EXECUTION VERSION

Exhibit 2.1

ASSET ACQUISITION AGREEMENT

between

SYNGEN INC.

and

THERMOGENESIS CORP.

dated as of

July 7, 2017

TABLE OF CONTENTS

Exhibits

Exhibit A – Bill of Sale

Exhibit B – Assignment and Assumption Agreement

Exhibit C – IP Assignment Agreement

Exhibit D – Release Agreement

Exhibit E – Voting Agreement

Exhibit F – Investors’ Rights Agreement

Exhibit G – Management Rights Letter

Exhibit H – Right of First Refusal and Co-Sale Agreement

Exhibit I – Amended and Restated Charter

Exhibit J – Coelho Employment Agreement

ASSET ACQUISITION AGREEMENT

This Asset Acquisition Agreement (this “ Agreement ”), dated as of July 7, 2017 (the “ Effective Date ”), is entered into between SynGen Inc., a Delaware corporation (“ Transferor ”), and ThermoGenesis Corp., a Delaware corporation (“ Acquiror ”).

RECITALS

WHEREAS, Transferor is engaged in the business of advanced cell separation tools and accessories, applying innovative design to aid regenerative medicine workflows (the “ Business ”);

WHEREAS, Acquiror is a newly-formed corporation that has agreed to acquire the assets comprising Acquiror’s Business as more particularly described in that certain Contribution Agreement of even date herewith between Cesca and Acquiror (the “ Cesca Contribution Agreement ”); and

WHEREAS, in connection with and as part of the transaction described in the preceding paragraph, Transferor wishes to contribute and assign to Acquiror immediately following the Dropdown (as defined below), and Acquiror wishes to acquire and assume from Transferor immediately following the Dropdown, the Acquired Assets and the Assumed Liabilities, subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound hereby, agree as follows:

ARTICLE I
DEFINITIONS

The following terms have the meanings specified or referred to in this ARTICLE I :

“ Acquired Assets ” has the meaning set forth in Section 2.01 .

“ Acquiror ” has the meaning set forth in the preamble.

“ Acquiror Balance Sheet ” has the meaning in Section 5.08(a) .

“ Acquiror Closing Certificate ” has the meaning set forth in Section 7.03(f) .

“ Acquiror Indemnitees ” has the meaning set forth in Section 8.02 .

“ Acquiror Material Adverse Effect ” means any event, occurrence, fact, condition or change that, individually or together with other events or occurrences, is materially adverse to (a) the business, results of operations, financial condition or assets of Acquiror, taken as a whole, or (b) the ability of Acquiror to consummate the transactions contemplated hereby; provided, however, that “Acquiror Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which the Acquiror operates; (iii) any changes in financial, banking or securities markets in general, including any disruption thereof and any decline in the price of any security or any market index or any change in prevailing interest rates; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement or the other Transaction Documents or any action taken (or omitted to be taken) with the written consent of or at the written request of Transferor; (vi) any changes in applicable Laws or accounting rules (including GAAP) or the enforcement, implementation or interpretation thereof; (vii) the announcement, pendency or completion of the transactions contemplated by this Agreement and the other Transaction Documents, including losses or threatened losses of employees, customers, suppliers, distributors or others having relationships with the Acquiror; (viii) any natural or man-made disaster or acts of God; or (ix) any failure by the Acquiror to meet any internal or published projections, forecasts or revenue or earnings predictions (provided that the underlying causes of such failures (subject to the other provisions of this definition) shall not be excluded).

“ Acquiror’s Business ” means the design, manufacture and sale of advanced devices created specifically for the regenerative medicine bioprocessing market, including biologic collection, transport, processing/washing, characterization/analysis and cryopreservation.

“ Acquisition Consideration ” means the value of the Stock Consideration plus the Cash Consideration, as determined in accordance with Section 2.05 .

“ Action ” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity.

“ Affiliate ” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“ Agreement ” has the meaning set forth in the preamble.

“ Amended and Restated Charter ” means that certain First Amended and Restated Certificate of Incorporation of Acquiror, substantially in the form attached hereto as Exhibit I .

“ Assigned Contracts ” has the meaning set forth in Section 2.01(b) .

“ Assignment and Assumption Agreement ” means that certain Assignment and Assumption Agreement, substantially in the form attached hereto as Exhibit B .

“ Assumed Liabilities ” has the meaning set forth in Section 2.03 .

“ Balance Sheet ” has the meaning set forth in Section 4.04 .

“ Balance Sheet Date ” has the meaning set forth in Section 4.04 .

“ Bay City ” means each of Bay City Capital Fund V, L.P. and Bay City Capital Fund V Co-Investment Fund, L.P. and any of their Affiliates.

“ Benefit Plan ” has the meaning set forth in Section 4.14(a) .

“ Bill of Sale ” means that certain General Assignment, Bill of Sale and Assumption of Liabilities, substantially in the form attached hereto as Exhibit A .

“ Books and Records ” has the meaning set forth in Section 2.01(j) .

“ Business ” has the meaning set forth in the recitals.

“ Business Day ” means any day except Saturday, Sunday or any other day on which commercial banks located in New York City, New York are authorized or required by Law to be closed for business.

“ Cash Consideration ” has the meaning set forth in Section 2.05 .

“ Cesca ” means Cesca Therapeutics Inc., a Delaware corporation and the sole stockholder of Acquiror.

“ Cesca Contribution Agreement ” has the meaning set forth in the recitals.

“ Closing ” has the meaning set forth in Section 3.01 .

“ Closing Date ” has the meaning set forth in Section 3.01 .

“ COC Bonus Plan ” means that certain SynGen Inc. Change of Control Bonus Plan, effective as of April 6, 2017, as amended to date.

“Coelho Employment Agreement ” means an Employment Agreement between Acquiror and Philip Coelho in substantially the form attached as Exhibit J hereto.

