Exhibit 10.32

Confidential Materials omitted and filed separately with the

Securities and Exchange Commission. Double asterisks denote omissions.

LICENSE AGREEMENT

This License Agreement (this “Agreement”), dated as of April 13, 2015 (the “Effective Date”), is made by and between ConforMIS, Inc., a Delaware corporation with a principal place of business at 28 Crosby Drive, Bedford, Massachusetts 01730 (“ConforMIS”) and MicroPort Orthopedics Inc., a Delaware corporation with a principal place of business at 5677 Airline Road, Arlington, Tennessee 38002 (“MicroPort”).  ConforMIS and MicroPort are referred to individually herein as a “Party” and, collectively, as the “Parties”.

RECITALS

WHEREAS, ConforMIS has sued Wright Medical Technologies, Inc. and Wright Medical Group, Inc. (together, “Wright”) and MicroPort in the U.S. District Court for the District of Massachusetts under case number 1:13-cv-12312-IT (the “Action”) and MicroPort and ConforMIS wish to settle the Action with respect to MicroPort;

WHEREAS, Wright had previously developed surgical solutions for knee replacement;

WHEREAS, on or about January 9, 2014, Wright sold its knee replacement business to MicroPort;

WHEREAS, MicroPort wishes to enter into this Agreement under which ConforMIS will license certain patent rights controlled by ConforMIS relating to certain surgical solutions for knee replacement, and ConforMIS wishes to enter into this Agreement on the terms set forth herein.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants set forth herein, ConforMIS and MicroPort, intending to be legally bound, hereby agree as follows:

ARTICLE I
DEFINITIONS

1.1                               “Affiliate” means, with respect to any entity, an entity that, at any time (now or in the future) controls, is controlled by or is under common control with, the first-mentioned entity, but only for so long as such entity continues to control, be controlled by, or be under common control with the first-mentioned entity.  For the purposes of this definition, “control,” including the terms “controlled by” and “under common control with,” means the ownership, directly or indirectly, through one or more intermediaries, of more than fifty percent (50%) of the equity or other ownership interest having the power to vote on or direct the affairs of such corporation, firm, partnership, joint venture or other entity.

1.2                               “Average Net Selling Price” means, for each System Component Type sold during a specified calendar quarter in a specified country, the Net Sales of any and all System Components of such System Component Type determined according to Section 1.13(a) (Net Sales definition), divided by the total number of units of System Components of such System Component Type sold in such calendar quarter in such country.

1.3                               “Business Day” means a day other than Saturday, Sunday or any holiday recognized and observed by the U.S. Federal Government.

1.4                               “Conditions” means (a) the receipt by ConforMIS of the payment set forth in Section 3.1, which ConforMIS hereby acknowledges has been paid by Wright on behalf of MicroPort, (b) the

execution and delivery of the Wright Agreement by the parties thereto, and (c) the receipt by ConforMIS of the up-front license fee described in Section 3.1 of the Wright Agreement, which ConforMIS hereby acknowledges has been paid by Wright.

1.5                               “Confidential Information” means all non-public scientific, technical, business or financial information possessed or obtained by, developed for, or given by one Party to the other, which information is treated by the disclosing Party as confidential or proprietary, whether or not labeled “Confidential.”

1.6                               “Control” or “Controlled” means, with respect to any Patent Rights, the possession by ConforMIS (or an Affiliate of ConforMIS) of the right to grant a license or sublicense under such Patent Rights as provided herein without violating the terms of any agreement or arrangement with any Third Party.

1.7                               “Dollars” or “$” means U.S. Dollars.

1.8                               “Existing Patent Rights” means all Patent Rights that are owned or Controlled by ConforMIS or its Affiliates as of the Effective Date or that claim priority to any such Patent Rights and that, in any case, are necessary to make, have made, use, sell, offer to sell or import Licensed Products in the Field of Use.  Existing Patent Rights include, but are not limited to, the patents and patent applications set forth on Exhibit A.  ConforMIS agrees to update Exhibit A periodically as requested by MicroPort in writing during the term of this Agreement.

1.9                               “Field of Use” means the use of Patient Specific Instrumentation for the implantation in a human patient of standard, off-the-shelf, and/or non-patient-specific implants, devices, and/or systems for the replacement of the knee.  For the avoidance of doubt, the Field of Use does not include use of Patient Specific Instrumentation when: (a) designed, made, used, sold, offered for sale or imported for the purpose of implanting a Patient Specific Implant in the patient, or (b) designed for use or used in implanting a Patient Specific Implant in the patient.

1.10                        “Future Patent Rights” means Patent Rights (other than the Existing Patent Rights) that are owned or Controlled by ConforMIS or its Affiliates: (a) that are filed, or claim priority to any Patent Rights filed, during the Tail Period (excluding Patent Rights acquired or licensed by ConforMIS under an agreement with a Third Party executed after the Effective Date); and (b) that are necessary to make, have made, use, sell, offer to sell or import Licensed Products in the Field of Use.

1.11                        “Licensed Patent Rights” means Existing Patent Rights and Future Patent Rights.

1.12                        “Licensed Product” means the product currently known as Prophecy® PSI and, when sold or used with the products currently known as Prophecy® PSI, the Advance® and Evolution® total knee replacement systems, each substantially in the form as sold by Wright and its Affiliates as of January 8, 2014, including versions of such products with improvements thereto; provided, however, that Licensed Product does not include any product using Patient Specific Implants.  For the avoidance of doubt, Licensed Product (a) includes both the PSI and any associated implant components (to the extent such components are encompassed by the Field of Use) and (b) absent the written consent of ConforMIS, does not include any new PSI product of any MicroPort acquirer or any entity acquired by MicroPort or its Affiliates or any new PSI product of MicroPort that is not an improvement to the Prophecy® PSI or Advance® and Evolution® total knee replacement systems sold with the Prophecy® PSI.

