[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.(b) “Multi-fire Clip Applier” [*](c) “Commercialize” (or any form thereof, e.g., “Commercialization”) shall mean tosell, offer for sale, import, export, distribute, promote, and market, together with otheractivities typically associated with commercialization of a medical product.(d) “Commercially Reasonable Efforts” means timely application of efforts andresources, consistent with the exercise of prudent business judgment by a company with similarfinancial resources which intends to exploit a medical product of similar market potential with aview to making a profit, taking into account such matters as product efficacy and safety, size ofmarket, anticipated labeling, competitiveness of alternative products, strength of patent or tradesecret protection, likelihood of obtaining Regulatory Approval, and commercially appropriateprioritization with respect to other company projects and products.(e) “Confidential Information” shall mean all ideas and information of any kind thatare held in confidence by one Person and transferred, disclosed, or made available by such Personto a receiving Person and are identified at the time of disclosure as being proprietary orconfidential, or would reasonably be regarded as proprietary or confidential by a reasonable Personin like circumstances. The obligations in this Agreement with respect to Confidential Informationshall not apply to any portion of the Confidential Information that the receiving Person candemonstrate by legally sufficient evidence (i) now or hereafter, through no act or failure to acton the part of the receiving Person, is or becomes public; (ii) is known to the receiving Person orone of its Affiliates at the time such person receives such Confidential Information from thedisclosing Person; (iii) is hereafter furnished to the receiving Person by an unrelated thirdPerson without violating any agreement with the disclosing Person; or (iv) is independentlydeveloped by the receiving Person or one of its Affiliates without use of any ConfidentialInformation received from the other Person.(f) “Control” or “Controlled” shall mean the ability of a Person to grant alicense or sublicense under Intellectual Property, other than as a result of this Agreement andwithout violating the terms of any agreement or other arrangement with any third party.(g) “Field of Use” shall mean the use of Robotics to perform a diagnostic ortherapeutic medical procedure.(h) “Governmental Authority” shall mean any nation, territory, or government (or unionthereof), foreign, domestic, or multinational, any state, local, or other political subdivisionthereof, and any bureau, court, tribunal, board, commission, department, agency, or other entityexercising executive, legislative, judicial, regulatory, or administrative functions of government,including all taxing authorities and all European notified bodies, including notified bodies withinthe sense of Article 16 of the European Union Medical Device Directive 93/42/EEC, and all otherentities exercising regulatory authority over medical products or devices.
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.(i) The phrase “has application in the Field of Use” or “have application in theField of Use” shall mean that a reasonable person, skilled in the Field of Use and thetechnology related to the relevant Licensed IP, could reasonably conclude that the technology,enhancement, or other item in question might well have commercial value if utilized (with orwithout further enhancement or development) in the Field of Use.(j) “Improvement Period” shall mean the period of time beginning on the Agreement Dateand expiring on the [*] of the Agreement Date.(k) “Improvement Period Patent Rights” [*](l) “Intellectual Property” or “IP” shall mean: (i) Patent Rights; (ii)trademarks, service marks, trade names, brand names, certification marks, designs, logos andslogans, commercial symbols, business name registrations, domain names, trade dress and otherindications of origin and general intangibles of like nature, the goodwill associated with theforegoing, and registrations in any domestic or foreign jurisdiction of, and applications in anysuch jurisdiction to register, the foregoing, including any extension, modification, or renewal ofany such registration or application; (iii) research and development data, formulae, ideas,know-how, research, analysis, experiments, proprietary processes and procedures, algorithms, modelsand methodologies, technical information, technologies, techniques, innovations, creations,concepts, designs, industrial designs, procedures, trade secrets and confidential information, andrights in any domestic or foreign jurisdiction to limit the use or disclosure thereof by anyperson; (iv) writings and other works of authorship of any type (including patterns, drawings,data, the content contained on any web site), whether copyrightable or not, in any suchjurisdiction, and any copyrights and moral rights therein (“Copyrights”); (v) computersoftware (whether in source code or object code form), databases, compilations, and data; and (vi)registrations or applications for registration of copyrights in any domestic or foreignjurisdiction, and any renewals or extensions thereof; and (vii) any similar intellectual propertyor proprietary rights.(m) “Know-How” shall mean all data and information owned by, used by, held for use byor on behalf of, licensed to, or otherwise Controlled by Cardica or a Cardica Affiliate andmaintained in confidence by Cardica or a Cardica Affiliate, including all processes, plans,designs, research, operating manuals, methods, compounds, formulae, discoveries, developments,designs, drawings, technology, techniques, procedures, specifications, inventions, computerprograms, and any other scientific or technical data or information conceived, memorialized,developed, and/or reduced to practice, in each case whether or not patentable in any jurisdiction.Until such time as any particular patent has been published in accordance withthe terms of a patent application or such patent application has been published, the term“Know-How” shall be deemed to include all inventions disclosed in such patent application.
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.(n) “Licensed IP” shall mean the following, but only to the extent having applicationin the Field of Use:(i) (A) All Patent Rights owned and/or Controlled by Cardica or any Cardica Affiliate on theAgreement Date and (B) Improvement Period Patent Rights owned and/or Controlled by Cardica or anyCardica Affiliate;(ii) All Cardica Know-How that is owned and/or Controlled by Cardica on the Agreement Dateand/or during the Improvement Period; and(iii) All Intellectual Property as defined in Subsections (iii)—(vii) of Section 1.1(l) thatis owned and/or Controlled by Cardica on the Agreement Date and/or during the Improvement Period.The Licensed IP shall include, but not be limited to, the Patent Rights set forth on Exhibit 1.1(n)attached hereto. The Patent Rights in Section 1.1(n)(i) are referred to herein as the “LicensedPatent Rights.” In the event that Cardica is acquired by a third party or otherwise undergoes aChange of Control involving a third party (such third party or its successor in such Change ofControl hereinafter referred to as a **“Buyer”**), then the Intellectual Property of such Buyer held,owned, controlled or developed by such Buyer or its Affiliates (whether prior to or after suchacquisition) shall be excluded from the Licensed IP unless such Intellectual Property was ownedand/or Controlled by Cardica prior to such acquisition or Change of Control.(o) “Lien” shall mean all liens, pledges, charges, mortgages, encumbrances,restrictions, licenses, adverse rights or claims, and security interests of any kind or naturewhatsoever.(p) “Litigation Matter” shall mean any claim, investigation, arbitration, grievance,litigation, action, suit, or proceeding, administrative or judicial, to which a Party is (or, tosuch Party’s knowledge, is threatened in writing to be made) a party, or relating to the LicensedIP, the Reload, clips, staples, Cardica’s cutting and stapling instruments, Cardica’s clipappliers, or this Agreement (whether such Party is a plaintiff, defendant, or otherwise), at law orin equity or otherwise, or before any Governmental Authority.(q) “Party” shall mean each of Intuitive and Cardica (including their respectiveAffiliates), who together are sometimes referred to as the “Parties”. As used in thisAgreement, references to “third parties” do not include either Party or the Affiliates ofeither Party.(r) “Patent Costs” shall mean the costs and expenses paid to outside legal counsel,Governmental Authorities, and other third parties incurred in connection with preparing, filing,prosecuting, obtaining, and maintaining Licensed IP, or taking any Patent Prosecution Action,including costs and expenses of patent interference, re-examination, reissue,protest, opposition, nullification, and similar proceedings (and any appeal thereof in anycourt or administrative agency).
