exhbit1049_licenaseagreement.htm


    Exhibit
      10.49

    


    LICENSE
      & ROYALTY AGREEMENT

    


    


    THIS
      LICENSE & ROYALTY AGREEMENT (this
“Agreement”), dated as of the 23th
      day of August,
      2007 (the “Effective Date”), is made and entered into by
      and between OLYMPUS-CYTORI, INC., a Delaware corporation,
      located at 3030 Callan Road, San Diego, CA 92121 (The
      "JVCo") and CYTORI
      THERAPEUTICS,
      INC., a
      Delaware
      corporation, located at 3020 Callan Road, San Diego, CA 92121 ("Cytori").

    


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

    


    


    RECITALS

    


    A.           Cytori,
      JVCo and Olympus Corporation (“Olympus”) entered into a series of agreements in
      November 2005 creating a joint venture (collectively, the “Joint Venture
      Agreements”) dedicated to the commercial development, manufacture and sale of
      JVCo Licensed Products (as defined below) according to the terms of such
      agreements.

    


    B.     Cytori
      is desirous of commercializing and marketing an earlier version of Cytori
      Licensed Product (as defined below) (e.g., CT-800) during the Term (as defined
      in Section 2.5 below) or until JVCo starts to sell its comparable “Licensed
      Product(s)” defined in the License/ Commercial Agreement dated November 4, 2005
      by Cytori and JVCo (“JVCo Licensed Product(s)”). Each of the Parties hereto now
      recognizes that it would be beneficial to all Parties for Cytori to
      commercialize and market an earlier version of the Licensed Product than had
      been anticipated under the Joint Venture Agreements, and have determined that
      the appropriate licenses for Cytori to conduct such early commercialization
      should be granted to Cytori pursuant to all of the terms and conditions provided
      below.

    


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

    


    


    1.           DEFINITIONS

    


    
      	
              1.1

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

            


    

    


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

    


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

    


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

    


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

    


    “Development
      Agreement” shall mean the License/ Joint Development Agreement
      dated November 4, 2005 by and among Cytori, Olympus and JVCo.

    
 

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    “Distributor
      Sale” shall
      mean the last sale of Cytori Licensed Product by Cytori or an Affiliate of
      Cytori to an unaffiliated third party who intends to resell the Cytori Licensed
      Product.

    


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

    


    "End-User
      Sale” means the last sale of Cytori Licensed
      Product within the control of Cytori, or an Affiliate of Cytori, to a Hospital
      or physician for use in such Hospital or Physicians facility.

    


    "Fully
      Burdened Cost of Sales” means all materials, labor
      and overhead costs as determined by Cytori’s accounting policies and procedures,
      including any costs associated with set-up and installation of the Cytori
      Licensed Products.

    


    “JVCo
      IP” or “Licensed IP” shall mean all Intellectual Property Rights
      today or hereafter owned by, licensed by or acquired by JVCo (other than JVCO
      trademarks and service marks) and useable or useful in the Licensed
      Field.

    


    “Licensed
      Field” shall
      mean the
designing, developing, manufacturing, testing, importing, exporting,
      marketing, offering to sell, selling and servicing Cytori Licensed
      Products.

    


     “Cytori
      Licensed
      Product(s)” shall
      mean any automated
      devices (and related component parts), manufactured
      by Cytori
      (e.g., “CT-800)      ***

    ***

    ***

    ***

    ***

    ***

    ***

    ***

    ***

    The
      Cytori Celution System
      is a current
      example of a Cytori Licensed
      Product.
Cytori
Licensed
      Products shall
      not include:                     ***

    ***

    ***

    ***

    ***

    ***

    ***

    ***

    ***

    “Net
      Sales" means the total of the gross invoice prices from the Sale of
      Cytori Licensed Product by Cytori in the form of a  Distributor Sale
      or End –User Sale, less the sum of the following actual and customary deductions
      where applicable:  cash, trade or quantity discounts; sales, use,
      tariff, import/export duties or other excise taxes imposed on particular sales
      (excepting value added taxes or income taxes); transportation, handling and
      refrigeration charges, including insurance; and allowances or credits to
      customers because of rejections or returns (“Customary
      Deductions”).  If Cytori or any Affiliate of Cytori sells at a single
      price or rate a packaged combination of products and/or services, not all of
      which if sold individually would be Cytori Licensed Products, then “Net Sales”
with respect to such sales of packaged products shall equal the number of units
      of each Cytori Licensed Product sold as part of such packaged
      products  multiplied by the respective average adjusted net selling
      price for the same type of Cytori Licensed Product sold
      individually,  and in the same market and distribution method, over
      the preceding six month period , in each case excluding rejections, defects
      and
      returns.

