FIRST AMENDMENT
LICENSE AGREEMENT
(Clotalyst)
This First
Amendment to the Agreement (“First Amendment”), made
and entered into as of March 30, 2007 by and between CELL FACTOR
TECHNOLOGIES, INC., now BIOMET BIOLOGICS, INC.
(“Biomet”), an Indiana corporation having its principal
office at 56 East Bell Drive, Warsaw, Indiana 46582, and
THERMOGENESIS CORP. (“TGC”) a Delaware corporation
having its principal offices at 2711 Citrus Road, Rancho Cordova,
California 95742.
TGC and Biomet
entered into a certain supply agreement effective on March 29,
2005 (“Agreement”).
TGC and Biomet
desire to amend this Agreement to change its structure from a
supply agreement to a license agreement and make other
modifications.
The parties
therefore agree as follows:
1.
Title. The title of the Agreement is hereby amended by
replacing “Supply Agreement” with “License
Agreement.”
2.
Recitals. In the recitals, the third WHEREAS clause is
hereby amended by replacing it as follows:
WHEREAS, CFT
desires to license TGC’s Clotalyst Rights and
Clotalyst Reagent Rights (as defined below);
3.
Article I. Definitions . Article I of the
Agreement is hereby amended as follows:
(a) by replacing
Section 1.5 as follows:
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1.5
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“Product(s)” means
TGC’s Thrombin disposable and Reagent that meets the
performance specifications in Appendix A and will be sold
under the CFT trademark Clotalyst. After CFT purchases all required
Products under Section 2.1, the definition of Products will be
replaced by the following definition. “Product(s)”
means Clotalyst Reagent.
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(b) by adding
Section 1.9 as follows:
1.9 “
Clotalyst Reagent” means TGC’s current TPD reagent
for incorporation into CFT’s Clotalyst that is covered by a
valid claim of a patent within Clotalyst Reagent
Rights.
(c) by adding
Section 1.1 0 as follows:
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ThermoGenesis
& Biomet
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First Amendment
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1.10
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“Clotalyst Rights” means
TGC’s Intellectual Property required for CFT to make, use,
sell, offer to sell, sell, and import the Clotalyst, including, but
not limited to U.S. Patent No. 6,274,090 and U.S. Patent
No. 6,472,162.
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(d) by adding
Section 1.11 as follows:
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1.11
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“Clotalyst Reagent
Rights” mean TGC’s Intellectual Property required for
CFT to make, use, offer to sell, sell, and import Clotalyst
Reagent.
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(e) by adding
Section 1.12 as follows:
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1.12
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“Net Sales” mean sales
less commissions received by CFT and/or its licensees from the sale
of CFT’s Clotalyst disposable that uses the Clotalyst Reagent
and meets the performance specifications in
Appendix A.
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4.
Article II. Terms and Conditions of Sale .
Article II of the Agreement is hereby amended as
follows:
(a) by replacing
Section 2.1 with the following:
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2.1
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Purchase
. TGC shall supply
Product and CFT shall purchase Product at the transfer price
according to the terms and conditions of sale set forth below. CFT
shall purchase five hundred (500) Products as of the date in
the introductory paragraph, and CFT shall purchase at least five
hundred (500) Products each subsequent calendar quarter to
reach a total purchase quantity of at least two thousand five
hundred (2,500 Products after the date in the introductory
paragraph of this First Amendment.
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(b) by replacing
Section 2.2 with the following:
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2.2
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Forecast. CFT shall provide TGC with
a mutually agreed upon reasonable forecast for the purchase of
Products.
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(c) by deleting in
its entirety Section 2.5.
(d) by adding new
Section 2.16 as follows:
2.16
Purchase of Clotalyst Reagent . TGC shall supply
Clotalyst Reagent and CFT shall purchase Clotalyst Reagent at a
transfer price that shall not exceed ten dollar ($10.00) for each
Product, F.O.B. TGC Point of Shipment according to the terms and
conditions of sale. The Clotalyst Reage
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