Amended and Restated License and Supply Agreement dated January 30, 2014

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

A.  WHEREAS, Cytori has acquired, developed and possesses, through the expenditure of considerable time, effort and money, certain proprietary products and intellectual property rights (including medical devices, techniques and therapies, know-how, patents, patent applications and technical trade secrets) in connection with regenerative cell technology and cell/tissue banking technology, used to carry out regenerative cell therapies and treatments (“Cytori Technology”), and

B.  WHEREAS, Lorem desires to obtain from Cytori, the exclusive license rights to market, to sell and distribute the “Cytori Products” in the “Fields of Use” within the “Territory” (as each of these terms are defined below); and

C.  WHEREAS, Lorem has agreed to purchase Eight Million (8,000,000) shares common stock in Cytori at a price of Three Dollars ($3.00) per share for a total of Twenty Four Million ($24,000,000) pursuant to the terms of the Stock Purchase Agreement executed between the Parties; and

D.  WHEREAS, Cytori desires to grant to Lorem exclusive license rights to market, to sell and distribute the “Cytori Products” in the Fields of Use within the Territory, and to manufacture and supply to Lorem, the Cytori Products on the terms and conditions set forth herein; and

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.

“Cardiovascular Field” shall mean applications of the Cytori Products for use in the treatment of cardiovascular disease, including but not limited to:

The Cardiovascular Field also includes Cytori’s proprietary, state-of-the-art system for adipose tissue and adipose-derived stem and regenerative cell ("ADRC") harvesting, processing, cryopreservation, storage, and retrieval in connection with the treatment of Cardiovascular Field related injuries and conditions.

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

“Cytori Products” shall mean all Cytori products identified in the attached Schedule 1, including all future generations of such related Cytori products applicable to the Fields of Use during the License Term.

“Delivery Date” shall mean the date of delivery of Cytori Product(s) by Cytori to Lorem.

“Diabetes Field of Use” shall mean the treatment of Diabetes and related conditions that are directly caused by Diabetes.

“Documentation” shall mean the user and technical manuals and other documentation necessary in connection with commercialization of the Cytori Products.

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

“Equine Field of Use” shall mean the treatment of Horses for any and all medical conditions where the Celution System may be applicable.

“Fields of Use” shall mean all applications and uses of the Cytori Products in humans including but not limited to, the Cardiovascular Field, the Diabetes Field of Use, the Orthopedic Field of use. The only excluded human medical applications are the Hair Field of use, which has been previously licensed to Bimini Technologies, Inc.  This definition also includes the Equine Field of Use for the treatment of horses.

“Force Majeure Event” shall have the meaning set forth in Section 3.10.1

“Hair Field” shall mean sale and use of the Celution Product derived ADRC’s applied "Locally" to the affected skin to reverse, stop or slow hair loss and/or re-grow lost or removed hair and/or improve existing hair follicle thickness, hair color, texture or form, whether alone or in combination with Puregraft processed fat and/or scaffolds or matrices and/or any other additive or combination of additives and alone or in combination with other procedures and treatments.  "Locally" is defined as the delivery of cells into the skin and/or epicutaneous and /or subcutaneous space at or adjacent to an affected area. This Field of use may not be used or marketed to treat the underlying systemic conditions that may be the causes of hair loss, such as thyroid or hormone regulation, or immune disorders, though in such cases it may be used as a localized treatment into the skin or subcutaneous space at or adjacent to an affected area.  This Hair Field specifically excludes any and all marketing and use of the Celution Products for the treatment of thermal and radiation burns to the skin, as well as any systemic (such as intravascular, blood vessel) delivery of cells.

“Intellectual Property Rights” shall mean (a) all inventions (whether patentable or not and whether or not actually reduced to practice), all improvements thereto, and all patents, provisional and non-provisional patent applications and patent disclosures, together with all reissuance’s, divisions, continuations, continuations-in-part, renewals, extensions and reexaminations thereof, (b) all copyrightable works, all works of authorship, all copyrights, and all applications, registrations and renewals in connection therewith, (c) all mask works and all applications, registrations and renewals in connection therewith, (d) all trademarks, service marks, trade names, service names, brand names, trade dress rights, logos, Internet domain names and corporate names, together with the goodwill associated with any of the foregoing, (e) all trade secrets and confidential business information (including, but not limited to, ideas, research and development information, know-how, formulas, compositions, biochemical and biological materials, reagents, assays, manufacturing and production processes and techniques, technical data, data base rights, designs, drawings, specifications, customer and supplier lists, pricing and cost information and business and marketing plans and proposals, and (f) any and all applications and registrations of the foregoing (in any jurisdiction).

