EXHIBIT 10.29


 


LICENSE/ JOINT DEVELOPMENT AGREEMENT


 


This LICENSE/ JOINT DEVELOPMENT AGREEMENT
(this “Agreement”) is entered into as of November 4,
2005 (the “Effective Date”), by and among CYTORI THERAPEUTICS, INC., a Delaware corporation, located at 3020 Callan Road, San Diego, CA 92121, U.S.A. (“Cytori”), OLYMPUS
CORPORATION, a Japanese corporation, with its principal office at
2-43-2 Hatagaya Shibuya-ku, Tokyo, Japan (“Olympus”),
and Olympus-Cytori, Inc. a Delaware
corporation, located at 3020 Callan Road, San Diego, CA 92121, U.S.A. (“NewCo”).


 


Cytori,
Olympus and NewCo shall each be referred to individually 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 Corporation, dated as of November 4, 2005 (the “JVA”), Olympus is prepared to
grant to NewCo, and NewCo desires to obtain from Olympus, an exclusive license to use such intellectual property rights
of Olympus for purposes of developing, manufacturing and selling to Cytori the Licensed Product(s) (as defined below).


 


C. The
obligations of the Parties under the JVA and the Ancillary Agreements (as
defined in the JVA) is conditioned on Cytori, NewCo and Olympus entering into
this Agreement, which sets forth, among other things, certain terms and
conditions under which the Parties will jointly develop the Licensed Product(s)
for sale in the Licensed Field (as defined below).


 


D. NewCo
desires Cytori and Olympus to jointly develop Licensed Product(s), and Cytori
and Olympus are willing to perform such Licensed Product(s) development under
the terms and conditions provided for 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


 


SECTION 1


DEFINITIONS


 


1.1           Definitions. As
used in this Agreement, the capitalized terms set forth in this Section 1 shall
have the following meanings, and may be read in the singular, plural or an
alternative tense as the context requires.


 


“Acceptance” means NewCo’s
express written acceptance and acknowledgement (which shall not be unreasonably
withheld) of the completion of development of a given Licensed Product in accordance
with the Development Plan and in satisfaction of the Specifications.


 


“Acceptance Procedures” means the procedures
and criteria under which NewCo shall test each Licensed Product Deliverable, as
set forth in further detail in Exhibit 1A. [These
procedures to be mutually agreed between the Parties in connection with the
final determination of the Development Plan and Specification.]


 


“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 such Party,
or (b) the possession, directly or indirectly, of the power to direct or cause
the direction of management or policies of such Party, whether through the
ownership of securities or partnership or other ownership interests, by
contract or otherwise.


 


“Agreement”
shall have the meaning ascribed thereto in the Preamble, and shall
include this Agreement and each Exhibit attached hereto, as each such Exhibit
may be amended, varied, novated or substituted from time to time by written
mutual agreement of the Parties.


 


“Cytori”
shall have the meaning ascribed thereto in the preamble.


 


“Cytori Indemnitees” shall have the
meaning ascribed thereto in Section 11.3.


 


“Cytori IP” shall mean all
Intellectual Property Rights licensed to NewCo by Cytori in accordance with the
License/ Commercial Agreement, any Ancillary Agreement or otherwise.


 


“Cytori Development Fees” shall
mean     ***     United States Dollars (USD   ***     ).


 


“Deliverables” shall mean the
information, data, equipment, prototypes and components listed and described in
the Development Plan.


 


“Development Plan” shall mean the
written research and development plan for the Licensed Product(s), as set forth
in (or to be set forth in) Exhibit 1B.


 


“Developer(s)” shall mean both
Cytori and Olympus, and when used in a singular form, either Cytori or Olympus,
as the context requires.


 


“Effective Date”
shall have the meaning ascribed thereto in the Preamble.


 


“Exhibit” shall refer to each of the
exhibits attached to this Agreement, each of which is hereby incorporated by
reference.


 


“Final Product(s)” shall mean
a Licensed Product(s) developed hereunder in full accordance with the
Development Plan and the Specifications, and that has received Acceptance by
NewCo.


 


“Intellectual
Property Rights” or “IP” 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).


