Give me more for this agreement: Execution Version Certain identified information has been excluded from the exhibit because it is both (i) not material and (ii) would likely cause competitive harm to the Company, if publicly disclosed. Double asterisks denote omissions. DEVELOPMENT AGREEMENT This Development Agreement ("this Agreement") is entered into and effective as of September 30, 2019 ("Effective Date") by and between Howmedica Osteonics Corp., a New Jersey corporation, also known as Stryker Orthopaedics ("Stryker"), and Conformis, Inc., a Delaware corporation having a principal place of business located at 600 Technology Park Drive, Billerica, MA 01821 ("Conformis"). Stryker and Conformis are collectively referred to herein as the "Parties" and individually as a "Party." WHEREAS, the Parties are concurrently entering into an asset purchase agreement for Stryker's purchase of certain Conformis assets concerning Patient-Specific Instrumentation ("Asset Purchase Agreement"), and a License Agreement, a Distribution Agreement and a Quality Agreement, as defined in and attached to the Asset Purchase Agreement (collectively, such agreements are referred to herein as the "Other Agreements"). WHEREAS, Stryker and its Affiliates have developed and commercialized an Off-The-Shelf Knee Implant offered under the trademark Triathlon. WHEREAS, Conformis currently offers Patient-Specific Instrumentation for use with its Patient-Specific Implants, including partial and total knee and hip arthroplasty. WHEREAS, Stryker desires that Conformis develop, in accordance with the R&D Program, certain Patient-Specific Instrumentation to be used with the current version of the Off-The-Shelf Knee Implant offered under the trademark Triathlon (such Patient-Specific Instrumentation as so developed, the "KIB Product"). THEREFORE, in consideration of the mutual representations, warranties and covenants herein and in the Other Agreements constituting good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: ARTICLE I DEFINITIONS 1.1 Definitions. For purposes of this Agreement, the following terms shall have the following meanings, and to the extent not defined in this section or otherwise in this Agreement, a term shall have the meaning ascribed to it in any of the Other Agreements: Source: CONFORMIS INC, 10-Q, 11/1/2019
"Acceptance" and "Accept" have the meaning set forth in Article 3.4 of this Agreement. "Acceptance Criteria" has the meaning set forth in the R&D Work Plan. "Acceptance Notification Period" has the meaning set forth in Article 3.3 of this Agreement. "Affiliate" has the meaning set forth in the Asset Purchase Agreement. "Agents" means Third Parties who are acting under the direction or control of a Party. "Applicable Laws" means all applicable federal, state, local and foreign laws, ordinances, rules, regulations, orders, writs, injunctions and decrees of any kind. "Asset Purchase Agreement" has the meaning set forth in the recitals. "Change of Control" has the meaning set forth in the Asset Purchase Agreement. "Claims" has the meaning set forth in Article 7.3(a) of this Agreement. "Confidential Information" has the meaning set forth in the Asset Purchase Agreement. "Conformis Background IP" means any Invention, and all Intellectual Property rights underlying such Invention, that is, as of the Effective Date, owned or licensable by Conformis without causing a breach of, or incurring any obligation to, a third party, in each case to the extent necessary or reasonably useful to design, develop, manufacture, sell or otherwise exploit the KIB Product, and for the avoidance of doubt, excluding the Purchased Assets, Conformis Foreground IP, Stryker Background IP, Improved Stryker Background IP and Improved Conformis Background IP. 2 Source: CONFORMIS INC, 10-Q, 11/1/2019
"Conformis Foreground IP" means any Invention first developed by Conformis after the Closing Date other than in the performance of the R&D Program, and all Intellectual Property rights underlying such Invention (for the avoidance of doubt, excluding any Intellectual Property rights subsisting prior to the Closing Date or generated in the performance of the R&D Program). For the avoidance of doubt, Conformis Foreground IP shall not include any Inventions using Stryker Confidential Information (which shall not include the Purchased Assets for the purposes of the definition of Conformis Foreground IP) or Stryker Background IP. "Conformis Indemnified Parties" has the meaning set forth