 “Liens” shall mean all liens, pledges, charges, mortgages, deeds of trust, hypothecations, title defects, restrictions, conditions, easements, claims, options, leases, rights of possession or use, encumbrances, adverse rights or claims and security interests of any kind or nature whatsoever (including any restriction on the right to vote or transfer), whether voluntarily incurred or arising by operation of law or otherwise, including, without limitation, any written or oral agreement to give or grant any of the foregoing.

“Lorem IP” shall mean all Intellectual Property Rights owned by or acquired by Lorem in connection with and during the term of this Agreement.

 “Orthopedic Field” shall mean applications of the Cytori Products for use in connection with the tissues of the musculoskeletal system including: bones, muscles, cartilage, and associated joints of the spinal and skeletal system, and associated tendons, ligaments, spinal discs and synovium.

 “Party” and “Parties” shall have the meaning set forth in the Preamble.

“Term” shall have the meaning set forth in Section 2.3.

“Trademark” shall mean all trademarks, service marks, trademark and service mark applications, trade dress, trade names, logos, insignia, symbols, designs or other marks identifying a party or its products.

 “Warranty Period” shall have the meaning set forth in Section 3.6.1.

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 “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.

1.4	Attachments, Schedules and Exhibits.  The Attachments, Schedules and Exhibits attached hereto are incorporated herein and form a part of this Agreement.

2.	THE LICENSE GRANTED BY CYTORI

2.1	License Grant and Sublicenses.

2.1.1                Cytori License Grant.  Subject to the terms, conditions and limitations set forth in this Agreement, Cytori hereby grants to Lorem an exclusive, sublicenseable, fully paid-up, license to sell and use (including but not limited to: import, market, offer to sell, use, distribute, service & maintain) the Cytori Products within “Fields of Use” in the Territory during the Term, excluding only the human fields of use as excluded in that definition. The right of Lorem to grant sublicenses to any third party shall be subject to the reasonable and prompt consent of Cytori, and full compliance with the terms of this Agreement, and any breach thereof by any sublicensee shall be the responsibility of Lorem.

2.1.2                Sales and Distribution Restrictions.  Lorem acknowledges and agrees that its right of License granted above does not include any rights outside of the Territory and therefore, Lorem may not: (a) seek customers through marketing or any other means in outside of the Territory, (b) establish any branch or maintain any distribution depot for the Cytori Products outside of the Territory; (c) market or sell the Cytori Products to any customer outside of the Territory. Lorem also agrees that it shall not during the Term of this Agreement, offer, promote, market, distribute or sell any form of cell therapy, or other therapy that is or reasonably could be competitive to the Cytori Products in the Fields of Use in the Territory. Lorem and Cytori each agree to comply with the additional obligations and restrictions provided in Section 3.4 of this Agreement.

2.2	License Fees,  Royalty Payments & Opening Purchase Commitments.

2.2.1           License Fees. In consideration of the license granted by Cytori to Lorem pursuant to Section 2.1, and for Cytori’s other obligations set forth in this Agreement, Lorem shall pay Cytori a license fee in the amount of Five Hundred Million Dollars ($500,000,000) (the “License Fee”) as follows:

2.2.2          Royalty Payments. In consideration of the license and rights granted by Cytori to Lorem pursuant to Section 2.1, and for Cytori’s supply obligations set forth in this Agreement (specifically Product transfer pricing), Lorem shall pay Cytori a Royalty (in addition to the License Fee Payments) of thirty percent (30%) of Lorem’s Gross Profits for its operations in China, Malaysia and Hong Kong each quarter, provided that royalty payments are to be made two quarters (six months) in arrears. This Royalty Payment shall be payable for the full Term of this Agreement.

2.3	Term and Termination.

2.3.1                Term of this Agreement.  The term of this Agreement shall commence on the Effective Date and shall continue in full force and effect until the expiration or termination of the “Term” for the License granted herein as provided in Section 2.3.2 below.

2.3.2                Term of Licenses.  The term of the Licenses granted herein shall extend from the Effective Date for a period of Thirty (30) years thereafter (the “Term”).

2.3.3                License Term Extension.  An extension of the Term for the License shall be granted provided the parties, acting in good faith (each using their best efforts) are able to agree upon commercially reasonable extension terms within six months prior to the end of the then current Term.

2.3.4                Termination.   This Agreement shall terminate in its entirety:

(a)

Upon the expiration or earlier termination of the License granted under this Agreement.

