exhbit1048_greenhospital.htm


    Exhibit
      10.48

     

    


     

    MASTER
      CELL BANKING AND CRYOPRESERVATION AGREEMENT

     

    THIS
      MASTER CELL BANKING AND CRYOPRESERVATIONAGREEMENT
(“Agreement”), dated August 13, 2007 (“Effective Date”), is entered
      into by and between Cytori Therapeutics, Inc. and its Affiliates (including
      its
      wholly owned subsidiary [Cytori KK]), having a place of business at 3020 Callan
      Road, San Diego, CA 92121 (“Cytori”), and
      Green Hospital Supply, Inc., having a place of business at 3-20-8 Kasuga
      Suita-City, Osaka 565-0853, Japan (“GHS”).  Cytori and GHS are
      referred to jointly as “Parties” and individually as a “Party.”

     

    RECITALS

     

    WHEREAS,
      CYTORI has developed a proprietary, state-of-the-art system for adipose-derived
      stem and regenerative cell (“ADRC”) harvesting, processing, cryopreservation,
      storage, and retrieval banking that is useful in hospital settings (“Banking” or
“the Field”), and Cytori has acquired and possesses certain intellectual
      property rights pertaining to stem and regenerative cell technology, including
      devices, products and services used in connection with ADRCs;

     

    WHEREAS,
      GHS wishes to establish ADRC Banking facilities (“CB Facilities”) for the
      acquisition, storage and retrieval of ADRCs exclusively using Cytori’s
      technology, including the CelutionTM device
      and related
      products and disposables in the country of Japan (“the Territory”);

     

    WHEREAS,
      the Parties agree that the CB Facilities will be dedicated solely to Banking,
      and the CB Facilities shall not engage in any form of ADRC cell culturing,
      cell
      proliferation or manipulation for specific therapeutic uses or clinical
      applications (“Therapeutic Services”), nor will GHS offer or engage in any
      Therapeutic Services involving ADRCs;

     

    WHEREAS,
      subject to the terms and conditions set forth herein, Cytori desires to provide
      to GHS certain Cytori devices, proprietary technology, products and training
      necessary for the establishment and operation of CB Facilities, and to grant
      to
      GHS an exclusive license to use such devices, proprietary technology, products
      and training solely for the purposes of Banking in the Territory, as expressly
      permitted in this Agreement;

     

    WHEREAS,
      GHS shall exclusively purchase from Cytori all such Cytori devices, proprietary
      technology, products and training as described below for the purpose of Banking
      in the Territory, subject to the terms and conditions set forth
      herein;

     

    NOW,
      THEREFORE, the Parties agree as follows:

     

    1.  GHS
      PURCHASE:  GHS shall purchase all
      CelutionTM
      devices,
      consumables,          ***      (collectively,
“Device(s)”) directly from Cytori.  GHS may purchase products
      (including, without
      limitation,                                                                                     ***            and
      all other non-Device products that may be included with Packages; collectively,
      “Product(s)”) from Cytori only in the form of Packages (as described
      below).  Cytori will provide to GHS certain initial training services
      and other services (as described in Section 2) with respect to Cytori’s
      proprietary methods and know-how in connection with this Agreement
      (“Service(s)”).  The Devices, Products and Services are more
      particularly described in Exhibit A (attached hereto and
      incorporated herein), and in the context of an initial CB Facility set-up,
      may
      be collectively referred to herein as a “Package(s).”  The Devices,
      Products and/or Services may be modified from time to time by written mutual
      agreement of the Parties; provided, however, that notwithstanding the foregoing,
      Cytori shall be entitled to substitute “next generation” Devices (including,
      without limitation, the Celution Device, Device consumables and Device
      disposables), so long as Cytori continues to supply Device consumables and
      Device disposables that were purchased by GHS with the previous generation
      Devices sold herein, for a period of no less
      than   ***  from the date of Cytori’s last sale to GHS
      of the previous generation Devices.

     

    


    _________________________

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

     

    
      
        
        

      

      
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    During
      the Term, GHS shall not purchase any Devices and/or Packages, or any similar
      or
      substantially equivalent versions thereof, from any other party, unless
      specifically agreed to in writing by Cytori.  GHS will be responsible
      for purchasing all Products (as specified on Exhibit A) from
      third parties, and for supplying such Products for all CB Facilities, on an
      as-needed basis, after the initial Package has been acquired from Cytori and
      delivered for the establishment of a new CB Facility.  If any term or
      condition of this Agreement conflicts with any Exhibit, this Agreement shall
      govern.

    


    2.  CYTORI
      SUPPLY:  Cytori will supply all Packages,
      Devices and Services to GHS in accordance with this Agreement.  The
      Services shall include training of GHS personnel with respect to installation,
      set-up and operations of, Device maintenance, technical support and provision
      of
      related databases.  CB Facilities will purchase Packages, Devices,
      Products and Services directly from GHS (unless otherwise mutually agreed by
      the
      Parties in writing.).  Cytori shall work closely and diligently with
      GHS to provide all necessary assistance and training of GHS personnel in
      establishing the five (5) initial CB Facilities, including (a) reasonable
      transfer of Cytori know-how, policies and procedures, and (b) advice, assistance
      and model documents relating to the establishment of cGTP and other relevant
      operating and servicing procedures.  Additional initial training and
      assistance for GHS personnel will be provided by Cytori, if reasonably
      necessary, with the Parties’ agreement and understanding that GHS will
      diligently endeavor to become fully self sufficient with respect to such matters
      as early as possible.  After the initial training period, Cytori will
      provide further training of GHS personnel from time to time, as required in
      connection with any next generation Devices that are offered by Cytori in
      connection with this Agreement.  For any further assistance (whether
      with regard to such Packages, or with regard to Devices), Cytori will estimate
      the cost of such assistance, and GHS will have the option of either reimbursing
      Cytori for such costs or declining such assistance.