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.(s) “Patent Prosecution Action” shall mean any and all actions that may be taken inconnection with preparing, filing, prosecuting, obtaining, and maintaining throughout the worldpatent protection for Licensed IP, including patent applications and other related materialsubmissions and correspondence with any patent authorities, and including with regard to any patentinterference, re-examination, reissue, protest, opposition, nullification, and similar proceedings(and any appeal thereof in any court or administrative agency).(t) “Patent Rights” means (i) any and all written, oral, and visual ideas, concepts,and inventions, whether or not any such idea, concept, or invention has been filed as a patentapplication or submitted by the inventor(s) to any attorney or other person for evaluation as topatentability, (ii) any patents, patent applications, any patents issuing therefrom worldwide, andall provisional rights with respect to patent applications, (iii) any improvements, substitutions,divisionals, patents of addition, continuations, continuations-in-part, reissues, renewals,registrations, confirmations, re-examinations, extensions, supplementary protection certificates,term extensions (under applicable patent law or regulation or other law or regulation), andcertificates of invention of any patents or patent applications, and (iv) all rights to exploit anyof the foregoing.(u) The term “Person” shall mean an individual, corporation, partnership, limitedpartnership, limited liability company, unincorporated association, trust, joint venture, union orother organization or entity, including a Governmental Authority.(v) “Cardica Know-How” shall mean any Know-How owned or Controlled by Cardica or anyCardica Affiliate that has application in the Field of Use.(w) “Change of Control” shall mean, with respect to either Party, the sale orannouncement of signing of definitive agreements pursuant to a sale of all or substantially all ofassets or issued and outstanding capital stock of such Party, or merger or consolidation involvingsuch Party in which stockholders of such Party immediately before such merger or consolidation donot own immediately after such merger or consolidation capital stock or other equity interests ofthe surviving corporation or entity representing more than fifty percent in voting power of capitalstock or other equity interests of such surviving corporation or entity outstanding immediatelyafter such merger or consolidation. If a signed definitive agreement does not close, then noChange of Control is deemed to have occurred.(x) “Regulatory Approval” shall mean any and all approvals (including any necessarygovernmental price or reimbursement approvals), licenses, registrations, or authorizations of theapplicable Governmental Authority necessary for the use, storage, import, promotion, marketing, andCommercialization of the clip appliers, stapling and cutting instruments, Reloads, staples, orclips that fall within the scope of the license granted under Section 2.1(a).(y) “Reload” shall mean a cartridge with staples and with or without a cutting device.(z) “Robotics” shall mean a [*](aa) “Stapler” [*]
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.(bb) “Sublicensee” shall mean any person to whom (i) Intuitive sublicenses its rightsunder this Agreement in the manner provided in Section 2.3 or (ii) grants a covenant not to suewith respect to its rights under the Licensed IP in the Field of Use, but the term “Sublicensee”shall not include any person who manufactures a Reload for Intuitive or an Affiliate of Intuitivebut does not sell such Reloads other than to Intuitive or an Affiliate of Intuitive.(cc) “Technology” shall mean any idea, data, writing, invention, discovery,improvement, trade secret, development, know-how, method, technique, formula, process, or othertechnology, whether or not patentable, copyrightable, or protectable as a trade secret,confidential information, or know-how, or any other form of intellectual property.(dd) “Vascular Anastomosis” shall mean of or related to a surgical process of joiningtwo blood vessels together.(ee) “Net Sale(s)” shall mean the sale revenues by Intuitive or its Affiliates orSublicensees, less the following (in each case to the extent related to products generating suchrevenues): (i) discounts or rebates actually allowed or granted from the billed amount, (ii)credits or allowances actually allowed or granted for returns, (iii) transportation costs actuallypaid by the selling Person, and (iv) sales taxes or the like that are included in the billed amountand actually paid by the selling Person.2. Licenses and Technology Transfer.2.1. License Grants to Intuitive.(a) Cardica hereby grants to Intuitive a worldwide, perpetual, irrevocable, exclusive licenseunder the Licensed IP to practice such Licensed IP in the Field of Use, such exclusive licenseincluding but not limited to the right to make, have made, use, offer for sale, sell, market,import, export, distribute, Commercialize, in any manner whatsoever, and enforce (even againstCardica and its Affiliates) the Licensed IP in the Field of Use, as set forth in Section 5 of thisAgreement. The license from Cardica to Intuitive does not extend to Vascular Anastomosis products.To be clear, in the event a patent claim under the Licensed IP covers a Vascular Anastomosisapplication and another application within the Field of Use, the license from Cardica to Intuitiveshall exclude the Vascular Anastomosis application but shall include the other application withinthe Field of Use. For avoidance of doubt, the license in this Section 2 becomes irrevocable on theAgreement Date.(b) The license granted under Section 2.1(a) shall not be sublicensable by Intuitive except asset forth in Section 2.3.
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.(c) Cardica agrees that it will not, and will ensure that its Affiliates do not, during theLicense Term assign, transfer, convey, or otherwise dispose of any Licensed IP that has applicationin the Field of Use (an “IP Transfer”) unless such IP Transfer shall have been made subjectto the license grant and exclusivity requirements set forth in this Section 2.1 and to the otherexpress terms of this Agreement, including, in particular, Section 12.10. However, nothing in thissection prohibits Cardica from granting a security interest in the Licensed IP to a creditor, ifsuch a security interest is required by the creditor for Cardica to obtain financing, provided thatthe creditor recognizes the validity of the preexisting licenses and sublicenses granted toIntuitive under Section 2 and agrees in writing to take the security interest subject to thesepreexisting licenses, sublicenses, and the terms of this Agreement.(d) Cardica agrees that it shall not, and will ensure that its Affiliates do not, utilize orpractice, or grant any rights to any third party with respect to, the Licensed IP in the Field ofUse that are in any way inconsistent with the rights granted to Intuitive under this Agreement.(e) Intuitive will, where reasonably practical, mark all applicable medical devices, orpackaging thereof, with a notice of the applicable Licensed Patent Rights.(f) For any Licensed IP Controlled by Cardica or its Affiliates that is sublicensed toIntuitive under Section 2.1(a), Intuitive agrees to pay, if applicable and necessary for Intuitiveto benefit from such sublicensed Patent Rights, on a pass-through basis, royalty or other monetaryobligation for royalty obligation in the original license grant to Cardica of such sublicensedPatent Rights. For avoidance of doubt, the pass-through obligation under this Section 2.1(f) shallbe deducted from any Royalty Payment due Cardica under Section 4.(g) Cardica shall disclose to Intuitive a listing of all worldwide patent applications andpatents included in the Licensed IP on the Agreement Date. For any such patent applications orpatents licensed by Cardica or its Affiliates, Cardica shall disclose to Intuitive the associatedlicense grant so that Intuitive may determine the extent of Control of such patent applications orpatents by Cardica or its Affiliates. This listing of patent applications and patents, andassociated license terms if applicable, shall include at least those referred to in Cardica’s mostrecent Form 10-K filing with the United States Securities and Exchange Commission, to the extentfalling within the definition of Licensed IP.2.2. Non-Exclusive License to Use Technical Information.(a) Cardica shall provide Intuitive with any and all information in the possession of Cardicaand its Affiliates, without limitation as to kind, that may be reasonably required by Intuitive ora Intuitive Affiliate to support regulatory submissions as to products covered by the Licensed IPin the Field of Use (the “Products”), or for any purposes related to the Commercialization of theProducts (but subject to any third party confidentiality obligations); and hereby grants toIntuitive and its Affiliates a non-exclusive, worldwide, irrevocable,perpetual, transferable and royalty-free license to use such information, including theinformation described in Section 2.2 (b), to support regulatory submissions as to the Products,and/or for any purposes related to the development, manufacture, and Commercialization of theProducts. The license granted under this Section 2.2 shall not be sublicensable by Intuitiveexcept as set forth in Section 2.3.