(b)

Upon the material breach of this Agreement by a Party, their successors or assigns or sublicensees (as applicable), provided such breach has not been cured within sixty (60) days of receipt of notice of breach from the other Party. The parties also agree that: (i) where the termination of a sublicensee may be fully sufficient to prevent the breach from recurring (except in the case of Corrupt activities in Section 3.13.1), that such lesser remedies may be pursued in preference to terminating the entire Agreement, and (ii) If the Default is due to a Failure of Supply event by Cytori (as defined in Section 3.3.8), such Default shall be handled exclusively as prescribed in Section 3.3.8, which shall be the sole remedy therefore

 

(a)

In the event of the filing or institution of bankruptcy, liquidation or receivership proceedings by or against Lorem; which proceedings are not dismissed within 90 days after the filing thereof, Cytori shall then have the full, unrestricted right to market, distribute and sell the Cytori Products into the Territory within the Fields of Use for its own account.  Nonetheless, if any reorganized Lorem, or any lawful successor of Lorem’s undivided herein licensed interests is fully capable and willing to abide by the terms of this Agreement and meet market demand for the Cytori Products in the Territory within one (1) calendar year from the initial filing of bankruptcy, liquidation or receivership proceedings, Cytori shall cease all such activities within the Fields of Use in the Territory, and honor the terms of this Agreement with such party, provided such party assumes all reasonable liabilities or commitments entered into by Cytori in the Territory during such interim period. If no reorganized Lorem, or any lawful successor of Lorem’s undivided interests licensed herein is capable and willing to meet market demand for the Cytori Products within the (1) year period, this Agreement shall terminate in its entirety.

(b)

In the event of the filing or institution of bankruptcy, liquidation or receivership proceedings by or against Cytori; which proceedings are not dismissed within 90 days after the filing thereof, Lorem shall be entitled to exercise all rights pursuant to a Failure of Supply (Section 3.3.8), including access to all Technology and Source Codes in Escrow, unless Cytori is able to provide commercially reasonable assurances that it can and will continue to supply the Celution Products to Lorem as contemplated by the Agreement.

2.4.1               Representations and Warranties of Cytori.  Cytori represents and warrants to Lorem that:

 

(b)            The execution, delivery and performance of this Agreement by Cytori 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 Cytori is a party or by which Cytori or any of its assets are bound.

(c)            This Agreement has been duly and validly executed and delivered by Cytori and is binding upon and enforceable against Cytori and its successors and assigns in accordance with its terms.

(e)            Cytori has the full right and authority to grant the licenses provided under Section 2.1 herein.

2.4.2            Representations and Warranties of Lorem.  Lorem represents and warrants to Cytori that:

(a)            Lorem is a corporation duly organized, validly existing and in good standing under the laws of the Australia, and that Lorem 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 Lorem 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 Lorem is a party or by which Lorem or any of its assets are bound.

(c)            This Agreement has been duly and validly executed and delivered by Lorem and is binding upon and enforceable against Lorem in accordance with its terms.

3.                   COMMERCIAL AGREEMENT

 3.2             Supply Arrangement.  Cytori agrees to manufacture and sell the Cytori Products to Lorem during the Term of this Agreement for Lorem’s exercise of the Licenses granted by Cytori in accordance with the commercial terms contained herein, and subject to Lorem’s material compliance with all applicable laws and the restrictions and obligations contained herein.

3.2              Prices and Payment Terms.

3.2.5            Invoicing and Payment Procedure.  Cytori shall invoice Lorem concurrently with its delivery of the Cytori Product(s) ordered by Lorem.  Lorem shall pay for the Cytori Product(s) delivered in accordance with each Order within a maximum of forty-five (45) calendar days from the date that Lorem receives the corresponding invoice issued by Cytori.  Invoices issued by Cytori shall reference the relevant Order number, and indicate (a) applicable tax (if any), (b) quantities of Cytori Product(s) shipped, and (c) date of shipment of the Cytori Product(s) to Lorem or its designee.

3.2.6            Late Payment.  If any payment amount under any invoice issued by Cytori as specified herein becomes overdue, Lorem shall pay to Cytori, upon written demand from Cytori, interest on the unpaid, overdue, balance at the lesser of (a) the maximum rate permitted by law, and (b) ten percent (10%) per annum on the outstanding, balance.  To the extent that any payment of Lorem is overdue, payments received by Cytori from Lorem shall first be applied to any such accrued but unpaid overdue amount. In the even any overdue amounts exceed ninety (90) days from the date of invoice, Cytori shall not be required to accept or ship any additional orders by Lorem until all outstanding invoices are paid in full.

