EXHIBIT 10.2


 


LEASE TERMINATION AGREEMENT 


 


For the Premises Located at

1125 Business Center Circle, Thousand Oaks, California


 


THIS LEASE TERMINATION
AGREEMENT (this “Agreement”) is dated and made effective as of
July 31, 2003 (the “Effective Date”), by and between 975 Business
Center, LLC, a Delaware limited liability company, 975 Courtyard, LLC, a
Delaware limited liability company, 975 Santa Barbara, LLC, a Delaware limited
liability company, as tenants-in-common (collectively, the “Lessor”) and
MacroPore Biosurgery, Inc., a Delaware corporation (the “Lessee”) with
regard to the following facts and intentions:


 


R E C I T A L S


 


A.                                   On or about July, 2, 2001, Thousand Oaks
Business Center Partnership, a California limited partnership, as the original
lessor, and StemSource, Inc., a Delaware corporation, as the original lessee,
entered into that certain Standard Industrial Lease, as amended, a copy of
which is attached hereto as Exhibit A (the “Lease”), covering certain
real property situated at 1125 Business Center Circle, Thousand Oaks,
California 91330 (the “Premises”).


 


B.             Thousand Oaks Business Center Partnership has
since transferred ownership of the Premises to the Lessor (i.e., 975 Business Center, LLC, a Delaware
limited liability company, 975 Courtyard, LLC, a Delaware limited liability
company and 975 Santa Barbara, LLC, a Delaware limited liability company, as
tenants-in-common).


 


C.             In connection with that certain Assignment
and Assumption of Lease dated October 31, 2002, and pursuant to the merger
of StemSource, Inc. with and into MacroPore Biosurgery, Inc., (“MacroPore”),
MacroPore has succeeded to the rights, responsibilities, obligations and duties
of StemSource, Inc. as the lessor under the Lease.


 


D.            The original term of the Lease expires July 24,
2006 (the “Original Termination Date”).


 


E.              The Lessee has vacated and surrendered the
Premises as of June 30, 2003.  The
Lessor has accepted Lessee’s surrender of the Premises effective as of
July 31, 2003.


 


F.              The parties desire to terminate the Lease
effective as of July 31, 2003 on the terms and conditions as set forth in
this Agreement.


 


A G R E E M E N T


 


In consideration of the mutual covenants contained herein, the
sufficiency of which are hereby acknowledged, the parties agree as follows:


 


Termination of Lease.  The parties agree to terminate the Lease effective as of
July 31, 2003 (the “Effective Date”, subject to fulfillment of the
following conditions:


 


(a)                                  Termination Payment of $240, 000.           As consideration for entering this Agreement,
Lessee shall pay Lessor, the sum of Two Hundred Forty Thousand Dollars
($240,000) (the “Termination Payment”) (which along with the Security
Deposit, shall be accepted by Lessor as complete accord and satisfaction for
all amounts currently or later due under the Lease).  Lessee shall deliver the Termination Payment to Lessor in c/o SIMA Management Corporation, 115 West
Canon Perdido Street, Suite 200, Santa Barbara, California 93101 on or before
5:00 p.m. August 12, 2003 (the “Payment Date”);


 


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(b)                                 Security Deposit Retained by Lessor.  As
additional consideration for entering this Agreement, Lessee hereby releases
any and all claim, lien, right, or interest to the Security Deposit that Lessee
(or StemSource, Inc.) may have in the Security Deposit (as described in the
Lease), including any accrued interest, claim for offset, or otherwise.  The Security Deposit, along with all accrued
interest shall become the property of the Lessor; and


 


(c)                                  Surrender of Possession of the Premises. 
Lessee shall surrender possession of the Premises, including any tenant
improvements constructed by Lessee during Lessee’s tenancy.


 


2.                                       Representations
and Warranties.  Each party hereby represents
to the other that:  (a) such party has
the sole legal power, right and authority to enter into this Agreement;
(b) all requisite corporate action has been taken by such party in
connection with entering into this Agreement; (c) no additional consent of
any individual, officer, director, shareholder, partner, member, manager,
trustee, trustor, beneficiary, creditor, investor, judicial or administrative
body, governmental authority or other party shall be required for such party to
consummate the transaction contemplated by this Agreement; and (d) Lessee is
the sole owner of the Lessee’s leasehold interest under the Lease, free of any
liens, subleases, claims or encumbrances; and (e) the individuals executing
this Agreement on behalf of such party have the legal power, right and actual
authority to bind such party to the terms and conditions hereof.


 


3.                                       General Indemnity.  Lessee shall indemnify, defend and hold
Lessor harmless (with counsel reasonably acceptable to Lessor) from and against
any and all claims, losses, liabilities and expenses, including attorneys’ fees
resulting from Lessee’s negligent use or occupation of the Premises.  Notwithstanding the foregoing, Lessor
represents and warrants that Lessor (including any representatives of Lessor)
are not as of the Effective Date, aware of any claim for indemnity against the
Lessee.


 


4.               Acceptance of Surrender of the Premises. 
Lessor accepts the surrender of the Premises by Lessee and acknowledges
that the Premises are in good condition and repair, and that no further removal
of any alterations is required.


