License Agreement

“ Affiliate” shall mean:

“Cobe” means COBE Cardiovascular, Inc., its parent companies, subsidiaries, companies under common control with Cobe Cardiovascular, Inc. (whether foreign or domestic), or any entity in which any of the preceding entities (a) directly or indirectly owns 50% or more of the capital, assets, voting securities, partnership or other ownership interest (or has the maximum ownership interest it is permitted to have in the country where such entity exists), or (b) has the power to direct or cause the direction of, either directly or indirectly, the management and policies of such entity, whether through ownership of voting securities, interlocking management, contract, or otherwise.

  1.3.

“Cytomedix” means Cytomedix, Inc., its parent companies, subsidiaries, companies under common control with Cytomedix, Inc. (whether foreign or domestic), or any entity in which any of the preceding entities (a) directly or indirectly owns 50% or more of the capital, assets, voting securities, partnership or other ownership interest (or has the maximum ownership interest it is permitted to have in the country where such entity exists), or (b) has the power to direct or cause the direction of, either directly or indirectly, the management and policies of such entity, whether through ownership of voting securities, interlocking management, contract, or otherwise .

“PARTY” shall mean, as applicable, either: (a) Cytomedix, Inc.; or (b) Cobe Cardiovascular, Inc. 

"Distributor" means an entity which contracts with Cobe to either a) provide promotion, sales and distribution services of Royalty-Bearing Products, or b) buy Royalty-Bearing Products from Cobe for resale.  

“Disposable Product(s)” shall mean products that are intended or expected to be used only one time that are either Cobe branded disposable equipment or disposable equipment purchased from Cobe for resale under any trademark, tradename or brand name approved by Cobe and that have instructions for use primarily intended for producing (in conjunction with Hardware Products) or applying compositions consisting of platelets or platelet releasate (which includes, but is not limited to, platelet concentrate or platelet rich plasma (“PRP”)) to facilitate the healing of wounds or other damaged tissue. Disposable Products do not include, for example, items such as syringes, needles, cell washing bowls, catheters, gauze or other forms of dressing, gloves, etc. that are not sold within a platelet or PRP-related kit. Any Licensee product which is marketed by Licensee without direct or indirect reference to platelets or platelet releasate, and which is not otherwise covered by the Licensed Patents, shall not be considered a Disposable Product. For the term of this Agreement, the items listed in Exhibit B will be considered Disposable Products irrespective of the Licensee’s marketing activities thereon. Cobe reserves the right to supplement the items listed in Exhibit B.

“Earned Royalty” shall mean royalties payable under this Agreement on Royalty-Bearing Products actually sold or leased (in countries where Licensee has a license identified in Exhibit A) by Licensee to third parties and paid for by those third parties, and as to which sale(s) Licensee recognizes as revenue pursuant to Licensee’s standard finance and accounting policies. Earned Royalty does not apply to items which have been returned to Licensee and a refund has been made, nor to items which are not sold but are provided on loan, as free or at no cost, as no-cost replacement items for warranty or other purposes, for demonstration purposes, for training, education or clinical trial purposes, or to an academic institution in connection with not-for-profit research or teaching.

“Entity” shall mean any corporation, firm, partnership, proprietorship, or other form of business organization.

"Gross Price" shall mean, with respect to a Royalty-Bearing Product, the unit price, without deduction, actually received from the third-party end user customer by the Licensee that sells directly to such third-party end user customer for the sale of such Royalty-Bearing Product (eliminating transactions among intermediaries), without inclusion of (i) sales tax, (ii) value added or other excise taxes paid or payable, or (iii) freight charges.