3.3	Order and Forecast.

3.3.1            Orders.  The purchase and sale of the Cytori Product(s) hereunder shall be made by written or electronic purchase order issued by Lorem to Cytori, for purchase of Cytori Product(s) by Lorem (“Order(s)”).  Lorem shall, on or before the first Business Day of each month, place an Order for Cytori Product(s) in amounts for such month that are in accordance with the applicable Forecast(s) previously submitted by Lorem in accordance with this Section 3.3.  For all orders in each Territory that are purchased pursuant to Binding Forecasts under Section 3.3.5, the “Delivery Date” specified in an Order shall be no earlier than forty-five (45) days from the date the relevant Order is placed by Lorem, provided that Cytori shall use commercially reasonable efforts to deliver the Cytori Products sooner if early delivery is requested.  For all Orders purchased prior to the implementation of Binding forecasts, the Delivery Date specified in such Orders shall be no earlier than ninety (90) days from the date the relevant Order is placed, unless an earlier date is mutually agreed by the parties. Each Order will include: (a) a reference to this Agreement and Section, (b) Order quantities, (c) specifications and/or type/model number of the Cytori Product(s) ordered; (d) each Cytori Product unit price and the total price for all Cytori Product(s) in the Order, (e) shipping instructions, (f) requested Delivery Date in accordance with this Section 3.3.1 (including Delivery Dates for partial shipments of ordered Cytori Product(s) on different dates); and (g) shipping and billing address.  In the event of any conflict between or among the terms and conditions of this Agreement and the terms and conditions specified in a Order (including Order acknowledgement by Cytori), such provisions shall be construed in a mutually consistent manner or, if such construction is not reasonably possible, the provisions of this Agreement shall govern and prevail.

3.3.2            Order Acknowledgment.  Cytori shall confirm its receipt of an Order electronically or by facsimile to Lorem within five (5) Business Days of Cytori’s receipt of each such Order, stating the applicable Product purchase price and expected Delivery Date.  For any Orders that exceed one hundred twenty-five percent (125%) of the applicable Forecast in quantity, Cytori may reject such Orders to the extent such Order exceeds 125% of the applicable Forecast.  Cytori shall specifically acknowledge or reject any Order that exceeds 125% of the Forecast  within five (5) Business Days from the date on which Cytori receives such Order, or the order will be deemed accepted and binding on the Parties.

3.3.3            Order Address.  All Orders shall be sent to the following address:

3.3.4            Order Changes.  Once submitted, Orders may not be withdrawn, revoked or altered in any way by Lorem without Cytori’s prior written consent.  Furthermore, except as specifically provided herein or otherwise agreed by Lorem and Cytori, Orders accepted by Cytori may not be withdrawn, revoked, altered or cancelled.

3.3.5            Partially Binding Forecast.  Beginning on the later of: (i) twelve (12) months from the Effective Date, or (ii) twelve (12) months after the receipt of regulatory approval for any specific country in the Territory, then, on the [15th ] day of every second calendar month thereafter during the Term (or, if such day is not a Business Day, then on the immediately following Business Day), Lorem shall submit to Cytori a six (6) month rolling, partially binding forecast (each a “Forecast”) of the quantities of each Cytori Product anticipated to be purchased during the upcoming six (6) calendar month period (the “Forecast Period”).  Each Forecast, and the quantities forecasted for purchase during the Forecast Period covered thereby, shall be partially binding upon CYTORI and Lorem as follows:

3.3.6            Manufacturing Capacity.  The Parties agree and acknowledge that Cytori has a finite capacity to manufacture, or procure the manufacture of, Cytori Product(s) during any given calendar quarter.  In the event Cytori production limits result in material (25% or more) delivery shortfalls for any two consecutive quarters, Cytori shall use its best efforts to increase production capacity provided the then current Forecasts of Lorem (taken together with other anticipated Product sales by Cytori) reasonably warrant such increased capacity.

3.3.7            [Reserved].

3.3.8   Failure of Supply. In the event Cytori is unable to, or fails to supply at least fifty percent (50%) of Lorem’s reasonable requirements for the Celution Products for a period longer than four (4) months after the specified delivery date, or one hundred percent (100%) of Lorem’s reasonable requirements for the Celution Products for a period longer than eight (8) months after the specified delivery date, and Cytori cannot provide Lorem with reasonably satisfactory assurances that such failures or delays have been or will be fully and completely eliminated (promptly), then Lorem shall be entitled to declare a “Failure of Supply” by written notice to Cytori of its intent to exercise its right to access the “Technology & Source Codes in Escrow”. Then, ten (10) business days after delivery of the notice, Lorem shall be entitled to full use and access to the escrowed information for the purpose of self manufacture of the Celution Products for use in the Fields of Use in the Territory.  Cytori shall use its best efforts to supply the Celution Products to Lorem from the date of the notice until Lorem is able to self manufacture the Celution Products. In the event Lorem begins self manufacture of the Celution Products, Lorem shall continue to be required to pay Cytori the License Fees and Royalty payments required by Sections 2.2.1 and 2.2.2, provided that Lorem shall be entitled to offset one hundred and fifty percent (150%) of the reasonable and documented expenses for developing the manufacturing capacity against such License Fees and Royalty Payments owed under Sections 2.2.1 and 2.2.2. These rights shall be Lorem’s sole remedy for Cytori's failure of supply. Lorem’s right to self manufacture Celution Products due to a Failure of Supply is expressly and strictly subject to absolute compliance with the Field of Use and Territorial restrictions of this Agreement.