 






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


 

















 


“Indemnifying Party” shall have the
meaning ascribed thereto in Section 11.1.


 


“Indemnified Party” shall have the
meaning ascribed thereto in Section 11.1.


 


“Indemnity Claim” shall have the
meaning ascribed thereto in Section 11.5.1.


 


“Indemnity Claim Notice” shall have
the meaning ascribed thereto in Section 11.5.1.


 


“JVA”
shall have the meaning ascribed thereto in Recital B.


 


“License/
Commercial Agreement” shall mean the License/ Commercial
Agreement to be entered into by and between Cytori and NewCo at 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”
means all Intellectual Property Rights owned or controlled by a 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, Olympus 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                   ***                   


***


 


***


 


“Milestone” means a specific stage
of the Development Plan.


 


“NewCo”
shall have the meaning ascribed thereto in the Preamble.


 


“NewCo Indemnitees” shall have the
meaning ascribed thereto in Section 11.4.


 


“NewCo IP” means 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.


 


“Olympus
Indemnitees” shall have the meaning ascribed thereto in Section
11.2.


 


 “Olympus IP” shall mean all
Intellectual Property Rights owned by Olympus and licensed to NewCo in accordance with this
Agreement, any Ancillary Agreement or otherwise, including, without limitation, those patents, patent applications and
other Intellectual Property Rights.


 


“Olympus Development Fees” shall
mean   ***    United States Dollars (USD   ***   )


 


“Party” and “Parties” shall have the meaning
ascribed thereto in the Preamble.


 






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


 

















 


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


 


“Rules” shall have the meaning
ascribed thereto in Section 16.3


 


“Specifications” shall mean (a) the
technical specifications of the commercially acceptable Licensed Product(s) and
each
Deliverable, as set forth in the Development Plan, or (b) the technical
specifications of the commercially acceptable Licensed Product(s) and
each
Deliverable which has received Acceptance by NewCo.


 


“Survival Period” shall have the
meaning ascribed thereto in Section 11.6.


 


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


 


SECTION 2


LICENSE GRANT


 


2.1                                 Olympus License
Grant. Subject to the terms, conditions and limitations set forth in this
Agreement and the JVA (with its Ancillary Agreements), Olympus hereby agrees to grant to NewCo with
respect to any Intellectual Property of Olympus, that Olympus incorporates into
the Licensed Products, a non-exclusive, sublicenseable, irrevocable, worldwide, fully paid-up license under the Olympus IP (including any
improvements thereto) so incorporated, in the Licensed Field, for the term of the Joint Venture, 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 to the extent not subject to any
third party restrictions applicable to Olympus IP. The right of NewCo to grant
sublicenses to any third party other than Cytori under such Olympus IP shall be
subject to the written consent of Olympus, which shall not be unreasonably
withheld or delayed. If Olympus wishes to incorporate any Olympus IP
(including any third-party IP rights licensed to Olympus and any Olympus IP
exclusively licensed to a third party) into a Licensed Product (or into any
Licensed Product-related process) that (i) would require a further license or
sublicense to NewCo and/or Cytori in order for Newco and/or Cytori to practice
such Intellectual Property Right in making, using, selling, offering for
sale, importing or otherwise exploiting Licensed Products; or (ii) would
require royalty or other payments by NewCo, Cytori or Olympus to any third party; or (iii) is not
available for licensing or sublicensing to NewCo and/or Cytori, then Olympus
must first obtain Cytori’s approval (after full disclosure by Olympus of all
applicable terms and conditions associated therewith). For avoidance of doubt,
Olympus shall not be required to grant any license to NewCo except in so far as
Olympus, in its sole discretion, elects to incorporate such Olympus IP into the Licensed
Products.


 


2.2                                 NewCo
License Grant. Subject to the terms, conditions and
limitations set forth in this Agreement and the JVA (with its Ancillary
Agreements), NewCo hereby grants to Olympus
and to Cytori a non-exclusive, perpetual, sublicenseable, irrevocable, fully paid-up, worldwide
license (or sublicense, as applicable)
under all NewCo 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. Each of Olympus and Cytori may grant
sublicenses to a third party only with the prior consent of NewCo.