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Common Stock ” means shares of common stock, par value $0.001 of Acquiror.

“ Confidentiality Agreement ” means the Non-Disclosure and Confidentiality Agreement, dated as of May 2, 2017, between Acquiror and Transferor, as amended.

“ Contracts ” means all contracts, leases, deeds, mortgages, licenses, instruments, notes, commitments, undertakings, indentures, joint ventures and all other agreements, commitments and legally binding arrangements, whether written or oral.

“ Contributions ” has the meaning set forth in Section 6.13(b) .

“ Direct Claim ” has the meaning set forth in Section 8.05(c) .

“ Disclosure Schedules ” means the Disclosure Schedules delivered by Transferor and Acquiror concurrently with the execution and delivery of this Agreement.

“ Dollars ” or “ $ ” means the lawful currency of the United States.

“ Drop Dead Date ” has the meaning set forth in Section 9.01(b)(i) .

“ Dropdown ” means the contribution of the assets comprising the Acquiror’s Business from Cesca to Acquiror, in accordance with the Cesca Contribution Agreement.

“ Effective Date ” has the meaning set forth in the preamble.

“ Employee ” means those Persons employed by Transferor who worked exclusively for the Business immediately prior to the Closing.

“ Encumbrance ” means any charge, claim, community property interest, pledge, condition, equitable interest, lien (statutory or other), option, security interest, mortgage, deed of trust, easement, encroachment, right of way or restriction of any kind.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.

“ ERISA Affiliate ” means all employers (whether or not incorporated) that would be treated together with the Transferor or any of its Affiliates as a “single employer” within the meaning of Section 414 of the Code.

“ Excluded Assets ” has the meaning set forth in Section 2.02 .

“ Excluded Contracts ” has the meaning set forth in Section 2.02(c) .

“ Excluded Liabilities ” has the meaning set forth in Section 2.04 .

“ FIRPTA Certificate ” has the meaning set forth in Section 7.02(j) .

“ Fundamental Representations ” has the meaning set forth in Section 8.01 .

“ GAAP ” means United States generally accepted accounting principles in effect from time to time.

“ Governmental Authority ” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.

“ Governmental Order ” means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority.

“ Indemnified Party ” has the meaning set forth in Section 8.04 .

“ Indemnifying Party ” has the meaning set forth in Section 8.04 .

“ Insurance Policies ” has the meaning set forth in Section 4.11 .

“ Intellectual Property ” means all intellectual property and industrial property rights and assets, and all rights, interests and protections that are associated with, similar to, or required for the exercise of, any of the foregoing, however arising, pursuant to the Laws of any jurisdiction throughout the world, whether registered or unregistered, including any and all: (a) trademarks and service marks, including all applications and registrations and the goodwill connected with the use of and symbolized by the foregoing; (b) copyrights, including all applications and registrations, and works of authorship, whether or not copyrightable; (c) trade secrets and confidential know-how; (d) patents and patent applications; (e) websites and internet domain name registrations; (f) all other intellectual property and industrial property rights and assets, and all rights, interests and protections that are associated with, similar to, or required for the exercise of, any of the foregoing; and (g) all rights to any Actions of any nature available to or being pursued by Transferor to the extent related to the foregoing, whether accruing before, on or after the date hereof, including all rights to and claims for damages, restitution and injunctive relief for infringement, dilution, misappropriation, violation, misuse, breach or default, with the right but no obligation to sue for such legal and equitable relief, and to collect, or otherwise recover, any such damages.

“ Intellectual Property Agreements ” means all licenses, sublicenses, consent to use agreements, settlements, coexistence agreements, covenants not to sue, permissions and other Contracts (including any right to receive or obligation to pay royalties or any other consideration), whether written or oral, relating to any Intellectual Property that is used in or necessary for the conduct of the Business as currently conducted to which Transferor is a party, beneficiary or otherwise bound.

“ Intellectual Property Assets ” means all Intellectual Property that is owned by Transferor and used in or necessary for the conduct of the Business as currently conducted.

“ Intellectual Property Registrations ” means all Intellectual Property Assets that are subject to any issuance, registration, application or other filing by, to or with any Governmental Authority or authorized private registrar in any jurisdiction, including registered trademarks, domain names, and copyrights, issued and reissued patents and pending applications for any of the foregoing.

“ Interim Balance Sheet ” has the meaning set forth in Section 4.04 .

“ Interim Balance Sheet Date ” has the meaning set forth in Section 4.04 .

“ Inventory ” has the meaning set forth in Section 2.01(a) .

“ Investor Agreements ” shall mean, collectively, the Voting Agreement, the Investors’ Rights Agreement, the Management Rights Letter and the ROFR and Co-Sale Agreement.

“ Investors’ Rights Agreement ” means that certain Investors’ Rights Agreement, substantially in the form attached hereto as Exhibit F .

“ IP Assignment Agreement ” means that certain Intellectual Property Assignment Agreement, substantially in the form attached hereto as Exhibit C .

“ Knowledge of Transferor ” or “ Transferor’s Knowledge ” or any other similar knowledge qualification, means the actual knowledge of those Persons listed on Section 1.01(b) of the Disclosure Schedules, after reasonable inquiry.

“ Law ” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any Governmental Authority.

“ Leased Real Property ” has the meaning set forth in Section 4.09(b) .

“ Leases ” has the meaning set forth in Section 4.09(b) .

“ Liabilities ” means liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent, accrued or unaccrued, matured or unmatured or otherwise.

“ Lien Release ” shall mean an agreement by a Person holding a security interest, lien, or other Encumbrance in an Acquired Asset to unconditionally and completely release said security interest, lien, or other Encumbrance immediately before the Closing.

“ Litigation ” means Cesca Therapeutics Inc. v. SynGen Inc., PHC Medical, Inc., Philip Coelho, Terrence Wolf, Prince Emmanuel, and Does 1 through 10, inclusive, in Case No. 2:14-CV-02085-GEB-KJN in the United States District Court for the Eastern District of California Sacramento Division.