1.13                        (a)                                 “Net Sales” means gross amounts invoiced (or otherwise owed to or received) by MicroPort or its Affiliates, for the sale or other transfer to third parties of Royalty-Bearing Products,

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including any System Components thereof, less the following items only to the extent they are actually paid: (i) sales or use taxes imposed upon particular sales; (ii) import/export duties associated with particular sales; (iii) transportation charges incurred for shipment by a third party shipper; and (iv) refunds for Royalty-Bearing Products returned by end customers or end users and reasonable and customary allowances (including trade, quantity, prompt pay and cash discounts and any similar adjustments, including those granted on account of pricing adjustments or billing errors); and (v) rebates, reimbursements, fees, commissions (not to exceed 20% of the gross selling price) or similar payments actually made to wholesalers, distributors, customers or other Third Parties attributable to the sale of Royalty-Bearing Products (but excluding subsidies for marketing, advertising, business development or other purposes); in each case, to the extent the foregoing are separately stated on purchase orders, invoices or other documents of sale, and are actually paid with respect to the applicable sale.  For purposes of calculating Net Sales, sales between or among MicroPort and its Affiliates will be excluded from the computation of Net Sales, but sales by MicroPort or its Affiliates to Third Parties will be included in the computation of Net Sales.  No deduction will be made for any item of cost incurred by MicroPort or its Affiliates in preparing, manufacturing, shipping, distributing or selling Royalty Bearing Products except as expressly permitted in the foregoing paragraph.  For purposes of calculating Net Sales, all amounts received in connection with the provision or transfer of Prophecy® PSI to third parties will constitute a sale, without regard to its characterization as a sale or the provision of services by MicroPort and its Affiliates.  Net Sales will be calculated in accordance with International Financial Reporting Standards, consistently applied.

(b)                                 MicroPort represents that, as of the Effective Date, it is not possible in any country in which Prophecy® PSI is currently sold for MicroPort to tie each and every individual sale of Prophecy® PSI to the sale of the particular System Components of the Advance® or Evolution® total knee replacement systems that were sold, transferred or otherwise used in a surgery with Prophecy® PSI.  Subject to the other provisions of this Agreement, for any total knee replacement system (including, without limitation, the Advance® and Evolution® total knee replacement systems) that is a Royalty-Bearing Product and for which MicroPort cannot tie each and every individual sale of a Royalty-Bearing Guide to the sale of the particular System Components of such total knee replacement system that were sold, transferred or otherwise used in a surgery with such Royalty-Bearing Guide in a given calendar quarter in a given country, MicroPort may elect to calculate Net Sales of such Royalty Bearing Product in such country during such calendar quarter by:

(i)                                     calculating the Average Net Selling Price of each System Component Type used with such total knee replacement system during such calendar quarter and in such country; provided, however, if any System Component Type includes modular System Components (e.g., stems or keels for use with a tibial base implant), the Average Net Selling Price of such System Component Type may be prorated based on the ratio of the number of such modular System Components of such System Component Type sold during such calendar quarter and in such country divided by the number of System Components of the tibial base implant System Component Type sold during such calendar quarter and in such country;

(ii)                                  calculating the total number of Royalty-Bearing Guides sold, transferred or otherwise used in a surgery with such total knee replacement system during such calendar quarter and in such country;

(iii)                               for each System Component Type used with such total knee replacement system, multiplying the Average Net Selling Price of each such System Component Type calculated in Section 1.13(b)(i) by the total number of Royalty-Bearing Guides calculated in Section 1.13(b)(ii);

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(iv)                              calculating the Net Sales of all Royalty-Bearing Guides during such calendar quarter and in such country pursuant to Section 1.13(a); and

(v)                                 adding the results calculated in Section 1.13(b)(iii) for each System Component Type of such total knee replacement system, and further adding the results calculated in Section 1.13(b)(iv) for the Net Sales of all Royalty-Bearing Guides, such sum constituting the Net Sales for such Royalty-Bearing Products during such calendar quarter in such country.

A spreadsheet containing an example that applies the foregoing methodology to calculate Net Sales of Royalty Bearing Product is attached hereto as Exhibit B.  Notwithstanding the foregoing, MicroPort may only employ the foregoing methodology in calculating Net Sales of Royalty-Bearing Products if: (1) it is unable in a given country to attribute each and every sale of specific components of a total knee replacement system that constitutes a Royalty-Bearing Product to the sale, transfer or use of a Royalty-Bearing Guide and (2) it believes reasonably and in good faith, based on the information available to it, that such methodology, when applied over time, would not yield results substantially less than what would result from a calculation of Net Sales solely by operation of Section 1.13(a), without reference to Section 1.13(b).  If either Party reasonably believes that the use of the Average Net Selling Price to calculate Net Sales would not yield substantially comparable results to a calculation of Net Sales solely by operation of Section 1.13(a), then the Parties will cooperate to review the available sales information, conduct a representative sampling of product sales (which sampling shall not constitute an audit under Section 3.7), and adjust the foregoing methodology to yield results more consistent with the result that would be obtained by a calculation of Net Sales solely by operation of Section 1.13(a).  In the event that no sales of a System Component Type occurred in a particular country during a calendar quarter, MicroPort may use the Average Net Selling Price of such System Component Type in such country for the most recent calendar quarter during which sales of such System Component Type occurred in that country.  MicroPort represents that, as of the Effective Date, the System Components used in each Evolution® and Advance® total knee replacement system do not vary on the basis of whether or not such System Components are used with Prophecy® PSI.

