Asthmatx Uses in CERTAIN DEFINED TERMS Clause

CERTAIN DEFINED TERMS from Indemnification Agreement

This Indemnification Agreement (this Agreement) is made and entered into effective as of February 17, 2004 (the Effective Date) by and between Asthmatx, Inc., a California corporation (Asthmatx), and Broncus Technologies, Inc., a California corporation (Broncus).

CERTAIN DEFINED TERMS. As used herein, the following terms shall have the following meanings: 1.1 Alair means the Alair Asthma Treatment System which was originally developed by Broncus and which has been contributed and assigned by Broncus to Asthmatx pursuant to the Formation Agreement. 1.2 Alair Business shall have the meaning given to that term in Recital A of this Agreement and includes, without limitation, the business of developing, testing, marketing, selling and otherwise commercially exploiting Alair and any associated services. 1.3 Alair Insurance means a first payor insurance policy that may be purchased by Asthmatx after the Spinoff Date (as defined below) which will provide liability insurance coverage to Asthmatx and/or Broncus for Pre-Spinoff Alair Claim Loss (as defined below). 1.4 Broncus Business means the activities, business and/or operations engaged in and/or conducted or carried out by Broncus, including the Exhale Business, but excluding the Alair Business. 1.5 Broncus Insurance Policy means an existing occurrence-based liability insurance policy that is owned by Broncus as of the Effective Date, that was issued to Broncus prior to the Spinoff Date and which provides liability insurance coverage for Pre-Spinoff Alair Claims and/or other matters arising from events or harm occurring with respect to patients who were treated by Broncus during a specified time period (an Occurrence Period). The parties acknowledge that Broncus owns several Broncus Insurance Policies for different Occurrence Periods, and that the coverage limits of each Broncus Insurance Policy vary in amount by Occurrence Period. 1.6 Exhale means Broncus Exhale Airway Bypass System, which is used to treat emphysema in humans and which is owned and retained by Broncus. 1.7 Exhale Business means Broncus business of developing, testing, marketing, selling and otherwise commercially exploiting Exhale and any associated services. 1.8 Liabilities means, collectively, any and all liabilities, losses, claims, debts, duties, obligations (including but not limited to contractual obligations), expenses, claims, deficiencies or guaranties of any type, whether accrued, absolute, contingent, matured, unmatured or otherwise. 1.9 Loss means, collectively, all Liabilities, loss, damages, expense, cost, fines, fees, penalties, obligations or injuries, including without limitation those resulting from any and all claims, actions, suits, demands, assessments, investigations, judgments, awards, arbitrations or other proceedings, together with reasonable costs and expenses including the reasonable attorneys fees and other legal costs and expenses relating thereto. 1.10 Other Claim means and includes, collectively, a claim, suit, action, arbitration, demand, investigation or other proceeding asserted, brought or made by a third party or parties to the extent that such third party or parties seeks to recover damages caused or alleged to have been caused as a result of, or arising from: (i) any individual or individuals having been treated with or by Exhale at any time prior to the Spinoff Date; (ii) any use of Exhale at any time prior to the Spinoff Date; or (iii) any activity, conduct or operations of the Broncus Business occurring at any time prior to the Spinoff Date. The term Other Claim shall not include any Pre-Spinoff Alair Claim. 1.11 Other Claim Loss means Loss actually suffered or incurred by Broncus or Asthmatx to the extent that such Loss is caused by, or results or arises from, an Other Claim. 1.12 Pre-Spinoff Alair Claim means a claim, suit, action, arbitration, demand, investigation or other proceeding asserted, brought or made by a third party or parties to the extent that such third party or parties seeks to recover damages caused or alleged to have been caused as a result of, or arising from, (a) any individual or individuals having been treated with or by Alair at any time prior to the Spinoff Date or (b) any use of Alair at any time prior to the Spinoff Date. The term Pre-Spinoff Alair Claim shall not include any Other Claim. 1.13 Pre-Spinoff Alair Claim Loss means Loss (as defined below) actually suffered or incurred by Broncus or Asthmatx to the extent that such Loss is caused by, or results or arises from, a Pre-Spinoff Alair Claim. 1.14 Spinoff Date means December 30, 2003.