Common use of Rights and Procedures Clause in Contracts

Rights and Procedures. The indemnity rights and obligations shall be in addition to any rights that any Indemnified Persons person or entity entitled to indemnification hereunder (each an "Indemnified Person") may have at common law or otherwise, including not limited to any right of contribution. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against a party pursuant hereto (the "Indemnifying Party"), such Indemnified Person shall promptly notify the Indemnifying Party in writing of the commencement of such litigation or proceeding, but the omission to so notify the Indemnifying Party shall not relieve the Indemnifying Party its obligation or liability which the Indemnifying Party may have to any Indemnified Person under this agreement. If any action, proceeding, or investigation is commenced as to which an Indemnified Person demands indemnification, the Indemnified Person shall have the right to retain counsel of its own choice to represent it, the Indemnifying Party shall pay the reasonable fees and expenses of such counsel, and such counsel shall to the extent consistent with its professional responsibilities cooperate with the Indemnifying Party and any counsel designated by the Indemnifying Party; provided that the Indemnifying Party shall not be responsible for the fees and expenses of more than one counsel. In case any such litigation or proceeding shall be brought against any Indemnified Person, the Indemnifying Party shall be entitled to participate in such litigation or proceeding with counsel of the Indemnifying Party's choice at the Indemnifying Party's expense.

Rights and Procedures. The indemnity rights and obligations shall be in addition to any rights that any Indemnified Persons person or entity entitled to indemnification hereunder (each an "Indemnified Person") may have at common law or otherwise, including not limited to any right of contribution. If any litigation or proceeding is brought against third party is, in the reasonable opinion of either Party, within any Indemnified Person in respect jurisdiction, infringing any [***], the Party learning of which indemnity may be sought against a party pursuant hereto (the "Indemnifying Party"), such Indemnified Person shall infringement will promptly notify the Indemnifying other Party in writing of the commencement and provide it with any reasonably available evidence of such litigation possible infringement. (a) Achaogen will have the first right to take steps to ▇▇▇▇▇ the infringement and/or bring and control any action or proceeding with respect to such infringement and will bear all expenses thereof, and Isis will have the right, at its own expense, to be represented in any such action or proceeding, but the omission to so notify the Indemnifying Party shall not relieve the Indemnifying Party its obligation or liability which the Indemnifying Party may have to any Indemnified Person under this agreement. If any action, proceeding, or investigation is commenced as to which an Indemnified Person demands indemnification, the Indemnified Person shall have the right to retain counsel of its own choice to represent it, the Indemnifying Party shall pay the reasonable fees and expenses of such counsel, and such counsel shall to the extent consistent with its professional responsibilities cooperate with the Indemnifying Party and any counsel designated by the Indemnifying Party; provided that the Indemnifying Party shall not be responsible for the fees and expenses of more than one counsel. In case any such litigation or proceeding shall be brought against any Indemnified Personthis regard, the Indemnifying Party Achaogen shall be entitled to participate use its good faith discretion in determining (i) whether to contact and/or institute any action or proceeding against an alleged third party infringer; (ii) the timing of any contact with an alleged third party infringer and/or action or proceeding to be instituted against an alleged third party infringer; (iii) the location of any action or proceeding to be instituted against an alleged third party infringer; and (iv) should there be more than one alleged third party infringer, which alleged infringer to contact regarding its alleged infringement or against whom any action or proceeding is to be brought; provided, however, that, if within [***] after having been requested by Isis to initiate an enforcement action against the alleged infringement of the Aminoglycoside Program Patents by a third party, Achaogen shall have been unsuccessful in persuading the alleged infringer to cease and desist and shall not have brought and/or be diligently prosecuting an infringement action (itself or through its sublicensees), or shall not have begun bona fide negotiations regarding the terms under which Achaogen would grant a sublicense to the alleged infringer, or if Achaogen earlier notifies Isis in writing of its intent not to take such litigation steps, then, and in those events only, Isis will have the right, but not the obligation, to take steps to ▇▇▇▇▇ the infringement and/or bring and control any action or proceeding with counsel of respect to such infringement at its expense, and Achaogen will have the Indemnifying right, at its own expense, to be represented in any such action or proceeding. If Isis requests that Achaogen bring an action with respect to such infringement and Achaogen believes it is not commercially reasonable to bring such actions, the Executive Officers will meet as soon as reasonably possible thereafter and in good faith attempt to reach agreement on commercially reasonable actions to curtail or eliminate such infringement. (b) The Party not enforcing the applicable Patent will provide reasonable assistance to the enforcing Party (at such enforcing Party's choice ’s expense), including providing access to relevant documents and other evidence, making its employees available at reasonable business hours, and joining the Indemnifying Party's expenseaction to the extent necessary to allow the enforcing Party to maintain the action. [***] 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.

