary to obtain, perfect, or maintain any Patent rights which would be filed pursuant to this Agreement and to cooperate with the other Party, [***], as reasonably necessary with respect to the prosecution of such Patent rights.   8.4 Ownership. The Achaogen Patents, Achaogen Know-How and the Achaogen Materials shall at all times remain the sole property of Achaogen. Microgenics shall not use the Achaogen Know-How or the Achaogen Materials to develop or market, or have developed or marketed, any Assay for any Third Party. The Microgenics Cell Lines, Microgenics  [***] Antibodies, Immunoassay Technologies and Microgenics Know-How shall remain the sole property of Microgenics. Except as may otherwise be expressly permitted pursuant to the terms and conditions of this Agreement, Achaogen shall not use the Microgenics Cell Lines, Microgenics Monoclonal Antibodies, Immunoassay Technologies and Microgenics Know-How to develop, manufacture, or market, or have developed, manufactured, or marketed, the Assay or any additional assay(s) for Plazomicin or any other compound/substance.   8.5 Enforcement. Each Party shall immediately notify the other if it becomes aware of any infringement, anywhere in the world, of any issued Patent within the Joint Patents. The Parties shall mutually determine whether to take action to obtain a discontinuance of infringement or bring suit against a Third Party infringer of any Joint Patents within [***] ([***]) days from the date of notice; provided that neither

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Confidential Treatment Requested by Achaogen, Inc.   Party shall be obligated to join any such action. In the event that either Party does not want to join as a Party plaintiff, then the Party not seeking to enforce such infringement claims shall have the right to assign the relevant Joint Patents to the other Party; provided that such assignment is solely and sufficient for purposes of commencing and maintaining the action. The Party seeking to enforce such infringement claims [***] of any suit brought by it claiming infringement of any Joint Patent. The Parties will reasonably cooperate, at the expense of the Party seeking to enforce such infringement claim, in any such suit and shall have the right to consult with the other Party and to participate in and be represented by independent counsel in such litigation [***]. Any recoveries obtained by Achaogen or Microgenics, as applicable, as a result of any proceeding against such a Third Party infringer shall be allocated as follows: (a) such recovery shall first be used to reimburse each Party for all reasonable attorney fees and other litigation costs actually incurred in connection with such litigation by that Party, and (b) any remainder shall be shared [***] by the Parties.   8.6 Patent Infringement. Each Party shall immediately notify the other if a claim or other proceeding is brought against either Party alleging infringement of Third Party Patent rights based upon the manufacture, use or sale of the Assay. The Parties shall immediately consult on how to proceed with respect to defending against any such claim of infringement.   8.7 Third Party Licenses. Microgenics shall be solely responsible, at its own expense, for obtaining rights under any Third Party intellectual property necessary for Microgenics to perform its obligations under this Agreement and Achaogen shall be under no obligation to provide support therefor, financial or otherwise.   8.8 Trademarks. As between the Parties, Microgenics shall own all right, title and interest in and to any Trademarks developed by or for Microgenics for use in connection with the Assay. Microgenics hereby grants to Achaogen a royalty-free non- exclusive right to use such Trademarks in connection with advertising, promoting and marketing Plazomicin, subject to Section 12.5 (Non-Use of Names). All use of Microgenics' Trademarks by Achaogen shall inure to the sole benefit of Microgenics. As between the Parties, Achaogen shall own all right, title and interest in and to all Trademarks developed by or for Achaogen for use in connection with Plazomicin.   9 Term and Termination    9.1 Term. This Agreement shall be effective as of the Effective Date and unless terminated earlier by mutual written agreement of the Parties or pursuant to Section 9.2 (Termination At Will) or Section 9.3 (Termination for Cause) below, the term of this Agreement shall continue in effect until Achaogen ceases development and commercialization of Plazomicin (Term).   9.2 Termination At Will. Achaogen may terminate this Agreement in its entirety, for any reason, by providing at least sixty (60) days prior written notice to Microgenics.   9.3 Termination for Cause. This Agreement may be terminated in its entirety by written notice by either Party at any time:   9.3.1 For material breach by the other Party, which breach remains uncured for ninety (90) days from the date written notice of such breach is given to the breaching Party, or, if such breach is not susceptible of cure within such ninety (90) day period and the breaching Party uses diligent good faith efforts to cure such breach, for one hundred eighty (180) days after written notice to the breaching Party if such breach remains uncured; or

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Confidential Treatment Requested by Achaogen, Inc.     9.3.2 Upon the filing or institution of bankruptcy, reorganization, liquidation or receivership proceedings, or upon an assignment of a substantial portion of the assets for the benefit of creditors by the other Party, or in the event a receiver or custodian is appointed for such Party's business, or if a substantial portion of such Party's business is subject to attachment or similar process; provided, however, that in the case of any involuntary bankruptcy proceeding such right to terminate shall only become effective if the proceeding is not dismissed within sixty (60) days after the filing thereof.   9.4 Effect of Termination.  Upon termination of this Agreement pursuant to Sections 9.1 (Term), Section 9.2 (Termination At Will) or 9.3 (Termination for Cause):   9.4.1 All rights and licenses granted under Section 6.1 (License by Achaogen) of this Agreement shall terminate and all rights to the Achaogen Patents and Achaogen Know-How shall revert to Achaogen.   9.4.2 All rights and licenses granted under Section 6.2 (License by Microgenics) of this Agreement shall terminate and, subject to Section 9.4.4, all rights to the Immunoassay Technologies and Microgenics Know-How shall revert to Microgenics.   9.4.3 Microgenics shall promptly return or destroy (as directed by Achaogen) to Achaogen all Achaogen Know- How and Achaogen Materials provided to Microgenics hereunder, and, subject to Section 9.4.4, Achaogen shall promptly return to Microgenics all Microgenics Know-How provided to Achaogen hereunder;   9.4.4 Solely in the case of termination of this Agreement by Achaogen under Section 9.3 (Termination for Cause):   9.4.4.1 Microgenics hereby grants Achaogen a Transfer License; provided, that, Achaogen covenants not to use the Transfer License beyond the scope set forth in Section 1.33. In the event that Microgenics reasonably believes that Achaogen has breached the foregoing covenant, Microgenics shall provide written notice thereof, including reasonable supporting evidence, and, in the event that Achaogen agrees with such written notice and does not indicate to Microgenics that it will conform its activities to the scope of the Transfer License within [***] ([***]) business days after receiving the written notice, then the Transfer License shall be void as of the end of [***] period described in this sentence. If Achaogen indicates that it will so conform its activities, then the Transfer License shall remain in full force and effect. In the event that Achaogen disagrees with such written notice and advises Microgenics of such disagreement, the Parties shall submit this matter to the Dispute resolution process in 13.8. For purposes of resolving any disputes regarding the Transfer License, the Parties agree to complete the Dispute resolution process in 13.8 within  [***] from the date of Microgenics' first written notice of the breach of the covenant found in the proviso to the first sentence of this Section 9.4.4.1(i). If after concluding the Dispute resolution process in 13.8 it is determined that the covenant found in the proviso was breached, then the Transfer License shall terminate immediately.  In the event that the Transfer License is granted, Achaogen shall owe no payments to Microgenics for the first [***] ([***]) months that any Assay commercialized under the Transfer License is commercialized and shall pay a [***] percent ([***]%) royalty on its net sales (i.e., gross sales less all deductions, reductions and offsets reasonably taken in accordance with generally accepted accounting principles in the United States) of Assays commercialized under the Transfer License following the end of such [***] ([***]) month

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Confidential Treatment Requested by Achaogen, Inc.   period.   9.4.4.2 Microgenics shall (a) make its personnel available for a reasonable period of time (not to exceed  [***]  ([***]) months) to effect a successful technology transfer with respect to the manufacture and commercialization of the Assay, (b) provide Achaogen with copies of the physical embodiment of all processes, protocols, procedures, methods, tests and other intellectual property rights licensed to Achaogen under the Transfer License, as applicable, related to the Assay (including the manufacture thereof), (c) supply [***] (including [***]) reasonably required to perform  [***] as may be required by the applicable Regulatory Authorities, and upon request by Achaogen,  [***], provide Achaogen (and/or its designee) with  [***] related to the Assay, and (d) promptly assist Achaogen (and/or its designee) in obtaining all necessary Regulatory Approvals and/or modifying and/or transferring existing Regulatory Approvals to enable Achaogen (and/or its designee) to develop, make, have made, use, market, distribute, import, sell and offer for sale the Assay ([***]).   9.4.4.3 If, at the date of the actual termination of this Agreement, Microgenics is commercializing the Assay, such termination shall be suspended, and Microgenics shall continue to supply the Assay to the market, until [***]; provided that (i) such period shall not extend beyond an additional [***] ([***]) months from the date of the actual termination of this Agreement, (ii) Achaogen, itself or through or in conjunction with a Third Party, may commercialize another assay for use in conjunction with Plazomicin (i.e., Microgenics shall lose its commercial exclusivity), and (iii) Section 4.2.3 shall be of no force or effect during any such suspended termination.   9.4.5 If this Agreement is terminated during the Term at any time by Achaogen under Section 9.2 (Termination At Will) or by Microgenics under Section 9.3 (Termination for Cause), the following terms shall apply: 9.4.5.1 Solely to the extent the expiration or termination of this Agreement occurs prior to the payment of all development payments described in Section 7.1, Achaogen shall pay to Microgenics an amount equal to the first applicable unpaid development payment as described in Section 7.1 (Development Payments) for the period in which the Agreement is terminated or expires (for illustrative purposes only, if Achaogen provides notice of termination under Section 9.1 (Term) prior to the completion of the Phase 3:  [***], then Achaogen shall pay an amount equal to USD $[***]  to Microgenics pursuant to the terms of Section 7.2 (Invoices; Mechanism of Payment)); provided, that, notwithstanding the foregoing, no payment shall be due under this Section 9.4.5.1 in the event that this Agreement is terminated by Achaogen under Section 9.2 (Termination At Will) at any time in connection with the failure to obtain, or maintain, Regulatory Approval for Plazomicin; and   9.4.5.2 for a period of two (2) years after the expiration or termination date of this Agreement pursuant to Section 9.4.5, in the event Achaogen decides to continue to develop and commercialize Plazomicin, Achaogen shall provide written notice thereof to Microgenics and, upon Achaogen's receipt of a written proposal from Microgenics, the Parties shall use good faith efforts to negotiate a definitive agreement for the continued development, manufacture, supply and sale of the Assay by Microgenics on commercially reasonable terms; provided, however, that nothing in this Section 9.4.5.2 shall (a) obligate Achaogen to enter into any new agreement with Microgenics with respect to the development, manufacture, supply or sale of the Assay or (b) prohibit Achaogen from negotiating or entering into an agreement with any Third Party with respect to the development, manufacture, supply or sale of any assay.

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Confidential Treatment Requested by Achaogen, Inc.     9.4.6 The termination, expiration or non-renewal of this Agreement shall not relieve either Party from any obligation that accrues pursuant to this Agreement before the effective date of the termination or expiration nor shall it release the Parties from any obligation that may have been incurred as a result of operations conducted under this Agreement.   9.5 Survival. Termination of this Agreement for whatever reason in accordance with the provisions hereof or expiration of this Agreement shall not affect the accrued rights of the Parties, and shall not limit remedies that may be otherwise available in law or equity. Article 1 (Definitions), Section 4.1 (Manufacture), 8 (Intellectual Property Rights; Ownership) (except for Section 8.8 (Trademarks) (unless Achaogen intends to commercialize the Assay upon termination)), 11 (Indemnification), 12 (Confidentiality), and 13 (Miscellaneous) and Section 3.6 (Right of Reference) (but only in the event that Achaogen intends to commercialize the Assay upon termination), 9.4 (Effect of Termination) and 9.5 (Survival) shall survive expiration or termination of this Agreement for any reason. All other rights and obligations will terminate upon expiration of this Agreement.   10 Representations and Warranties   10.1 Representations and Warranties of Each Party. Each of Achaogen and Microgenics hereby represents, warrants and covenants to the other Party hereto as follows:   10.1.1 it is a corporation or other entity duly organized and validly existing under the laws of the state or other jurisdiction of incorporation or formation;   10.1.2 the execution, delivery, and performance of this Agreement by such Party has been duly authorized by all requisite corporate action and does not require any shareholder action or approval;   10.1.3 no consent, approval, order or authorization of, or registration, declaration or filing with, or exemption by, any Third Party or any governmental entity is required by or with respect to such Party in connection with the execution, delivery and performance of this Agreement;   10.1.4 this Agreement constitutes a valid and legally binding obligation of such Party, enforceable against such Party in accordance with its respective terms, except as may be limited by (a) applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the enforcement of creditors' rights generally and (b) the effect of rules of law governing the availability of equitable remedies;   10.1.5 the execution, delivery and performance of this Agreement do not and will not conflict with, or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation that would result in the creation of any encumbrance upon any of the assets owned by such Party under, any material provision of Applicable Law, of such Party's organizational documents or of any agreement, judgment, injunction, order, decree, or other instrument binding on such Party or any assets owned by such Party; and   10.1.6 it shall comply with all material Applicable Laws relating to its activities under this Agreement.   10.2 Representations and Warranties of Microgenics. In addition to the representations and

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Confidential Treatment Requested by Achaogen, Inc.   warranties made by Microgenics under Section  10.1 (Representations and Warranties of Each Party) above, Microgenics further represents and warrants to Achaogen that:   10.2.1 it has the capacity and resources (including [***]) to (i) develop, manufacture and supply the Assay in and for the Territory, and (ii) commercialize the Assay in the Primary Countries; 10.2.2 and further covenants that, the Assay shall be developed, manufactured, commercialized, and shall function, in accordance with applicable GMP, Specifications and Applicable Laws;   10.2.3 it has the capacity and resources to develop (including [***]), manufacture and commercialize the Assay in accordance with this Agreement, including in accordance with the Project Plan;   10.2.4 to the best of its knowledge, the development, manufacture, use and sale of the Assay will not infringe any issued Patents in the Territory owned or controlled by any Third Party; and   10.2.5 it owns or controls all rights to the Microgenics Cell Lines, Microgenics  [***] Antibodies, and Immunoassay Technologies.   10.3 Representations and Warranties by Achaogen.  In addition to the representations and warranties made by Achaogen under Section 10.1 (Representations and Warranties of Each Party) above, Achaogen further represents and warrants to Microgenics that:   10.3.1 it owns, controls or has the right and ability to grant Microgenics the licenses under its (and its Affiliates) rights in the Achaogen Patents (as listed in Exhibit B hereto) related to the use of Plazomicin, pursuant to this Agreement; and   10.3.2 it owns, controls or has the right and ability to provide to Microgenics the Achaogen Materials for development, manufacture, marketing, and sale of the Assay pursuant to this Agreement.   10.4 Debarment and Exclusion. Achaogen and Microgenics represent and warrant that neither it, nor any of its employees or agents working on the subject matter of this Agreement, has ever been, is currently, or is the subject of a proceeding that could lead to it becoming, as applicable, a Debarred Entity or Debarred Individual, an Excluded Entity or Excluded Individual or a Convicted Entity or Convicted Individual, nor are they listed on the FDA's Disqualified/Restricted List for clinical investigators. Each Party further covenant, represent and warrant that if, during the Term, it, or any of its employees or agents working on their behalf, becomes or is the subject of a proceeding that could lead to that Party with respect to the subject matter hereof, becoming, as applicable, a Debarred Entity or Debarred Individual, an Excluded Entity or Excluded Individual or a Convicted Entity or Convicted Individual, or added to FDA's Disqualified/Restricted List for clinical investigators, the Party shall immediately notify the other Party. This provision shall survive termination or expiration of this Agreement. For purposes of this provision, the following definitions shall apply:   10.4.1 A Debarred Individual is an individual who has been debarred by the FDA pursuant to 21 U.S.C. §335a (a) or (b) from providing services in any capacity to a person that has an approved or pending drug product application.   10.4.2 A Debarred Entity is a corporation, partnership or association that has been debarred by the FDA pursuant to 21 U.S.C. §335a (a) or (b) from submitting or assisting in the submission of

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Confidential Treatment Requested by Achaogen, Inc.   any abbreviated drug application, or a subsidiary or Affiliate of a Debarred Entity.   10.4.3 An Excluded Individual or Excluded Entity is (a) an individual or entity, as applicable, who has been excluded, debarred, suspended or is otherwise ineligible to participate in federal health care programs such as Medicare or Medicaid by the Office of the Inspector General (OIG/HHS) of the U.S. Department of Health and Human Services, or (b) is an individual or entity, as applicable, who has been excluded, debarred, suspended or is otherwise ineligible to participate in federal procurement and non- procurement programs, including those produced by the U.S. General Services Administration (GSA).   10.4.4 A Convicted Individual or Convicted Entity is an individual or entity, as applicable, who has been convicted of a criminal offense that falls within the ambit of 42 U.S.C. §1320a - 7(a), but has not yet been excluded, debarred, suspended or otherwise declared ineligible.   10.4.5 FDA's Disqualified/Restricted List is the list of clinical investigators restricted from receiving investigational drugs, biologics or devices if the United State Food and Drug Administration (FDA) has determined that the investigators have repeatedly or deliberately failed to comply with regulatory requirements for studies or have submitted false information to the study sponsor.   10.5 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, NEITHER MICROGENICS NOR ACHAOGEN MAKES, AND EACH HEREBY EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, WHETHER IN FACT OR IN LAW, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.   10.6 No Representations Regarding Approval or Commercial Success. Neither Party makes any representations or warranties as to: (a) whether Plazomicin or the Assay will be approved for commercial sale by the applicable Regulatory Authorities; or (b) the commercial potential or success of Plazomicin or the Assay.   11 Indemnification     11.1 Indemnification by Achaogen.  Achaogen shall indemnify, defend and hold harmless Microgenics and its Affiliates and each of its and their respective employees, officers, directors and agents (each a Microgenics Indemnified Party) from and against any and all liabilities, damages, penalties, expenses and/or losses (including reasonable legal expenses and attorneys' fees) (collectively, Losses), resulting from any Third Party suits, claims, actions or demands (collectively, Third Party Claims), to the extent arising out of or relating to: (a) the breach by Achaogen of any representation, warranty or covenant contained in this Agreement; (b) the willful misconduct or negligent acts or omissions of Achaogen, its Affiliates or any of their respective employees, officers, directors or agents; (c) the manufacture, promotion, distribution, use, testing, marketing or sale of pharmaceutical products containing Plazomicin by Achaogen or its Affiliates; or (d) claims of infringement of Third Party Patents based upon the manufacture, use or sale of Plazomicin; except, in each case, to the extent such Losses result from clauses (a), (b), (c) or (d) of Section 11.2 (Indemnification by Microgenics).   11.2 Indemnification by Microgenics.  Microgenics shall indemnify, defend and hold harmless Achaogen and its Affiliates and each of its and their respective employees, officers, directors and agents (each a Achaogen Indemnified Party) from and against any and all Losses, resulting from any Third Party

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Confidential Treatment Requested by Achaogen, Inc.   Claims, to the extent arising out of or relating to: (a) the breach by Microgenics of any representation, warranty or covenant contained in this Agreement; (b) the willful misconduct or negligent acts of Microgenics, its Affiliates or any of their respective employees, officers, directors, or agents; (c) the manufacture, promotion, distribution, use, testing, marketing or sale of the Assay; or (d) claims of infringement of Third Party Patents based upon the manufacture, use or sale of the Assay; except, in each case, to the extent such Losses result from clauses (a), (b) (c) or (d) of Section 11.1 (Indemnification by Achaogen).   11.3 Conditions to Indemnification The obligations of the indemnified Party under Sections 11.1 (Indemnification by Achaogen) and 11.2 (Indemnification by Microgenics) are conditioned upon the delivery of written notice to the indemnifying Party of any potential liability promptly after the indemnified Party become aware of such potential liability; provided, however, that the failure to give such notice promptly shall not impair a Party's right to indemnification under this Section 11.3 (Conditions to Indemnification) unless the delay in providing such notice has a material adverse effect on the ability of the indemnifying Party to defend against such liability. The indemnifying Party shall have the right to assume the defense of any suit or claim relating to the liability if it has assumed responsibility for the suit or claim in writing; however, if in the reasonable judgment of the indemnified Party, such suit or claim involves an issue or matter which could have a material adverse effect on the business operation or assets of the indemnified Party, the indemnified Party may waive its rights to indemnity under this Agreement and control the defense or settlement thereof, but in no event shall any such waiver be construed as a waiver of any rights such indemnified Party may have against any Third Party at law or in equity. If the indemnifying Party defends the suit or claim, the indemnified Party shall cooperate with the indemnifying Party in such defense and the indemnified Party or Parties may participate in (but not control) the defense thereof at its sole cost and expense.   11.4 Settlements. Neither of the Parties may settle a claim or action related to a Third Party Claim without the consent of the other Party, if such settlement would impose any monetary obligation on the other Party, or would require the other Party to submit to an injunction or otherwise limit the other Party's rights under this Agreement. Any payments made by a Party to settle any such claim or action shall be at its own costs and expense, except in the event such payment was made with the prior written consent of an indemnifying Party, in which case such payment shall be subject to the obligations of the Parties as set forth in Sections 11.1 (Indemnification by Achaogen), 11.2 (Indemnification by Microgenics), and 11.3 (Conditions to Indemnification).   11.5 Limitation of Liability. EXCEPT WITH RESPECT TO DAMAGES THAT ARISE DUE TO A  PARTY'S BREACH OF CONFIDENTIALITY (ARTICLE 12) OR  INDEMNIFICATION  OBLIGATIONS  (ARTICLE 11),  IN  NO  EVENT WILL  EITHER  PARTY  BE  LIABLE  TO  THE  OTHER  FOR  CONSEQUENTIAL, INDIRECT,  SPECIAL,  EXEMPLARY OR  PUNITIVE DAMAGES  FOR ANY  CAUSE OF  ACTION, WHETHER  IN  CONTRACT, TORT  OR OTHERWISE,  INCLUDING LOST REVENUES, PROFITS OR BUSINESS OPPORTUNITIES ARISING OUT OF OR  IN CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT THE OTHER  PARTY WAS  OR  SHOULD HAVE  BEEN  AWARE OF  THE POSSIBILITY OF  THESE DAMAGES. EXCEPT WITH  RESPECT TO  DAMAGES THAT  ARISE  DUE TO  A  PARTY'S BREACH  OF  CONFIDENTIALITY  (ARTICLE 12)  OR  INDEMNIFICATION  OBLIGATIONS  (ARTICLE 11), THE  LIABILITY  OF  EITHER  PARTY  UNDER  THIS AGREEMENT  (WHETHER  BY  REASON  OF  BREACH  OF  CONTRACT,  TORT,  OR  OTHERWISE)  WITH  RESPECT  TO  A  GIVEN  CLAIM  SHALL  NOT  EXCEED  AN AMOUNT EQUAL TO [***].   11.6 Insurance.  Each Party shall maintain, through self-insurance or commercially-placed insurance, adequate commercial general liability and products liability insurance, including contractual liability coverage, necessary to satisfy its obligations hereunder and consistent with pharmaceutical and

