SECOND AMENDMENT TO
LICENSE, DEVELOPMENT AND COMMERCIALIZATION AGREEMENT
THIS SECOND
AMENDMENT (“ Second Amendment ”) to the
License, Development and Commercialization Agreement dated
12 th
of June, 2007 (“
Agreement ”) by and between Cook Incorporated
and its Affiliates (“ Cook ”), and
Cardica, Inc., and its Affiliates (“ Cardica
”) is made by and between the same two parties on this
19 th
day of June, 2009 (“
Second Amendment Effective Date ”). The parties
agree as follows:
1.0 All
capitalized terms used in this Second Amendment, but not defined
herein, shall have the meanings ascribed to them in the
Agreement.
2.0 Delete
Section 7.1 and replace it with the following
paragraphs:
“ 7.1
Technology Transfer. Upon determination by the Development
Committee that a Product is ready for commercialization, or at
Cook’s option at any other time, Cook will have the option
but not the obligation to manufacture such Product, or to have such
Product manufactured by Cardica or a third party designated by Cook
with the consent of Cardica, which consent shall not be
unreasonably withheld, conditioned or delayed.
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A.
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Testing and Development.
Cardica will continue to
supply to Cook, upon Cook’s request and at a cost of $250.00
per unit, such additional units of the Product over the number of
units described in Phase 4 of the Development Plan as Cook may
reasonably request for the further testing and development of the
Product.
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B.
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Commercialization.
Upon Cook’s
request, to enable Cook or a third party designated by Cook to
manufacture such Product, or at Cook’s option at any other
time with respect to any Product, whether or not such Product is
ready for commercialization or the stage of its development,
Cardica will transfer to Cook or the designated third party, at no
additional cost, all equipment, including all pre-production
tooling, and Cardica Know-How, including but not limited to, all
trade secret, manufacturing and supplier informati
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