 

















 


2.3                                 No Reverse
Engineering. Each Party agrees not to reverse engineer, disassemble
or decompile the whole or any part of any other Party’s IP , or to use any
other Party’s IP in any manner not expressly authorized or contemplated by this
Agreement and the JVA. If a Party and/or its end users believe that they are
entitled to reverse engineer the IP of another Party by virtue of rights that
may be granted as a matter of applicable law, such as the Council Directive of
14 May 1991 of the Council of the European Communities (as amended), such Party
represents that (a) such Party and its end users shall first request the
technical information from such other Party; and (ii) such technical
information shall be used only to the extent permitted under such applicable
law.


 


SECTION 3


DEVELOPMENT COMMITTEE


 


3.1                                 Development
Committee. From time to time, the Developers may establish a development
committee (the “Development Committee”)
to oversee, review and coordinate the research and development of Licensed
Product(s) and the implementation of the Development Plan. From time to
time, the Development Committee may establish subcommittees, to oversee
particular projects or activities (such as separate committees to oversee
product development), and such subcommittees will be constituted as the
Development Committee agrees.


 


3.2                                 Membership.
In
the event that the Development Committee is established under Section 3.1, the
Development Committee shall be comprised of an equal number of representatives
from each of Olympus and Cytori, as appointed by each Developer.
Subject to the foregoing provisions of this Section 3.2, each
Developer may replace any of its respective Development Committee
representatives at any time, with prior written notice to the other Developer.
The
Parties agree and acknowledge that the representatives appointed by each
Developer to the Development Committee have no authority to legally bind any
Developer.


 


3.3                                 Meetings.
In
the event that the Development Committee is established under Section 3.1, the
Development Committee shall meet as agreed by the Developers, at such locations as
the Developers
mutually agree. At its meetings, the Development Committee shall (a) formulate
and review (but not modify) the Development Plan objectives; (b) monitor the Parties’ progress
under the Development Plan toward those objectives; and/or (c) discuss any problems that
arise in the implementation of the Development Plan. With the consent of
both Developers, other representatives of each Developer may attend
Development Committee meetings. The Development Committee shall prepare written
minutes of each Development Committee meeting and a written record of all
Development Committee discussions, whether made at a Development
Committee meeting or otherwise. Such minutes of the Development Committee
meeting shall only be effective when they are subsequently approved in writing
by all
of the appointed representatives on the Development Committee. Each Developer
shall bear its own costs and expenses, including without limitation travel
costs and expenses, associated with its appointed representatives’ attendance
at Development Committee meetings. The Parties agree and acknowledge that the Development
Committee shall not have any authority to bind any of the Parties to any
contractual obligations or to otherwise amend this Agreement.


 


SECTION 4


DEVELOPMENT OF THE FINAL
PRODUCT(S)


 


4.1                                 Joint Development.
Immediately following the Effective Date, the Developers shall commence


 

















 


development of Final Product(s) in accordance with, and as
described in further detail in, the Development Plan.


 


4.2                                 Disclosure
of Olympus IP. Subject to the terms, conditions and limitations set
forth in this Agreement, Olympus shall to its best knowledge deliver and
disclose to NewCo, and NewCo shall be entitled to share with Cytori, all
Olympus IP that is incorporated into or with the Final Product(s), NewCo shall
provide Cytori with any other technical information and assistance in this
regard, as set forth in the Development Plan.


 


4.3                                 Disclosure
of Cytori IP. Subject to the terms, conditions and limitations set
forth in this Agreement, Cytori shall deliver and disclose to NewCo, and NewCo
shall be entitled to share with Olympus, all Cytori IP that is necessary or
useful for (or related to) the development of Final Product(s), or which is
necessary or useful for NewCo’s or Olympus’ performance of its
obligations under this Agreement. NewCo shall provide Olympus with any other technical
information and assistance in this regard, as set forth in the Development
Plan.


 


4.4                                 Changes to
Development Plan. The Development Plan and Specifications shall set forth
the base requirements and specifications for each Final Product. If the requirements
or specifications for the Final Product(s) need to be amended in order
to further the Developers’ objectives hereunder, the Developers will use
their own respective commercially reasonable efforts to negotiate such
necessary amendments to the Development Plan, while minimizing the impact to
the cost and timing of the development of the Final Product(s).


