Settlement and License Agreement Parties
Parties
This
Agreement (the “Agreement”),
entered into as of this 19th day of May, 2006 (the “Effective
Date”),
is
between Cytomedix,
Inc.
(“Cytomedix”
or
“Licensor”),
a
Delaware corporation having a principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Biomet
Biologics, Inc. (“Biomet” or “Licensee”),
an
Indiana corporation having a principal place of business at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. Capitalized terms used herein and not otherwise defined
shall have the meaning set forth in Article 1 hereof.
Recitals
WHEREAS,
Cytomedix
and
Biomet
have
been
engaged in discussions relating to a controversy between them arising in
connection with possible claims of infringement of U.S. Patent No. 5,165,938
(“the ‘938 Patent”), based upon Biomet's
manufacture, use, offer to sell, and/or sale of certain products;
and
WHEREAS,
the parties hereto desire, on the terms and conditions contained herein, to
settle whatever claims one may have against the other in connection with the
'938 Patent, and to enter into a mutually agreeable licensing arrangement
regarding certain of their respective patents;
NOW,
THEREFORE, in consideration of the following terms, covenants and conditions,
Cytomedix
and
Biomet
hereby
agree as follows:
Terms
Of Agreement
| 1. |
Definitions.
|
| 1.1. |
“Affiliates”
mean any present company (a) which is directly or indirectly at least
fifty percent (50%) owned or controlled by a party, (b) which is
directly
or indirectly at least fifty percent (50%) owns or controls a party,
(c)
or which is directly or indirectly at least fifty percent (50%) commonly
owned or controlled with a party by another
party.
|
| 1.2. |
“Biomet”
means Biomet
Biologics, Inc. and
its Affiliates.
|
| 1.3. |
“Cytomedix”
means Cytomedix,
Inc.
and its Affiliates.
|
| 1.4. |
“Biomet
Distributor”
means an entity which contracts with Biomet
to
either a) provide promotion, sales and distribution services of
Biomet
Branded Products,
or b) buy Products from Biomet
for resale under a trademark, tradename or brand name of Biomet.
|
| 1.5. |
“Cytomedix
Distributor”
means an entity which contracts with Cytomedix
to
either a) provide promotion, sales and distribution services of
Cytomedix
Branded Products,
or b) buy Products from Cytomedix
for resale under a trademark, tradename or brand name of Cytomedix.
|
| 1.6. |
“Entity”
shall mean any corporation, firm, partnership, proprietorship, or
other
form of business organization.
|
| 1.7. |
“Hood
Patents” means
all foreign and domestic patents and patent applications related
to U.S.
Patent Nos. 5,733,545 and 5,887,755, including those listed on in
Exhibit
B 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. Although U.S. Patent No. 5,887,755 is currently expired
for
failure to pay maintenance fees, this patent is being included in
the
definition of Hood
Patent
in
the event that Biomet
decides,
at
its sole discretion, to attempt to revive and successfully revives
U.S.
Patent No. 5,887,755.
|
| 1.8. |
“Biomet
Licensed Fields Of Use”
means any and all fields of use except Biomet shall not market
Biomet
Branded Products
in
the field of chronic, non-healing wounds that last 30 days or
more.
|
| 1.9. |
“▇▇▇▇▇▇▇▇
Patents”
means
all foreign and domestic patents and patent applications related
to U.S.
Patent 5,165,938, including those 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.
|
| 1.10. |
“Licensed
Territories” means
the entire world.
|
| 1.11. |
“Party”
shall mean, as applicable, either: (a) Cytomedix
or
(b) Biomet.
|
| 1.12. |
“Biomet
Branded Products” means
product bearing a trademark, tradename or brand name owned by any
Biomet
Entity.
|
| 1.13. |
“Cytomedix
Branded Products” means
product bearing a trademark, tradename or brand name owned by any
Cytomedix
Entity.
