EXHIBIT 10.28


 


LICENSE/
COMMERCIAL AGREEMENT


 


THIS LICENSE/ COMMERCIAL AGREEMENT
(this “Agreement”), dated as of the 4th day of November, 2005 (the “Effective Date”), is made and
entered into by and between OLYMPUS-CYTORI, INC., a Delaware corporation, located at 3020 Callan Road, San Diego, CA
92121 (“NewCo”) and CYTORI THERAPEUTICS, INC., a Delaware
corporation, located at 3020 Callan Road, San Diego, CA 92121 (“Cytori”).


 


(NewCo and Cytori may each
be individually referred to herein as a “Party” and
collectively as the “Parties”).


 


RECITALS


 


A. Cytori has acquired
and possesses, through the expenditure of considerable time, effort and money,
certain intellectual
property rights (including patents,
patent applications and technical information) to regenerative cell technology,
including scientific equipment used to carry out regenerative cell therapies
and treatments.


 


B.
On and subject to the terms and conditions set forth herein and pursuant to Section 2.3 of a
Joint Venture Agreement by and between Cytori and Olympus, dated as of November 4, 2005 (the “JVA”),
Cytori is prepared to grant to NewCo, and NewCo desires to obtain from Cytori,
an exclusive license to use such
intellectual property rights of Cytori for purposes of developing,
manufacturing and selling Licensed
Product(s) in the Licensed Field (as defined below).


 


C. Cytori shall purchase
from NewCo, and NewCo shall sell exclusively to Cytori, the Licensed Product(s)
on the terms and conditions set forth herein.


 


NOW, THEREFORE, in
consideration of the foregoing, the mutual promises herein contained, and for
other good and valuable consideration, the receipt and adequacy of which are
acknowledged, the Parties agree as follows:


 


1.                                      DEFINITIONS


 


1.1                                 Defined
Terms. As used in this Agreement, the capitalized terms set forth in this Section 1
shall have the following meanings:


 


“Affiliate”
means, as to any
Party, any Person that, directly or indirectly, controls, or is controlled by,
or is under common control with, such Party, where “control” (including, with
its correlative meanings, “controlled by” and “under common control with”)
means (a) the beneficial ownership of fifty percent (50%) or more of the
outstanding voting securities of a Party, or (b) the possession, directly
or indirectly, of the power to direct or cause the direction of management or
policies of a Party, whether through the ownership of securities or partnership
or other ownership interests, by contract or otherwise.


 


“Agreement”
shall have the meaning set forth in the Preamble.


 


“Business
Day” shall mean any day on which banking institutions are open
in the United States, and excluding national holidays in Japan.


 


“Commercial Term” shall have the
meaning set forth in Section 3.1.


 


“Cytori”
shall have the meaning set forth in the Preamble.


 

















 


“Cytori IP” shall mean all
Intellectual Property Rights owned by or licensed to Cytori as of the Closing
and any improvements thereto (specifically including, without limitation, the
Intellectual Property Rights listed in Schedule 1A and any improvements
thereto), to the extent that such Intellectual Property Rights are necessary to
design, develop, manufacture, test, analyze, offer to sell to Cytori, sell to
Cytori and service Licensed Product(s).


 


“Delivery Date”
shall mean the date of delivery of Licensed Product(s) by NewCo to Cytori.


 


“Documentation”
shall mean the user and technical manuals and other documentation necessary in
connection with commercialization of the Licensed Products.


 


“Effective
Date” shall have the meaning set forth in the Preamble.


 


“Force
Majeure Event” shall have the meaning set forth in Section 3.10.1


 


“Forecast”
shall have the meaning set forth in Section 3.4.5


 


“Forecast
Period” shall have the meaning set forth in Section 3.4.5


 


“Intellectual Property Rights” shall
mean (a) all inventions (whether patentable or unpatentable and whether or
not actually reduced to practice), all improvements thereto (but only if
such improvements relate to inventions in existence as of the Closing), and all patents, provisional and non-provisional
patent applications and patent disclosures, together with all reissuances,
divisions, continuations, continuations-in-part, renewals, extensions and reexaminations thereof, (b) all
copyrightable works, all works of authorship, all copyrights, and all
applications, registrations and renewals in connection therewith, (c) all
mask works and all applications, registrations and renewals in connection
therewith, (d) all trademarks, service marks, trade names, service names,
brand names, trade dress rights, logos, Internet domain names and corporate
names, together with the goodwill associated with any of the foregoing, (e) all
trade secrets and confidential business information (including, but not limited
to, ideas, research and development information, know-how, formulas,
compositions, biochemical and biological materials, reagents, assays, manufacturing and production processes and
techniques, technical data, data base rights, designs, drawings,
specifications, customer and supplier lists, pricing and cost information and
business and marketing plans and proposals, and (f) any and all
applications and registrations of the foregoing (in any jurisdiction).


 


“Initial Training” shall have the
meaning set forth in Section 2.2.2


 


“JVA” shall have the meaning set
forth in Recital B.


 


“License/ Joint Development Agreement”
shall mean the License/ Joint Development Agreement of even date herewith and
entered into by and among Cytori, Olympus (and NewCo Prior to Closing).


 


“Licensed Field” shall
mean the use of the Licensed IP for the purpose of designing, developing, manufacturing, testing and servicing Licensed Products for
sale exclusively from NewCo to Cytori.


 


“Licensed IP” shall mean all
Intellectual Property Rights owned or controlled by either Party which are necessary
or useful to design, develop, manufacture, test, analyze, market, offer to sell
to Cytori, sell to Cytori and service all current and future generations of the
Licensed Product(s). The term “Licensed IP” shall include Cytori IP and NewCo
IP.


 

















 


“Licensed Product(s)” shall mean any automated
devices (and related component parts) that ***

                                                ***  separate and concentrate *** cells (including
stem cells and other regenerative cells) from harvested adipose tissue (fat
tissue). The device components include, but are not limited to,


	
   

  	
   

  	
  ***

  
	
   

  	
   

  	
  ***

  
	
   

  	
   

  	
  ***.

  



 


“Liens” shall mean all liens,
pledges, charges, mortgages, deeds of trust, hypothecations, title defects,
restrictions, conditions, easements, claims, options, leases, rights of
possession or use, encumbrances, adverse rights or claims and security
interests of any kind or nature whatsoever (including any restriction on the
right to vote or transfer), whether voluntarily incurred or arising by
operation of law or
otherwise, including, without limitation, any written or oral agreement to give
or grant any of the foregoing.


 


“NewCo”
shall have the meaning set forth in the Preamble.