 


4.5                                 Third
Party Assistance. In performing its obligations under this Agreement (more
specifically, in developing and manufacturing the Final Product(s) and in providing each
Deliverable), a Developer shall not cooperate or collaborate
with any third party without the prior written consent of the other Developer,
which consent may be withheld at the other Developer’s sole discretion, provided
that, either Developer may retain subcontractors or may subcontract in performing
its obligations under this Agreement. For the avoidance of doubt, either
Developer may hire contract-based engineers as needed for its
performance under this Agreement.


 


4.6                                 Exclusivity. Each
Developer shall not, during the term of this Agreement, the JVA or for a
two (2) year period thereafter, (a) engage in or otherwise participate
in (i) product development activities with or on behalf of any third party that
are the same as the activities set forth in the Development Plan, or (ii) development of
any product that is the same (or performs a substantially similar function
using adipose tissue) as the Final Product(s), or (b) enter into any
agreement or understanding with any third party to engage in or otherwise
participate in such development activities. For the avoidance of doubt, this
Section 4.6 is and remains subject to the reservation of rights by Cytori set
forth in Section 2.1.5 of the License/ Commercial Agreement.


 


4.7                                 Regulatory
Filings. The Parties shall discuss in good faith the responsibilities of each
Party with respect to all appropriate, prudent and necessary governmental
filings, including, without limitation, Japan’s Yakuji application, Food and
Drug Administration applications and CE mark applications, provided
that, in cooperation and collaboration with Olympus, Cytori shall be
responsible for using commercially reasonable efforts to seek Food and Drug
Administration approval in the Licensed Field for the Prototype of Celution set
forth in Schedule 1 of the Joint Venture Agreement.


 


4.8                                 Manufacturing
Capabilities. Olympus (or a third party acting on behalf of
Olympus) shall be responsible for acquiring and/or developing all
necessary Final Product(s) manufacturing capabilities, including equipment and
facilities, as provided in the Development Plan.


 


4.9                                 Responsibilities.
The
Parties agree and acknowledge that each Developer shall be solely
responsible for


 

















 


the
performance of its respective duties and responsibilities set forth in this Agreement
and the Development Plan. Except as otherwise set forth in this
Agreement, neither Developer shall have any liability whatsoever with
respect to any failure by the other Developer to fulfill its obligations under this
Agreement and the Development Plan in a timely manner. Without limiting
the generality of the foregoing, the Parties agree and acknowledge that neither Developer
shall be responsible to the other Developer or to NewCo for any
delays in meeting any milestones or other agreed upon development schedule or
objectives, if such delay is caused by the other Developer or by NewCo’s
failure to perform its obligations in a timely fashion.


 


SECTION 5


ACCEPTANCE


 


5.1                                 Acceptance
by NewCo. NewCo shall conduct the Acceptance Procedures at its sole cost and
expense. NewCo shall complete all the Acceptance Procedures within ninety (90)
days from its receipt of each proposed Final Product from the Developers. NewCo
shall record the results of all Acceptance Procedures in sufficient detail and
on appropriate logging sheets, and shall provide such results to the Developers
within thirty (30) days after the conclusion thereof.


 


5.2                                 Issuance of
Acceptance Certificate. If Acceptance Procedures conducted by NewCo pursuant
to Section 5.1 indicate that the relevant Specifications have been satisfied
within the tolerances set forth in the Acceptance Procedures, then NewCo shall,
within ten (10) days after the conclusion of such Acceptance Procedures, issue
an appropriate Acceptance Certificate to the Developers. The Acceptance
Certificate shall be conclusive evidence of NewCo’s acceptance and
acknowledgment of the satisfaction of the Specificationswithin the tolerances
set forth in the Acceptance Procedures, and shall be binding upon NewCo
for all purposes. If NewCo fails to conduct the Acceptance Procedures and/or fails to
inform the Developers of the results thereof in accordance with and within the
timeframes specified in the Acceptance Procedures, an Acceptance Certificate
shall be deemed to have been issued by NewCo.


