Commercialization Agreement, dated July 25, 2023, by and between DexCom, Inc. and the Registrant

DEFINITIONS

“Affiliate” means, with respect to a Party, any corporation or other entity that is directly or indirectly controlling, controlled by or under common control with such Party. For the purposes of this definition, “control” means the direct or indirect ownership of more than fifty percent (50%) of the capital stock of the subject entity entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, interests entitled to vote in the election of the corresponding managing authority).

“Aggregate Data” means information that is collected from individuals and compiled into data summaries as a result of statistical analysis.

“Agreed Market” means each country or jurisdiction in which the Parties have mutually agreed to commercialize the Combined Platform, as listed on Schedule 1.3, as may be amended from time to time in accordance with Section 17.11.

“Anonymized Data” means information which does not relate to an identified or identifiable natural person and/or Personal Data rendered anonymous in such a manner that it cannot be re-associated with the underlying Personal Data or used to re-identify an individual. Anonymized Data also includes Aggregate Data where aggregation of the individual values into summary data no longer contains details related to a specific individual.

“Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act, the United States Anti-Kickback Statute, the United Kingdom Bribery Act, and any other laws of a similar nature for the prevention of inter alia, fraud, corruption, racketeering, money laundering and terrorism, in each case as they may be amended from time to time.

“Applicable Law(s)” means all applicable laws, rules and regulations, including any rules, regulations, guidance or other requirements of any Regulatory Authority, that may be in effect from time to time and are applicable to a particular activity hereunder, including, in each case, to the extent applicable, (i) regulations and guidance documents of the FDA and, if and as appropriate under the circumstances, International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use (“ICH”) guidance or other comparable regulation and guidance of any applicable Regulatory Authority in the Agreed Markets, (ii) Anti-Corruption Laws, (iii) Privacy Laws, (iv) Transparency Laws, (v) cGCP, (vi) cGDP, and (vii) cGMP.

“Beta Bionics Confidential Information” means Confidential Information of Beta Bionics. The Beta Bionics Confidential Information includes the Beta Bionics [***] Data.

“Beta Bionics [***] Data” means [***]. For clarity, the Beta Bionics [***] Data shall not include any DexCom [***] Data.

“Beta Bionics Trademarks” shall mean [***] and such other Beta Bionics trademarks as Beta Bionics may designate in writing to DexCom from time to time.

“cGCP” means all applicable current Good Clinical Practice standards for the design, conduct, performance, monitoring, auditing, recording, analyses and reporting of Clinical Studies, including, as applicable, (i) as set forth in the ICH Harmonised Tripartite Guideline for Good Clinical Practice (CPMP/ICH/135/95) and any other guidelines for good clinical practice for trials on medicinal products in the Agreed Markets, (ii) the Declaration of Helsinki (2004) as last amended at the 52^nd World Medical Association in October 2000 and any further amendments or clarifications thereto, (iii) U.S. Code of Federal Regulations Title 21, Parts 50 (Protection of Human Subjects), 56 (Institutional Review Boards) and 312 (Investigational New Drug Application), as may be amended from time to time, and (iv) the equivalent applicable laws in any relevant country, each as may be amended and applicable from time to time and in each case, that provide for, among other things, assurance that the clinical data and reported results are credible and accurate and protect the rights, integrity, and confidentiality of trial subjects.

“cGDP” means the then current standards for all good distribution practices relevant to any product hereunder, including, as applicable, (i) the principles detailed in the U.S. Current Good Manufacturing Practices, 21 C.F.R. Sections 210, 211, (ii) European Directive 2013/C 68/01 and Eudralex 4, (iii) WHO TRS 957 Annex 5, (iv) USP <1079>, (v) any state or other local laws or regulations governing the licensing of distributors or manufacturers of pharmaceutical products or medical devices, and (vi) the equivalent applicable laws in any relevant country, each as may be amended and applicable from time to time.

“CGM” means continuous glucose monitoring.

“[***] Data” means [***].

“cGMP” means the then-current Good Manufacturing Practices that apply to the manufacture (including clinical or commercial supply) of any product hereunder, including, as applicable, (i) the United States regulations set forth under Title 21 of the United States Code of Federal Regulations, parts 4, 210, 211 and 820, (ii) applicable guidance published from time-to-time by the FDA, (iii) the International Conference on Harmonisation Guidelines ICH Q7A Good Manufacturing Practice Guidance for the principles, guidelines of Good Manufacturing Practices for Medicinal Products as defined with EC Directive 2003/94/EC and associated EC Guide to Good Manufacturing Practice, and (iv) the equivalent applicable laws in any relevant country, each as may be amended and applicable from time to time.

“Change of Control” means with respect to a Party:

that a majority of the outstanding voting securities of such Party become beneficially owned directly or indirectly by any Third Party (or group of Third Parties acting in concert) that did not own a majority of the voting securities of such Party as of the Effective Date;

possession of the power to direct or cause the direction of the management and policies of such Party, whether through ownership of the outstanding voting securities, by contract or otherwise, becomes vested in one or more individuals or entities that did not possess such power as of the Effective Date;

that such Party consolidates with or merges into another corporation or entity, or any corporation or entity consolidates with or merges into such Party, in either event pursuant to a transaction in which more than fifty percent (50%) of the total voting power of the securities outstanding of the surviving entity normally entitled to vote in elections of directors is not held by the individuals or entities holding at least fifty percent (50%) of the outstanding securities of such entity preceding such consolidation or merger; or

that such Party conveys or transfers all or substantially all of its assets or the assets to which the subject matter of this Agreement relates to any Third Party.