    


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

    _________________________

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

     

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    “Term”
      shall have the meaning set forth in Section 2.5.

    


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

    


    “Intellectual
      Property Rights” shall mean “Intellectual Property Rights” defined
      in the License/ Commercial Agreement dated November 4, 2005 by Cytori and
      JVCo.

    


    1.2           References.  In
      this Agreement, a reference to:

    


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

    


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

    


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

    


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

    


    
      	
              1.3

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

            


    

    


    


    2.           THE
      LICENSE GRANTED BY JVCO

    


    
      	
              2.1

            	
              License
                Grant.

            	
              Subject
                to the terms, conditions and obligations set forth in this Agreement
                including the royalty payments to be made by Cytori to JVCo hereunder,
                JVCo hereby grants to Cytori a non-exclusive, worldwide license to
                the
                JVCo IP (including any improvements thereto) for use in the Licensed
                Field
                for the Term. In addition, Cytori shall be entitled to sublicense
                sales
                rights to its distributors during the Term, and to sublicense the
                manufacture of certain component parts, but such rights shall not
                extend
                the third party manufacture of all or substantially all of the any
                finished Cytori
                Licensed Product. For avoidance of doubt, the license granted
                herein is intended to allow Cytori to develop, make, and use Cytori
                Licensed Products for commercial sale during the Term, and the exercise
                of
                the rights granted herein in accordance with the terms in this Agreement,
                shall not be construed as competing with any products of the Joint
                Venture
                or in any way  violating  the Joint Venture
                Agreements.

            


    

    


    
      	
              2.2

            	
              Royalty
                Payments. In consideration of the license granted by JVCo to Cytori
                pursuant to Section 2.1 above (and subject to the exceptions described
                in
                2.2 (b)):

            


    

    


    (a)
      Cytori shall pay to JVCo a payment in the form of a royalty as described in
      either of the following cases:

     

    ***

    
      	
               

            	
              ***

            


    

    


    
      	
               

            	
              ***

            


    

    
      	
               

            	
              ***

            


    

    (b)
      Cytori shall not be required to pay a royalty for its distribution or provision
      of Cytori Licensed Products without charge or cost to the receiving party (i.e.
      for clinical trials, regulatory, reimbursement etc.).

    _________________________

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

     

     

    
      
        
        

      

      
        3

        
          

        

      

       

      
        
        

      

    

    
      
        	 2.3	 Reports.  Effective
                upon the first commercial sale of a Cytori Licensed Product, Cytori
                shall
                make quarterly royalty reports to JVCo on or before each February
                15 (for
                the quarter ending December 31), May 15 (for the quarter ending March
                31),
                August 15 (for the quarter ending June 30) and November 15 (for the
                quarter ending September 30) of each year.  Each royalty report
                will cover Cytori's most recently completed calendar quarter and
                will
                show: 
	 	 	 (a)  all
                Net Sales during the most recently completed calendar
                quarter;
	 	 	 (b)  the
                Fully Burdened Cost of Sales associated with the Net Sales in 2.3
                (a);
	 	 	 (c)  the
                number of each type of Cytori Licensed Product sold;
	 	 	 (d)  the
                royalties, in U.S. dollars, payable to JVCo hereunder;
	 	 	 (e)  the
                method used to calculate the royalty ; and
	 	 	 (f)  the
                exchange rates used.
	 	 	 
	 	 	 If
                no Net Sales have been made during any reporting period, then a statement
                to this effect is required.


      

       

    

    
      	
              2.4

            	
              Books
                and Records.  Cytori shall keep accurate books and records
                showing all Cytori Licensed Product manufactured, and/or sold under
                the
                terms of this Agreement.  Books and records must be preserved
                for at least five (5) years from the date of the royalty payment
                to which
                they pertain. Books and records must be open to inspection by
                representatives or agents of JVCo at reasonable times, subject to
                a
                reasonable and customary confidentiality agreement.  JVCo shall
                bear the fees and expenses of examination, but if an error in royalties
                of
                more than five percent (5%) of the total royalties due for any calendar
                year is discovered in any examination, then Cytori shall bear the
                fees and
                expenses of that examination.

