First Amendment to License Agreement between Aldagen, Inc. and STEMCELL Technologies Canada, Inc

Exhibit 10.1

FIRST AMENDMENT TO LICENSE AGREEMENT

This FIRST AMENDMENT (“Amendment”) is made and entered into as of September 28, 2018 (“Amendment Effective Date”), between Aldagen, Inc., a Delaware corporation (“ALDAGEN”), with its principal offices at 207A Perry Parkway, Suite 1, Gaithersburg, MD 20877, and STEMCELL Technologies Canada Inc. (previous corporate name being STEMCELL Technologies, Inc.), a company with its principal office at 1618 Station Street, Vancouver, BC, Canada V6A 1B6 (“STEMCELL”). Each of ALDAGEN and STEMCELL is hereinafter referred to as a “Party” and collectively the “Parties.”

Whereas, ALDAGEN and STEMCELL are party to a License Agreement as of July 21, 2011 (“Existing License Agreement”). Capitalized terms used but not defined herein shall have the meaning set forth in the Existing License Agreement.

Whereas, the Parties hereby wish to amend the Existing License Agreement so that the royalty payments contemplated by Section 3 of the Existing License Agreement are considered fully paid upon full compliance by STEMCELL with the provisions of this Amendment.

3.5     STEMCELL shall maintain complete and accurate records of all sales of Products in sufficient detail to confirm the accuracy of the calculation of Net Sales and the royalty payments made hereunder. At the request of ALDAGEN, STEMCELL shall permit an independent accountant appointed by ALDAGEN, during business hours and upon reasonable notice, to audit those records solely to the extent necessary to verify the Net Sales and royalty payments made hereunder for the previous calendar year, but in all cases, the audit must be completed by no later than December 15, 2018. The audit shall be at the sole expense of ALDAGEN, unless the audit reveals an underpayment resulting in ALDAGEN having received less than ninety-five percent (95%) of the royalty payments due to ALDAGEN hereunder (a “Compensable Error”), in which case STEMCELL shall pay the reasonable costs of the audit. To the extent that the audit reveals any underpayment of royalty payments due to ALDAGEN hereunder, STEMCELL shall pay ALDAGEN any unpaid amounts within (30) days of receiving written notice from ALDAGEN providing proof of the same.

Once STEMCELL has made the Royalty Stream Buyout Payment pursuant to Section 3.7, ALDAGEN acknowledges that all royalties for the Royalty Period have been paid by STEMCELL and ALDAGEN hereby releases and forever discharges STEMCELL from any and all causes of action, demands and claims whatsoever in relation to or arising from the royalties for the Royalty Period and the Royalty Stream Buyout Payment (upon receipt of such payment in accordance with Section 3.7) that ALDAGEN has or may have, whether known or unknown. In the event that the facts that may be different from those that the parties now know or believe to exist regarding the subject matter of this Section 3.5 prove to be incorrect, in whole or in part, it will not affect the validity or enforceability of this Section. The Parties hereby accept and assume such risk.

STEMCELL’s obligations with respect to such payments shall be considered fully paid upon receipt of the Royalty Stream Buyout Payment by ALDAGEN (which, for the sake of clarity, includes receipt by Nuo Therapeutics, Inc., the sole shareholder of ALDAGEN).

VII.        Section 7.1 and Sections 7.3 through 7.5 of the Existing License Agreement shall be deleted in their entirety and replaced with the following:

VIII.       Sections 14.1, 14.3 and 14.4 of the Existing License Agreement shall be deleted in their entirety and replaced with the following:

14.1        This Agreement shall be effective from the Effective Date until the last patent comprising the Registered IP has expired, at which time the Agreement will expire, subject to Section 2.4.

IX.         Unless otherwise amended hereby, the Existing License Agreement shall remain in full force and effect, and, unless the context otherwise requires, any references therein to “Agreement” shall be deemed to include this Amendment.

In Witness Whereof, each of the undersigned has caused this Amendment to be duly executed as of the Amendment Effective Date.

 4