EX-10.2






[*] Designates portions of this document that have been omitted pursuant to a request for
confidential treatment filed separately with the Commission



OPTION AGREEMENT




This Option Agreement (“Agreement”) is entered into as of the 14th day of June, 2010 (“Effective
Date”) by and between Asahi Kasei Kuraray Medical Co., Ltd., a Japanese corporation (“ASAHI”) with
an office and place of business at 1-105 Kanda Jinbocho, Chiyoda-ku, Tokyo 101-8101 Japan, and
ThermoGenesis Corp., a Delaware corporation, (“THERMO”) with an office and place of business at
2711 Citrus Road, Rancho Cordova, California, 95742, U.S.A.



WITNESSETH:




WHEREAS, the parties executed the “Distribution and License Agreement” as of 28th day of March 2005
(“License Agreement”), and “Amendment to Distribution and License Agreement” (“Amendment”) to be
signed concurrently with this Agreement, under which (i) THERMO appoints ASAHI as the exclusive
distributor to market, distribute and sell in Asia Pacific Rim Countries and (ii) THERMO grants to
ASAHI the exclusive right to use, market, distribute, sell, have and to have manufactured in Japan
the Product (as defined in the License Agreement), (iii) THERMO commits to maintain manufacturing
function of the Product and to support ASAHI to obtain the approval by MHLW to receive the
reimbursement of the Product (“Approval”);



WHEREAS, THERMO is willing to grant to ASAHI certain rights and options to purchase certain assets
owned or controlled by THERMO for its worldwide wound care business relating to the CryoSeal System
(as defined in the License Agreement) and the Products as a part of the consideration for ASAHI’s
payment to be made under Section 9 of the Amendment; and



WHEREAS, ASAHI is willing to obtain such right and option in accordance with the terms and
conditions set forth below.



NOW, THEREFORE, in consideration of the premises and mutual promises herein made, the parties
hereby agree as follows:




	1.	 	Grant of the Option






	 	(1)	 	THERMO hereby grants ASAHI an option (the “Option”) to purchase the
following items (“Assets”) under the terms and conditions hereinafter set forth;






	 	 	 	a            All intellectual property rights that are necessary or related to
THERMO’s worldwide wound care business in relation to the “CryoSeal System” and
the Products (“Business”), booked or non-booked, including, but not limited to,
the patents and patent applications listed in Exhibit A of this Agreement, , the
trademarks listed in Exhibit B of this Agreement and any and all commercial and
technical know-how, trade secrets, skills and information relating to the
Business (the “Know-How”) (collectively, “Intellectual Property Rights”).






	 	 	 	b            FDA-PMA ownership relating to the Products (“FDA-PMA”)






	 	 	 	c            Contracts and contractual relationships with THERMO’s vendors
related to manufacturing the Product and any rights and obligations thereunder
which ASAHI designates when it exercises the Option, except any rights and
obligations having become accrued prior to the date of ASAHI’s exercise of the
Option (the “Exercise Date”) for which THERMO shall remain fully responsible
either prior to or after the Exercise Date; it being understood that THERMO
shall assign such contracts and contractual relationships as Asahi designates to
the extent they are assignable, and for those not currently assignable, THERMO
shall make a good faith efforts to amend such contracts and contractual
relationships so that THERMO may assign them to ASAHI if ASAHI designates or
terminate if ASAHI does not designate.






	 	(2)	 	All contracts and contractual relationships with THERMO’s existing and
future distributors and/or end-users (“Customers”) and any rights and obligations
thereunder, including, but not limited to, any obligations to supply the Products or
spare parts thereof, any obligations to provide maintenance or repair or any other
services, and any liability relating to the Products sold by THERMO before and after
the Exercise Date shall be expressly excluded from the Assets, for which THERMO shall
remain fully responsible either prior to or after the Exercise Date.






	 	(3)	 	ASAHI may exercise the Option at any time after the effective date of the
Amendment but, unless otherwise agreed between the Parties, no later than the earlier
of (a) fifth anniversary of the effective date of the Amendment or (b) ninety (90)
days after the date of the Approval (the “Expiration Date”) by sending a written
notice to that effect to THERMO in accordance with the provision of Section 10 of
this Agreement.