            


    

    


    
      	
              2.5

            	
              Term
                and Termination. The term of this Agreement
                (“Term”) shall commence on the Effective Date and shall
                continue in full force and effect for a period of  *** for each
                Cytori Licensed Product offered by Cytori hereunder. The Term shall
                expire
                earlier with respect to any specific Cytori Licensed Product at such
                time
                as JVCo notifies Cytori in writing that it has an alternative commercially
                salable JVCo Licensed Product manufactured by or for JVCo that serves
                in
                the same market as such specific Cytori Licensed Product (“Termination
                Notice”).  Notwithstanding the foregoing, the Term of the
                license rights granted hereunder shall continue after the Term with
                respect to:

            


    

    
      	
               

            	
              ***

            


    

    
      	
               

            	
              ***

            


    

    
      	
               

            	
              ***

            


    

    
      	
               

            	
              ***

            


    

    
      	
               

            	 


    

    2.6           Representations
      and Warranties.

    


    2.6.1                      Representations
      and Warranties of Cytori.  Cytori represents and warrants to JVCo
      that:

    


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


    _________________________

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

     

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    (b) 
      The execution, delivery and performance of this Agreement by Cytori will not
      result in any breach or violation of, or conflict with, any third-party
      contract, agreement, undertaking, judgment, decree, order, law, regulation
      or
      rule to which Cytori is a party or by which Cytori or any of its assets are
      bound, provided Olympus Corporation gives its consent to this transaction,
      which
      shall be attached hereto as Exhibit I.

    


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

     

    2.6.2                      Representations
      and Warranties of JVCo.  JVCo represents and
      warrants to Cytori that:

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

    


    (b)           The
      execution, delivery and performance of this Agreement by JVCo 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 JVCo
      is a
      party or by which JVCo or any of its assets are bound, provided Olympus
      Corporation gives its consent to this transaction, which shall be attached
      hereto as Exhibit I.

    


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

    


    
      	
              2.7

            	
              Indemnification.  In
                the event that any of the activities of Cytori in exercising the
                rights
                granted herein results in the assertion of any claim by a third party
                against JVCo, Cytori shall indemnify and hold harmless JVCo and its
                Affiliates, successors and assigns, and its and their respective
                directors, officers, employees and agents, from and against any and
                all
                claims and losses resulting from Cytori’s activities, including but not
                limited to attorneys fees and expenses. JVCo shall promptly notify
                Cytori
                of any such third party claim and Cytori shall have the full right
                to
                control the defense of such claim, provided that it selects counsel
                reasonably acceptable to JVCo, and provided it can reasonably assure
                JVCo
                of its financial ability to fulfill its indemnity obligation. JVCo
                shall
                cooperate with Cytori in the defense of such claim, and  neither
                party shall settle any such claim without the other’s prior written
                approval, which approval shall not be unreasonably
                withheld.

            


    

    


    
      	
               

            	
              2.8    Repair,
                Service and Warranty.  Both Parties acknowledge and agree that
                (i) Cytori shall have responsibility for repair, service and warranty
                on
                Cytori Licensed Products, and (ii) JVCo and Olympus shall have no
                responsibility for repair, service and warranty on Cytori
                Licensed Products.

            


    

    


    
      	
              3.

            	
              MISCELLANEOUS
                PROVISIONS

            


    

    


    
      	
              3.1

            	
              Confidentiality.  Each
                Party will keep confidential all information obtained by or in connection
                with this Agreement from the other Party, including marketing plans,
                customer information, technical information, trade secrets, know-how
                and
                financial information as provided for in the Three-Way NDA, and as
                otherwise provided for in the Joint Venture
                Agreements.

            


    

    


    
      	
              3.2

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

            


    

     

    
 

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

       

    

    
      	
              3.3

            	
              Dispute
                Resolution.  All disputes arising out of or in connection
                with this Agreement, or any relationship created by or in accordance
                with
                this Agreement, shall be finally settled under the Rules of the American
                Arbitration Association (the “Rules”) by three
                arbitrators.  Judgment on the award rendered by the panel of
                arbitrators shall be binding upon the Parties and may be entered
                in any
                court having jurisdiction thereof.  JVCo shall nominate one
                arbitrator and Cytori shall nominate one arbitrator.  The
                arbitrators so nominated by JVCo and Cytori, respectively, shall
                jointly
                nominate the third arbitrator within fifteen (15) days following
                the
                confirmation of arbitrators nominated by JVCo and Cytori.  If
                the arbitrators nominated by JVCo and Cytori cannot agree on the
                third
                arbitrator, then such third arbitrator shall be selected as provided
                in
                the Rules.  The place of the arbitration and all hearings and
                meetings shall be Singapore, unless the Parties to the arbitration
                otherwise agree.  The arbitrators may order pre-hearing
                production or exchange of documentary evidence, and may require written
                submissions from the relevant Parties hereto, but may not otherwise
                order
                pre-hearing depositions or discovery.  The arbitrators shall
                apply the laws of New York as set forth in Section 3.2; provided,
                however,
                that the Federal Arbitration Act shall govern.  The language of
                the arbitral proceedings shall be English.  The arbitrators
                shall not issue any award, grant any relief or take any action that
                is
                prohibited by or inconsistent with the provisions of this
                Agreement.