1.14                        “Patent Rights” means (a) all issued patents (including any extensions, restorations by any existing or future extension or registration mechanism (including patent term adjustments, patent term extensions, supplemental protection certificates or the equivalent thereof), substitutions, confirmations, re-registrations, re-examinations, reissues (including post inter partes review patents and post grant review patents), and patents of addition); (b) patent applications (including all provisional applications, substitutions, requests for continuation, continuations, continuations-in-part, divisionals and renewals); (c) inventor’s certificates; and (d) all equivalents of the foregoing however denominated in any country of the world.

1.15                        “Patient-Specific Implant” means any surgical implant device or implant component designed, distributed and/or manufactured for a particular patient using imaging from the patient, including without limitation any patient-specific, patient-matched, patient-engineered, customized or individualized implant.  Patient-Specific Implant includes, for clarity, any knee implant system that has any of a femoral implant component, a tibial base implant component, a patella implant component, and/or a trochlear implant component that is selected using imaging data of a specified patient and that is selected from a range of sizes exceeding, for any such component, 16 right knee sizes and 16 left knee sizes.  With respect only to the Advance® and Evolution® total knee replacement systems as sold by MicroPort on or before the Effective Date, and as shown on Exhibit C, the Parties acknowledge that: (a) for each of the associated femoral and tibial base components, the Advance® total knee replacement system includes 8 right knee sizes and 8 left knee sizes (femoral component sizes 0, 1, 1.5, 2, 3, 4, 5, and 6 and tibial base sizes 1, 2, 2.5, 3, 4, 5, and 6); (b) for each of the associated femoral and tibial base components, the Evolution® total knee replacement system includes 8 right knee sizes and 8 left knee sizes (femoral component sizes 1, 2, 3, 4, 5, 6, 7, 8 and tibial base sizes 1, 2, 3, 4, 5, 6, 7, 8); (c) the nomenclature in Exhibit C (in the form attached hereto as of the Effective Date) representing various features of the Advance® and the Evolution® total knee replacement systems unrelated to implant sizing (e.g., porous v. non-porous, cruciate retaining v. posterior stabilized, “plus” configurations related to compatibility between tibial base components and femoral components of different sizes, and tibial insert thicknesses) do not constitute distinct sizes for purposes of this definition; and (d) neither the Advance® nor the Evolution® total knee replacement systems as they exist on the Effective Date constitute Patient Specific Implants.  MicroPort may make improvements to the Advance® and Evolution® total knee replacement systems in the form of providing additional sizes, provided that the total number of sizes of any of the components of such an improved system are consistent with the provisions of this Section 1.15.

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1.16                        “Patient Specific Instrumentation” or “PSI” means any instrumentation that is designed, distributed and/or manufactured for a particular patient using imaging data of that patient, including, without limitation, patient-specific, patient-matched, patient-engineered, customized, or individualized surgical instrumentation, cutting guides, jigs and instruments.

1.17                        “Royalty-Bearing Guide” means Prophecy® PSI and any improvement thereto that would constitute a Royalty-Bearing Product hereunder.

1.18                        “Royalty-Bearing Product” means, when sold anywhere in the world, a Licensed Product, the making, using, sale, offering for sale or importation of which, but for the license granted herein, would infringe (under applicable law of the jurisdiction in which the Licensed Product is made, used, sold, offered for sale, or imported) one or more valid and enforceable claims of the Licensed Patent Rights in the Field of Use.  Without limiting the foregoing, the Parties agree that, solely for purposes of calculating royalties due under this Agreement, as of the Effective Date, Prophecy® PSI and, when made, used, sold, transferred or imported with Prophecy® PSI, the Advance® and Evolution® total knee replacement systems (including all femoral, tibial, patellar and insert and other comparable components of such knee implant systems), are Royalty-Bearing Products.

1.19                        “Royalty Term” means the period beginning on January 1, 2015 and ending on the expiration or early termination of this Agreement.

1.20                        “System Component” means, for each Evolution® and Advance® total knee replacement system, and any other knee replacement system that constitutes a Royalty-Bearing Product hereunder, all products, parts, instruments or components (including, without limitation, all products, parts, instruments or components identified by one or more MicroPort part numbers) of a System Component Type.  A list by type of all System Components as of the Effective Date is attached hereto as Exhibit C.  MicroPort will update Exhibit C from time to time, or as requested by ConforMIS in writing during the term of this Agreement, to include any changes to the list of System Components, and all such additions, deletions or other revisions to Exhibit C will be consistent with the terms of this Agreement.  MicroPort represents that all System Components existing as of the Effective Date have been included in Exhibit C.  MicroPort will pay royalties pursuant to the terms of this Agreement on any and all System Components, regardless of whether a particular System Component has been included in Exhibit C.

1.21                        “System Component Type” means each of the following classes of System Components for each Evolution® and Advance® total knee replacement system, and any other knee replacement system that constitutes a Royalty-Bearing Product hereunder: femoral implants, patella implants, tibial inserts, tibial base implants and, separately, any additional modular components that do not fall into any of the foregoing classes (e.g., modular stems and keels for tibial base implants, which will be treated as a separate classification for purposes of calculating the Average Net Selling Price).