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Confidential Treatment Requested by Achaogen, Inc.   diagnostic industry practices.   12 Confidentiality   12.1 Nondisclosure. During the Term, and for a period of [***] ([***]) years thereafter, all Confidential Information disclosed to a Party hereto or its Affiliates (the Receiving Party) by the other Party or its Affiliates (the Disclosing Party) shall be deemed confidential and shall be treated as such by the Receiving Party (meaning that the Receiving Party shall take the same steps to protect such information as it does to protect its own confidential information, which in any event shall be no less than the reasonable protective measures for the industry) and shall only be used for the purposes of this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information that is:     (a) known by the Receiving Party at the time of its receipt and not through a prior disclosure by the Disclosing Party;     (b) at the time of disclosure or thereafter, becomes published or otherwise part of the public domain through no breach of this Agreement by the Receiving Party;     (c) subsequently disclosed to the Receiving Party by a Third Party having the right to make such a disclosure; or     (d) developed by the Receiving Party, as evidenced by its records, independently of information received by it from the Disclosing Party hereunder.   12.2 Permitted Disclosure.  Information provided under this Agreement may be disclosed to employees, agents or consultants of the Receiving Party, but only to the extent required to accomplish the purposes of this Agreement and only after the Receiving Party obtains the prior agreement of its employees, agents and consultants to whom disclosure is to be made to hold in confidence and not to make use of such information for any purpose other than that permitted by this Agreement. In addition to the foregoing exceptions, either Party may disclose Confidential Information to the extent it is required to be disclosed under Applicable Law, or in connection with any application by the Receiving Party for any Regulatory Approvals; provided, however, that the Receiving Party shall furnish the Disclosing Party with as much prior written notice of such disclosure requirement as reasonably practicable, so as to permit the Disclosing Party, in its sole discretion, and at its sole expense, to take appropriate action, including seeking a protective order, in order to prevent the Disclosing Party's Confidential Information from passing into the public domain or becoming generally available to the public.   12.3 Publicity. The Parties agree to make a joint public release of the having entered into this Agreement upon the successful completion of Phase I as described in Exhibit F. The public release must however not contain any Confidential Information of any kind such as scientific, commercial or financial which both Parties have not agreed to include in writing. No public announcement concerning the existence, terms or subject matter of this Agreement shall be made, either directly or indirectly, by any Party, without first obtaining the prior written approval of the other Party and agreement upon the nature and text of such public announcement which such agreement and approval shall not be unreasonably withheld. Notwithstanding the foregoing, if, in the opinion of legal counsel for the Party desiring to make such public announcement, such disclosure is required under Applicable Law, subject to Section 12.2 (Permitted Disclosure) above, the Party required to make such public announcement shall inform the other Parties of the proposed announcement or disclosure in reasonably sufficient time prior to public release, which shall be not

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Confidential Treatment Requested by Achaogen, Inc.   less than [***]  ([***]) business days (or such shorter period as may be required under Applicable Law) prior to release of such proposed public announcement, and shall provide the other Parties with a written copy thereof in order to allow such other Parties to comment upon such public announcement. The Receiving Party shall reasonably cooperate with the Disclosing Party (at the Disclosing Party's expense) with respect to all disclosures regarding this Agreement required under Applicable Law, including requests for confidential treatment of proprietary information of the Disclosing Party included in any such disclosure.    12.4 Applicable Law. Nothing in this Agreement shall be construed as preventing or in any way inhibiting any Party from complying with Applicable Law governing activities and obligations undertaken pursuant to this Agreement, in any manner which it reasonably deems appropriate, including, for example, by disclosing to Regulatory Authorities confidential or other information received from the other Parties, subject to Sections 12.2 (Permitted Disclosure) and 12.3 (Publicity).   12.5 Non-Use of Names. Except as otherwise provided in this Agreement, neither Party (or its Affiliates) shall use, either directly or indirectly, the Trademarks of the other Party (or their Affiliates), or the names of any of their officers, employees or board members in any publicity, marketing advertising or other documents (or other disclosures) unless (a) such use is consistent with, and permitted under, the Project Plan or (b) a copy or transcript of the proposed disclosure is submitted to and approved in advance in writing by the other Party (each in its sole discretion), except in the case in which a governmental authority requires the use of the Trademark by a Party in the sale or distribution of the Assay or Plazomicin. Each Party will use good faith efforts to review and approve any proposed disclosure within [***] ([***]) business days of its receipt from the other Party of a copy or transcript of the proposed disclosure. If a Party approves the other Party's usage of its Trademarks (or its Affiliates), or the names of any of their officers, employees or board members in accordance with this Section 12.5 (Non-Use of Names), the other Party shall comply with any usage guidelines or requirements imposed by the approving Party.   12.6 Publications. Publication in a journal, paper, magazine or any other such similar disclosure relating to the development, manufacture or commercialization of the Assay will not take place without the prior written agreement of both Achaogen and Microgenics, which shall not be unreasonably withheld. Any draft article intended to be submitted for publication by Microgenics or Achaogen (or a clinical trial site utilized by Achaogen) hereto shall first be sent to the other Party in order to allow such Party to preserve its intellectual property rights by delaying such publication (but not for more than  [***] ([***]) days) and/or removing its Confidential Information. Achaogen's and/or Microgenics' contribution shall be acknowledged in any publication by co-authorship or acknowledgment, whichever is appropriate. Republication of any article, in whole or in part, which has previously been approved by the Parties shall not require subsequent approval, provided that the content is substantially unchanged. These restrictions are not applicable to Plazomicin; provided, however, that, for clarity, Microgenics shall have no right to publish with respect to Plazomicin.   12.7 Prior CDAs. This Agreement supersedes that certain Confidential Disclosure Agreement between the Parties dated  [***]; provided, however, that all Confidential Information disclosed or received by the Parties thereunder will be deemed Confidential Information hereunder and will be subject to the terms and conditions of this Agreement. For clarity, this Agreement does not supersede the Antibody Development Agreement.   13 Miscellaneous   13.1 Force Majeure. Neither Party shall be liable to the other for delay or failure in the

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Confidential Treatment Requested by Achaogen, Inc.   performance of the obligations on its part contained in this Agreement if and to the extent that such failure or delay is due to government action, war, terrorism, fire, explosion, flood, strike, lockout, embargo, shortage of materials or utilities, vendor failure to supply, act of God, or any other cause beyond the control and without the fault or negligence of the defaulting Party (a Force Majeure Event), provided that the Party claiming Force Majeure Event has exerted all Commercially Reasonable Efforts to avoid or remedy such force majeure. Such excuse shall continue as long as the condition preventing the performance continues. Upon cessation of such Force Majeure Event, the affected Party shall promptly resume performance hereunder. Each Party agrees to give the other Party prompt written notice of the occurrence of any such Force Majeure Event, the nature thereof, and the extent to which the affected Party will be unable to perform its obligations hereunder. Each Party further agrees to use all Commercially Reasonable Efforts to correct the Force Majeure Event  [***] and to give the other Party prompt written notice when it is again fully able to perform its obligations hereunder.   13.2 Assignment. Neither Party may assign this Agreement to a Third Party unless both Parties have agreed to such assignment in a writing signed by an authorized representative of each Party hereto; provided, however, that upon providing written notice, (i) either Party may, without the other Party's consent, assign this Agreement to an Affiliate or to any Third Party entity that acquires all or substantially all of its assets to which this Agreement relates and (ii) Achaogen may, without Microgenics' consent, assign this Agreement (in whole or in part) to a Third Party licensee of Achaogen's rights with respect to Plazomicin. This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the Parties. Any assignment not in accordance with this Section 13.2 (Assignment) shall be void.   13.3 No Waiver. The failure of either Party to require performance by the other Party of any of that other Party's obligations hereunder shall in no manner affect the right of such Party to enforce the same at a later time. No waiver by any Party hereto of any condition, or the breach of any provision, term, representation or warranty contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such condition or breach, or of any other condition or of the breach of any other provision, term, representation or warranty hereof.   13.4 Severability.  If a court or other tribunal of competent jurisdiction should hold any term or provision of this Agreement to be excessive, or invalid, void or unenforceable, the offending term or provision shall be deleted, and, if possible, replaced by a term or provision which, so far as practicable, achieves the legitimate aims of the Parties. In the event that such provisions cannot be agreed upon, the invalidity, illegality or unenforceability of one or more provision of this Agreement shall not affect the validity of this Agreement as a whole.   13.5 Relationship Between the Parties. Both Parties are independent contractors under this Agreement. Nothing herein contained shall be deemed to create an employment, agency, joint venture or partnership relationship between the Parties hereto or any of their agents or employees, or any other legal arrangement that would impose liability upon one Party for the act or failure to act of the other Party. Neither Party shall have any express or implied power to enter into any contracts or commitments or to incur any liabilities in the name of, or on behalf of, the other Party, or to bind the other Party in any respect whatsoever.

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Confidential Treatment Requested by Achaogen, Inc.   13.6 Correspondence and Notices. Correspondence, reports, documentation and any other communication in writing between the Parties in the course of implementation of this Agreement shall be in writing and sent by internationally recognized overnight delivery service that maintains records of delivery, or by facsimile confirmed by prepaid registered or certified air mail letter, and shall be deemed to have been properly served to the addressee upon the date delivered by hand or transmitted by facsimile (with transmission confirmed) or on the second business day (at the place of delivery) after deposit with an internationally recognized overnight delivery service. The proper address for communication and for all payments shall be:   To Microgenics: With a copy to:   Microgenics Corporation Thermo Fisher Scientific Attn: VP & General Manager Attn: SDG General Counsel 46500 Kato Road 81 Wyman Street Fremont, CA 94538 Waltham, MA 02451 Fax: Fax: (781) 622-1283     To Achaogen: With a copy to:     Achaogen Inc.   7000 Shoreline Court, #371   South San Francisco, CA 94080   Fax:     13.7 Choice of Law.  This Agreement is subject to and governed by the laws of the State of Delaware, U.S.A. (without regard to conflict of law principles).   13.8 Dispute Resolution.    13.8.1 Executive Resolution. In the event of a dispute with respect to (a) the validity, interpretation or construction of this Agreement, (b) compliance with this Agreement or (c) a breach of this Agreement (a Dispute), a Party may provide the other Party with written notice of the Dispute, and the Parties agree to exercise reasonable efforts to resolve the Dispute in good faith by promptly engaging in discussions with duly authorized representatives of the Parties. If the Dispute cannot be resolved by such authorized representatives of the Parties within [***] ([***]) business days, the authorized representatives shall refer the Dispute to a meeting between a senior executive representing each Party (currently the [***] for Achaogen, and the [***] for Microgenics), which such senior executives shall participate in at least one in person meeting as soon as practicable, but in no event later than [***] ([***]) days after the date of the relevant referral. If the senior executives for Achaogen and Microgenics cannot resolve such Dispute in a mutually acceptable manner within [***] ([***]) business days after such meeting, then the Dispute shall be resolved exclusively by final and binding arbitration in accordance with Section 13.8.2.    13.8.2 Arbitration. Arbitration will be conducted exclusively in the State of Delaware by arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules and Supplementary Procedures for Large Complex Disputes, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. [***]. Notwithstanding anything in this Agreement to the contrary, each Party shall have the right, at its election, to seek injunctive or other equitable relief in any court of competent jurisdiction to enforce or obtain compliance with any provision of

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Confidential Treatment Requested by Achaogen, Inc.   this Agreement without first submitting such matter to arbitration. All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently and, unless otherwise stated herein, shall not be deemed exclusive.    13.9 Entire Agreement; Amendment. Except as otherwise set forth in Section 12.7, this Agreement and the Antibody Development Agreement, including the Exhibits and Schedules hereto and thereto and all the covenants, promises, agreements, warranties, representations, conditions and understandings contained herein and therein sets forth the complete, final and exclusive agreement between the Parties and supersedes and terminates all prior and contemporaneous agreements and understandings between the Parties, whether oral or in writing. There are no covenants, promises, agreements, warranties, representations, conditions or understandings, either oral or written, between the Parties other than as are set forth in this Agreement and the Antibody Development Agreement. No subsequent alteration, amendment, change, waiver or addition to this Agreement shall be binding upon the Parties unless reduced to writing and signed by an authorized officer of each Party. No understanding, agreement, representation or promise, not explicitly set forth herein, or in the Antibody Development Agreement, has been relied on by either Party in deciding to execute this Agreement. Notwithstanding anything to the contrary contained herein or in the Antibody Development Agreement, nothing in the Antibody Development Agreement shall be deemed to modify or diminish the representations, warranties, covenants and obligations of the Parties under this Agreement and in the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of the Antibody Development Agreement, this Agreement shall govern except with respect to Section 4.2.7.3 of this Agreement which shall be subject to the Antibody Development Agreement.   13.10 Headings. The headings and captions used in this Agreement are solely for the convenience of reference and shall not affect its interpretation.   13.11 Counterpart. This Agreement may be executed in one or more counterparts, each of which shall be an original, and all of which shall constitute together the same document. Each Party acknowledges that an original signature or a copy thereof transmitted by facsimile (or .pdf file) shall constitute an original signature for purposes of this Agreement.   13.12 Further Actions. Each Party agrees to execute, acknowledge and deliver such further instruments, and to do all other acts, as may be necessary or appropriate in order to carry out the purposes and intent of this Agreement including any filings with any antitrust agency which may be required.   13.13 Affiliates. Both Parties shall have the right, in their sole discretion, to perform some or all of its obligations and exercise some or all of its rights under this Agreement through its Affiliates.   13.14 Joint Negotiation. This Agreement is the joint product of Microgenics and Achaogen, and each provision hereof has been subject to the mutual consultation, negotiation and agreement of the Parties and their respective legal counsel and advisers and any rule of construction that a document shall be interpreted or construed against the drafting Party shall not be applicable.   13.15 Construction. Except where the context otherwise requires, wherever used, the singular shall include the plural, the plural the singular, the use of any gender shall be applicable to all genders and the word or is used in the inclusive sense (and/or). All references to a business day or business days in this Agreement means any day other than a day which is a Saturday, a Sunday or any day banks are authorized or required to be closed in the United States. The words include, includes and including shall be deemed to be followed by the phrase without limitation. The word will shall be construed to have the same

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Confidential Treatment Requested by Achaogen, Inc.   meaning and effect as the word shall. The words herein, hereof and hereunder, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof. All currency herein shall refer to United States dollars, unless specifically provided otherwise. All exhibits to this Agreement are hereby made a part of this Agreement.   13.16 Use of Third Parties. All obligations under this Agreement shall be performed by the Party designated to perform such obligations under this Agreement and such obligations may not be performed by a Third Party on such Party's behalf, unless (a) the other Party has consented in writing which shall not be unreasonably be withheld or delayed, (b) the Party engaging such Third Party performs appropriate qualification and oversight of such Third Party in accordance with the Applicable Law, including applicable GMP, GCP, and GLP requirements, and (c) the Party engaging such Third Party ensures that such Third Party complies with the terms and conditions of this Agreement, and provided that such performance of activities by a Third Party is consistent with the rights and obligations of the Parties under this Agreement. Notwithstanding any such consent, each Party shall remain at all times fully liable for its respective responsibilities under this Agreement. Each Party hereby expressly waives any requirement that the other Party exhaust any right, power or remedy, or proceed against such subcontractor for an  obligation or performance hereunder, prior to proceeding directly against the Party engaging such subcontractor.     [Signature Page to Follow]

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Confidential Treatment Requested by Achaogen, Inc.     IN WITNESS WHEREOF, duly authorized representatives of the Parties have duly executed this Agreement to be effective as of the Effective Date.       ACHAOGEN INC. MICROGENICS CORPORATION   By: /s/ Blake Wise By: /s/ Marc Tremblay

Name: Blake Wise Name: Marc Tremblay

Title: COO Title: President, Clinical Diagnostics

Date: 4/26/16 Date: 4/26/2016



Signature Page to Collaborative Development and Commercialization Agreement DB2/ 26356633.19

[***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions.





Confidential Treatment Requested by Achaogen, Inc.   Exhibit A Achaogen Materials

Achaogen Materials Estimated Amount Estimated Development PhaseRequired [***]

    (1) [***]

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Confidential Treatment Requested by Achaogen, Inc.   Exhibit B Achaogen Patents [***]



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Confidential Treatment Requested by Achaogen, Inc.   Exhibit C Microgenics' Cell Lines   [***]

Clone # Clone ID

[***]     [***]

Clone # Clone ID

[***]   [***]

Clone # Clone ID

[***]

    [***] Rabbit Identity Immunogen [***]   [***]

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Exhibit D Plazomicin Chemical Structure





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Confidential Treatment Requested by Achaogen, Inc.   Exhibit E Primary Countries   Achaogen Primary Country List Country Country [***]

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Confidential Treatment Requested by Achaogen, Inc.   Exhibit F Project Plan Timeline and Deliverables     Plazomicin TDM Immunoassay Development Project Plan Timeline and Deliverables   Deliverables Start End Duration (M) Phase 0 [***] [***] [***] [***] [***] [***] Phase 1 [***]  [***] [***] [***] •[***] •[***] Phase 2 [***] [***] [***] [***] [***] [***] Phase 3 [***] [***] [***] [***] [***] [***] [***] [***] Phase 4 [***] [***] [***] [***] Milestone 1: [***] [***] [***] [***] [***] Milestone 2: [***] [***] [***] [***] [***] Milestone 3: [***] [***] [***] [***] Milestone 3A: [***] [***] [***] [***] [***] Milestone 3B: [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] Phase 5 [***] [***] [***] [***] Milestone 1: [***] [***] [***] [***] [***] Milestone 2: [***] [***] [***] [***] [***]

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Confidential Treatment Requested by Achaogen, Inc.   Exhibit G Specifications   [***]   Performance Attributes Desired Value(s) Acceptable Value(s)

[***]

    1 [***]

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Confidential Treatment Requested by Achaogen, Inc.   Exhibit H - BARDA Requirements

1.0 Additional Terms and Conditions for this Agreement as a Federal Subcontract

  1.1 Purpose. This Agreement is a subcontract under the following Achaogen Government Contract(s):

  •  Contract No. HHSO100201000046C (BARDA 0046C Contract) between Achaogen, Inc. and Department of Health and Human Services, Biomedical Advanced Research and Development Authority;

The purpose of this Section 1.0 is to incorporate by reference certain government ( Government) contract clauses (flow downs) associated with the Achaogen Government Contract(s) specified above, that Achaogen, as a prime contractor, must include, and by which Microgenics, as a subcontractor, must abide.

  1.2 Incorporated Government Contract Clauses

  (a) For BARDA Contract. This Agreement incorporates by reference Appendix A, Government Provisions for Commercial Item Subcontracts Under Contract No. HHSO100201000046C (BARDA 0046C Contract). Microgenics agrees to abide by all of the provisions listed in Appendix A hereto as a condition of performance of services pursuant to any duly-executed Exhibit under this Agreement.

  1.3 Changes to Government Contracts Provisions

Microgenics agrees that upon the request of Achaogen it will negotiate in good faith with Achaogen amendments to this Agreement to incorporate additional provisions herein or to change provisions hereof, as Achaogen may reasonably deem necessary in order to comply with the provisions of the applicable Achaogen Government Contract or with the provisions of amendment(s) to such Achaogen Government Contract. If any such amendment to this Agreement causes [***], an equitable adjustment shall be made pursuant to the Changes clause of this Agreement.

  1.4 RESERVED [Not applicable]

  1.5 Government Right to Inspection of Research and Development (Reference: FAR 52.246-9)

  (a) Microgenics recognizes that the Government has the right to inspect and evaluate work performed or being performed under the Achaogen Government Contract, including any such work performed or being performed under this Agreement, to the extent practicable at all reasonable places and times and in a manner that will not unduly delay the work, including the period of performance, and in any event before its termination.

  (b) If the Government performs any inspection or test on Microgenics' premises, Microgenics shall furnish all reasonable facilities and assistance for the safe and convenient performance of these duties.