 


SECTION 6


PAYMENT FOR DEVELOPMENT
ACTIVITIES


 


6.1                                 Payment by NewCo
to Olympus. For and in consideration of the development activities
to be undertaken by Olympus hereunder, NewCo shall, within ninety (90) days of
the Effective Date, pay to Olympus the Olympus Development Fees in immediately
available funds, by wire transfer to the bank account designated by Olympus.


 


6.2                                 Payment by
NewCo to Cytori. For and in consideration of the development
activities undertaken by Cytori, and upon receipt by Cytori of the EC design
examination certificate in accordance with Annex II of Directive93/42/EEC (“CE
Mark”) for the Prototype Celution Device (as described in Exhibit 1C),
NewCo shall immediately pay to Cytori the Cytori Development Fee.


 


SECTION 7


OWNERSHIP OF INTELLECTUAL
PROPERTY RIGHTS


 


7.1                                 Ownership.
All
Intellectual Property Rights arising from the joint research and development of
Licensed Product(s) under this Agreement, including the transferability
thereof, shall be as set forth on Exhibit 7.1.


 

















 


7.2                                 Cytori IP
Outside of the Licensed Field. The Parties agree and acknowledge
that all Intellectual Property Rights in and to the Cytori IP outside of the Licensed Field,
if any, shall at all times belong exclusively to Cytori.


 


SECTION 8


DELIVERY


 


8.1                                 Delivery of the Deliverables.
The
Developers shall deliver any and all Deliverables to NewCo in accordance with
and in the manner set forth in the Development Plan.


 


SECTION 9


REPORTING


 


9.1                                 Reporting.
Each
Developer shall provide to the other Parties project progress reports, as set
forth in the Development Plan.


 


SECTION 10


REPRESENTATIONS AND WARRANTIES


 


10.1                           Olympus Representations and Warranties.
Olympus
represents and warrants to each of Cytori and NewCo that:


 


10.1.1                  It is a corporation duly organized,
validly existing and in good standing under the laws of its place of
incorporation, and that it 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;


 


10.1.2                  The execution, delivery and
performance of this Agreement by it 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 it is a party, or by which it or any of
its assets are bound; and


 


10.1.3                  This Agreement has been duly and validly
executed and delivered by it and is binding upon and enforceable against it 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.


 


10.2                           Cytori Representations and
Warranties. Cytori represents and warrants to each of Olympus and NewCo that:


 


10.2.1                  It is a corporation duly organized,
validly existing and in good standing under the laws of its place of
incorporation, and that it 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;


 


10.2.2                  The execution, delivery and
performance of this Agreement by it 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 it is a party, or by which it or any of
its assets are bound; and


 

















 


10.2.3                  This Agreement has been duly and
validly executed and delivered by it and is binding upon and enforceable
against it 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.


 


10.3                           Cytori Intellectual Property. Cytori represents
and warrants that it owns, or has the right to use, any and all Cytori IP which
is or may be used in the performance of its obligations under this Agreement.


 


10.4                           Olympus Intellectual
Property. Olympus represents and warrants that it owns, or has the right to
use, any and all Olympus IP which is or may be used in the performance of its
obligations under this Agreement.


 


SECTION
11


 


INDEMNIFICATION


 


11.1                           Indemnification. Each
Party (“Indemnifying Party”) agrees
to indemnify, defend and hold harmless each other Party (“Indemnified
Party”), together with such other Party’s officers, directors, shareholders,
employees, agents or affiliates, from and against any and all damages,
losses, liabilities, costs and expenses, whether or not involving a third party
claim, including, but not limited to, legal fees and reasonable attorney costs,
interest, penalties and disbursements, asserted against, resulting to, imposed
upon or incurred by the Indemnified Party, its officers, directors, shareholders, employees,
agents or affiliates, by reason of or resulting from a breach by
the Indemnifying Party of any of its obligations or its representations and
warranties under this Agreement.