1.22                        “Tail Period” means the period beginning on the Effective Date and ending on the earlier to occur of: (a) December 31, 2024 and (b) the completion of a change of control of ConforMIS (whether by merger, consolidation, business combination, reorganization or other corporate transaction) or the sale or other transfer by ConforMIS of all or substantially all of its assets; provided, however, that the period in (b) will be extended for a period of twelve (12) months following completion of such a change of control transaction solely with respect to Patent Rights for which each and every inventor was an officer, director or employee of ConforMIS immediately preceding completion of such change of control or asset sale transaction.  A “change of control” for this purpose will not include a change of control resulting from a public offering of securities, a transaction or series of transactions in which a financial investor acquires a majority of the voting power of ConforMIS, or a change to the constitution of the board of directors of ConforMIS.

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1.23                        “Third Party” means any person or entity other than MicroPort, ConforMIS and their respective Affiliates.

1.24                        “Wright Agreement” means that certain Settlement and License Agreement dated as of the Effective Date between ConforMIS and MicroPort.

ARTICLE II
LICENSE GRANTS

2.1                               License Grant.  ConforMIS hereby grants MicroPort and its Affiliates a non-exclusive, non-transferable (except as provided in Section 8.2 below), worldwide, perpetual, irrevocable (except as expressly provided herein) license, without the right to sublicense, under the Licensed Patent Rights, solely to make, have made, use, offer to sell, sell, and import Licensed Products within the Field of Use, and to practice methods and processes solely for the manufacture and use of the Licensed Products solely within the Field of Use.

2.2                               Limitations of Rights.  The Licensed Patent Rights are licensed only to the extent required to practice the Licensed Patent Rights within the Field of Use, and are not licensed to any extent beyond the Field of Use.  Any devices, methods, processes and other actions that are wholly or partially outside the Field of Use remain subject to claims, actions, and proceedings for infringement of the Licensed Patent Rights.  Licensed Patent Rights do not include any patent claims or other Patent Rights directed solely to subject matter other than Patient Specific Instrumentation, including, without limitation, Patient Specific Implants and systems using Patient Specific Implants.  Further, to the extent that a patent claim included in the Licensed Patent Rights has a scope both within and outside the Field of Use, any such claim is licensed only to the extent necessary to make, have made, use, sell, offer to sell, import or export Licensed Products in the Field of Use.

2.3                               Reserved Rights.  ConforMIS hereby reserves all rights under the Licensed Patent Rights not expressly granted to MicroPort.  Nothing contained herein will be construed as granting MicroPort any right or license under any patent, copyright, trademark, trade secret or other intellectual property or proprietary right of ConforMIS, by implication, estoppel, or otherwise, except as expressly set forth in this Agreement.

2.4                               No Warranties.  The Licensed Patent Rights are licensed by ConforMIS to MicroPort “AS IS.” CONFORMIS MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND CONFORMIS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES WITH RESPECT TO THE LICENSED PATENT RIGHTS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  Without limiting the generality of the foregoing, nothing in this Agreement will be construed as: (a) a warranty or representation of ConforMIS as to the validity, enforceability or scope of the Licensed Patent Rights; (b) a warranty or representation that the exercise of any of the rights granted to MicroPort be free from infringement of the intellectual property rights of Third Parties; (c) an agreement to bring or prosecute actions or suits against third parties for infringement of the Licensed Patent Rights; or (d) requiring ConforMIS to file an application for patent, secure any patent or maintain any patent in force.

2.5                               No Challenge Covenant.  If MicroPort (including its Affiliates) challenges anywhere in the world (except as provided in pleadings docketed in the Action) the validity or enforceability of any Licensed Patent Right, including without limitation by participating in, cooperating in, paying for, advocating in favor of, or advising on any inter partes review or other patent office proceeding, except to the extent that a Licensed Patent Right is asserted in a new claim or threatened claim for infringement

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against MicroPort or its Affiliates, then ConforMIS may terminate the license granted to MicroPort under the Licensed Patent Rights immediately by providing written notice to MicroPort.  Nothing in this Section 2.5 will prevent MicroPort from reporting to, or providing testimony solely to the extent required in response to, a subpoena or an order or directive issued by a court, administrative agency or any other government body or tribunal, provided that MicroPort is not participating in, cooperating in, paying for, advocating in favor of, or advising the issuer of such subpoena or the person or entity initiating the action pursuant to such subpoena was issued.

2.6                               Mutual Releases.  Upon the satisfaction of each of the Conditions (or express written waiver by the Parties of any individual Condition), each Party (a) hereby fully, finally and forever releases and discharges the other Party and its Affiliates from any and all claims of past or present infringement of the Licensed Patent Rights for the manufacture, use, sale, offering for sale or importation of Licensed Products in the Field, including all claims and counterclaims in the Action (including related claims against Wright as of January 9, 2014) and (b) will promptly move to dismiss their respective claims and counterclaims in the Action.

ARTICLE III
FINANCIAL TERMS

3.1                               License Fee.  MicroPort will pay to ConforMIS a one-time non-refundable, non-creditable license fee of three million two hundred fifty thousand Dollars ($3,250,000) contemporaneously with the execution of this Agreement on the Effective Date.  (Such payment may be made by a third party on behalf of MicroPort).

3.2                               Royalties.  MicroPort will pay to ConforMIS, during the Royalty Term, a running royalty of [**] percent ([**]%) on Net Sales of Royalty-Bearing Products.