“Clinical Study” means any pre or post approval clinical study involving the administration of and/or use of a Combined Platform with a human subject, whether conducted before or after Regulatory Approval of a Combined Platform, including clinical studies to support such Regulatory Approval process or as otherwise required by a Regulatory Authority.

“Combined Platform” means the adapted technology solution referred to as the iLetTM bionic pancreas system [***]. The initial architecture of the Combined Platform is shown in Exhibit A hereto.

“Commercially Reasonable Efforts” means [***].

“Commercialization Costs” means all costs and expenses of any kind, incurred by or on behalf of, a Party in performing its obligations under the Commercialization Plan or that are otherwise directly attributable to such Party with respect to commercializing the Combined Platform pursuant to and in accordance with the terms and conditions of this Agreement.

“Committee” means the Joint Steering Committee, Commercial Working Team, Development Working Team and each other Subcommittee (if any), as applicable.

“Co-Promotion Material” means all advertising, promotional and communication materials, in whatever form or medium, for marketing, advertising and/or promotion of the Combined Platform in the Agreed Markets for distribution to (i) a Third Party (including potential Customers) and/or (ii) a Party’s Sales Team.

“Copyrights” means works of authorship and copyrightable subject matter.

“Customer” means an individual end-user of the Combined Platform, DexCom System or Beta Bionics System, as applicable.

“Data” means the Beta Bionics [***] Data and/or the DexCom [***] Data (including any Personal Data), as applicable.

“Development Plan” means the written plan setting forth the activities and related obligations to be performed by the Parties with respect to the development and validation of the Combined Platform, as such plan may be updated from time to time by the Development Working Team as set forth below, [***].

“DexCom [***] Data” means all [***]. For clarity, the DexCom [***] Data shall not include the Beta Bionics [***] Data.

“DexCom Confidential Information” means the Confidential Information of DexCom. [***].

“DexCom System” means DexCom’s sixth-generation continuous glucose monitoring system (DexCom’s G6^® CGM device) and/or its next subsequent generation continuous glucose monitoring system, intended for use with automated insulin delivery (e.g., a DexCom G7^® CGM device that is intended for use with automated insulin delivery), if so agreed to in writing by DexCom in its sole and absolute discretion.

“DexCom Trademarks” are set forth in Schedule 1.29 and shall include such other DexCom trademarks or logos as DexCom may designate in writing to Beta Bionics from time to time.

“Direct Competitor” means (i) with respect to Dexcom [***] and (ii) with respect to Beta Bionics [***].

“First Commercial Launch” means, with respect to an Agreed Market, the first date that the Combined Platform is made available to a potential Customer for purchase in such Agreed Market following Regulatory Approval in such Agreed Market.

“Ineligible Person” shall mean any individual or entity who: (a) is currently excluded, debarred or otherwise ineligible to participate in the federal health care programs or in federal procurement or non-procurement programs; or (b) has been convicted of a criminal offense related to the provision of health care items or services, but has not yet been excluded, debarred or otherwise declared ineligible.

“[***] Data” means all [***] data, [***].

“Insulin Delivery Device” means a connected or non-connected insulin pump or any other insulin delivery device, and may include a DexCom CGM-Enabled Beta Bionics Device.

“Intellectual Property Rights” means, collectively: copyright rights (including the exclusive rights to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including trade names, trademarks, service marks, and trade dress and associated goodwill), patent rights (including the exclusive right to make, use, sell, offer for sale and import), rights in trade secrets, rights of publicity, authors’ rights, database rights, and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, including supplemental protection certificates, regardless of whether such rights arise under the laws of the United States or any other state, country or jurisdiction worldwide.

“Major Release” means a new version of a product that adds material features and functionality [***], and designated by the provider as a replacement for a prior version, as opposed to inter-generational releases adding functionality [***] (“Minor Release”).

“Personal Data” has the meaning assigned to the terms “personal information,” “personal data,” and/or “protected health information” under Privacy Laws and shall, at a minimum, include any information which relates to an identified or identifiable natural person.

“Pricing Approval” means, with [***], the approval, agreement, determination or decision by [***] Regulatory Authority(ies) establishing the pricing [***].

“Privacy Laws” means all applicable foreign, federal, state, and local laws governing the receipt, collection, compilation, use, storage, processing, sharing, safeguarding, security, disclosure or transfer of Personal Data and other health information (including electronic transaction sets, medical code sets, provider identifier, employer identifier, and patient identifier), as amended from time to time, including, in each case, to the extent applicable, (i) the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104191 (HIPAA), as amended by the Health Information Technology for Economic and Clinical Health Act, Title XIII of the American Recovery and Reinvestment Act of 2009, (ii) the EU General Data Protection Regulation 2016/679 (GDPR), (iii) California Consumer Privacy Act, and (iv) the CAN-SPAM Act, Canada’s Anti-Spam Legislation and other laws governing telemarketing, including any such laws or regulations prohibiting unsolicited telephone calls to persons or entities listed on “Do Not Call” registries or similar lists or prohibiting unsolicited e-mails, spam or faxes to any person.