 


11.2                           Cytori
Intellectual Property Indemnification Obligation. In
addition to the indemnification obligations set forth in Section 11.1, Cytori
shall indemnify Olympus, NewCo and their respective officers, directors, shareholders, employees,
agents or affiliates (the “Olympus Indemnitees”), from and against any and
all damages, losses, liabilities, costs and expenses, whether or not involving
a third party claim, including, but not limited to, legal fees and reasonable
attorney costs, interest, penalties and disbursements, and royalities or other license payments, asserted
against, resulting to, imposed upon or incurred by the Olympus Indemnitees in any
manner arising out of, in connection with, with respect to or relating to any Intellectual
Property
Rights
infringement claims asserted or claimed by a third party(ies) asserting
infringement of such third party’s(ies’) Intellectual Property Rights or any
other proprietary right by use or practice of the Cytori IP.


 


11.3                           Olympus
Intellectual Property Indemnification Obligation. In
addition to the indemnification obligations set forth in Section 11.1, Olympus
shall indemnify Cytori, NewCo and their respective officers, directors, shareholders, employees,
agents or affiliates (the “Cytori Indemnitees”), from and against any and
all damages, losses, liabilities, costs and expenses, whether or not involving
a third party claim, including, but not limited to, legal fees and reasonable
attorney costs, interest, penalties and disbursements, asserted against,
resulting to, imposed upon or incurred by the Cytori Indemnitees in any
manner arising out of, in connection with, with respect to or relating to any Intellectual
Property
Rights
infringement claims asserted or claimed by a third party(ies) asserting
infringement of such third party’s(ies’) Intellectual Property Rights or any
other proprietary right by use or practice of the Olympus IP.


 


11.4                           Developers
Intellectual Property Indemnification Obligation. In
addition to the indemnification obligations set forth in Section 11.1, the
Developers shall jointly and severally indemnify NewCo and its officers, directors, shareholders,
employees or agents (the “NewCo Indemnitees”), from and against any and
all damages, losses, liabilities, costs and expenses, whether or not involving
a third party claim, including, but not limited to, legal fees and reasonable
attorney costs, interest, penalties and disbursements, asserted


 

















 


against,
resulting to, imposed upon or incurred by the NewCo Indemnitees in any manner
arising out of, in connection with, with respect to or relating to any Intellectual
Property
Rights
infringement claims asserted or claimed by a third party(ies) asserting
infringement of such third party’s(ies’) Intellectual Property Rights or any
other proprietary right by manufacture, use or practice of the Final
Product(s), but specifically excluding such claims that are provided for under
Sections 11.2 and 11.3.


 


11.5                           Administration of Indemnification. For purposes of administering the
indemnification provisions set forth in Sections 11.1, 11.2, 11.3 and
11.4, the following
procedure shall apply:


 


11.5.1                  Whenever a claim (each, an “Indemnity
Claim”) shall arise for indemnification under this Section 11.5,
the Indemnified Party shall, reasonably promptly after
acquiring knowledge of the Indemnity Claim, give written notice (each, an “Indemnity Claim Notice”) to the Indemnifying Party, Cytori, Olympus or the
Developers, as the case may be, setting forth in reasonable detail, to the extent
then available, the facts concerning the nature of the Indemnity Claim and the
basis upon which the Indemnified Party, Cytori, Olympus or the Developers, as the case may be, believes that it is entitled to
indemnification under this Section 11.


 


