Time-Sharing Agreement



 EXHIBIT 10.16 
  
 TIME-SHARING AGREEMENT 
  
 This Time-Sharing Agreement (the “Agreement”) is made and entered into effective as of September 1, 2005 (the “Effective Date”), by
and between JBS Consulting, LLC, a Delaware limited liability company (“Lessor”) and Foxhollow Technologies, Inc., a Delaware corporation (“Lessee”), and is made and entered into with reference to the following facts and
objectives: 
  
 RECITALS 
  
 A. WHEREAS, Lessor is the owner of that certain aircraft identified as a 2001
Dassault Falcon 900, Serial Number 189, U.S. Registration Number N144FH, with its Honeywell Model TFE-731-SER engines (Serial Numbers P-101388, P101387, and P-101386) and auxiliary power unit, avionics, equipment, components, accessories,
instruments and other items installed in or attached to the airframe, the engines or the auxiliary power unit, together with all spare parts, manuals and log books carried on board and including any replacement part(s) or engine(s) which may be
installed on the Aircraft from time to time, and all logs, manuals and other records relating to such Aircraft (collectively, the “Aircraft”); and 
  
 B. WHEREAS, Lessor has heretofore engaged a fully qualified flight crew to operate the Aircraft; and 
  
 C. WHEREAS, Lessee desires to lease said Aircraft and flight crew from Lessor
on a time-sharing basis, as defined in Section 91.501(c)(1) of the Federal Aviation Regulations (“FAR”). 
  
 NOW, THEREFORE, for and in consideration of the mutual promises, covenants and conditions herein set forth, Lessor and Lessee agree as follows:

  
 1. Lease of Aircraft; Term of Lease. Lessor
agrees to lease the Aircraft to Lessee pursuant to the provisions of FAR 91.501(c)(1) and to provide a fully qualified flight crew for all operations for the period commencing on the Effective Date of this Agreement and terminating on the date that
is thirty (30) days subsequent to date on which either party hereto gives the other written notice of its election to terminate the Agreement. 
  
 2. Lessee’s Payment Obligations. Lessee shall pay Lessor for each flight conducted under this Agreement the aggregate incremental cost
of each specific flight. Such cost shall in no event exceed the sum of the following expenses authorized by FAR Part 91.501(d); 
  

	 	A.	Fuel, oil, lubricants, and other additives; 

  

	 	B.	Travel expenses of the crew, including food, lodging and ground transportation; 

  

	 	C.	Hangar and tie down costs away from the Aircraft’s base of operation; 

  

	 	D.	Insurance obtained for the specific flight; 

  

	 	E.	Landing fees, airport taxes and similar assessments including, but not limited to IRC Section 4261 and related excise taxes; 









	 	F.	Customs, foreign permit, and similar fees directly related to the flight; 

  

	 	G.	In-flight food and beverages; 

  

	 	H.	Passenger ground transportation; 

  

	 	I.	Flight planning and weather contract services; and 

  

	 	J.	An additional charge equal to 100% of the expenses listed in subparagraph (A) of this paragraph. 

  
 3. Invoicing for Flights. Lessor will pay all expenses related to the operation of the Aircraft when incurred,
and will provide, or contract with third parties to provide, an invoice to Lessee for the incremental cost of each specific flight on the last day of the month in which any flight or flights for the account of Lessee occur. Lessee shall pay Lessor
for said expenses within 30 days of receipt of the invoice therefor. 
  
 4. Request for Flights by Lessee. Lessee will provide Lessor with requests for flight time and proposed flight schedules as far in advance of any given flight as possible. Requests for flight time shall be in a form, whether
written or oral, mutually convenient to, and agreed upon by the parties. In addition to the proposed schedules and flight times, Lessee shall provide at least the following information for each proposed flight at some time prior to the scheduled
departure time, as required by the Lessor or Lessor’s flight crew: 
  

	 	A.	proposed departure point; 

  

	 	B.	destination; 

  

	 	C.	date and time of flight; 

  

	 	D.	the number of anticipated passengers; 

  

	 	E.	the nature and extent of luggage and/or cargo to be carried; 

  

	 	F.	the date and time of return flight, if any; and 

  

	 	G.	any other information concerning the proposed flight that may be pertinent or required by Lessor or Lessor’s flight crew. 

  
 5. Scheduling Flights. Lessor shall have final authority over
the scheduling of the Aircraft, provided, however, that Lessor will use its best efforts to accommodate Lessee’s needs and to avoid conflicts in scheduling. 
  