 


“NewCo IP” shall mean all
Intellectual Property Rights owned by or acquired by NewCo in connection with
and during the term of the JVA, including licenses granted to NewCo with
respect to Cytori IP and Olympus IP.


 


“NewCo Share
Subscription Agreement” shall mean the share subscription
agreement of even date herewith and entered into by and between Cytori and
NewCo.


 


“Order(s)” shall have the meaning
set forth in Section 3.4.1.


 


“Party”
and “Parties” shall have the meaning set
forth in the Preamble.


 


“Person” shall mean an association,
corporation, individual, partnership, trust or any other entity or
organization, including a governmental entity, other than a Party.


 


“Rules” shall have the meaning set
forth in Section 4.3.


 


“Term” shall
have the meaning set forth in Section 2.4.


 


“Three-Way NDA” shall mean the
Three-Way Non-Disclosure Agreement, dated November 4, 2005, entered into by
and among Cytori, Olympus and NewCo.


 


“Trademark”
shall mean all trademarks, service marks, trademark and service mark
applications, trade dress, trade names, logos, insignia, symbols, designs or
other marks identifying a party or its products.


 


“Warranty Period”
shall have the meaning set forth in Section 3.6.1.


 


“Yearly Training” shall have the
meaning set forth in Section 2.2.2


 


1.2                                 References.
In this Agreement, a reference to:


 


(a)                                  A
Section, Sub-section, Preamble, Recital, Attachment, Schedule or Exhibit is,
unless the context otherwise requires, a reference to a section or sub-section of,
or a preamble, recital, attachment, schedule or exhibit to, this
Agreement;


 






*** Material has been omitted pursuant to a
request for confidential treatment filed separately with the Securities and
Exchange Commission.


 

















 


(b)                                 “This
Agreement” (or any specific provision hereof) shall be construed as references
to this Agreement or that provision as amended, varied or modified from time to
time;


 


(c)                                  “¥”
or “JPY” refers to Japanese Yen, the lawful currency for the time being of
Japan. “$” or “USD” refers to United States Dollars, the lawful currency for
the time being of the United States of America; and


 


(d)                                 All
references in this Agreement to “days” will, unless otherwise specified herein,
mean calendar days.


 


1.3                                 Headings.
Headings in this Agreement are for ease of reference only and shall not affect
the interpretation or construction of this Agreement.


 


1.4                                 Attachments,
Schedules and Exhibits. The Attachments, Schedules and Exhibits attached
hereto are incorporated herein and form a part of this Agreement.


 


2.                                      THE
LICENSE GRANTED BY CYTORI


 


2.1                                 License
Grant and Sublicenses.


 


2.1.1                        Cytori
License Grant. Subject to the terms, conditions and limitations set forth
in this Agreement (including Sections 2.1.4 and 2.1.5 below) and the JVA (with
its Ancillary Agreements), and in
consideration of the royalty payment to be made by NewCo to Cytori under Section 2.3,
Cytori hereby grants to NewCo an
exclusive, perpetual, sublicenseable, irrevocable,
fully paid-up, worldwide license
under the Cytori IP (including any improvements thereto) in the Licensed Field,
to design, develop, make,
have made, use, translate, perform, service, maintain, import,
offer to sell and sell Licensed
Product(s), each Deliverable and any part or component thereof, as
contemplated by the JVA. The right of NewCo to grant sublicenses to any third
party other than Olympus under such Cytori IP shall be subject to the consent
of Cytori, which shall not be unreasonably withheld or delayed. The sublicense
granted with respect to U.S. Patent #6,777,231 shall be subject to all of the
terms and conditions disclosed to NewCo of the license granted by the
University of California Regents, excepting only the obligation with respect to
the payment of royalties.


 


2.1.2                        [reserved]


 


2.1.3                        Sublicenses.
The license granted to NewCo pursuant
to Section 2.1.1 shall be
sublicensable by NewCo, without any
additional compensation to Cytori.


 


2.1.4                        Sales and Distribution. NewCo acknowledges and agrees that its right
of sale and distribution under its license from Cytori pursuant to this Section 2
is solely limited to NewCo’s right to sell and distribute exclusively to Cytori
the Licensed Product(s) within the Licensed Field in accordance with Section 3
herein.


 


2.1.5                        Reservation of Rights for Cytori to Use the
Cytori IP. Cytori has and
shall retain an unrestricted right to use all Cytori IP for the development,
manufacture and sale of a first generation of commercial Licensed Product(s);
provided that such Licensed Product(s) may only be used for regulatory and
clinical trial purposes, and may not otherwise be generally commercially
released, unless NewCo has failed to produce a successful commercial Licensed
Product line within   ***   from
the Effective Date. NewCo shall not be liable in any way for the commercial use
of the first generation Licensed Product


 






*** Material has been omitted pursuant to a
request for confidential treatment filed separately with the Securities and Exchange
Commission.


 

















 


unless
it affirmatively elects to do so in writing. Cytori shall share all such first
generation Licensed Product development information with NewCo, and NewCo shall
be entitled to incorporate any such information and data into NewCo’s Licensed
Product(s). At any time that NewCo has a successful commercial Licensed
Product(s) available for any specific therapeutic application, Cytori shall not
have the right to offer for sale the first generation Licensed Product (unless
NewCo is unable to fulfill Cytori’s Orders for such Licensed Product(s) in
accordance with Section 3 herein). For avoidance of doubt, Cytori shall
not sell any competing product for the first *** from the effective date.
Cytori reserves all rights to itself to use and exploit the Cytori IP for the
further development of all therapeutic applications of the Cytori IP in all
fields of use.


 


2.1.6                        Irrevocable License. For the avoidance of doubt, and subject to
the termination rights of Cytori provided in Section 8.3(c) of the
Shareholders Agreement, the license granted to NewCo under Section 2.1.1 shall not be
subject to revocation by a Party or be otherwise affected by any matter
whatsoever, including, without limitation, termination of this Agreement, breach of this Agreement by NewCo, impossibility, impracticality, frustration
of purpose, force majeure, acts of governments or the insolvency of either Party. In view of the fact that such license granted to NewCo by Cytori
is irrevocable, any breach by NewCo of any restriction or obligation connected
with this license grant shall entitle Cytori to recovery of reasonable
attorneys fees associated with enforcing this Agreement..