“ Losses ” means losses, damages, liabilities, deficiencies, Actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the reasonable cost of enforcing any right to indemnification hereunder and the reasonable cost of pursuing any insurance providers; provided, however , that “Losses” shall not include punitive, incidental, consequential, special or indirect damages (including loss of revenue, diminution in value and any damages based on any type of multiple), except in the case of fraud or to the extent actually awarded to a Governmental Authority or other third party.

“ Management Rights Letter ” means that certain Management Rights Letter, substantially in the form attached hereto as Exhibit G .

“ Permits ” means all permits, licenses, franchises, approvals, authorizations, consents, registrations, certificates, variances and similar rights obtained, or required to be obtained, from Governmental Authorities.

“ Permitted Encumbrances ” means (a) liens for Taxes not yet due and payable or being contested in good faith by appropriate procedures and for which there are adequate accruals or reserves on the balance sheet of Transferor; (b) mechanics’, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of business consistent with past practice or amounts that are not delinquent and which are not, individually or in the aggregate, material to the Business or the Acquired Assets; (c) easements, rights of way, zoning ordinances and other similar encumbrances affecting Leased Real Property; (d) liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business and which are not, individually or in the aggregate, material to the Business or the Acquired Assets and (e) other imperfections of title or Encumbrances, if any, that are not, individually or in the aggregate, material to the Business or the Acquired Assets.

“ Person ” means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association or other entity.

“ Post-Closing Tax Period ” means any taxable period beginning after the Closing Date and, with respect to any taxable period beginning on or before and ending after the Closing Date, the portion of such taxable period beginning after the Closing Date.

“ Post-Closing Warranty Obligations ” has the meaning set forth in Section 2.03(c) .

“ Pre-Closing Tax Period ” means any taxable period ending on or before the Closing Date and, with respect to any taxable period beginning on or before and ending after the Closing Date, the portion of such taxable period ending on and including the Closing Date.

“ Release Agreement ” means that certain Release Agreement, substantially in the form attached hereto as Exhibit D .

“ Representative ” means, with respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel, accountants and other agents of such Person.

“ Right of First Refusal and Co-Sale Agreement ” means that certain Right of First Refusal and Co-Sale Agreement, substantially in the form attached hereto as Exhibit H .

“ Schedule Supplement ” has the meaning set forth in Section 6.03(b) .

“ Securities Act ” means the Securities Act of 1933, as amended.

“ Shares ” has the meaning set forth in Section 2.05 .

“ Stock Consideration ” has the meaning set forth in Section 2.05 .

“ Straddle Period ” has the meaning set forth in Section 6.13(c) .

“ Survival Period ” has meaning set forth in Section 8.01 .

“ Tangible Personal Property ” has the meaning set forth in Section 2.01(d) .

“ Taxes ” means all federal, state, local, and foreign taxes, customs, duties, fees, assessments and other governmental charges in the nature of a tax, including income, gross receipts, sales, use, production, ad valorem, transfer, documentary, franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated, excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, and windfall profits taxes, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties.

“ Tax Return ” means any return, declaration, report, claim for refund, information return or statement or other document relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

“ Third Party Claim ” has the meaning set forth in Section 8.05(a) .

“ Transaction Documents ” means this Agreement, the Bill of Sale, the Assignment and Assumption Agreement, the IP Assignment Agreement, the Coelho Employment Agreement, the Investors’ Rights Agreement, the Voting Agreement, the Management Rights Letter, the Right of First Refusal and Co-Sale Agreement, the Amended and Restated Charter, the Release Agreement, the Lien Releases, and the other agreements, instruments and documents required to be delivered at the Closing.

“ Transfer Taxes ” has the meaning set forth in Section 6.13(a) .

“ Transferor ” has the meaning set forth in the preamble.

“ Transferor Audited Financial Statements ” has the meaning set forth in Section 4.04 .

“ Transferor Closing Certificate ” has the meaning set forth in Section 7.02(f) .

“ Transferor Financial Statements ” has the meaning set forth in Section 4.04 .

“ Transferor Indemnitees ” has the meaning set forth in Section 8.03 .

“ Transferor Interim Financial Statements ” has the meaning set forth in Section 4.04 .

“ Transferor Material Adverse Effect ” means any event, occurrence, fact, condition or change that, individually or together with other events or occurrences, is materially adverse to (a) the business, results of operations, financial condition or assets of the Business, taken as a whole, or (b) the ability of Transferor to consummate the transactions contemplated hereby; provided, however, that “Transferor Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which the Transferor operates; (iii) any changes in financial, banking or securities markets in general, including any disruption thereof and any decline in the price of any security or any market index or any change in prevailing interest rates; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement or the other Transaction Documents or any action taken (or omitted to be taken) with the written consent of or at the written request of Acquiror; (vi) any changes in applicable Laws or accounting rules (including GAAP) or the enforcement, implementation or interpretation thereof; (vii) the announcement, pendency or completion of the transactions contemplated by this Agreement and the other Transaction Documents, including losses or threatened losses of employees, customers, suppliers, distributors or others having relationships with the Transferor and the Business; (viii) any natural or man-made disaster or acts of God; or (ix) any failure by the Business to meet any internal or published projections, forecasts or revenue or earnings predictions (provided that the underlying causes of such failures (subject to the other provisions of this definition) shall not be excluded).

“ Transferor Material Contracts ” has the meaning set forth in Section 4.07 .

“ Transferor Tax Contest ” has the meaning set forth in Section 6.13(d) .

“ Transferred Employees ” has the meaning set forth in Section 6.04(a) .

“ Treasury Regulations ” means the regulations promulgated under the Code, as such regulations may be amended from time to time.

“ Union ” has the meaning set forth in Section 4.15(b) .

