EXHIBIT 10.2
AMENDMENT No. 6
to the
Intuitive-Luna Development and Supply Agreement dated June 11, 2007 (“Original Agreement”)
between
INTUITIVE SURGICAL, INC.
and
LUNA INNOVATIONS INCORPORATED (“Luna”)
This Amendment No. 6 is entered into by and between Intuitive Surgical Operations, Inc., a successor in interest to Intuitive Surgical, Inc. by assignment with respect to the Agreement, (“Intuitive”) and Luna on December 15, 2012 (“Amendment Date”).
BACKGROUND
| | A. | Intuitive Surgical, Inc. and Luna agreed to amend the Original Agreement by Amendment No. X dated May 20, 2008 to replace Exhibit 2.1 of the Original Agreement. |
| | B. | As part of settlement of certain litigation between Luna and Hansen Medical, Inc., Intuitive and Luna agreed to amend the Agreement by Amendment dated January 12, 2010 (“Amendment No. 1”). |
| | C. | Intuitive and Luna again agreed to amend the Agreement by Amendment No. 2 dated April 20, 2010, in regard to development work to be performed in 2010. |
| | D. | Intuitive and Luna agreed to further amend the Agreement by Amendment No. 3 dated September 2, 2010, in regard to development work to be performed in 2010. |
| | E. | Intuitive and Luna further agreed to amend the Agreement by Amendment No. 4 dated March 8, 2011, in regard to development work to be performed in 2011. |
| | F. | Intuitive and Luna further agreed to amend the Agreement by Amendment No. 5 dated March 19, 2012, in regard to development work to be performed in 2012. |
| | G. | The Original Agreement as amended by Amendments No. X, 1, 2, 3, 4, and 5 shall be referred to as the “Agreement”. |
| | H. | The parties now wish to amend the Agreement further with respect to the payment schedule, the Specifications for the [***], and [***] Milestones and how to measure the achievement of those Milestones. |
Intuitive and Luna agree to amend the Agreement as follows:
| | 1. | Terms not defined in this Amendment No. 6 shall have the meaning assigned to them in the Agreement. |
| | 2. | Notwithstanding any provision in Amendment No. 5 to the contrary, the payments and Specifications for the [***] Milestones for the Milestones are hereby revised as follows: |
| | • | | Intuitive and Luna hereby agree to revise and provide a more detailed Specifications for [***] Milestones. Such revised and more detailed Specifications for the [***] Milestones are attached hereto as Exhibit 2.1. The |
Confidential and Proprietary
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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| | payment for the revised [***] Milestone is hereby [***] to [***] because [***] in this Amendment No. 6 while the payments for the [***] Milestones remain at [***] each. Accordingly, the total revised aggregate payment for the [***] Milestones is [***]. Upon the full execution of this Amendment by Intuitive and Luna, Intuitive will pay the sum of [***] to Luna by or before [***], representing payment for work so far done on the [***] Milestones. |
| | • | | The remaining payments for the [***] Milestones, a total of [***], will be due and payable by Intuitive to Luna upon the achievement of the [***] Milestones by Luna. Luna and Intuitive have agreed that these [***] Milestones shall be deemed to be achieved upon completion and delivery of the Tasks set forth on Schedule 1 hereto. |
| | 3. | Intuitive and Luna will use reasonable and good faith efforts to meet in person prior to [***], to discuss any Development Work anticipated for 2013 and the budget for same. |
| | 4. | Except as specifically provided for herein, all of the terms and conditions of the Agreement shall remain in full force and effect. In the event of a conflict or inconsistency between the terms and conditions contained in this Amendment No. 6 and the Agreement, the provisions herein shall prevail. |
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of the Amendment Date.
| | | | | | | | |
| INTUITIVE SURGICAL OPERATIONS, INC. | | | | LUNA INNOVATIONS INCORPORATED |
| | | | |
| Sign: | | /s/ David Larkin | | | | Sign: | | /s/ Scott A. Graeff |
| Name: | | David Larkin | | | | Name: | | Scott A. Graeff |
| Title: | | V.P. Engineering | | | | Title: | | Chief Strategy Officer |
| Date: | | 12/20/2012 | | | | Date: | | 12/23/2012 |
Confidential and Proprietary
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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EXHIBIT 2.1 for Amendment No. 6
MILESTONES AND LUNA PRODUCT SPECIFICATIONS
[***]
Confidential and Proprietary
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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SCHEDULE 1
[***]
Confidential and Proprietary
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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