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.(b) Cardica shall provide to Intuitive, via electronic delivery to an Intuitive supplied,secure ftp site, on a bi-weekly basis or upon a Change of Control, the following information forarchiving by Intuitive ; and hereby grants to Intuitive and its Affiliates a non-exclusive,worldwide, irrevocable, perpetual, transferable and royalty-free license to use such information tosupport regulatory submissions as to the Products, or for any purposes related to theCommercialization of the Products:(i) Technical Review records, including agendas, minutes and presentations(ii) CAD files and drawings for the Products (including packaging, labeling, assemblies, testfixtures and assembly fixtures)(iii) Design input/output (customer requirements documents, product requirements andspecifications, supporting documents, marketing studies)(iv) Risk analysis (FMEAs, hazard analysis, quality requirements)(v) Tooling strategy documents (component and assembly tooling quotes, supplier contactinformation)(vi) Design Validation & Verification documents (engineering test protocols/reports/summaries)(vii) Clinical testing records (including protocols, reports, pictures, summaries)(viii) Regulatory documents (510k/technical files of predicate, associated documents of newdesign).2.3. Sublicenses. Intuitive shall have the right to sublicense, in whole or in part,the rights granted herein to the Licensed IP, within the Field of Use without Cardica’s priorconsent, subject to the following:(a) Sublicense Agreement. Intuitive shall execute a written sublicense with eachSublicensee which shall be subject to Intuitive’s rights and obligations under the terms of thisAgreement. Intuitive shall report the granting of all such sublicenses to Cardica within thirty(30) days of the granting of the same, and along with such notification shall provide a copy of thesublicense agreement. Intuitive shall cause any such sublicense agreement contains terms that areat least as protective of the Licensed IP and Confidential Information as the terms setforth in this Agreement, and that also include no provisions that would be in violation of thelicense grant set forth in this Agreement. Intuitive shall be obligated to use CommerciallyReasonable Efforts in monitoring the performance of its Sublicensees and shall indemnify Cardicafor any material violation by a Sublicensee of its obligations related to the Licensed IP under asublicense agreement. For avoidance of doubt, Intuitive does not have any obligation to report anysublicense to any wholly owned subsidiary or Affiliates.
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.(b) Performance of Other Obligations by Sublicensees. Intuitive shall, and by thisAgreement hereby does, agree to cause any Sublicensee to assume and agree to perform all of thecovenants and obligations of Intuitive to Cardica contained in this Agreement as fully and to thesame extent as if such person were Intuitive under this Agreement but with such modifications asmay be appropriate to reflect the extent, if any, to which the sublicense is narrower in scope thanthe license grant contained this Agreement.(c) Distributors. Intuitive may exercise its rights and obligations under thisAgreement through its distributors and sub-distributors through multiple tiers. Such exerciseshall not constitute a sublicense.3. License Payments.3.1. Irrevocable License Fee. Intuitive shall pay to Cardica an initial, one-time,license fee of Nine Million Dollars (US$9,000,000) (“Irrevocable License Fee”) not laterthan five (5) business days after the execution of this Agreement by both Parties. The payment ofthe Irrevocable License Fee shall be a condition precedent to the effectiveness of this Agreement.If the Irrevocable License Fee is not paid within five (5) business days after execution of thisAgreement, this Agreement shall lapse and be deemed null, void, and of no effect.3.2. [*]3.3. Payment Terms. Intuitive shall notify Cardica in writing on the occurrence ofthe [*]. All payments due from Intuitive to Cardica shall be made by wire transfer of immediatelyavailable funds to an account designed by Cardica. All payments shall be made in U.S. dollars. IfIntuitive is required by law to withhold any tax to the tax or revenue authorities in any countryregarding any payments or royalties, such amount shall be deducted from the amounts to be paid byIntuitive, and Intuitive shall notify Cardica and promptly furnish Cardica with copies of any taxcertificate or other documentation evidencing such withholding.4. Royalty Payments.4.1. [*] Reload. Upon first commercial sale by Intuitive or an Affiliate orSublicensee of a [*] Stapler, and for a period not to exceed [*] years from such first commercialsale, Intuitive or an Affiliate shall pay Cardica a [*] royalty (“[*] Royalty”) on Intuitive orIntuitive Affiliate or Sublicensee Reload Net Sales in any jurisdiction in which at least one validgranted patent owned or Controlled by Cardica has one or more claims that (i) include one or morenovel features associated with such [*] Reload and/or corresponding anvil, and (ii) wouldbe infringed absent a license from Cardica by the use, sale, importation, or manufacture ofany such [*] Reload.