  1.6 Representations and Certifications

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By executing this Agreement, Microgenics represents and certifies that:

  (a) neither it, nor any of its Principals (as defined hereinafter), is presently debarred, suspended, proposed for debarment or otherwise declared ineligible for participating in any federal or state procurement action by any federal, state, or local government or agency;

  (b) neither it, nor any of its Principals, has within the last three years, been convicted of, or had a civil judgment rendered against it, for any of the following: (i) the commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a federal, state or local government contract or agreement; (ii) a violation of federal or state antitrust statutes relating to the submission of offers; or (iii) the commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, or receiving stolen property;

  (c) it will comply with all applicable Federal laws and regulations regarding ethics in public acquisitions and procurement and performance of contracts;

  (d) RESERVED

  (e) it has not made or solicited and will not make or solicit kickbacks in violation of FAR 52.203-7 or the Anti- Kickback Act of 1986 (41 USC 51-58);

  (f) that (i) no federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress on his or her behalf in connection with the awarding of this Agreement; (ii) if any funds other than federal appropriated funds (including profit or fee received under a covered federal transaction) have been paid, or will be paid, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress on his or her behalf in connection with this Agreement, Microgenics shall complete and submit, with its offer, OMB standard form LLL, Disclosure of Lobbying Activities, to the Contracting Officer; and (iii) it will include the language of this certification in all subcontract awards at any tier and require that all recipients of subcontract awards in excess of $150,000 shall certify and disclose accordingly (the definitions and prohibitions contained in the clause at FAR 52.203- 12, Limitation on Payments to Influence Certain Federal Transactions, included in this Subsection 12.7 (f) and will be included in all such certifications);

  (g) that (i) if Microgenics has participated in a previous contract or subcontract subject to the Equal Opportunity clause (FAR 52.222-26), Microgenics has filed all required compliance reports; and (ii) representations indicating submission of required compliance reports, signed by proposed subcontractors, will be obtained before subcontract awards; and

  (h) that to the best of the Microgenics's knowledge and belief, there are no relevant facts or circumstances which could give rise to an organizational conflict of interest, as defined in FAR Subpart 9.5.

Microgenics agrees to provide immediate written notice to Achaogen if, at any time prior to termination, Microgenics learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. For the purpose of paragraphs (a)

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and (b) above, Principal means an officer; director, owner; partner; or a person having primary management or supervisory responsibilities within a business entity.



2.0 Government Interface

  2.1 Microgenics employees may not communicate with any Government employee, including Achaogen's contracting officer (Contracting Officer), Contracting Officer's representative or their respective support staff, concerning any work performed pursuant to this Agreement or any associated Exhibit or appendix, without advance written consent from Achaogen.

  2.2 Under no circumstances may Microgenics accept Government instruction on behalf of Achaogen. Microgenics is not authorized to make offers, commitments, or otherwise negotiate with the Government on Achaogen's behalf or its own behalf in its capacity as a subcontractor to Achaogen. In case of occurrence of any such events, Microgenics shall:

  (a) suggest to the Government representative that Achaogen be involved in all such discussions, and

  (b) immediately report to Achaogen any attempt by Government personnel to provide such instruction or conduct such negotiations.

  2.3 If Microgenics communicates with the Government regarding a Project, Microgenics's monthly contract management reports shall list all data exchanged and shall summarize each and every significant discussion with Government personnel during the reporting period.

3.0 Disputes

  3.1 Disputes Involving the Prime Contract and/or the Government

  (a) Any dispute arising under or related to this Agreement which relates to a matter for which Achaogen has recourse against the Government under the Achaogen Government Contract (also hereinafter sometimes referred to as the Prime Contract) shall be resolved as follows unless the Parties otherwise agree in writing.

  (b) Microgenics shall give Achaogen a fully supported written request for equitable adjustment or claim concerning any such dispute within [***] years after the basis of the equitable adjustment arises or claim accrues, but in no event later than [***], or Microgenics shall be barred from any remedy for such claim.

  (c) Achaogen shall forward such request for equitable adjustment or claim to the Contracting Officer on Microgenics's behalf for final decision, subject to the limitations and other conditions contained in this provision. Achaogen shall in good faith consult with Microgenics concerning the forwarding of such request for equitable adjustment or claim to the Contracting Officer.

  (d) Any final decision of the Contracting Officer under the Prime Contract as it relates to this Agreement, whether or not it results from a claim under Section 3.1(b) and (c) of this Agreement submitted on Microgenics's behalf under the provision stated above, shall be binding upon Microgenics; provided however, that Achaogen shall notify Microgenics immediately of any such final decision of the Contracting Officer and if: (i) Achaogen elects not to appeal such decision pursuant to the

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  Disputes clause of the Prime Contract; (ii) Achaogen thereafter receives, no less than [***] ([***]) days before the expiration of the period of appeal under the Disputes clause of the Prime Contract, a written request by Microgenics to appeal such decision, and (iii) Achaogen has the right of such appeal under the Prime Contract, then Achaogen shall file an appeal from the final decision on Microgenics's behalf.

  (e) If Achaogen appeals such a decision, whether at its election or at Microgenics's request, any decision upon such appeal by the Board of Contract Appeals, the United States Court of Federal Claims, or any other board or agency having jurisdiction over the appeal shall be binding upon Microgenics insofar as it relates to a claim under this Section 3.1 of this Agreement, provided however, that if Microgenics timely (i.e., no less than [***] ([***]) days before the expiration of the relevant period of appeal) requests Achaogen to bring a further appeal to obtain judicial review of such final decision by a court of competent jurisdiction, Achaogen shall do so, subject to the terms below. A final judgment in any such further appeal, if binding on Achaogen under the Prime Contract, shall in turn be binding on Microgenics insofar as it relates to a claim under this Section 3.1 of this Agreement.

  (f) In any appeal brought by Achaogen on behalf of Microgenics, or at Microgenics's request under the above provisions, [***] shall bear all costs and expenses incurred by Microgenics in prosecuting such appeal, including but not limited to, any legal fees or costs incurred. In any appeal taken or brought by Achaogen, whether at its election or at Microgenics request, Microgenics shall cooperate fully with Achaogen in its prosecution thereof in every reasonable manner and Microgenics shall be afforded reasonable opportunity to participate in the prosecution thereof to the extent Microgenics's interest may be affected. To the extent requested by Achaogen, Microgenics shall prosecute for Achaogen any appeal taken or brought at Microgenics request and, in such event, Achaogen shall assist Microgenics in every reasonable manner.

  (g) If Achaogen is required to certify any claim of Microgenics, Achaogen shall not forward such claim unless it is reasonably satisfied the claim is in good faith, and Achaogen can certify such claim to the Contracting Officer to the extent and manner required by the Contract Disputes Act, as applicable. Microgenics agrees to provide Achaogen with such information as Achaogen reasonably may deem necessary to make this determination, including but not limited to, its own certification in the form prescribed by the Contract Disputes Act or its implementing regulations. Such certification shall be executed by a person duly authorized to bind Microgenics. Microgenics agrees that, with respect to any claim or dispute that arises under or relates to the Prime Contract which, if it were Achaogen's claim, can properly be submitted for a decision of the Contracting Officer under the Disputes clause, its right of claim or appeal is limited to the procedures set forth in this provision.

  (h) Microgenics's failure to comply with the terms of this provision shall entitle Achaogen to terminate any such appeal on Microgenics's behalf. The rights and obligations described herein shall survive completion of and final payment under this Disputes section.

  3.2 Other Disputes Any dispute arising under or related to this Agreement which relates to a matter for which Achaogen has recourse against the Government under the Prime Contract shall be resolved in accordance with Subsection 3.1. In the event of any dispute between the

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  Parties arising out of or in connection with this Agreement that does not relate to a matter for which Sponsor has recourse against the Government under the Prime Contract, such dispute shall be resolved pursuant to Section 13.8 of the Agreement.

  3.3 Choice of Law: This Agreement is subject to and governed by the laws of the State of Delaware, U.S.A. without regard to conflict of law principles, as applicable except that any provision in this Agreement that is (i) incorporated in full text or by reference from the Federal Acquisition Regulation (FAR) or (ii) incorporated in full text or by reference from any agency regulation that implements or supplements the FAR or (iii) substantially based on any such FAR provision or agency regulation, shall be construed and interpreted according to the federal common law of government contracts as enunciated and applied by federal judicial bodies, boards of contract appeals, and quasi- judicial agencies of the federal government.

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APPENDIX A Government Provisions for Commercial Item Subcontracts  Under Contract Number HHSO100201000046C (BARDA Prime Contract)

The following provisions, as they may be amended by the United States Government over time, are incorporated by reference with the same force and effect as if set forth in full text and shall be deemed to apply solely to such portions of work as are funded using Government funds. For the purposes of this Agreement, the term contract shall mean this Agreement; the terms Contractor and Company shall mean Microgenics; the term prime contractor shall mean Achaogen; and the terms Government and Contracting Officer may mean Achaogen or the United States Government as expressly indicated on this document. The dollar amount listed parenthetically in the titles of some referenced clauses in this Appendix A is the applicability threshold for the clause. If the total cumulative amount invoiced by Microgenics for all Government Sponsored Projects performed under the BARDA Prime Contract is expected to exceed this amount, the clause applies.

FEDERAL ACQUISITION REGULATION

Clause Date Title FAR 52.202-1 Jul-04 Definitions (Over $100,000) FAR 52.203-3 Apr-84 Gratuities (Over $100,000) FAR 52.203-5 Apr-84 Covenant Against Contingent Fees (Over $100,000). Substitute Achaogen  for Government or United States in paragraph (a) of this clause, provided however that Achaogen may annul the contract or deduct amounts only to the extent of a Government annulment or deduction due to conduct of Microgenics. FAR 52.203-6 Sep-06 Restrictions on Subcontractor Sales to the Government (Over $100,000) FAR 52.203-7 Jul-95 Anti-Kickback Procedures (Over $100,000) FAR 52.203-8 Jan-97 Cancellation, Rescission, and Recovery of Funds for Illegal or Improper Activity (Over $100,000). Substitute Achaogen  for Government or United States throughout this clause, provided however that Achaogen may rescind the contract and recover funds only to the extent of a Government rescission or recovery due to conduct of Microgenics. FAR 52.203-10 Jan-97 Price or Fee Adjustment for Illegal or Improper Activity (Over $100,000) Substitute Achaogen  for Government or United States throughout this clause and Achaogen for Contracting Officer throughout this clause, provided however that Achaogen may make a reduction only to the extent that the Government makes a reduction due to conduct of Microgenics. FAR 52.203-12 Sep-07 Limitation on Payments to Influence Certain Federal Transactions (Over $100,000) FAR 52.203-13 Apr-10 Contractor Code of Business Ethics and Conduct (applies if Agreement is over $5,000,000 and has a performance period greater than 120 days). Disclosures made under this clause shall be made directly to the government entities listed in the clause. FAR 52.203-14 Dec-07 Display of Hotline Poster(s). (d) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (d), in all subcontracts that exceed $5,000,000, except when the subcontract-(1) Is for the acquisition of a commercial item; or (2) Is performed entirely outside the United States.

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Clause Date Title FAR 52.209-6 Sep-06 Protecting the Government's Interests When Subcontracting With Contractors Debarred, Suspended, or Proposed for Debarment (Over $30,000) FAR 52.215-2 Mar 09 Audit and Records- Negotiation (Over $100,000) (Only Government receives access and audit rights under this clause) FAR 52.215-21 Oct-97 Requirements for Cost or Pricing Data or Information Other Than Cost or Pricing Data-Modifications. Substitute Achaogen for Contracting Officer throughout this clause, provided however, that Achaogen may seek from Microgenics only such information as the Government has requested, and Microgenics shall deliver any such information directly and only to the Government. FAR 52.215-21 (as modified above) shall apply only with respect to modifications funded by the Government; FAR 52.215-21 shall not apply to modifications that are not funded by the Government. FAR 52.219-8 May-04 Utilization of Small Business Concerns (Over $100,000) FAR 52.222-3 Jun-03 Convict Labor FAR 52.222-21 Feb-99 Prohibition of Segregated Facilities FAR 52.222-26 Mar-07 Equal Opportunity (Over $10,000) FAR 52.222-35 Sept-06 Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (Over $100,000) FAR 52.222-36 Jun-98 Affirmative Action for Workers with Disabilities (Over $10,000) FAR 52.222-37 Sep-06 Employment Reports on Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (Over $100,000) FAR 52.222-39 Dec-04 Notification of Employee Rights Concerning Payment of Union Dues or Fees. Applicable if value of this Agreement equals or exceeds $100,000. FAR 52.222-50 Feb-09 Combating Trafficking in Persons FAR 52.222-54 Jan-09 Employment Eligibility Verification. Applicable to services and construction subcontracts that: (1) exceed $3,000; and (2) include work performed in the United States. This clause does not apply to subcontracts for commercial services that are (a) part of the purchase of a Commercially Available Off the Shelf (COTS) item (or an item that would be a COTS item, but for minor modifications) (b) performed by the COTS provider, and (c) are normally provided for that COTS item. FAR 52.223-6 May-01 Drug-Free Workplace FAR 52.224-1 Apr-84 Privacy Act Notification (If subcontract requires design, development, or operation of a system of records) FAR 52.224-2 Apr-84 Privacy Act (If subcontract requires design, development, or operation of a system of records) FAR 52.225-1 Feb-09 Buy American Act- Supplies FAR 52.225-13 Jun-08 Restrictions on Certain Foreign Purchases FAR 52.227-1 Dec-07 Authorization and Consent, Alternate I (Apr 1984) (Over $100,000) FAR 52.227-2 Dec-07 Notice and Assistance Regarding Patent and Copyright Infringement (Over $100,000). Substitute Achaogen for Contracting Officer throughout this clause. Insert or Achaogen after Government throughout this clause.

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Clause Date Title FAR 52.227-11 Dec-07 Patent Rights -Ownership by the Contractor (Only Government receives license; Achaogen receives no license.) (Note: In accordance with FAR 27.303(b)(2), paragraph (e) is modified to include the requirements in FAR 27.303(b)(2)(i) through (iv). The frequency of reporting in (i) is annual. Microgenics shall provide to Achaogen a copy of any notice or election that Microgenics submits to the Contracting Officer pursuant to subparagraph (c)(1), (c)(2) and (e)(3). FAR 52.227-16 Jun-87 Additional Data Requirements. Substitute Achaogen for Contracting Officer throughout this clause, provided however, that Achaogen may order from Microgenics only such data that the Government has ordered and provided further that the following data are hereby specifically identified for purposes of FAR 52.227-16(b), and are not subject to disclosure obligations under FAR 52.227-16, and shall not be disclosed: (i) Immunoassay Technologies (as defined in Section 1.16); (ii) Microgenics Know-How (as defined in Section 1.18) related to Immunoassay Technologies; and (iii) any and all limited rights data (i.e., data that embody trade secrets or are commercial or financial and confidential or privileged, to the extent such data pertain to items, components, or processes developed at private expense, including minor modifications) not already included in (i) or (ii). FAR 52.242-15 Aug-89 Stop Work Order (April 1984) (Achaogen may issue stop work order only to the extent the Government issues a stop work order) Substitute Achaogen for Contracting Officer throughout this clause. FAR 52.244-5 Dec-96 Competition in Subcontracting FAR 52.244-6 Jun-10 Subcontracts for Commercial Items FAR 52.245-1 Aug-10 Government Property Applicable where government property involved in performance of subcontract; Contracting Officer means Achaogen except in the definition of Property Administrator and in paragraph h(1)(iii) and where it is unchanged, and in paragraphs (c) and (h)(4) where it includes Achaogen. Government is unchanged in the phrases Government property and Government furnished property and where elsewhere used except in paragraph (d)(1) where it means Achaogen and except in paragraphs (d)(2) and (g) where the term includes Achaogen.

THE DEPARTMENT OF HEALTH AND HUMAN SERVICES SUPPLEMENTAL REGULATION PROVISIONS

Clause Date Title HHSAR 352.203-70 Jan-06 Anti-lobbying HHSAR 352.223-70 Jan-06 Safety and Health HHSAR 352.224-70 Jan-06 Privacy Act (if subcontract requires design, development, or operation of a system of records) HHSAR 325.242-73 Jan-06 Withholding of Contract Payments HHSAR 352.270-4 Jan-06 Protection of Human Subjects HHSAR 352.270-5 Jan-06 Care of Live Vertebrate Animals HHSAR 352.270-6 Jan-06 Restriction on Use of Human Subjects

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HHSAR 352.227-70 Jan-06 Publications and Publicity

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BARDA REQUIRED PROVISIONS

Prime Contract Provision

Clause

H.2: Human Materials The acquisition and supply of all human specimen material (including fetal material) used under this contract shall be obtained by Company in full compliance with applicable State and Local laws and the provisions of the Uniform Anatomical Gift Act in the United States, and no undue inducements, monetary or otherwise, will be offered to any person to influence their donation of human material.

Company shall provide Achaogen with written documentation that all human materials obtained as a result of research involving human subjects conducted under this contract, by collaborating sites, or by subcontractors identified under this Agreement were obtained with prior approval by the Office for Human Research Protections of an Assurance to comply with the requirements of 45 CFR 46 to protect human research subjects.

Provision by Company to Achaogen of a properly completed Protection of Human Subjects Assurance Identification/IRB Certification/Declaration of Exemption, Form OMB No. 0990-0263 (formerly optional form 310), certifying IRB review and approval of the protocol from which the human materials were obtained constitutes the written documentation required.

H.3: Research Involving Human Fetal Tissue

All research involving human fetal tissue shall be conducted in accordance with the Public Health Service Act, 42 U.S.C. 289g-1 and 289g-2. Implementing regulations and guidance for conducting research on human fetal tissue may be found at 45 C.F.R. 46, Subpart B, and http://grants1.nih.gov/grants/guide/notice-files/not93- 235.html and any subsequent revisions to this NIH Guide to Grants and Contracts (Guide) Notice.

Company shall make available, for audit by Achaogen, the secretary, HHS, the physician statements and informed consents required by 42 U.S.C. 289g-1(b) and (c), or ensure HHS access to those records, if maintained by an entity other than the Contractor.

H.4: Needle Exchange Company shall not use contract funds to carry out any program of distributing sterile needles or syringes for the hypodermic injection of any illegal drug.

H.5: Press Releases Company shall clearly state, when issuing statements, press releases, requests for proposals, bid solicitations and other documents describing projects or programs funded in whole or in part with Federal money: (1) the percentage of the total costs of the program or project which will be financed with Federal money; (2) the dollar amount of Federal funds for the project or program; and (3) the percentage and dollar amount of the total costs of the project or program that will be financed by nongovernmental sources.

H.7: Animal Welfare All research involving live, vertebrate animals shall be conducted in accordance with the Public Health Service Policy on Humane Care and Use of Laboratory Animals. This policy may be accessed at: http://grants1.nih.gov/grants/olaw/references/phspol.htm.

H.8: Protection of Personnel who Work with Nonhuman Primates

All Company personnel who work with nonhuman primates or enter rooms or areas containing nonhuman primates shall comply with the procedures set forth in NIH Policy Manual 3044-2, entitled, Protection of NIH Personnel Who Work with Nonhuman Primates, located at the following URL: http://www1.od.nih.gov/oma/manualchapters/intramural/3044-2/

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Prime Contract Provision Clause

H.9: Publications and Publicity

No information related to data obtained under this contract shall be released or publicized without the prior written consent of Achaogen and the Contracting Officer Technical Representative.

In addition to the requirements of HHSAR 352.227-70, Publications and Publicity incorporated by reference in section I of this contract shall acknowledge the support of the Biomedical Advanced Research and Development Authority whenever publicizing the work under this contract in any media by including an acknowledgment substantially as follows:

This project has been funded in whole or in part with Federal funds from the Biomedical Advanced Research and Development Authority, office of the Assistant Secretary for Preparedness and response, Office of the Secretary, Department of Health and Human Services, Under Contract No. HHSO100201000046C. H.10: Reporting Matters Involving Fraud, Waste and Abuse

Anyone who becomes aware of the existence or apparent existence of fraud, waste and abuse in BARDA funded programs is encouraged to report such matters to the HHS Inspector General's Office in writing or on the Inspector General's Hotline. The toll free number is 1-800-HHS-TIPS (1-800-447-8477). All telephone calls will be handled confidentially. The e-mail address is Htips@os.dhhs.gov and the mailing address is: Office of Inspector General Department of Health and Human Services TIPS HOTLINE P.O. Box 23489 Washington, D.C. 20026. H.11 Prohibition on Contractor Involvement with Terrorist Activities

Company acknowledges that U.S. Executive Orders and Laws, including but not limited to E.O. 13224 and P.L. 107-56, prohibit transactions with, and the provision of resources and support to, individuals and organizations associated with terrorism. It is the legal responsibility of Company to ensure compliance with these Executive Orders and Laws. This clause must be included in all subcontracts issued under this contract.

H.15: Privacy Act Applicability

Notification is hereby given that Company and its employees are subject to criminal penalties for violation of the Privacy Act to the same extent as employees of the Government.

H.16: Laboratory license requirement

Company shall comply with all applicable requirements of Section 353 of the Public Health Service Act (Clinical Laboratory Improvement Act as Amended). This requirement shall also be included in any subcontract for services under this contract.

The parties anticipate that no part of the performance of this Agreement will be subject to the Clinical Laboratory Improvement Act As Amended.

H.17: Dissemination of Information

Except for any application to the FDA for approval of a diagnostic, any publication in connection with such FDA filing or approval, and any filing in connection with obtaining patent protection, no information related to data obtained under this contract shall be released or publicized without the prior written consent of the Contracting officer, to be obtained through Achaogen.