|
2
| 1.14. |
“Licensed
Biomet Products”
shall mean products the manufacture, use, offer for sale sale, or
importation of which infringes one or more claims of the ▇▇▇▇▇▇▇▇
Patents and
are Biomet
Branded Products. In
the event that Biomet
signs a definitive agreement after the Effective Date to acquire
a third
party by means of stock acquisition or asset purchase, to merge with
a
third party, or to acquire substantially all of the assets and rights
relating to a product of a third party, the “Licensed
Biomet Products”
shall
be deemed not to include any product of such third party in existence
at
the time of the acquisition.
|
| 2. |
License
Grant/Covenant Not to ▇▇▇/Releases.
|
| 2.1. |
Cytomedix
Grant of License to Biomet. Cytomedix
hereby grants to Biomet
a
non-exclusive license under the ▇▇▇▇▇▇▇▇
Patents
to
make, have made, use, import, sell, promote, market, offer for sale
or
otherwise transfer Licensed
Biomet Products
in
the Biomet
Licensed Fields Of Use
throughout the Licensed
Territories.
This grant includes the right for any Biomet
Distributor
and customer (ultimate or in privity or other) of Biomet
to
use and/or sell (for further use or resale) Licensed
Biomet Products
in
the Biomet
Licensed Fields Of Use and
subject to this Agreement without payment of any royalty or license
fee
to. In other words, the license grant “runs with the Licensed
Biomet Products within
the Biomet
Licensed Fields Of Use.”
|
| 2.2. |
Biomet
Grant of License to Cytomedix. Biomet
hereby grants to Cytomedix
a
non-exclusive, paid-up license under the Hood Patents to make, have
made,
use, import, sell, promote, market, offer for sale or otherwise transfer
any products (hereinafter, “Licensed
Cytomedix Products”)
that fall within the scope of any of the claims of the Hood
Patents
in
any field of use throughout the Licensed
Territories.
This grant includes the right for Cytomedix
to
grant sublicenses to any Cytomedix
Distributor,
either directly or through one or more intermediaries. This grant
also
includes the right for any customers (ultimate or in privity or other)
of
Cytomedix
or
any sublicensee to use and/or sell (for further use or resale)
Licensed
Cytomedix Products subject
to this Agreement without payment of any royalty or license fee to
Biomet.
In other words, the license grant “runs with the Licensed
Cytomedix Products.”
|
| 2.3. |
Distributor
and Customer Immunity.
The licenses set forth in Paragraphs 2.1 and 2.2 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 Party’s
respective
distributors and authorized resellers, agents, employees, customers
and
users relating to (i) in the case of Biomet,
Licensed
Biomet Products sold
or otherwise disposed of by any Biomet
Distributor
or
customer prior to or after this Agreement only within the Biomet
Licensed Fields Of Use
throughout the Licensed
Territories,
and (ii) in the case of Cytomedix
,
Licensed
Cytomedix Products
sold or otherwise disposed of by any Cytomedix
Distributor or
customer prior to or after this
Agreement.
|
3
| 2.4. |
Cytomedix
Release.
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
Biomet
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 “Biomet
Releasees”),
of and from any claims that Cytomedix
has ever had or may now have against the Biomet
Releasees
related to the claims, counterclaims and affirmative defenses that
were or
could have been asserted in connection with matters relating to the
▇▇▇▇▇▇▇▇
Patents.
Cytomedix
also releases customers of Biomet
as
to any claims that Cytomedix
has ever had against them based on their use of a product sold to
them by
Biomet.
|
| 2.5. |
Biomet
Release.
Biomet,
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 Biomet
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
▇▇▇▇▇▇▇▇
Patents
or
the Hood
Patents.
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, Biomet
and Biomet 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 ▇▇▇▇▇▇▇▇
Patents
in
any court or other tribunal, including the United States Patent and
Trademark Office and foreign patent offices. In the event Biomet
is
served with a subpoena, agency directive, or court order compelling
it to
testify or provide documents or other information related to the
▇▇▇▇▇▇▇▇
Patents or
this Agreement, Biomet
shall promptly notify Cytomedix
of
any such request pursuant to the notice provisions set forth in Paragraph
7.1 of this Agreement so as to allow Cytomedix
to, at its own option and at its cost and expense, seek a protective
order, file a motion to quash, or seek other appropriate relief on
behalf
of Biomet
or
Biomet Distributor
or
Biomet
customer.
|
| 2.6. |
Covenant
Not to ▇▇▇. Cytomedix
covenants not to file or to continue to prosecute any suit against
Biomet
or
any customers of Biomet
or
any Biomet
Distributor,
claiming that Biomet’s
(or any Biomet
Distributor
or
customers) making, having made, using, selling, or offering for sale
any
Licensed
Biomet Products
infringes any of the ▇▇▇▇▇▇▇▇
Patents only
within the Biomet
Licensed Fields Of Use
throughout the Licensed
Territories.