     

    3.  ADDITIONAL
      OBLIGATIONS OF GHS:  GHS will offer and sell
      Packages, Devices and/or Products to CB Facilities only for the purpose of
      conducting Banking, and shall expressly prohibit the CB Facilities from using
      (and from promoting or permitting use of) Packages, Devices and/or Products
      for
      any other purpose (including, but not limited to, Therapeutic
      Services).  GHS understands and agrees that the Devices are labeled
      and intended specifically for Banking purposes only, and that use of the Devices
      for any other purpose(s) may cause injury or death (for example, if used for
      applications outside such specified indications).  Therefore, GHS
      shall not, directly or indirectly, encourage or knowingly support in any way
      the
      sale or use of Packages or Devices for applications outside of those indications
      for which they are labeled and intended by Cytori or any other manufacturer
      (if
      applicable).  GHS will be solely responsible for providing Packages,
      Devices and Products to CB Facilities, and (after the completion of the initial
      training of GHS personnel by Cytori) for providing all related services and
      support to such CB Facilities in connection therewith.  GHS may
      request that Cytori provide assistance and support directly to a CB Facility,
      but Cytori shall be under no obligation to do so; however, if Cytori agrees
      to
      provide such assistance and support to a CB Facility, GHS and Cytori shall
      agree
      upon reasonable financial terms for the provision of such assistance and
      support.  GHS shall be solely responsible for advertising, promoting,
      marketing, distributing and selling to CB Facilities the Packages, Devices
      and
      Products in the Field in the Territory.

     

    4.  GHS
      DILIGENCE:  GHS shall purchase an annual minimum number of
      Packages each calendar year, as set forth in Exhibit B, which
      is attached hereto and incorporated herein (“Minimum Purchase”).  In
      addition, GHS shall actively promote, market and sell Packages, Devices and
      Products to CB Facilities during the Term.  If GHS fails to meet the
      Minimum Purchase amount in any given year, Cytori may have the right to
      terminate this Agreement in its sole discretion.

     

    5.  LICENSE:  Cytori
      hereby grants to GHS an exclusive license to intellectual property of Cytori
      (for example, patents, patent applications, trade secrets, trademarks,
      technologies, and know-how) necessary or useful for GHS’s use, distribution,
      promotion, marketing, sales, offers for sale and importation of the Devices
      and
      Products in the Field in the Territory.  This exclusive license shall
      include (without limitation) Cytori’s patent application in the Territory
      corresponding to Patent Cooperation Treaty Application No. PCT/US2002/29207
      entitled “Preservation of Non Embryonic Cells from Non Hematopoietic Tissues,”
as well as trade secrets, technologies and know how related to cryopreservation
      and/or storage of stem and regenerative cells derived from adipose
      tissue.  All intellectual property included within this license grant
      to GHS shall be termed collectively “Cytori IP.”  GHS may grant
      sublicenses under the license granted by 

     

     

    
      
        
        

      

      
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    Cytori
      hereunder; provided that any such sublicensees of GHS may not grant further
      sublicenses unless such further sublicenses are approved in
      writing by Cytori; and further provided that all sublicensees shall acquire
      all
      Devices and Products used in connection with the CB Facilities from
      GHS.  Cytori shall be provided a copy of each sublicense entered into
      by GHS with each of its CB Facilities in the Field, and such sublicenses shall
      be subject to all of the rights of Cytori in this Agreement regarding the
      Devices, the Packages and the Cytori Material, including, but not limited to,
      the terms of Section 25.  In addition to any other remedies available
      to Cytori, and notwithstanding any other provision of this Agreement to the
      contrary, GHS and each of its sublicensees shall be jointly and severally liable
      to pay Cytori a liquidated damages fee
      of   ***   for each instance of usage of the
      Devices for any purpose outside of the Field.  GHS shall immediately
      inform Cytori of any use by GHS or any CB Facility of the Devices for a purpose
      outside of the Field.

     

    6.  FORECASTS:  GHS
      will provide a 12-month rolling forecast of GHS’ annual Package, Device and
      Service requirements, as applicable (each, a "Forecast").  The first
      six (6) months of each such Forecast will constitute an expected order of GHS
      for the quantities of Packages, Devices and Services specified therein
      (“Expected Orders”); the following six (6) months of each such Forecast will be
      a good faith estimate, which will not be binding on GHS except to the extent
      expressly specified in such Forecast. The Forecasts shall specify anticipated
      purchases for each month, and shall be updated quarterly on the first week
      of
      January, April, July and October of each year. If Cytori cannot meet the
      Expected Orders, it will notify GHS within ten (10) business days of receipt
      of
      such Expected Orders.