“Hardware Product(s)” shall mean products that are intended to be used multiple times and are either Cobe branded equipment or equipment purchased from Cobe for resale under any trademark, tradename or brand name approved by Cobe having instructions for use primarily for producing compositions consisting of platelets or platelet releasate (which includes, but is not limited to, platelet concentrate or platelet rich plasma (“PRP”)) to facilitate the healing of wounds or other damaged tissue. Any Licensee product which is marketed by Licensee without direct or indirect reference to platelets or platelet releasate, and which is not otherwise covered by the Licensed Patents, shall not be considered a Hardware Product. For the term of this Agreement, the items listed in Exhibit C will be considered Hardware Products irrespective of the Licensee’s marketing or promotional activities associated therewith. Cobe reserves the right to revise the items listed in Exhibit C.

“ Licensee” shall mean Cobe and its Distributors and customers and any direct or indirect authorized sub-licensee of Cobe under the rights herein provided, as applicable.

“Licensed Fields” means any and all fields of use.

" Licensed Patents” means the patents and patent applications listed in Exhibit A and any related patent application (including any continuation, continued prosecution, continuation-in-part, divisional, foreign counterpart or substitution thereof) and any patent (including any reissue or reexamination thereof), in any country granted from, or claiming priority to, or for the benefit of any of the aforementioned patent applications or patents, as well as rights in any third-party patent acquired as a result of an interference action involving any of the foregoing.

“Net Sales Price” shall mean the Gross Price for sales of Royalty-Bearing Products, less the following "Invoice Adjustments": (i) discounts and sales commissions, (ii)credits or repayments due to rejections, defects, returns, (iii) net of amounts previously included in the Net Sales Price of a product that were written-off by Cobe or such sublicensee of Cobe during such period as uncollectible, and (iv) charitable donations of Royalty-Bearing Products. Net Sales which are denominated in currencies other than U.S. Dollars shall be converted into U.S. Dollars according to Cobe's standard accounting policy for conversion of foreign currencies. All deductions for discounts and sales commissions in subclause (i) above shall be deemed to be an amount equal to twelve and one-half percent (12.5%) of the Gross Price.

“Royalty-Bearing Products” shall mean Hardware Product(s) and Disposable Product(s) only.

“Quarter” shall mean the respective three-month accounting periods ending in March, June, September and December of any year.

“Royalty Year” shall mean the year beginning with the first full Quarter following the Effective Date, and each year thereafter until November 24, 2009.

License Grant/Covenant Not to Sue/Releases .

License Grant.  Cytomedix hereby grants to Cobe a non-exclusive license under the Licensed Patents to make, have made, use, import, sell, promote, market, offer for sale or otherwise transfer Royalty-Bearing Products in the Licensed Fields throughout the world. This grant includes the right for Cobe to grant sublicenses of the rights conveyed in the preceding sentence to Distributors and customers, either directly or through one or more intermediaries and, with the prior written consent of Cytomedix (which shall not be unreasonably withheld) to other sublicensees. This grant also includes the right for any customers (ultimate or in privity or other) of any Licensee to use and/or sell (for further use or resale) Royalty-Bearing Products subject to this Agreement without payment of any additional royalty to Cytomedix, including, but not limited to, the products listed in Exhibits B and C. In other words, the license grant “runs with the Royalty-Bearing Product.”Cytomedix will only receive one royalty payment per licensed Royalty-Bearing Product.

Distributor and Customer Immunity . The license set forth in Paragraph 2.1 shall constitute a grant of immunity against any action for or claim of infringement (whether based on a direct or contributory infringement, inducement to infringe, or other theory) against the Licensee’s Distributors and authorized resellers, agents, employees, customers and users relating to Royalty-Bearing Products sold or otherwise disposed of by any Licensee prior to or after this Agreement.

Cytomedix, on behalf of itself, its predecessors and successors, and each of their respective affiliates, officers, directors, employees and agents, hereby irrevocably and unconditionally releases and forever discharges Cobe and its officers, directors, employees, agents, shareholders, representatives, parent companies, subsidiaries, affiliated companies, partners, predecessors, and all other persons acting by or on their behalf (collectively, the “Cobe Releasees”), of and from any claims that Cytomedix has ever had or may now have against the Cobe Releasees related to the claims, counterclaims and affirmative defenses that were or could have been asserted in connection with matters relating to the '938 Patent. Cytomedix also releases customers of Cobe as to any claims that Cytomedix has ever had against them based on their use of a product sold to them by Cobe.