	 	(4)	 	It is understood and agreed that ASAHI shall not be required to make any
additional payment in consideration of THERMO’s grant of the Option.






	 	(5)	 	For the avoidance of doubt, ASAHI assumes no obligations to exercise the
Option.






	2.	 	Effect of Exercise of the Option.






	 	(1)	 	Upon ASAHI’s exercise of the Option pursuant to Section 1.(3) above, all
the rights and titles in the Assets shall immediately and automatically transfer to
ASAHI from THERMO.






	 	(2)	 	Within thirty (30) days from the date on which THERMO has completed
performance of its obligations under Section 2. (3) through (5) below, ASAHI shall
pay to THERMO the price for the Assets to be determined in accordance with the
following;






	 	 	 	a            US$[*], if the Option is exercised on or before June 30, 2011;






	 	 	 	b            US$ [*], if the Option is exercised between July 1, 2011 and June
30, 2012 (both inclusive);






	 	 	 	c            US$ [*], if the Option is exercised on or after July 1, 2012; or






	 	 	 	d            US$ [*], if the Option is exercised on or after the
date of the Approval, notwithstanding clauses a. through c. above.






	 	(3)	 	Within thirty (30) days from the Exercise Date, THERMO shall disclose and
or furnish to ASAHI all of the materials, documents, data and information related to
the Assets.






	 	(4)	 	Upon request by ASAHI, THERMO shall promptly (in any event within thirty
(30) days from the date of such request) prepare and submit any documents necessary
for ASAHI to secure its ownership in the Assets, including, but not limited to, any
documents necessary to register and/or file the ownership of the Intellectual
Property Rights and the FDA-PMA with the relevant governmental authorities.






	 	(5)	 	Within thirty (30) days from the Exercise Date, THERMO shall obtain the
approval of the counterparties of the contracts included in the Assets for THERMO’s
assignment of such contracts to ASAHI.






	 	(6)	 	Upon the Exercise Date, the License Agreement shall automatically
terminate.






	 	(7)	 	From and after the Exercise Date, (a) THERMO shall have a perpetual,
royalty-free license under the Assets in order to, and to the extent necessary to,
perform THERMO’s obligations to supply the Products or spare parts thereof and to
provide maintenance or repair or any other services, to the existing Customers as of
the Exercise Date as contemplated in Section 1.(2) above, and (b) ASAHI shall not
assert any claim based on the Assets against the existing Customers of THERMO as of
the Exercise Date for such Customers’ providing service and selling the Products
supplied by THERMO under the foregoing clause (a).






	3.	 	Indemnification






	 	(1)	 	THERMO shall indemnify and hold harmless ASAHI and all its affiliates, and their
officers, directors, employees and agents from and against any and all existing or future
claims associated with all Products sold by THERMO either before or after the Exercise
Date, including, but not limited to, any claims or requests by THERMO’s Customers for
maintenance, repair or any other services relating to the Business and/or the Products sold
by THERMO or supply spare parts thereof, or any product liability or breach of warranty
claim by any third party arising out of the Products sold by THERMO, or any claim of
infringement on any intellectual property right of any third party arising out of or
relating to the Products sold by THERMO.






	 	(2)	 	ASAHI shall indemnify and hold harmless THERMO and all its affiliates, and their
officers, directors, employees and agents from and against any and all claims associated
with all Products sold or manufactured by ASAHI after the Exercise Date.






	4.	 	Representations, Warranties and Covenants






THERMO hereby represents, warrants and covenants to ASAHI that:




	 	(1)	 	As of the Effective Date and thereafter through the Exercise Date, it is a
corporation duly organized and in good standing under the laws of Delaware, and has
the full power and authority to own and operate its property and assets and to carry
out its business as it is now being conducted;






	 	(2)	 	As of the Effective Date and thereafter through the Exercise Date, it has
the full power and authority to grant the Option to Asahi and sell the Assets to
ASAHI;






	 	(3)	 	As of the Effective Date and thereafter through the Exercise Date, it is
the sole owner of the Assets, and agree not to assign, transfer or otherwise convey,
or agree to assign, transfer or otherwise convey, the ownership or title to any third
party;