3.4	Marketing & Supply Obligations and Restrictions.

3.4.1            Marketing Obligations of Lorem / Supply Obligations of Cytori.  Lorem shall at all times use its best efforts to market Cytori Products within the Fields of Use in the Licensed Territories, and Cytori shall at all times use its best efforts to supply Cytori Products as ordered by Lorem hereunder in keeping with the requirements of Section 3.3. Notwithstanding the foregoing, Lorem’s due diligence requirements for China for the first five (5) years from the Effective Date or three (3) years after receipt of regulatory approval in China (whichever is shorter) are as follows:

(a)

Lorem shall use its best efforts to gain regulatory approval in China to market and sell the Cytori Products in China for both non-vascular and Intravascular/Cardiac indications. In support of this effort Cytori shall establish partial manufacturing for the Celution Device and Consumable Cytori Products in the United Kingdom to establish regulatory country of origin designation in the U.K. Cytori shall also cooperate with Lorem’s efforts to obtain approval in China with validated translations of Cytori documentation and advice on the regulatory framework in the EU.

(b)

In each of the first three (3) years after regulatory approval is obtained for intravascular use of the Celution Device in China, Lorem shall purchase a minimum of fifty (50) Celution Devices each year for the China market, and at least fifty (50) Consumable kits each year for each of the Celution Devices purchased that year and fifty (50) Consumable kits for each Device previously purchased for China.

3.4.2            Distributors, Sub-Distributors, Sublicensees of Lorem.  Lorem shall at all times seek, and use its best efforts to maximize the profit margins of Lorem Vascular unless expressly agreed with Cytori in writing, excepting only the initial stocking order for China which may be offered in China at a price below Lorem’s cost of goods from Cytori. Without limitation on the foregoing, Lorem agrees that it shall not enter into any sublicense, sales or distribution relationships with any company, person or other entity that is either directly or indirectly related to (via either family relationship, business relationship or other financial relationship) any officer, manager, director or shareholder in Lorem, or any of their Affiliates, or Lorem Affiliates, unless the relationship (including all proposed terms) are fully disclosed to and approved by Cytori in writing prior to finalizing such agreements.

3.5	Inventory Management and Shipment of Products.

3.5.1            Shipment.  Unless otherwise specifically agreed between the Parties in writing, Cytori shall, at its own expense, procure from contract manufacturer(s), if any, shipment and delivery of Cytori Product(s) EXW – Ex Works (San Diego, to manufacturing subcontractor facilities, as interpreted in accordance with INCOTERMS 2010).

3.5.2            Title and Risk of Loss.  Risk of loss and title to any Cytori Product(s) purchased by Lorem pursuant to this Agreement shall pass from Cytori to Lorem EXW shipping point.

3.5.3            Notice of Inability to Deliver Cytori Product(s).  Cytori shall provide Lorem with immediate written notice if Cytori becomes aware that it will not be able to deliver the relevant Cytori Product(s) on or within three (3) days prior to the relevant Delivery Date specified in an accepted Order, or if Cytori becomes aware that only a portion of the relevant Cytori Product(s) can be delivered on or within three (3) days prior to the relevant Delivery Date specified in an accepted Order.  Upon receipt by Lorem of such notice from Cytori, Lorem shall instruct Cytori to either (a) deliver such deliverable portion of the Cytori Product(s) in accordance with this Agreement and relevant Order, or (b) reschedule shipment of all or a portion of such Cytori Product(s).  If Cytori delivers a portion of the Cytori Product(s) ordered under a certain Order pursuant to Lorem’s instructions pursuant to item (a) of this Section 3.5.3, Cytori shall, at Cytori’s sole cost and expense (including air transportation) and upon becoming able to complete such Order, promptly deliver all remaining undelivered Cytori Product(s) specified in such partially performed Order by air transportation, or such other means of transportation directed by and/or reasonably acceptable to Lorem.