“Product Claims” means assertions relating to the features and/or benefits of the Combined Platform excluding any assertions solely relating to the features and/or benefits of the DexCom System or Beta Bionics System alone.

“Pseudonymized Data” means a category of Personal Data that has been processed in such a manner that the Personal Data can no longer be attributed to a specific living natural person without the use of additional information (an identifier key), provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the Personal Data is not attributed to an identified or identifiable living natural person

“Quality Agreement” means the quality agreement between DexCom and Beta Bionics dated as of April 26, 2023, as amended from time to time.

“Regulatory Approval” means, with respect to a country, any and all classifications, clearances, approvals, licenses, registrations or authorizations of any Regulatory Authority (including any required approvals for reimbursement) necessary to commercially distribute, sell or market a product in such country, including, as may be applicable, a premarket notification (510(k)) or a de novo application in the United States or analogous clearance or approval in other jurisdictions, including a CE marking approval in the EU; [***].

“Regulatory Authority” means the FDA or any supranational, national or local agency, authority, department, inspectorate, ministry official, parliament or public or statutory person of any government of any country having jurisdiction over any of the activities contemplated by this Agreement or the Parties, including any national supervisory authority with jurisdiction under the Privacy Laws, or any successor bodies thereto.

“Regulatory Documentation” means any and all (a) applications, registrations, licenses, authorizations and approvals (including Regulatory Approvals); and (b) correspondence, reports and other submissions submitted to or received from Regulatory Authorities and all supporting documents with respect thereto, including all adverse event files and complaint files.

“Representatives” means the employees, officers, directors, consultants and legal, technical and business advisors of a Party and its Affiliates.

“Sales Team” means, with respect to each Party, all of the Party’s employees or agents involved in the promotion and sale of the Combined Platform, including any field based commercial representatives.

“System” means (i) with respect to DexCom, the DexCom System as used in the Combined Platform, and (ii) with respect to Beta Bionics, the Beta Bionics System as used in the Combined Platform.

“Third Party” means any entity or person other than DexCom or Beta Bionics or their respective Affiliates.

“Transaction Agreement” means this Agreement, the Development Agreement and the Quality Agreement.

Additional Definitions. Each of the following terms has the meaning described in the corresponding section of this Agreement indicated below:

COMMERCIALIZATION, GOVERNANCE, PARTY RESPONSIBILITIES

Commercialization Generally.

Exclusivity. [***].

Alliance Managers. Each of Beta Bionics and DexCom shall appoint one (1) Representative who possesses a general understanding of development and commercialization issues to act as its alliance manager (each, an “Alliance Manager”). Each of Beta Bionics and DexCom may change its designated Alliance Manager from time to time upon written notice to the other Party. Any Alliance Manager may designate another Representative of its Party as a substitute to temporarily perform the functions of that Alliance Manager upon written notice to the other Party’s Alliance Manager. The Alliance Managers shall attend all Committee meetings as non-voting participants and support the Committee members in the discharge of their responsibilities.

Commercial Working Team.

Development Working Team.

Joint Steering Committee.

Committee Meetings; Information Sharing; Costs.

Decision-Making; Escalation.

Governance Limitations. Each Committee has only the powers specifically delegated to it by this Agreement and has no authority to act on behalf of any Party in connection with any Third Party. Without limiting the foregoing, and notwithstanding anything in this Agreement to the contrary, no Committee has any authority to, and shall not purport to or attempt to:

Responsibilities. Subject to the terms and conditions of this Agreement, the Commercialization Plan and Development Agreement, or unless agreed by the Parties, each Party shall [***].

INTELLECTUAL PROPERTY OWNERSHIP AND LICENSES

Intellectual Property Ownership. The Parties intend that all development activities related to the Combined Platform, including any Clinical Study or any continuous technology upgrades to the Combined Platform and integration and testing of Major Releases and Minor Releases of a Party’s System with the Combined Platform, will be conducted under the Development Agreement and subject to the terms and conditions set forth therein. For clarity, the ownership and rights of each Party with respect to Intellectual Property Rights arising from the continued development of the Combined Platform or any component thereof, including development work resulting from any Clinical Sturdy or any continuous technology upgrades to the Combined Platform, will be governed by the terms and conditions of the Development Agreement including Section 3 thereof.

Beta Bionics Granted Licenses in Trademarks. Subject to the restrictions, limitations, reservations and conditions set forth in this Agreement, Beta Bionics hereby grants to DexCom a [***] nonexclusive [***] license [***] to use the Beta Bionics Trademarks solely to perform DexCom’s obligations and exercise DexCom’s rights under the Commercialization Plan, [***]. All goodwill arising from DexCom’s use of the Beta Bionics Trademarks pursuant to the license grant in this Section 3.2 shall inure to Beta Bionics.

DexCom Granted Licenses in Trademarks.

Mutual Granted License in Copyrights. Subject to the terms, conditions, restrictions and approval rights set forth in this Agreement, each Party hereby grants to the other Party under such Party’s Copyright interests in the Co-Promotion Materials a [***] nonexclusive [***] license [***] to use, reproduce and distribute the Co-Promotion Materials solely to perform its obligations and exercise its rights under the Commercialization Plan.