“ Voting Agreement ” means that certain Voting Agreement, substantially in the form attached hereto as Exhibit E .

ARTICLE II
ACQUISITION AND CONTRIBUTION

Section 2.01      Acquisition and Contribution of Assets . Subject to the terms and conditions set forth herein, at the Closing, Transferor shall contribute, assign, transfer, convey and deliver to Acquiror, and Acquiror shall acquire from Transferor, free and clear of any Encumbrances other than Permitted Encumbrances, all of Transferor’s right, title and interest in, to and under all of the assets, properties and rights of every kind and nature, whether real, personal or mixed, tangible or intangible (including goodwill), wherever located and whether now existing or hereafter acquired (other than the Excluded Assets), which relate to, or are used or held for use in connection with, the Business (collectively, the “ Acquired Assets ”), including, without limitation, the following:

(a)     all inventory, finished goods, raw materials, work in progress, packaging, supplies, parts and other inventories (“ Inventory ”);

(b)     all Contracts specifically listed on Section 2.01(b) of the Disclosure Schedules and the Intellectual Property Agreements set forth on Section 4.10(a) of the Disclosure Schedules (collectively, the “ Assigned Contracts ”), plus all rights of Transferor (but not obligations) under provisions of Contracts with former or current employees or independent contractors that require the employee or independent contractor to hold confidential or refrain from using any confidential or proprietary information of the Transferor;

(c)     all Intellectual Property Assets;

(d)     all furniture, fixtures, equipment, supplies and other tangible personal property of the Business listed on Section 2.01(d) of the Disclosure Schedules (the “ Tangible Personal Property ”);

(e)     all Permits which are held by Transferor and required for the conduct of the Business as conducted as of the date hereof or for the ownership and use of the Acquired Assets, including, without limitation, those listed on Section 2.01(e) of the Disclosure Schedules, but only to the extent such Permits may be transferred under applicable Law, provided that, if any such Permit cannot be transferred under applicable Law, Transferor shall cooperate with and reasonably assist Acquiror in obtaining such Permit;

(f)     all rights to any Actions of any nature available to or being pursued by Transferor to the extent related to the Business, the Acquired Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise;

(g)     all prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees (but excluding any such items related to Excluded Assets);

(h)     all of Transferor’s rights under warranties, indemnities and all similar rights against third parties to the extent related to any Acquired Assets;

(i)     all insurance benefits, including rights and proceeds, arising from or relating to the Business, the Acquired Assets or the Assumed Liabilities, other than those set forth in Section 2.02(f) ;

(j)     originals, or where not available, copies, of all books and records, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority), sales material and records, strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Business or the Acquired Assets (including the Intellectual Property Assets and the Intellectual Property Agreements), other than books and records set forth in Section 2.02(d) (“ Books and Records ”); and

(k)     all goodwill and the going concern value of the Business.

Section 2.02      Excluded Assets . Notwithstanding anything to the contrary set forth in Section 2.01 , the Acquired Assets shall not include the following assets (collectively, the “ Excluded Assets ”):

(a)     all cash and cash equivalents, bank accounts and securities of Transferor;

(b)     all accounts or notes receivable of the Business existing as of the Closing Date;

(c)     all Contracts that are not Assigned Contracts, including the Contracts listed on Section 2.02(c) of the Disclosure Schedules (the “ Excluded Contracts ”);

(d)     the corporate seals, organizational documents, minute books, stock books, Tax Returns, books of account or other records having to do with the corporate organization of Transferor, all employee-related or employee benefit-related files or records, other than personnel files of Transferred Employees, and any other books and records which Transferor is prohibited from disclosing or transferring to Acquiror under applicable Law, is required by applicable Law to retain, or is protected by attorney-client privilege;

(e)     all Benefit Plans and assets attributable thereto;

(f)     all Insurance Policies of Transferor and all rights to applicable claims and proceeds (i) under any “D&O” Insurance Policy or (ii) with respect to any other Excluded Assets or any Excluded Liabilities, including, for the avoidance of doubt, any and all reimbursements related to the Litigation;

(g)     all Tax assets (including any rights or claims to Tax refunds attributable to any Pre-Closing Tax Period (whether by way of refund, credit, offset or otherwise) and any prepayments) of Transferor;

(h)     the assets, properties and rights specifically set forth on Section 2.02(h) of the Disclosure Schedules;

(i)     any tangible personal property not specifically listed on Section 2.01(d) of the Disclosure Schedules; and

(j)     the rights which accrue or will accrue to Transferor under the Transaction Documents.

Section 2.03      Assumed Liabilities . Subject to the terms and conditions set forth herein, Acquiror shall assume and agree to pay, perform and discharge only the following Liabilities of Transferor (collectively, the “ Assumed Liabilities ”), and no other Liabilities:

(a)     all Liabilities in respect of the Assigned Contracts but only to the extent that such Liabilities thereunder are first required to be performed after the Closing Date;

(b)     except as specifically provided in Section 6.04 , all Liabilities of Acquiror or its Affiliates relating to employee benefits, compensation or other arrangements with respect to any Transferred Employee first arising on or after the Closing Date;

(c)     any warranty or service obligations provided for under the terms of the Assigned Contracts, whether arising prior to, on or after the Closing Date (the “ Post-Closing Warranty Obligations ”);

(d)     all Liabilities for Taxes relating to the Business or the Acquired Assets that are attributable to the Post-Closing Tax Period; and

(e)     all other Liabilities arising out of or relating to Acquiror’s ownership or operation of the Business and the Acquired Assets on or after the Closing Date.