 


2.1.7                        Authority. Cytori hereby represents and warrants that it is the owner of or enjoys
all the right, title and interest required to grant the license under Cytori IP
to NewCo pursuant to this Section 2.1. In the event that, during the term
of this Agreement, Cytori no longer has the authority to license NewCo under
all or part of the Cytori IP, it shall coordinate and further execute an
appropriate agreement and/or arrangement within sixty (60) days from the date
when such lack of authority is found. In case Cytori fails to coordinate and
further execute such appropriate agreement and/or arrangement during such
60-day period, Cytori shall be deemed to be in material breach of this
Agreement.


 


2.1.8                        Cytori
shall not grant any license of the
Cytori IP to any third party for the purpose of designing, developing,
manufacturing, testing and servicing of Licensed Products. In the Licensed
Field Cytori shall not make use of the Cytori IP for the purpose of designing,
developing, manufacturing, testing and servicing of Licensed Products, except
in accordance with the rights reserved in Section 2.1.5 above.


 


2.2                                 Disclosure of Cytori IP.


 


2.2.1                        Subject to the terms, conditions and
limitations set forth in this Agreement, Cytori has delivered and disclosed to
NewCo or its designee, or shall, within thirty (30) days from the Effective
Date, deliver and disclose to NewCo or its designee, and NewCo may disclose
to Olympus in accordance with the License/ Joint Development Agreement, (a) any
documentation, data, diagrams, and other information embodying the Cytori IP
that is necessary or useful for NewCo to use and practice the Cytori IP under
the license granted to NewCo under Section 2.1.1, including, without
limitation, the documents listed and described in Schedule 2.2.1,
and (b) any other information or documentation relevant to the Cytori IP
or Licensed Product(s), and/or which is necessary or useful for NewCo’s performance
of its obligations under this Agreement or the License/ Joint Development Agreement, and/or that NewCo may reasonably
request and that Cytori is reasonably able to provide.


 


2.2.2                        Cytori shall provide employees of NewCo
or employees of NewCo’s designee with training in relation to the Licensed Product(s). The initial training by Cytori shall be provided free of charge, and shall be conducted at the offices of Cytori (as
set forth in the Preamble of this Agreement) (the “Initial Training”). Free training by Cytori shall also be provided
to NewCo employees or employees of its designee once every calendar year in relation to any pertinent
improvements or results of research and development conducted by Cytori
pursuant to the License/ Joint Development Agreement (each, a “Yearly Training”). The scope, amount and timing of the Initial Training and each Yearly Training shall be


 

















 


mutually agreed by the Parties, but shall at least meet
the parameters set forth in Schedule 2.2.2. All such training shall be
in English. NewCo
or its designee shall bear all
travel and living expenses of its employees that are sent to Cytori for purposes of receiving the Initial Training and each Yearly Training. Any additional training beyond Initial Training and each
Yearly Training shall be mutually agreed by the
Parties.


 


2.3                                 License
Consideration and Payments.


 


2.3.1                        In consideration of the license granted by Cytori to NewCo pursuant to Section 2,
and Cytori’s other obligations set forth herein, NewCo shall:


 


(a)                                  Issue to Cytori one thousand (1,000) common
shares of NewCo, as a payment in
kind to Cytori that represents a one-time royalty payment of   ***  United States Dollars (USD ***) as fair market value, in accordance with
the NewCo Share Subscription Agreement; and


 


(b)                                 Pay
to Cytori in cash, by wire transfer of immediately available funds to a bank
account designated by Cytori in writing,
upon the following payment terms, the amount of *** United States Dollars (USD ***) as non-recurring royalty payments.


 


(c)                                  Only in the event of a dissolution of NewCo as
provided for in Section 8.4(ii) of the Shareholders Agreement, Licensee
(NewCo) shall pay Cytori a supplemental royalty equal to ***


	
   

  	
   

  	
  ***

  	
   

  	
   

  	
  (or a
  supplemental royalty that equals the

  	
   

  	
  ***

  
	
   

  	
   

  	
   

  	
   

  	
  ***

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  ***.

  	
   

  	
   

  	
   

  	
   

  



 


(d) Only in the event of a dissolution of NewCo as provided for in Section 8.4(ii) of
the Shareholders Agreement, Licensee shall at all times have an
obligation to use commercially reasonable efforts to supply Licensed Products
to Cytori. Notwithstanding the foregoing, in the event of a change in control
of Olympus Corporation, Licensee, its successors and assigns shall be required
at all times to use “best efforts” to supply Licensed Products to Cytori.


 


2.3.2                         The Parties agree and acknowledge that the
license granted to NewCo under Section 2.1.1 shall be granted and fully
paid-up (subject to Section 2.3.1(c) above) upon issuance by NewCo of
common stock of NewCo to Cytori in accordance with the NewCo Share Subscription
Agreement and the wire transfer specified in Section 2.3.1(b) above.


 


2.4                                 Term and Termination.


 


2.4.1                        Term of this Agreement. The term of this Agreement (“Term”) shall commence on the Effective Date and shall
continue in full force and effect until expiration of all Intellectual Property
Rights included within the license of Cytori IP granted to NewCo pursuant to Section 2.1.1.


 


2.5                                 Representations and Warranties.


 


2.5.1                        Representations and Warranties of
Cytori. Cytori
represents and warrants to NewCo that:


 


(a)                                  Cytori
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware,
and that Cytori has full power and
authority, and has taken all action necessary, to execute and deliver this Agreement
and to fulfill its obligations under, and to consummate the


 






*** Material has been omitted pursuant to a
request for confidential treatment filed separately with the Securities and
Exchange Commission.


 

















 


transactions contemplated
by, this Agreement.


 


(b)                                 The
execution, delivery and performance of this Agreement by Cytori will not result
in any breach or violation of, or conflict with, any contract, agreement,
undertaking, judgment, decree, order, law, regulation or rule to which
Cytori is a party or by which Cytori or any of its assets are bound.


 


(c)                                  This
Agreement has been duly and validly executed and delivered by Cytori and is
binding upon and enforceable against Cytori in accordance with its terms,
except as enforceability may be limited or affected by applicable
bankruptcy, insolvency, reorganization or other laws of general application
relating to or affecting the rights of creditors and except as enforceability may be
limited by rules of law governing specific performance, injunctive relief or
other equitable remedies.