11.5.2                  In the event of any Indemnity Claim resulting from or
in connection with any claim by a third party, the Indemnifying Party, Cytori, Olympus or the Developers, as the case may
be, shall be
entitled, at its sole expense, either (a) to participate in defending against
such claim or (b) to assume the entire defense with counsel who is selected by
it and who is reasonably satisfactory to the Indemnified Party, Cytori Indemnitees or Olympus Indemnitees, as the
case may be, provided
that (A) the Indemnifying Party, Cytori, Olympus or the Developers, as the case may be, agrees in writing that it does not and
will not contest its responsibility for indemnifying the Indemnified Party, Cytori Indemnitees or Olympus Indemnitees, as the
case may be, in
respect of such claim or proceeding, and (B) no settlement shall be made and no
judgment consented to without the prior written consent of the Indemnified
Party, Cytori Indemnitees or Olympus
Indemnitees, as the case may be, which consent shall not be unreasonably withheld,
conditioned or delayed (except that no such consent shall be required if the
claimant is entitled under the settlement to only monetary damages actually
paid by the Indemnifying Party, Cytori, Olympus or the Developers, as the case may be). If, however, (i) the claim, action,
suit or proceeding would, if successful, result in the imposition of damages
for which the Indemnifying Party, Cytori, Olympus or the Developers, as the case may be, would not be responsible, or (ii)
representation of both the Indemnified Party, Cytori Indemnitees or Olympus Indemnitees, as the case may be, and the Indemnifying
Party, Cytori, Olympus or the Developers, as
the case may be, by
the same counsel would otherwise be inappropriate due to actual or potential
differing interests between them, then the Indemnifying Party, Cytori, Olympus or the Developers, as the case may
be, shall not be
entitled to assume the entire defense, and each Party shall be entitled to
retain counsel who shall cooperate with one another in defending against such
claim. In the case of item (i) of the preceding sentence, the
Indemnifying Party, Cytori, Olympus
or the Developers, as the case may be, shall be obligated to bear only that portion of the
expense of the Indemnified Party’s, Cytori’s, Olympus’ or the Developers’, as the case may be, counsel that is in proportion to the
claimed damages indemnifiable by the Indemnifying Party, Cytori, Olympus or the Developers, as the case may
be, compared to the
total amount of the third-party claim against the Indemnified Party, Cytori Indemnitees or Olympus Indemnitees, as the
case may be.


 


11.5.3                  If, within ten (10) days after receipt of an Indemnity
Claim Notice, the Indemnifying Party, Cytori, Olympus or the Developers, as the case may be, fails to give the Indemnified Party, Cytori Indemnitees or Olympus Indemnitees, as the
case may be, written
notice of the Indemnifying Party’s, Cytori’s, Olympus’ or the Developers’, as the case may
be, election to
undertake the defense of the related Indemnity Claim, or if the Indemnifying
Party, Cytori, Olympus or the Developers, as
the case may be,
subsequently fails to diligently prosecute such defense, the Indemnified Party, Cytori Indemnitees or Olympus Indemnitees, as the
case may be, may
defend in such manner as it reasonably deems appropriate or settle the claim
(after giving notice thereof to the Indemnifying Party, Cytori, Olympus or the Developers, as the case may
be) on


 

















 


such
terms as the Indemnified Party, Cytori Indemnitees or Olympus Indemnitees, as the case may be, may deem appropriate, and the
Indemnified Party, Cytori
Indemnitees or Olympus Indemnitees, as the case may be, shall be entitled to periodic
reimbursement of defense expenses incurred and prompt indemnification from the
Indemnifying Party, Cytori, Olympus
or the Developers, as the case may be, in accordance with this Section 11.


 


11.5.4                  Failure or delay by an Indemnified Party, Cytori Indemnitees or Olympus Indemnitees,
as the case may be, to
give a reasonably prompt notice of any Indemnity Claim (if given prior to
expiration of the applicable Survival Period) shall not release, waive or
otherwise affect an Indemnifying Party’s, Cytori’s, Olympus’ or the Developers’, as the case may
be, obligations with
respect to the Indemnity Claim, except to the extent that the Indemnifying
Party, Cytori, Olympus or the Developers, as
the case may be, can
demonstrate actual loss or prejudice as a result of such failure or delay.


 


11.6                           This
Section 11 shall survive the expiration or sooner termination of this
Agreement, and shall continue for a period of five (5) years from the date of
expiration or sooner termination hereof, as applicable (the “Survival Period”).


 


SECTION
12


LIMITATION
ON RECOVERABLE DAMAGES


 


12.1                           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.


 


SECTION 13


FURTHER RIGHTS UPON TERMINATION


 


13.1                           Accrued
Liabilities. The expiration or earlier termination 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.


 


SECTION 14


MISCELLANEOUS PROVISIONS


 


14.1                           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, Olympus IP, NewCo IP, the Deliverables and/or the Final Product(s), as applicable.