Sublicenses. Any sublicense rights licensed under this Section 3 shall be subject to the following requirements: (i) each sublicensee must agree to be bound by terms and restrictions, including as to the protection of Confidential Information, at least as protective of the licensor of such rights as those contained in this Agreement, and (ii) any license rights may only be sublicensed for the purposes of and subject to any restrictions contained in this Agreement. Notwithstanding the foregoing, neither Party may grant a sublicense under rights licensed under this Section 3 to any person or entity [***]. For clarity, the foregoing covenant shall not be construed to affect the validity or enforceability of any sublicense granted before any such action, suit or proceeding is brought.

All Other Rights Retained. Except as expressly set forth in this Agreement, neither Party grants to the other Party any rights or license in or to any Intellectual Property Rights owned or controlled by such Party, whether by implication, estoppel, or otherwise.

No Representations Regarding Licenses. All rights granted under this Section 3 are granted “as is” with no representations or warranties made regarding the validity, utility or performance of any data or Intellectual Property Rights licensed hereunder.

REGULATORY MATTERS

System Regulatory Responsibilities. Each Party will be responsible for obtaining and maintaining all Regulatory Approvals for its System necessary to commercialize the Combined Platform in the Agreed Markets, including (i) overseeing, monitoring, and coordinating all interactions with Regulatory Authorities; (ii) preparing, filing and maintaining all Regulatory Documentation; and (iii) maintaining all regulatory records as required by Applicable Law. In particular, (a) DexCom will be responsible for performing and leading all regulatory testing and related tasks, and for any Regulatory Documentation, associated with the DexCom System (including the DexCom CGM Smartphone App) and all necessary related translations, and (b) Beta Bionics will be responsible for performing and leading all regulatory testing and related tasks, and for any Regulatory Documentation, associated with the Beta Bionics System (including the DexCom CGM-Enabled Beta Bionics Device) and all necessary related translations.

Combined Platform Regulatory Responsibilities. Beta Bionics will be primarily responsible for obtaining and maintaining Regulatory Approval for the Beta Bionics System as part of the Combined Platform in the Agreed Markets. DexCom will be responsible for obtaining and maintaining Regulatory Approval for the DexCom System as part of the Combined Platform in the Agreed Markets. Each Party will provide reasonable cooperation to the other Party as may be required by the other Party for such other Party to obtain and maintain Regulatory Approvals in the Agreed Markets for use of the other Party’s System in the Agreed Markets in the Combined Platform as necessary to support commercialization thereof in the Agreed Markets, [***].

Clinical Studies. Beta Bionics shall provide to DexCom a copy of Beta Bionics’, or in the case of an investigator initiated study, such investigator’s, (proposed and final) protocols for any pre or post approval clinical study (including any Clinical Study) that involves any DexCom System and shall not conduct, nor permit, in the case of an investigator initiated study, such clinical study without DexCom’s written consent. Beta Bionics shall not sell, give, transfer, distribute or market any system that includes a DexCom System for use in clinical studies, without DexCom’s written consent. Beta Bionics shall keep DexCom reasonably informed of any such clinical studies conducted, supported or sponsored by Beta Bionics through regular updates, which updates shall address the nature, anticipated timing and progress with each such clinical study. Without limiting the foregoing, Beta Bionics shall provide DexCom with [***] Beta Bionics shall not use the DexCom System in [***]. In the event of publication arising from any such investigator initiated studies, the person or entity publishing shall furnish copies of any proposed publication or presentation to DexCom at least [***] before submission. During that time, DexCom shall have the right to review the material for its Confidential Information and use of its name. At DexCom’s request, the person or entity publishing shall delete DexCom’s Confidential Information and/or name from the proposed publication or presentation.

Regulatory Obligations and Expenses. In connection with obtaining or maintaining Regulatory Approvals and Pricing Approvals, interacting with Regulatory Authorities, filing or maintaining Regulatory Documentation, or maintaining regulatory records (in each case in relation to a Party’s System or the Combined Platform), unless required to comply with Applicable Laws or agreed by the Parties, in no instance shall either Party [***] For clarity, in the event Beta Bionics [***], Beta Bionics shall be responsible for [***].

MANUFACTURING AND DISTRIBUTION

Manufacturing. Each Party shall be solely responsible, at its own cost, for manufacturing its System, or components thereof, in connection with commercialization of the Combined Platform. Each Party shall manufacture its System in accordance with any agreed upon specifications for the Combined Platform and all Applicable Laws.

Distribution.

Reimbursement.

[***].

MARKETING; BRAND POSITIONING

Marketing Plan. The Parties agree to collaborate in good faith to support the commercial launch and marketing of the Combined Platform in the Agreed Markets. In connection therewith, the Parties will include details in the Commercialization Plan setting forth each Party’s responsibilities in connection with launching and promoting the Combined Platform in the Agreed Markets, including details for the Parties to collaborate on an email campaign promoting the launch of the Combined Platform. The Commercialization Plan will also set forth the Parties’ joint promotion efforts to be undertaken with respect to the Combined Platform in the Agreed Markets, in accordance with Section 6.5, which joint efforts may include:

Promotional Materials.

Branding. Without limiting Section 6.5, and subject to all Applicable Laws and the conditions of any applicable Regulatory Approval, Beta Bionics agrees, with respect to any Beta Bionics System that works with a DexCom System, that: [***].

Training. The Parties shall, in accordance with the Commercialization Plan, collaborate in good faith to continually update and provide Co-Promotion Materials for training the Parties’ respective Sales Teams with respect to promoting the Combined Platform in the Agreed Markets in compliance with Applicable Law. In connection therewith, each Party agrees to reasonably make its relevant Sales Team available for training from time to time.

