[***] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
THIS AMENDED AND RESTATED AGREEMENT (hereinafter, the Agreement) is effective as of the 31st day of July, 2017, between the CALIFORNIA INSTITUTE OF TECHNOLOGY (Caltech), a not-for-profit corporation duly organized and existing under the laws of the State of California with an address at 1200 East California Boulevard, MC 6-32, Pasadena, California 91125 and Avedro, Inc. (Licensee), a corporation having a place of business at 230 Third Avenue, Waltham, Massachusetts 02451 (each a Party and together the Parties).
WHEREAS, Licensee obtained an exclusive license to certain Exclusively Licensed Patent Rights, as further defined below, when the Parties executed the original version of this Agreement (hereinafter, the Prior Agreement);
WHEREAS, said Exclusively Licensed Patent Rights are jointly owned by Caltech and The Regents of the University of California (The Regents);
WHEREAS, Caltech and The Regents have entered into an inter-institutional agreement (IIA) effective December 11, 2009, under which Caltech and The Regents agree that Caltech shall administer and commercialize the Exclusively Licensed Patent Rights, and The Regents agree to not grant to any person (other than Caltech) any right, title, or interest in and to said Exclusively Licensed Patent Rights;
WHEREAS, for clarity, the Parties wish to amend and restate the Prior Agreement as detailed herein;
NOW, THEREFORE, the Parties agree as follows:
1.1 Affiliate means any corporation, limited liability company, or other legal entity which directly or indirectly controls, is controlled by, or is under common control with Licensee as of the Effective Date of this Agreement. For the purpose of this Agreement, control shall mean the direct or indirect ownership of greater than fifty percent (>50%) of the outstanding shares on a fully diluted basis or other voting rights of the subject entity to elect directors, or if not meeting the preceding, any entity owned or controlled by or owning or controlling at the maximum control or ownership right permitted in the country where such entity exists. In addition, a partys status as an Affiliate of Licensee shall terminate if and when such control ceases to exist.