CO-EXCLUSIVE OEM SUPPLY AGREEMENT

Exhibit 10.46

CO-EXCLUSIVE OEM SUPPLY AGREEMENT

THIS CO-EXCLUSIVE OEM SUPPLY AGREEMENT (the “Agreement”) is made as of this 7 th day of June, 2009 (the “Effective Date”), by and between Millipore Corporation having an office at 28820 Single Oak Drive, Temecula, CA  92590 (“Millipore”) and Embryome Sciences, Inc., a California corporation and subsidiary of BioTime, Inc., with an address at 1301 Harbor Bay Parkway, Alameda, CA 94502 (“ES”).

Recitals

WHEREAS, ES manufactures and sells certain biological products used in biological research;

WHEREAS, ES desires to transfer, manufacture and supply Millipore with certain quantities of products for its use and resale under Millipore’s own brand and labeling; and

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement and for other good and valuable consideration, the parties hereby agree as follows:

1.1           “Affiliates” means an entity which directly or indirectly controls, is controlled by, or is under common control with a party.  The term “control” as used in the preceding sentence means the possession of the power to direct or call for the direction of the management and policies of an entity, whether through ownership of a majority of the outstanding voting securities, by contract or otherwise.

1.2           “Agreement” means this Agreement, as it may be amended from time to time, including the Schedules attached hereto.

1.3           “Product” or “Products” shall mean those certain products, as set forth in Exhibit A, as may be amended from time to time, to include (a) any other products that ES and Millipore may from time to time agree to include as Products under this Agreement by amendment, and (b) any improvements, modifications or enhancements thereto developed by ES to replace any prior version of a Product, as provided in Section 2.6. The agreed form of an amendment to add Products is set forth in Exhibit C.

1.4           “Specifications” shall mean the technical and functional specifications pertaining to the Products as listed in Exhibit B, as well as any changes or additions to such Specifications as shall be made from time to time.

1.5           “Media” shall mean the cell culture media set forth in Exhibit A.

1.6           “Confidential Information” shall include, but is not limited to, (i) any trade secrets relating to either party’s product plans, development, designs, performance, protocols, costs, prices and names, finances, marketing plans, business opportunities, personnel, research development, formulae or know-how; and (ii) any information designated by the disclosing party as confidential in writing, or, if disclosed orally, reduced to writing and designated as confidential within thirty (30) days; and (iii) the terms and conditions of this Agreement, except (A) to the extent that a party determines, in good faith, that disclosure of terms and conditions of this Agreement is required under any applicable law, or (B) in any proceeding to enforce this Agreement or to resolve any dispute arising under this Agreement.  “Confidential Information” shall not include information that:  (i) is or becomes generally known or available by publication, commercial use or otherwise through no fault of the receiving party; (ii) is known and has been reduced to tangible form by the receiving party at the time of the disclosure and is not subject to restriction; (iii) is independently developed or learned by the receiving party; (iv) is lawfully obtained from a third party that has the right to make such disclosure; or (v) is made generally available by the disclosing party without restriction on disclosure.

1.7           “ES Technology Rights” means the intellectual property rights licensed to or owned by ES that relate to the manufacture, use, sale, or import of Products, or derivatives or combinations thereof, including but not limited to one or more of:  i) patents and patent applications, and all patents issuing from said patents and patent applications, including any divisionals, continuations and continuations-in-part (to the extent that they cover the same subject matter of the original application), and reissues and reexaminations of any such patents, together with all non-US counterparts of the foregoing; and ii) copyrights (technical publications), whether or not such copyrights are registered with the US Library of Congress or other governmental body; (iii) use of the ACTCellerate trademark and iv) any know-how, trade secret or other proprietary information necessary to use or effectively market and sell the Products.

1.8           “Net Sales” means the invoiced amount on sales of Products and or Media less (to the extent applicable and appropriately documented) (i) sales, tariff and import duties, use and other taxes directly imposed with reference to particular sales, (ii) permitted volume discounts, rebates, and similar credits and chargebacks actually allowed and taken (regardless of whether taken or paid at the time of sale or paid or credited to the buyer at a subsequent date), and (iii) amounts allowed or credited on returns; provided, any such allowed deductions shall be listed on the invoice for the applicable Product or otherwise documented in the ordinary course of business..

2.1            Purchase and Supply of Products and Media .  During the term of this Agreement, ES agrees to supply to and/or produce for Millipore any of the Products and Media as Millipore shall require, upon the terms and conditions as stated herein.  Millipore and its Affiliates may at all times sell the Products or Media using their own labels.  Millipore shall provide ES with non-binding forecasts concerning the consignment of Products and Media and its expected sales.

2.2            Co-Exclusive Distribution .  The parties agree that only Millipore and ES and any of their authorized Affiliates, may sell the Products.

2.3            Specifications .  The Specifications for the Products and Media shall be used by Millipore as it unilaterally deems appropriate on Millipore’s own Website and in its own marketing and promotional materials. ES grants a non-exclusive, non-royalty bearing right to Millipore and its Affiliates, during the term of this Agreement to use the Specifications and/or images obtained from ES’s datasheets as if it had full right title and interest to the Specifications and/or any images contained therein.  ES shall obtain prior written approval from Millipore of its acceptance of any modifications to the Specifications prior to any Product or Media shipment.

2.4            Testing .  ES shall be responsible for performing verification testing (the “Quality Assurance Testing”) and shall submit test reports to Millipore with each shipment of Product and/or Media on a regular basis.  ES shall integrate this information into its systems (Control Plan, SOPs, Checklists) for the sole purpose of testing, manufacturing and supplying Products and Media to Millipore.