Equal Opportunities. Without limiting the foregoing (including Sections 2.2 and 6.3):

[***].

COMPLIANCE WITH LAWS

General. Each of DexCom and Beta Bionics shall perform and shall procure that their respective Affiliates and its and their agents perform, their obligations under this Agreement in accordance with Applicable Law. Neither Party nor any of its Affiliates shall, or shall be required to, undertake any activity pursuant to this Agreement which violates, or which it believes, in good faith, may violate, any Applicable Law or any of its internal policies and procedures.

Transparency Reporting. Each Party will comply with Applicable Law relating to the tracking and reporting of payments and transfers of value provided to health care professionals, health care organizations, and other relevant individuals and entities, including, to the extent applicable, the Physician Payments Sunshine Act (Section 6002 of the Patient Protection and Affordable Care Act) (collectively, “Transparency Laws”). Each Party agrees to cooperate with the other in good faith to provide to the other Party with all information necessary for such Party to comply with any Transparency Laws.

Privacy Laws. Each Party agrees to collect, process and store Personal Data in its System in strict compliance with Privacy Laws. Without limiting the generality of the foregoing, each Party agrees to: (i) obtain and store all authorizations and/or lawful bases necessary to process and share Personal Data (identified and de-identified) in connection with the Combined Platform, (ii) timely enter into legally required agreements with Third Parties regarding the processing of Personal Data (e.g., “Business Associate” agreements as defined by HIPAA); (iii) implement and maintain appropriate organizational and technical security measures to protect Personal Data; (iv) only transfer Personal Data from any jurisdiction to any other jurisdiction (the European Economic Area constituting a single jurisdiction for this purpose), pursuant to an appropriate data transfer agreement or other mechanism appropriate to comply with Applicable Law; (v) provide Customers with a mechanism to withdraw their consent for or otherwise object to/opt-out of processing for Personal Data that it controls or possesses.

Reporting of Compliance Violations; Written Certification. Each of the Parties shall report to the other Party hereto at the name and address listed in Section 17.9 of this Agreement, any violations of the compliance obligations set forth in this Section 7 and shall, upon written request, provide a written certification to the other Party of compliance with such laws, regulations and company policies as set forth in this Section 7.

DATA RIGHTS

Data Protection.

Data Sharing. The Parties acknowledge and agree that nothing in this Agreement is intended to limit (a) DexCom’s rights to collect, use, transfer and/or otherwise process DexCom [***] Data or any other [***] Data generated by any DexCom product in connection with the performance of the activities contemplated under the Development Agreement; or (b) Beta Bionics’ rights to collect, use, transfer and/or otherwise process Beta Bionics [***] Data. Such rights shall be determined solely by Applicable Laws and the applicable Party’s terms, conditions, agreements and privacy notices governing the use of such Party’s System.

Data Security.

Data Use and Disclosure.

CUSTOMER SERVICE; SUPPLY.

Responsibility. Each Party shall be solely responsible, at its own cost, for providing customer service support to Customers of its System or any component thereof.

Coordination. The Parties shall jointly review and update the system used to evaluate, triage, and transfer customer support calls (or other methods of inquiry) relating to the Combined Platform to the appropriate Party, as outlined in the Quality Agreement. The heads of each Party’s customer service team will meet to agree on such system and test it prior to First Commercial Launch.

Supply. Each Party shall, in accordance with the Commercialization Plan, collaborate in good faith [***] For clarity, any samples may only be used for the specific purpose designated by the providing Party (for example, no such samples may be used in any clinical trial without the providing Party’s prior written consent).

LIFECYCLE MANAGEMENT

Improvements and Technology Upgrades. During the Term, the Parties will collaborate on the (i) on-going development, maintenance, and support of the Combined Platform, and (ii) continuous improvement and technology upgrades for the Combined Platform or any component thereof. Upon request by DexCom, Beta Bionics will [***].

Version Support.

DexCom Discontinuation. DexCom may, in its sole discretion, (i) discontinue its support of the then current DexCom System at any time commencing [***] and (ii) discontinue its support of features of its System that are fixed or altered in connection with any Minor Release for the DexCom System or any component thereof at any time commencing [***]. For clarity, Dexcom will have no obligation to support the G6 DexCom System for use with the Combined Platform after [***].

REPRESENTATIONS, WARRANTIES AND COVENANTS

Mutual Representations and Warranties. Each Party hereby represents and warrants to the other Party that as of the Effective Date:

Representations and Warranties of Beta Bionics. Beta Bionics represents, warrants and covenants to DexCom that Beta Bionics shall not use or display any DexCom [***] Data in any manner that: (a) is not consistent with the then-current Regulatory Approval for the applicable DexCom System or any Applicable Law, (b) is not consistent with this Agreement, or that is misleading or inaccurate or otherwise may cause any risk to the health, safety or general wellbeing of any Combined Platform user or any other product or service of DexCom, or (c) is not consistent with any notice or disclosure provided by Beta Bionics to a Combined Platform user, or any authorization granted to Beta Bionics by a Combined Platform user, or that requires any authorization not obtained by Beta Bionics.

Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 12, EACH OF BETA BIONICS AND DEXCOM MAKES NO REPRESENTATIONS OR WARRANTIES UNDER THIS AGREEMENT, AND EXPRESSLY DISCLAIMS ALL WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, VALIDITY AND NON-INFRINGEMENT. THE [***] ARE MADE AVAILABLE BY DEXCOM “AS-IS”. BETA BIONICS EXPRESSLY AGREES THAT ANY USE OF THE [***] AND THE BETA BIONICS SYSTEM IS AT BETA BIONICS’ SOLE RISK. WITHOUT LIMITING THE FOREGOING, DEXCOM DOES NOT WARRANT THE AVAILABILITY OF THE [***] OR THAT ANY OF THEM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED.

Insurance. During the Term and for a period of [***] thereafter, Beta Bionics will obtain and maintain in full force and effect, at Beta Bionics’ cost, the following insurance coverage [***]. Promptly upon DexCom’s request, Beta Bionics will provide DexCom with current certificates of insurance evidencing that Beta Bionics has coverage meeting the requirements set forth herein. Beta Bionics will provide DexCom with [***] prior written notice of termination or reduction in coverage.

CONFIDENTIALITY

Confidential Information. Except as expressly provided in this Agreement, during the Term and for [***] thereafter, any Party (including its Affiliates and Representatives) receiving Confidential Information, as defined below (the “Receiving Party”), will not publish or otherwise disclose and will not use such Confidential Information for any purpose other than carrying out Receiving Party’s obligations under this Agreement and exercising the Receiving Party’s rights under this Agreement. For purposes of this Agreement, “Confidential Information” means any information furnished by a Party (including its Affiliates and Representatives) (the “Disclosing Party”) pursuant to this Agreement, which is confidential or proprietary to the Disclosing Party, including, without limitation, this existence and content of this Agreement and all schedules and exhibits hereto, but excluding Personal Data. Notwithstanding the foregoing, Confidential Information will not include information that, in each case as demonstrated by the Receiving Party with reliable written documentation:

Permitted Disclosures. Notwithstanding Section 13.1, a Receiving Party may use or disclose Confidential Information solely to the extent such use or disclosure is reasonably necessary in complying with an order of a court of law, prosecuting or defending litigation, complying with applicable governmental regulations, filing and prosecuting patent applications owned by the Receiving Party, submitting information to tax or other governmental authorities, or conducting clinical trials; provided that if a Receiving Party is required to make any such disclosure of Confidential Information, it will give the other Party [***] of the disclosure, and use its reasonable efforts to secure confidential treatment of the information prior to its disclosure (whether through protective orders or otherwise).

Return of Confidential Information. Within [***] after the effective date of any termination of this Agreement, each Party will return to the other Party (where practicable), or at the Receiving Party’s option, destroy and provide written certification of the destruction of, all tangible materials that contain the Disclosing Party’s Confidential Information, except to the extent that retention of such Confidential Information is reasonably necessary for the Receiving Party to exploit any continuing rights it may have and/or to fulfill its obligations contemplated herein, including its obligations of non-disclosure and non-use hereunder. The return and/or destruction of such Confidential Information as provided above shall not relieve the Receiving Party of its obligations under this Agreement. This Section 13.3 shall not apply to copies of electronically exchanged Confidential Information made as a matter of routine information technology backup and to Confidential Information or copies thereof which must be stored by the Receiving Party according to provisions of Applicable Law or the Receiving Party’s internal policies and procedures.

Confidentiality Terms; Confidentiality of Agreement; No Press Release. Except as explicitly permitted under this Agreement and to the extent required to comply with Applicable Law, neither Party will make any disclosure to any Third Party (other than on a confidential basis to its Representatives, or existing or potential investors), and no press release will issue, relating to the existence of this Agreement, any term hereof, or any transaction contemplated herein unless required in the normal course of business and under Applicable Law. Where a press release or other public disclosure is so required, or where the Parties have otherwise mutually agreed to the issuance of a press release or other public disclosure, no Party shall issue a press release or make such public disclosure, without first giving the other Party reasonable opportunity to review and approve the proposed public disclosure or press release.

Records. At its own expense, each Party will create and maintain and provide access to upon reasonable request all records that relate to this Agreement and to a Party’s performance under this Agreement (i) to the extent required by this Agreement and Applicable Laws, (ii) sufficient to demonstrate the accuracy of reports submitted to either Party under this Agreement; and (iii) sufficient to enable a Party to comply with Applicable Laws and other legal obligations, to the extent that such Party has or reasonably should have knowledge of those Applicable Laws and other legal obligations. Each of the Parties will maintain all such records for [***].

Personal Data; DexCom [***] Data and Beta Bionics [***] Data. To the extent any Personal Data, DexCom [***] Data and/or Beta Bionics [***] Data is collected, received or shared by a Party or its Affiliates with or from the other Party or its Affiliates in connection with activities contemplated by this Agreement or the Development Agreement, the use of such data shall be governed solely by Section 8 of this Agreement.

INDEMNIFICATION AND DEFENSE OF INFRINGEMENT

DexCom will defend and indemnify Beta Bionics, its Affiliates, and each of its directors, officers, employees, agents, successors and assigns (collectively, “Beta Bionics Indemnities”), against all Third Party claims, suits and proceedings, and will hold the Beta Bionics Indemnitees harmless against all judgments, settlements, costs, liabilities and expenses (including reasonable attorneys’ fees and litigation costs) (collectively, “Losses”) payable to Third Parties in connection with such claims, suits and proceedings, to the extent arising from or occurring as a result of: [***].

