270 Legal [Sample Agreements]

1. CONTRIBUTION AND TRANSFER OF ASSETS; ISSUANCE OF ASTHMATX SHARES.

1.1 Contribution and Transfer of Assets. Broncus hereby contributes, assigns, transfers, conveys and delivers to Asthmatx, as of the Effective Date, all of Broncus’ right, title and interest in, to or under all of the assets and properties identified in the following subparagraphs of this Section 1.1 (collectively, the “Assigned Assets”):

(a) cash in the amount equal to forty percent (40%) of the cash held by Broncus on the Effective Date (which amount Broncus and Asthmatx agree and acknowledge will take into account Broncus’ payment of those accounts payable paid on or before the Effective Date and which amount Broncus and Asthamtx estimate will be approximately $2,150,000);

(b) the tangible personal property assets of Broncus that are identified on Schedule 1.1(b) attached hereto;

(c) the contracts and agreements that are identified on Schedule 1.1(c) attached hereto (the “Assigned Contracts”);

(d) the patents and patent applications specifically listed on Schedule 1.1(d) attached hereto, all worldwide rights to the inventions described therein, and all rights to enforce such patents (and any patents that may be issued on any such patent applications) and all causes of action and rights of recovery for past infringement of such patents, patent applications and inventions described therein (collectively, the “Assigned Patent Rights”);

(e) the trademarks and trademark registrations that are identified on Schedule 1.1(e) attached hereto, and all applications therefor, trade names and rights in trade dress and packaging associated therewith (collectively, the “Assigned Trademark Rights”);

(f) the intangible assets, technologies, properties and rights of Broncus that are associated exclusively with the Alair Asthma Treatment System (including the Alair Controller Software, the Alair Product Specification, training materials related to the Alair Program, publications regarding the Alair procedure and all trade dress/design features for the Alair System), including all patent rights associated therewith, copyrights, copyright registrations and applications therefor, trade secrets, know-how and other intellectual property rights recognized by the law of any applicable jurisdiction (collectively, “Intellectual Property Rights”) therein and thereto, all rights to enforce such Intellectual Property Rights, and all causes of action and rights of recovery for past infringement of such Intellectual Property Rights; and

(g) the books and records of Broncus which relate to the assets described in clauses (a) through (f) above and do not relate to the Excluded Assets (provided that Broncus shall be entitled to retain a copy of such books and records).

Notwithstanding the foregoing, the Assigned Assets shall not in any event include any of the assets, properties and rights owned or held by Broncus that are not expressly identified in the preceding subparagraphs of this Section 1.1 (collectively, the “Excluded Assets”), such as, by way of illustration and not limitation, assets, properties, agreements, contracts, technologies and Intellectual Property Rights associated with Broncus’ Exhale emphysema treatment system and not expressly defined as Assigned Assets herein.

1.2 Issuance of Asthmatx Shares and Grant of Asthmatx Options. In partial consideration for Broncus’ contribution and transfer to Asthmatx of the Assigned Assets and the commitments of Broncus contained in this Agreement, and such other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Asthmatx hereby agrees with Broncus as follows:

(a) Issuance of Asthmatx Shares. Asthmatx hereby agrees with Broncus to, and hereby does, issue and sell to Broncus, and Broncus hereby acquires from Asthmatx, an aggregate total of (i) 3,883,541 shares of Asthmatx’s Common Stock, (ii) 2,612,500 shares of Asthmatx’s Series A-1 Preferred Stock, (iii) 2,090,000 shares of Asthmatx’s Series A-2 Preferred Stock, (iv) 1,045,000 shares of Asthmatx’s Series A-3 Preferred Stock, (v) 4,280,000 shares of Asthmatx’s Series B Preferred Stock, (vi) 9,619,528 shares of Asthmatx’s Series C Preferred Stock, and (vii) 9,271,159 shares of Asthmatx’s Series D Preferred Stock (all such shares of Asthmatx Common Stock and Asthmatx Preferred Stock being collectively referred to herein as the “Asthmatx Shares”).

- 2 -

(b) Issuance of Common Shares Upon Exercise of Broncus Warrants. In addition to the issuance to Broncus of the Asthmatx Shares pursuant to Section 1.1(a) above, Asthmatx hereby agrees with Broncus that, within a reasonable time after each exercise of a Broncus Warrant that occurs after the date of the Spin-off (a “Broncus Warrant Exercise”), Asthmatx shall issue to the holder of such Broncus Warrant who has exercised such Broncus Warrant one (1) share of Asthmatx Common Stock, as presently constituted (the “Issue Number”) for each share of Broncus Common Stock that is issued to and received by the holder of such Broncus Warrant as a result of such Broncus Warrant Exercise (with the Issue Number to be equitably and proportionally adjusted to account for and reflect any stock splits, stock dividends, reverse stock splits or the like occurring after the date of the Spin-off and affecting the number of outstanding shares of the Common Stock of either Asthmatx or Broncus); provided, however, that Asthmatx shall not be obligated to issue its Common Stock under this Section 1.2(b) with respect to a Broncus Warrant Exercise unless and until Broncus has provided Asthmatx with written notice of such Broncus Warrant Exercise, which notice shall include (i) the name and address of the holder of the Broncus Warrant exercised in connection with such Broncus Warrant Exercise; (ii) the name and address of the person(s) in whose name the shares of Asthmatx’s Common Stock issuable hereunder in respect of such Broncus Warrant Exercise are to be registered; and (iii) a statement of the number of Broncus shares purchased in connection with such Broncus Warrant Exercise, and Broncus’ computation of the number of shares of Asthmatx’s Common Stock then issuable in respect of such Broncus Warrant Exercise in accordance with this Section 1.2(b).

(c) Grant of Asthmatx Stock Options to Broncus Optionees. Effective at a time prior to the time the Spin-off takes effect and during which Asthmatx is a subsidiary of Broncus, Asthmatx shall grant to each Broncus Optionee (as defined below), with respect to each outstanding option to purchase Broncus Common Stock held by such Broncus Optionee (a “Broncus Option”), an option to purchase shares of Asthmatx Common Stock (an “Asthmatx Option”) on the following basis and terms, except as otherwise noted below:

(i) the number of shares of Asthmatx Common Stock subject to each Asthmatx Option granted to a Broncus Optionee under this Section 1.2(c) with respect to a Broncus Option will (except as may be otherwise specified in Schedule 1.2(c) attached hereto) be equal to the number of shares of Broncus Common Stock with respect to which such Broncus Option was vested and exercisable on the date such Asthmatx Option is granted (or, if exercise

===

Click here for the complete Corporate Formation Agreement