            


    

    


    No
      arbitration pursuant to this Section 3.3 shall be commenced until the Party
      intending to request arbitration has first given thirty (30) days written notice
      of its intent to the other Party, and has offered to meet and confer with one
      or
      more responsible executives of such other Party in an effort to resolve the
      dispute(s) described in detail in such written notice.  If one or more
      responsible executives of the other Party agree, within thirty (30) days after
      receipt of such written notice, to meet and confer with the requesting Party,
      then no arbitration shall be commenced until the Parties have met and conferred
      in an effort to resolve the dispute(s), or until sixty (60) days has elapsed
      from the date such written notice has been given.

    


    
      	
              3.4

            	
              Successors
                and Assigns.  Except as otherwise expressly provided herein,
                the provisions hereof shall inure to the benefit of, and be binding
                upon,
                the successors and assigns 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. Any purported assignment of this Agreement
                of any right and obligation therein without the written consent of
                the
                other party shall be null and void.

            


    

    


    
      	
              3.5

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

            


    

    


    
      	
              3.6

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

            


    

     

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

    
 

    
      	 
              
              To
                Cytori:

               

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

               

              Attn:  Christopher
                J. Calhoun

              Fax:  858-458-0995

            	 
              
              To
                JVCo:

               

              2-3
                Kuboyama-cho,

              Hachioji-shi,
                Tokyo, 192-8512, Japan

               

              Attn:
                Masaaki Terada

              Fax:  +81-426-91-7350

            


    

     

     

    A
      Party
      may change or supplement its address set forth above, or may designate
      additional addresses, for purposes of this Section 3.6, by giving the other
      Party written notice of the new address in the manner set forth
      above.

    


    
      	
              3.7

            	
              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.

            


    

    


    
      	
              3.8

            	
              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.

            


    

    


    
      	
              3.9

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

            


    

    


    
      	
              3.10

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

            


    

    


    
      	
              3.11

            	
              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.

            


    

    


    
      	
              3.12

            	
              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.

            


    

    


    


    [Signature
      page follows]


    



    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    


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

    


    


    
      	
              CYTORI
                THERAPEUTICS, INC

            	
              OLYMPUS-CYTORI,
                INC.

            
	 	 
	
              By:  /s/
                Seijiro Shirahama

            	
              By:  /s/Yasunobu
                Toyoshima

            
	
              Title:  Sr.
                Vice President, Asia-Pacific

            	
              Title:  Board
                of Director

            
	
              Date:  August
                23, 2007

            	
              Date:  August
                23, 2007

            
	 	 


    

    
 


    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    


    Exhibit
      I

    


    Consent
      to License and Royalty Agreement

    


    August
      23, 2007

    


    Olympus
      Corporation

    2-3
      Kuboyama-cho,

    Hachioji-shi,
      Tokyo, 192-8512, Japan

    Attn:  Mr.
      Shuichi Takayama

    


    


    RE:
      Consent to License and Royalty Agreement

    


    


    Dear
      Mr.
      Takayama:

    


    Cytori
      Therapeutics, Inc. (Cytori) and Olympus-Cytori, Inc. (JVCo) intend to enter
      into
      a license and royalty agreement (Royalty Agreement) whereby Cytori would be
      allowed to develop and manufacture certain Licensed Products (the Cytori
“Celution” devices and disposable components) for commercial sale in a manner
      that was not contemplated in the Joint Venture Agreements by Cytori, Olympus
      Corporation and the JVCo in November of 2005.

    


    Your
      Company's consent is hereby requested to allow the execution of the Royalty
      Agreement by Cytori and JVCo and for the performance of each party of its rights
      and obligations contained therein. It should be noted that the performance
      of
      the Royalty Agreement may, during the term of that Agreement conflict with
      certain exclusive rights of the parties to the Joint Venture Agreements,
      including Section 4.6 of the License/Joint Development Agreement. A complete
      copy of the form of Royalty Agreement is attached hereto as Exhibit I for your
      reference.

    


    Please
      signify your Company's consent to this Royalty Agreement and waiver of any
      conflicts that this may create with the Joint Venture Agreements by having
      an
      authorized person sign and date this letter below.

    


    Thank
      you
      for your consideration.

    


    Sincerely,

    


    /s/
      Seijiro Shirahama

    Seijiro
      Shirahama

    Sr.
      Vice
      President, Asia-Pacific

    


    


    CONSENT
      GRANTED (for the License and Royalty Agreement by and between Cytori
      Therapeutics, Inc. and Olympus-Cytori, Inc.)

    


    Olympus
      Corporation

    


    By
:
      /s/ Shuichi Takayama

    


    Name:
      Shuichi Takayama

    


    Title:
      Director, Member of the Board

    


    Date:
      August 23, 2007



    
      
        
        

      

      
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