H.18: Identification and Disposition of Data

Company will be required to provide certain data generated under this contract to the Department of Health and Human Services (DHHS). DHHS reserves the right to review any other data determined by DHHS to be directly related to and/or generated under this contract. Company shall keep copies of all data required by the Food and Drug Administration (FDA) relevant to this contract for the time period specified by the FDA.

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Prime Contract Provision

Clause

H.19: Information on Compliance With Animal Care Requirements

Registration with the U.S. Dept. of Agriculture (USDA) is required to use regulated species of animals for biomedical purposes. USDA is responsible for the enforcement of the Animal Welfare Act (7 U.S.C. 2131 et. seq), http://www.nal.usda.gov/awic/legislat/awa.htm

The Public Health Service (PHS) Policy is administered by the Office of Laboratory Animal Welfare (OLAW) http://grants2.nih.gov/grants/olaw/olaw.htm. An essential requirement of the PHS Policy, http://grants2.nih.gov/grants/olaw/references/phspol.htm is that every institution using live vertebrate animals must obtain an approved assurance from OLAW before they can receive funding from any component of the U.S. Public Health Service.

The PHS Policy requires that Assured institutions base their programs of animal care and use on the Guide for the Care and Use of Laboratory Animals http://www.nap.edu/readingroom/books/labrats/ and that they comply with the regulations (9 C.F.R., subchapter A) http://www.nal.usda.gov/awic/legislat/usdaleg1.htm issued by the U.S. Department of Agriculture (USDA) under the Animal Welfare Act. The Guide may differ from USDA regulations in some respects. Compliance with USDA regulations is an absolute requirement of this Policy.

The Association for Assessment and Accreditation of Laboratory Animal Care International (AAALAC) http://www.aaalac.org is a professional organization that inspects and evaluates programs of animal care institutions at their request. Those that meet the high standards are given accredited status. As of the 2002 revision of the PHS policy, the only accrediting body recognized by PHS is the AAALAC. While AAALAC Accreditation is not required to conduct biomedical research, it is highly desirable. AAALAC uses the Guide as their primary evaluation tool. They also use the Guide for the Care and Use of Agricultural Animals in Agricultural Research and Teaching. It is published by the American Science Societies. http://www.fass.org.

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Prime Contract Provision

Clause

H.20: Requirements for Adequate Assurance of Protection of Vertebrate Animal Subjects

The PHYS Policy on Humane Care and Use of Laboratory Animals requires that applicant organizations proposing to use vertebrate animals file a written Animal Welfare Assurance with the Office for Laboratory Animal Welfare (OLAW), establishing appropriate policies and procedures to ensure the humane care and use of live vertebrate animals involved in research activities supported by the PHS. The PHS Policy stipulates that an applicant organization, whether domestic or foreign, bears responsibility for the humane care and use of animals in PHS-supported research activities. Also the PHS policy defines animal as any live, vertebrate animal used, or intended for use, in research, research training, experimentation, biological testing or for related purposes. This policy implements and supplements the U.S. Government Principles for the Utilization and Care of Vertebrate Animals Used in Testing, Research, and Training, and requires that institutions use the Guide for the Care and Use of Laboratory Animals as a basis for developing and implementing an institutional animal care use program. This Policy does not affect applicable State or local laws or regulations that impose more stringent standards for the care and use of laboratory animals. All institutions are required to comply, as applicable, with the Animal Welfare Act, as amended and other Federal statutes and regulations relating to animals. These documents are available from the Office of Laboratory Animal Welfare, National Institutes of Health, Bethesda, MD 20892, (301) 496-7163. http://grants.nih.gov/grants/olaw/olaw.htm.

No PHYS supported work or research involving vertebrate animals will be conducted by an organization, unless that organization is operating in accordance with an approved Animal Welfare Assurance and provides verification that the Institutional Animal Care and Use Committee (IACUC) has reviewed and approved the proposed activity in accordance with the PHS policy. Applications may be referred by the PHS back to the institution for further review in the case of an apparent or potential violations of the PHS policy. No award to an individual will be made unless that individual is affiliated with an assured organization that accepts responsibility for compliance with the PHS Policy. Foreign applicant organizations applying for PHS awards for activities involving vertebrate animals are required to comply with PHS Policy or provide evidence that acceptable standards for the humane care and use of animals will be met. Foreign applicant organizations are not required to submit IACUC approval, but should provide information that is satisfactory to the Government to provide assurances for the humane care of such animals.

H.21: Approval of Required Assurance by OLAW

Under governing regulations, federal funds which are administered by DHHS, Office of Biomedical Advanced Research and Development Authority (BARDA) shall not be expended by the contractor for research involving live vertebrate animals, nor shall live vertebrate animals be involved in research activities by Company under this award unless a satisfactory assurance of compliance with 7 U.S.C. 2316 and 9 CFR Sections 2.25-2.28 is submitted within 30 days of the date of this award and approved by the Office of Laboratory Animal Welfare (OLAW). Each performance site (if any) must also assure compliance, with the following restriction: Only activities which do not directly involve live vertebrate animals (i.e., are clearly severable and independent from those activities) may be conducted by the contractor or individual performance sites pending OLAW approval of their respective assurance of compliance.

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Prime Contract Provision

Clause

H.22: Registration with the Select Agent Program for Work involving the possession, use, and/or transfer of select biological agents or toxins

Company shall not conduct work involving select agents or toxins under this contract until it and any associated subcontractor(s) comply with the following:

For prime or subcontract awards to domestic institutions that possess, use, and/or transfer Select Agents under this contract, the institution must comply with the provisions of 42 C.F.R. part 73, 7 C.F.R. part 331, and/or 9 C.F.R. part 121 ( http://www.aphis.usda.gov/programs/ag_selectagent/FinalRule3-18-05.pdf ) as required, before using NIH funds for work involving a Select Agent or Toxin. No government funds can be used for research involving a Select Agent or Toxin at a domestic institution without a valid registration certificate.

For prime or subcontract awards to foreign institutions that possess, use, and/or transfer a Select Agent or Toxin, before using NIH funds for any work directly involving a Select Agent or Toxin, the foreign institution must provide information satisfactory to the government that safety, security, and training standards equivalent to those described in 42 C.F.R. part 73, 7 C.F.R. part 331, and/or 9 C.F.R. part 121 are in place and will be administered on behalf of all Select Agent or Toxin work supported by these funds. The process for making this determination includes inspection of the foreign laboratory facility by a government representative. During this inspection, the foreign institution must provide the following information: concise summaries of safety, security, and training plans; names of individuals at the foreign institution who will have access to the Select Agents and procedures for ensuring that only approved and appropriate individuals, in accordance with institution procedures, will have access to the Select Agents under the contract; and copies of or links to any applicable laws, regulations, policies, and procedures applicable to that institution for the safe and secure possession, use, and/or transfer of select agents. No funds can be used for work involving a Select Agent or Toxin at a foreign institution without written approval from Achaogen.

Listings of HHS select agents and toxins, and overlap select agents or toxins as well as information about the registration process for domestic institutions, are available on the Select Agent Program Web site at http:// www.cdc.gov/od/sap/ and http://www.cdc.gov/od/sap/docs/salist.pdf.

Listings of USDA select agents and toxins as well as information about the registration process for domestic institutions are available on the APHIS/USDA website at: http://www.aphis.usda.gov/programs/ag_selectagent/ index.html and: http://www.aphis.usda.gov/programs/ag_selectagent/ag_bioterr_forms.html

For foreign institutions, see the NIAID Select Agent Award information: http://www.niaid.nih.gov/ncn/clinical/default_biodefense.htm.

H.23: EPA Energy Star Requirements

All microcomputers, including personal computers, monitors, and printers purchased with government funds in the performance of a contract shall be equipped with or meet the energy efficient low-power standby feature as defined by the EPA Energy Star program unless the equipment always satisfies Energy Star efficiency levels.

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Prime Contract Provision Clause

H.24: Acknowledgement of Federal Funding

(a)Section 507 of P.L. 104-208 mandates that contractors funded with Federal dollars, in whole or in part, acknowledge Federal funding when issuing statements, press releases, requests for proposals, bid solicitations and other documents. Contractors are required to state (1) the percentage and dollar amounts of the total program or project costs financed with federal money, and (2) the percentage and dollar amount of the total costs financed by nongovernmental sources. This requirement is in addition to the continuing requirement to provide an acknowledgement of support and disclaimer on any publication reporting the results of a contract funded activity. (b)Publication and Publicity. The contractor shall acknowledge the support of the Department of Health and Human Service, Office of the Assistant Secretary for Preparedness and Response, Biomedical Advanced Research and Development Authority whenever publicizing the work under this contract in any media by including an acknowledgment substantially as follows: This project has been funded in whole or in part with Federal funds from the Office of the Assistant Secretary for Preparedness and Response, Biomedical Advanced Research and Development Authority, under Contract no. HHSO100201000046C. (c)Press Releases. Pursuant to Section 508 of Public Law 105-78, the contractor shall clearly state, when issuing statements, press releases, requests for proposals, bid solicitations and other documents describing projects or programs funded in whole or in part with federal money that: (1) the percentage of the total costs of the program or project which will be financed with federal money; (2) the dollar amount of Federal funds for the project or program; and (3) the percentage and dollar amount of the total costs of the project or program that will be financed by nongovernmental sources. H.25: Manufacturing Standards

The Current Good Manufacturing Practice Regulations (cGMP) (21 C.F.R. Parts 210-211) and regulations pertaining to biological products (21 C.F.R. Part 600) will be the standard to be applied for manufacturing, processing, packing, storage, and delivery of this product.

If at any time during the life of the contract, Company fails to comply with cGMP in the manufacturing, processing and packaging of this product and such failure results in a material adverse effect on the safety, purity or potency of this product (a material failure), the Contractor shall have thirty (30) calendar days from the time such material failure is identified to cure such material failure. If the Contractor fails to take such an action within the thirty (30) calendar day period, then the contract may be terminated for default.

H.26: Export Control Notification

Company is responsible for ensuring compliance with all export control laws and regulations that may be applicable to the export of and foreign access to their proposed technologies.

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Prime Contract Provision Clause

H.27: Institutional responsibility Regarding Conflicting Interests of Investigators

Company shall comply with the requirements of 45 CFR Part 94, Responsible Prospective Contractors, which promotes objectivity in research by establishing standards to ensure that investigators (defined as the principle investigator and any other person who is responsible for design, conduct, or reporting of research funded under BARDA contracts) will not be biased by any conflicting financial interest. For the purposes of this part relating to financial interest, investigator includes the investigator's spouse and dependent children.

Company shall at a minimum:

(a)Maintain a written, enforceable policy on conflict of interest and inform each investigator of the policy, the investigator's reporting responsibilities, and the applicable regulations. The contractor must take reasonable steps to ensure that investigators working as collaborators or subcontractors comply with the regulations. (b)Designate and official to review financial disclosure statements from each investigator participating in BARDA-funded research. Based on established guidelines consistent with the regulations, the designated official must determine whether a conflict of interest exists, and if so, determine what actions should be taken to manage, reduce, or eliminate such a conflict. (c)Require updating of financial disclosure statements during the period of award. (d)Maintain records taken under this provision for three years after final payment. (e)Establish adequate enforcement mechanisms. If a conflict of interest is identified, the Institution shall report to Achaogen the existence of the conflicting interest found. This report shall be made and the conflicting interest managed, reduced, or eliminated, at least on a temporary basis, within thirty (30) days of that identification.



ORDER OF PRECEDENCE

In the event of a conflict between the terms of this Appendix and any term of the Agreement or an Exhibit or other appendix issued there under, the terms of this Appendix shall govern.



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[A]: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?


[Q]: AMENDMENT NO. 3 TO STREMICK'S HERITAGE FOODS, LLC and PREMIER NUTRITION CORPORATION MANUFACTURING AGREEMENT

This Amendment No. 3 (the Third Amendment), entered into by and between Stremicks Heritage Foods, LLC (Heritage) Premier Nutrition Corporation (Premier) is effective as of July 3, 2019 (Third Amendment Effective Date) and amends that certain Manufacturing Agreement between Heritage and Premier dated July 1, 2017 as amended (Agreement). Heritage and Premier are each referred to herein as a Party and collectively as the Parties.

WHEREAS, Heritage and Premier entered into the Agreement;

WHEREAS, the Parties wish to amend the Agreement in accordance with the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the promises and of the mutual covenants, representations and warranties contained in the Agreement and set forth herein, the Parties hereby agree that the following changes shall be made to the Agreement:

1. The Parties hereby agree to remove Schedule C-1 in its entirety and replace it with the following:

Schedule C-1. The following is attached to an incorporated into the Agreement as Schedule C-1:

Schedule C-1([***])

[***]

2. Except as otherwise specified above in this Amendment, all other terms, conditions and covenants of the Agreement shall remain in full force and effect.

IN WITNESS WHEREOF, the Parties have caused this Amendment to be signed by their respective duly authorized representatives as of the Amendment Effective Date. Premier Nutrition Corporation Stremick's Heritage Foods, LLC.

By: /s/ Darcy Davenport By: /s/ Sam Stremick Name: Darcy Davenport Name: Sam Stremick Title: President Title: President

Source: BELLRING BRANDS, INC., S-1, 9/20/2019
[A]: Highlight the parts (if any) of this contract related to Effective Date that should be reviewed by a lawyer. Details: The date when the contract is effective


[Q]: EXHIBIT 10.26

                              OUTSOURCING AGREEMENT

WYZZ, Inc. and WYZZ Licensee, Inc. (collectively WYZZ) and Nexstar Broadcasting of Peoria, L.L.C. (NEXSTAR) hereby enter into this Agreement (this Agreement) dated November 28, 2001. WYZZ and Nexstar are sometimes referred to herein individually as a Party and collectively as the Parties.

                                    RECITALS

      WHEREAS, WYZZ is the licensee, pursuant to authorizations issued by the Federal Communications Commission (the FCC), of Broadcast Television Station WYZZ (WYZZ-TV) licensed in the Peoria-Bloomington, Illinois market and is experienced as an FCC licensee in the management and operation of commercial television stations; and

      WHEREAS, NEXSTAR is the licensee, pursuant to authorizations issued by the FCC, of Broadcast Television Station WMBD-TV (WMBD-TV ) licensed in the Peoria-Bloomington, Illinois market and is experienced as an FCC licensee in the management and operation of commercial television stations; and

      WHEREAS, WMBD-TV and WYZZ-TV are sometimes referred to herein collectively as the Stations; and

      WHEREAS, during the term of this Agreement, WYZZ wishes to retain Nexstar to provide certain non-programming related operational and managerial services on its behalf, subject to the terms and conditions of this Agreement and all in conformity with the policies and procedures of WYZZ (as they relate specifically to WYZZ-TV) and the rules, regulations, and policies of the FCC; and

      WHEREAS, none of the services to be provided by Nexstar to WYZZ hereunder are intended to abrogate WYZZ's exclusive authority and duty, as the FCC licensee of WYZZ-TV, to manage and control programming on WYZZ-TV; and

      WHEREAS, Nexstar agrees to provide the services to WYZZ in conformity with the policies and procedures of WYZZ (as they relate specifically to WYZZ-TV) and all rules, regulations, and policies of the FCC; and

      WHEREAS, it is the Parties' expectation that by entering into this Agreement the operational efficiencies of each of the Stations will improve and economies of scale will be achieved, resulting in an increase in the Broadcast Cash Flow (as hereinafter defined) to each of the Parties from their respective Stations.

      NOW, THEREFORE, IN CONSIDERATION OF the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, agree as follows:

      1. Provision of Services.

            (a) Consistent with the rules, regulations, and policies of the FCC, Nexstar shall, during the Term (as hereinafter defined), provide to WYZZ-TV the following services (the Services):

                  (i) sale of advertising time on WYZZ-TV;

                  (ii) the performance of certain administrative, operational, and business functions other than with respect to programming but including the coordination of traffic and billing functions;

                  (iii) consultation services regarding programming, including, where applicable, news and public affairs;

                  (iv) the supplying of all accounting, bookkeeping and related services;

                  (v) the monitoring, maintenance, repair, and replacement of WYZZ's technical equipment and facilities, including capital equipment replacement expenditures, in order to ensure that the technical facilities of WYZZ-TV are in compliance with the rules and regulations of the FCC; and

                  (vi) assistance with the negotiation of retransmission consent with cable, satellite and other multi-channel video providers.

            (b) In order to accommodate the provision of the Services by Nexstar, WYZZ agrees to make available to Nexstar (subject to any lease and/or financing agreements applicable thereto) for use without fee or charge the facilities and equipment described on Exhibit A hereto (the Equipment), all of which Equipment shall be appropriately tagged indicating the ownership thereof. Nexstar shall maintain the Equipment in good order and repair in accordance with industry standards. Subject to the reduction of the Section 2(a) Amount in accordance with Section 2(a) hereof, Nexstar shall bear the cost of maintaining and repairing the Equipment. Nexstar shall provide the functions required by this Agreement subject to (i) each Party's absolute right and duty to control and manage its own programming, personnel and finances, (ii) the other provisions of this Agreement and (iii) the rules, regulations and policies of the FCC.





                                       2

Notwithstanding anything to the contrary contained herein, the parties recognize that WYZZ is, and at all times shall be, responsible for programming WYZZ-TV and nothing in this Agreement is intended to detract from that responsibility.

      2. Payment to WYZZ-TV. Notwithstanding anything herein to the contrary, WYZZ shall continue to be the owner of and shall be entitled to all revenues resulting from the sale of advertising and other time on WYZZ-TV before, during and/or after the Term; provided, however, in consideration of the Services, Nexstar shall be entitled to all revenues resulting from the sale of advertising and other time on the Stations during the Term remaining after the payment of the amounts set forth below:

            (a) Within seventy-five (75) days following the end of each month of a calendar year during the Term that BCF (as defined below) for such month, when combined with BCF for all prior months during such calendar year (other than any month which is outside the Term) is less than the Minimum BCF, Nexstar shall pay a fee to WYZZ in an amount equal to thirty-five percent (35%) of BCF for such month. Within seventy-five (75) days following the end of each month of a calendar year during the Term that BCF for such month, when combined with BCF for all prior months of such calendar year (other than any month which is outside the Term) is greater than the Minimum BCF, Nexstar shall pay a fee to WYZZ in an amount equal to 50% of BCF for such month; provided, in the first month of each calendar year in which this sentence applies, the fee with respect to the portion of BCF for such month which, when combined with BCF for all prior months during such year (other than any month which is outside the Term) is exactly equal to the Minimum BCF, shall equal thirty-five percent (35%) of such portion rather than fifty percent (50%). The amount payable pursuant to either of the prior two sentences (sometimes referred to as the Section 2(a) Amount) shall be reduced by the sum of (A) 100% of any costs incurred by Nexstar during the applicable month in maintaining, replacing or purchasing capital equipment which is owned by WYZZ or which is used solely in connection with the operation of WYZZ-TV, which costs have not otherwise been deducted in calculating BCF, plus (B) 50% of the cost incurred by Nexstar during the applicable month in maintaining, replacing or purchasing capital equipment which is not owned by WYZZ and which is used in connection with the combined operation of both Stations (Combined Capital Equipment), which costs have not otherwise been deducted in calculating BCF. The Minimum BCF shall be Three Million Seven Hundred Thousand Dollars ($3,700,000) for calendar year 2002 and shall be increased on January 1, 2003 and on each January 1 thereafter in an amount equal to the percentage increase in the Consumer Price Index (published by the U.S. Department of Labor, Bureau of Labor Statistics, Philadelphia Regional Office - All Urban Consumers for the United States - All Items) (the PI) over the prior year. During the Term, Nexstar shall calculate BCF (the BCF Report) for each calendar month. The last day of each calendar month is referred to herein as an End Date. During the Term, Nexstar shall, within thirty (30) days of each End Date deliver to WYZZ-TV the BCF Report for the month ending on such End Date. Within ninety (90) days following each

                                       3

calendar year during the Term, Nexstar shall notify WYZZ of the BCF for such year (the Final BCF Report) and, subject to clause (h) of this Section 2, within thirty (30) days after such notification either Nexstar shall make a payment to WYZZ or WYZZ shall make a payment to Nexstar, as appropriate to true-up the payments made hereunder based on (i) the final determination of the BCF for the entire year, and (ii) the principle that the aggregate Section 2(a) Amount for the calendar year should be equal to (x) thirty-five percent (35%) of BCF for such calendar year up to the Minimum BCF for such year, plus (y) fifty percent (50%) of BCF for such calendar year in excess of the Minimum BCF for such year, minus (z) the sum of one hundred percent (100%) of any costs incurred by Nexstar during such calendar year in maintaining, replacing or purchasing capital equipment which is owned by WYZZ or which is used solely in connection with the operation of WYZZ-TV, and fifty percent (50%) of any costs incurred by Nexstar during such calendar year in maintaining, replacing or purchasing capital equipment which is not owned by WYZZ and which is used in connection with the combined operation of both Stations (in each case to the extent such costs were not otherwise deducted in the calculation of BCF). Furthermore, for the purposes of clarification, to the extent the Section 2(a) Amount for the calendar year is less than zero, the true-up shall be done such that WYZZ shall have paid to Nexstar the amount by which the Section 2(a) Amount is less than zero. Notwithstanding anything to the contrary contained herein for purposes of the period commencing December 1, 2001 and ending December 31, 2001, the Minimum BCF shall be One Dollar ($1.00).