in Article 7.3(b) of this Agreement. "Conformis-Prosecuted Joint IP Rights" has the meaning set forth in Article 5.8 of this Agreement. "Court" has the meaning set forth in the Asset Purchase Agreement. "Deliverables" has the meaning set forth under the R&D Work Plan. "Disclosing Party" has the meaning set forth in the Asset Purchase Agreement. "Distribution Agreement" has the meaning set forth in the Asset Purchase Agreement. "Equipment" has the meaning set forth in Article 5.6(a) of this Agreement. "Failure Notice" has the meaning set forth in Article 3.4 of this Agreement. "Finally Rejects" has the meaning set forth in Article 3.4 of this Agreement. "Force Majeure Event" has the meaning set forth in Article 10.4(a) of this Agreement. 3 Source: CONFORMIS INC, 10-Q, 11/1/2019
"Improved Conformis Background IP" means any Invention to the extent first arising in the performance of the R&D Program, whether or not embodied in the KIB Product, that constitutes an improvement to Conformis Background IP, Conformis Confidential Information (which shall not include any Confidential Information owned or commonly owned by Stryker) or the Purchased Assets, and all Intellectual Property rights underlying such Invention (but expressly excluding all Transferred IP, Conformis Foreground IP, Conformis Background IP and Stryker Background IP, and, for the avoidance of doubt, excluding all Intellectual Property rights subsisting prior to the Closing Date). "Improved Stryker Background IP" means any Invention to the extent first arising in the performance of the R&D Program, whether or not embodied in the KIB Product, that constitutes an improvement to Stryker Background IP or any Stryker Confidential Information (which shall not include the Purchased Assets for the purposes of this definition), and all Intellectual Property rights underlying such Invention (but expressly excluding all Transferred IP, Conformis Foreground IP, Conformis Background IP and Stryker Background IP, and, for the avoidance of doubt, excluding all Intellectual Property rights subsisting prior to the Closing Date). "Insolvency Event" means, with respect to any Party, the occurrence of any one of the following events: (i) an involuntary proceeding is commenced against such Party under any applicable United States bankruptcy, insolvency, reorganization or other similar United States or foreign law now or hereafter in effect, or a proceeding is commenced seeking appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) for such Party or for all or any substantial part of its property and such proceeding shall not be dismissed within [**] or an order for relief by a court of competent jurisdiction shall be entered in any such proceeding; or (ii) such Party shall commence a voluntary proceeding under any applicable United States or foreign bankruptcy, insolvency, reorganization or other similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, 4 Source: CONFORMIS INC, 10-Q, 11/1/2019
assignee, custodian, trustee, sequestrator (or other similar official) of such Party or of all or any substantial part of its property, or shall make an assignment for the benefit of creditors. "Intellectual Property" has the meaning set forth in the Asset Purchase Agreement. "Invention" means any idea, invention, discovery, know-how, data, work of authorship, information, improvement, technology, process, concept or material, whether or not patentable, copyrightable or protectable as a trade secret, and whether or not reduced to practice or memorialized in writing. "Joint CI" has the meaning set forth in the Asset Purchase Agreement. "Joint IP" has the meaning set forth in Article 5.1(c) of this Agreement. "Joint IP Rights" has the meaning set forth in Article 5.8 of this Agreement. "KIB Product" has the meaning set forth in the recitals. "KIB Product IP" means any Invention first arising in the performance of the R&D Program, whether or not embodied in the KIB Product, and all Intellectual Property rights underlying such Invention (but expressly excluding all Transferred IP, Conformis Background IP, Stryker Background IP, Improved Conformis Background IP and Improved Stryker Background IP, and, for the avoidance of doubt, excluding all Intellectual Property rights subsisting prior to the Closing Date). "License Agreement" has the meaning set forth in the Asset Purchase Agreement. "Off-The-Shelf Implant" has the meaning set forth in the Asset Purchase Agreement. 5 Source: CONFORMIS INC, 10-Q, 11/1/2019