AMENDMENT NO. 2 TO LICENSE AGREEMENT BETWEEN MAYO FOUNDATION FOR MEDICAL EDUCATION AND RESEARCH AND ENTEROMEDICS, INC.

EXHIBIT 10.34

AMENDMENT NO. 2

TO

LICENSE AGREEMENT

BETWEEN

MAYO FOUNDATION FOR MEDICAL EDUCATION AND RESEARCH

AND

ENTEROMEDICS, INC.

This Amendment No. 2 (the “Amendment No. 2”) is entered into as of January 4, 2011 (the “Execution Date of Amendment No. 2”) by and between Mayo Foundation for Medical Education and Research, a Minnesota charitable corporation, located at 000 Xxxxx Xxxxxx XX, Xxxxxxxxx, Xxxxxxxxx 00000-0000 (“MAYO”), and EnteroMedics, Inc., a private for-profit corporation located at 0000 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000 (“COMPANY”) and amends that certain License Agreement by and between MAYO and COMPANY with an Effective Date as of February 3, 2005 (the “License Agreement”) and Amendment No. 1 to the License Agreement with an Execution Date of February 3^rd, 2010 (“Amendment No. 1”) with the effect of amending, restating and replacing the following provisions in their entirety with the text set forth below:

2.02 MAYO KNOW-HOW COMMITMENT. For a period of five (5) years from the Effective Date for the Obesity Device Group and the Vagal Blocking Device Group and for a period of two (2) years from the Execution Date of Amendment No. 1 for Xxxxxxx Xxxxxxxxx, M.D., Xxxxxxx Xxxx, M.D. and Xxxxxxx Xxxxxxxx of the Phase II Mayo Group and until December 31^st, 2010 for Xxxxxxx Xxxxxxxx, M.D. of the Phase II Mayo Group, unless terminated earlier by either COMPANY or MAYO as provided for in this Agreement, MAYO commits to the following:

(a) Subject to existing obligations to third parties, MAYO policies and for so long as its members are employees of MAYO, the Obesity Device Group shall confer with the COMPANY in the Field as follows: (i) exclusively for Product Development for devices to treat obesity and nonexclusively for Product Testing; and (ii) non-exclusively for Product Development and Product Testing with COMPANY for Vagal Devices to treat gastrointestinal disorders other than obesity (for example, pancreatitis and irritable bowel syndrome) and excluding obesity.

(b) Subject to existing obligations to third parties, MAYO policies and for so long as its members are employees of MAYO, the Vagal Blocking Device Group shall confer exclusively with the COMPANY for Product Development and nonexclusively for Product Testing, all for Vagal Devices.

(c) Subject to existing obligations to third parties, MAYO policies and for so long as its members are employees of MAYO, the Phase II Mayo Group shall confer with the COMPANY in the Field as follows: (i) exclusively for Product Development for devices to treat obesity and nonexclusively for Product Testing; and (ii) non-exclusively for Product Development and Product Testing with COMPANY for Vagal Devices to treat gastrointestinal disorders other than obesity.

(d) Subject to existing obligations to third parties, MAYO hereby grants COMPANY a royalty-bearing, worldwide license to use the Know-How in the Field to develop, make, use and sell COMPANY Products as provided below:

1. With respect to Obesity Device Group Know-How for:

(a) Product Development, such license shall be exclusive for obesity devices and non-exclusive for Vagal Devices for treating conditions other than obesity; and

(b) Product Testing, such license shall be non-exclusive.

2. With respect to the Vagal Blocking Device Group Know-How for:

(a) Product Development, such license shall be exclusive; and

(b) Product Testing, such license shall be non-exclusive.

3. With respect to the Phase II Mayo Group Know-How for:

(a) Product Development, such license shall be exclusive for devices to treat obesity and nonexclusive for Vagal Devices for treating other conditions other than obesity; and

(b) Product Testing, such license shall be non-exclusive.

COMPANY shall have the right to sublicense such know-how, but not any obligation of MAYO to confer, on the same terms and conditions as set forth above with respect to Licensed Patents.