     

    7.  ORDERS:  GHS
      shall order Packages, Devices and Services using written purchase orders
      (“Binding Purchase Orders”) which shall be contractually binding on GHS for the
      Packages, Devices and Services specified therein.  GHS shall provide
      its Binding Purchase Orders in the format and with the lead-time specified
      in
Exhibit C.  The only function of GHS’ Binding
      Purchase Orders shall be to communicate the desired quantities of the Packages,
      Devices, and Services required by GHS, shipment instructions and shipping
      dates.  All other terms of the Binding Purchase Orders, and all terms
      of any acknowledgment form or invoice of Cytori, shall be void and of no effect,
      and the terms of this Agreement shall control over such forms, unless otherwise
      specifically agreed to in writing by both Parties.  Cytori will accept
      all Binding Purchase Orders that are from 100% to 125% of the Expected
      Orders.  If Cytori receives a Binding Purchase Order in excess of 125%
      of the Expected Orders, Cytori will use commercially reasonable efforts to
      manufacture and deliver on time that amount exceeding 125% of the Expected
      Orders, but shall be under no obligation to deliver such excess
      amount.

     

    8.  PRICES:  Unless
      the applicable Exhibits attached hereto provide otherwise, prices for the
      Packages, Devices and Services stated in an Order include all amounts payable
      by
      GHS.  The price for the Packages, Devices and Services may be adjusted
      by Cytori upon thirty (30) days written notice to GHS, but pricing will be
      adjusted no more than once per calendar year, and such increases shall not
      apply
      to pending Binding Purchase Orders in existence at the time of the notice of
      such price adjustment.  Device prices shall not increase more
      than    ***   per year.  Any price
      increase which is greater than *** shall require written approval of GHS, which
      shall not be unreasonably withheld in the event that Cytori reasonably
      demonstrates that its costs have significantly increased.  GHS shall
      pay to
      Cytori     ***               ***          for
      the Packages and Devices; provided that in no event shall the price paid to
      Cytori be less
      than                             ***                         .As
      of the Effective Date, Cytori’s non-binding, recommended sales price to the CB
      Facilities
      is                  ***              but
      GHS shall have sole discretion to determine the prices it charges to its
      customers.  Exhibit A sets forth minimum transfer
      pricing to GHS for all Devices, as well as recommended sales prices to the
      CB
      Facilities for each type of Device.

     

    9.  PAYMENT/PAYMENT
      REPORTS:

    9.1
      Payment.  Cytori shall invoice GHS for each Package, Device or
      Service upon shipment or delivery.  Payment to Cytori shall be due
      within thirty (30) days after GHS’ inspection of Packages and Devices shipped,
      provided that such inspection must be completed within ten (10) days of GHS’
receipt. Payment of an invoice shall be deemed acceptance of the corresponding
      Package, Device or Service.  Payments by GHS to
      Cytori hereunder shall be made by wire transfer of
      immediately available funds to a

     

    _________________________

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

     

     

    
      
        
        

      

      
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    bank
      account designated by Cytori in writing.  If GHS fails to pay any
      payment due under this Agreement on or before the date such payment is due,
      such
      late payment shall bear interest, to the extent permitted by applicable Law,
      at
      the average one-month London Inter-Bank Offering Rate (LIBOR) for the United
      States Dollar as reported from time to time in The Wall Street Journal,
      effective for the first date on which payment was delinquent and calculated
      on
      the number of days such payment is overdue.

     

    9.2  Payment
      Reports.  GHS shall provide Cytori with monthly reports
      identifying the amounts owed to and received by GHS from each client hospital
      and/or CB Facility that corresponds to each Cytori Invoice described in Section
      9.1 above, until such time as GHS has been paid in full the amounts that are
      due
      to GHS for the Packages, Devices or Services provided by GHS in relation to
      the
      Cytori Invoices.

     

    10.  SHIPMENT:  Shipments
      of Packages and Devices shall comply with Order instructions and the relevant
      Exhibits attached hereto.  All shipments shall be FCA (Incoterms 2000)
      Cytori’s facility at San Diego, California, or as otherwise agreed by the
      Parties in writing.  GHS will select transportation modes and
      carriers.  GHS also will pay all related freight charges, insurance
      and all import duties and fees.  Cytori will provide all shipment
      information to GHS within 24 hours after a Package or Device is delivered to
      GHS’ carrier.  If any Package or Device will be shipped to GHS from
      the United States into the Territory, GHS (with the reasonable assistance of
      Cytori) shall be responsible for importation of such Package or Device into
      the
      Territory, at GHS’ sole expense, and shall be responsible for compliance with
      any applicable local Laws concerning such importation.

     

    11.TRADEMARKS:  GHS
      will comply with Cytori’s instructions for use of Cytori trademarks
      (“Trademarks”) and disposal of any Packages and Devices bearing
      Trademarks.  Trademarks may only be used in connection with Packages
      and Devices in accordance with this Agreement during the Term, and may only
      be
      used in accordance with Cytori’s written instructions or upon Cytori’s written
      approval.  The Trademarks will be displayed in a prominent
      position.  GHS will not claim any rights to the Trademarks, and will
      not do anything to lessen the significance of Trademarks. GHS shall not use
      Cytori’s name or trademarks in any promotional activity or otherwise except as
      mutually agreed in writing by the Parties.  GHS will not adopt, use or
      register any marks, businesses or domain names confusingly similar to
      Trademarks.