3.3                               Manner of Payments.  Within thirty (30) days following the end of each calendar quarter during the term of this Agreement, MicroPort will deliver to ConforMIS a report setting forth the information and basis for the calculation of royalties owed to ConforMIS with respect to Royalty-Bearing Products sold during the prior calendar quarter.  Royalty payments due to ConforMIS hereunder will be made quarterly by MicroPort no later than the sixty (60) days following completion of each calendar quarter with respect to Royalty-Bearing Products sold during the prior calendar quarter.  All reports delivered pursuant to this Agreement will be deemed Confidential Information of MicroPort subject to Article VI.  All payments to be made pursuant to this Agreement will be payable in Dollars by bank wire transfer in immediately available funds to such bank account as ConforMIS will designate.  (Such payment may be made by a third party on behalf of MicroPort).

3.4                               Currency Exchange.  If Net Sales are in a currency other than Dollars, then, for the purpose of determining the amount of royalties payable hereunder, such foreign currency amount will be converted into Dollars at the exchange rate between those two currencies quoted in the Wall Street Journal (Eastern Edition) five (5) business days immediately preceding the date on which such royalties become due.  If no such exchange rate is quoted in that edition, such payment will be converted into Dollars at the exchange rate between those two currencies most recently quoted in the Wall Street Journal (Eastern Edition).

3.5                               Late Payments.  Without limiting any other rights or remedies available to ConforMIS hereunder, if MicroPort does not pay any amount due on or before the due date, MicroPort will pay to ConforMIS interest on any such amounts from and after the date such payments are due under this Agreement at a rate per annum equal to the then current “prime rate” in effect published in the Wall Street

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Journal, Eastern Edition, plus two (2) percentage points or the maximum applicable legal rate, if less, calculated on the total number of days payment is delinquent.

3.6                               Payment Default.  Any failure by MicroPort to pay the license fee under Section 3.1 or any royalty payment under Section 3.2 when due will constitute a material breach of this Agreement and will give ConforMIS the right to terminate this Agreement pursuant to Section 7.2.

3.7                               Audit Right.  For a period of three (3) years next following each calendar year, MicroPort will keep, and will cause its Affiliates to keep, full, true and accurate books and records containing all particulars relevant to its sales of Royalty-Bearing Products in sufficient detail to enable ConforMIS to verify the amounts payable to it under this Agreement.  ConforMIS will have the right, not more than once during any calendar year, to have the books and records of MicroPort and its Affiliates audited by an independent certified public accounting firm of national standing, reasonably acceptable to both MicroPort and Wright.  MicroPort will make the records required for any audit under this Section 3.7 available or accessible for audit at a single location in the United States.  Notwithstanding the foregoing, each calendar year period during the term of this Agreement may be audited only once.  ConforMIS will pay the fees and expenses of the accounting firm and its other out-of-pocket expenses associated with the conduct of the audit, and MicroPort will be responsible for its own expenses in connection with its preparation for and the conduct of such audit; provided, however, that: (a) if the records required for the audit are not available or accessible at a single location in the United States or (b) if the accounting firm conducting the audit determines that MicroPort has under-reported its Net Sales of Royalty-Bearing Products by more than five percent (5%), then MicroPort will pay the fees and expenses of the accounting firm and ConforMIS’s other out-of-pocket expenses associated with the conduct of the audit.  Audits under this Section 3.7 will be conducted during normal business hours, upon at least thirty (30) days’ prior written notice, and for the sole purpose of verifying amounts payable to ConforMIS under this Agreement.  All information and data reviewed in any audit conducted under this Section will be used only for the purpose of verifying amounts payable to ConforMIS under this Agreement and will be treated as Confidential Information of MicroPort subject to the terms of this Agreement.  ConforMIS will cause its accounting firm to enter into a reasonably acceptable confidentiality agreement with MicroPort and its Affiliates, as applicable.  The accounting firm will disclose to ConforMIS and Wright only whether the royalty reports are correct or incorrect and the specific details concerning any discrepancies.  If the audit demonstrates that the royalty payments owed under this Agreement have been understated, MicroPort will pay the balance to ConforMIS, together with interest in accordance with Section 3.5.  If the audit demonstrates that the royalty payments owed under this Agreement have been overstated, MicroPort will be entitled to credit such amount against future payments due to ConforMIS, provided that if such determination is made after payments under this Agreement cease to be due, then ConforMIS will refund such amount to MicroPort.  All payments owed by or to MicroPort under this Section 3.7 will be made within sixty (60) days after the results of the audit are delivered to the Parties.

3.8                               Coordination with Wright Audit Rights.  MicroPort has informed ConforMIS that, pursuant to a separate agreement, MicroPort and Wright have agreed to terms that permit Wright to audit MicroPort on substantially identical terms to those set forth in Section 3.7 (Audit Right).  MicroPort hereby confirms that the audit provisions in such agreement entitle ConforMIS to receive the auditor’s report indicating whether royalties due by MicroPort hereunder have been overpaid or underpaid.  If any audit initiated by Wright pursuant to such agreement demonstrates that the royalty payments owed under this Agreement have been understated, MicroPort will pay the balance to ConforMIS.  Likewise, if any such audit initiated by Wright demonstrates that the royalty payments owed under this Agreement have been overstated, MicroPort will be entitled to credit such amount against future payments due to ConforMIS or receive a refund from ConforMIS to the same extent as provided above in Section 3.7 (Audit Right).  ConforMIS hereby confirms that the Wright Agreement stipulates that ConforMIS and Wright will not audit records related to the sale of Royalty Bearing Products for any calendar year more than once.