	 	(4)	 	As of the Effective Date, it has not granted to any third party any right,
license, option or the like that may conflict with the Option except the exclusive
distributorship agreements listed in Schedule 4-4 which and THERMO shall use good
faith efforts to amend to non-exclusive, and shall or terminate or not renew before
such agreements from and after the Exercise Date (subject to the terms of the
existing distributorship agreements), and agrees not to grant or agree to grant any
such right, license, option or the like to any third party until the earlier of the
Expiration Date or the Exercise Date;






	 	(5)	 	As of the Effective Date, the Assets not subject to any pledge, attachment,
lien, mortgage or any other encumbrance, and THERMO agrees not to allow any of the
Assets to be subject to any such encumbrances until the earlier of the Expiration
Date or the Exercise Date;






	 	(6)	 	As of the Effective Date, (i) it is not aware of any intellectual property
rights that are owned or controlled by THERMO in connection with the Cryo-Seal System
or the Products that are not the Intellectual Property Rights, (ii) if it becomes
aware of any such intellectual property rights, it shall updates Exhibits A and B so
that such intellectual property rights to be included in the Intellectual Property
Rights, and (iii) it shall not assert any intellectual property rights owned or
controlled by it (other than the Intellectual Property Rights) against ASAHI’s
conducting the Business on or after the Exercise Date;






	 	(7)	 	All application, registration, maintenance and renewal fees in respect of
the Intellectual Property Rights due prior to the Effective Date, and all necessary
documents and certificates relating to the prosecution of the Intellectual Property
Rights required to have been filed before the Effective Date have been paid or filed
by THERMO, and it agrees to make any such payments or filings that becomes due after
the Effective Date through the earlier of the Expiration Date or the Exercise Date at
its costs and expenses;






	 	(8)	 	As of the Effective Date, (i) no patents or patent applications listed in
Exhibit A have been found by a court or administrative body of competent jurisdiction
to be invalid or unenforceable, (ii) it is not aware of any act that estops ASAHI
from enforcing such patents or patent applications, and it is not aware of any prior
art or facts that may cause any such patents or patent applications to be declared
invalid or unenforceable, and (iii) it agrees to immediately inform ASAHI if it
becomes aware of any facts that would result in the circumstances set forth in (i) or
(ii) above;






	 	(9)	 	As of the Effective Date, it is not aware that any Intellectual Property
Rights are being infringed or misappropriated by any third party, and agree to
immediately inform ASAHI if it becomes aware of any such infringement or
misappropriation before the earlier of the Expiration Date or the Exercise Date;






	 	(10)	 	As of the Effective Date, it is not aware of any patent or other
intellectual property right owned by a third party that would be infringed by
carrying out the Business, and agrees to immediately inform ASAHI if it becomes aware
of any such patent or other intellectual property right before the earlier of the
Expiration Date or the Exercise Date;






	 	(11)	 	Any necessary documents, filing and reports relating to the FDA-PMA
required under the Food, Drug and Cosmetics Act of the U.S.A. and any related
regulations (the “Regulations”) to have been filed before the Effective Date have
been filed by THERMO, and it agrees to make any such filings that becomes due after
the Effective Date through the earlier of the Expiration Date or the Exercise Date
under the Regulations at its costs and expenses; and






	 	(12)	 	As of the Effective Date and thereafter through the earlier of the
Expiration Date of the Exercise Date, it has not committed and shall not commit any
breach or infringement on the Regulations in relation to its conduct of the Business.






	5.	 	Confidentiality.






	 	(1)	 	For the purpose of this Agreement, Confidential Information shall mean any
scientific, commercial or technical information that is disclosed by either Party to
the other Party under this Agreement or the License Agreement as amended by the
Amendment, including, but not limited to, the Know-How., and shall also include the
existence and contents of this Agreement. Confidential Information shall not include
information that is: (i) known to the receiving Party before receipt from the
disclosing Party; (ii) is or becomes publicly available without fault of the
receiving Party; (iii) receiving Party receives from any third party without breach
of the confidentiality obligation owed to the disclosing Party; (iv) independently
developed by the receiving Party; (v) approved in writing by the other Party prior to
the disclosure; or (vi) required to be disclosed under the applicable laws. THERMO
agrees that it will request under the United States securities laws, including Rule
24b-2 promulgated under the Securities Exchange Act of 1934, as amended, and use its
reasonable best efforts to seek, confidential treatment of certain information
contained in this Agreement.