     

    12.  NON-ENGLISH
      VERSIONS OF LABELING:  GHS will be responsible for ensuring
      that Cytori’s labels, packaging and package inserts for Packages and Devices
      comply with all applicable Laws (including local Laws) and regulatory
      requirements for the Territory (including any necessary
      translations).  GHS shall provide reasonable assistance (for example,
      proofreading and advising) with respect to Cytori’s translation of any written
      materials concerning the Devices and/or Packages into Japanese (if Cytori
      determines in its sole discretion to do so).

     

    13.  INSPECTION
      BY GHS:  On at least two (2) weeks prior written notice to
      Cytori, GHS may visit Cytori’s facilities where Devices are manufactured to
      inspect and audit Cytori’s processes and documentation and Cytori’s compliance
      with this Agreement.  Cytori will maintain quality assurance and
      quality controls with respect to Device manufacturing as
      appropriate.  Cytori will comply with any applicable quality
      requirements relating to any Device that are agreed to by the
      Parties.

     

    14.  INSPECTION
      BY CYTORI:  GHS (a) shall maintain for at least five (5)
      years its books, records, contracts and accounts relating to the marketing
      and
      sale of the Packages and Devices, including, without limitation, information
      concerning customer accounts, inventory levels, unit sales, training materials,
      prices, margins, competitor information, market trends and strategies, and
      related promotional activities (collectively, "GHS Information"), and (b) shall
      permit examination thereof by Cytori at reasonable times and upon reasonable
      notice (provided that in no event shall such notice be less than two (2) weeks
      prior written notice by Cytori).  GHS shall allow representatives of
      Cytori, at any reasonable time, to (c) examine GHS' place(s) of businesses
      and
      GHS' inventory of the Packages and Devices, and (d) audit all GHS Information
      connected with the Banking sales.  GHS shall provide Cytori with
      copies of any documents requested by Cytori as a result of such examination
      or
      audit.  In addition, GHS shall secure the right of Cytori to inspect
      and audit (upon reasonable advance notice) the facilities and records of each
      CB
      Facility established hereunder, to ensure that the set-up and operations of
      each
      such CB Facility meet the appropriate quality standards established by Cytori,
      and to inspect the labeling and condition of all inventory and Devices to ensure
      compliance with this Agreement.

     

     

    
      
        
        

      

      
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    15.  RECORDS:  Cytori
      will provide GHS with information and copies of relevant records concerning
      Packages and Devices that GHS may reasonably request to enable GHS to comply
      with all applicable federal, state, and municipal statutes, regulations, rules,
      and ordinances relating to GHS’ use of Packages and Devices.

     

    16.  REGULATORY
      COMPLIANCE:  Cytori will reasonably cooperate with GHS in
      GHS’ efforts to meet regulatory requirements and applicable international
      standards in connection with the Packages and Devices. Each Party will comply
      with all applicable laws, regulations and ordinances (“Laws”) in performing its
      obligations under this Agreement.GHS shall be responsible for compliance with
      any applicable local Laws and Cytori shall provide any reasonably necessary
      assistance in this regard.  Cytori certifies that, as of the Effective
      Date, Cytori has not, and no Cytori employee, affiliate or agent has been,
      debarred or proposed to be debarred by any US agency (including, but not limited
      to, by the U.S. Food and Drug Administration ("FDA") under 21 U.S.C.
      335).

     

    17. REGULATORY
      APPROVAL:  Cytori shall be responsible for obtaining
      regulatory approval of the Devices in the Field in the Territory as deemed
      necessary by Cytori.  Cytori shall also provide GHS with relevant
      information regarding the Packages and Devices that is reasonably necessary
      to
      enable GHS to make additional regulatory submissions for regulatory approval
      of
      the Packages and Devices (the “Cytori Regulatory Information”).

     

    18.  WARRANTIES:  The
      sole warranty given by Cytori regarding any Package and Device shall be that
      written limited warranty provided in Exhibit D, if any, which
      shall accompany such Package or Device or which shall otherwise be designated
      in
      writing by Cytori as applicable to such Package or Device, as the same may
      be
      revised by Cytori from time to time.  GHS agrees to provide to its
      customers (including, without limitation, the CB Facilities) within the
      Territory a written warranty for each particular Package and Device on terms
      that are supplied by Cytori, if any, for such Package and Device.  In
      no event shall GHS’ warranty to such consumers be more favorable to consumers
      than Cytori’s limited warranty, if any, for such Packages and
      Devices.

     

    EXCEPT
      AS EXPRESSLY SO WARRANTED, CYTORI HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS,
      STATUTORY AND IMPLIED, APPLICABLE TO THE PACKAGES AND/OR DEVICES, INCLUDING,
      BUT
      NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, DESIGN, AND/OR FITNESS FOR
      A
      PARTICULAR PURPOSE.  THE WRITTEN LIMITED WARRANTY, IF ANY, APPLICABLE
      TO ANY PARTICULAR PACKAGE OR DEVICE SHALL STATE THE FULL EXTENT OF CYTORI'S
      LIABILITY, WHETHER DIRECT OR INDIRECT, SPECIAL OR CONSEQUENTIAL, RESULTING
      FROM
      ANY BREACH OF SUCH WARRANTY.  CYTORI FURTHER DISCLAIMS ALL EXPRESS,
      STATUTORY AND IMPLIED WARRANTIES APPLICABLE TO THE PACKAGES AND/OR DEVICES
      WHICH
      ARE NOT MANUFACTURED BY CYTORI, OR BY A LICENSEE OR SUBLICENSEE OF
      CYTORI.  THE ONLY WARRANTIES APPLICABLE TO PACKAGES AND/OR DEVICES NOT
      MANUFACTURED BY CYTORI OR BY A LICENSEE OR SUBLICENSEE OF CYTORI SHALL BE THE
      WARRANTIES, IF ANY, OF THE MANUFACTURERS OF THOSE ITEMS.