Biomet
covenants not to file or to continue to prosecute any suit against
Cytomedix
or
any customers of Cytomedix
or
any Cytomedix
Distributor,
claiming that Cytomedix’s
(or any Cytomedix
Distributor
or
customers) making, having made, using, selling, or offering for sale
any
Licensed
Cytomedix
Products
infringes the Hood
Patent.
|
4
| 2.7. |
No
Implied Licenses.
No other rights or licenses not expressly granted herein with respect
to
the ▇▇▇▇▇▇▇▇
Patents or
the Hood
Patent
or
any other intellectual property owned or controlled by either Party
is
granted or shall be deemed granted to the other Party
or
any other person.
|
| 2.8. |
Taxes
and Authorizations.
Each Party
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 product
that is
subject to this Agreement.
Each Party
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.
|
| 3. |
Payment
Terms.
|
License
Payment.
On the
Effective
Date,
Biomet
shall
pay Cytomedix
a
license payment of One Million Four Hundred U.S. Dollars ($1,400,000.00). On
the
last business day of each of the next succeeding 12 calendar quarters starting
on September 29, 2006 and ending on June 30, 2009, Biomet
shall
pay Cytomedix
a
license payment of exactly One Hundred Thousand U.S. Dollars ($100,000.00).
The
aggregate payments made under this Section 3.1 shall be Two Million Six Hundred
Thousand U.S. Dollars ($2,600,000.00).
| 4. |
Representations
and Warranties.
|
|
4.1
|
Authorization.
Each Party
hereby represents and warrants that it (a) has the power and authority
and
the legal right to enter into this Agreement
on
behalf of itself and all affiliated Entities
and to perform its obligations hereunder, and (b) has taken all necessary
action on its part to authorize the execution and delivery of this
Agreement
and the performance of its obligations hereunder. This Agreement
has been duly executed and delivered on behalf of such Party,
and constitutes a legal, valid, binding obligation, enforceable against
such Party
in
accordance with its terms.
|
|
4.2
|
Limitation
of Warranties.
Nothing in this Agreement
shall be construed as: (a) a warranty or representation by Cytomedix
as
to the validity or scope of any of the ▇▇▇▇▇▇▇▇
Patents;
(b) a warranty or representation that anything made, used, sold,
or
otherwise disposed of under any license granted in this Agreement
is
or will be free from infringement of patent or from suits by third
parties
for infringement of patent; (c) conferring the right to use in
advertising, publicity or otherwise any trademark, trade name, or
names,
or any contraction, abbreviation, simulation or adaptation thereof,
of
Cytomedix;
or (d) an obligation to furnish any know-how associated with the
▇▇▇▇▇▇▇▇
Patents.
Nothing in this Agreement
shall be construed as: (a) a warranty or representation by Biomet
as
to the validity or scope of any of the Hood
Patent;
(b) a warranty or representation that anything made, used, sold,
or
otherwise disposed of under any license granted in this Agreement
is
or will be free from infringement of patent or from suits by third
parties
for infringement of patent; (c) conferring the right to use in
advertising, publicity or otherwise any trademark, trade name, or
names,
or any contraction, abbreviation, simulation or adaptation thereof,
of
Biomet;
or (d) an obligation to furnish any know-how associated with the
Hood
Patent.
|
5
|
4.3
|
Ownership
and Right to Grant License.