Rights and Procedures. The indemnity rights and obligations shall be in addition In the event that either Party has cause to any rights believe that any Indemnified Persons person or entity entitled to indemnification hereunder (each an "Indemnified Person") may have at common law or otherwise, including not limited to any right of contribution. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity a Third Party may be sought against a party pursuant hereto (infringing any of the "Indemnifying Party")Licensed Patents or Joint Patents, such Indemnified Person it shall promptly notify the Indemnifying other Party in writing writing, identifying the alleged infringer and the alleged infringement complained of and furnishing the information upon which such determination is based. Subject in the case of [***], AstraZeneca shall have the first right, but not the obligation, through counsel of its choosing, to take measures to stop such infringing activities by such Third Party in any part of the commencement Territory or to grant to the infringing Third Party adequate rights and licenses necessary for continuing such activities in the Territory; provided, however, that AstraZeneca shall keep MAP reasonably informed of its actions with respect to such infringement and shall permit MAP to provide input with respect thereto (which input AstraZeneca shall consider in good faith); and provided, further, that AstraZeneca shall obtain the written consent of MAP prior to entering into any complete and final settlement or other voluntary disposition of such litigation action or proceeding, but the omission to so notify the Indemnifying Party shall not relieve the Indemnifying Party its obligation or liability which the Indemnifying Party may have to any Indemnified Person under this agreement. If any otherwise compromising such action, proceedingin either case in its entirety, such consent not to be unreasonably withheld, conditioned or investigation is commenced as to which an Indemnified Person demands indemnification, the Indemnified Person delayed (it being understood that AstraZeneca shall have the right to retain counsel control the conduct of any such proceeding and any settlement negotiations with respect thereto, subject only to MAP’s right to consent to a complete and final settlement or other voluntary disposition thereof in its entirety, including any license under the Licensed Patents in connection therewith). Upon reasonable request by AstraZeneca, MAP shall give CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. AstraZeneca all reasonable information and assistance, including allowing AstraZeneca access to MAP’s files and documents and to MAP’s personnel who may have possession of relevant information and, if necessary for AstraZeneca to prosecute any legal action, joining in the legal action as a party and AstraZeneca shall reimburse MAP for reasonable costs and expenses incurred by MAP with respect to such joinder. MAP shall use its commercially reasonable efforts to obtain any consents required by Third Parties owning Licensed Patents licensed to MAP in order for AstraZeneca to remove such infringement with respect to such Licensed Patents, provided that if such consent is not granted, AstraZeneca shall not have the right to remove such infringement. If AstraZeneca fails within [***] days following notice of such infringement (or [***] days in the case of an action under the ANDA Act as described in Section 14.1.1), or earlier notifies MAP in writing of its own choice intent not to represent itcommence a suit or take commercially appropriate steps to remove any infringement of any Licensed Patent or Joint Patent that is likely to have a material adverse effect on the sale of a Licensed Product, and AstraZeneca has not granted the Indemnifying infringing Third Party rights and licenses to continue its otherwise infringing activities or commenced a suit to stop such infringing activities, then if such infringement occurs within [***], MAP shall pay have the reasonable fees right to remove such infringement at MAP’s expense, and expenses if such infringement occurs in [***], MAP shall have the right to remove such infringement at MAP’s expense with AstraZeneca’s prior written consent, such consent not to unreasonably withheld, conditioned or delayed; provided, however, that if AstraZeneca or its Affiliate has commenced negotiations with an alleged infringer for discontinuance of such counselinfringement within such [***] day period (if applicable), MAP may not bring suit for such infringement so long as AstraZeneca or its Affiliate remain in active, bona fide negotiations with respect thereto. MAP shall keep AstraZeneca reasonably informed of its actions with respect to such infringement and shall permit AstraZeneca to provide input with respect thereto (which input MAP shall consider in good faith); and provided, further, that MAP shall obtain the written consent of AstraZeneca prior to entering into any complete and final settlement or other voluntary disposition of such counsel action, or otherwise compromising such action in its entirety, such consent not to be unreasonably withheld, conditioned or delayed (it being understood that MAP shall have the right to control the extent consistent with its professional responsibilities cooperate with the Indemnifying Party conduct of any such proceeding and any counsel designated settlement negotiations with respect thereto, subject only to AstraZeneca’s right to consent to a complete and final settlement or other voluntary disposition thereof in its entirety). Upon reasonable request by the Indemnifying Party; provided that the Indemnifying Party MAP and at MAP’s cost and expense, AstraZeneca shall not be responsible give MAP all reasonable information and assistance in connection with such suit by MAP for the fees and expenses of more than one counsel. In case any such litigation or proceeding shall be brought against any Indemnified Person, the Indemnifying Party shall be entitled to participate in such litigation or proceeding with counsel of the Indemnifying Party's choice at the Indemnifying Party's expenseinfringement.