     

    19.  NO
      OTHER WARRANTIES:  OTHER THAN AS SPECIFICALLY SET FORTH IN
      SECTION 18, NO EXPRESS OR IMPLIED WARRANTIES ARE GIVEN BY CYTORI WITH RESPECT
      TO
      PACKAGES OR DEVICES SOLD BY CYTORI AND PURCHASED BY GHS PURSUANT TO THIS
      AGREEMENT, OR THE PERFORMANCE OR NONPERFORMANCE OF THE PACKAGES AND DEVICES,
      INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND
      FITNESS FOR A PARTICULAR PURPOSE.

     

    20.  INDEMNIFICATION:

     

    20.1  Cytori
      Indemnification:  Cytori will indemnify, defend and hold harmless
      GHS and its officers, directors and employees (the “GHS Indemnified Parties”)
      from any claim, liability, loss, damage, lien, judgment, expense and cost
      (including reasonable attorneys’ fees and other litigation expenses) with
      respect to all claims arising from: (a) any breach of Cytori’s warranties set
      forth in this Agreement; or (b) the negligence or willful misconduct of Cytori
      or Cytori Indemnified Parties in the handling, packaging, labeling, manufacture,
      inspection, packaging, storage and delivery of Packages and/or Devices to GHS’
shipper.  Nothing in the foregoing shall 

     

     

    
      
        
        

      

      
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    obligate
      Cytori to indemnify GHS to the extent a third party claim is the result of
      a
      material breach by GHS of GHS’ obligations under this Agreement, or to the
      extent the claim is one for which GHS is obliged to indemnify Cytori
      hereunder.

     

    20.2  GHS
      Indemnification:  GHS will indemnify, defend and hold harmless
      Cytori and its officers, directors and employees (the “Cytori Indemnified
      Parties”) from any claim, liability, loss, damage, lien, judgment, expense and
      cost (including reasonable attorneys’ fees and other litigation expenses) with
      respect to all claims arising from: (a) the use of Packages, Devices or Products
      by GHS and its sublicensees and/or customers (including each CB Facility);
      (b)
      GHS’ or any CB Facility’s use of Devices and/or ADRCs for purposes other than
      the purposes permitted under this Agreement; (c) GHS’ failure to comply with
      applicable Laws in connection with Packages, Devices or Products (including,
      without limitation, import thereof); or (d) the negligence or willful misconduct
      of GHS or GHS Indemnified Parties in the handling, packaging, labeling,
      shipping, storing, marketing, sale or disposal of Packages, Devices and
      Products.  Nothing in the foregoing shall obligate GHS to indemnify
      Cytori to the extent a third party claim is the result of a material breach
      by
      Cytori of Cytori’s obligations under this Agreement, or to the extent the claim
      is one for which Cytori is obliged to indemnify GHS hereunder.

     

    21.  INSURANCE:  GHS
      shall maintain liability insurance in an amount and for a time period which
      is
      reasonable and customary in the medical device industry for similarly situated
      companies of comparable size and activities at its place of business. Cytori
      shall maintain product liability insurance in an amount and for a time period
      which is reasonable and customary in the medical device industry for similarly
      situated companies of comparable size and activities for products and for
      activities at its place of business.

     

    22.  LIMITATION
      OF LIABILITY:  NEITHER PARTY SHALL BE LIABLE TO
      THE OTHER PARTY FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
      RESULTING FROM OR IN ANY WAY RELATED TO PACKAGES, DEVICES, PRODUCTS OR SERVICES,
      EITHER DURING THE TERM OF THIS AGREEMENT OR AFTER THE EXPIRATION OR TERMINATION
      OF THIS AGREEMENT.  THIS LIMITATION SHALL APPLY REGARDLESS OF ANY
      APPLICABLE LEGAL OR EQUITABLE THEORY.  THE FOREGOING NOTWITHSTANDING,
      NOTHING IN THIS AGREEMENT SHALL PRECLUDE A PARTY FROM TAKING WHATEVER
      COMMERCIALLY REASONABLE ACTIONS ARE NECESSARY TO PREVENT IRREPARABLE HARM TO
      ITS
      INTERESTS.

     

    23.  CONFIDENTIAL
      INFORMATION:

     

    23.1 
      During the Term, a recipient Party may receive information that the disclosing
      Party considers to be confidential and that is not generally known to the public
      (“Confidential Information”).  Confidential Information also includes
      the existence of this Agreement and its terms.  During and after the
      Term, a recipient Party will keep secret the Confidential Information of the
      disclosing Party, using such care as the recipient Party uses in maintaining
      the
      confidentiality of its own confidential information, but no less than a
      reasonable degree of care, and will use Confidential Information of the
      disclosing Party only as is necessary to perform its obligations under this
      Agreement.  Each recipient Party will assure that its employees,
      agents and contractors abide by these confidentiality
      obligations.  Upon written request or at the Term’s end, each
      recipient Party will, at the disclosing Party’s request, either destroy or
      return to the disclosing Party all tangible materials provided by the disclosing
      Party that are the disclosing Party’s Confidential Information.