Section 2.04      Excluded Liabilities . Acquiror shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of Transferor or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “ Excluded Liabilities ”). Transferor shall, and shall cause each of its Affiliates to, pay, satisfy or settle in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:

(a)     any Liabilities arising out of or relating to Transferor’s ownership or operation of the Business and the Acquired Assets, including any trade accounts payable of Transferor to third parties in connection with the Business arising prior to the Closing Date and any insurance premiums for insurance plans maintained by Transferor relating to the Business;

(b)     any Liabilities relating to or arising out of the Excluded Assets;

(c)     any Liability for (i) Taxes relating to the Acquired Assets or the conduct, ownership, or operation of the Business for any Pre-Closing Tax Period, (ii) any other income Taxes of Transferor or any stockholders or Affiliates of Transferor for any period, (iii) Taxes relating to the Excluded Assets for any period; and (iv) any other Taxes of Transferor or any stockholders or Affiliates of Transferor that do not relate to the Acquired Assets or the conduct, ownership or operation of the Business that becomes a Liability of Acquiror under any common law doctrine of transferee or successor liability or otherwise by operation of contract (other than the Transaction Documents or any contract entered into after the Closing) or Law; provided, that, for the avoidance of doubt, (1) for purposes of this Section 2.04(c) , neither the Acquiror nor any of its Affiliates after the Closing shall be considered an Affiliate of the Transferor, (2) Excluded Liabilities shall not include Taxes resulting from any transactions occurring on the Closing Date outside the ordinary course of the Business after the Closing, and (3) notwithstanding anything to the contrary in this Section 2.04 , no liability for Taxes shall be considered an Excluded Liability except to the extent such liability is described in this Section 2.04(c) ;

(d)     any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Acquired Assets to the extent such Action relates to such operation on or prior to the Closing Date;

(e)     any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Transferor, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Transferor, except as set forth in Section 2.03(c) ;

(f)     any Liabilities of Transferor arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Transferor;

(g)     any Liabilities of Transferor for any present or former employees, officers, directors, retirees, independent contractors or consultants of Transferor, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;

(h)     any Liabilities of the Business relating to or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Acquired Assets issued by the Business’ customers to Transferor on or before the Closing; (ii) did not arise in the ordinary course of business; or (iii) are not validly and effectively assigned to Acquiror pursuant to this Agreement;

(i)     any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of Transferor (including with respect to any breach of fiduciary obligations by same);

(j)     any Liabilities under the Excluded Contracts;

(k)     any Liabilities associated with debt, loans or credit facilities of Transferor and/or the Business owing to financial institutions;

(l)     any Liabilities arising out of, in respect of or in connection with the failure by Transferor or any of its Affiliates to comply with any Law or Governmental Order; and

(m)     any Liabilities of Transferor arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others.

Section 2.05      Acquisition Consideration . Acquiror shall pay the Acquisition Consideration for the Acquired Assets at the Closing, in part, by the issuance of shares of Common Stock of Acquiror (the “ Shares ”) to Transferor. At the Closing, Acquiror shall issue to Transferor 2,000,000 Shares immediately prior to the Closing (such consideration referred to herein as the “ Stock Consideration ”), such Stock Consideration valued as of the Effective Date at $3,000,000. In addition to such Stock Consideration, Acquiror shall pay Transferor $1,000,000.00 in cash at the Closing, which shall be paid by wire transfer of immediately available funds to an account designated in writing by Transferor to Acquiror no later than two Business Days prior to the Closing Date (the “ Cash Consideration ”). The amount of the Stock Consideration and Cash Consideration allocable to Tangible Personal Property is set forth on Section 2.01(d) of the Disclosure Schedules, with the remaining amount of the Stock Consideration and Cash Consideration being allocated to goodwill and any transferred Intellectual Property Assets.

Section 2.06      Third Party Consent . To the extent that Transferor’s rights under any Contract or Permit constituting an Acquired Asset, or any other Acquired Asset, may not be assigned to Acquiror without the consent of another Person which has not been obtained, this Agreement shall not constitute an agreement to assign the same if an attempted assignment would constitute a breach thereof or be unlawful, and Transferor, at its reasonable expense, shall use its reasonable best efforts to obtain any such required consent(s) as promptly as possible. If any such consent shall not be obtained or if any attempted assignment would be ineffective or would impair Acquiror’s rights under the Acquired Asset in question so that Acquiror would not in effect acquire the benefit of all such rights, Transferor, to the maximum extent permitted by Law and the Acquired Asset, shall act after the Closing as Acquiror’s agent in order to obtain for it the benefits thereunder and shall reasonably cooperate, to the maximum extent permitted by Law and the Acquired Asset, with Acquiror in any other reasonable arrangement designed to provide such benefits to Acquiror. Notwithstanding any provision in this Section 2.06 to the contrary, Acquiror shall not be deemed to have waived its rights under Section 7.02(d) hereof unless and until Acquiror either provides written waivers thereof or elects to proceed to consummate the transactions contemplated by this Agreement at Closing.

ARTICLE III
CLOSING

Section 3.01      Closing . Subject to the terms and conditions of this Agreement, the consummation of the transactions contemplated by this Agreement (the “ Closing ”) shall be consummated remotely via the exchange of documents and other deliverables by execution and delivery of all necessary documents and other deliverables by each party hereto by overnight mail, electronic mail or such other method mutually agreed to by the parties, on the date of this Agreement immediately following the Dropdown, or at such other time, date or place as Transferor and Acquiror may mutually agree upon in writing. The date on which the Closing is to occur is herein referred to as the “ Closing Date ,” and the Closing shall be deemed to occur at 11:59 Pacific Daylight Time on the Closing Date.

Section 3.02      Closing Deliverables .