 


(d)                                 The Cytori IP and Intellectual Property Rights
listed and described in Schedule 1A (i) constitute, to Cytori’s
best knowledge as of the Effective Date, all of the Intellectual Property
Rights used by Cytori to develop, manufacture and sell the Licensed Product(s),
(ii) have been duly registered (as applicable), properly maintained (as in
relation to the confidential nature of or controlled use of certain
Intellectual Property Rights, such as trade secrets and trademarks), and are
subject to protection and are in full force and effect in the countries listed
in Schedule 1A, and (iii) except to the extent expressly
provided under this Agreement (including the Patent Dispute), are free and
clear of all Liens. To the knowledge of Cytori, (I) there are no threatened or
pending claims that Cytori’s development and manufacture of the Licensed
Product(s) infringe the Intellectual Property Rights of any third party, or
that any portion of the Cytori IP is invalid or unenforceable, and (II) to
Cytori’s Best knowledge no third party is infringing any of the Cytori IP.


 


(e)                                  Cytori has the right and authority to grant the
licenses provided under Section 2.1.1 herein.


 


2.5.2                        Representations and Warranties of
NewCo. NewCo
represents and warrants to Cytori that:


 


(a)                                  NewCo
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware,
and that NewCo has full power and authority, and has taken all action
necessary, to execute and deliver this Agreement and to fulfill its obligations
under, and to consummate the transactions contemplated by, this Agreement.


 


(b)                                 The
execution, delivery and performance of this Agreement by NewCo will not result
in any breach or violation of, or conflict with, any contract, agreement,
undertaking, judgment, decree, order, law, regulation or rule to which
NewCo is a party or by which NewCo or any of its assets are bound.


 


(c)                                  This
Agreement has been duly and validly executed and delivered by NewCo and is
binding upon and enforceable against NewCo in accordance with its terms, except
as enforceability may be limited or affected by applicable bankruptcy,
insolvency, reorganization or other laws of general application relating to or
affecting the rights of creditors, and except as enforceability may be
limited by rules of law governing specific performance, injunctive relief
or other equitable remedies.


 


2.6                                 Litigation.


 


2.6.1                        Notification
of Infringement. Each Party shall promptly notify the other Party in
writing of any suspected infringement(s)
of any Cytori IP in any jurisdiction of which it becomes aware, and shall inform the other Party of
any evidence of such infringement(s).


 

















 


2.6.2                        NewCo’s
Right to Bring Suit. NewCo shall have the first right to institute suit for
any infringement(s) of the Cytori IP in all Fields of Use, including those
outside of the Licensed Field. Cytori agrees to join as a plaintiff in any such
lawsuit initiated by NewCo, if requested by NewCo, with all Cytori’s costs,
attorneys’ fees and expenses in joining such lawsuit to be paid by NewCo. If NewCo fails to institute suit for such
infringement(s) within sixty (60) days after receipt of written notice
from Cytori of Cytori’s desire to bring suit for such infringement(s) in its
own name and on its own behalf, then Cytori may, at its own expense, bring such
suit or take any other action as Cytori may, in its sole discretion, deem
appropriate In the event that NewCo does
not have any right to institute such suit due to any legal restrictions,  then, if requested by NewCo, Cytori agrees to
institute such suit.


 


2.6.5                        Settlements.
NewCo shall not settle with an infringing third party in connection with any
suit initiated pursuant to Section 2.6.2 without the prior written consent
of Cytori. Cytori shall not settle with an infringing third party in connection
with any suit initiated pursuant to Section 2.6.2 without the prior
written consent of NewCo, if such settlement would affect NewCo’s license
rights under this Agreement.


 


3.                                      COMMERCIAL
AGREEMENT


 


3.1                                 Commericial
Term. The term of the commercial
agreement between the Parties set forth in this Section 3 (“Commercial Term”) shall commence on the Effective Date and
shall continue in full force and effect, unless terminated by mutual agreement
of the Parties.


 


3.2                                 Exclusive
Sales Arrangement. NewCo agrees to exclusively sell
(whether directly or indirectly) to
Cytori, and Cytori agrees to purchase from NewCo, the Licensed Product(s), at a price that is determined in accordance with Section 3.3. NewCo’s sale
of Licensed Product(s) to Cytori, and Cytori’s purchase of Licensed Product(s),
shall be in accordance with all of
the terms and conditions set forth in this Section 3 and the Orders
submitted by Cytori and accepted by NewCo, as further described in Section 3.4
of this Agreement.


 


3.3                                 Prices and Payment Terms.


 


3.3.1                        Product Price. The
transfer price for the Licensed Product(s) shall be    ***


	
   

  	
   

  	
  ***

  
	
   

  	
   

  	
  ***.

  



 


3.3.2                        Invoicing
and Payment Procedure. NewCo shall invoice Cytori concurrently with its
delivery of the Licensed Product(s) ordered by Cytori. Cytori shall pay for the Licensed Product(s) delivered in
accordance with each Order within a maximum of forty-five (45) calendar days (with the final term
of payment to be agreed later) from the date that Cytori receives the
corresponding invoice issued by
NewCo. Invoices issued by NewCo shall reference the relevant Order number, and
indicate (a) applicable tax
(if any), (b) quantities of
Licensed Product(s) shipped by NewCo, and
(c) date of shipment of the Licensed
Product(s) to Cytori or its designee.


 


3.3.3                        Late
Payment. If any payment amount under any invoice issued by NewCo pursuant to Section 3.3.2
becomes overdue, Cytori shall pay to NewCo, upon written demand from NewCo, interest on the unpaid, overdue,
balance at the lesser of (a) the maximum rate permitted by law, and (b) ten percent (10%) per annum on the outstanding, balance. To the extent that any payment of Cytori is overdue, payments received by NewCo from Cytori shall first be applied to any such accrued but
unpaid overdue amount.


 






*** Material has been omitted pursuant to a
request for confidential treatment filed separately with the Securities and
Exchange Commission.


 

















 


3.4                                 Order
and Forecast.


 


3.4.1                        Orders.
The purchase and sale of the Licensed Product(s) hereunder shall be made by
written or electronic purchase order issued by Cytori to NewCo, for purchase of Licensed Product(s) by
Cytori from NewCo (“Order(s)”).
Cytori shall, on or before the first Business Day of each month during the Commercial
Term, place an Order for Licensed Product(s) in amounts for such month that are in
accordance with the applicable Forecast(s) previously submitted by Cytori in accordance with this Section 3.4.
The Delivery Date specified in an Order shall be no later than the last day of
the month immediately following the month in which each relevant Order is
placed by Cytori. Each Order will include: (a) a reference to this Agreement and Section, (b) Order quantities, (c) specifications
and/or type/model number of the Licensed Product(s) ordered; (d) each
Licensed Product unit price and the total
price for all Licensed Product(s) in the Order, (e) shipping
instructions, (f) requested Delivery Date in accordance with this Section 3.4.1 (including Delivery Dates for
partial shipments of ordered Licensed Product(s) on different dates); and (g) shipping
and billing address. In the event of any conflict between or among the terms
and conditions of this Agreement and the terms and conditions specified in a
Order (including Order acknowledgement by
NewCo), such provisions shall be construed in a mutually consistent
manner or, if such construction is not reasonably possible, the provisions of
this Agreement shall govern and
prevail.


