SECOND AMENDMENT TO LICENSE, DEVELOPMENT AND COMMERCIALIZATION AGREEMENT
Exhibit 10.23
SECOND AMENDMENT TO
LICENSE, DEVELOPMENT AND COMMERCIALIZATION AGREEMENT
LICENSE, DEVELOPMENT AND COMMERCIALIZATION AGREEMENT
THIS SECOND AMENDMENT (“Second Amendment”) to the License, Development and Commercialization
Agreement dated 12th of June, 2007 (“Agreement”) by and between Xxxx Incorporated and
its Affiliates (“Xxxx”), and Cardica, Inc., and its Affiliates (“Cardica”) is made by and
between the same two parties on this 19th 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 Xxxx’x option at any other time, Xxxx 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 Xxxx with the consent of Cardica, which consent shall not
be unreasonably withheld, conditioned or delayed.
A. | Testing and Development. Cardica will continue to supply to Xxxx, upon Xxxx’x 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 Xxxx may reasonably request for the further testing and development of the Product. | ||
B. | Commercialization. Upon Xxxx’x request, to enable Xxxx or a third party designated by Xxxx to manufacture such Product, or at Xxxx’x 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 Xxxx 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 information included therein, related to the Products that is reasonably necessary for Xxxx or a third party to manufacture such Product (“Transferred Product”). Upon request from Xxxx at any time, Cardica will provide, at no additional cost, reasonable technical assistance to Xxxx for the Transferred Product based on the mutual availability of the parties, which assistance may include at Xxxx’x request: i) training of Xxxx personnel or personnel of the designated third party in connection with the manufacture of Transferred Product, ii) advice concerning the manufacture of Transferred Product, and iii) testing of sample Transferred Product to verify that such Transferred Product complies with applicable specifications established by the Development Committee or, at Xxxx’x option, specifications established by Xxxx to confirm successful transfer of technology to Xxxx or the designated third party hereunder. Additionally, on Xxxx’x request, the parties will negotiate the terms under which Cardica may provide engineering services to assist Xxxx or the designated third party in the design and modification of Transferred Product to meet customer and regulatory requirements. Cardica agrees not to xxx Xxxx, any of Xxxx’x customers, or any third party acting on Xxxx’x behalf under any intellectual property right of Cardica in connection with Xxxx’x use of information provided by Cardica under this Section 7.1.” |
3.0 Add the following paragraph (E) to Section 8.3 Rights upon Termination by Xxxx for
Convenience or Termination by Cardica for Material Breach by Xxxx as follows:
“(E) The parties agree that the Phase payments, as defined in Section 5.2, made
on or before the Second Amendment Effective Date shall be nonrefundable and Xxxx
shall have no right to reimbursement or recovery of those payments except
pursuant to Termination by Xxxx for Material Breach of Cardica as further defined
in Section 8.4.”
All other terms and conditions of the Agreement remain the same.
4.0 The Agreement as modified by the Amendment made by and between the same two parties on
August 22, 2007 and by this Second Amendment (collectively “Amended Agreement’) embodies
the entire understanding of the Parties concerning the subject matter of the Amended
Agreement and supersedes all prior and collateral discussions and writings between the
Parties concerning its subject matter. There are no other conditions with respect to the
confidentiality of technical information exchanged during the term of the Amended
Agreement other than those expressly provided therein. No amendment or modification of the
understanding embodied in this Amended Agreement will be effective unless made in writing
and signed by a duly authorized representative of the Party against which the amendment or
modification is sought to be enforced.
Each of the parties has caused this Second Amendment to be executed below by its duly
authorized representative to be effective as of the Second Amendment Effective Date.
XXXX INCORPORATED | CARDICA, INC. | |||||||||||||
By: | /s/ Xxxxx Xxxxx | By: | /s/ R X. Xxxxxx | |||||||||||
Name: | Xxxxx Xxxxx | Name: | R X. Xxxxxx | |||||||||||
Title: | Sr. V.P. Business Development | Title: | CFO | |||||||||||
Date: | 6/29/09 | Date: | 6/29/09 |