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.4.2. [*] Stapler and Reload. Upon first commercial sale by Intuitive or an Affiliateor Sublicensee of an [*] Stapler, and for a period not to exceed [*] years from such firstcommercial sale, Intuitive or an Affiliate shall pay Cardica a [*] royalty (“[*] Royalty”) on:(a) Intuitive or Intuitive Affiliate or Sublicensee [*] Stapler Net Sales in any jurisdictionin which at least one valid granted patent owned or Controlled by Cardica has one or more claimsthat (i) include one or more novel features of such [*] Stapler apart from an associated [*] Reloadand/or corresponding anvil, and (ii) would be infringed absent a license from Cardica by the use,sale, importation, or manufacture of any such [*] Stapler; and(b) Intuitive or Intuitive Affiliate or Sublicensee [*] Reload Net Sales in any jurisdictionin which at least one valid granted patent owned or Controlled by Cardica has one or more claimsthat (i) include one or more novel features associated with such [*] Reload and/or correspondinganvil, and (ii) would be infringed absent a license from Cardica by the use, sale, importation, ormanufacture of any such [*] Reload and/or corresponding anvil.4.3. [*] Stapler and Reload. Upon first commercial sale by Intuitive or an Affiliateor Sublicensee of a [*] Stapler, and for a period not to exceed [*] years from such firstcommercial sale, Intuitive or an Affiliate shall pay Cardica a [*] royalty (“[*] Royalty”) on:(a) Intuitive or Intuitive Affiliate or Sublicensee [*] Stapler Net Sales in any jurisdictionin which at least one valid granted patent owned or Controlled by Cardica has one or more claimsthat (i) include one or more novel features of such [*] Stapler apart from an associated [*] Reloadand/or corresponding anvil, and (ii) would be infringed absent a license from Cardica by the use,sale, importation, or manufacture of any such [*] Stapler; and(b) Intuitive or Intuitive Affiliate or Sublicensee [*] Reload Net Sales any jurisdiction inwhich at least one valid granted patent owned or Controlled by Cardica has one or more claims that(i) include one or more novel features associated with such [*] Reload and/or corresponding anvil,and (ii) would be infringed absent a license from Cardica by the use, sale, importation, ormanufacture of any such [*] Reload and/or corresponding anvil.4.4. Multi-fire Clip Applier. Upon first commercial sale by Intuitive or anAffiliate or Sublicensee of a Multi-fire Clip Applier, and for a period not to exceed [*] yearsfrom such first commercial sale, Intuitive shall pay Cardica a [*] royalty (“Multi-fire ClipApplier Royalty”) on:(a) Intuitive or Intuitive Affiliate or Sublicensee Multi-fire Clip Applier Net Sales in anyjurisdiction in which at least one valid granted patent owned or Controlled by Cardica has one ormore claims that (i) include one or more novel features of such Multi-fire Clip Applier apart froman associated clip, and (ii) would be infringed absent a license from Cardica by the use, sale,importation, or manufacture of any such Multi-fire Clip Applier; and
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.(b) Intuitive or Intuitive Affiliate or Sublicensee Multi-Fire Clip Applier clip Net Sales inany jurisdiction in which at least one valid granted patent owned or Controlled by Cardica has oneor more claims that (i) include one or more novel features associated with such clips, and (ii)would be infringed absent a license from Cardica by the use, sale, importation, or manufacture ofany such clips.4.5 Other Products. Either Party may develop one or more products other than thoseset forth in paragraphs 4.1—4.4 above (“Other Products”), including without limitation staplers orReloads in other sizes. Upon first commercial sale by Intuitive or an Affiliate or Sublicensee ofany such Other Products, regardless of which Party develops such Other Products, and for a periodnot to exceed [*] years from such first commercial sale, Intuitive or an Affiliate shall payCardica a [*] royalty (“Other Products Royalty”) on Intuitive or Intuitive Affiliate or SublicenseeOther Products Net Sales in any jurisdication in which at least one valid granted patent owned orControlled by Cardica has one or more claims that would be infringed absent a license by the use,sale, importation, or manufacture of any Other Products.4.6 Royalty Payments and Reports. At the end of each calendar quarter, Intuitiveshall calculate royalty amounts payable to Cardica pursuant to this Section 4 with respect to NetSales generated in such calendar quarter, which amounts shall be converted to United States dollarsat such time in accordance with Intuitive’s standard practice for currency conversion, appliedconsistently across its organization and product lines. Intuitive or an Intuitive Affiliate shallpay such amount in United States dollars within forty-five (45) days after the end of such calendarquarter. Each payment of royalties due to Cardica shall be accompanied by a statement of theamount of gross sales of the royalty-bearing products during the applicable calendar quarter, anitemized calculation of Net Sales showing deductions provided for in the definition of Net Salesduring such calendar quarter, and a calculation of the amount of royalty payment due on such NetSales for such calendar quarter.4.7 Records; Audits. Intuitive shall maintain complete and accurate records insufficient detail to permit Cardica to confirm Intuitive’s Net Sales levels in order to assesswhether the [*] has been triggered and to verify the accuracy of any royalty payments or royaltyreports provided under this Agreement (the “**Audit Purpose**”). For a period of three (3) years fromthe creation of individual records, such records shall be available during regular business hours,upon reasonable prior notice and not more often than once each calendar year, for examination by anindependent accounting firm selected by Cardica and reasonably acceptable to Intuitive, for thesole purpose of the Audit Purpose. The accounting firm shall disclose to Cardica only suchinformation as is necessary for the Audit Purpose. Any amounts shown to be owed but unpaid shallbe paid within thirty (30) days from the accountant’s report, plus interest from the original duedate. Any amounts shown to have been overpaid shall be credited against the subsequent royaltypayment. Cardica shall bear the full cost of any such audit.
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.5. Enforcement of Licensed IP.5.1. Rights to Enforce.(a) With respect to the enforcement and defense of the Licensed IP, Cardica and Intuitiveshall inform each other promptly in writing of any knowledge of any alleged infringement, misuse,or misappropriation by any person of the Licensed IP that has application in the Field of Use (suchinfringement, misuse, or misappropriation, the “Infringement”) and shall provide a summaryof any evidence indicating such Infringement. Cardica and Intuitive shall meet to discuss andagree upon a strategy to resolve the alleged Infringement.(b) Intuitive shall have the sole right but not the obligation to prosecute or seek to end atits own expense any Infringement of the Licensed IP, to the extent that such Infringement occurs inthe Field of Use.(c) The Party exercising its sole right of enforcement with respect to a particularInfringement is defined as “Primary Enforcement Party”.5.2. Enforcement by Primary Enforcement Party.(a) When the Primary Enforcement Party takes action to prosecute any Infringement, it shall:(i) be responsible for all costs of prosecuting such Infringement, except as provided inSection 5.2(d);(ii) provide the other Party with copies of all pleadings and other documents proposed to beinitially filed or served by the Primary Enforcement Party in sufficient time to allow for reviewand comment by the other Party.(iii) as reasonably requested by the other Party, regularly provide the other Party withcopies of all pleadings and other documents proposed to be filed or served by the PrimaryEnforcement Party and other material submissions and correspondence in any way related to suchprosecution of such Infringement, as applicable, in sufficient time to allow for review and commentby the other Party; and(iv) provide the other Party and its counsel with a reasonable opportunity to consult with thePrimary Enforcement Party and its counsel regarding the filing, service of process, and contents ofany documents proposed to be filed or served by the Primary Enforcement Party and other materialsubmissions and correspondence in any way related to such prosecution of such Infringement or inconnection therewith, and the Primary Enforcement Party shall give consideration to the reasonablerequests of the other Party regarding the same.(b) To the extent that the other Party is deemed an indispensable party in the PrimaryEnforcement Party’s litigation involving the Licensed IP, the other Party agrees to join thePrimary Enforcement Party in such action. The Primary Enforcement Party shallreimburse all of the other Party’s reasonable expenses, including attorney fees, and pay areasonable hourly consulting fee for use of the other Party’s personnel, in connection withlitigation involving the Licensed IP that the other Party is required to join as an indispensableparty.