3.6	Product Warranties.

3.6.1.            Product Warranties.  Cytori warrants to Lorem for a period that is the lesser of: (a) twenty-four (24) months from the Delivery Date of the relevant Cytori Product(s) by Cytori to Lorem; or (b) twelve (12) months from the date of delivery of such Cytori Product(s) by Loremor its designee to the end-user or customer, (the applicable period referred to herein as the "Warranty Period"), that any such Cytori Product(s) sold by Cytori to Lorem hereunder shall:

(i)

operate in a manner that meets the relevant Cytori Product(s) specifications; and

(ii)

be free from defects, for reason(s) attributable to Cytori, in material, design and workmanship.

3.6.2            Warranty Obligations.  During the Warranty Period, The Cytori Devices and Consumables shall each carry the limited warranty as specified in Schedule 3 hereto. Cytori Products manufactured by third parties (including various Cell/Tissue Bank products, shall have only the warranty as provided by the manufacturer of such products. 

3.6.3            Disclaimer of Warranty.  EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 3.6, CYTORI DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING.  Lorem DOES NOT WARRANT THAT ALL DEFICIENCIES, ERRORS, DEFECTS OR NON-CONFORMITIES OF THE CYTORI PRODUCT(S) OR PARTS OR COMPONENTS THEREOF (WHETHER DIRECTLY OR INDIRECTLY) SUPPLIED BY Lorem CAN BE CORRECTED.

3.7	Obsolescence.

3.7.1            Discontinuance by Cytori.  Cytori agrees and acknowledges that it has an obligation to manufacture, supply and support the Cytori Product(s) without interruption during the Term.  If Cytori wishes to discontinue the manufacture and supply of any particular Cytori Product(s) during the Term, Cytori shall provide written notice of such to Lorem not less than four (4) months in advance of the last date such Cytori Product(s) can be ordered.  Upon Lorem’s receipt of any such discontinuance notice by Cytori, Cytori shall provide Lorem with the appropriate designation for a suitable replacement Cytori Product(s) as reasonably necessary to the use of the Cytori Products in the Fields of Use as herein contemplated by the parties. Cytori shall continue to provide support for Cytori manufactured discontinued products as required for a period of at least three years from the date of discontinuance.

3.7.2            Final Order.  Prior to the effective date of the (a) the expiration or sooner termination of this Agreement, or (b) discontinuance of any Cytori Product(s) by Lorem under Section 3.7.1, Lorem may make, and Cytori agrees to accept, a final Order for the relevant Cytori Product(s) to be paid for and shipped during a period commencing on the date of any such expiration, sooner termination or discontinuance, and ending on the date that is six (6) months after such date of any such expiration, sooner termination or discontinuance.

3.8	Marketing, Licensing and Insurance.

3.8.1            Marketing Authority.  Cytori retains the sole and exclusive right and authority to market, distribute and sell the Cytori Product(s) in all non-licensed Territories and/or Fields.  Lorem retains the sole and exclusive right and authority to market, distribute and sell the Cytori Product(s) in the Fields of Use in the licensed Territories, provided that upon either parties reasonable request, the other Party shall, when reasonably practicable, allow the requesting party access to the general marketing research & activities in relation to the Cytori Product(s) to further the mutual expansion and development of Fields of Use.

3.8.2            Product Use Restrictions/Representations. Lorem understands and agrees that the Cytori Products which are labeled and intended for specific indications may cause injury or death if used for applications outside such specified labeling and instructions for use. Lorem agrees that only qualified trained and licensed healthcare professionals in the Territory will be provided authorization to use the Products in a manner consistent with all applicable laws and regulations.

3.8.3.       False or Misleading Representations. Lorem shall make no false or misleading representations to customers or other persons with regard to the Cytori Products or Cytori.  Cytori shall permit Lorem to externally link the Lorem website to the Cytori website, provided Cytori has the opportunity to review and approve the content of the Lorem website that refers to Cytori or its products (or utilizes Cytori Trademarks), which review and approval shall not be unreasonably delayed or withheld.

3.8.4.           Rights In Marks.  Except as expressly agreed by the Parties herein or elsewhere in writing, nothing in this Agreement shall be construed to grant either Party any rights in any Trademarks of the other Party.  Notwithstanding the immediately preceding sentence, Cytori hereby authorizes Lorem, only for the purposes of labeling, marketing and selling the Cytori Product(s), to use the Cytori Product(s)-related Trademark(s) of Cytori in the conduct of the operation of the Fields of Use license. Use of specified Cytori Trademarks by Lorem, shall be expressly limited by the following terms of use:

3.8.8            Insurance.  Each Party will, maintain adequate commercial general liability insurance and product liability insurance, in amounts which are reasonable and customary within the industry.  Subject to reasonable insurance policy limitations and exclusions, such product liability insurance of each Party shall insure against all liability arising out of the use, manufacture (including packaging and delivery), sale, offer for sale, importation, distribution, marketing and promotion of the Cytori Product(s) throughout the world.