 


3.4.2                        Order
Acknowledgment. NewCo shall
confirm its receipt of an Order electronically or by facsimile to Cytori within five (5) Business
Days of NewCo’s receipt of each such
Order, stating the applicable
Product purchase price and expected Delivery Date. For any Orders that
exceed one hundred twenty-five percent (125%) of the applicable Forecast in quantity, NewCo may reject such
Orders to the extent such Order exceeds 125% of the applicable Forecast. NewCo
shall specifically acknowledge or reject
any Order that exceeds 125% of the
Forecast within five (5) Business Days from the date on which NewCo
receives such Order.


 


3.4.3                        Order
Address. All Orders shall be
sent to the following address:


 


Olympus-Cytori, Inc.


3020 Callan Road


San Diego, CA 92121,
U.S.A.


[Facsimile
Number]


[e-mail
address]


 


3.4.4                        Order Changes. Once
submitted, Orders may not be withdrawn, revoked or altered in any way by
Cytori without NewCo’s prior written consent. Furthermore, except as
specifically provided herein or otherwise agreed by NewCo and Cytori, Orders accepted by NewCo may not be withdrawn, revoked, altered or
cancelled.


 


3.4.5                        Partially
Binding Forecast. Once NewCo is ready to deliver Final Products (as such
term is defined in the License/ Joint Development Agreement) to Cytori, on the
[15th ] day of every calendar
month during the Term (or, if such day is not a Business Day, then on the
immediately following Business Day), CYTORI
shall submit to NEWCO a six (6) month
rolling, partially binding forecast (each a “Forecast”)
of the quantities of each Product
anticipated to be purchased during the upcoming six (6) calendar month
period (the “Forecast Period”). Each Forecast, and the quantities
forecasted for purchase during the Forecast Period covered thereby, shall be
partially binding upon CYTORI and NEWCO as follows:


 


	
  Month after delivery of

  	
   

  	
  ***

  



 






*** Material has been omitted pursuant to a
request for confidential treatment filed separately with the Securities and
Exchange Commission.


 

















 


	
  Forecast by CYTORI

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Month 1:

  	
   

  	
  ***



  
	
  Month 2:

  	
   

  	
  ***



  
	
  Month 3:

  ***

  	
   

  	
  ***



  
	
  Month 4:

  ***

  	
   

  	
  ***



  
	
  Month 5:

  	
   

  	
  ***



  
	
  Month 6:

  	
   

  	
  ***



  



 


3.4.6                        Manufacturing Capacity. The Parties agree and
acknowledge that NewCo cannot manufacture, or procure the manufacture of,
Licensed Product(s) beyond the levels specified
in Schedule 3.4.6 (as amended from time to time) during any given
calendar quarter. Accordingly, it is further agreed and acknowledged by the
Parties that any Forecasts submitted that are in excess of the stated
production capacities will not be binding on any of the Parties to the extent
that the forecasted quantity exceeds such capacity.


 


3.4.7                        Non-Binding
Minimum Purchase Forecast. The following quantities of the Products per
year is a good faith estimate on which Cytori shall endeavor to purchase from
NewCo up to the eighth (8th) anniversary from the year when the
Product is ready for sale under the Joint Development Agreement, provided that
both parties recognize that such estimate shall be non-binding :


 




	
   

  	
   

  	
  Year 1

  	
   

  	
  Year 2

  	
   

  	
  Year 3

  	
   

  	
  Year 4

  	
   

  
	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  






 




	
   

  	
   

  	
  Year 5

  	
   

  	
  Year 6

  	
   

  	
  Year 7

  	
   

  	
  Year 8

  	
   

  
	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  






 


3.4.8                        Marketing Obligations of Cytori. Beginning when the Licensed Product is
ready for sale in accordance with the terms of the Joint Development Agreement
Cytori shall at all times use commercially reasonable efforts to market
Licensed Products, provided that in the event of a Change of Control of Cytori,
Cytori, its successors and assigns shall at all times be required to utilize
its best efforts to market the Licensed Products supplied hereunder.


 


3.5                                 Inventory
Management and Shipment of Products.


 


3.5.1                        Shipment.
Unless otherwise specifically agreed between the Parties in writing, NewCo
shall, at its own expense, procure from contract manufacturer(s), if any,
shipment and delivery of Licensed Product(s) ex works (Japan, manufacturing subcontractor facilities, as
interpreted in accordance with INCOTERMS 2000).


 


3.5.2                        Title
and Risk of Loss. Risk of loss and title to any Licensed Product(s) purchased
by Cytori pursuant to this Agreement shall pass from NewCo to Cytori FOB
shipping point.


 


3.5.3                        Notice
of Inability to Deliver Licensed Product(s). NewCo shall provide Cytori
with immediate


 

















 


written notice if NewCo becomes aware that it will not
be able to deliver the relevant Licensed Product(s) on or within three (3) days
prior to the relevant Delivery Date specified in an accepted Order, or if NewCo
becomes aware that only a portion of the relevant Licensed Product(s) can be
delivered on or within three (3) days prior to the relevant Delivery Date
specified in an accepted Order. Upon receipt by Cytori of such notice from
NewCo, Cytori shall instruct NewCo to either (a) deliver such deliverable
portion of the Licensed Product(s) in accordance with this Agreement and
relevant Order, or (b) reschedule shipment of all or a portion of
such Licensed Product(s). If NewCo delivers a portion of the Licensed
Product(s) ordered under a certain Order pursuant to Cytori’s instructions
issued by Cytori pursuant to item (a) of this Section 3.5.3, NewCo shall,
at NewCo’s sole cost and expense (including air transportation) and upon
becoming able to complete such Order, promptly deliver all remaining
undelivered Licensed Product(s) specified in such partially performed Order by
air transportation, or such other means of transportation directed by and/or
reasonably acceptable to Cytori.


 


3.5.4                        Inventory of Cytori. Cytori shall maintain a sufficient amount of
Licensed Product(s) inventory to meet its reasonably expected market demand for
thirty (30) days.