Beta Bionics will defend and indemnify DexCom, its Affiliates, and each of its directors, officers, employees, agents, successors and assigns (collectively, “DexCom Indemnitees”), against all Third Party claims, suits and proceedings, and will hold the DexCom Indemnitees harmless against all Losses payable to Third Parties in connection with such claims, suits and proceedings, to the extent arising from or occurring as a result of: [***].

If the activities of the Parties under this Agreement result in a claim, suit or proceeding in which DexCom and Beta Bionics are both entitled to indemnification by the other Party pursuant to Sections 14.1 and 14.2, then the Parties will discuss in good faith their cooperation in connection with such matter, and shall discuss in good faith an equitable allocation of each Party’s indemnification obligations under this Section 14.

If the activities of the Parties under this Agreement result in a Third Party claim, suit, allegation, action or proceeding against Beta Bionics or DexCom alleging infringement of a claim of a patent or alleges infringement or misappropriation of some other Intellectual Property Right of such Third Party and (i) neither DexCom nor Beta Bionics is or (ii) both DexCom and Beta Bionics are (or would be if the Third Party claim, suit, allegation, action or proceeding was taken against both Parties), entitled to indemnification pursuant to Sections 14.1 and 14.2 (a “Combined Platform Infringement Action”), such Party will promptly notify the other Party in writing. The Parties agree that in connection with a Combined Platform Infringement Action, they will [***] The Parties will [***].

At either Party’s request, the Parties shall promptly enter into a common-interest agreement to protect any available attorney-client privileges and the like, on reasonable and customary terms.

Any Party seeking indemnification hereunder (the “Indemnitee”) will promptly notify the indemnifying Party (the “Indemnitor”) of any claim, loss, or expense likely to lead to a claim for indemnification, along with all material related information. The Indemnitor will have the right to [***]. The Indemnitee may not enter into any settlement of any such claim without the prior written consent of Indemnitor. The Indemnitee will reasonably cooperate with the Indemnitor in the defense of any such claim. The Indemnitee may hire its own counsel, at its own expense, to monitor the defense. In addition, the Indemnitee may elect to assume control of the defense of such claim, in which case the Indemnitor will have no obligation to indemnify (unless such assumption was due to the Indemnitor’s failure to faithfully discharge its obligations under this Section 14) or further defend the Indemnitee with respect to such claim.

Notwithstanding the foregoing, an Indemnitor under this Section 14 has no obligation for any Losses to the extent resulting from [***].

In the event of any actual or alleged infringement or misappropriation of any Third Party Intellectual Property Rights by the Beta Bionics System ([***]), (a) Beta Bionics shall have the right to modify the Beta Bionics System [***] to render such Beta Bionics System non-infringing or to be no longer misappropriating such Third Party Intellectual Property Rights and (b) if Beta Bionics cannot reasonably modify the Beta Bionics System to be non-infringing or to no longer be misappropriating such Third Party Intellectual Property Rights, Beta Bionics shall have the right to terminate this Agreement upon [***] written notice to DexCom.

In the event of any actual or alleged infringement or misappropriation of any Third Party Intellectual Property Rights by the DexCom System ([***]), (a) DexCom shall have the right to modify the DexCom System ([***]) to render such DexCom System non-infringing or to be no longer misappropriating such Third Party Intellectual Property Rights and (b) if DexCom cannot reasonably modify the DexCom System to be non-infringing or to no longer be misappropriating such Third Party Intellectual Property Rights, DexCom shall have the right to terminate this Agreement upon [***] written notice to Beta Bionics.

In the event that either Party is entitled to indemnification of any Third Party claim, suit or proceeding under both (a) this Agreement, and (b) the Development Agreement, then such Party shall only be entitled to seek indemnification for such claim, suit or proceeding (and only entitled to recover for a particular Loss) one time under either this Agreement or the Development Agreement and in no event shall such Party be permitted to seek indemnification for such claim, suit or proceeding (or recover for any particular Loss) under both this Agreement and the Development Agreement.

TERM AND TERMINATION

Term. The initial term of this Agreement will commence on the Effective Date and will continue for a period of three (3) years from date of First Commercial Launch of any Combined Platform (the “Initial Term”), unless terminated earlier pursuant to the other provisions of this Section 15. Following the Initial Term, this Agreement shall automatically renew for successive one (1) year periods (the Initial Term and any renewal terms, collectively, the “Term”), unless either Party delivers to the other Party a termination notice [***] before the expiration of the Initial Term or the then-current renewal term.

Termination for Material Breach. Either Party shall be entitled to terminate this Agreement upon [***] prior written notice to the other Party (the “Breaching Party”) if the Breaching Party materially breaches any material term of this Agreement and, if such breach is curable within such [***], fails to cure such breach within such period. In the event of termination under this Section 15.2:

Termination for Change of Control. Beta Bionics shall notify Dexcom in writing within the later of [***] after or as soon as permitted under Applicable Laws after undergoing a Change of Control. If Beta Bionics undergoes a Change of Control [***], then any time within [***] following receipt of a notice pursuant to this Section 15.3, Dexcom shall have the right (but not the obligation) to terminate this Agreement effective [***]. For clarity, (a) the foregoing shall apply regardless of the number of times Beta Bionics undergoes a Change of Control [***] (e.g., if Beta Bionics undergoes a Change of Control [***] twice during the Term, and Dexcom declines to terminate pursuant to this Section 15.3 the first time, Dexcom will still have the right to terminate pursuant to this Section 15.3 on the second Change of Control event); and (b) in the event Beta Bionics undergoes a Change of Control [***], notwithstanding such Change of Control, [***].