3.9	Country of Manufacture.

3.9.1            Country of Origin Certification.  Upon Lorem request, Cytori shall provide Lorem with an appropriate certification stating the country of origin for Cytori Product(s), sufficient to satisfy the requirements of the customs authorities of the country of receipt and any applicable export licensing regulations, including those of the United States, United Kingdom, Germany, Europe, and Japan.

3.9.2            Customs Authorities; Export Regulations.  Lorem shall notify Cytori of any requirement from applicable customs authorities, and Lorem will comply in a timely manner with such requirements.  Upon Lorem’s reasonable request, Cytori shall assist Lorem with certification stating the country of origin to satisfy the requirements of the customs authorities of the country of receipt and the countries of Lorem’s distribution operations.

3.10	Force Majeure Events.

3.10.1          Force Majeure.  To the extent that either Party to this Agreement is temporarily unable to perform its obligations hereunder, in whole or in part, due to causes beyond such Party’s reasonable control, including, but not limited to, acts of God, acts of war, acts of terrorism, civil disturbance, governmental action, strikes, fire, flood, typhoon, peril or accident at sea, inability to secure materials and transportation or facilities, walkouts or lock-outs or other labor disputes beyond the reasonable control of such Party (each, a “Force Majeure Event”), the time for performing such Party’s obligations will be extended until such time (a) as the Force Majeure Event has been resolved or otherwise mitigated or eliminated, or (b) as mutually agreed by the Parties, and in case of either (a) or (b), so as not to materially impede or prevent performance of such Party’s obligations; provided, however, that the Party claiming the benefit of this provision shall provide to the other Party prompt written notice and reasonable evidence of the occurrence of such Force Majeure Event, and shall cooperate with the other Party in taking all such commercially reasonable actions as may be necessary or appropriate to mitigate, avoid or lessen the adverse effects of such Force Majeure Event, as it may relate to the performance of each Party’s respective obligations hereunder.  In no event shall a Party’s inability to pay any sums due hereunder or otherwise perform any of its financial obligations hereunder be independently deemed to be a Force Majeure Event.  Until such Force Majeure Event is so resolved, mitigated or eliminated, or until expiration of the time period mutually agreed by the Parties, the Party so unable to perform its obligations shall not be deemed to be in default under or in breach of this Agreement; further provided that the Parties shall in any event be required to perform all other obligations hereunder which are reasonably capable of being performed during the continuance of such Force Majeure Event.  In the event that the Parties do not agree upon the occurrence of a Force Majeure Event, then the matter shall be submitted to arbitration pursuant to the provisions of Section 4.3 hereof.  Subject to the foregoing, a Force Majeure Event may include (a) the occurrence of any pandemic, epidemic or prevalent disease or illness with an actual or probable threat to human life, including, without limitation, atypical pneumonia or Severe Acute Respiratory Syndrome (SARS), or avian influenza, or (b) adherence to any travel restriction, warning or advisory issued in relation thereto by the Government of the United States, the World Health Organization (WHO) or the U.S. Centers for Disease Control (CDC), or (c) any quarantine or similar measure taken in relation thereto by any governmental authority to prevent the spread of any communicable disease, or (d) any unavailability of any resources or services resulting directly from any of the foregoing, or (e) impossibility to deliver Cytori Product(s) due to export/import restriction derived from a governmental regulation that would make the export/import act illegal.  In the event that a Force Majeure Event continues for three (3) months or longer, either Party may terminate and cancel any and all outstanding Orders, regardless as to whether accepted by Cytori, by written notice to the other Party.

3.17

EXAMINATION AND AUDIT OF LOREM BOOKS & RECORDS.  Lorem (a) shall maintain for at least five (5) years its books, records, contracts and accounts relating to the marketing and sale of the Products, including, without limitation, information concerning customer accounts, inventory levels, unit sales, historical Cytori Product sales prices, competitor information, market trends and strategies, and promotional activities (collectively, "Lorem Information"), and (b) shall permit examination thereof at all reasonable times by Cytori.  Lorem shall allow representatives of Cytori at any reasonable time to (c) examine Lorem's place(s) of businesses and Lorem's inventory of the Products, and (d) audit all Lorem Information connected with the sale of Products.  Lorem shall provide Cytori with copies of any documents requested by Cytori as a result of such examination or audit. In addition, Lorem’s (and each of its subsidiaries) books and records shall be audited no less than annually by a professional, reputable and accredited audit firm such as KPMG LLP, and Cytori shall be provided full and unredacted copies of all audit reports generated by such firm within five (5) business days of their presentation to Lorem.