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.(c) The other Party agrees to cooperate with the Primary Enforcement Party in any lawsuit thatthe Primary Enforcement Party brings against a third party to enforce the Primary EnforcementParty’s rights in the Licensed IP and to join the Primary Enforcement Party as a party to suchlawsuit if (i) requested by the Primary Enforcement Party and (ii) if the Primary Enforcement Partyagrees to (A) reimburse all of the other Party’s reasonable litigation expenses, including attorneyfees, in such lawsuit, and (B) pay a reasonable hourly consulting fee for use of the other Party’spersonnel in connection with such lawsuit.(d) To the extent permissible under the Federal Rules of Civil Procedure, each Party shallhave the right, with counsel of its own choosing and at its own expense, to join in any of theother Party’s litigation involving the Licensed IP.5.3. Enforcement Action by Third Party.(a) If any Party receives notice by counterclaim, declaratory judgment action or otherwise,alleging the invalidity, unenforceability, non-infringement, misuse, or misappropriation withrespect to any Licensed IP, it shall bring such fact to the attention of the other Party, includingall relevant information related to such claim. Where such allegation is made in an patentopposition, patent reexamination, patent interference or other patent office proceeding or inotherwise connection with any Patent Prosecution Action, the provisions of Section 6 shall apply.Where such allegation is made in a counterclaim to, or otherwise in connection with, a suit orother action brought under Section 5.2, the provisions of Section 5.2 shall apply. In all othercases, (i) for Licensed Patent Rights, the Party who prosecuted such Licensed Patent Right pursuantto Section 6 shall have the first right to defend such action at its own expense and (ii) for anyother Licensed IP, Cardica shall have the first right to defend such action at its own expense;provided, however, that in either case ((i) or (ii), if a Party pursuant to Section 5.2 elects tobring an Infringement counterclaim, the provisions of Section 5.2 shall thereafter apply. If theParty with the first right to defend any Licensed IP elects not to defend such action, it shall sonotify the other Party in writing, and the other Party shall have the right to defend such action,at the other Party’s expense.(b) The provisions of this Section 5.3 shall be in addition to, and not in lieu of, theParties’ indemnification obligations contained in Section 9, and in the event of any conflictbetween the provisions of this Section 5.3 and the indemnification obligations contained in Section9, the indemnification obligations contained in Section 9 shall be controlling.(c) All actions taken by a Party to defend any Licensed IP pursuant to this Section 5.3 shallbe subject to the following conditions:(i) such defending Party shall be responsible for all costs of prosecuting and defendingagainst such action;(ii) as reasonably requested by the non-defending Party, the defending Party shall regularlyprovide the non-defending Party with copies of all pleadings and other documents proposed to befiled or served by the defending Party and other material submissions and correspondence in any wayrelated to such defense, as applicable, in sufficient time to allow review and comment by thenon-defending Party; and
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.(iii) the defending Party shall provide the non-defending Party and its counsel with areasonable opportunity to consult with the defending Party and its counsel, at the non-defendingParty’s own expense, regarding the filing, service of process, and contents of any documentsproposed to be filed or served by the defending Party and other material submissions andcorrespondence in any way related to such defense or in connection therewith, and the defendingParty shall give consideration to the non-defending Party’s reasonable requests regarding the same.5.4. Amounts Recovered. Any amounts recovered by either Party for past Infringementthat occurs in the Field of Use in connection with a suit pursuant to this Section 5, whether bysettlement or judgment, shall be used to reimburse the Parties for their reasonable out-of-pocketcosts and expenses in making such recovery (which amounts shall be allocated first to the partyacting as Primary Enforcement Party if such amounts are insufficient to cover such costs andexpenses in full). Any remainder that relates to an Infringement of Licensed IP occurring in theField of Use shall belong in full to Intuitive and/or an Affiliate of Intuitive (as applicable),and any remainder that relates to an Infringement occurring outside the Field of Use of IP that isowned or Controlled by Cardica or a Cardica Affiliate and that is not licensed to Intuitive shallbelong to Cardica.5.5. Limitation on Settlements. The Parties agree that the primary goal inlitigating validity and enforceability issues associated with the Licensed IP shall be thepreservation of maximum claim breadth and enforcement rights, and the Parties shall cooperate witheach other in good faith to achieve this mutual goal. Except with the prior written consent ofthe other Party, neither Party shall consent to entry of any judgment or enter into any settlementwith respect to any infringement or other action identified in this Section 5 that (i) wouldresult in monetary, injunctive, or other relief being imposed against the other Party, (ii) wouldconstitute or require any admission of liability or wrongdoing on the part of the other Party thatdoes not provide a full release of liability for the other Party, or (iii) would otherwisematerially diminish the claim scope of the applicable Licensed IP or affect its validity orenforceability.6. Prosecution of Patent Rights.6.1. Prosecution and Maintenance of Patent Rights. For countries or regions thatgrant Patent Rights (“Designated Jurisdictions”), Cardica shall use Commercially Reasonable Effortsto prepare, file, prosecute, obtain, and maintain:(a) all Licensed Patent Rights existing as of the Agreement Date; and(b) all Licensed Patent Rights that come into existence after the Agreement Date in anyDesignated Jurisdiction selected at Cardica’s discretion.(c) With reference to Sections 6.1(a) and (b), Cardica shall otherwise take all PatentProsecution Actions as it shall deem to be commercially reasonable, in its discretion, in order toprotect and enhance the value of such Licensed Patent Rights, and shall pay all Patent Costsincurred by Cardica in connection with the foregoing activities.
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.6.2. Cooperation with Respect to Licensed Patent Rights. Cardica shall regularlyprovide Intuitive with copies of all patent applications that, upon filing, would be included inthe definition of Licensed Patent Rights in the Field of Use that are proposed to be filed byCardica or any Affiliate, and Cardica shall also provide Intuitive with copies of all other relatedmaterial submissions and correspondence with any patent authorities dealing with actual orpotential Licensed Patent Rights in the Field of Use, in sufficient time to allow for review andcomment by Intuitive. In addition, Cardica shall provide Intuitive and its counsel with anopportunity to consult with Cardica and its counsel regarding Patent Prosecution Actions relatingto the Licensed Patent Rights and any decisions by Cardica not to take any Patent ProsecutionActions, and Cardica shall take into consideration the reasonable requests of Intuitive regardingthe same. Cardica shall cooperate fully with Intuitive, at Intuitive’s reasonable request andIntuitive’s sole expense for its own actions, in connection with the preparation, filing,prosecution, obtaining and maintenance of, all Patent Prosecution Actions concerning the applicableLicensed Patent Rights by Intuitive under this Section 6.2 (and in any other proceedings before apatent official or office with respect thereto).6.3. Election Not to Prosecute; Licensed Patent Rights; Right to Step In. If Cardicaelects not to:(a) take any Patent Prosecution Action for any applicable Licensed Patent Rights necessary toestablish (e.g., prepare and file a patent application) or maintain such Licensed Patent Rights ina particular Designated Jurisdiction;(b) take any other action to prevent the forfeiture of commercially valuable rights withrespect to any applicable Licensed Patent Rights in a Designated Jurisdiction that is reasonablynecessary to establish or preserve such commercially valuable rights in such DesignatedJurisdiction; or(c) pay the Patent Costs associated with any such Patent Prosecution Action or such otheraction in any particular Designated Jurisdiction (in each case relating to Licensed Patent Rights),(each of the foregoing a “Requested Prosecution Action”), then in each such case Cardicashall so notify (“Non-Prosecution Notice”) Intuitive promptly in writing that it has madesuch an election. Cardica shall provide such Non-Prosecution Notice to Intuitive on or before adate that it reasonably believes would provide Intuitive with sufficient time to enable Intuitiveto meet any deadlines known to Cardica by which the Requested Prosecution Action must be taken toestablish or preserve commercially valuable rights in the Designated Jurisdiction to which suchRequested Prosecution Action relates. On receipt of any Non-Prosecution Notice, Intuitive shallhave the right but not the obligation to take the Requested Prosecution Action at its own expense,and to take over Prosecution of the Patent Rights that were subject to the Non-Prosecution Notice,and Cardica shall cooperate fully with Intuitive with respect to any such action. Intuitive shallbe deemed to have received a Non-Prosecution Notice with respect to any Requested ProsecutionAction if Cardica shall not have taken the Requested Prosecution Action within ten (10) days of awritten request by Intuitive that Cardica take such action.