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ARTICLE IV
INTELLECTUAL PROPERTY

4.1                               Prosecution and Maintenance.  As between the Parties, ConforMIS will be solely responsible, at its expense, for the preparation, filing, prosecution and maintenance of all Licensed Patent Rights (including, for clarity, controlling any interference, derivation, post-grant review, inter partes review, re-examination, reissue, opposition or cancellation proceeding with respect thereto), without any obligation of consultation with, or accounting to, MicroPort.

4.2                               Enforcement.  Neither Party will have any obligation or duty to notify the other Party of any Third Party claims or other Third Party activity relating to the Licensed Patent Rights.  Neither Party nor their respective Affiliates will have an obligation, and MicroPort and its Affiliates will not have the right, to enforce the Licensed Patent Rights against a Third Party.

4.3                               Patent Marking.  MicroPort will comply with all applicable patent marking statutes in any country in which Licensed Products covered by Licensed Patent Rights are sold.  The Parties will consult with each other from time to time as necessary to update relevant information for purposes of appropriately marking Licensed Products.

ARTICLE V
REPRESENTATIONS; INDEMNIFICATION

5.1                               Representations.  Each Party hereby represents and warrants and covenants to the other Party that:

(a)                                 the execution and delivery of this Agreement by such Party and the performance by such Party of the transactions contemplated hereby have been duly authorized by all appropriate corporate action; and

(b)                                 this Agreement is a legal and valid obligation binding upon such Party and enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement by such Party does not conflict with any agreement, instrument or understanding to which it is a party or by which it is bound.

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5.2                               Indemnification.

(a)                                 Indemnity.  MicroPort will indemnify, defend and hold harmless ConforMIS, its Affiliates and their respective directors, officers, employees, and agents, and their respective successors, heirs and assigns (the “ConforMIS Indemnitees”) from and against any liability, damage, loss or expense (including reasonable outside attorneys’ fees and expenses of litigation) incurred by or imposed upon such ConforMIS Indemnitees, or any of them, in connection with any claim, action or proceeding brought or initiated by a Third Party (“Claims”) to the extent that such Claim arises out of: (i) the breach or alleged breach of any obligation, representation or warranty of MicroPort under this Agreement; (ii) the negligence or willful misconduct of MicroPort or its Affiliates; or (iii) the development, manufacture, storage, handling, shipping, use, sale, offer for sale, importation or other commercialization of a Licensed Product; provided that (x) the ConforMIS Indemnitees comply with the procedure set forth in subsection (b) below; and (y) such indemnity will not apply to the extent such Claim arises from (i) the breach or alleged breach of any obligation, representation or warranty of ConforMIS under this Agreement; or (ii) the negligence or willful misconduct of any ConforMIS Indemnitee.

(b)                                 Indemnification Procedures.  In the event that a ConforMIS Indemnitee intends to claim indemnification under this Section 5.2, it will promptly notify MicroPort thereof, in writing, and MicroPort will assume the defense thereof with counsel mutually satisfactory to the Parties; provided, however, that a ConforMIS Indemnitee will have the right to retain its own counsel, with the reasonable fees and expenses to be paid by MicroPort, if representation of such ConforMIS Indemnitee by the counsel retained by MicroPort would be inappropriate due to actual or potential differing interests between such ConforMIS Indemnitee and any other party represented by such counsel in such proceedings, as determined by counsel selected by MicroPort.  MicroPort will have the right to control the defense and settlement of any Claim for which indemnification is sought hereunder; provided that MicroPort will not settle any such Claim without the prior written consent of ConforMIS, which consent will not be unreasonably withheld or delayed provided such settlement does not include an admission of liability by ConforMIS.  Any ConforMIS Indemnitee will cooperate fully with MicroPort and its legal representatives in the investigation of any Claim for which indemnification is sought hereunder.

5.3                               Limitation of Liability.  EXCEPT FOR INDEMNIFICATION CLAIMS HEREUNDER, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

ARTICLE VI
CONFIDENTIALITY

6.1                               Confidentiality Obligation.  With respect to Confidential Information, the Party receiving Confidential Information from the other Party acknowledges that the disclosing Party is and will remain the sole owner of the disclosing Party’s Confidential Information.  During the term of this Agreement and for a period of five (5) years thereafter, the receiving Party will take all commercially reasonable precautions to protect the confidentiality of the disclosing Party’s Confidential Information, and will not disclose or use any of the disclosing Party’s Confidential Information except as necessary to exercise its rights or perform its obligations under this Agreement.  Each receiving Party may disclose Confidential Information to its employees, accountants, lawyers, bankers, agents or other representatives who have a need to know such Confidential Information and who are obligated to protect the confidentiality of such Confidential Information under terms substantially similar to or more stringent than those set forth in this Article VI, or otherwise in conjunction with the preparation and filing of any information reasonably required to be filed in accordance with the laws or regulations of a bona fide

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government agency, commission or other administrative body.  Each receiving Party may also disclose Confidential Information to its Affiliates, provided that the receiving Party will be responsible ensuring that any Affiliate receiving the disclosing Party’s Confidential Information complies with the receiving Party’s confidentiality obligations hereunder.  Each receiving Party may disclose Confidential Information to a governmental authority or by order of a court of competent jurisdiction or otherwise as required by law, provided that the disclosure is subject to all applicable governmental or judicial protection available for like material and reasonable advance notice is given to the disclosing Party.  The obligations of nondisclosure and non-use hereunder will not apply to information that (a) was known to the receiving Party at the time it was disclosed, other than by previous disclosure by the disclosing Party, as evidenced by the receiving Party’s written records at the time of disclosure, (b) is at the time of disclosure or later becomes publicly known under circumstances involving no breach of this Agreement, (c) is lawfully and in good faith made available to the receiving Party by a Third Party that did not derive it, directly or indirectly, from the disclosing Party or (d) was independently discovered or developed by or on behalf of the receiving Party without the use of any Confidential Information of the disclosing Party.  Each Party agrees that the terms of this Agreement are the Confidential Information of the other Party.