3.18

TREATMENT OF CONFIDENTIAL INFORMATION.  All Confidential Information disclosed by one Party to another in the course of this Agreement shall be maintained confidential in accordance with the Mutual Nondisclosure Agreement executed between the Parties concurrently herewith. As such, the Confidential Information may not be used or disclosed by the receiving party except as necessary to perform its rights or responsibilities specified in this Agreement.  Upon expiration or sooner termination of this Agreement, the Receiving Party shall immediately cease all use of the Disclosing Party’s Confidential Information and shall, in accordance with Disclosing Party’s reasonable written instructions, promptly return to Disclosing Party or destroy all Confidential Information of the Disclosing Party, including, without limitation, all copies (in electronic form or otherwise) in Receiving Party’s possession and any notes or memoranda that contain Confidential Information of the Disclosing Party.  The Receiving Party shall certify in a writing signed by an officer or director of the Receiving Party that all such Disclosing Party Confidential Information has been returned, deleted or destroyed.

3.19            LIMITATION OF LIABILITY.

4.	MISCELLANEOUS PROVISIONS

4.1	Export Regulations.  Each Party shall be responsible for observing and abiding by any and all export control laws and regulations (including, without limitation, any and all costs associated therewith) applicable to the Cytori Product(s).

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

4.3

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.  Lorem shall nominate one arbitrator and Cytori shall nominate one arbitrator.  The arbitrators so nominated by Lorem and Cytori, respectively, shall jointly nominate the third arbitrator within fifteen (15) days following the confirmation of arbitrators nominated by Lorem and Cytori.  If the arbitrators nominated by Lorem 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 San Diego, USA, 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 5.2; 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 5.3 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.

4.5

SUCCESSORS AND ASSIGNS.  Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be fully binding upon, the successors, assigns, heirs, executors and administrators of the Parties hereto whose rights or obligations hereunder are affected by such amendments.

4.6

ENTIRE AGREEMENT.  This Agreement 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.

4.7

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.

A Party may change or supplement its address set forth above, or may designate additional addresses, for purposes of this Section 4.6, by giving the other Party written notice of the new address in the manner set forth above.

4.8

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.

4.9	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.

4.10	TITLES AND SUBTITLES.  The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.

4.11	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.

4.12

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 Lorem 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.

4.13	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.

4.14	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.

IN WITNESS WHEREOF, the Parties have executed this Amended and Restated License/Supply Agreement as of the Effective Date.

LIMITED WARRANTY.  CYTORI Therapeutics, Inc. (CYTORI) warrants that the Celution Devices and Celution Consumable Products will operate substantially in conformance with CYTORI's published specifications and be free from defects in material and workmanship, when subjected to normal, proper and intended usage by properly trained personnel, for a period of one (1) year from the date of shipment to end user (or “Buyer”), but in no event longer than two (2) years from the  original Delivery Date from Cytori, whichever occurs first (the "Warranty Period").  CYTORI agrees during the Warranty Period, provided it is promptly notified in writing upon the discovery of any defect and further provided that all costs of returning the defective Products to CYTORI are pre-paid by Buyer, to repair or replace, at CYTORI's option, defective Products so as to cause the same to operate in substantial conformance with said specifications.  Replacement parts may be new or refurbished, at the election of CYTORI.  All replaced parts shall become the property of CYTORI.  Shipment to Buyer shall be paid for by CYTORI during the Warranty Period.  Lamps, fuses, bulbs and other expendable items are expressly excluded from this limited warranty.  Buyer shall not return a non-conforming or malfunctioning Product having a risk of causing biological hazard to Cytori. In such case, Buyer must retain such Product, and Contact Cytori for further assistance.  In no event shall CYTORI have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of or by Buyer, (iv) use of the Products in a manner for which they were not designed, (v) causes external to the Products such as, but not limited to, power failure or electrical power surges, (vi) improper storage of the Products or (vii) use of the Products in combination with equipment or software not supplied by CYTORI.  If CYTORI determines that Products for which Buyer has requested warranty services are not covered by the warranty hereunder, Buyer shall pay or reimburse CYTORI for all costs of investigating and responding to such request at CYTORI's then prevailing time and materials rates.  CYTORI will provide repair services or replacement parts that are not covered by the warranty during the Warranty Period subject to Buyer’s payment to CYTORI at CYTORI's then prevailing time and materials rates for such repairs.  ANY DAMAGE CAUSED BY UNAUTHORIZED INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN CYTORI (OR CYTORI’S CERTIFIED DESIGNEES) WITHOUT CYTORI'S PRIOR WRITTEN APPROVAL, OR DAMAGE CAUSED BY USE OF REPLACEMENT PARTS NOT SUPPLIED BY CYTORI, SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO SUCH DAMAGE

---