Cytomedix
herein represents, covenants, and warrants that it is co-owner of
the
entire right, title, and interest in the ▇▇▇▇▇▇▇▇
Patents with
the University of Minnesota. The University of Minnesota has assigned
all
rights to the ▇▇▇▇▇▇▇▇
Patents but
has retained a non-exclusive perpetual license to the ▇▇▇▇▇▇▇▇
Patents solely
in connection with not-for-profit research and teaching. Cytomedix
further warrants that no existing prior agreement or assignment presently
conflicts in any manner with this Agreement
or
otherwise prevents Cytomedix
from fulfilling all of its obligations under this Agreement.
Cytomedix
further covenants, warrants and represents that it has the sole right
to
grant licenses to the ▇▇▇▇▇▇▇▇
Patents.
Biomet
herein
represents, covenants, and warrants that it is the exclusive owner
of the
entire right, title, and interest in the Hood
Patent and
that no existing prior agreement or assignment presently conflicts
in any
manner with this Agreement
or
otherwise prevents Biomet
from
fulfilling all of its obligations under this Agreement.
Biomet
further
covenants, warrants and represents that it has the sole right to
grant
licenses to the Hood
Patent.
|
|
4.4
|
Disclaimer.
Each
Party
makes no representations other than those expressly set forth in
this
Article 4. Each Party
expressly disclaims all other representations, warranties and conditions,
express, implied, statutory, or otherwise, regarding the ▇▇▇▇▇▇▇▇
Patents and
the Hood
Patent,
including without limitation, any warranty of merchantability, fitness
for
a particular purpose, or
non-infringement.
|
|
4.5
|
Complete
List of Patents.
Cytomedix
represents and warrants that Exhibit
A sets forth all patents and applications for patent that are owned
by,
controlled by, or licensed to Cytomedix as
of the Effective
Date
that relate to the ▇▇▇▇▇▇▇▇
Patents.
Biomet
represents and warrants that Exhibit
B sets forth all patents and applications for patent that are owned
by,
controlled by, or licensed to Biomet
as
of the Effective
Date
that relate to the Hood
Patent.
|
6
|
5.
|
Dispute
Resolution.
|
|
5.1
|
Except
as specified elsewhere in the Agreement,
any dispute arising out of or relating to the formation or performance
of
this Agreement, including the breach, termination or validity thereof,
which has not been resolved by good faith negotiation between
representatives of Biomet
and Cytomedix
who have authority to fully and finally resolve the dispute within
thirty
(30) days after initiation of a negotiation procedure, shall be finally
resolved by binding arbitration by three arbitrators in accordance
with
the American Arbitration Association (“AAA”) Commercial Arbitration Rules
then currently in effect; provided, however, that if one Party
fails to participate in the negotiation as agreed herein, the other
Party
can commence binding arbitration prior to the expiration of the time
period set forth above. The three arbitrators’ award shall be binding on
the Parties.
One arbitrator shall be selected by each Party.
The third arbitrator shall be chosen by agreement of the Parties.
The arbitrators shall have no jurisdiction or authority to award
punitive
or exemplary damages against either Party.
The prevailing Party
in
any arbitration hereunder shall be awarded its reasonable attorneys
fees
and costs in addition to any other relief to which it may be entitled
under this Agreement,
but such attorney fees and costs shall not exceed 50% of the amount
in
dispute. The binding arbitration shall be governed by the Federal
Arbitration Act, 9 U.S.C. §§1-16, and judgment upon the award rendered by
the arbitrators, or a majority thereof, may be entered by any court
having
jurisdiction thereof. If a Party
is
forced into court to enforce an arbitration award, it shall be entitled
to
recover its reasonable attorney fees and costs. In any arbitration,
the
Parties
shall be entitled following initiation of the action to the same
discovery
that they would be allowed under the Federal Rules of Civil Procedure;
provided,
however, that
the Parties
shall cooperate in good faith to cause such discovery to be completed
within ninety (90) days following initiation of the arbitration
action.
|
|
5.2
|
Damages.
Biomet
and Cytomedix
each agree to waive any right to receive punitive, consequential,
special
or indirect damages relating in any way to this Agreement.
|
| 6. |
Termination.
|
| 6.1 |
Expiration/Termination.
If
this Agreement
is
not terminated sooner as provided for herein, it shall terminate
with the
expiration of the last to expire of the ▇▇▇▇▇▇▇▇
Patents and
the Hood
Patent.
|
| 6.2 |
Termination
Upon Default.