6.2                               Public Announcements.  Other than as required by a Party or its Affiliates to comply with applicable laws or regulations, neither Party will make any public announcement disclosing the terms of this Agreement without the prior written consent of the other Party (not to be unreasonably withheld) and will, if required by law to make such public announcement: (a) to the extent possible, notify the other Party if it anticipates that it may be required to make such public announcement; (b) provide such other Party with a copy of such public announcement, or the relevant portions thereof, a reasonable time prior to its release (and any revisions to such public announcement a reasonable time prior to the release thereof); (c) consult with and follow any reasonable directions from the other Party with respect to disclosures in such public announcement; and (d) if disclosure cannot be avoided, only disclose Confidential Information to the extent necessary to comply with law.  Notwithstanding the foregoing, either Party may disclose the fact that the Action has been settled and may issue a press release regarding such settlement in substantially the form attached hereto as Exhibit D.

6.3                               SEC Filings.  In the event either Party proposes to file with the U.S. Securities and Exchange Commission (“SEC”) or the securities regulators of any state or other jurisdiction or any national securities exchange a registration statement or any other filing or submission that describes or refers to the terms and conditions of this Agreement, or includes this Agreement as an exhibit, under the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other applicable securities law or exchange rules, the Party making such filing shall use reasonable efforts to request and obtain confidential treatment of those terms or portions of this Agreement for which confidential treatment is available, as advised by counsel, and shall only disclose Confidential Information that it is advised by counsel is required to be disclosed.  If such confidential treatment is sought and obtained for the royalty rate in Section 3.2, and the disclosing party is required to characterize such rate, such characterization shall be, to the extent permitted by the securities regulator with whom the filing is to be made, as set forth in Section 6.4(b) of this Agreement.  In any event, the disclosing Party may characterize any terms of this Agreement as required by a securities regulator No such request for confidential treatment shall be required under this Section for any description of or reference to those terms or portions of this Agreement contained in the proposed filing, or any portion of this Agreement proposed to be filed as an exhibit, that have been included in any publicly available announcement, filing or submission previously made in accordance with the terms and conditions of this Agreement or otherwise approved by the other Party.

6.4                               Permitted Disclosure.  Notwithstanding the provisions of Sections 6.1, 6.2 and 6.3, either Party, without first seeking confidential treatment of such information or obtaining written consent to do so from the other Party: (a) may disclose the Agreement and its terms in the context of litigation or in the

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negotiation of a potential licensing, financing, merger, acquisition, divestiture or other business transaction with a Third Party conducted pursuant to a commercially reasonable non-disclosure agreement or protective order regarding confidentiality that provides protection for Confidential Information on terms substantially similar to or more stringent than those set forth in this Article VI and (b) may, in a filing with the SEC or the securities regulators of any state or other jurisdiction or any securities exchange, disclose the scope and terms of the license grants set forth in Section 2.1 and 2.2, including the Licensed Patents and the Field of Use, as well as the definitions of Net Sales and Royalty-Bearing Products, and characterize the royalty rate set forth in Section 3.2 substantially as a fixed royalty at a high single to low double digit percentage of net sales provided that the disclosing party also discloses in such filing, to the extent permitted by the SEC or other securities regulator, that MicroPort and Wright entered into a separate indemnification agreement related to such royalty obligation.

ARTICLE VII
TERM

7.1                               Term.  The term of this Agreement will commence on the Effective Date and end upon the expiration of all the Licensed Patent Rights; provided however, that the term of the license granted to MicroPort under the Future Patent Rights will terminate on December 31, 2029.

7.2                               Termination for Material Breach.  In the event that a Party has materially breached or defaulted in the performance of any of its obligations hereunder, and if such default is not corrected within forty-five (45) days after receiving written notice from the other Party with respect thereto, such other Party will have the right to terminate this Agreement by giving written notice to the breaching Party; provided that the time period for providing such notice of termination will be extended for so long as the breaching Party is engaged in good faith efforts to cure such breach or default.

7.3                               General Effect of Termination.

(a)                                 Termination of Rights.  Upon any early termination of this Agreement by operation of Sections 2.5 or 7.2, the rights and licenses granted to MicroPort under Section 2.1 will terminate.

(b)                                 Accrued Obligations.  Termination of this Agreement for any reason will not release any Party hereto from any liability which, at the time of such termination, has already accrued to the other Party or which is attributable to a period prior to such termination, nor preclude either Party from pursuing any rights and remedies it may have hereunder or at law or in equity which accrued or are based upon any event occurring prior to such termination.

(c)                                  Survival.  Articles IV (Intellectual Property), V (Representations; Indemnification), VI (Confidentiality) and VIII (Dispute Resolution) and Sections 3.7 (Audit Right), 7.3 (General Effect of Termination), 8.1 (Governing Law), 8.2 (Waiver), 8.4 (Notices), 8.5 (Independent Contractors), 8.8 (No Third Party Beneficiaries), 8.9 (Entire Agreement, Waivers, Etc.) and 8.10 (Headings, Construction and Interpretations) hereof (and related definitions) will survive the expiration or termination of this Agreement for any reason.  In addition, any other provision required to interpret and enforce the Parties’ rights and obligations under this Agreement will also survive, but only to the extent required for the observation and performance of the aforementioned surviving portions of this Agreement.