     

    23.2  Notwithstanding
      the foregoing, Confidential Information does not include information that is:
      (a) is or becomes a part of the public domain through no act or omission of
      the
      recipient Party; (b) the recipient Party can demonstrate was in its rightful
      possession, without a restriction on use or disclosure, prior to receipt of
      the
      information from the disclosing Party; (c) the recipient Party can demonstrate
      was rightfully received from a third party without a restriction on use or
      disclosure; (d) the recipient Party can demonstrate by written evidence was
      independently developed by the recipient Party without access to or use of
      (directly or indirectly) Confidential Information of the disclosing Party;
      or
      (e) is required to be, and is, disclosed in response to a valid order from
      a
      judicial or administrative authority; provided, however, that the Receiving
      Party shall promptly notify the disclosing Party upon its receipt of such order,
      shall use commercially reasonable efforts to limit disclosure, and shall make
      commercially reasonable efforts to obtain confidential treatment or a protective
      order for the disclosure so ordered, and prior to such

     

     

    
      
        
        

      

      
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     disclosure
      to permit the disclosing Party to oppose same by appropriate legal action.
      It is
      understood and agreed that, in the event of a breach by either party of the
      covenant to maintain the confidentiality of the Confidential Information that
      damages are an inadequate remedy. Any breach will cause disclosing party
      irreparable injury and damage and non-disclosing party therefore agrees that
      disclosing party is entitled to injunctive and equitable relief in addition
      to
      all other remedies available to it by law.

     

    23.3  Any
      disclosure of confidential information by one Party to the other Party in
      connection with the Parties’ discussion, negotiation and anticipation of this
      Agreement shall be deemed to be “Confidential Information” of the disclosing
      Party, and shall be subject to the terms and conditions of this
      Agreement.

     

    24.  INTELLECTUAL
      PROPERTY:

     

    24.1  Infringement
      Of Cytori Intellectual Property.  Cytori shall have the exclusive
      right to, and the sole discretion to, prosecute any third-party infringement
      of
      Cytori IP worldwide (including in the Territory).

     

    24.2  Intellectual
      Property Ownership.

     

    24.2.1  “Cytori
      Material” shall include the Devices, the Packages, the Services, Cytori IP,
      Cytori Regulatory Information and Cytori’s Confidential
      Information.

     

    24.2.2  Cytori
      and GHS hereby agree that any discoveries, improvements, inventions, processes,
      techniques, know-how and data, whether or not patentable, made or conceived
      or
      reduced to practice or learned by GHS and/or any of GHS’s sublicensees or CB
      Facilities under this Agreement (“GHS-Related Party(ies)”), that modifies,
      incorporates, practices or utilizes the Cytori Materials (such discoveries,
      improvements, inventions, processes, techniques, know-how and data are
      collectively referred to as “GHS Inventions”) shall be jointly owned by the
      Parties in the Territory, and that all right, title and interest in and to
      such
      GHS Inventions shall be granted and assigned to Cytori, as the sole and
      exclusive owner thereof, throughout the rest of the world.

     

    24.2.3  GHS
      shall disclose in writing to Cytori all GHS Inventions, whether or not
      patentable, within thirty (30) days of identification or development (or within
      thirty (30) days of GHS’ written receipt of same from any GHS-Related Party, as
      the case may be).  Within ninety (90) days of GHS’ disclosure of a GHS
      Invention, Cytori may elect to take responsibility for preparation, filing
      and
      prosecution of patent applications in the Territory, at Cytori’s expense, that
      disclose or claim such GHS Invention; in countries outside the Territory, Cytori
      shall have the sole right to prepare, file and prosecute patent applications
      on
      such GHS Invention, in its sole discretion.  Should Cytori not elect
      to take responsibility for preparation, filing and prosecution of any such
      patent application(s) with respect to a given GHS Invention in the Territory,
      GHS shall have the right to do so, but only in the Territory, at its own
      expense, and for its own account.  GHS and the GHS-Related Parties
      shall cooperate to the extent reasonably necessary to aid in the preparation,
      filing and prosecution of any such patent applications by Cytori, and in the
      execution and filing by Cytori of any documents required to perfect the rights
      granted herein.

     

    25.
      TERM; TERMINATION; SURVIVAL:  This Agreement will commence on
      the Effective Date and end on the date that is the tenth (10th) year anniversary
      of the Effective Date, unless terminated earlier as provided for herein
      (“Term”). The Term may be extended for additional five (5) year periods upon
      mutual agreement at the end of the initial Term. 

     

    25.1  Termination
      for Uncured Material Breach.  If a Party materially breaches this
      Agreement, the non-breaching Party may provide written notice of such material
      breach, and may immediately terminate this Agreement if such breach is not
      cured
      within forty-five (45) days after delivery of such written notice.  It
      is agreed and understood between the Parties that any use of the Devices by
      GHS
      or by any GHS-Related Party outside of the Field shall constitute a material
      breach of this Agreement, and that such material breach on behalf of a
      GHS-Related Party may only be cured by payment of the liquidated damages fee
      and/or (at Cytori’s election) the termination of such GHS-Related Party’s rights
      specified in Section 5.  Repeated violations of the use limitations
      set forth herein by GHS and/or by any GHS Related Party(ies) may be deemed
      incurable by Cytori at any time.