Upon default by any Party
in
the performance of any obligation hereunder to be performed by such
Party,
the Party
aggrieved by such default shall give notice in writing to the Party
in
default specifying the thing or matter in default. Unless such default
be
cured within one (1) month following the giving of such notice (or
if such
cure cannot be completed within such one (1) month period, if the
cure
thereof be not undertaken promptly upon receipt of such notice, and
diligently pursued thereafter), then the Party
giving such notice may give further written notice to the Party
in
default terminating this Agreement;
in such event, this Agreement
shall terminate on the date specified in such further notice, which
date
shall be no earlier than one (1) month from the date of such further
notice.
|
7
| 6.3 |
Prior
Obligations and Liability; Non-Waiver.
No expiration or termination of this Agreement
shall relieve any Party
of
any obligation accrued prior to the date of expiration or termination
or
relieve a Party
in
default from liability for damages for breach of this Agreement.
|
| 6.4 |
Survival.
Upon termination of this Agreement,
the dispute resolution provisions of Article 5 shall
survive.
|
| 7. |
Miscellaneous.
|
| 7.1 |
Notices.
Any consent, notice or report required or permitted to be given or
made
under this Agreement
by
one of the Parties
hereto to the other Party
shall be in writing and delivered to such other Party
at
its address indicated below, or to such other address as the addressee
shall have last furnished in writing to the addressor. Said notice
shall
be deemed to have been given on the date of its receipt by the addressee.
|
|
If
to Biomet:
|
Biomet,
Inc..
|
|
▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
|
|
▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Attention:
General Counsel
|
|
|
with
a copy to:
|
|
|
Biomet
Biologics, Inc.
|
|
|
▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
|
|
▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Attention:
President
|
If
to
Cytomedix:
Cytomedix, Inc ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇, Ph.D, CEO
|
with
a copy to:
|
|
|
▇▇▇▇
▇. ▇▇▇▇
|
|
|
Fitch
Even Tabin & ▇▇▇▇▇▇▇▇
|
|
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
8
| 7.2 |
Governing
Law.
This Agreement
shall be governed by and construed in accordance with the laws of
the
State of Illinois, without regard to the conflicts of law principles
thereof.
|
| 7.3 |
Press
Release:
The Parties
may issue a press release reporting, without limitation, that the
Parties
have resolved their disputes related to '938 Patent to their mutual
satisfaction and that a license has been granted as part of this
resolution, provided the Party
intending to issue a press release shall give the other Party
at
least two business days to review the proposed press release and
provide
comments that shall, if reasonable, be incorporated into the actual
press
release. It is Cytomedix's
intention,
consistent with past practice, to file this Agreement
with the SEC, without redaction, as a contract material to its
business.
|
| 7.4 |
Assignment.
This Agreement
and any of the rights and obligations thereof are assignable by both
Parties
to
an assignee of, acquirer of, or successor to (any of the foregoing
a
“Successor”) (i) fifty percent (50%) or more of the assigning Party’s
stock, assets or business, or (ii) substantially all the assigning
Party’s
assets of product line or business that includes one or more of
the
Licensed Biomet Products
or
the Licensed
Cytomedix Products
and further subject to the
following:
|
7.4.1 In
the
event of an assignment by Biomet
, all
remaining payments owing under Section 3.1 hereof shall be accelerated and
Cytomedix
shall be
paid by Biomet
or said
assignee cash in an amount equal to remaining unpaid license fees payable under
Section 3.1 hereof.
7.4.2 The
scope
of the license granted by Cytomedix
in
Section 2.1 to any such successor shall be limited only to the Licensed
Biomet Products
existing
at the at the time of acquisition by the successor, and derivative products,
and
shall not extend to any past, present or future products of the successor in
existence at the time of the acquisition or otherwise developed independently
of
the Licensed
Biomet Products
acquired
from Biomet.
| 7.5 |
Force
Majeure.
