exhibit10281_amend1lca.htm


    Exhibit
10.28.1



    AMENDMENT
ONE TO LICENCE/COMMERCIAL AGREEMENT

    


         Effective
as of November 14, 2007, CYTORI THERAPEUTICS, INC., a Delaware corporation,
located at 3020 Callan Road, San Diego, CA 92121, U.S.A. (“Cytori”), and
Olympus-Cytori, Inc. a Delaware corporation, located at 3030 Callan Road, San
Diego, CA 92121, U.S.A. (“NewCo”), agree as follows:

    


    RECITALS:

    


    A.  Cytori
and NewCo entered into LICENCE/COMMERCIAL AGREEMENT as of November 4, 2005
(hereinafter called “the Original Agreement”).

     

    B.  Cytori
and NewCo entered into a License and Royalty Agreement on August 23, 2007 (the
“Royalty Agreement”).

     

    C.  Cytori
and NewCo hereby agree to make certain modifications to the Original Agreement
to ensure that the terms of the Royalty Agreement will not conflict with the
terms of the Original Agreement.

    


    
      	
              1.1  

            	
              Cytori
      and NewCo agree that Section 2.1.5 of the Original Agreement is hereby
      amended in its entirely to read as
follows:

            


    

    


    2.1.5 “Reservation
of Rights for Cytori to Use the Cytori IP. Cytori has and shall retain an
unrestricted right to use all Cytori IP for the development, manufacture and
sale of a first generation of commercial Cytori developed Licensed Product(s),
CT-800 (“Cytori
Product(s)”); provided that such Cytori Product(s) may only be used for
regulatory and clinical trial purposes, and may not otherwise be generally
commercially released, unless NewCo has failed to produce a commercially salable
Licensed Product that reasonably meets Cytori’s specification for and
serves the same market as such specific Cytori Product (a “NewCo Commercial
Product”) within three (3) years from the Effective Date. NewCo shall not
be liable in any way for the commercial use of the Cytori Product unless it
affirmatively elects to do so in writing. Cytori shall continually share and/or
make available to NewCo all new Licensed Product development information,
and NewCo shall be entitled to incorporate any such information into NewCo’s
Licensed Product(s). At any time that NewCo has a NewCo Commercial Product,
Cytori shall not have the right to sell, or offer to sell the Cytori Product in
the markets served by the NewCo Commercial Product (unless 

     

    
      
         

      

      
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    NewCo is
unable to fulfill Cytori’s Orders for such NewCo Commercial Product(s) in
accordance with Section 3 herein). In the event Cytori has sold Cytori Product
as allowed hereunder and the NewCo Commercial Product becomes available, Cytori
shall only then be allowed to manufacture and sell (i) replacement parts
for Cytori Product(s) sold before the NewCo Commercial Product became available;
and (ii) disposable one-time use Cytori Product(s) but only to the extent
required to support Cytori Product(s) sold before the NewCo Commercial Product
became available. Both Parties acknowledge and agree that (i) Cytori shall
have responsibility for repair, service and warranty on Cytori Product(s) sold
by Cytori, and (ii) NewCo and Olympus shall have no responsibility for repair,
service and warranty on such Cytori Products. For avoidance of doubt,
Cytori shall not otherwise sell any competing product for the first three years
from the effective date. Cytori reserves all rights to itself to use and exploit
the Cytori IP for the further development of all therapeutic applications of the
Cytori IP in all fields of use. Notwithstanding the foregoing, all
references in this Section 2.1.5 to the sale of Licensed Products by Cytori
shall be inoperative and of no effect during the term of the Royalty Agreement
dated August 23, 2007, which shall exclusively govern such activities during its
term. Furthermore, Cytori’s rights to commercially sell Cytori Products as
provided herein shall at all times be subject to the obligation of Cytori to pay
a royalty to Olympus equal to that required by Section 2.2 of the Royalty
Agreement in addition to the obligations provided for in Section 2.3, 2.4 and
2.7 of that Agreement.

    


    
      	
              1.2  

            	
              This
      Amendment shall enter into force with retroactive effect from August 23,
      2007.

            


    

    


    
      	
              1.3  

            	
              All
      capitalized terms used but not defined herein shall have the same meaning
      as set forth in the Original
Agreement.

            


    

    


    
      	
              1.4  

            	
              The
      terms of this Amendment shall supersede any inconsistent terms contained
      in the Original Agreement. Except as specifically modified herein, the
      Original Agreement shall remain in full force and
  effect.

            


    

    


    
      	
              1.5  

            	
              This
      Amendment shall be deemed to be incorporated into by reference and a part
      of the Original Agreement.

            


    

    


    


    [Signature
page follows]

    
 

    
      
         

      

      
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    IN
WITNESS WHEREOF, the parties hereto have executed this Amendment One To
License/Commercial Agreement in duplicate originals by their duly authorized
officers or representatives.

    


    
      	
              CYTORI
      THERAPEUTICS, INC.

               

              /s/
      Mark Saad            

               

              Name:
      Mark Saad 

               

              Title: Chief Financial Officer

               

              Date: November 14, 2007

               

            	
              OLYMPUS-CYTORI,
      INC.

               

               /s/ Yasunobu
      Toyoshima    

               

              Name: Yasunobu Toyoshima

               

              Title: Board of Director

               

               Date: November 20,
  2007

            


    

     


    
      
         


      

      
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