     

    25.2  Termination
      for Failure to Meet Minimum Purchase Requirements.  Cytori may
      have the right to terminate this Agreement for GHS’ failure to meet its Minimum
      Purchase requirements pursuant to Section 4.

     

     

    
      
        
        

      

      
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    25.3
       Termination for Insolvency.  This Agreement may be
      terminated at any time by a Party upon the filing or institution of bankruptcy,
      liquidation or receivership proceedings by or against the other Party; provided,
      however, that in the event of any involuntary bankruptcy or receivership
      proceeding, such right to terminate this Agreement shall only become effective
      if the proceeding is not dismissed within sixty (60) days after the filing
      thereof.

     

    25.4  Survival.  Sections
      18 (Warranties), 19 (No Other Warranties), 20 (Indemnification), 22 (Limitation
      of Liability), 23 (Confidentiality) and 24 (Intellectual Property), 25.4
      (Survivial), 26 (Effects of Termination), 28 (Governing Law; Venue;
      Jurisdiction), and 29  (Dispute Resolution)  shall survive
      expiration or termination of this Agreement

     

    26.           EFFECTS
      OF TERMINATION.  Termination of this Agreement shall not
      extinguish debts and other obligations created or arising between the Parties
      by
      virtue of contracts or arrangements entered into hereunder before the effective
      date of termination of this Agreement (the "Termination
      Date").  Without limiting the generality of the foregoing, upon the
      Termination Date:

     

    26.1           GHS
      shall not be relieved of its obligation to (a) pay for Packages, Devices and
      Services received by GHS prior to the Termination Date, or (b) receive and
      pay
      for all Packages, Devices and Services covered by Binding Purchase Orders which
      have been accepted by Cytori prior to the Termination Date.  Unless
      otherwise agreed by the Parties in writing, Cytori shall be obligated to
      complete all Packages, Devices and Services Binding Purchase Orders which were
      accepted by Cytori prior to the Termination Date; provided that Cytori may
      demand adequate assurance of payment or advance payment in such case; and in
      each such case, GHS shall be permitted to distribute such Packages and Devices,
      as well as any Packages and Devices in GHS' inventory, within the Territory,
      subject to Cytori’s repurchase rights set forth in Section 26.2
      below.

     

    26.2           GHS
      shall submit to Cytori within thirty (30) days after the Termination Date a
      list
      of all of the Packages and Devices owned by GHS which were purchased from Cytori
      as of the Termination Date; Cytori may, at its sole option and discretion,
      purchase any or all of such Packages and/or Devices from GHS upon written notice
      of its intention to do so, at prices to be agreed upon between the Parties,
      but
      in no event shall such prices be greater than the respective prices paid by
      GHS
      to Cytori for such Packages and/or Devices; after receipt of such Packages
      and/or Devices from GHS, Cytori will issue an appropriate credit to GHS'
      account.

     

    26.3           GHS
      shall cease to use any Cytori Trademarks, Cytori Materials and any Confidential
      Information obtained from Cytori relating to or in connection with its continued
      business operations, and shall promptly transfer to Cytori any and all
      regulatory approvals, including any and all physical, written and descriptive
      matter (including all reproductions and copies thereof) containing Confidential
      Information as Cytori may specify.

     

    26.4           In
      the event of a termination of this Agreement by Cytori under Section 25.1,
      GHS
      shall provide Cytori with all customer information and contractual agreements
      related to each of its Banking sublicensees and CB Facilities, and Cytori shall
      have the right, but not the obligation, to assume such contractual relationships
      in the Territory for the Field without any additional consideration to
      GHS.

     

    27.  NOTICES:  Any
      notice required or permitted by this Agreement shall be in writing and shall
      be
      deemed sufficient when delivered personally, sent and confirmed by facsimile,
      or
      sent by reputable overnight courier, and addressed to the Party to be notified
      at such Party’s address or fax number, as set forth below or as subsequently
      modified by written notice in accordance with this Section 27.

     

    28.  GOVERNING
      LAW; VENUE; JURISDICTION:  This Agreement, all acts and
      transactions pursuant hereto, and the rights and obligations of the Parties
      hereto shall be governed, construed and interpreted in accordance with the
      laws
      of the State of New York, without giving effect to principles of conflicts
      of
      law.

     

    29.  DISPUTE
      RESOLUTION:  Disputes arising between the Parties relating to
      the making or performance of this Agreement shall be resolved in the following
      order of preference:  (a) by good faith negotiation between executives
      of GHS and Cytori who have authority to fully and finally resolve the dispute;
      and then (b) by arbitration as set forth in Sections 29.1 and
      29.2.  All negotiations pursuant to this 

     

     

    
      
        
        

      

      
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    Section
      29 shall be treated as Confidential Information in accordance with the
      provisions of Article 23 of this Agreement.

