[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.

 

Exhibit 10.1

 

Exclusive License Agreement

  

This License Agreement (this "Agreement") is made effective as of March 12, 2018
between ThermoGenesis Corp, a Delaware company located at 2711 Citrus Road,
Rancho Cordova, CA 96742 U.S.A., and IncoCell Tianjin Ltd (英科博雅基因科技天津有限公司), a
People’s Republic of China company located at Building A, 3 Haitong Street,
Tianjin, China.

  

In the Agreement, the party who is granting the right to use the licensed
property is referred to as "ThermoGenesis," and the party who is receiving the
right to use the licensed property is referred to as "IncoCell."

  

The parties agree as follows:

  

1.     GRANT OF LICENSE.

 

ThermoGenesis owns the X-Series Products including but not limited to X-Lab,
X-Wash and X-BACS (the "Authored Work"). In accordance with this Agreement,
ThermoGenesis grants IncoCell an exclusive license to use the Authored Work
within certain Asian countries (the “Territory), strictly for its contract
development and manufacturing operations.

 

Territory is defined as the People’s Republic of China, Japan, South Korea,
Taiwan, Hong Kong, Macau, Singapore, Malaysia, Indonesia and India.

 

ThermoGenesis shall retain original title and ownership of the Authored Work.
Any improvement on the Authorized Work will be co-owned by IncoCell and
ThermoGenesis.

  

2.     Payment.

 

IncoCell shall pay ThermoGenesis:

 

a.     For the X-Series devices and consumables, at a price equal to
ThermoGenesis’ cost of goods (“COGS”) plus a [*] percent ([*]%) premium. The
current COGS which are subject to periodic adjustments are set forth in Exhibit
A attached herewith.

 

b.     And additionally, [*] percent ([*]%) of the gross revenues received by
IncoCell for fee-for-service and co-development projects conducted in the
Territory (the “Project Payments”). This obligation is applicable to all Project
Payments received by IncoCell, including but not limited to signing payment,
development milestone payments and royalty payments.

 

1

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.

 

Within thirty (30) days of signing a project, IncoCell shall submit to
ThermoGenesis a written report that sets forth the timing and calculation of the
Project Payments payable to ThermoGenesis. ThermoGenesis has the right to audit
the Project Payments on an annual basis.

 

3.     MODIFICATIONS.

 

IncoCell may not modify or change the Authored Work in any manner without first
obtaining written approval from ThermoGenesis.

  

4.     DEFAULTS.

 

If IncoCell fails to abide by the obligations of this Agreement, including the
obligation to make a Project Payment when due, ThermoGenesis shall have the
option to cancel this Agreement by providing 60 days' written notice to
IncoCell.

 

IncoCell shall have the option of preventing the termination of this Agreement
by taking corrective action that cures the default, if such corrective action is
taken prior to the end of the time period stated in the previous sentence, and
if there are no other defaults during such time period.

  

5.     CONFIDENTIAL INFORMATION.

 

The term "Confidential Information" means any information or material which is
proprietary to ThermoGenesis, whether or not owned or developed by
ThermoGenesis, which is not generally known other than by ThermoGenesis, and
which IncoCell may obtain through any direct or indirect contact with
ThermoGenesis. Regardless of whether specifically identified as confidential or
proprietary, Confidential Information shall include any information provided by
ThermoGenesis concerning the business, technology and information of
ThermoGenesis and any third party with which ThermoGenesis deals, including,
without limitation, business records and plans, trade secrets, technical data,
product ideas, contracts, financial information, pricing structure, discounts,
computer programs and listings, source code and/or object code, copyrights and
intellectual property, inventions, sales leads, strategic alliances, partners,
and customer and client lists. The nature of the information and the manner of
disclosure are such that a reasonable person would understand it to be
confidential.

  

Confidential Information does not include: 1) matters of public knowledge that
result from disclosure by ThermoGenesis; 2) information rightfully received by
IncoCell from a third party without a duty of confidentiality; 3) information
independently developed by IncoCell; 4) information disclosed by operation of
law; 5) information disclosed by IncoCell with the prior written consent of
ThermoGenesis; 6) any other information that both parties agree in writing is
not confidential.

  

2

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.

 

IncoCell understands and acknowledges that the Confidential Information has been
developed or obtained by ThermoGenesis by the investment of significant time,
effort and expense, and that the Confidential Information is a valuable, special
and unique asset of ThermoGenesis which provides ThermoGenesis with a
significant competitive advantage, and needs to be protected from improper
disclosure.