            (b) In addition to the payment of the Section 2(a) Amount, Nexstar agrees to pay WYZZ, within 30 days following each calendar month of the Term, the amount set forth on Exhibit B hereto with respect to such calendar month

            (c) On or before the 5th day of each calendar month during the Term, Nexstar shall pay to WYZZ the fair market value rent (as set forth on Exhibit C hereto) of any real property owned by WYZZ (or any affiliate thereof) and used by the Stations; provided, no rent shall be due to WYZZ, Nexstar or any affiliate thereof with respect to any period where the Stations are using corresponding real property owned by Nexstar (or any affiliate thereof). By way of example, no rent shall be due to WYZZ or Nexstar under this clause (c) for use by one of the Stations of a broadcast tower owned by WYZZ if the other Station is using a tower owned by Nexstar.

            (d) For purposes of this Agreement, the term BCF is defined as Net





Income of the Stations, determined on a basis in accordance with GAAP, plus the sum of (X) (in each case to the extent deducted in calculating Net Income) (i) depreciation expense (ii) amortization expense (including amortization of program assets and amortization of deferred and stock based compensation) (iii) interest expense (iv) corporate overhead or management fees (v) income tax expense (vi) non-cash losses or expenses (including losses on disposals of assets and trade/barter expenses) (vii) Section 2(a) Amount expenses pursuant to Section 2(a) hereof (viii) any expenses (other than

                                       4

electric costs relating to the digital transmission of either Station's primary commercial broadcast signal) related to either Station's DTV Spectrum (ix) costs or expenses arising from any claims relating to the period prior to the Effective Date, and (x) any expenses or costs identified on Exhibit D hereto less the sum of (Y) (i) cash payments for program contract rights relating to the Stations (ii) payments made by Nexstar to WYZZ pursuant to clause (b) of this Section 2, to the extent not otherwise taken into account in calculating Net Income, (iii) the aggregate fair market value rent (as set forth on Exhibit C hereto) of any real property owned by either Nexstar or WYZZ (or any affiliate of either) and used by the Stations to the extent the Stations are not using corresponding real property owned by each of the parties hereto (or any affiliate thereof) and which is not otherwise taken into account in calculating Net Income, (iv) any other rental income earned by either WYZZ or Nexstar from real property owned or leased thereby to the extent included in calculating Net Income (v) interest income to the extent included in calculating Net Income (vi) any rent paid with respect to any capital leases of the Stations (vii ) any revenues related to either Station's DTV Spectrum and (viii) any non-cash gains or revenues (including gains on disposals of assets and trade/barter revenue).

            (e) At all times during the Term and for six (6) months following the termination of this Agreement, WYZZ shall have the right, upon prior written request to Nexstar, to review all of the books and records of Nexstar relating to the BCF Report and the Distributions. Any such review must take place during normal business hours between Monday through Friday.

            (f) The parties agree that, to the extent permitted by law and by the rules, regulations and policies of the FCC, the Stations shall be operated in a manner consistent with industry standards for commercial broadcast television stations providing general entertainment programming and with a view toward maximizing the combined broadcast cash flow of the Stations.

            (g) Notwithstanding anything herein to the contrary, if, with respect to any month, the Section 2(a) Amount is a negative amount, then WYZZ shall pay such negative amount to Nexstar within seventy-five (75) days following the end of such month (and Nexstar shall make no payment of a Section 2(a) Amount to WYZZ with respect to such month); provided, with respect to each of the first three (3) months of the Term, the amount if any, payable pursuant to this clause (g) shall be reduced (but not below zero) by the amount of accounts receivable retained by Buyer during such month pursuant to the first proviso to the last sentence of Section 10(d)(i).

            (h) On or prior to the 30th day after WYZZ's receipt of the Final BCF Report, WYZZ may give Nexstar a written notice (an Objection Notice) indicating its objections to the Final BCF Report. If WYZZ does not give Nexstar an Objection Notice within such 30-day period, then the Final BCF Report will be conclusive and binding upon the parties hereto. If WYZZ gives a timely Objection Notice, then Nexstar and

                                       5

WYZZ will negotiate in good faith to resolve their disputes regarding the Final BCF Report. If Nexstar and WYZZ are unable to resolve all disputes regarding the Final BCF Report on or prior to the 30th day after the Objection Notice is given, then Nexstar and WYZZ will retain a big five accounting firm (either by mutual agreement or by random choice after eliminating any such firm which is conflicted or otherwise unable to participate) (the Independent Accounting Firm) to resolve the dispute as soon as practicable, and in any event within thirty (30) days. The BCF for the applicable year as determined by the Independent Accounting Firm will be conclusive and binding upon the parties hereto and will constitute the BCF for such year for all purposes of this Section 2; provided, the parties will use reasonable efforts to limit the scope of the Independent Accounting Firm's review. The fees and expenses of the Independent Accounting Firm in connection with its review of the Final BCF Report shall be paid one-half by Nexstar and one-half by WYZZ.

            (i) Notwithstanding anything to the contrary contained herein, cash payments for program content rights relating to the Stations which were contractually due prior to the Effective Date shall for all purposes be treated as relating to the period following the Effective Date if, and only if, such payments were ninety days or less past due as of the Effective Date.

      3. Material Considerations. Except to the extent inconsistent with law or the rules and regulations of any governmental agency, during the Term, each of the following considerations and undertakings (the Material Considerations) by Nexstar shall require the prior consent of, and prior consultation with, WYZZ:

            a. the setting of annual budgets (the Annual Budgets) for the operation of the Stations (as more specifically addressed in Section 11 hereof);





            b. determining the necessity for, and amount of, any single capital expenditure for either of the Stations to the extent not provided for in the applicable Annual Budget; provided, WYZZ's consent shall not be required for Nexstar to make unbudgeted capital expenditures in any calendar year which is necessary to maintain or restore the normal operations and transmission of the Station and which in the aggregate are not in excess of Fifty Thousand Dollars ($50,000)

            c. the hiring and firing of key employees of the Stations, consisting of general sales managers, national sales managers, and local sales managers (collectively, the Key Employees); provided, WYZZ's consent shall not be required for Nexstar to fire any Key Employee if circumstances exist which would give WYZZ the right to withhold its consent to the retention of such Key Employee under clause (e) of this Section 3; provided further, WYZZ must be reasonable in determining whether or not to consent to the hiring of any Key Employee to replace a former Key Employee who was not retained

                                       6

as a result of WYZZ's failure to consent to the retention of such former Key Employee pursuant to clause (e) of this Section 3;

            d. the retention of any outside consultants not provided for in the applicable Annual Budget;

            e. the retention of any Key Employee if (i) the combined share of market revenue (excluding political) for both Stations in any fiscal quarter (the First Quarter) is ten percent (10%) or more below the combined share of market revenue (excluding political) for both Stations in the immediately preceding fiscal quarter (the Baseline Quarter) and (ii) the combined share of market revenue (excluding political) for both Stations in either (x) the fiscal quarter immediately succeeding the First Quarter or (y) each of any two or more fiscal quarters out of the five fiscal quarters immediately succeeding the First Quarter, is ten percent (10%) or more below the combined share of market revenue for both Stations in the Baseline Quarter; provided, that Nexstar shall only be required to obtain a consent with respect to a Key Employee who WYZZ has requested be terminated); and; provided further, that WYZZ shall not be permitted to exercise its rights under this clause (e) more than once in any eighteen (18) month period with respect to any particular Key Employee position;

            f. any material alteration or modification in or to the broadcast signal or the transmission of either of the Stations.

                                       7

      4. Expenses and Capital Expenditures.

            Each Party shall make a payment to the other with respect to certain mutually agreed upon expenses and capital expenditures incurred (or to be incurred) as a result of the relationship created by this Agreement, such payments to be made promptly following the incurrence of any expenses and/or expenditures. Such expenses and capital expenditures, which are intended to be shared equally by WYZZ and Nexstar, may include, but shall not be limited to: lease termination fees, employee severance costs, and transmitter and studio facility modifications, and equipment costs. The maximum amount of, and purpose for, such expenses are specifically set forth and identified on Exhibit D hereto.

      5. Term. The term of this Agreement (the Term) shall commence on December 1, 2001, which date shall be deemed the effective date of this Agreement (the Effective Date). Unless earlier terminated in accordance with the terms hereof, the term of this Agreement shall end on the seventh anniversary of the date hereof.

      6. Stations Operations.

            a. WYZZ-TV Operations.

                  (i) During the Term, notwithstanding the Services rendered by Nexstar, WYZZ shall retain exclusive authority, power and control over WYZZ-TV's programming, personnel, and finances.

                  (ii) During the Term and subject to any change in applicable law, WYZZ shall employ at WYZZ-TV's main studio location at least two full-time employees, including a station manager and a staff level employee, who will report and be accountable to WYZZ. The names of employees anticipated to fulfill these functions at the commencement of the Term are set forth on Exhibit E hereto.

                  (iii) During the Term, WYZZ shall retain responsibility for the selection, development, acquisition, and broadcast of any and all programming to be broadcast over WYZZ-TV, as well as the payment therefor. To that end, WYZZ shall (A) have exclusive authority for the negotiation, preparation, execution and implementation of any and all programming agreements for WYZZ-TV, and (B) hire or utilize whatever employees WYZZ deems appropriate or necessary to fulfill those programming functions. Nexstar shall have no involvement in the determination of such programming decisions and activities (except to the extent of providing commercial matter to be broadcast over WYZZ-TV and such other administrative support functions described in this Agreement).





                                       8

                  (iv) When at WYZZ's premises, any employees of Nexstar shall be subject to the supervision of WYZZ's management personnel.

            b. WYZZ's Responsibilities.

                  (i) WYZZ Authority. During the Term, WYZZ shall take all necessary actions to maintain and preserve WYZZ-TV's FCC authorizations. By way of example and not limitation, WYZZ shall be responsible for WYZZ-TV's compliance with all applicable provisions of the Communications Act of 1934, as amended (the Act), the rules, regulations and policies of the FCC and all other applicable laws. Nexstar shall cooperate with WYZZ in taking such actions as WYZZ may reasonably request to assist WYZZ in maintaining WYZZ-TV's compliance with the Act, the rules, regulations and policies of the FCC, and all other applicable laws. Notwithstanding any other provision of this Agreement, Nexstar recognizes that WYZZ has certain obligations to operate WYZZ-TV in the public interest and to broadcast programming to meet the needs and interests of WYZZ-TV's community of license and service area. Nothing in this Agreement shall abrogate or limit the unrestricted responsibility of WYZZ to discharge its obligations to the public and to comply with the Act and the rules, regulations and policies of the FCC, and WYZZ shall have no liability or obligation to Nexstar for taking any action that WYZZ deems necessary or appropriate to discharge such obligations or comply with such laws, rules, regulations or policies.

                  (ii) Provision of Advertising Information. Nexstar shall, upon request by WYZZ, promptly provide WYZZ with such information concerning advertising as is necessary to assist WYZZ in the fulfillment of WYZZ's obligations under the Act or FCC's rules, regulations and policies or to enable WYZZ to verify independently WYZZ-TV's compliance with any and all laws, rules, regulations or policies applicable to WYZZ-TV's operations.

                  (iii) Suitability of Commercial Matter. All advertising spots and promotional material or announcements produced by Nexstar and utilized at WYZZ-TV shall comply with all applicable federal, state and local regulations and policies and shall be produced in accordance with quality standards established by Nexstar. If WYZZ determines that commercial announcement or promotional material supplied by Nexstar to WYZZ-TV is for any reason, in the exercise of WYZZ's sole discretion, unsatisfactory or unsuitable or contrary to the public interest, WYZZ may, upon written notice to Nexstar, suspend or cancel such commercial announcement or promotional material or delete any material contained in such commercial matter or promotional materials, and if WYZZ requests,&bbsp;Nexstar shall promptly provide suitable substitute commercial announcements or other announcements or promotional materials.

                  (iv) Political Advertising. WYZZ shall oversee and shall take ultimate responsibility for WYZZ-TV's compliance with the political broadcasting rules of the

                                       9

FCC and Sections 312 and 315 of the Act, or any similar provision which may be enacted during the term hereof imposing a duty upon broadcast station WYZZ with respect to broadcast of political advertising, including but not limited to the provision of equal opportunities, compliance with lowest unit charge requirements, and the provision of reasonable access to federal political candidates. Nexstar shall cooperate and consult with WYZZ, at Nexstar's expense, to assist WYZZ in complying with the Act and the political broadcasting rules of the FCC. Nexstar shall supply such information promptly to WYZZ as WYZZ reasonably deems necessary or useful to comply with the lowest unit charge and other applicable political broadcast requirements of federal law. To the extent that WYZZ deems it necessary or appropriate, Nexstar shall release advertising availabilities to WYZZ to permit WYZZ to comply with the political broadcasting rules of the FCC and Sections 312 and 315 of the Act, or any similar provision which may be enacted during the term hereof imposing a duty upon broadcast station licensees with regard to the broadcast of political advertising or programming.

      7. Representations and Warranties of the Parties.

            Each Party agrees to give to the other the representations and warranties as set forth on Exhibit F to this Agreement.

      8. WYZZ Covenants.

      WYZZ covenants that after the Effective Date and at all times during the Term:

      a. Licenses, Permits, and Authorizations. WYZZ shall hold and maintain all licenses and other permits and authorizations necessary for the operation of WYZZ-TV, including, but not limited to WYZZ-TV's FCC authorizations and licenses, and such licenses, permits, and authorizations are and will be in full force and effect throughout the Term.

      b. Actions. Except as otherwise permitted by this Agreement, WYZZ shall not take any action or omit to take any action which would have a material adverse effect upon either of the Parties, their assets, their respective Stations, or upon either Party's ability to perform this Agreement.





      c. Reports. WYZZ shall file all reports and applications required to be filed by WYZZ with the FCC or any other governmental body in a timely and complete manner.

      d. Facilities. The facilities of WYZZ-TV will be maintained in accordance with good engineering practice and will comply in all material respects with the engineering requirements set forth in the FCC authorizations, permits, and licenses for WYZZ-TV, and WYZZ will insure that WYZZ-TV broadcast a high quality signal to its service area

                                       10

(except at such time of reduction of power as required for routine or emergency maintenance).

      e. Title. WYZZ shall maintain good and marketable title to all of the assets and properties used and useful prior to the date hereof (together with replacements, thereof) in the operation of WYZZ-TV.

      f. Insurance. WYZZ shall maintain replacement cost casualty and liability insurance and property insurance on all of its assets and properties used and useful in the operation of WYZZ-TV, general liability insurance and workers compensation insurance in such amounts and on such terms and conditions that are ordinary and customary in the broadcast industry and that are reasonably acceptable to Nexstar.

      g. FCC License Holder. WYZZ shall remain as the holder of the FCC licenses necessary for the operation of WYZZ-TV.

      h. WYZZ-TV Operation. WYZZ shall use all reasonable efforts to operate WYZZ-TV at its maximum authorized power, with its antenna center of radiation at its full authorized height above ground and above average terrain.

      i. Proprietary Information. WYZZ shall not disclose any sales or other proprietary information of Nexstar to any third party.

      j. Annual Budget. WYZZ shall cause the management of WYZZ-TV to meet with Nexstar's management on at least a monthly basis (or at such longer intervals as WYZZ may elect) to review the performance of the Stations and to discuss any necessary modifications to the Stations' annual budget as may become necessary due to changing market conditions or otherwise.

      k. Employees. Except as provided otherwise in this Agreement, WYZZ shall pay, discharge, and be responsible for (i) all salary and wages arising out of or relating to the employment of the employees of WYZZ-TV prior to and after the Effective Date, and (ii) any employee benefits arising under the benefit plans of WYZZ during the period prior to and after the Effective Date.

      9. Nexstar Covenants.

      Nexstar covenants that after the Effective Date and at all times during the Term:

      a. Licenses, Permits, and Authorizations. Nexstar shall hold and maintain all licenses and other permits and authorizations necessary for the operation of WMBD-TV, including, but not limited to WMBD-TV's FCC authorizations and licenses, and

                                       11

such licenses, permits, and authorizations are and will be in full force and effect throughout the Term.

      b. Actions. Except as otherwise permitted by this Agreement, Nexstar shall not take any action or omit to take any action which would have a material adverse effect upon either of the Parties, their assets, their respective Stations, or upon either Party's ability to perform this Agreement.

      c. Reports. Nexstar shall file all reports and applications required to be filed by Nexstar with the FCC or any other governmental body in a timely and complete manner.

      d. Facilities. The facilities of WMBD-TV will be maintained in accordance with good engineering practice and will comply in all material respects with the engineering requirements set forth in the FCC authorizations, permits, and licenses for WMBD-TV, and Nexstar will insure that WMBD-TV broadcasts a high quality signal to its service area (except at such time of reduction of power as required for routine or emergency maintenance).

      e. Title. Nexstar shall maintain good and marketable title to all of the assets and properties used and useful (together with replacement, thereof) in the operation of WMBD-TV.

      f. Insurance. Nexstar shall maintain replacement cost casualty and liability insurance and property insurance on all of its assets and properties used and useful in the operation of WMBD-TV, general liability insurance, workers compensation insurance, and broadcast liability insurance, all in such amounts and on such terms and conditions that are ordinary and customary in the broadcast industry and that are reasonably acceptable to WYZZ.





      g. FCC License Holder. Nexstar shall remain as the holder of the FCC licenses necessary for the operation of WMBD-TV.

      h. WMBD-TV Operation. Nexstar shall use all reasonable efforts to operate WMBD-TV at its maximum authorized power, with its antenna centers of radiation at its full authorized height above ground and above average terrain.

      i. Proprietary Information. Nexstar shall not disclose any sales or other proprietary information of WYZZ to any third party.

      j. Annual Budget. Nexstar shall provide monthly financial projections and copies of quarterly market revenue reports to WYZZ and shall cause the management of WMBD-TV to meet with WYZZ's management on at least a monthly basis (or such longer intervals as WYZZ may elect) to review the performance of the Stations and to

                                       12

discuss any necessary modifications to the Stations' annual budget as may become necessary due to changing market conditions or otherwise.

      k. Employees. Except as provided otherwise in this Agreement, Nexstar shall pay, discharge, and be responsible for (i) all salary and wages arising out of or relating to the employment of the employees of&sbsp;WMBD-TV prior to and after the Effective Date, and (ii) any employee benefits arising under the benefit plans of Nexstar during the period prior to and after the Effective Date.

      10. Additional Covenants

      a. Prior Contract Commitments. Schedule 10.a. contains a list and amount of all non-programming contractual commitments made by WYZZ prior to the Effective Time (other than cash commitments for commercial advertising time), but which are continuing obligations of WYZZ during the Term. In providing the Services, Nexstar shall honor all such commitments, as well as commitments for commercial advertising time to be aired on WYZZ-TV during the Term (for cash or trade) (collectively WYZZ Contracts); provided, Nexstar shall not honor any trade liabilities of either Station to the extent the aggregate trade liabilities of such Station as of the Effective Time exceeds by more than Twenty-Five Thousand Dollars ($25,000) the trade receivables of such Station as of the Effective Time.

      b. Sale Forces. In providing the Services, except upon notice to, and after consultation with WYZZ, Nexstar shall, at all times, maintain two separate sales forces (one for each of the Stations), each of which shall include account executives and sales managers, to sell national, regional, and local spot announcements and long form advertising programs.

      c. Employees.

            (i) Upon the earlier of (A) the date on which the operation of the Stations are consolidated in a single location and (B) January 1, 2002 (such earlier date sometimes referred to as the Hire Date), Nexstar shall offer employment to those employees of WYZZ-TV listed on Exhibit G hereto, at a comparable salary, position, and place of employment as held by each such employee immediately prior to the Effective Date (such employees who are given and accept such offers of employment are referred to herein as the Transferred Employees).

            (ii) Nexstar shall cause all Transferred Employees as of the Hire Date to be eligible to participate in any employee welfare benefit plans and employee pension benefit plans (as defined in Section 3(1) and 3(2) of ERISA, respectively) of Nexstar in which similarly situated employees of Nexstar are generally eligible to participate; provided, however, that, subject to length of service requirement waiting periods, vesting

                                       13

periods or similar requirements, all Transferred Employees and their spouses and dependents shall be eligible for coverage immediately after the Hire Date (and shall not be excluded from coverage on account of any preexisting condition) to the extent provided under such Plans with respect to the Transferred Employees.

            (iii) For purposes of any length of service requirements, waiting periods, vesting periods, or differential benefits based on length of service in any such plan for which a Transferred Employee may be eligible after the Hire Date, Nexstar shall insure that, to the extent permitted by law, service by such Transferred Employee with WYZZ shall be deemed to have been service with Nexstar. In addition, Nexstar shall insure that each Transferred Employee receives credit under any welfare benefit plan of Nexstar for any deductibles or co-payments paid by such Transferred Employee and his/her dependents for the current plan year under a plan maintained by WYZZ. Nexstar shall grant credit to each Transferred Employee for all sick leave in accordance with the policies of Nexstar applicable generally to its employees after giving effective service for WYZZ as service for Nexstar.

            (iv) From and after the Hire Date, Nexstar shall pay, discharge, and be responsible for all salary, wages, and benefits arising out of or relating to the employment of the Transferred Employees by Nexstar on and after the Hire Date.





      (d) Accounts Receivable.