     

    29.1  All
      disputes that are not resolved by good faith negotiations between executives
      of
      GHS and Cytori 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.  GHS shall nominate one arbitrator and
      Cytori shall nominate one arbitrator.  The arbitrators so nominated by
      GHS and Cytori, respectively, shall jointly nominate the third arbitrator within
      fifteen (15) days following the confirmation of arbitrators nominated by GHS
      and
      Cytori.  If the arbitrators nominated by Cytori and GHS 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 the State of Hawaii, 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 Parties hereto, but may not otherwise
      order
      pre-hearing depositions or discovery.  The arbitrators shall apply the
      laws of the State of New York; provided, however, that the Federal Arbitration
      Act shall govern.  The language of the arbitral proceedings (including
      oral and written submissions and presentations) 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.

     

    29.2  No
      arbitration pursuant to this Section 29 shall be commenced until the Party
      intending to request arbitration has first given thirty (30) days advance
      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 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.

     

    30.  ASSIGNMENT:  Neither
      this Agreement, nor any right or obligation hereunder, shall be assignable
      by a
      Party without the prior written consent of the other Party, and any purported
      assignment without such consent shall be void; provided, however, that either
      Party may, without such consent, assign this Agreement and its rights and
      obligations hereunder in connection with the transfer or sale of all or
      substantially all of its business or business unit to which this Agreement
      pertains, or in the event of its merger, consolidation, change in control or
      similar transaction.  No assignment shall relieve any Party of
      responsibility for the performance of any accrued obligation
      hereunder.

     

    31.  FORCE
      MAJEURE EVENTS:  Neither GHS nor Cytori shall be considered
      in default or be liable to the other Party for any delay in performance or
      non-performance caused by circumstances beyond the reasonable control of such
      Party and not related to its fault or negligence, including but not limited
      to,
      acts of God, explosion, fire, flood, earthquake, war whether declared or not,
      accident, sabotage, transportation strike or interference, order or decrees
      of
      any court or action of governmental authority or shortages in or an inability
      to
      procure materials (each a “Force Majeure Event”); provided, however, that the
      affected Party use its diligent efforts to resume performance under this
      Agreement as quickly as possible.

     

    32.  CREDITS
      FOR CERTAIN FORCE MAJEURE EVENTS EFFECTING CB FACILITIES: In the
      event GHS is unable to collect payments due from its client hospitals or CB
      Facilities for Packages, Products or Devices delivered by GHS due to a Force
      Majeure Event suffered by such hospital or CB Facility, and such disability
      continues for at least 60 days, then GHS shall immediately notify Cytori of
      its
      request for a credit under this section, which notice shall include a
      description of the Force Majeure Event, the amount billed by GHS, and the amount
      that remains unpaid to GHS. Upon receipt of such notice, Cytori shall credit
      50%
      of the price paid to Cytori by GHS for the effected Packages, Products or
      Devices back to GHS (which amount shall not exceed 50% of the amount owed to
      GHS
      by such CB Facility for these items). Cytori shall subsequently be entitled
      to
      recover 50% of any payments in cash or other forms of consideration made to
      GHS
      from such hospital or CB Facility until such time as the amount credited to
      GHS
      by Cytori for such disability is paid in full. GHS shall use commercially
      reasonable efforts to collect 

     

     

    
      
        
        

      

      
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    such
      amounts due from the hospitals or CB Facilities, and GHS shall not forgive
      such
      debts without Cytori’s written agreement unless Cytori has been repaid in
      full.

     

    33.  ENTIRE
      AGREEMENT; AMENDMENT; WAIVER:  This
      Agreement sets forth the entire agreement and understanding of the Parties
      relating to the subject matter herein and merges all prior discussions between
      them with regard to such subject matter, except for any confidentiality
      agreement between the Parties pertaining to the subject matter of this
      Agreement.  No modification of or amendment to this Agreement, nor any
      waiver of any rights under this Agreement, shall be effective unless in writing
      signed by the Parties to this Agreement.  The failure by a Party to
      enforce any rights under this Agreement shall not be construed as a waiver
      by
      such Party.  Either Party may waive a breach without waiving any later
      performance.

     

    34.  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.

     

    35.  INDEPENDENT
      CONTRACTORS:  The Parties are independent contractors and
      neither can make any commitments for the other.  The employees of a
      Party are not employees of the other Party.

     

    36.  CONSTRUCTION:  This
      Agreement is the result of negotiations between, and has been reviewed by,
      the
      Parties hereto and their respective counsel, if any; accordingly, this Agreement
      shall be deemed to be the product of both of the Parties hereto, and no
      ambiguity shall be construed in favor of or against either one of the Parties
      hereto.

     

    37.  COUNTERPARTS:  This
      Agreement may be executed in counterparts by original or facsimile signature,
      each of which shall be deemed an original and all of which together shall
      constitute one instrument.

     

    


     

    IN
      WITNESS WHEREOF, the Parties have caused this Agreement to be executed
      by their duly authorized representative as of the Effective Date.

     

     

    
      	CYTORI
              THERAPEUTICS, INC.	GREEN
              HOSPITAL SUPPLY, INC.
	/s/
              Seijiro Shirahama  	/s/
              Kunihisa Furukawa
	By:  Seijiro
              Shirahama 	By:  Kunihisa
              Furukawa
	Title:  Senior
              Vice President, Asia-Pacific 	Title:  President
	  	 
	Address: 	Address:
	3020
              Callan Road 	3-20-8
              Kasuga Suita-City
	San
              Diego, CA 92121 	Osaka
              565-0853, Japan
	Fax:  US
              858-458-0994 	Fax:
	 	 


    

     

    

      
        
          
          

        

        
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