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.7. Confidentiality.7.1. Limited Disclosure and Use. Each of Intuitive and Cardica shall hold inconfidence any Confidential Information (including trade secrets) disclosed by the other orotherwise obtained by such Party from the other Party as a result of this Agreement, and each ofIntuitive and Cardica shall protect the confidentiality thereof with the same degree of care thatit exercises with respect to its own information of a like nature, but in no event less thanreasonable care. Intuitive shall have the right to provide Confidential Information to itsAffiliates and Sublicensees, subject to the confidentiality obligations imposed by this Section7.1. Without the prior written consent of the disclosing Party, a receiving Party shall not use,disclose, or distribute any Confidential Information, in whole or in part, except as required toperform such Party’s obligations under this Agreement or in exercise or furtherance of its rightsunder this Agreement. Access to the disclosing Party’s Confidential Information shall berestricted to the receiving Party’s employees, agents, and consultants, who, in each case, need tohave access to carry out a permitted use and are bound in writing to maintain the use andconfidentiality restrictions of such Confidential Information. The obligations set forth in thisSection 7.1 shall survive any termination or expiration of this Agreement in perpetuity (withrespect to trade secrets and confidential financial information) and for a period of five (5) years(with respect to all other Confidential Information).7.2. Exceptions. Each receiving Party may disclose Confidential Information, withoutprior approval from the other Party, to the extent such disclosure is reasonably necessary toprotect intellectual property rights to which such Party has a right or license under thisAgreement, to prosecute or defend litigation, to comply with applicable law or regulations (e.g.,Unites States Securities and Exchange Commission filings), to obtain necessary or desirableRegulatory Approvals or concurrences, or to respond to a valid order of a Governmental Authority,*provided that*, other than with respect to disclosure for protecting intellectual property rights inconnection with a Patent Prosecution Action in which such disclosure is required by applicable law,the receiving Party shall (a) use reasonable efforts to secure confidential treatment of suchConfidential Information required to be disclosed, (b) use reasonable efforts to protect thefinancial terms of this Agreement, and (c) unless precluded by applicable law from doing so, giveadvance written notice to the disclosing Party sufficiently in advance of the proposed disclosureso as to permit the disclosing Party to have the opportunity to object to such disclosure orotherwise protect its Confidential Information.7.3. Use of Name; Disclosure of Terms of the Agreement. Except as required byapplicable law or regulation, neither Party shall use the name of the other Party or any Affiliateof the other Party in any advertising without the prior written approval of the otherParty. Except as may be required by applicable law or regulation, neither Party shall discloseany terms or conditions of this Agreement without the prior written consent of the other, *providedthat*(a) either Party may disclose such terms and conditions in order to comply with law or therules of any stock exchange on which its securities are listed; and (b) either Party may disclosesuch terms and conditions to existing and potential lenders, material investors, and buyers whohave agreed in writing to keep such information confidential in accordance with provisions at leastas protective as those contained herein.
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.7.4. Termination. Each receiving Party shall, upon termination of this Agreement,immediately discontinue use of the other’s Confidential Information (except to the extent that suchreceiving Party retains a right or license to use such Confidential Information, or requires suchConfidential Information in order to complete the transactions and purposes of this Agreement).Within thirty (30) days after termination of this Agreement, or upon receipt of written request bythe disclosing Party, if earlier, all materials containing such Confidential Information shall bereturned by the receiving Party or (with the disclosing Party’s prior written consent) destroyed,*provided, however,*that each Party may retain copies of Confidential Information in which suchParty has a proprietary or licensed interest that survives termination, and the receiving Partyshall be entitled to retain a file copy of the Confidential Information under the control of itsgeneral counsel or its outside counsel for archival purposes and for monitoring its obligationsunder this Agreement, and in connection with any related obligations under law, Device Regulation,or Regulatory Approvals.7.5. Permitted Disclosure to Related Persons. Notwithstanding the precedingprovisions of this Section 7, this Section 7 allows, without prior approval of the other Party,disclosure of Confidential Information or the terms and conditions of this Agreement: (i) byIntuitive, to any Intuitive Affiliate, or to the respective auditors and business, financial, andlegal advisers of Intuitive or any Intuitive Affiliate who need to understand the proposed orexisting business relationship between Cardica and Intuitive, and (ii) by Cardica, to any CardicaAffiliate, and to the respective auditors and business, financial, and legal advisers who need tounderstand the proposed or existing business relationship between Cardica and Intuitive.8. Representations and Warranties.8.1. Mutual Representations and Warranties. Each Party hereby represents and warrants tothe other Party as follows:(a) It is a corporation duly organized, validly existing, and in good standing under the lawsof the jurisdiction in which it is incorporated. It has corporate power to own its properties andto conduct its business as currently owned and conducted.(b) It has the full legal right and power to enter into and perform the transactionscontemplated by this Agreement, without need for any consent, approval, authorization, license ororder of, or notice to or filing with, any Governmental Authority or other person. The execution,delivery, and performance by such Party of this Agreement and the consummation by it of thetransactions contemplated hereby have been duly and validly authorized and approved by allnecessary corporate action of such Party. This Agreementevidences the legal, valid, and binding obligations of such Party, enforceable against it inaccordance with its terms, subject to bankruptcy, insolvency, reorganization, fraudulentconveyance, moratorium, or similar laws relating to or affecting the rights and remedies ofcreditors generally. This Agreement has been duly executed and delivered by such Party.
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.(c) The execution, delivery, and performance by it of this Agreement does not and will notviolate any applicable law or regulation, breach, create any liability, or loss of a benefit underany agreement to which it is a party or by which it is bound.(d) The execution, delivery, and performance by it of this Agreement does not require theapproval of any Governmental Authority nor the application for or filing of or for any license,permit, approval, waiver, no-action, or similar permission from any Governmental Authority(excluding the Regulatory Approvals expressly described in this Agreement).8.2. Representations and Warranties of Cardica. Cardica hereby represents andwarrants, as at the Agreement Date, as follows:(a) Title and Transfer. Cardica (i) owns and holds, free and clear of all Liens, allright, title, and interest in the Licensed IP, with the exception of a security interest granted toCentury Medical; (ii) has the exclusive right to make, have made, use, sell, offer for sale,market, import, export, distribute, Commercialize, and license the Licensed IP in the Field of Useon a worldwide basis; and (iii) has the exclusive right to bring actions for the infringement ofthe issued patents included in the Licensed IP in the Field of Use. Pursuant to this Agreement,Cardica will license to Intuitive all of its right, title, and interest in and to all Licensed IPin the Field of Use to the extent set forth in Section 2.1 of this Agreement, free and clear of allLiens. Cardica has not granted (and is not obligated to grant) to any other person any license,option, or other rights with respect to the Licensed IP in the Field of Use.(b) Confidentiality. Cardica has taken reasonable efforts to protect theconfidentiality of any Know-How or confidential or proprietary information included in the LicensedIP.(c) No Contest of Validity or Patentability. There is no pending or, to the knowledgeof Cardica, threatened Litigation Matter (and Cardica has received no notice) (i) contesting thepatentability, validity, enforceability, ownership, or right to use, assign, license, sublicense,or dispose of any Intellectual Property included in the Licensed IP that has application in theField of Use, or (ii) asserting that any Licensed IP that has application in the Field of Use (orthe design, manufacture, use, importation, marketing, offer for sale, or sale of any Cardicastapling and cutting instruments, clip appliers, Reloads, staples, and/or clips) conflicts or willconflict with the Intellectual Property of any other person.(d) Misappropriation; Notice of Infringement. Cardica has not misappropriated fromany person any Technical Information, nor any of the Technology covered by any Licensed IP that hasapplication in the Field of Use or that relates in any way to clip appliers, stapling and cuttinginstruments, Reload, staples, and/or clips. Cardica has received no notice of any infringement oralleged infringement by any third party of the Licensed IP that has application in the Field ofUse.(e) No In-Licensed IP. As at the Agreement Date, none of the Licensed IP has beenin-licensed from a third party.