(a)     At the Closing, Transferor shall deliver to Acquiror the following:

(i)     the Bill of Sale, duly executed by Transferor;

(ii)     the Assignment and Assumption Agreement, duly executed by Transferor;

(iii)     the IP Assignment Agreement, duly executed by Transferor;

(iv)     the Release Agreement, duly executed by Transferor and the other defendants in the Litigation;

(v)     the Coelho Employment Agreement, duly executed by Philip Coelho;

(vi)     the Voting Agreement, duly executed by Transferor;

(vii)     the Investors’ Rights Agreement, duly executed by Transferor;

(viii)     the Management Rights Letter, duly executed by Transferor;

(ix)     the Right of First Refusal and Co-Sale Agreement, duly executed by Transferor;

(x)     the Transferor Closing Certificate described in Section 7.02(f) ;

(xi)     the FIRPTA Certificate;

(xii)     Lien Releases, in a form satisfactory to Acquiror, from each of Bay City Capital Fund V, L.P. and Philip Coelho;

(xiii)     the certificates of the Secretary of Transferor required by Section 7.02(h) and Section 7.02(i) ;

(xiv)     a certificate of good standing for Transferor from the Secretary of State of the State of Delaware dated as of a date not more than three Business Days prior to the Closing Date; and

(xv)     such other customary instruments of transfer, assumption, filings or documents, in form and substance reasonably satisfactory to Acquiror, as may be required to give effect to this Agreement.

(b)     At the Closing, Acquiror shall deliver to Transferor the following:

(i)     a stock certificate evidencing the Stock Consideration, duly executed by Acquiror;

(ii)     the Cash Consideration;

(iii)     the Assignment and Assumption Agreement, duly executed by Acquiror;

(iv)     the IP Assignment Agreement, duly executed by Acquiror;

(v)     the Release Agreement, duly executed by Acquiror;

(vi)     the Voting Agreement, duly executed by Acquiror;

(vii)     the Investors’ Rights Agreement, duly executed by Acquiror;

(viii)     the Management Rights Letter, duly executed by Acquiror;

(ix)     the Right of First Refusal and Co-Sale Agreement, duly executed by Acquiror;

(x)     the Amended and Restated Charter, duly executed by Acquiror and with evidence of filing with the Secretary of State of the State of Delaware;

(xi)     the Acquiror Closing Certificate described in Section 7.03(f) ;

(xii)     payment of the sales tax reimbursement referenced in the last sentence of Section 6.13(a) ;

(xiii)     the certificates of the Secretary or Assistant Secretary of Acquiror required by Section 7.03(g) and Section 7.03(h) ;

(xiv)     the Coelho Employment Agreement, duly executed by Acquiror; and

(xv)     a certificate of good standing for Acquiror from the Secretary of State of the State of Delaware dated as of a date not more than three Business Days prior to the Closing Date.

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TRANSFEROR

Except as set forth in the Disclosure Schedules, Transferor represents and warrants to Acquiror that the statements contained in this ARTICLE IV are true and correct as of the date hereof.

Section 4.01      Organization and Qualification of Transferor . Transferor is a corporation duly organized, validly existing and in good standing under the Laws of the state of Delaware and has full corporate power and authority to own, operate or lease the properties and assets now owned, operated or leased by it and to carry on the Business as currently conducted. Section 4.01 of the Disclosure Schedules sets forth each jurisdiction in which Transferor is licensed or qualified to do business. Transferor is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the ownership of the Acquired Assets or the operation of the Business as currently conducted makes such licensing or qualification necessary, except where the failure to be so licensed, qualified or in good standing would not have a Transferor Material Adverse Effect.

Section 4.02      Authority of Transferor . Transferor has full corporate power and authority to enter into this Agreement and the other Transaction Documents to which Transferor is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Transferor of this Agreement and any other Transaction Document to which Transferor is a party, the performance by Transferor of its obligations hereunder and thereunder and the consummation by Transferor of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of Transferor. This Agreement has been duly executed and delivered by Transferor, and (assuming due authorization, execution and delivery by Acquiror) this Agreement constitutes a legal, valid and binding obligation of Transferor, enforceable against Transferor in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). When each other Transaction Document to which Transferor is or will be a party has been duly executed and delivered by Transferor (assuming due authorization, execution and delivery by each other party thereto), such Transaction Document will constitute a legal and binding obligation of Transferor enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

Section 4.03      No Conflicts; Consents . The execution, delivery and performance by Transferor of this Agreement and the other Transaction Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) conflict with or result in a violation or breach of, or default under, any provision of the certificate of incorporation or bylaws of Transferor; (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable to Transferor, the Business or the Acquired Assets in any material respect; (c) except as set forth in Section 4.03 of the Disclosure Schedules, require the consent, notice or other action by any Person under, conflict with, result in a violation or breach of, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a default under, result in the acceleration of or create in any party the right to accelerate, terminate, modify or cancel any Contract or Permit to which Transferor is a party or by which Transferor or the Business is bound or to which any of the Acquired Assets are subject (including any Assigned Contract); or (d) result in the creation or imposition of any Encumbrance other than Permitted Encumbrances on the Acquired Assets. No consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to Transferor in connection with the execution and delivery of this Agreement or any of the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, except as set forth in Section 4.03 of the Disclosure Schedules and such consents, approvals, Permits, Governmental Orders, declarations, filings or notices that are not material to the ownership or operation of Business or the Acquired Assets.

Section 4.04      Financial Statements . Complete copies of the audited financial statements consisting of the balance sheet of the Business as of December 31, 2016 and December 31, 2015 and the related statements of income and retained earnings, stockholders’ equity and cash flow for the years then ended (the “ Transferor Audited Financial Statements ”), and unaudited financial statements consisting of the balance sheet of the Business as of March 31, 2017 and the related statements of income and retained earnings, stockholders’ equity and cash flow for the three-month period then ended (the “ Transferor Interim Financial Statements ” and together with the Transferor Audited Financial Statements, the “ Transferor Financial Statements ”) have been delivered to Acquiror. The Transferor Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the period involved, subject, in the case of the Transferor Interim Financial Statements, to normal and recurring year-end adjustments (the effect of which will not be materially adverse) and the absence of notes (that, if presented, would not differ materially from those presented in the Transferor Audited Financial Statements). The Transferor Financial Statements are based on the books and records of the Business and fairly present in all material respects the financial condition of the Business as of the respective dates they were prepared and the results of the operations of the Business for the periods indicated. The balance sheet of the Business as of December 31, 2016 is referred to herein as the “ Balance Sheet ” and the date thereof as the “ Balance Sheet Date ,” and the balance sheet of the Business as of March 31, 2017 is referred to herein as the “ Interim Balance Sheet ” and the date thereof the “ Interim Balance Sheet Date. ” Transferor maintains a standard system of accounting for the Business established and administered in accordance with GAAP.