2.5            Finished Products; Document Retention .  ES will be responsible for delivery of finished Products, which meet the Specifications, as may be amended from time to time, as well as any other applicable governmental standards.  ES will be responsible for document generation and retention relative to all pertinent parts of the process, including, but not limited to, materials, manufacturing, inspection and testing, as generally recommended for good manufacturing practice.  ES shall not ship any Products to Millipore which do not meet such standards.

2.6            Improvements and Modifications of Products .  If ES develops an enhancement, improvement, or modification of any Product or Media, ES shall inform Millipore, including a description of the enhancement, improvement, or modification. The improved and modified Products may replace or be sold in addition to the existing Products under condition of mutual agreement between ES and Millipore.

3.1            Pricing .  The Products and Media shall be consigned to Millipore as provided in Exhibit A and paid for upon subsequent sale to Millipore’s customers.  .

3.2            Shipping .  Unless instructed in writing by Millipore, ES shall deliver the Products and Media, and related documentation and information, DDP to Millipore’s designated place of business (Incoterms 2000).  All transportation costs shall be borne by Millipore.

3.3            Purchase Orders; Order Procedures .  Millipore shall place all orders for Products and Media in a written purchase order.  Notwithstanding the foregoing, all transfer of Products and Media to Millipore shall be subject to the provisions of this Agreement and shall not be subject to the terms and conditions contained in any purchase order of Millipore or confirmation of ES, except insofar as any such purchase order or confirmation establishes (i) the quantity of the Products and Media to be transferred, or (ii) the shipment date or shipping instructions of the Products and/or Media.  Millipore’s obligation to accept and pay for the Products and Media shall be limited to products specifically ordered by an authorized agent of Millipore, as evidenced by a written purchase order.  ES will use commercially-reasonable best efforts to meet Millipore's requested delivery schedules for Products and Media, but ES's obligation to fulfill any purchase order is subject to availability of the Products and Media.  ES will maintain sufficient safety stocks of the Products and Media to meet Millipore’s twelve month non-binding purchase forecasts.   ES reserves the right to fulfill any order in part or through delivery in installments.  ES reserves the right to refuse, cancel or delay shipment to Millipore if Millipore is delinquent in payments, or when Millipore has failed to perform any of its obligations under this Agreement.

3.6            Nonconforming Products .  If any of the Products or Media delivered to Millipore fail to comply with the Specifications, Millipore shall be entitled, in addition to its other rights and remedies, to obtain replacement Products or Media.  Nonconforming products include any Product purchased by Millipore with a Product expiration date earlier than 18 months after Millipore’s purchase in the case of Products and 8 months in the case of Media; provided, that any expiration date may be conditioned upon continuous storage of the Product at temperatures and under conditions specified by ES.  ES shall replace such Products in a timely manner conditioned upon return of defective or Nonconforming Products and shall reimburse Millipore for the cost of the Nonconforming Products, including transportation and handling costs, the cost of packaging materials destroyed and the cost of removal, return and destruction of such nonconforming Products or refund any money at Millipore’s sole option.

3.7            Payment .  Millipore shall pay ES a consignment fee equal to [*Certain information has been omitted under a request for confidential treatment, and the omitted information has been filed with the Securities and Exchange Commission] of Net Sales of Product other than Media.  The consignment fee for Net Sales of Media shall be $[*Certain information has been omitted under a request for confidential treatment, and the omitted information has been filed with the Securities and Exchange Commission] for NC128, $[*Certain information has been omitted under a request for confidential treatment, and the omitted information has been filed with the Securities and Exchange Commission] for M180, $[*Certain information has been omitted under a request for confidential treatment, and the omitted information has been filed with the Securities and Exchange Commission] for NC124, and $[*Certain information has been omitted under a request for confidential treatment, and the omitted information has been filed with the Securities and Exchange Commission] for N170.  Should Millipore be required to pay royalties to another party on Net Sales of Product or Media, the amount payable to ES shall be reduced by the percentage owed to the other party, provided however that the consignment fee rate shall be reduced no less than fifty percent.

3.8           Net Sales Reports .  No later than forty-five (45) days after the end of each calendar quarter, Millipore will deliver to ES a statement which sets forth the quantity of each Product and/or Media sold, Net Sales, and the amount of owed to ES on account of Net Sales.

3.9            Records and Audit .  Millipore shall keep and maintain records of Net Sales and Product and Media inventory, with respect to each and every Product and Media, during the term of this Agreement.  Such records shall be open to inspection at Millipore’s principal office, at any reasonable time within two (2) years after the period to which such records relate, by an independent certified public accountant selected by ES and retained at ES's expense; provided, however, that Millipore shall bear the expense of an audit if the audit discloses that Millipore has underpaid any amount of 10% or more during any three month period or $10,000, whichever is greater.  Said accountant shall sign a confidentiality agreement (which shall not prohibit disclosure of information in any lawsuit, arbitration or other proceeding) and shall then have the right to examine the records kept pursuant to this Agreement and report the findings of said examination of records to ES as is necessary to (i) evidence that records were or were not maintained and used in accordance with this Agreement, and (ii) report any impropriety or inaccuracy in the determination or payment of any amount due to be paid under this Agreement.  A copy of any report provided to ES by the independent certified public accountant shall be given concurrently to Millipore.

3.10            Sales Efforts .  Millipore shall use its commercially-reasonable best efforts to advertise, promote the sale of, and sell the Products and Media.

4.            Scope of Agreement & Consideration for Co-Exclusive Rights