            (i) As soon as practicable after the Effective Date hereof, WYZZ shall deliver to Nexstar a complete and detailed list of all the rights of WYZZ as of the Effective Date hereof to payment for the sale of advertising time and other goods and services by WYZZ-TV prior to the Effective Date hereof (the Accounts Receivable). During the one hundred eighty (180) day period following the Effective Date (the Collection Period), Nexstar shall use commercially reasonable efforts to collect the Accounts Receivable in the usual and ordinary course of business, using Nexstar's credit, sales and other appropriate personnel in accordance with customary practices, which are not required to include referral to a collection agency. Notwithstanding the foregoing, Nexstar shall not be required to institute legal proceedings on WYZZ's behalf to enforce the collection of any Accounts Receivable. Nexstar shall not adjust any Accounts Receivable or grant credit with respect thereto without WYZZ's written consent, and Nexstar shall not pledge, secure or otherwise encumber such Accounts Receivable or the proceeds therefrom. Within twenty (20) days following the end of each full calendar month during the Collection Period, Nexstar shall furnish WYZZ with a report of all amounts collected, together with its check for payment thereof, with respect to the Accounts Receivable during such month; provided, that Nexstar shall be entitled to retain the first Three Hundred Ten Thousand Dollars ($310,000) (the Working Capital Amount) of amounts collected on the Accounts Receivable for the purpose of funding WYZZ-TV's share of the initial working capital needs of the Stations; provided further,

                                       14

that not later than the ninetieth (90th) day following the Effective Date, Nexstar shall pay to WYZZ the excess of the aggregate amount retained pursuant to the immediately preceding proviso over the aggregate reduction in payments otherwise due with respect to the first three months of the Term from WYZZ as a result of the proviso to Section 2(g) hereof.

            (ii) Any payments received by Nexstar during the Collection Period from any Person that is an account debtor with respect to any account disclosed in the list of Accounts Receivable delivered by WYZZ to Nexstar shall be applied (A) first against the invoice, if any, as specified by the account debtor and (B) second against an account disclosed in such list, unless and to the extent that the account is disputed by the account debtor; provided, with respect to clause (B) above, payments on any accounts specified on WYZZ's list which relate to account debtors with respect to which Nexstar also has accounts, shall be applied first against the oldest accounts of WYZZ and Nexstar. Except to the extent resulting from Nexstar's willful breach of the terms of this Section 10(d), Nexstar shall incur no liability to WYZZ for any uncollected account. During the Collection Period, neither WYZZ nor any other agent of WYZZ shall make any direct solicitation without Nexstar's written consent of the account debtors for payment.

      e. Proration. For purposes of this Agreement, revenues, expenses, and liabilities attributable to the Stations, including power and utilities charges, ad valorem property taxes, rents, income and sales taxes, and similar accruing, prepaid and deferred items, will be allocated in accordance with the principles that, as applicable pursuant to the terms of this Agreement, (A) Nexstar and WYZZ will be allocated revenues earned or accrued, and expenses, costs and liabilities incurred in or allocable, with respect to the business and operation of the such entity's Station through but not including the Effective Date and following the last day of the Term, and (B) revenues earned or accrued, and expenses, costs and liabilities incurred in or allocable, with respect to the business and operation of the Stations on and after the Effective Date through the last day of the Term shall be allocated to the operation of the Stations under this Agreement and the calculation of BCF; provided, film costs relating to the period prior to the Effective Date shall be allocated to the period after the Effective Date to the extent such obligations were less than 90 days past due as of the Effective Date.

      f. Payment of Liabilities and Obligations. Except to the extent provided to the contrary herein, as of the Effective Date and during the Term Nexstar shall undertake to pay, discharge and perform on WYZZ's behalf all obligations and liabilities of WYZZ under the WYZZ Contracts to the extent that the obligations and liabilities relate to the time after the Effective Date with respect to WYZZ-TV, as well as WYZZ's obligation to any Transferred Employees for vacation time. Nexstar shall not be required to pay, discharge or perform any other obligations or liabilities of WYZZ including (i) any obligations or liabilities under the WYZZ Contracts relating to the period prior to the Effective Date for WYZZ-TV, (ii) any claims (whether asserted or not) or pending

                                       15

litigation or proceedings relating to the operation of WYZZ-TV prior to the Effective Date, (iii) any obligations or liabilities of WYZZ under any management incentive, employee pension, retirement, or other benefit plans, (iv) any obligations or liabilities of WYZZ under any collective bargaining agreements, (v) any obligation to any employee of WYZZ-TV for severance benefits or sick leave accrued prior to the Effective Date, (vi) any credit agreements, note purchase agreements, indentures, capital leases, or other financing arrangements, (vii) any agreements entered into other than in the ordinary course of business of WYZZ-TV, or (viii) any obligations or liabilities caused by, arising out of, or resulting from any action or omission of WYZZ prior to the Closing, and all such obligations and liabilities shall continue to be paid, discharged and performed by WYZZ. Notwithstanding anything herein to the





contrary, Nexstar shall be responsible pursuant to its reimbursement obligation hereunder for all film payments for programming which airs on WYZZ-TV to the extent such payments are not more than 90 days past due as of the Effective Date.

      g. Consultation on Material Contractual Obligations. In addition to the other restrictions contained herein, Nexstar shall not enter into any material contractual obligation with respect to WYZZ-TV without first consulting with WYZZ to determine whether or not WYZZ (or its affiliates) is able to obtain more favorable terms with respect to the subject matter of such contract.

      11. Mutual Covenants.

      a. Budget.

            (i) Not later than November 30 of each calendar year during the Term of this Agreement, WYZZ and Nexstar shall agree upon (1) an Operating Budget for the Stations (each an Annual Operating Budget) setting forth in reasonable detail the reasonable and necessary costs and expenses that Nexstar is expected to incur in performing its obligations hereunder during the upcoming calendar year, including, without limitation, the costs of all Nexstar personnel (including salaries, incentives, commissions, bonuses, benefits, and payroll services), property, equipment (including repairs and maintenance, office space, office space modifications, utilities, sales, marketing costs, and related costs, and (2) a revenue budget for the Stations (the Annual Revenue Budget and, together with the Annual Operating Budget, the Annual Budget) setting forth the projected sales revenues with respect to advertisements for the upcoming calendar year, as well as the assumptions underlying those projections; provided, in no event shall Nexstar have any right to object to the inclusion in the Annual Operating Budget of the cost of any programming which WYZZ determines is to be broadcast on WYZZ-TV, and in no event shall WYZZ have any right to object to the inclusion in the Annual Operating Budget of any programming which Nexstar determines is to be broadcast on WMBD-TV. Without limiting the generality of the foregoing, a part of the above-referenced budget approval process shall be the inclusion of proposed

                                       16

commissions or other incentive plans applicable to the sale of advertisements, which plans shall be subject to each Party's approval, as part of their approval of the Annual Operating Budget. The Annual Budget for the one month period beginning December 1, 2001 and Year 2002_ (the Initial Budget), is attached hereto as Exhibit H.

            (ii) For each year during the Term of this Agreement, the Parties shall cooperate in good faith and use their respective reasonable efforts to agree upon such changes, if any, to the Annual Budget for such year as are reasonably required to accurately reflect actual revenues generated and actual costs incurred during the six (6) month period ending June 30th. Each such revised Annual Budget, if required, shall be completed no later than October 31, of each year during the Term hereof.

            (iii) In the event that the Parties are unable to resolve any disputes regarding any Annual Budget by December 15 of each year during the Term hereof, and either Party has notified the other in writing of the basis for its inability to agree on such Annual Budgets, then, subject to the proviso to the first sentence of clause (i) of this Section 11(a), the disputed items in the Annual Budget for the next succeeding year shall be the same as such disputed items were in the Annual Budget for the immediately preceding year, except for costs (e.g., sales commissions) that vary as a result of revenue.

      b. Employees. Exhibit I contains a preliminary list of all employees, by position held by each, who are to be terminated from each of the Stations on such date as is mutually agreed by the parties on or after the Effective Time, but not later than March 1, 2002 (the Terminated Employees). All severance liabilities and all COBRA liabilities for any Terminated Employee terminated on or after the Effective Date shall be prorated between the Parties, in accordance with Section 4 hereof and Exhibit D hereto.

      c. Confidentiality. Each of the parties shall during and after the Term continue to be bound by the provisions of the Confidentiality Letter Agreement dated as of July 31, 2001.

      12. Transmitter Changes. In the event that either of the Parties, at any time, intends to file an application with the FCC to change the transmitter location, antenna height, power, or to change the frequency or hours of operation of its respective Station, the Parties agree to give ten (10) days prior written notice to the other Party of such proposed filing.

      13. Assignment. Except as otherwise provided by this Agreement or in the event that either Party sells or otherwise transfers its Station to another (in which case such Party shall be required to assign to the Buyer, and such Buyer shall be required to assume, this Agreement, in its entirety), neither Party hereto shall assign its rights or obligations under this Agreement to a third party without the express written consent of the other Party, which consent shall not be unreasonably withheld.

                                       17

      14. Entire Agreement. This Agreement constitutes the entire agreement





between the Parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements, commitments, or any other understandings between WYZZ and the Nexstar with respect to such subject matter. No provision of this Agreement shall be changed or modified, nor shall this Agreement be discharged in whole or in part except by an agreement in writing signed by the Party against whom the change, modification, or discharge is claimed or sought to be enforced, nor shall any waiver of any of the conditions or provisions of this Agreement be effective and binding unless such waiver shall be in writing and signed by the Party against whom the waiver is asserted, and no waiver of any provision of this Agreement shall be deemed to be a waiver of any preceding or succeeding breach of the same or any other provision.

      15. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signatures to each such counterpart were upon the same instrument.

      16. Notices. All notices required under this Agreement shall be in writing and shall be deemed given to an addressee when mailed if mailed by prepaid, certified, first class United States mail to the address for notice of such addressee set forth below:

            If to WYZZ:

            Mr. David D. Smith             c/o Sinclair Communications, Inc.             10706 Beaver Dam Road             Cockeysville, Maryland 21030

            Copy to:

            General Counsel             Sinclair Communications, Inc.             10706 Beaver Dam Road             Cockeysville, Maryland 21030

            If to NEXSTAR:             Mr. Perry Sook             Nexstar Broadcasting Group             200 Abington Executive Park             Suite 201             Clarks Summit, Pennsylvania 18411

                                       18

            Copies to:             John L. Kuehn, Esq.             Kirkland & Ellis Citicorp Center, 153 East 53rd Street             New York, New York 10022-4675

            and to:             Howard M. Liberman, Esq.             Arter & Hadden LLP             1801 K Street, NW             Suite 400K             Washington, DC 20006-1301

Either Party hereto may specify for itself a different address for the giving of notice hereunder by giving ten (10) days prior written notice to the other Party of such address change pursuant to this paragraph.

      17. Governing Law. This Agreement shall be governed and construed in accordance with the laws of Maryland, without regard to its choice of law rules.

      18. No Partnership or Joint Venture. This Agreement is not intended to be and shall not be construed as a partnership or joint venture agreement between the Parties. Except as otherwise specifically provided in this Agreement with regard to the services to be provided by Nexstar to WYZZ-TV, no Party to this Agreement shall be authorized to act as agent of or otherwise represent any other Party to this Agreement.

      19. Cooperation. The Parties shall use their best efforts in the performance and fulfillment of the terms and conditions of this Agreement in effectuating the intent of such Parties as expressed under this Agreement. From time to time, without further consideration, the Parties shall execute and deliver such other documents and take such other actions as either Party hereto reasonably may request to effectuate such intent.

      20. Arbitration. The Parties shall attempt in good faith to resolve all claims, disputes, and other disagreements arising out of or related to this Agreement. In the event that a dispute between the Parties cannot be resolved within thirty (30) days of written notice from one Party to the other Party, such dispute shall, at the request of either Party, after providing written notice to the other Party, be determined and settled by arbitration in Baltimore, Maryland, in accordance with the Commercial Rules of the American Arbitration Association then in effect, the Federal Arbitration Act, 9 U.S.C. 1 et seq., and the Maryland Uniform Arbitration Act, and judgment upon the award rendered by the arbitrator shall be entered in any court of competent jurisdiction. The notice of arbitration shall specifically describe the claims, disputes, or other matters in issue to be submitted to arbitration. The Parties shall jointly select a single arbitrator who shall have the authority to hold hearings and to render a decision in accordance with the





                                       19

Arbitration Rules of the American Arbitration Association. If the Parties are unable to agree within ten (10) days, the arbitrator shall be selected by the Chief Judge of the Circuit Court for Baltimore City. The written decision of the arbitrator so appointed shall be conclusive and binding on the Parties and enforceable by a court of competent jurisdiction. The expenses of the arbitration shall be borne by the non-prevailing Party to the arbitration, including, but not limited to, the reasonable cost of experts, evidence, and legal counsel. Whenever the action is required to be taken under this Agreement within a specified period of time and the taking of such action is materially affected by a matter submitted to arbitration, such period shall automatically be extended by the number of days, plus ten (10), that are taken for the determination of that matter by the arbitrator. Notwithstanding the foregoing, the Parties agree to use their best reasonable efforts to minimize the costs and frequency or arbitration hereunder. In addition, both Parties agree to use their best efforts to cause a final decision to be rendered with respect to the matters submitted to arbitration within sixty (60) days after its submission.

      21. Severability. It is the intent of the Parties that the transactions contemplated hereunder comply in all respects to applicable law, including, but not limited to, the Communications Act of 1934, and all applicable rules, regulations, and policies of the FCC. If any provision of this Agreement shall become void, illegal, or invalid because of a decision or other action by any governmental or judicial authority with jurisdiction thereof, the remainder of this Agreement shall remain in full force and effect without such offending provision so long as such remainder substantially reflects in all material respects the original agreement of the Parties. In such event, the Parties shall use commercially reasonable efforts to reach agreement promptly on lawful substitute provisions in place of said offending provision to effectuate as nearly as possible their intent as expressed by this Agreement.

      22. Digital Spectrum. The FCC has authorized an additional 6 MHz of spectrum for digital television service (DTV Spectrum) to Nexstar for WMBD-TV and to WYZZ for WYZZ-TV. Except to the extent necessary to comply with law and the rules and regulations of the FCC with regard to the digital broadcast of the Stations' commercial broadcast schedules, each of the Parties shall retain all rights to utilize its DTV Spectrum in accordance with the rules and regulations of the FCC and shall bear all costs in connection with such use including, without limitation, any costs of equipment necessary for digital broadcasting.

      23. Further Assurances. WYZZ and Nexstar shall use commercially reasonable efforts in the performance and fulfillment of the terms and conditions of this Agreement in effectuating the intent of such Parties as expressed under this Agreement. From time to time, without further consideration, WYZZ and Nexstar shall execute and deliver such other documents and take such other actions as either Party hereto reasonably may request to effectuate such intent.

                                       20

      24. Termination.

      a. Termination by Nexstar. This Agreement may be terminated by Nexstar by written notice to WYZZ (i) any time upon six (6) months prior notice, (ii) on six (6) months prior notice following the sale of WYZZ-TV by WYZZ, and/or (iii) if Nexstar is not then in material default or breach hereof, and WYZZ is in material breach of its representations or its material obligations hereunder, and has failed to cure such breach within thirty (30) days of written notice from Nexstar; provided, no notice may be given pursuant to clause (i) of this section prior to the eighteen (18) month anniversary of the Effective Date.

      b. Termination by WYZZ. This Agreement may be terminated by WYZZ by written notice to Nexstar (i) at any time upon six (6) months prior written notice, (ii) on six (6) months prior notice following the sale of WMBD-TV by Nexstar and/or (iii) if WYZZ is not then in material default or breach hereof and if the Nexstar is in material breach of its representations or its material obligations hereunder, and has failed to cure such breach within thirty (30) days of notice from WYZZ; provided, no notice may be given pursuant to clause (i) of this section prior to the eighteen (18) month anniversary of the Effective Date.

      c. Termination due to invalidity or material change. Unless terminated pursuant to another provisions of this Agreement, this Agreement will terminate upon the first to occur of any of the following:

            (i) this Agreement is declared invalid or illegal in whole or substantial part by an order or decree of an administrative agency or court of competent jurisdiction and such order or decree has not been stayed or has become final and no longer subject to further administrative or judicial review;

            (ii) there has been a material change in FCC rules or policies that would cause this Agreement to be in violation thereof, and such change is in effect and not the subject of an appeal or further administrative or judicial review; provided, that in such event the Parties shall first negotiate in good faith and attempt to agree on an amendment to this Agreement that will provide the Parties with a valid, binding and enforceable agreement that conforms to the new FCC rules, policies or precedent; or

            (iii) the mutual, written consent of both Parties.

      d. Nexstar's Additional Termination Rights. Notwithstanding anything





herein to the contrary and in addition to Nexstar's termination rights in Section 24.a. above, Nexstar shall have the right to terminate this Agreement upon the event that WYZZ makes a general assignment for the benefit of creditors, files or has filed against it a petition for bankruptcy, reorganization or an arrangement for the benefit of creditors, or

                                       21

for the appointment of a receiver, trustee or similar creditor's representative for the property or assets of WYZZ under any federal or state insolvency law, which if filed against WYZZ, has not been dismissed within thirty (30) days thereof.

      e. WYZZ's Additional Termination Rights. Notwithstanding anything herein to the contrary and in addition to WYZZ's termination rights in Section 24.b. above, WYZZ shall have the right to terminate this Agreement upon the event that Nexstar makes a general assignment for the benefit of creditors, files or has filed against it a petition for bankruptcy, reorganization or an arrangement for the benefit of creditors, or for the appointment of a receiver, trustee or similar creditors' representative for the property or assets of Nexstar under any federal or state insolvency law, which if filed against Nexstar, has not been dismissed within thirty (30) days thereof.

      f. WYZZ's Rights following Termination. (i) If this Agreement is terminated for any reason, WYZZ may continue to use Nexstar's facility (to the extent of, and consistent with, the use immediately prior to the termination) for a period of six (6) months following the date of actual termination, without regard to any continuation which occurs as a result of the immediately succeeding sentence (the Continuation Period). If the Parties elect to continue the Services during the Continuation Period, then the Nexstar shall continue to provide the Services and pay the Section 2(a) Amount in accordance with this Agreement during the Continuation Period. If the Parties, or any one of them, elect(s) to discontinue the provision of Services during the Continuation Period, the WYZZ shall pay to the Nexstar a commercially reasonable rent (on a monthly basis in advance) for the use and occupancy of, or any part of, the Nexstar's facilities. WYZZ shall make all payments due to Nexstar hereunder within ten (10) days following receipt of an invoice from Nexstar for the payment of such rent. (ii) Notwithstanding the termination of this Agreement, any amounts due hereunder with respect to the period prior to the end of the Term shall be paid in accordance with the provisions hereof following the end of the Term.

      g. WYZZ's Right to Hire Certain Employees. Upon final termination of this Agreement, WYZZ shall have the obligation to hire any employee of Nexstar solely providing services to WYZZ-TV, including (without limitation) all of the account executives of Nexstar exclusively selling time on WYZZ-TV. The parties shall negotiate in good faith with respect to any rights of WYZZ to hire any other employees of Nexstar who are providing services to both Stations. For a period of one year from the termination of this Agreement, neither Party hereto (or any of its affiliates) will directly or indirectly solicit to employ or employ any of the employees of the other Party hereto if such employees were employed by either of the Stations at any time during the six month period immediately preceding the termination of this Agreement.

      h. Joint Capital Equipment. Upon the final termination of this&sbsp;Agreement, the parties shall negotiate in good faith regarding which party shall retain any Combined

                                       22

Capital Equipment purchased during the term hereof for use on both Stations, as well as any payment to be made by the retaining party to the other party after taking into account the allocation among the parties during the term hereof of the cost of acquiring and maintaining such Combined Capital Equipment, as well as the benefit of any depreciation deductions received by Nexstar with respect thereto.

      25. Indemnification.

      a. by Nexstar. Nexstar shall indemnify and hold harmless WYZZ from and against any and all claims, losses, costs, liabilities, damages, and expenses, including any FCC fines or forfeitures (including reasonable legal fees and other expenses incidental thereto), of every kind, nature and description (collectively Damages) arising or resulting from or relating to (i) Nexstar's breach of any representation, covenant, agreement or other obligation of Nexstar contained in this Agreement and (ii) any action, which constitutes gross negligence, recklessness or willful misconduct taken by Nexstar or its employees and agents with respect to WYZZ-TV, or any failure by Nexstar or its employees and agents to take any action with respect to WYZZ-TV, including, without limitation, Damages relating to violations of the Act, or any rule, regulation or policy of the FCC, slander, defamation or other claims relating to the sale of advertising time on the Station (except where the Damages are caused by WYZZ's negligence, recklessness, willful misconduct, or breach of its representations or obligations under this Agreement), from and after the Effective Date of this Agreement.

      b. by WYZZ. WYZZ shall indemnify and hold harmless Nexstar from and against any and all Damages arising or resulting from or relating to (i) WYZZ's breach of any representation, covenant, agreement or other obligation of WYZZ contained in this Agreement and (ii) any action taken, which constitutes gross





negligence, recklessness or willful misconduct by WYZZ or its employees and agents with respect to WMBD-TV, or any failure by WYZZ or its employees and agents to take any action with respect to WMBD-TV, including, without limitation, Damages relating to violations of the Act, or any rule, regulation or policy of the FCC, slander, defamation or other claims relating to programming provided by WYZZ or WYZZ's broadcast and sale of advertising time on WMBD-TV (except where the Damages were incurred by Nexstar's negligence, recklessness, willful misconduct, or breach of any representation, covenant, agreement or other obligation contained in this Agreement), from and after the Effective Date of this Agreement.

      c. Indemnification Procedure. Neither WYZZ nor Nexstar shall be entitled to indemnification pursuant to this Section unless such claim for indemnification is asserted in a written notice delivered to the other Party, together with a statement as to the factual basis for the claim and the amount of the claim. Together with such notice or promptly following the delivery thereof, the Party making the claim (the Claimant) shall make available to the other Party (the Indemnitor) information relied upon by the

                                       23

Claimant to substantiate the claim. Such notice shall be given promptly following Claimant knowing or having reason to know about such claim; provided, the Indemnitor shall be relieved of a liability for Claimant's failure to provide notice only if, and to the extent, adversely impacted by such failure. The Indemnitor under this Section 26(c) shall have the right to conduct and control through counsel of its own choosing the defense of any third Party claim, action or suit (and the Claimant shall cooperate fully with the Indemnitor), but the Claimant may, at its election, participate in the defense of any such claim, action or suit at its sole cost and expense; provided, that, if the Indemnitor shall fail to defend any such claim, action or suit, then the Claimant may defend through counsel of its own choosing such claim, action or suit, and (so long as it gives the Indemnitor at least fifteen (15) days' notice of the terms of the proposed settlement thereof and permits the Indemnitor to then undertake the defense thereof), Claimant may settle such claim, action or suit, and, if Claimant is entitled to be indemnified by Indemnitor hereunder, Claimant may recover from the Indemnitor the amount of such settlement or of any judgment and the costs and expenses of such defense. The Indemnitor shall not compromise or settle any third Party claim, action or suit without the prior written consent of the Claimant, which consent will not be unreasonably withheld or delayed.