Section 4.05      Undisclosed Liabilities . Transferor has no Liabilities with respect to the Business, except (a) those which are adequately reflected or reserved against in the Interim Balance Sheet and (b) those which have been incurred in the ordinary course of business consistent with past practice since the Interim Balance Sheet Date and which are not, individually or in the aggregate, material in amount.

Section 4.06      Absence of Certain Changes, Events and Conditions . Except as set forth on Section 4.06 of the Disclosure Schedules, since the Balance Sheet Date, and other than in the ordinary course of business, there has not been any:

(a)     event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Transferor Material Adverse Effect;

(b)     material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Transferor Financial Statements;

(c)     entry into any Contract that would constitute a Transferor Material Contract;

(d)     incurrence, assumption or guarantee of any indebtedness for borrowed money in connection with the Business except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;

(e)     transfer, assignment, sale or other disposition of any of the Acquired Assets shown or reflected in the Balance Sheet, except for the sale of Inventory in the ordinary course of business;

(f)     cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Acquired Assets;

(g)     transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Agreements;

(h)     material damage, destruction or loss, or any material interruption in use, of any Acquired Assets, whether or not covered by insurance;

(i)     acceleration, termination, material modification to or cancellation of any Assigned Contract or Permit;

(j)     imposition of any Encumbrance upon any of the Acquired Assets, except for Permitted Encumbrances;

(k)     (i) grant of any bonuses, whether monetary or otherwise, or increase in any wages, salary, severance, pension or other compensation or benefits in respect of any current or former employees, officers, directors, independent contractors or consultants of the Business, other than as provided for in any written agreements, required by applicable Law or as would be granted or increased in the ordinary course of business consistent with past practice, (ii) change in the terms of employment for any employee of the Business or any termination of any employees for which the aggregate costs and expenses exceed $100,000.00, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, consultant or independent contractor of the Business;

(l)     adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant of the Business, (ii) Benefit Plan, or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;

(m)     any loan to (or forgiveness of any loan to), or entry into any other transaction with, any current or former directors, officers or employees of the Business;

(n)     adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;

(o)     purchase, lease or other acquisition of the right to own, use or lease any property or assets in connection with the Business for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the ordinary course of business consistent with past practice; or

(p)     any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.

Section 4.07      Material Contracts.

(a)      Section 4.07(a) of the Disclosure Schedules lists each of the following Contracts (x) by which any of the Acquired Assets are bound or affected or (y) to which Transferor is a party or by which it is bound in connection with the Business or the Acquired Assets (such Contracts, together with all Leases listed in Section 4.09 (b) of the Disclosure Schedules and all Intellectual Property Agreements listed in Section 4.10 (a) of the Disclosure Schedules, collectively, the “ Transferor Material Contracts ”):

(i)     all Contracts involving aggregate consideration in excess of $50,000.00 or requiring performance by any party more than one year from the date hereof, which, in each case, cannot be cancelled without penalty or without more than 90 days’ notice;

(ii)     all Contracts that require Transferor to purchase or sell a stated portion of the requirements or outputs of the Business or that contain “take or pay” provisions;

(iii)     all Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise), in each case involving amounts in excess of $50,000.00;

(iv)     all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts;

(v)     all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) which are not cancellable without material penalty or without more than 90 days’ notice;

(vi)     except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees), in each case having an outstanding principal amount in excess of $50,000.00;

(vii)     all Contracts with any Governmental Authority;

(viii)     all Contracts that limit or purport to limit the ability of Transferor to compete in any line of business or with any Person or in any geographic area or during any period of time;

(ix)     all joint venture, partnership or similar Contracts;

(x)     all Contracts for the sale of any of the Acquired Assets or for the grant to any Person of any option, right of first refusal or preferential or similar right to purchase any of the Acquired Assets;

(xi)     all powers of attorney with respect to the Business or any Acquired Asset;

(xii)     all Contracts between or among Transferor, on the one hand, and any Affiliate of Transferor, on the other hand;

(xiii)     all collective bargaining agreements or Contracts with any Union; and

(xiv)     all other Contracts that are material to the Acquired Assets or the operation of the Business and not previously disclosed pursuant to this Section 4.07(a) .

(b)     Each Transferor Material Contract is valid and binding on Transferor in accordance with its terms and is in full force and effect. None of Transferor or, to Transferor’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), in any material respect, or has provided or received any notice of any intention to terminate, any Transferor Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Transferor Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any material right or obligation or the loss of any material benefit thereunder. Complete and correct copies of each Transferor Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been delivered to Acquiror. There are no material disputes pending or threatened under any Contract included in the Acquired Assets. No Assigned Contract contains covenants that in any way (i) purport to restrict Transferor’s business activities or limit the freedom of Transferor to engage in any line of business or to compete with any Person, in any case, in any material respect, or (ii) to the Knowledge of Transferor, purport to limit the ability of Transferor to solicit employees, contractors, vendors, or customers, except, in the case of foregoing clause (ii), as (x) set forth on Section 4.07(b) of the Disclosure Schedules or (y) would not individually or in the aggregate have a Transferor Material Adverse Effect. Transferor has provided Acquiror with true and complete copies of all Assigned Contracts, including all modifications, amendments and supplements thereto and waivers thereunder.