 


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5.                                       Attorneys’
Fees.  If any action, lawsuit or proceeding
relating to this Agreement, or any default thereunder, whether or not any
action, lawsuit or proceeding is commenced, then the non-prevailing party shall
reimburse the prevailing party for its attorneys’ and expert witness’ fees and
costs and all fees, costs and expenses incurred in connection with such action,
lawsuit or proceeding, including, without limitation, any post-judgment fees,
costs or expenses incurred on any appeal, in collection of any judgment or in
appearing in any bankruptcy proceeding. 
The prevailing party shall be determined under Civil Code
Section 1717(b)(1) or any successor statute.


 


6.                                       Successors.  This Agreement shall be binding on and inure to the benefit of
the parties and their respective successors, heirs and assigns.


 


7.                                       Severability.  If any one or more provisions contained in
this Agreement is deemed invalid, illegal or unenforceable in any respect, such
provision shall be enforced to the fullest extent permissible by law, and the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.


 


8.                                       Entire
Agreement.  This Agreement represents the entire
agreement between the parties hereto and supersedes all prior negotiations,
discussions, offers, understandings, representations and agreements (whether
written or oral) with respect to the matters herein.


 


9.                                       Further
Assurances.  Each of the
parties shall deliver such further documents and instruments and shall take
such other actions as may be reasonably required or appropriate to evidence or
carry out the intent and purposes of this Agreement.


 


10.                                 Amendment;
Waiver.  This Agreement may
not be changed, waived, discharged or terminated, except by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.  No
delay, failure or discontinuance in exercising any right, remedy, power or
privilege hereunder shall affect or operate as a waiver of such right, remedy,
power or privilege hereunder.


 


11.                                 Governing
Law.  This Agreement was
made in and is to be performed entirely within the State of California, and its
interpretation, its construction and the remedies for its enforcement or breach
are to be applied pursuant to, and in accordance with the laws of the State of
California.


 


12.                                 Counterparts.  This Agreement may be executed by facsimile
and any number of counterparts and shall constitute an agreement binding on all
parties notwithstanding that all parties are not signatories to the original or
the same counterpart provided that all parties are furnished a copy or copies
thereof reflecting the signature of all parties.


 


13.                                 Definitions.  All capitalized terms not otherwise defined
herein shall have the meaning set forth in the Lease.


 


14.                                 Inconsistencies Between the Lease and this
Agreement.  If there is any conflict or inconsistency
between the terms of the Lease and the terms of this Agreement, then the terms
of this Agreement shall control.


 


15.                                 Confidentiality.              Lessor shall keep
confidential and cause its agents, contractors, employees and representatives
to keep confidential, and shall not divulge, disclose, communicate, use or
misuse, any documents, instruments, financial statements or other information
concerning the Premises, the Lease, this Agreement or any negotiations or
discussions with respect thereto between the parties (the


 


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“Confidential
Information”).  Notwithstanding the
foregoing, Lessee shall be entitled to disclose and communicate the
Confidential Information to its lenders, accountants, attorneys, and investors
and to the extent required by law to federal, state and local authorities,
provided that Lessee agrees to use reasonable efforts to notify such
governmental authorities that each party considers such information
confidential and to provide Lessor reasonable opportunity to legally stop such
disclosure.


 


16.                                 Brokers.  The parties hereto represent and warrant to
each other that neither party dealt with any broker or finder in connection
with the consummation of this Agreement and each party agrees to protect,
defend, indemnify, hold and save the other party harmless from and against any
and all claims or liabilities for brokerage commissions or finder’s fees
arising out of either of their acts in connection with this Agreement.


 


17.                                 Time is of the
Essence.  Time is of the essence of
each and every term, condition, obligation and provision hereof.  Lessee acknowledges it shall lose all rights
if Lessor fails to act in strict accordance within the terms, conditions and
time limits set forth herein.


 


IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed as of the day and
year first above written.


 


 


	
  Lessee:

  	
  Lessor:

  
	
   

  	
   

  
	
   

  	
  975 Business Center, LLC

  a Delaware limited liability company

  
	
  MacroPore
  Biosurgery, Inc.

  	
   

  
	
   

  	
   

  
	
  a Delaware
  corporation

  	
  By:

  	
  /s/

  	
  James P. Knell

  	
   

  
	
   

  	
  Name:

  	
   

  	
  James P. Knell

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
  By:

  	
  /s/ Christopher
  J. Calhoun

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Christopher J. Calhoun

  	
   

  	
  975 Courtyard, LLC

  
	
  Title:

  	
  President & CEO

  	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/

  	
  James P. Knell

  	
   

  
	
  By:

  	
   

  	
   

  	
  Name:

  	
   

  	
  James P. Knell

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  975 Santa Barbara, LLC, a Delaware limited

  liability company

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  8-8-03

  	
   

  	
  By:

  	
  /s/

  	
  James P. Knell

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
  James P. Knell

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  8-8-03

  	
   

  



 


 


Attachments


 


Exhibit A – Lease


 


4