 


3.6                                 Product
Warranties.


 


3.6.1.                     Product Warranties. NewCo
warrants to Cytori for a period that is the lesser of: (a) twenty-three
(23) months from the Delivery Date of the relevant Licensed Product(s) by NewCo
to Cytori; or (b) twelve (12) months from the date of installation of such
Licensed Product(s) by Cytori or its designee to the end-user or customer, (the
applicable period referred to herein as the “Warranty
Period”), that any such Licensed Product(s) sold by NewCo to Cytori
hereunder shall:


 


(i)                                     operate in
a manner that meets the relevant Licensed Product(s) specifications to be mutually
agreed by the Parties; and


 


(ii)                                  be free
from defects, for reason(s) attributable to NewCo, in material, design and workmanship.


 


3.6.2                        Warranty
Obligations. During the Warranty Period, and subject to NewCo’s
confirmation
and acceptance of any warranty claim asserted by Cytori in
connection with this Section 3.6, NewCo shall, at its sole cost and expense, and
in NewCo’s sole discretion, either repair or replace any such non-conforming or
malfunctioning Licensed Product(s) within a reasonable period of time (as
mutually agreed by the Parties). NewCo’s warranty obligations under this Section 3.6
shall not apply to: (a) malfunctions or damages caused by any Force
Majeure Event; (b) malfunctions that are the result of improper storage,
installation, use, maintenance or repair by Cytori, its
agents, distributors or customers; (c) malfunctions caused by improper
operation of the Licensed Product(s), or use of the Licensed Product(s)
with any equipment, software, hardware, or device not authorized by NewCo; and (d) malfunctions
or damages caused by the defects or failure of non- Licensed Product
equipment, parts or service supplied by Cytori.


 


3.6.3                        Disclaimer
of Warranty. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 3.6,
NEWCO DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING. NEWCO DOES NOT WARRANT
THAT ALL DEFICIENCIES, ERRORS, DEFECTS OR NON-CONFORMITIES OF THE LICENSED
PRODUCT(S) OR PARTS OR COMPONENTS THEREOF
(WHETHER DIRECTLY OR INDIRECTLY) SUPPLIED BY NEWCO CAN BE CORRECTED.


 


3.7                                 Obsolescence.


 


3.7.1                        Discontinuance
by NewCo. NewCo agrees and acknowledges that it has an obligation to


 

















 


manufacture, supply and support the Licensed
Product(s) without interruption during the Commercial Term. If NewCo wishes to
discontinue the manufacture and supply of any particular Licensed Product(s)
during the Commercial Term, NewCo shall provide written notice of such desire
to Cytori not less than twelve (12) months in advance of the last date such
Licensed Product(s) can be ordered. Upon Cytori’s receipt of any such
discontinuance notice by NewCo, NewCo shall provide Cytori with the appropriate
designation for a suitable replacement Licensed Product(s), unless the Parties
have mutually agreed to no longer sell such discontinued Licensed Product type.
Provided that support for discontinued products shall not be required for more
than seven years from the date of discontinuance.


 


3.7.2                        Final Order. Prior to the
effective date of the (a) the expiration or sooner termination of this
Agreement, or (b) discontinuance of any Licensed Product(s) by NewCo under
Section 3.7.1, Cytori may make, and NewCo agrees to accept, a final
Order for the relevant Licensed Product(s) to be paid for and shipped during a
period commencing on the date of any such expiration, sooner termination or
discontinuance, and ending on the date that is six (6) months after such
date of any such expiration, sooner termination or discontinuance.


 


3.8                                 Marketing,
Licensing and Insurance.


 


3.8.1                        Marketing
Authority. Cytori retains the sole and exclusive right and authority to
market the Licensed Product(s) worldwide, to the extent it deems appropriate,
in its discretion. Upon NewCo’s
reasonable request, Cytori, when reasonably practicable, shall allow NewCo’s
personnel to participate in Cytori’s general marketing research activities in
relation to the Licensed Product(s).


 


3.8.2.                     No Rights
In Marks. Unless otherwise agreed by the Parties in writing, nothing in
this Agreement shall be construed
to grant either Party any rights in any Trademarks of the other Party. Notwithstanding the immediately
preceding sentence, Cytori hereby authorizes NewCo, only for the purposes of
labeling the Licensed Product(s), to use the Licensed Product(s)-related
Trademark(s) of Cytori, and NewCo hereby authorizes Cytori, only for the
purposes of labeling and selling the Licensed Product(s), to use the Licensed
Product-related Trademark(s) of Olympus-Cytori (subject to approval by Olympus).
For the avoidance of doubt, NewCo is not granted any right or authority to use
Trademarks of Cytori for any other use, unless otherwise expressly authorized
by Cytori in writing.


 


3.8.3                        Documentation. Responsibility for the preparation of any
necessary manuals for the Licensed Products shall be as mutually agreed prior
to commercialization.


 


3.8.4                        Insurance.
Each Party will, at its sole discretion, maintain adequate commercial general
liability insurance and product liability insurance, in amounts which are
reasonable and customary. Subject to reasonable insurance policy limitations
and exclusions, such product liability insurance of each Party shall insure
against all liability arising out of the use, manufacture (including packaging and delivery),
sale, offer for sale, importation, distribution, marketing and promotion of the
Licensed Product(s) throughout the world.


 


3.9                                 Country
of Manufacture.


 


3.9.1                        Country of Origin
Certification. Upon Cytori’s request, NewCo shall provide Cytori with an
appropriate certification stating the country of origin for Licensed
Product(s), sufficient to satisfy the requirements of the customs authorities
of the country of receipt and any applicable export licensing regulations,
including those of the United States.


 


3.9.2                        Country of Origin Marking.
NewCo will mark each Licensed Product(s) (or the Licensed Product container, if
there is no room on the Licensed Product), with the country of origin. NewCo
will, in so marking Licensed Product(s), comply with the requirements of the
customs authorities of the country of


 

















 


receipt.


 


3.9.3                        Customs
Authorities; Export Regulations. Cytori shall notify NewCo of any
requirement from applicable customs authorities, and NewCo will comply in a
timely manner with such requirements. Upon Cytori’s reasonable request, NewCo
shall assist Cytori with certification stating the country of origin to satisfy
the requirements of: (a) the customs authorities of the country of receipt
and the countries of Cytori’s distribution operations; and (b) any
applicable export licensing regulations, including those of the United States.


 


3.9.4                        Costs and Expenses. NewCo
will solely bear its costs incurred in connection with Sections 3.9.1, 3.9.2
and 3.9.3. In the event of significant changes in cost as a consequence of
modification of law, rule, regulation and/or governmental order, such cost may be
allocated between NewCo and Cytori, if such allocation is fair and reasonable,
and if the Parties mutually agree to such allocation. The Parties will
negotiate any such allocation in good faith.