[***]. If a Party [***].

Termination for Insolvency. Each Party may terminate this Agreement by notice in writing to the other Party if the other Party (i) becomes insolvent or admits inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within [***] or is not dismissed or vacated within [***] after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

Effect of Termination.

MISCELLANEOUS

Non-Disparagement; Comparative Statements.

Third Party Products; KOL Relationships.

Audit. During the Term and for [***] thereafter, Beta Bionics agrees to permit DexCom or its designee, upon reasonable advance notice, during regular business hours and not more often than [***], to inspect and examine Beta Bionics’ facilities, policies, procedures, plans, and other records and documentation as reasonably necessary to verify Beta Bionics’ compliance with this Agreement.

No Exclusivity. Beta Bionics recognizes that DexCom may be engaged in the research, development, marketing or commercialization of products and services that are similar to those of Beta Bionics, which products and services may be competitive with those of Beta Bionics (including through collaborations with Beta Bionics’ Direct Competitors). Without limiting DexCom’s obligations under this Agreement with respect to Beta Bionics’ Confidential Information, nothing in this Agreement is to be construed to prevent DexCom from engaging in such activities.

Subcontractors. Either Party may subcontract the performance of its obligations under this Agreement to an Affiliate or Third Party, provided that such subcontractor is bound by terms and conditions consistent with this Agreement, including restrictions with respect to the protection and use of Confidential Information which are no less stringent than those set forth in this Agreement, and each Party shall be fully responsible for the performance of its subcontractors.

Force Majeure. Nonperformance of any Party (except for payment obligations) will be excused to the extent that performance is rendered impossible by strike, fire, earthquake, flood, governmental acts or orders or restrictions, or any other reason where failure to perform is beyond the reasonable control of the nonperforming Party.

No Implied Waivers; Rights Cumulative. No failure on the part of DexCom or Beta Bionics to exercise and no delay in exercising any right under this Agreement, or provided by statute or at law or in equity or otherwise, will impair, prejudice or constitute a waiver of any such right, nor will any partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.

Independent Contractors. Nothing contained in this Agreement is intended implicitly, or is to be construed, to constitute DexCom or Beta Bionics as partners in the legal sense. No Party hereto will have any express or implied right or authority to assume or create any obligations on behalf of or in the name of any other Party or to bind any other Party to any contract, agreement or undertaking with any Third Party.

Notices. All notices, requests and other communications hereunder will be in writing and will be personally delivered or sent by overnight courier or registered or certified mail, return receipt requested, postage prepaid, in each case to the respective address specified below, or such other address as may be specified in writing to the other Parties hereto:

Assignment. Except as otherwise expressly provided under this Agreement, neither Party may assign or otherwise transfer this Agreement or any right or obligation hereunder without the express prior written consent of the other Party; provided that: either Party shall be permitted to effect such an assignment or other transfer of this Agreement in its entirety without the written consent of the other Party (i) to any of its present or future Affiliates, or (ii) without limiting Section 15.3, in the event of a Change of Control. Any attempt to assign or transfer this Agreement not in compliance with this Section 17.10 will be void. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.

Modifications. No amendment or modification of any provision of this Agreement will be effective unless in writing signed by all Parties hereto. No provision of this Agreement will be varied, contradicted or explained by any oral agreement, course of dealing or performance or any other matter not set forth in an agreement in writing and signed by all Parties.

Severability. If any provision hereof should be held invalid, illegal or unenforceable in any jurisdiction, all other provisions hereof will remain in full force and effect in such jurisdiction and will be liberally construed in order to carry out the intentions of the Parties hereto as nearly as may be possible. Such invalidity, illegality or unenforceability will not affect the validity, legality or enforceability of such provision in any other jurisdiction.

Governing Law; Choice of Forum.

Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, and all of which together, will constitute one and the same instrument.

Headings; Interpretation. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. This Agreement shall be deemed to comprise the language mutually chosen by the Parties and no rule of strict construction shall be applied against any Party. Unless otherwise expressly provided herein or the context of this Agreement otherwise requires, (a) words such as “herein”, “hereof”, “hereby” and “hereunder” refer to this Agreement as a whole; (b) the words “include(s)”, “including”, “such as”, “in particular” and “for example” shall be deemed to be followed by the phrase “but not limited to”, “without limitation” or words of similar import unless otherwise specified; (c) the word “or” shall be deemed to mean “and/or”; (d) the terms “will” and “shall” shall be deemed to have the same meaning; (e) unless otherwise provided herein, any reference to “days” means calendar days; and (f) references to Applicable Law includes any amendment or modification to such Applicable Law.

Entire Agreement; Order of Precedence. This Agreement (including all Exhibits and Schedules to this Agreement), together with the other Transaction Agreements, constitutes the entire understanding and agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous understandings or agreements, whether written or oral, between the Parties with respect to such subject matter, including, without limitation, the Materials Transfer Agreement between the Parties dated October 31, 2015. Notwithstanding anything to the contrary, in the event of any conflict between this Agreement and the Development Agreement, the terms of this Agreement will control and govern.