 

IncoCell will not copy or modify any Confidential Information without the prior
written consent of ThermoGenesis. IncoCell shall promptly advise ThermoGenesis
if IncoCell becomes aware of any possible unauthorized disclosure or use of the
Confidential Information.

   

6.     ARBITRATION.

 

The parties will attempt to resolve any dispute arising out of or relating to
this Agreement through friendly negotiations amongst the parties. If the matter
is not resolved by negotiation within 30 days, the parties will resolve the
dispute using the below Alternative (ADR) procedure. Any controversies or
disputes arising out of or relating to this Agreement will be resolved by
binding arbitration under the rules of the American Arbitration Association. The
arbitrator's award will be final, and judgment may be entered upon it by any
court having proper jurisdiction.

  

7.     WARRANTIES.

 

Neither party makes any warranties with respect to the use, sale or other
transfer of the Authored Work by the other party or by any third party, and
IncoCell accepts the product "AS IS." In no event will ThermoGenesis be liable
for direct, indirect, special, incidental, or consequential damages, that are in
any way related to the Authored Work.

  

8.     TRANSFER OF RIGHTS.

 

This Agreement shall be binding on any successors of the parties. IncoCell shall
have the right to assign its interests in this Agreement to any of its
subsidiaries.

  

9.     TERMINATION.

 

The Term of this Agreement shall be for ten (10) years from the Effective Date.
Either Party may terminate this Agreement, without liability hereunder if such
Party is not then in default: (a) upon ninety (90) days written notice to the
other Party; or (b) by written mutual Agreement.

  

3

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.

 

10.     ENTIRE AGREEMENT.

 

This Agreement contains the entire agreement of the parties and there are no
other promises or conditions in any other agreement whether oral or written.
This Agreement supersedes any prior written or oral agreements between the
parties.

  

11.     AMENDMENT.

 

This Agreement may be modified or amended, if the amendment is made in writing
and is signed by both parties.

  

12.     SEVERABILITY.

 

If any provision of this Agreement shall be held to be invalid or unenforceable
for any reason, the remaining provisions shall continue to be valid and
enforceable. If a court finds that any provision of this Agreement is invalid or
unenforceable, but that by limiting such provision it would become valid or
enforceable, then such provision shall be deemed to be written, construed, and
enforced as so limited.

  

13.     WAIVER OF CONTRACTUAL RIGHT.

 

The failure of either party to enforce any provision of this Agreement shall not
be construed as a waiver or limitation of that party's right to subsequently
enforce and compel strict compliance with every provision of this Agreement.

  

14.     APPLICABLE LAW.

 

This Agreement shall be governed by the laws of the State of California, U.S.A.

 

15.     NOTICES.

 

All notices and amendment to contract hereunder shall be in writing and
delivered to the parties at the following address or facsimile numbers:

 

If to ThermoGenesis: ThermoGenesis Corp., 2711 Citrus Road, Rancho Cordova, CA
95742, USA

 

If to IncoCell:

IncoCell Tianjin Ltd (英科博雅基因科技天津有限公司), Building A, 3 Haitong Street, Tianjin,
People’s Republic of China 300457

 

[signature page follows]

 

4

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.

 

IN WITNESS WHEREOF, the parties have executed this Agreement or caused their
duly authorized officers to execute this Agreement as of the date first above
written.

  

  

ThermoGenesis Corp

  

  

 

By:   /s/ Vivian Liu

Name:    Vivian Liu

Title:      President

  

 

IncoCell Tianjin Ltd (英科博雅基因科技天津有限公司)

  

  

 

By:    /s/ Emma Li

Name:    Emma Li

Title:      Director & Legal Representative

 

 

 

5

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.

 

EXHIBIT A

 

Schedule of COGS for X-Series Products and Consumables

 

X-BACS Selection System

       

Disposable Kit Pricing

                 

TG Product

Kit Contents

Cost/part1

X-Mini

X-Maxi

X-Auto

Microbubble

$[*] 

$[*] 

$[*] 

$[*] 

0.5mL Antibody

[*] 

[*] 

[*] 

[*] 

50mL DPBS

[*] 

[*] 

[*] 

[*] 

X-LAB DC

[*] 

[*] 

[*] 

[*]

X-WASH DC

[*] 

[*] 

[*] 

[*] 

Misc (Needles, caps, syringes, packaging, etc.)

[*] 

[*] 

[*] 

[*] 

TG Kit Cost

 

$[*] 

$[*] 

$[*] 

         

1 Cost information is an estimate as of March 2018. Materials sourced from third
party vendors drive a significant portion of the cost and could increase or
decrease before development is complete or at any time during the term of the
agreement.

 

6
{'dataset': 'atticus_contracts'}