 


3.10                           Force
Majeure Events.


 


3.10.1                  Force Majeure.
To the extent that either Party to this Agreement is temporarily unable to perform its
obligations hereunder, in whole or in part, due to causes beyond such Party’s
reasonable control, including, but not limited to, acts of God, acts of war,
acts of terrorism, civil disturbance, governmental action, strikes, fire,
flood, typhoon, peril or accident at sea, inability to secure materials and
transportation or facilities, walkouts or
lock-outs or other labor disputes beyond the reasonable control of such Party
(each, a “Force Majeure Event”), the time
for performing such Party’s obligations will be extended until such time (a) as
the Force Majeure Event has been resolved or otherwise mitigated or eliminated,
or (b) as mutually agreed by the Parties, and in case of either (a) or
(b), so as not to materially impede or prevent performance of such Party’s
obligations; provided, however, that the Party claiming the benefit of this
provision shall provide to the other Party prompt written notice and reasonable
evidence of the occurrence of such Force Majeure Event, and shall cooperate
with the other Party in taking all such commercially reasonable actions as may be
necessary or appropriate to mitigate, avoid or lessen the adverse effects of
such Force Majeure Event, as it may relate to the performance of each
Party’s respective obligations hereunder. In no event shall a Party’s inability
to pay any sums due hereunder or otherwise perform any of its financial
obligations hereunder be independently deemed to be a Force Majeure Event. Until
such Force Majeure Event is so resolved, mitigated or eliminated, or until
expiration of the time period mutually agreed by the Parties, the Party so
unable to perform its obligations shall not be deemed to be in default
under or in breach of this Agreement; further provided that the Parties shall
in any event be required to perform all other obligations hereunder which
are reasonably capable of being performed during the continuance of such Force
Majeure Event. In the event that the Parties do not agree upon the occurrence
of a Force Majeure Event, then the matter shall be submitted to arbitration
pursuant to the provisions of Section 4.3 hereof. Subject to the
foregoing, a Force Majeure Event may include (a) the occurrence of any pandemic, epidemic or prevalent
disease or illness with an actual or probable threat to human life, including,
without limitation, atypical pneumonia or Severe Acute Respiratory Syndrome
(SARS), or avian influenza, or (b) adherence to any travel restriction, warning
or advisory issued in relation thereto by the Government of Japan, the World
Health Organization (WHO) or the U.S. Centers for Disease Control (CDC), or (c) any
quarantine or similar measure taken in relation thereto by any governmental
authority to prevent the spread of any communicable disease, or (d) any
unavailability of any resources or services resulting directly from any of the
foregoing, or (e) impossibility to deliver Licensed Product(s) due to
export/import restriction derived from a governmental regulation that would
make the export/import act illegal. In the event that a Force Majeure
Event continues for three (3) months or longer, either Party may terminate
and cancel any and all outstanding Orders, regardless as to whether accepted by
NewCo, by written notice to the other Party. In the event that a Force Majeure
Event continues for six (6) months
or longer, either Party may terminate this Agreement without any liability
to the other Party that solely arises from such early termination. In addition
to the above, NewCo and Cytori will,
within a reasonable period


 

















 


of time after the Effective
Date, discuss the manner in which NewCo may be able to establish and
implement a business recovery plan that describes strategies for response to and recovery from a broad
spectrum of potential natural and man-made disasters.


 


3.11                           RESERVED.


3.11.1 RESERVED.


3.11.2 RESERVED.


3.11.3 RESERVED.


 


3.11.4                  Accrued
Liabilities. The expiration or sooner termination of Section 3 of this
Agreement for any cause shall not release any Party hereto from any liability
which, at the time of such expiration or termination, has already accrued
against such Party (or which thereafter may accrue against such Party in
respect of any act or omission occurring prior to such expiration or
termination), nor shall any such expiration or termination of this Agreement
affect in any way the survival of any right, duty or obligation of any Party
hereto which is expressly stated elsewhere in this Agreement to survive
expiration or earlier termination
hereof.


 


3.11.5                  Return of Confidential Information.
The capitalized terms used in this Section 3.11.5 are defined in the
Three-Way NDA. Upon expiration or sooner termination of Section 3 of this
Agreement and the Commercial Term,
the Receiving Party shall immediately cease all use of the Disclosing Party’s
Confidential Information and shall, in accordance with Disclosing Party’s
reasonable written instructions, promptly return to Disclosing Party or destroy
all Confidential Information of the Disclosing Party, including, without
limitation, all copies (in electronic form or otherwise) in Receiving
Party’s possession and any notes or memoranda that contain Confidential
Information of the Disclosing Party. The Receiving Party shall certify in a
writing signed by an officer or director of the Receiving Party that all such
Disclosing Party Confidential Information has been returned, deleted or
destroyed.


 


3.12                           Limitation
of Liability.


 


 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, IN NO EVENT SHALL ANY PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD
PARTY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE
(INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFIT OR
REVENUES, LOSS OF USE OF THE PRODUCTS OR ANY ASSOCIATED EQUIPMENT, COST OF
CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICE, DOWNTIME, PERSONAL
PROFITS, BUSINESS INTERRUPTION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR
IN ANY WAY RELATED TO THE PARTIES’ PERFORMANCE OR FAILURE TO PERFORM UNDER
THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT,
TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF THE OTHER
PARTY HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT SPECIFICALLY
PROVIDED OTHERWISE IN THIS AGREEMENT, ALL REMEDIES PROVIDED FOR HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO TERMINATE THIS AGREEMENT AND ALL OF
THE REMEDIES PROVIDED BY LAW (AND NOT EXCLUDED PURSUANT TO THE FOREGOING
SENTENCE), SHALL BE DEEMED CUMULATIVE AND NON EXCLUSIVE.


 


4.                                      MISCELLANEOUS
PROVISIONS


 


4.1                                 Export
Regulations. Each Party shall be responsible for observing and abiding
by any and all export control laws and regulations (including, without
limitation, any and all costs associated therewith) applicable to the Cytori IP and/or Licensed Product(s).


 

















 


4.2                                 Governing Law. This Agreement shall be governed in all respects by the laws of New York
without regard to provisions regarding choice of laws.