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.8.3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO PARTY MAKES ANYREPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONSOR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO PARTYWARRANTS THAT THE OTHER PARTY WILL RECEIVE ANY PARTICULAR AMOUNT, OR ANY, REVENUES OR PROFITS AS ARESULT OF ENTERING INTO THE BUSINESS ARRANGEMENTS DESCRIBED IN THIS AGREEMENT.9. Indemnification; Limitation of Liability.9.1. Cardica’s Indemnification Obligations. Cardica hereby agrees to indemnify,defend, and hold harmless Intuitive, each of its Affiliates, and their respective Sublicensees,directors, representatives, officers, employees, agents, attorneys, successors, and assignees(collectively, the “Intuitive Indemnified Parties”), from and against, and in respect of,any liability, injury, damage, loss (including, but not limited to, direct economic loss), orexpense (including, but not limited to, reasonable attorney fees and reasonable litigationexpenses), as and when incurred by or imposed upon the Intuitive Indemnified Parties in connectionwith any third party claims, suits, actions, proceedings, demands, or judgments worldwide (“ThirdParty Claims”) arising out of or resulting from (a) any infringement or alleged infringement ofthird party Intellectual Property arising from Intuitive’s manufacture, use, or Commercializationof medical devices and accessories for which Intuitive makes Royalty Payments under Section 4,where the infringement or alleged infringement arises from the design and/or approval by Cardica ofall or part of such medical devices and accessories; and/or (b) Cardica’s breach of therepresentations and warranties set forth in Section 8.9.2. Notice of Claims. Within thirty (30) days after a Person seeking indemnificationhereunder (hereinafter the “Indemnified Party”) has received notice of or has acquiredknowledge of any Third Party Claim, the Indemnified Party shall, if such claim is indemnifiable bythe other Party pursuant hereto (hereinafter the “Indemnifying Party”), give theIndemnifying Party written notice of such claim and the commencement or threatened commencement ofsuch Third Party Claim. Such notice shall state the nature and basis of such Third Party Claim,and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of theIndemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation toindemnify and defend the Indemnified Party, except to the extent the Indemnifying Party hassuffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay ingiving such notice. Within ten (10) business days of receipt of any notice issued by theIndemnified Party pursuant to this Section 9.2, the Indemnifying Party shall notify the IndemnifiedParty whether the Indemnifying Party acknowledges its indemnification and defense obligation withrespect to the Third Party Claim which was the subject of the Indemnified Party’s notice or whetherit disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timelyacknowledge its obligations with respect to any Third Part Claim, the Indemnified Party shall havethe right to defend such Third Party Claim, with counsel of its own selection, and compromise suchThird Party Claim without prejudice to its right to indemnification hereunder. In the event theIndemnifying Party timely acknowledges its
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.obligations hereunder with respect to any Third Party Claim, the Indemnifying Party shalldefend the same with counsel in accordance with this Section. Where the Indemnifying Party shallhave acknowledged in writing its obligations hereunder with respect to any Third Party Claim, theIndemnified Party may, at its expense, participate in the defense of such Third Party Claim and nosuch Third Party Claim shall be settled by the Indemnified Party without the prior written consentof the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any timeafter the Indemnifying Party acknowledges its obligations hereunder with respect to any Third PartyClaim, the Indemnifying Party may request the Indemnified Party to agree in writing to the paymentor compromise of such Third Party Claim (provided such payment or compromise has been previouslyapproved in writing by the third party claimant), and, in the event the Indemnifying Party does so,the Indemnified Party shall promptly agree in writing to such settlement, unless such settlementwould involve a remedy or remedies, other than the payment of money damages by the IndemnifyingParty, to which the Indemnified Party reasonably objects.9.3. Third Party Beneficiaries. The Intuitive Indemnified Parties are intended to bethird party beneficiaries of the rights granted under this Section 9 and to have the right toenforce such rights directly against the Indemnifying Party. There shall be no other third partybeneficiaries of this Agreement.9.4. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANYINDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THISAGREEMENT, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR REVENUES, WHETHER OR NOT SUCH DAMAGESWERE WITHIN THE CONTEMPLATION OF THE PARTIES. This paragraph shall not apply to any violation orinfringement by a Party or its Affiliates of the Intellectual Property of the other Party or itsAffiliates, to any violation of the exclusive license grant provisions of Section 2.1, or to anybreach of Section 7.10. Dispute Resolution and Governing Law10.1. Disputes. In the event of any dispute or disagreement between the Parties whichmay arise out of or in relation to this Agreement, the Parties agree to meet within thirty (30)days and discuss in good faith a possible resolution thereof, which good faith efforts shallinclude at least one in-person meeting between the Chief Executive Officers of each Party. If thematter is not resolved within thirty (30) days of the first meeting between the Parties, thenexcept if the dispute or disagreement involves an allegation of fraud or other intentionaldeception, either Party may proceed to arbitration under Section 10.2 below.