      26. Damages; Specific Performance.

      a. In the event of a material breach by WYZZ of its obligations hereunder, Nexstar shall be entitled to seek monetary damages against WYZZ. The Parties recognize, however, that, given the unique nature of the Station and this Agreement, monetary damages alone will not be adequate to compensate Nexstar for any injury resulting from WYZZ's breach. Except to the extent such action would not be permitted by the rules and regulations of the FCC, Nexstar shall therefore be entitled, in addition to a right to seek and collect monetary damages, to obtain specific performance of the terms of this Agreement. If any action is brought by Nexstar to enforce this Agreement, WYZZ shall waive the defense that there is an adequate remedy at law. In addition, in the event of a material breach by WYZZ of its obligations hereunder, Nexstar shall be entitled to terminate this Agreement and exercise its rights pursuant to Section 25(b) hereof (except that Nexstar may not assert consequential, special or punitive damages or any claim for lost profits).

      b. In the event of a material breach by Nexstar of its obligations hereunder, WYZZ shall be entitled to seek monetary damages against Nexstar. The Parties recognize, however, that, given the unique nature of the Station and this Agreement, monetary damages alone will not be adequate to compensate WYZZ for any injury resulting from Nexstar's breach. Except to the extent such action would not be permitted by the rules and regulations of the FCC, WYZZ shall therefore be entitled, in addition to a right to seek and collect monetary damages, to obtain specific performance of the terms of this Agreement. If any action is brought by WYZZ to enforce this Agreement, Nexstar

                                       24

shall waive the defense that there is an adequate remedy at law. In addition, in the event of a material breach by Nexstar of its obligations hereunder, WYZZ shall be entitled to terminate this Agreement and exercise its rights pursuant to Section 25(a) hereof (except that WYZZ may not assert consequential, special or punitive damages or any claim for lost profits).

      c. In the event any Party files a lawsuit or institutes other formal legal action to enforce its rights under this Agreement, the prevailing Party shall be reimbursed by the other Party for all reasonable expenses incurred thereby, including reasonable attorney's fees.

     THIS AGREEMENT CONTAINS THE BINDING ARBITRATION PROVISION WHICH MAY BE                             ENFORCED BY THE PARTIES.

                         [Signatures on Following Page]

                                       25





      IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written.

                              NEXSTAR BROADCASTING OF PEORIA, L.L.C.

                        By:         /s/ Perry A. Sook                               ------------------------------                         Name:       Perry A. Sook                         Title:      President/CEO

                              WYZZ, INC.

                        By:         /s/ David Smith                               ------------------------------                         Name:       David Smith                         Title:      President

                              WYZZ LICENSEE, INC.

                        By:         /s/ David Smith                               ------------------------------                         Name:       David Smith                         Title:      President

                                       26

                                    EXHIBIT A

                        [WYZZ's Facilities and Equipment]

Schedules, 3L, 4L and 6L are hereby incorporated herein by reference.

                                       27

                                    EXHIBIT B

      Promptly following each month during the term, Nexstar shall reimburse WYZZ for salaries for WYZZ's employees, costs of WYZZ-TV's programming (which were not more than ninety (90) days past due as of the Effective Date) and other direct, reasonable, out-of-pocket expenses (including electric costs related to the digital transmission of WYZZ's primary commercial broadcast signal, but excluding all other expenses relating to WYZZ-TV's DTV Spectrum) incurred by WYZZ in the operation of WYZZ-TV, which expenses were incurred in the ordinary course of business consistent with standard industry practice and FCC requirements.

                                       28

                                    EXHIBIT C

                        [Fair Market Rent Determination]

The parties shall negotiate in good faith in an attempt to reach an agreement on the fair market value rent of any real property owned by either Nexstar or WYZZ (or any affiliate thereof). To the extent the parties are not able to reach such an agreement within fifteen (15) days prior to the time when such rental shall be deducted in computing BCF, the parties shall retain a mutually acceptable real estate appraiser in the Peoria/Bloomington market experienced in determining fair market value rents, who shall determine the rent payment.

                                       29

                                    EXHIBIT D

                                [Start-Up Costs]

The parties agree that the maximum start-up costs referred to in Section 4 shall not exceed Fifty Thousand Dollars ($50,000), in the case of relocation of a studio transmitter link, Two Hundred Ninety-Two Thousand Dollars ($292,000) in case of master control improvements, Thirty Thousand Dollars ($30,000) in the case of construction and furniture costs, One Hundred Ten Thousand Dollars ($110,000) in the case of a new traffic system, Forty-Five Thousand Dollars ($45,000) in the case of news related equipment, Twenty-Five Thousand Six Hundred Dollars ($25,600) in the case of termination of the lease for WYZZ-TV's Peoria sales office, Nine Thousand Nine Hundred Dollars ($9,900) in the case of termination of the lease for the WMBD-TV's Bloomington Sales Office, One Hundred Five Thousand Dollars ($105,000) in the case of Employee severance and Thirty-Three Thousand Dollars ($33,000) in the case of miscellaneous expenses, including, but not limited to, phone system upgrade costs all as reasonably determined by Nexstar.





                                       30

                                    EXHIBIT E

                              [Licensee Employees]

William Killian Lillian Rathburn Scott Parker*

* To be retained for up to six months after the Effective Date of the Outsourcing Agreement.

                                       31

                                                                       EXHIBIT F

                     REPRESENTATIONS AND WARRANTIES OF WYZZ

      WYZZ hereby represents and warrants to Nexstar as follows:

      1L. Organization and Good Standing. WYZZ is a corporation duly organized, validly existing and in good standing under the laws of Maryland and has full corporate power and authority to carry on its business as it is now being conducted and to own and use the assets owned and used by it. WYZZ is qualified as a foreign corporation in the State of Illinois. WYZZ does not own any direct or indirect subsidiaries.

      2L. No Conflicts. Except as described on Schedule 2L to this Exhibit, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) violate any provision of the articles of incorporation or by-laws of WYZZ, (ii) violate any provision of applicable law, rule and regulation, or (iii) conflict with or result in a breach of, or give rise to a right of termination of, or accelerate the performance required by the terms of any judgment, court order or consent decree, or any material agreement, indenture, mortgage or instrument to which WYZZ is a Party or to which its property is subject, or constitute a default thereunder.

      3L. Real Property. Schedule 3L to this Exhibit contains a complete description of all real property, whether owned or leased (the Real Property Interests) (including street address, and WYZZ's use thereof) used in connection with the operation of WYZZ-TV. The Real Property Interests listed on Schedule 3L to this Exhibit comprise all interests in real property currently used by WYZZ and necessary to conduct the business and operations of WYZZ-TV as now conducted. Except as described on Schedule 3L to this Exhibit, WYZZ has good title to all Real Property Interests free and clear of all liens, mortgages, pledges, covenants, easements, restrictions, encroachments, leases, charges, and other claims and encumbrances, which restricts WYZZ's interest in, or use of, the Real Property Interests, except for Permitted Encumbrances (as defined below). Each leasehold or subleasehold interest is included on Schedule 3L to this Exhibit and is legal, valid, binding, enforceable, and in full force and effect. WYZZ is not in default, violation, or breach under any lease or sublease, and no event has occurred and is continuing that constitutes (with notice or passage of time or both) a default, violation, or breach thereunder. To WYZZ's knowledge, WYZZ has not received any notice of a default, offset, or counterclaim under any lease or sublease with respect to any of the Real Property Interests. WYZZ enjoys peaceful and undisturbed possession of the Real Property Interests; and so long as WYZZ fulfills its obligations under the lease therefor, WYZZ has enforceable rights to nondisturbance and quiet enjoyment against its lessor or sublessor and, except as set forth in Schedule 3L to this Exhibit, no third Party holds any interest in the leased premises with the right to foreclose upon WYZZ's leasehold or subleasehold interest. To WYZZ's knowledge, WYZZ has legal and practical access to all of the Real Property Interests. Except as

                                       1

otherwise disclosed in Schedule 3L to this Exhibit, all towers, guy anchors, ground radials, and buildings and other improvements included in the Real Property Interests are located entirely on the Real Property Interests listed in Schedule 3L to this Exhibit. All Real Property Interests (including the improvements thereon) (a) are in good condition and repair consistent with its current use, (b) are available for immediate use in the conduct of the business and operations of WYZZ-TV, and (c) comply in all material respects with all applicable material building or zoning codes and the regulations of any governmental authority having jurisdiction, except to the extent that the current use by WYZZ, while permitted, constitutes or would constitute a nonconforming use under current zoning or land use regulations. No eminent domain or condemnation proceedings are pending or, to WYZZ's knowledge, threatened with respect to any of the Real Property Interests.

            Permitted Encumbrances means (a) encumbrances of a landlord or other statutory liens not yet due and payable, (b) encumbrances arising in connection with equipment or maintenance financing or leasing under the terms of contracts disclosed pursuant to this Exhibit 1, (c) encumbrances for taxes not yet due and payable or which are being contested in good faith and by appropriate proceedings and with respect to which an appropriate reserve is





maintained on the taxpayer's books and records in accordance with generally accepted accounting principles, (d) or encumbrances which do not materially detract from the value of any of the assets of License or Nexstar or materially interfere with the use thereof.

      4L. Tangible Personal Property. Schedule 4L to this Exhibit contains a complete list and description of all of WYZZ's tangible personal property (the Personal Property) used or useful in the operation of WYZZ's Station. Except as noted on Schedule 4L, WYZZ owns and has good title to each item of Personal Property listed and described on Schedule 4L to this Exhibit. Except as otherwise noted on Schedule 4L to this Exhibit, none of the Personal Property owned by WYZZ and used in the operation of WYZZ-TV is subject to any security interest, mortgage, pledge, conditional sales agreement, or other lien or encumbrance, except for Permitted Encumbrances. With allowance for normal repairs, maintenance, wear and obsolescence, each material item of Personal Property is in good operating condition and repair, and is available for immediate use in the business and operation of WYZZ-TV. The Personal Property comprises all the tangible personal property currently used by WYZZ and necessary to conduct the business and operations of WYZZ-TV as now conducted.

      5L. FCC. WYZZ-TV is operated in material compliance with all the terms and conditions of all WYZZ-TV FCC authorizations and licenses, the Act, and applicable rules, regulations and policies of the FCC. All WYZZ-TV FCC authorizations and licenses (a true and complete list of which is set forth on Schedule 5L to this Exhibit, and true and complete copies of each of which have been delivered to Nexstar) have been validly issued and are valid and in full force and effect. The FCC authorizations and licenses listed on Schedule 5L to this Exhibit comprise all of the licenses, permits, and other authorizations required

                                       2

from any governmental or regulatory authority for the lawful conduct of the business and operations of WYZZ-TV in the manner and to the full extent as it is now conducted. Except as set forth on Schedule 5L to this Exhibit, no application, action, or proceeding is pending for the renewal or modification of any of the FCC authorizations or licenses, and there is not now before the FCC any investigation or complaint against WYZZ or relating to WYZZ-TV, the unfavorable resolution of which would impair the qualifications of WYZZ to hold any FCC authorizations or licenses. Except as set forth on Schedule 5L to this Exhibit, there is no proceeding pending before the FCC, and WYZZ has received no notice of violation from the FCC with respect to WYZZ. Except as set forth on Schedule 5L to this Exhibit, WYZZ has received no order or notice of violation issued by any governmental entity which permits revocation, adverse modification or termination of any FCC authorization or license. Except as set forth on Schedule 5L to this Exhibit, none of the FCC authorizations or licenses is subject to any restriction or condition that requires any material change in the operation of WYZZ-TV as currently operated. The FCC authorizations and licenses listed in Schedule 5L to this Exhibit are currently in effect and, except as disclosed on the Schedules, are not subject to any liens or other encumbrances. No renewal applications are pending with respect to any of the FCC authorizations or licenses. All documents required by 47 C.F.R. Section 73.3526 to be kept in WYZZ-TV's public inspection files are in such file, and such file will be maintained in proper order and complete during the Term. WYZZ has filed all material reports and filings with the FCC, has registered its antennas, and has paid all regulatory fees.

      6L. Intellectual Property. Set forth on Schedule 6L to this Exhibit is a complete list of all trademarks, tradenames, patents, website URLs and other intellectual property used in connection with the operation of WYZZ-TV and owned by or licensed to WYZZ on the date hereof and, except as otherwise set forth on Schedule 6L to this Exhibit hereto, WYZZ owns such Intellectual Property free and clear of any royalty, lien, encumbrance or charge and does not interfere with the rights of others. WYZZ has not received any written notice or written claim that any such Intellectual Property is not valid or enforceable, or of any infringement upon or conflict with any patent, trademark, service mark, copyright or trade name of any third Party by WYZZ. Except as set forth on Schedule 6L to this Exhibit, WYZZ has not given any notice of infringement to any third Party with respect to any of the Intellectual Property, and no such infringement exists.

      7L. Labor. With respect to employees of WYZZ-TV:

(i) WYZZ is and has been in compliance in all material respects with all applicable laws respecting employment and employment practices, terms and conditions of employment and wages and hours, including without limitation any such laws respecting employment discrimination, workers' compensation, family and medical leave, the Immigration Reform and Control Act, and occupational safety and health requirements, and no claims or investigations are pending or, to WYZZ's knowledge, threatened with respect to such laws, either by private individuals or by governmental agencies, and all

                                       3

employees are at-will except for those employees whose employment agreements have been provided to Nexstar.

            (ii) The employees of WYZZ-TV are not and have never been represented by any labor union in connection with employment by WYZZ, and no collective bargaining agreement is or has been binding and in force against, or





currently being negotiated by, WYZZ. No labor representation organization effort currently exists nor has there been any such activity within the past three (3) years. No grievance or arbitration proceeding arising out of or under collective bargaining agreements or employment relationships is pending, and no claims therefore exist or have, to WYZZ's knowledge, been threatened; no labor strike, lock-out, slowdown, or work stoppage is or has ever been pending or threatened against or directly affecting WYZZ.

            (iii) WYZZ is not and has never been engaged in any unfair labor practice, and here is not now, nor within the past three (3) years has there been, any unfair labor practice complaint against WYZZ pending or, to WYZZ's knowledge, threatened before the National Labor Relations Board or any other comparable foreign or domestic authority or any workers' council.

            (iv) All Persons at WYZZ-TV classified by WYZZ as independent contractors do satisfy and have satisfied the requirements of law to be so classified, and WYZZ has fully and accurately reported WYZZ's payments to them on IRS Forms 1099 when required to do so.

            (v) WYZZ is and has been in compliance with all applicable domestic and foreign laws concerning employer contributions to any trade union, housing, unemployment, retirement, bonus and welfare funds and all other funds to which an employer is required by law to contribute.

            (vi) Schedule 7L(vi) to this Exhibit contains a complete list of WYZZ's Employees by position and the compensation paid to each. Except as otherwise disclosed on Schedule 7L(vi) to this Exhibit, since September 30, 2001, no employee of WYZZ-TV, or group of employees, the loss of whom would have a material adverse effect on the business of WYZZ-TV, has notified WYZZ of his or their intent to (A) terminate his or her relationship with WYZZ, or (B) make any demand for material payments or modifications of his or their arrangements with WYZZ.

            (vii) WYZZ has entered into all employment contracts, individual labor contracts, collective labor contracts, and similar agreements to the extent required by applicable domestic and foreign laws, and WYZZ has delivered to Nexstar prior to the date hereof true and complete copies of all employment contracts, individual labor contracts, collective labor contracts, and similar agreements, whether written or oral, to which WYZZ is a Party.

                                       4

      8L. Insurance. Schedule hereto contains a list of all insurance policies concerning the business and operation of WYZZ-TV, other than employee-benefit related insurance policies. All such policies are in full force and effect, there are no existing breaches or defaults by WYZZ with respect to such policies, and no notice of cancellation or termination has been received by WYZZ. During the past three (3) years, no insurance policy relating to WYZZ-TV has been cancelled by the insurer, and no application of WYZZ for insurance has been rejected by any insurer.

      9L. Compliance with Laws. With respect to WYZZ-TV, except as set forth on Schedule 9L to this Exhibit, WYZZ is in compliance in all material respects with all applicable Federal, state and local laws, rules and regulations and, to WYZZ's knowledge, WYZZ has received no notice of any action threatened or pending alleging noncompliance therewith.

      10L. Litigation. Except as set forth on Schedule 10L to this Exhibit hereto, there is no pending suit, claim, action, proceeding or arbitration relating to the business, or operations of WYZZ-TV or which seeks to enjoin or obtain damages in respect of the transactions contemplated hereby or, to WYZZ's knowledge, threatened against WYZZ. WYZZ has received no citation, order, judgment, writ, injunction, or decree of any court, government, or governmental or administrative agency against or affecting the business of WYZZ or the operation of WYZZ-TV, except as disclosed on Schedule 10L to this Exhibit, and except for such FCC orders and other governmental orders, decrees and other actions which apply to the broadcasting industry generally.

      11L. Environmental.

            (i) Environmental Compliance. Except as disclosed on Schedule 11L, (a) none of the Personal Property and, to the knowledge of WYZZ, none of the Real Property Interests contain (i) any asbestos, polychlorinated biphenyls, or any PCB contaminated oils; (ii) any Contaminants (as defined below); or (iii) any underground storage tanks; and (b) no underground storage tank disclosed on Schedule 11L has leaked and has not been remediated or leaks and such tank is in substantial compliance with all applicable Environmental Laws (as defined below).

            (ii) Definition of Contaminant. For purposes of this Agreement, Contaminant shall mean and include any pollutant, contaminant, hazardous material (as defined in any of the Environmental Laws), toxic substances (as defined in any of the Environmental Laws), asbestos or asbestos containing material, urea formaldehyde, polychlorinated biphenyls, regulated substances and wastes, radioactive materials, and petroleum or petroleum by-products, including oil or any fraction thereof.

                                       5

            (iii) Definition of Environmental Laws. Environmental Laws shall





mean and include, but not be limited to, any applicable federal, state or local law, statute, charter, ordinance, rule, or regulation or any Governmental Body interpretation, policy, or guidance, including, without limitation, applicable safety/environmental/health laws, such as, but not limited to, the Resource Conservation and Recovery Act of 1976, Comprehensive Environmental Response Compensation and Liability Act, Federal Emergency Planning and Community Right-to-Know Law, the Clean Air Act, the Clean Water Act, and the Toxic Substance Control Act, as any of the foregoing have been amended, and any Governmental Authorization or Order applicable to or affecting the Property or any other property (real or personal) used by or relating to WYZZ-TV or issued pursuant to any Environmental Laws which pertains to, governs, or controls the generation, storage, remediation, or removal of Contaminants, or otherwise regulates the protection of health and the environment, including, but not limited to, any of the following activities, whether on site or off site if such could materially affect the site: (i) the emission, discharge, release, spilling, or dumping of any Contaminant into the air, surface water, ground water, soil or substrata; or (ii) the use, generation, processing, sale, recycling treatment, handling, storage, disposal, transportation, labeling, or any other management of any Contaminant.

      12L. Tax Matters.

      Except as set forth on Schedule 12L to this Exhibit hereto:

            (i) All Tax Returns required to be filed by WYZZ have been filed when due in a timely fashion and all such Tax Returns are true, correct and complete in all material respects.

            (ii) WYZZ has paid in full on a timely basis all Taxes owed by it that were payable on or prior to the date hereof, whether or not shown on any Tax Return.

            (iii) The amount of WYZZ's liability for unpaid Taxes did not, as of September 30, 2001 exceed the amount of the current liability accruals for such Taxes (excluding reserves for deferred Taxes) reflected on the WYZZ Financial Statements.

            (iv) WYZZ has withheld and paid over to the proper governmental authorities all Taxes required to have been withheld and paid over (and complied in all material respects with all information reporting and backup withholding requirements, including maintenance of required records with respect thereto) in connection with amounts paid to any employee, independent contractor, creditor, or other third Party.

            (v) WYZZ has received no notice of any Tax Proceeding currently pending with respect to WYZZ and WYZZ has not received notice from any Tax Authority that it intends to commence a Tax Proceeding.

                                       6

            (vi) There are no liens on the assets of WYZZ relating or attributable to Taxes (except liens for Taxes not yet due).