 


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


 


14.3                           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 Arbitration of the
International Chamber of Commerce (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. Olympus shall nominate one arbitrator and Cytori shall
nominate one arbitrator. The arbitrators so nominated by Cytori and Olympus,
respectively, shall jointly nominate the third arbitrator within fifteen (15)
days following the confirmation of arbitrators nominated by Cytori and Olympus.
If the arbitrators nominated by Cytori and Olympus 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 in
Singapore unless the parties to the arbitration otherwise agree. In addition to
the Rules and except as otherwise provided herein, the Parties agree that the
arbitration shall be conducted according to the International Bar Association
Rules on the Taking of Evidence in International Commercial Arbitration. 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 the state of New York as set forth in this Section 16.3; 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 16.3
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 or
Parties, as the case may be, and
has offered to meet and confer with one or more responsible executives of such
other Party or Parties, as the case may be, in an effort to resolve the dispute(s) described in detail in such written
notice. If one or more of such responsible executives 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 have elapsed from the date such written notice has been given.


 


14.4                           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 either Cytori or Olympus.


 


14.5                           Entire Agreement. This Agreement, including the attachments,
schedules and exhibits hereto and the Ancillary Agreements contemplated by the
JVA, all of which are hereby expressly incorporated herein by this reference,
together with the Confidentiality Agreement (as defined in the JVA),
constitutes the entire


 

















 


understanding and agreement
among the Parties with regard to the subject matter hereof; and supersedes in its entirety all prior agreements and
understandings, express or implied, oral or written among them with respect
thereto. No alteration, modification, interpretation or amendment of this
Agreement shall be binding on the Parties unless in writing designated as an
amendment hereto, and executed with equal formality by each of the Parties.


 


14.6                           Notices. Except as may be otherwise provided herein, all notices, requests,
waivers and other communications made pursuant to this Agreement shall be in
writing and shall be conclusively deemed to have been duly given (a) when hand
delivered to the other Party(ies); (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
third business day after deposit
with an international
courier service, postage prepaid,
addressed to the other Party(ies) as set forth below, provided that the sending Party receives a confirmation
of delivery from the courier
service provider, or (d) if earlier, when actually received.


 


	
  To Cytori:

  	
   

  	
  To Olympus: 

  
	
   

  	
   

  	
   

  
	
  3020 Callan Road, San Diego, CA 92121,

  U.S.A.

  	
   

  	
  2-3
  Kuboyama-cho,

  Hachioji-shi, Tokyo,
  192-8512,
  Japan

  
	
   

  	
   

  	
   

  
	
  Attn: Christopher J. Calhoun

  	
   

  	
  Attn: Yasunobu Toyoshima

  
	
  Fax: 858-458-0995

  	
   

  	
  Fax: +81-426-91-7350

  
	
   

  	
   

  	
   

  
	
  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

  	
   

  	
  Attn: Masaaki Terada

  
	
  Fax: 858-458-0995

  	
   

  	
  Fax: +81-426-91-7350

  



 


A Party hereto may change or
supplement its address set forth above, or may designate additional addresses,
for purposes of this Section 16.6 by giving the other Parties hereto written notice of the new address in the manner set forth above.


 


14.7                           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.


 


14.8                           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.


 


14.9                           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.


 


14.10                 Relationship of Parties. This Agreement shall not be deemed to
constitute any Party, the agent, the
partner, the licensee, the affiliate or the representative of another Party, and a Party shall not represent to
any third party that it has any such relationship or right of representation.


 

















 


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


 


14.12                 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.


 


14.13                 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/ Joint Development Agreement as of the Effective
Date.


 


 


	
  CYTORI THERAPEUTICS, INC.

  	
  Olympus Corporation

  
	
   

  	
   

  
	
  By: 

  	
  /s/ Christopher J. Calhoun

  	
   

  	
  By: 

  	
  /s/ Tsuyoshi Kikukawa

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title: CEO

  	
  Title: President

  
	
   

  	
   

  
	
  Date: November 4, 2005

  	
  Date: November 4, 2005

  
	
   

  	
   

  
	
  OLYMPUS-CYTORI,
  INC.

  	
   

  
	
   

  	
   

  
	
  By: 

  	
  /s/
  Masaaki Terada

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title: CEO

  	
   

  
	
   

  	
   

  
	
  Date: November 4, 2005