Cobe, on behalf of itself, its predecessors and successors, and each of their respective shareholders, affiliates, members, officers, directors, employees and agents, hereby irrevocably and unconditionally releases and forever discharges Cytomedix, its officers, directors, employees, agents, shareholders, representatives, parent companies, subsidiaries, affiliated companies, predecessors, and all other persons acting by or on behalf of Cytomedix (collectively, the "Cytomedix Releasees"), of and from any claims that Cobe has ever had or may now have against Cytomedix or any of the other Cytomedix Releasees related to the claims, counterclaims, and affirmative defenses that were or could have been asserted in connection with matters relating to the '938 Patent. Except as it may otherwise be compelled by a court of competent jurisdiction, domestic or foreign governmental authority agency or tribunal, or in connection with a valid subpoena, Cobe and Cobe Releasees further agree not to challenge, cause to be challenged, or assist others to challenge, directly or indirectly, the validity and/or enforceability of the Licensed Patents in any court or other tribunal, including the United States Patent and Trademark Office and foreign patent offices. In the event Cobe is served with a subpoena, agency directive, or court order compelling it to testify or provide documents or other information related to the Licensed Patents or this Agreement, Cobe shall promptly notify Cytomedix of any such request pursuant to the notice provisions set forth in Paragraph 10.1 of this Agreement so as to allow Cytomedix to, at its cost and expense, seek a protective order, file a motion to quash, or seek other appropriate relief on behalf of Cobe or Cobe Affiliate or Cobe Distributor or Cobe customer.

Covenant Not to Sue.  Cytomedix, for itself and its Affiliates, covenants not to file or to continue to prosecute any suit against Cobe or Cobe Distributor or any customers of Cobe or Cobe’s Affiliates or Distributors, claiming that Cobe’s (or Cobe Affiliates, Distributors or customers) making, having made, using, selling, or offering for sale any Royalty-Bearing Product infringes any Licensed Patent.

No Implied Licenses . No other rights or licenses not expressly granted herein with respect to the Licensed Patents or any other intellectual property owned or controlled by Cytomedix are granted or shall be deemed granted to Licensee or any other person.

Taxes and Authorizations . Cobe shall be solely responsible for the payment and discharge of any taxes, duties, or withholdings relating to any transaction in connection with the manufacture, use, sale, or other commercialization of any Royalty-Bearing Product. Cobe shall, at its own expense, be responsible for applying for and obtaining any approvals, authorizations, or validations relative to this Agreement under the appropriate federal, state, or local laws.

Payment Terms .

License Payment . Within two months after the Effective Date, Cobe shall pay Cytomedix a license payment of forty-five thousand, three hundred ninety U.S. Dollars ($45,390.00).

Earned Royalties . Cobe shall pay a royalty on sales of Royalty-Bearing Products by any Licensee to third parties, and paid for by those third parties, that take place after the Effective Date and prior to November 24, 2009 under the following conditions:

The Earned Royalty rate shall be one and one-half percent (1.5%) of the Net Sales Price of Hardware Products sold in countries where the sale of such Hardware Product is covered by a granted, valid, unexpired patent within the Licensed Patents.

No Royalty Stacking . Only one royalty shall be payable in respect to any Royalty-Bearing Product.

Reports, Payments and Currency Conversions . Within two months after the end of each Quarter, Cobe shall furnish Cytomedix with a written report setting forth the sales of Royalty-Bearing Products upon which a royalty is payable under this Article 3 during such Quarter and the computation of the royalties payable with respect thereto. Each report shall be accompanied by the amount due in U.S. Dollars, less any taxes required to be withheld by governmental agencies in respect to royalties payable to Cytomedix for that Quarter. Each report and any accompanying payment shall be se