13L. Accounts Receivable. All accounts receivable of WYZZ that relate to WYZZ-TV and that are reflected on the WYZZ Financial Statements (as defined in these Schedules) or on the accounting records of WYZZ as of the date hereof (collectively, the Accounts Receivable) represent valid obligations arising from sales actually made or services actually performed in the ordinary course of business. Except as stated in Schedule 13L to this Exhibit, the Accounts Receivable are current and collectable, net of the reserves shown on the WYZZ Financial Statements (which reserves are adequate and calculated consistent with past practice) or on the accounting records of WYZZ. There is no contest, claim, or right of setoff, other than returns in the ordinary course of business, under any contract with any obligor of an Accounts Receivable relating to the amount or validity of such Accounts Receivable. WYZZ's financial records include a complete and accurate list of all Accounts Receivable.

      14L. Financial Statements. WYZZ has delivered to Nexstar (and same are attached hereto as Schedule 14L to this Exhibit) the audited (or, if not available, unaudited) balance sheet, statement of operations and accumulated deficits, and statement of cash flows for WYZZ-TV for the two (2) fiscal years immediately preceding the date of this Agreement as well as the unaudited balance sheet, income statement and statement of cash flows for the interim period beginning at the close of WYZZ's most recent fiscal year and ending on September 30, 2001 (collectively, the WYZZ Financial Statements). The WYZZ Financial Statements are sufficient to determine the BCF of WYZZ-TV, which WYZZ Financial Statements, WYZZ acknowledges have been used to form the basis of the provisions of Section 2 hereof. The WYZZ Financial Statements submitted in connection with this Agreement (including, in all cases, the notes thereto, if any) (i) is accurate and complete in all material respects; (ii) is consistent in all material respects with the books and records of WYZZ; (iii) fairly presents in all material respects the financial condition and results of the operations of WYZZ-TV consistently applied; and (iv) have been prepared in accordance with GAAP (except, to the extent not audited, for the absence of footnote and certain year-end adjustments). None of the WYZZ Financial Statements understates in any material respect the normal and customary costs and expenses in conducting the business or operations of WYZZ-TV as currently conducted by WYZZ or otherwise materially inaccurately reflects the operations of WYZZ-TV.

      15L. Contracts. Schedule 15L to this Exhibit lists all written Contracts and true and complete descriptions of all material oral contracts (including any amendments or other modifications to such Contracts). All of the Contracts are





in full force and effect, and are valid, binding, and enforceable in accordance with their terms except as to the enforceability of such contracts may be effected by bankruptcy, insolvency, or similar

                                       7

laws affecting creditors' rights generally and by judicial discretion in the enforcement of equitable remedies. WYZZ is not and, to the knowledge of WYZZ, no other party to such contracts is in default, violation, or breach in any material respect under any contract, and no event has occurred and is continuing that constitutes (with notice or passage of time or both) a default, violation, or breach in any material breach thereunder. To the knowledge of WYZZ, no party to any Contract has any intention to (a) terminate such Contract or amend the terms thereof; (b) refuse to renew any contract upon expiration of its term; or (c) renew the Contract upon expiration only on terms and conditions that are more onerous to those now existing. For purposes of this Agreement, Contracts means all contracts, consulting agreements, leases, non-governmental licenses and other agreements (including leases for personal or real property and employment agreements), written or oral (including any amendments and other modifications thereto), to which WYZZ is a party or that are binding upon WYZZ and that relate to or effect the assets, properties, business, or operations of WYZZ-TV that are in effect as of the Effective Date.

                                       8

                  REPRESENTATIONS AND WARRANTIES OF NEXSTAR

      Nexstar hereby represents and warrants to WYZZ as follows:

      1P. Organization and Good Standing. Nexstar is a corporation duly organized, validly existing and in good standing under the laws of Delaware and has full corporate power and authority to carry on its business as it is now being conducted and to own and use the assets owned and used by it. Nexstar is qualified as a foreign corporation in the State of Illinois. Nexstar does not own any direct or indirect subsidiaries.

      2P. No Conflicts. Except as described on Schedule 2P to this Exhibit, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) violate any provision of the articles of incorporation or by-laws of Nexstar, (ii) violate any provision of applicable law, rule and regulation, or (iii) conflict with or result in a breach of, or give rise to a right of termination of, or accelerate the performance required by the terms of any judgment, court order or consent decree, or any material agreement, indenture, mortgage or instrument to which Nexstar is a Party or to which its property is subject, or constitute a default thereunder.

      3P. Real Property. Schedule 3P to this Exhibit contains a complete description of all real property, whether owned or leased (the Real Property Interests) (including street address or legal description, and Nexstar's use thereof) used in connection with the operation of WMBD-TV. The Real Property Interests listed on Schedule 3P to this Exhibit comprise all interests in real property currently used by Nexstar and necessary to conduct the business and operations of WMBD-TV as now conducted. Except as described on Schedule 3P to this Exhibit, Nexstar has good title to all Real Property Interests free and clear of all liens, mortgages, pledges, covenants, easements, restrictions, encroachments, leases, charges, and other claims and encumbrances, which restricts Nexstar's interest in, or use of, the Real Property Interests, except for Permitted Encumbrances. Each leasehold or subleasehold interest is included on Schedule 3P to this Exhibit and is legal, valid, binding, enforceable, and in full force and effect. Nexstar is not in default, violation, or breach under any lease or sublease, and no event has occurred and is continuing that constitutes (with notice or passage of time or both) a default, violation, or breach thereunder. To Nexstar's knowledge, Nexstar has not received any notice of a default, offset, or counterclaim under any lease or sublease with respect to any of the Real Property Interests. Nexstar enjoys peaceful and undisturbed possession of the Real Property Interests; and so long as Nexstar fulfills its obligations under the lease therefor, Nexstar has enforceable rights to nondisturbance and quiet enjoyment against its lessor or sublessor and, except as set forth in Schedule 3P to this Exhibit, no third Party holds any interest in the leased premises with the right to foreclose upon Nexstar's leasehold or subleasehold interest. To Nexstar's knowledge, Nexstar has legal and practical access to all of the Real Property Interests. Except as otherwise disclosed in Schedule 3P to this Exhibit, all towers, guy anchors, ground radials, and buildings and other improvements included in the Real Property

                                       1

Interests are located entirely on the Real Property Interests listed in Schedule 3P to this Exhibit. All Real Property Interests (including the improvements thereon) (a) are in good condition and repair consistent with its current use, (b) are available for immediate use in the conduct of the business and operations of the Nexstar Station, and (c) comply in all material respects with all applicable material building or zoning codes and the regulations of any governmental authority having jurisdiction, except to the extent that the current use by Nexstar, while permitted, constitutes or would constitute a nonconforming use under current zoning or land use regulations. No eminent domain or condemnation proceedings are pending or, to Nexstar's knowledge,





threatened with respect to any of the Real Property Interests.

      4P. Tangible Personal Property. Schedule 4P to this Exhibit contains a complete list and description of all of Nexstar's tangible personal property (the Personal Property) used or useful in the operation of Nexstar's Station. Except as noted on Schedule 4P, Nexstar owns and has good title to each item of Personal Property listed and described on Schedule 4P to this Exhibit. Except as otherwise noted on Schedule 4P to this Exhibit, none of the Personal Property owned by Nexstar and used in the operation of the Nexstar Station is subject to any security interest, mortgage, pledge, conditional sales agreement, or other lien or encumbrance, except for Permitted Encumbrances. With allowance for normal repairs, maintenance, wear and obsolescence, each material item of Personal Property is in good operating condition and repair, and is available for immediate use in the business and operation of WMBD-TV. The Personal Property comprises all the tangible personal property currently used by Nexstar and necessary to conduct the business and operations of WMBD-TV as now conducted.

      5P. FCC. WMBD-TV is operated in material compliance with all the terms and conditions of all WMBD-TV FCC authorizations and licenses, the Act, and applicable rules, regulations and policies of the FCC. All WMBD-TV FCC authorizations and licenses (a true and complete list of which is set forth on Schedule 5P to this Exhibit, and true and complete copies of each of which have been delivered to WYZZ) have been validly issued and are valid and in full force and effect. The FCC authorizations and licenses listed on Schedule 5P to this Exhibit comprise all of the licenses, permits, and other authorizations required from any governmental or regulatory authority for the lawful conduct of the business and operations of WMBD-TV in the manner and to the full extent as it is now conducted. Except as set forth on Schedule 5P to this Exhibit, no application, action, or proceeding is pending for the renewal or modification of any of the FCC authorizations or licenses, and there is not now before the FCC any investigation or complaint against Nexstar or relating to WMBD-TV, the unfavorable resolution of which would impair the qualifications of Nexstar to hold any FCC authorizations or licenses. Except as set forth on Schedule 5P to this Exhibit, there is no proceeding pending before the FCC, and Nexstar has received no notice of violation from the FCC with respect to Nexstar. Except as set forth on Schedule 5P to this Exhibit, Nexstar has received no order or notice of violation issued by any governmental entity which permits revocation, adverse modification or termination of

                                       2

any FCC authorization or license. Except as set forth on Schedule 5P to this Exhibit, none of the FCC authorizations or licenses is subject to any restriction or condition that requires any material change in the operation of WMBD-TV as currently operated. The FCC authorizations and licenses listed in Schedule 5P to this Exhibit are currently in effect and, except as disclosed on the Schedules, are not subject to any liens or other encumbrances. No renewal applications are pending with respect to any of the FCC authorizations or licenses. All documents required by 47 C.F.R. Section 73.3526 to be kept in WMBD-TV's public inspection files are in such file, and such file will be maintained in proper order and complete during the Term. Nexstar has filed all material reports and filings with the FCC, has registered its antennas, and has paid all regulatory fees.

      6P. Intellectual Property. Set forth on Schedule 6P to this Exhibit is a complete list of all trademarks, tradenames, patents, website URLs and other intellectual property used in connection with the operation of WMBD-TV and owned by or licensed to Nexstar on the date hereof and, except as otherwise set forth on Schedule 6P to this Exhibit hereto, WYZZ owns such Intellectual Property free and clear of any royalty, lien, encumbrance or charge and does not interfere with the rights of others. Nexstar has not received any written notice or written claim that any such Intellectual Property is not valid or enforceable, or of any infringement upon or conflict with any patent, trademark, service mark, copyright or trade name of any third Party by Nexstar. Except as set forth on Schedule 6P to this Exhibit, Nexstar has not given any notice of infringement to any third Party with respect to any of the Intellectual Property, and no such infringement exists.

      7P. Labor. Except as set forth on Schedule 7P, with respect to employees of WMBD-TV:

            (i) Nexstar is and has been in compliance in all material respects with all applicable laws respecting employment and employment practices, terms and conditions of employment and wages and hours, including without limitation any such laws respecting employment discrimination, workers' compensation, family and medical leave, the Immigration Reform and Control Act, and occupational safety and health requirements, and no claims or investigations are pending or, to the Nexstar's knowledge, threatened with respect to such laws, either by private individuals or by governmental agencies, and all employees are at-will.

            (ii) The employees of WMBD-TV are not and have never been represented by any labor union in connection with employment by Nexstar, and no collective bargaining agreement is or has been binding and in force against, or currently being negotiated by, Nexstar. No labor representation organization effort currently exists nor has there been any such activity within the past three (3) years. No grievance or arbitration proceeding arising out of or under collective bargaining agreements or employment relationships is pending, and no claims therefore exist or have, to Nexstar's

                                       3





knowledge, been threatened; no labor strike, lock-out, slowdown, or work stoppage is or has ever been pending or threatened against or directly affecting Nexstar.

            (iii) Nexstar is not and has never been engaged in any unfair labor practice, and here is not now, nor within the past three (3) years has there been, any unfair labor practice complaint against Nexstar pending or, to Nexstar's knowledge, threatened before the National Labor Relations Board or any other comparable foreign or domestic authority or any workers' council.

            (iv) All Persons at WMBD-TV classified by Nexstar as independent contractors do satisfy and have satisfied the requirements of law to be so classified, and Nexstar has fully and accurately reported Nexstar's payments to them on IRS Forms 1099 when required to do so.

            (v) Nexstar is and has been in compliance with all applicable domestic and foreign laws concerning employer contributions to any trade union, housing, unemployment, retirement, bonus and welfare funds and all other funds to which an employer is required by law to contribute.

            (vi) Schedule 7P(vi) to this Exhibit contains a complete list of Nexstar's Employees by position and the compensation paid to each. Except as otherwise disclosed on Schedule 7P(vi), since September 30, 2001, no employee of WMBD-TV, or group of employees, the loss of whom would have a material adverse effect on the business of WMBD-TV, has notified Nexstar of his or their intent to (A) terminate his or her relationship with Nexstar, or (B) make any demand for material payments or modifications of his or their arrangements with Nexstar.

            (vii) Nexstar has entered into all employment contracts, individual labor contracts, collective labor contracts, and similar agreements to the extent required by applicable domestic and foreign laws, and Nexstar has delivered to WYZZ prior to the date hereof true and complete copies of all employment contracts, individual labor contracts, collective labor contracts, and similar agreements, whether written or oral, to which Nexstar is a Party.

      8P. Insurance. Schedule 8P hereto contains a list of all insurance policies concerning the business and operation of WMBD-TV, other than employee-benefit related insurance policies. All such policies are in full force and effect, there are no existing breaches or defaults by Nexstar with respect to such policies, and no notice of cancellation or termination has been received by Nexstar. During the past three (3) years, no insurance policy relating to WMBD-TV has been cancelled by the insurer, and no application of Nexstar for insurance has been rejected by any insurer.

                                       4

      9P. Compliance with Laws. With respect to WMBD-TV, except as set forth on Schedule 9P to this Exhibit, WYZZ is in compliance in all material respects with all applicable Federal, state and local laws, rules and regulations and, to Nexstar's knowledge, Nexstar has received no notice of any action threatened or pending alleging noncompliance therewith.

      10P. Litigation. Except as set forth on Schedule 10P to this Exhibit hereto, there is no pending suit, claim, action, proceeding or arbitration relating to the business, or operations of WMBD-TV or which seeks to enjoin or obtain damages in respect of the transactions contemplated hereby or, to Nexstar's knowledge, threatened against Nexstar. Nexstar has received no citation, order, judgment, writ, injunction, or decree of any court, government, or governmental or administrative agency against or affecting the business of Nexstar or the operation of WMBD-TV, except as disclosed on Schedule 10P to this Exhibit, and except for such FCC orders and other governmental orders, decrees and other actions which apply to the broadcasting industry generally.

      11P. Environmental.

            (i) Environmental Compliance. Except as disclosed on Schedule 11P to this Exhibit, (a) none of the Personal Property and, to the knowledge of Nexstar,&bbsp;none of the Real Property Interests contain (i) any asbestos, polychlorinated biphenyls, or any PCB contaminated oils; (ii) any Contaminants (as defined below); or (iii) any underground storage tanks; and (b) no underground storage tank disclosed on Schedule 11P to this Exhibit has leaked and has not been remediated or leaks and such tank is in substantial compliance with all applicable Environmental Laws (as defined below).

            (ii) Definition of Contaminant. For purposes of this Agreement, Contaminant shall mean and include any pollutant, contaminant, hazardous material (as defined in any of the Environmental Laws), toxic substances (as defined in any of the Environmental Laws), asbestos or asbestos containing material, urea formaldehyde, polychlorinated biphenyls, regulated substances and wastes, radioactive materials, and pretroleum or petroleum by-products, including credue oil or any fraction thereof.

            (iii) Definition of Environmental Laws. Environmental Laws shall mean and include, but not be limited to, any applicable federal, state or local law, statute, charter, ordinance, rule, or regulation or any Governmental Body interpretation, policy, or guidance, including, without limitation, applicable safety/environmental/health laws, such as, but not limited to, the Resource Conservation and Recovery Act of 1976, Comprehensive Environmental Response Compensation and Liability Act, Federal Emergency Planning and Community Right-to-Know Law, the Clean Air Act, the Clean Water Act, and the Toxic





Substance Control Act, as any of the foregoing have been amended, and any Governmental Authorization or Order applicable to or affecting the Property or any other property (real or personal) used by or relating to WMBD-TV or

                                       5

issued pursuant to any Environmental Laws which pertains to, governs, or controls the generation, storage, remediation, or removal of Contaminants, or otherwise regulates the protection of health and the environment, including, but not limited to, any of the following activities, whether on site or off site if such could materially affect the site: (i) the emission, discharge, release, spilling, or dumping of any Contaminant into the air, surface water, ground water, soil or substrata; or (ii) the use, generation, processing, sale, recycling treatment, handling, storage, disposal, transportation, labeling, or any other management of any Contaminant.

      12P. Tax Matters.

      Except as set forth on Schedule 12P to this Exhibit hereto:

            (i) All Tax Returns required to be filed by Nexstar have been filed when due in a timely fashion and all such Tax Returns are true, correct and complete in all material respects.

            (ii) Nexstar has paid in full on a timely basis all Taxes owed by it that were payable on or prior to the date hereof, whether or not shown on any Tax Return.

            (iii) The amount of Nexstar's liability for unpaid Taxes did not, as of September 30, 2001 exceed the amount of the current liability accruals for such Taxes (excluding reserves for deferred Taxes) reflected on the Nexstar Financial Statements.

            (iv) Nexstar has withheld and paid over to the proper governmental authorities all Taxes required to have been withheld and paid over (and complied in all material respects with all information reporting and backup withholding requirements, including maintenance of required records with respect thereto) in connection with amounts paid to any employee, independent contractor, creditor, or other third Party.

            (v) Nexstar has received no notice of any Tax Proceeding currently pending with respect to Nexstar and Nexstar has not received notice from any Tax Authority that it intends to commence a Tax Proceeding.

            (vi) There are no liens on the assets of Nexstar relating or attributable to Taxes (except liens for Taxes not yet due).

      13P. Accounts Receivable. All accounts receivable of Nexstar that relate to WMBD-TV and that are reflected on Nexstar Financial Statements (as defined in these Schedules) or on the accounting records of WYZZ as of the date hereof (collectively, the Accounts Receivable) represent valid obligations arising from sales actually made or services actually performed in the ordinary course of business. Except as stated in Schedule 13P to this Exhibit, the Accounts Receivable are current and collectable, net of

                                       6

the reserves shown on the Nexstar Financial Statements (which reserves are adequate and calculated consistent with past practice) or on the accounting records of Nexstar. There is no contest, claim, or right of setoff, other than returns in the ordinary course of business, under any contract with any obligor of an Accounts Receivable relating to the amount or validity of such Accounts Receivable. Nexstar's financial records include a complete and accurate list of all Accounts Receivable.

      14P. Financial Statements. Nexstar has delivered to WYZZ (and same are attached hereto as Schedule 14P to this Exhibit) the audited (or, if not available, unaudited) balance sheet, statement of operations and accumulated deficits, and statement of cash flows for WMBD-TV for the two (2) fiscal years immediately preceding the date of this Agreement as well as the unaudited balance sheet, income statement and statement of cash flows for the interim period beginning at the close of Nexstar's most recent fiscal year and ending on September 30, 2001 (collectively, the Nexstar Financial Statements). The Nexstar Financial Statements are sufficient to determine the BCF of WMBD-TV, which Nexstar Financial Statements, Nexstar acknowledges have been used to form the basis of the provisions of Section 2 hereof. The Nexstar Financial Statements submitted in connection with this Agreement (including, in all cases, the notes thereto, if any) (i) is accurate and complete in all material respects; (ii) is consistent in all material respects with the books and records of WYZZ; (iii) fairly presents in all material respects the financial condition and results of the operations of WMBD-TV consistently applied; and (iv) have been prepared in accordance with GAAP (except, to the extent not audited, for the absence of footnotes and certain year-end adjustments). None of the Nexstar Financial Statements understates in any material respect the normal and customary costs and expenses in conducting the business or operations of WMBD-TV as currently conducted by Nexstar or otherwise materially inaccurately reflects the operations of WMBD-TV.

      15P. Contracts. Schedule 15P to this Exhibit lists all written Contracts and true and complete descriptions of all oral contracts (including any





amendments or other modifications to such Contracts). All of the Contracts are in full force and effect, and are valid, binding, and enforceable in accordance with their terms except as to the enforceability of such contracts may be effected by bankruptcy, insolvency, or similar laws affecting creditors' rights generally and by judicial discretion in the enforcement of equitable remedies. Nexstar is not and, to the knowledge of Nexstar, no other party to such contracts is in default, violation, or breach in any material respect under any contract, and no event has occurred and is continuing that constitutes (with notice or passage of time or both) a default, violation, or breach in any material breach thereunder. To the knowledge of Nexstar, no party to any Contract has any intention to (a) terminate such Contract or amend the terms thereof; (b) refuse to renew any contract upon expiration of its term; or (c) renew the Contract upon expiration only on terms and conditions that are more onerous to those now existing. For purposes of this Agreement, Contracts means all contracts, consulting agreements, leases, non-governmental

                                       7

licenses and other agreements (including leases for personal or real property and employment agreements), written or oral (including any amendments and other modifications thereto), to which Nexstar is a party or that are binding upon Nexstar and that relate to or effect the assets, properties, business, or operations of the Nexstar Station that are in effect as of the Effective Date.

                                       8

                      &sbsp;             EXHIBIT G

                         [List of Transferred Employees]

      Schedule 7L is hereby incorporated herein by reference except to the extent included on such Schedule are the names of those Employees listed on Exhibit E.

                                       9

                                    EXHIBIT H

                           [Initial Operating Budget]

See attached.

                                       10

                                    EXHIBIT I

                        [Terminated Employees Positions]

            See Attached

                                       11
[A]:
Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?