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.10.2. Binding Arbitration. Binding arbitration shall be administered by JAMS and conductedunder its Comprehensive Arbitration Rules and Procedures. The place of arbitration shall be SanJose, California. The arbitration shall be conducted by three (3) neutral, independent arbitratorwith not less than fifteen (15) years of relevant experience in the subject matter of the dispute.The arbitrator shall have no authority to award punitive damages. Each Party shall bear its owncosts and expenses and attorneys’ fees and an equal share of the arbitrator’s fees and anyadministrative fees of arbitration. Except to the extent necessary to confirm an award or as maybe required by law, neither the Parties nor the arbitrator may disclose the existence, content, orresults of an arbitration without the prior written consent of both Parties. In no event shall anarbitration be initiated after the date when commencement of a legal or equitable proceeding basedon the dispute, controversy or claim would be barred by the applicable statute of limitations.Notwithstanding anything to the contrary herein, either Party may seek from any court havingjurisdiction any injunctive or provisional relief necessary to protect the rights or property ofsuch Party.10.3. Patent Disputes. Notwithstanding anything to the contrary herein, any dispute,controversy or claim relating to the scope, validity, enforceability or infringement of any PatentRight shall be submitted to a court of competent jurisdiction in which such Patent Right wasgranted or arose.10.4. Governing Law and Jurisdiction. This Agreement and any dispute arising from theperformance or breach hereof shall be governed by, construed, and enforced in accordance with thelaws of the State of California without regard to conflict of laws provisions.11. Term and Termination.11.1. License Term. The “License Term” and the license grants set forth inthis Agreement shall take effect at the Agreement Date and shall continue until the expiration ofthe last to expire of the Licensed Patent Rights, including any extensions thereof.11.2. Material Breach by Cardica. If Cardica:(a) materially breaches this Agreement and such breach remains uncured for thirty (30) daysfollowing written notice of breach by Intuitive, or(b) is subject to a petition for relief under any bankruptcy legislation, or makes anassignment for the benefit of creditors, or is subject to the appointment of a receiver for all ora substantial part of Cardica’s assets, and such petition, assignment, or appointment preventsCardica (as a legal or as a practical matter) from performing its obligations under this Agreement,or such petition, assignment, or appointment is not otherwise dismissed or vacated within ninety(90) days, then, on each such occasion, subject to Section 11.4, Intuitive shall also have theright (i) to seek monetary damages for such material breach and/or equitable relief to prevent suchmaterial breach from continuing or occurring again in the future, and/or (ii) to terminate thisAgreement for cause.11.3. Material Breach by Intuitive. If Intuitive:(a) materially breaches this Agreement and such breach remains uncured for thirty (30) daysfollowing written notice of breach by Cardica, or
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.(b) is subject to a petition for relief under any bankruptcy legislation, or makes an assignmentfor the benefit of creditors, or is subject to the appointment of a receiver for all or asubstantial part of Intuitive’s assets, and such petition, assignment, or appointment preventsIntuitive (as a legal or as a practical matter) from performing its obligations under thisAgreement, or such petition, assignment, or appointment is not otherwise dismissed or vacatedwithin ninety (90) days, then on each such occasion, subject to Section 11.4, Cardica shall alsohave the right to (i) seek monetary damages for such material breach and/or equitable relief toprevent such material breach from continuing or occurring again in the future, and/or (ii)terminate this Agreement for cause.11.4. After Termination.(a) After termination of this Agreement for any reason: the licenses granted in Section 2shall continue despite termination, and Sections 5, 6, 7, 8, 9, 11, and 12 shall survive.(b) If the Agreement is terminated for cause under Section 11.2 (Material Breach by Cardica),Sections 3.2 and 4 shall terminate.(c) If the Agreement is terminated for cause under Section 11.3 (Material Breach byIntuitive), Sections 3.2 and 4 shall survive.11.5. Section 365(n). All rights and licenses granted under or pursuant to thisAgreement are, and shall otherwise be deemed to be, for purposes of Section 365(n) of Title 11,U.S. Code (the “Bankruptcy Code”), licenses of rights to “intellectual property” as definedin the Bankruptcy Code. The Parties agree that Intuitive (as licensee under Section 2.1) shallretain and may fully exercise all of their respective rights and elections under the BankruptcyCode. Each applicable licensor agrees during the License Term to create and maintain currentcopies or, if not amenable to copying, detailed descriptions or other appropriate embodiments, ofall such Intellectual Property. All rights, powers, and remedies of each licensee provided underthis Section 11.5 are in addition to and not in substitution for any and all other rights, powers,and remedies now or hereafter existing at law or in equity in the event of any such commencement ofa bankruptcy proceeding by or against the applicable licensor.12. General.12.1. Waivers and Amendments.(a) This Agreement may be amended, modified, or supplemented only by a written instrumentexecuted by the Parties to this Agreement.(b) No waiver of any provision of this Agreement, or consent to any departure from the termsof this Agreement, shall be effective unless the same shall be in writing and signed by the Partywaiving or consenting thereto. No failure on the part of any Party to exercise, and no delay inexercising, any right or remedy under this Agreement shall operate as a waiver thereof, nor shallany single or partial exercise of any such right or remedy by such Party preclude any other orfurther exercise thereof or the exercise of any other right or remedy. The waiver by any Party tothis Agreement of a breach of any provision of this Agreement shall not operate as a waiver of anysubsequent breach. All rights and remedies under this Agreement are cumulative and are in additionto, and not exclusive of, any other rights and remedies provided by law.
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.12.2. Entire Agreement. This Agreement constitute the entire agreement between the Partiesto this Agreement with respect to the subject matter of this Agreement and supersede all prioragreements and understandings, whether written or oral, between the Parties, or any of the Parties,in connection with such subject matter.12.3. Severability. If any provision of this Agreement is found invalid orunenforceable by an arbitrator or court of competent jurisdiction, such provision shall be enforcedto the maximum extent permissible by law and the other provisions of this Agreement shall remain infull force and effect.12.4. Relationship of the Parties. This Agreement shall not constitute either Partythe agent or legal representative of the other Party for any purpose whatsoever, and neither Partyshall hold itself out as an agent of the other Party. This Agreement creates no relationship ofjoint venturers, partners, associates, employment, or principal and agent between the Parties, andboth Parties are acting as independent contractors. Neither Cardica nor Intuitive is granted inthis Agreement any right or authority to, and shall not attempt to, assume or create any obligationor responsibility for or on behalf of the other. Neither Cardica nor Intuitive shall have anyauthority to bind the other to any contract, whether of employment or otherwise, and Cardica andIntuitive shall bear all of their respective expenses for their operations, including thecompensation of their employees and the maintenance of their offices and service facilities.Cardica and Intuitive shall each be solely responsible for their own employees and salespeople andfor their acts and the things done by them.12.5. No Election of Remedies. Except as otherwise specifically provided in thisAgreement, the rights and remedies accorded in this Agreement to Cardica and Intuitive arecumulative and in addition to those provided by law, and may be exercised separately, concurrently,or successively.12.6. Costs and Expenses. Except as expressly stated otherwise in this Agreement,each Party shall bear its own costs and expenses of performance of this Agreement.12.7. Force Majeure. No Party shall be liable for failure to perform any of itsobligations under this Agreement when such failure is due to fire, flood, strikes, labor troublesor other industrial disturbances, legal restriction, riot, insurrection, or any other cause beyondthe reasonable ability of the Party affected thereby to control, and without such Party’s fault ornegligence (“Force Majeure”), provided that any Party claiming the existence of ForceMajeure shall give notice to the other Party not more than seven (7) days after the commencement ofthe event of Force Majeure, and shall use prompt and diligent efforts to mitigate the effects ofForce Majeure. In the event that any event of Force Majeure prevents performance by a Party forsixty (60) days or more, the other Party may terminate this Agreement for cause upon written noticeto the non-performing Party.
 
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THECOMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.12.8. Notices. All notices, requests, demands, claims, and other communications under thisAgreement shall be in writing. Any notice, request, demand, claim or other communication under thisAgreement with respect to any alleged breach of this Agreement or the alleged termination of thisAgreement shall be deemed duly delivered (a) four (4) business days after it is sent by registeredor certified mail, return receipt requested, postage prepaid, or (b) one (1) business day after itis sent for next business day delivery via a reputable nationwide overnight courier service, ineach case addressed to the intended recipient as set forth below. Any other form of notice,request, demand, or other communication between the Parties shall be deemed duly delivered one (1)business day after it is sent (i) for next business day delivery via a reputable nationwideovernight courier service, (ii) via electronic facsimile transmission, with confirmation ofdelivery, or (iii) via electronic mail communications, with electronic verification of deliveryrequested, in each case addressed to the intended recipient as set forth below:   (a) if to Cardica, to:     Cardica, Inc.