No Party
shall be considered in default or be liable for any delay in performance
or for any non-performance caused by circumstances beyond the reasonable
control of such Party,
including but not limited to acts of God, explosion, fire, flood,
accident, strike or other labor disturbance, war (whether declared
or
not), sabotage, order or decree of any court or action of any governmental
authority, or other causes, whether similar or dissimilar to those
specified, that cannot reasonably be controlled by the Party
who failed to perform.
|
9
| 7.6 |
Waiver.
Failure by any Party
to
insist upon strict compliance with any of the terms, covenants, or
conditions of this Agreement
shall not be deemed a continuing waiver of such term, covenant, or
condition, nor shall any waiver or relinquishment of any right or
power
herein at any time be deemed a waiver or relinquishment of the same
or any
other right or power, whether or not similar. Waiver of a breach
hereunder
may be effected only by a writing signed by the waiving Party
and such waiver shall not constitute a waiver of any other breach
not
specified in said writing. The Parties
hereby acknowledge that they have been advised by legal counsel and
are
familiar with section 1542 of the California Civil Code, which provides
as
follows:
|
A
GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR
The
Parties
acknowledge in that connection that they may have sustained damage, loss, cost
or expense that are presently unknown and unsuspected, and that such damage,
loss, cost or expense as may have been sustained may give rise to additional
damage, loss, cost or expense in the future. Nevertheless, the Parties
acknowledge that this Agreement
has been
negotiated and agreed upon in light of this situation and expressly waive any
and all rights which they may have under Section 1542 of the California Civil
Code, or any other state or federal statute or common law principle of similar
effect.
| 7.7 |
Entire
Agreement.
This Agreement
and its Exhibits explicitly referenced herein embody the entire agreement
between the parties
and supersede any prior representations, understandings and agreements
between the parties
regarding the subject matter hereof. There are no representations,
understandings or agreements, oral or written, between the parties
regarding the subject matter hereof that are not fully expressed
herein.
|
| 7.8 |
Severability.
The parties agree that if any part, term, or provision of this
Agreement
shall
be found illegal or in conflict with any valid controlling law, the
validity of the remaining provisions shall not be affected thereby.
|
| 7.9 |
Independence
of the Parties.
This Agreement
shall not constitute the designation of any Party
as
the representative or agent of the other, nor shall any Party
by
this Agreement
have the right or authority to make any promise, guarantee, warranty,
or
representation, or to assume, create, or incur any liability or other
obligation of any kind, express or implied, against or in the name
of, or
on behalf of, the other, except as expressly provided
herein.
|
10
| 7.10 |
Counterparts.
This Agreement
may be executed in two or more counterparts, each of which shall
be deemed
an original, but all of which together shall constitute one and
the same
instrument. Facsimile signatures transmitted by telefax shall have
the
same import and effect as if originally
delivered.
|
IN
WITNESS WHEREOF, the Parties
have
executed this Agreement
on the
date indicated below.
| Cytomedix, Inc. | Biomet Biologics, Inc. | ||
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
|
▇▇▇▇▇▇▇
▇▇▇▇▇, Ph.D, CEO
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, President
|
||
|
Date: May
22, 2006
|
|||
|
Date: May
19, 2006
|
11
EXHIBIT
A
U.S.
Patent No. 5,165,938 entitled “Wound Healing Agents,” issued
11/24/92
Australia
Patent No. 596,954 entitled “Wound Healing Agents,” issued 11/8/85
Canada
Patent No. 1,261,259 entitled “Wound Healing Agents issued 9/26/89
Europe
Patent No. 202,298 entitled “Wound Healing Agents,” issued 7/15/92
(validated
in Belgium, France, Germany, Great Britain, Netherlands, and
Sweden)
Israel
Patent No. 77,096 entitled “Wound Healing Agents,” issued 11/19/85
Ireland
Patent No. 57,894 entitled “Wound Healing Agents,” issued 5/5/93
Japan
Patent No. 1,986,949 entitled “Wound Healing Agents,” issued 3/8/95
12
EXHIBIT
B
U.S.
Patent No. 5,733,545 entitled “Platelet Glue Wound Sealant,” issued
3/31/98
U.S.
Patent No. 5,887,755 entitled “Wound Sealant Preparation and Application Device
and Method,” issued 7/21/97 (abandoned for failure to pay maintenance
fees)
13