(e) MAYO represents and warrants that to the best of internal patent counsel’s knowledge as of the Effective Date and without a duty to inquire, MAYO is not aware of any existing third party obligations that will materially interfere with the Obesity Device Group, the Vagal Blocking Device Group or the Phase II Mayo Group from conferring with COMPANY under Section 2.02, in accordance the terms and conditions of this Agreement.

Each member of the Obesity Device Group, the Vagal Blocking Device Group and the Phase II Mayo Group shall use reasonable efforts to attend meetings, achieve specific Product Development objectives and milestones, and conduct Product Testing, contributing on average among the individuals of the groups between 3-6 person hours per month as requested by COMPANY. Any time credited under this Section shall not also be subject to compensation under any other agreement including any agreement referenced under Section 3.14 of this Agreement.

3.06 KNOW-HOW RETAINER FEES: The COMPANY shall pay MAYO a minimum annual retainer fee of One Hundred and Seventy-Five Thousand Dollars (US$175,000) for the Obesity Device Group as partial compensation for its Know-How

as specified in the payment schedule below. The COMPANY shall also pay MAYO an additional minimum annual retainer fee of Seventy-Five Thousand Dollars (US$75,000) for the Vagal Blocking Device Group as partial compensation for its Know-How as specified in the payment schedule below. In 2010, the COMPANY shall pay MAYO a minimum retainer fee of One Hundred Thousand Dollars (US$100,000) and in 2011 Seventy-Five Thousand Dollars (US$75,000) for the Phase II Mayo Group as partial compensation for its Know-How as specified in the payment schedule below. The following payments shall be made within ten (10) days of the dates listed:

Date		Retainer fee payment due MAYO
a) The Effective Date		One Hundred Twenty-Five Thousand Dollars (US$125,000);
b) November 1, 2005		One Hundred Twenty-Five Thousand Dollars (US$125,000);
c) January 1, 2006		One Hundred Twenty-Five Thousand Dollars (US$125,000);
d) July1, 2006		One Hundred Twenty-Five Thousand Dollars (US$125,000);
f) January 1, 2007		Two Hundred Fifty Thousand Dollars (US$250,000);
g) January 1, 2008		Two Hundred Fifty Thousand Dollars (US$250,000);
h) January 1, 2009		Two Hundred Fifty Thousand Dollars (US$250,000);
i) February 15, 2010		One Hundred Thousand Dollars (US$100,000); and
j) January 1, 2011		Seventy-Five Thousand Dollars (US$75,000).

3.15 Phase II Mayo GROUP MILESTONE PAYMENT. COMPANY shall pay MAYO Two Hundred and Fifty Thousand Dollars (US$218,750) within twelve months after the first commercial sale of the first Company Product after receipt of FDA approval for such Company Product for providing Phase II Mayo Group Know-How; provided, that if MAYO exercises its right to terminate the Phase II Mayo Group’s obligations pursuant to Section 6.04(b), such payment shall be reduced to equal the product of (i) the number of months that have elapsed since the Execution Date of this Amendment No. 1 through the effective date of such termination, divided by twenty-four (24), multiplied by (ii) $218,750 (in which case, it is agreed that such payment shall not be due until twelve months after the first commercial sale of the first Company Product after receipt of FDA approval for such Company Product). It is a material breach of this agreement if such payment is not received within ninety (90) days of achieving the milestone.

Except as expressly amended by this Amendment No. 2, all terms and conditions of the License Agreement as previously amended by Amendment No. 1 shall remain in full force and effect.

MAYO FOUNDATION FOR MEDICAL EDUCATION AND RESEARCH						ENTEROMEDICS, INC.
By:		/S/    XXXXXX X. XXX XXXXXX				By:		/S/    XXXX X.XXXXXXX, PH.D.
Name:		Xxxxxx X. Xxx Xxxxxx				Name:		Xxxx X. Xxxxxxx
Title:		Assistant Treasurer				Title:		President and CEO
Date:		01-19-2011				Date:		1-17-2011