 6. Maintenance of Aircraft. Lessor shall be solely responsible for performing or arranging for the performance
of all scheduled and unscheduled maintenance or preventive maintenance and shall cause to be performed all required or necessary inspections on the Aircraft, and shall take all such requirements into account in scheduling the Aircraft. No period of
maintenance, preventative maintenance or inspection shall be delayed or postponed for the purpose of scheduling the Aircraft, unless said maintenance or inspection can be safely conducted at a later time in compliance with all applicable laws and
regulations, and within the sound discretion of the pilot in command. The pilot in command shall have final and complete authority to cancel any flight for any reason or condition which in his or her judgment would compromise the safety of the
flight. 
  

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 7. Flight Crew. Lessor shall employ or contract with others to employ, pay for and provide
to Lessee, a qualified flight crew for each flight undertaken under this Agreement. 
  
 8. Safety of Flights. In accordance with applicable FAR, the qualified flight crew provided by Lessor will exercise all of its duties and responsibilities in regard to the safety of each flight conducted
hereunder. Lessee specifically agrees that the flight crew, in its sole discretion, may terminate any flight, refuse to commence any flight, or take other action which in the considered judgment of the pilot in command is necessitated by
considerations of safety. No such action of the pilot in command shall create or support any liability for loss, injury, damage or delay to Lessee or any other person. The parties further agree that Lessor shall not be liable for delay or failure to
furnish the Aircraft and crew pursuant to this Agreement when such failure is caused by government regulation or authority, mechanical difficulty, war, civil commotion, strikes or labor disputes, weather conditions, or acts of God. 
  
 9. Additional Insurance. Lessor will provide such additional
insurance coverage as Lessee shall request or require, provided, however, that the cost of such additional insurance, if any, shall be borne by Lessee as set forth in paragraph 2(d) hereof. 
  
 10. Representations of Lessee. Lessee warrants that during the
term of this Agreement: 
  
 A. It shall use the Aircraft for and
on account of his own business only, and will not use the Aircraft for the purpose of providing transportation of passengers or cargo in air commerce for compensation or hire; 
  
 B. It shall refrain from incurring any mechanics or other lien in connection with inspection, preventative maintenance,
maintenance or storage of the Aircraft, whether permissible or impermissible under this Agreement, nor shall there be any attempt by any party hereto to convey, mortgage, assign, lease or any way alienate the Aircraft or create any kind of lien or
security interest involving the Aircraft or do anything or take any action that might mature into such a lien; 
  
 C. It shall abide by and conform to all such laws, governmental and airport orders, rules and regulations, as shall from time to time be in effect
relating in any way to the operation and use of the Aircraft by a time-sharing Lessee; 
  
 D. It shall not violate, and shall not permit any of his employees, agents, or guests to violate, any applicable law, regulation or rule of the United States, and state, territory of local authority, or any foreign
government or subdivision thereof, and shall not bring or cause to be brought or carried on board the Aircraft, or permit any employee, agent or guest to bring or cause to be brought or carried on board the Aircraft, any contraband or unlawful
articles or substance in any jurisdiction into or over which the Aircraft is to operate on its behalf. 
  
 E. It shall, and it shall cause its employees, agents and guests to, comply with all lawful instructions and procedures of Lessor and its agents and
employees regarding the Aircraft, its operation or flight safety. 
  
 F. That its discretion in determining the origin and destination of flights under this Agreement shall at all times be subject to the following: 
  

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 (i) such origin and destination, and the routes to reach such origin and destination,
are not within or over (a) an area of hostilities, (b) an area excluded from coverage under the insurance policies maintained by Lessor with respect to the Aircraft, or (c) a country or jurisdiction for which exports or transactions
are subject to specific restrictions under any United States export or other law or United Nations Security Council Directive, including without limitation, the Trading With the Enemy Act, 50 U.S.C. App. Section 1 et seq. and International
Emergency Economic Powers Act, 50 U.S.C. App. Sections 1700 et seq. and the Export Administration Act, 50 U.S.C. Sections 2401 et. seq.; 
  
 (ii) any flights proposed or conducted by it shall not cause (a) the Aircraft or any part thereof to be used predominately outside
the United States within the meaning of the Section 168(g)(1)(A) of the Internal Revenue Code of 1986, as amended (the “Code”), and/or fail to be operated to and from the United States within the meaning of Section 168(g)(4)(A)
of the Code; or (b) any item of income, gain, deduction, loss or credit with respect to the transactions contemplated by this Agreement to be treated as derived from, or allocable to, sources without the United States within the meaning of
Section 862 of the Code; 
  
 (iii) any
proposed flight shall not require the flight crew to exceed any flight or duty time limitations that Lessor imposes on its flight crews; and 
  
 (iv) the safety of flight shall not be jeopardized. 
  
