MASTER CELL BANKING AND CRYOPRESERVATION AGREEMENT
Exhibit
10.48
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 0000 Xxxxxx
Xxxx, Xxx Xxxxx, XX 00000 (“Cytori”), and
Green Hospital Supply, Inc., having a place of business at 0-00-0 Xxxxxx
Xxxxx-Xxxx, Xxxxx 000-0000, Xxxxx (“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
9
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/ Xxxxxxxx Xxxxxxxx |
| By: Seijiro Shirahama | By: Xxxxxxxx Xxxxxxxx |
| Title: Senior Vice President, Asia-Pacific | Title: President |
| Address: | Address: |
| 0000 Xxxxxx Xxxx | 0-00-0 Xxxxxx Xxxxx-Xxxx |
| Xxx Xxxxx, XX 00000 | Xxxxx 000-0000, Xxxxx |
| Fax: US 000-000-0000 | Fax: |
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