 


4.3                                 Dispute Resolution. All disputes arising out of or in connection
with this Agreement, or any relationship created by or in accordance with this
Agreement, shall be finally settled under the Rules of the American
Arbitration Association (the “Rules”) by three arbitrators. Judgment on the award rendered
by the panel of arbitrators shall be binding upon the Parties and may be
entered in any court having jurisdiction thereof. NewCo shall nominate one
arbitrator and Cytori shall nominate one arbitrator. The arbitrators so
nominated by NewCo and Cytori, respectively, shall jointly nominate the third
arbitrator within fifteen (15) days following the confirmation of arbitrators
nominated by NewCo and Cytori. If the arbitrators nominated by NewCo and Cytori
cannot agree on the third arbitrator, then such third arbitrator shall be
selected as provided in the Rules. The place of the arbitration and all
hearings and meetings shall be Singapore, , unless the Parties to the
arbitration otherwise agree. The arbitrators may order pre-hearing production
or exchange of documentary evidence, and may require written submissions
from the relevant Parties hereto, but may not otherwise order pre-hearing
depositions or discovery. The arbitrators shall apply the laws of New York as
set forth in Section 4.2; provided, however, that the Federal Arbitration
Act shall govern. The language of the arbitral proceedings shall be English. The
arbitrators shall not issue any award, grant any relief or take any action that
is prohibited by or inconsistent with the provisions of this Agreement.


 


No
arbitration pursuant to this Section 4.3 shall be commenced until the
Party intending to request arbitration has first given thirty (30) days written
notice of its intent to the other Party, and has offered to meet and confer with
one or more responsible executives of such other Party in an effort to resolve
the dispute(s) described in detail in such written notice. If one or more
responsible executives of the other Party agree, within thirty (30) days after
receipt of such written notice, to meet and confer with the requesting Party,
then no arbitration shall be commenced until the Parties have met and conferred
in an effort to resolve the dispute(s), or until sixty (60) days has elapsed
from the date such written notice has been given.


 


4.4                                 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
Parties hereto whose rights or obligations hereunder are affected by such
amendments. Neither this Agreement nor any right, license, privilege or
obligation provided herein may be assigned or transferred by either Party
without the other Party’s prior written consent, and any such assignment or
transfer shall constitute a Change of Control (of Cytori).


 


4.5                                 Entire Agreement. This Agreement and the attachments, schedules
and exhibits hereto, which are hereby expressly incorporated herein by this
reference, constitute the entire understanding and agreement between the
Parties with regard to the subject matter hereof and thereof, and supersedes,
cancels and annuls in its entirety any and all prior or contemporaneous
agreements and understandings, express or implied, oral or written among them
with respect thereto. No alteration, modification, interruption or amendment of
this Agreement shall be binding upon the Parties unless in writing designated
as an amendment hereto, and executed with equal formality by each of the
Parties.


 


4.6                                 Notices. Except as otherwise expressly provided herein, all notices, requests,
waivers and other communications made pursuant to this Agreement shall be in
writing and shall be deemed to have been duly given (a) when hand
delivered to the other Party; (b) when received, if sent by facsimile at
the address and number set forth below, with a written confirmation copy of
such facsimile sent the next business day in accordance with (c) below; (c) the
second business day after deposit with a national overnight delivery service,
postage prepaid, addressed to the other Party as set forth below, provided that
the sending Party receives a confirmation of delivery from the delivery service
provider; or (d) if earlier, when actually received.


 

















 


	
  To Cytori:

  	
   

  	
  To NewCo:

  
	
   

  	
   

  	
   

  
	
  3020 Callan Road, San Diego, CA 92121, U.S.A.

  	
   

  	
  2-3 Kuboyama-cho,

  
	
   

  	
   

  	
  Hachioji-shi, Tokyo, 192-8512, Japan

  
	
  Attn: Christopher J. Calhoun

  	
   

  	
   

  
	
  Fax: 858-458-0995

  	
   

  	
  Attn: Masaaki Terada

  
	
   

  	
   

  	
  Fax: +81-426-91-7350

  



 


A
Party may change or supplement its address set forth above, or may designate
additional addresses, for purposes of this Section 4.6, by giving the
other Party written notice of the new address in the manner set forth above.


 


4.7                                 Amendments and Waivers. No term or provision of this Agreement
may be amended, waived, discharged or terminated orally but only by an
instrument in writing signed by the Party against whom the enforcement of such
amendment, waiver, discharge or termination is sought. Any waiver shall be
effective only in accordance with its express terms and conditions.


 


4.8                                 Cumulative Remedies. Unless expressly so stated in this Agreement
in respect of any particular right or remedy, the rights and remedies herein
provided are cumulative and not exclusive of any rights or remedies provided by
law.


 


4.9                                 Titles and Subtitles. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.


 


4.10                       Relationship of Parties. This Agreement shall not be deemed to constitute
either Party, the agent, the partner, the licensee, the affiliate or the
representative of the other Party, and neither Party shall represent to any
third party that it has any such relationship or right of representation.


 


4.11                       Press Release. No public announcements or press releases shall be issued by either Party
regarding this Agreement or any of the activities engaged in by the Parties or
NewCo pursuant to this Agreement without the prior written approval of the
other Party; provided, however, that either Party shall have the right to make
such public disclosure as may be necessary or appropriate to comply with
applicable securities or other laws.


 


4.12                       Counterparts. This Agreement may be executed by facsimile signature in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.


 


4.13                       Severability. Should any provision of this Agreement be determined to be illegal or
unenforceable, such determination shall not affect the remaining provisions of
this Agreement.


 


IN WITNESS WHEREOF,
the Parties have executed this License/ Commercial Agreement as of the
Effective Date.


 


 


	
  CYTORI THERAPEUTICS, INC

  	
  OLYMPUS-CYTORI, INC.

  



 

















 


	
  By:

  	
  /s/ Christopher J.
  Calhoun

  	
   

  	
  By:

  	
  /s/ Masaaki Terada

  	
   

  
	
   

  	
   

  
	
   Title: CEO

  	
  Title: CEO

  
	
   

  	
   

  
	
   Date: November 4, 2005

  	
  Date: November 4,
  2005

  



 

















 


LIST OF SCHEDULES


 


	
  Schedule 1A:

  	
   

  	
  Description of Cytori IP (Section 1 (Definitions))

  
	
  Schedule 2.2.1:

  	
   

  	
  List of Documents Relating to Cytori IP (Section 2.2 (Disclosure of
  Cytori IP))

  
	
  Schedule 2.2:

  	
   

  	
  Description of Training (Section 2.2 (Disclosure of Cytori IP))

  
	
  Schedule 3.4.6

  	
   

  	
  NewCo’s Manufacturing
  Capacity (Section 3.4 (Order and Forecast))