 11. Aircraft Base. For purposes of this Agreement, the current base of operation of the Aircraft shall be San
Jose, California, or such other locations as are acceptable to the parties hereto from time to time. 
  
 12. No Assignment. Neither this Agreement nor any party’s interest herein shall be assignable to any other party whatsoever. This
Agreement shall inure to the benefit of and be binding upon the parties hereto, their heirs, representatives and successors. 
  
 13. TRUTH IN LEASING STATEMENT 
  
 LESSEE HAS REVIEWED THE AIRCRAFT’S MAINTANANCE RECORDS AND OPERATION LOGS AND HAS FOUND THAT DURING THE PERIOD BETWEEN MANUFACTURE OF THE AIRCRAFT
AND THE DATE OF THIS LEASE, THE AIRCRAFT, A DASSAULT FALCON 900, MANUFACTURER’S SERIAL NO. 189, CURRENTLY REGISTERED WITH THE FEDERAL AVIATION ADMINISTRATION AS N144FH, HAS BEEN MAINTAINED AND INSPECTED UNDER FAR PART 91. 
  
 THE AIRCRAFT WILL BE MAINTAINED AND INSPECTED UNDER FAR PART 91 FOR
OPERATIONS TO BE CONDUCTED UNDER THIS LEASE. DURING THE DURATION OF THIS LEASE, JBS CONSULTING, LLC, [ADDRESS OMITTED] IS CONSIDERED RESPONSIBLE FOR OPERATIONAL CONTROL OF THE AIRCRAFT UNDER THIS LEASE. 
  
 AN EXPLANATION OF FACTORS BEARING ON OPERATIONAL CONTROL AND PERTINENT
FEDERAL AVIATION REGULATIONS CAN BE OBTAINED FROM THE NEAREST FAA FLIGHT STANDARDS DISTRICT OFFICE. 
  

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 THE “INSTRUCTIONS FOR COMPLIANCE WITH TRUTH IN LEASING REQUIREMENTS” ATTACHED HERETO ARE
INCORPORATED HEREIN BY REFERENCE. 
  
 I, THE UNDERSIGNED, JOHN B.
SIMPSON, AS MANAGER OF JBS CONSULTING, LLC, [ADDRESS OMITTED] CERTIFIES THAT IT IS RESPONSIBLE FOR OPERATIONAL CONTROL OF THE AIRCRAFT AND THAT IT UNDERSTANDS ITS RESPONSIBILITIES FOR COMPLIANCE WITH APPLICABLE FEDERAL AVIATION REGULATIONS.

  
 IN WITNESS WHEREOF, the parties have executed this Agreement.

  
 LESSOR: 
  
 JBS CONSULTING, LLC 
 a Delaware limited liability company, 
  

							
	 By:
	 	/s/    John B. Simpson	    	 	 	 March 6, 2006                    4:20
pm

	 	 	
	    	 	 	

	 	 	        John B. Simpson	    	 	 	Date and Time of Execution
	 	 	        Manager	    	 	 	 

  
 LESSEE: 
  
 FOXHOLLOW TECHNOLOGIES,
INC., 
  

							
	 By:
	 	/s/    Matthew B. Ferguson	    	 	 	 March 6, 2006                    4:20
pm

	 	 	
	    	 	 	

	 	 	Its Chief Financial Officer	    	 	 	Date and Time of Execution

  

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 INSTRUCTIONS FOR COMPLIANCE WITH “TRUTH IN LEASING” 
 REQUIREMENTS 
  
 1. Mail a copy of the lease to the following address via certified mail, return receipt requested, immediately upon execution of the lease (14 C.F.R.
91.23 requires that the copy be sent within twenty-four hours after it is signed): 
  
 Federal Aviation Administration 
 Aircraft Registration Branch 
 ATTN: Technical Section 
 P. O. Box 25724

 Oklahoma City, Oklahoma 73125 
  
 2. Telephone the nearest Flight Standards District Office at least forty-eight hours prior to the first flight under this lease. 
  
 3. Carry a copy of the lease in the aircraft at all times. 
  

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