	 	(2)	 	During the term of this Agreement, either Party shall keep Confidential
Information in strict confidence and shall not use the same for any purpose other
than this Agreement. Upon the Exercise Date, the Know-How shall become sole property
of ASAHI and ASAHI shall no longer be subject to the obligations with respect to the
Know-How under this Agreement or the License Agreement (notwithstanding anything to
the contrary provided for herein or in the License Agreement), whereas THERMO shall
continue to be subject to the obligations under this Section 5 with respect to the
Know-How and, in addition, shall keep the Know-How in strict confidence and shall not
use any purpose until all of the Know-How becomes publicly available without no fault
of THERMO or any of its officers, directors, employees or agents.






	6.	 	Non-Competition.






THERMO agrees that it or its affiliates shall not, directly or indirectly, market,
distribute, sell, have and to have manufactured any products which are competitive with the
Product for five (5) years after the Exercise Date.




	7.	 	Term and Termination.






This Agreement shall become effective upon the Effective Date and remain full force and
effect until the earlier of the Expiration date or the Exercise Date.




	8.	 	Successors and Assigns.






This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assignees; provided, however, that neither of the parties
hereto may assign or transfer its rights or obligations hereunder without the prior written
consent of the other party hereto




	9.	 	; provided that ASAHI may assign and transfer its rights and obligations hereunder to any of
its affiliates with prior written notice to THERMO; and provided further a change of control
of THERMO shall not constitute an assignment or transfer in which case THERMO shall provide
prior written notice to ASAHI and the acquirer of the Assets in such change of control
transaction shall be bound by this Agreement. For the avoidance of doubt, THERMO’s change of
control means (a) a merger, acquisition, sale of voting control, or other business combination
of THERMO, or (b) an issuance of shares and/or equity securities convertible into shares by
THERMO which in number would amount to 50% or more of the total issued voting shares
outstanding, or (c) the sale, lease, exclusive license, or other transfer of all or
substantially all of the assets of THERMO.






	10.	 	Notice






Any notice in connection with this Agreement shall be furnished in accordance with Section
27 of the License Agreement, with the updated addressees in accordance therewith.




	11.	 	Governing Law and Dispute Resolution






This Agreement shall be construed and interpreted in accordance with the laws of the State
of California, without regard to conflicts of laws principles. Any disputes arising in
connection with this Agreement shall be resolved in accordance with Section 33 of the
License Agreement.




	12.	 	Entire Agreement






This Agreement constitutes the entire agreement between the Parties regarding the subject
matter hereof and supersedes all prior agreements, understandings, representations and
statements if any regarding the subject matter hereof.. No amendment of this Agreement
shall be valid and binding upon the Parties unless made in writing and signed by the duly
authorized representatives of both Parties.




	13.	 	Severability of Provisions






If any provision or provisions of this Agreement shall be held to be illegal, invalid or
unenforceable, the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.




	14.	 	Waiver of Default






The waiver of any default under this Agreement by either party shall not constitute a
waiver of any rights for any subsequent default.




	15.	 	Publicity






Except as may be contemplated hereunder, neither party may issue any press release or make
any public announcement concerning the transactions contemplated by this Agreement without
the prior written consent of the other party, except for any releases or announcements
which may be required by, or in such party’s discretion, reasonably necessary under
applicable law, in which case the party proposing to make such release or announcement will
allow the other party a reasonable opportunity to review and comment on such release or
announcement in advance of such issuance or making. In addition, THERMO agrees that it will
request under the United States securities laws, including Rule 24b-2 promulgated under the
Securities Exchange Act of 1934, as amended, and use its reasonable best efforts to seek,
confidential treatment of certain information contained in this Agreement.



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




ASAHI


Asahi Kasei Kuraray Medical Co., Ltd.




By: Y. Yoshida

Date: June 14, 2010

Name: Yasuyuki Yoshida

Title: President & CEO



THERMO

ThermoGenesis Corp.




By: J. Melville Engle

Date: June 11, 2010

Name: J. Melville Engle

Title: CEO