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ARTICLE VIII
MISCELLANEOUS

8.1                               Governing Law.  This Agreement will be deemed to have been made in the Commonwealth of Massachusetts, and its form, execution, validity, construction and effect will be determined in accordance with, and any dispute arising from the performance or breach hereof will be governed by and construed in accordance with, the laws of the Commonwealth of Massachusetts, without reference to conflicts of laws principles.  The sole and exclusive venue for any action arising out of or related to this Agreement is the United States District Court for Massachusetts to the extent that such court has, or has retained, jurisdiction, or otherwise a state court of competent jurisdiction in the Commonwealth of Massachusetts.  The Parties hereby agree and consent to personal jurisdiction in the Commonwealth of Massachusetts.

8.2                               Waiver.  Neither Party may waive or release any of its rights or interests in this Agreement except in writing.  The failure of either Party to assert a right hereunder or to insist upon compliance with any term or condition of this Agreement will not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition.  No waiver by either Party of any condition or term in any one or more instances will be construed as a further or continuing waiver of such condition or term or of another condition or term.

8.3                               Assignment.  This Agreement will not be assignable by MicroPort to any Third Party without the written consent of ConforMIS, except that MicroPort may assign this Agreement in its entirety with prior notice to ConforMIS but without such consent, to (a) an Affiliate or (b) to a Third Party in connection with a sale or other transfer of substantially all the assets to which its license rights hereunder relate (including by sale of assets, merger, reorganization, re-domicile, sale of equity or other transaction).  The terms and conditions of this Agreement will be binding on and inure to the benefit of the permitted successors and assigns of MicroPort.  For clarity, and without limiting the rights granted to MicroPort and its Affiliates under Section 2.1, MicroPort may not assign any subset of its rights or obligations hereunder.

8.4                               Notices.  All notices hereunder will be in writing and will be delivered personally, by internationally recognized overnight courier service, registered or certified mail, postage prepaid, or mailed by express mail service to the following addresses of the respective Parties:

Notices will be effective upon receipt if personally delivered, on the third Business Day following the date of mailing if sent by certified or registered mail, and on the second Business Day following the date of delivery if sent by express mail or overnight courier.  A Party may change its address listed above by written notice to the other Party provided in accordance with this Section.

8.5                               Independent Contractors.  Nothing contained in this Agreement is intended implicitly, or is to be construed, to constitute ConforMIS or MicroPort as partners or joint venturers 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.

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8.6                               Severability.  If any term or provision of this Agreement will for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other term or provision hereof, and in lieu of each such invalid, illegal or unenforceable provision there will be added automatically as a part of this Agreement a provision that is valid, legal and enforceable, and as similar in terms to such invalid, illegal or unenforceable provision as may be possible while giving effect to the benefits and burdens for which the Parties have bargained hereunder.

8.7                               Further Assurances.  At any time or from time to time on and after the date of this Agreement, either Party will at the request of the other Party (a) deliver to the requesting Party such records, data or other documents consistent with the provisions of this Agreement, (b) execute, and deliver or cause to be delivered, all such consents, documents or further instruments of assignment, transfer or license, and (c) take or cause to be taken all such actions, as the requesting Party may reasonably deem necessary or desirable in order for the requesting Party to obtain the full benefits of this Agreement and the transactions contemplated hereby.

8.8                               No Third Party Beneficiaries.  Nothing in this Agreement, expressed or implied, is intended to confer on any person other than the Parties hereto or their respective successors or assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.

8.9                               Entire Agreement, Waivers, Etc.  This Agreement constitutes the entire agreement, both written and oral, with respect to the subject matter hereof, and supersedes and terminates all prior or contemporaneous understandings or agreements, whether written or oral, between the Parties with respect to the subject matter hereof.  No terms or provisions of this Agreement will be varied or modified by any prior or subsequent statement, conduct or act of either of the Parties, except that the Parties may amend this Agreement by written instruments specifically referring to and executed in the same manner as this Agreement.

8.10                        Headings, Construction and Interpretations.  The headings used in this Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof.  The Parties have had the opportunity to consult with counsel, and the Parties and their respective counsel have participated jointly in the negotiation and drafting of this Agreement.  In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.  Whenever the words “include”, “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation”.  Except where context requires otherwise, the word “or” will be interpreted in the inclusive sense commonly associated with the term “and/or”.  The words “hereof, “herein” and “hereunder” and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement.  The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term.

8.11                        Counterparts.  This Agreement may be executed in any number of separate counterparts, including .pdf versions, each of which will be deemed to be an original, but which together will constitute one and the same instrument.

8.12                        Costs.  Each Party will bear its own costs and expenses in connection with the preparation, negotiation, execution and delivery of this Agreement.

[signature page follows]

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IN WITNESS WHEREOF, the Parties hereto have caused this License Agreement to be duly executed by their authorized representatives as of the Effective Date.

EXHIBIT A
Existing Patent Rights Related to Patient Specific Instrumentation

The following list of patents and patent applications, and their foreign counterparts, are exemplary of Existing Patent Rights of Licensor related to the Field of Use.

EXHIBIT B
Exemplar of Spreadsheet
Net Sales of Royalty Bearing Product Calculation

[see attached]

Conformis License
Exhibit B — Exemplar of Royalty Calculation

Confidential Materials omitted and filed separately with the Securities and Exchange Commission. A total of four pages were omitted. [**]

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EXHIBIT C
Parts List

[see attached]