Section 4.08      Title to Tangible Acquired Assets; Condition of Assets . Except as set forth in Section 4.08 of the Disclosure Schedules, Transferor has good and valid title to, or a valid leasehold interest in, all of the Acquired Assets, free and clear of Encumbrances except for Permitted Encumbrances. Except as set forth in Section 4.08 of the Disclosure Schedules, the furniture, fixtures, machinery, equipment, and other items of tangible personal property included in the Acquired Assets are in good operating condition and repair, and are adequate for the uses to which they are being put, and none of them is in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost.

Section 4.09      Real Property .

(a)     Transferor does not own any real property that is used in connection with the Business.

(b)      Section 4.09(b) of the Disclosure Schedules sets forth each parcel of real property leased by Transferor and used in or necessary for the conduct of the Business as currently conducted (together with all rights, title and interest of Transferor in and to leasehold improvements relating thereto, including, but not limited to, security deposits, reserves or prepaid rents paid in connection therewith, collectively, the “ Leased Real Property ”), and a true and complete list of all leases, subleases, licenses, concessions and other agreements (whether written or oral), including all amendments, extensions renewals, guaranties and other agreements with respect thereto, pursuant to which Transferor holds any Leased Real Property (collectively, the “ Leases ”). Transferor has delivered to Acquiror a true and complete copy of each Lease.

Section 4.10      Intellectual Property .

(a)      Section 4.10(a) of the Disclosure Schedules lists (i) all Intellectual Property Registrations and (ii) all Intellectual Property Assets. All material required filings and fees related to the Intellectual Property Registrations have been timely filed with and paid to the relevant Governmental Authorities and authorized registrars, and all Intellectual Property Registrations are otherwise in good standing. Transferor has made available to Acquiror true and complete copies of file histories, documents, certificates, office actions, correspondence and other materials related to all Intellectual Property Registrations.

(b)      Section 4.10(b) of the Disclosure Schedules lists all material Intellectual Property Agreements (excluding (i) license agreements for free Software that is used exclusively for purposes other than research, development, or customer support, and is not incorporated into, embedded into, hosted with, or distributed with any Company Products; and (ii) license agreements for off-the-shelf software applications programs) . Transferor has provided Acquiror with true and complete copies of all such Intellectual Property Agreements, including all modifications, amendments and supplements thereto and waivers thereunder. Each Intellectual Property Agreement is valid and binding on Transferor in accordance with its terms and is in full force and effect. None of Transferor or, to Transferor’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), in any material respect, or has provided or received any notice of breach or default of or any intention to terminate, any Intellectual Property Agreement. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Intellectual Property Agreement or result in a termination thereof or would cause or permit the acceleration or other changes of any material right or obligation or the loss of any material benefit thereunder.

(c)     Except as set forth in Section 4.10(c) of the Disclosure Schedules, Transferor is the sole and exclusive legal and beneficial, and with respect to the Intellectual Property Registrations, record, owner of all right, title and interest in and to the Intellectual Property Assets, and has the valid right to use all other Intellectual Property used in or necessary for the conduct of the Business as currently conducted in all material respects, in each case, free and clear of Encumbrances other than Permitted Encumbrances. Without limiting the generality of the foregoing, Transferor has entered into binding, written agreements with every current and former employee of Transferor, and with every current and former independent contractor, whereby such employees and independent contractors (i) assign to Transferor any ownership interest and right they may have in the Intellectual Property Assets; and (ii) acknowledge Transferor’s exclusive ownership of all Intellectual Property Assets. Transferor has provided Acquiror with true and complete copies of all such agreements.

(d)     The Intellectual Property Assets and Intellectual Property licensed under the Intellectual Property Agreements are all of the Intellectual Property necessary to operate the Business as presently conducted in all material respects. The consummation of the transactions contemplated hereunder will not result in the loss or impairment of or payment of any additional amounts with respect to, nor require the consent of any other Person in respect of, the Acquiror’s right to own, use or hold for use any Intellectual Property as owned, used or held for use in the conduct of the Business as currently conducted.

(e)     Transferor’s rights in the Intellectual Property Assets are valid, subsisting and enforceable. Transferor has taken all reasonable steps to maintain the Intellectual Property Assets and to protect and preserve the confidentiality of all trade secrets included in the Intellectual Property Assets, including requiring all Persons having access thereto to execute written non-disclosure agreements.

(f)     Other than as alleged in the Litigation, the conduct of the Business as currently and formerly conducted, and the Intellectual Property Assets and Intellectual Property licensed under the Intellectual Property Agreements as currently or formerly owned, licensed or used by Transferor, have not infringed, misappropriated, diluted or otherwise violated, and have not, do not and will not infringe, dilute, misappropriate or otherwise violate, the Intellectual Property or other rights of any Person in any material respect. To Transferor’s Knowledge, no Person has infringed, misappropriated, diluted or otherwise violated, or is currently infringing, misappropriating, diluting or otherwise violating, any Intellectual Property Assets. Notwithstanding anything to the contrary in this Agreement, this Section 4.10(f) constitutes the sole representation and warranty of Transferor under this Agreement with respect to any actual or alleged infringement, misappropriation or other violation by Transferor of any Intellectual Property of any other Person.

(g)     Other than the Litigation, there are no Actions (including any oppositions, interferences or re-examinations) settled, pending or threatened (including in the form of offers to obtain a license): (i) alleging any infringement, misappropriation, dilution or violation of the Intellectual Property of any Person by Transferor in connection with the Business; (ii) challenging the validity, enforceability, registrability or ownership of any Intellectual Property Assets or Transferor’s rights with respect to any Intellectual Property Assets; or (iii) by Transferor or any other Person alleging any infringement, misappropriation, dilution or violation by any Person of any Intellectual Property Assets. Transferor is not subject to any outstanding or prospective Governmental Order (including any motion or petition therefor) that does or would restrict or impair the use of any Intellectual Property Assets.

Section 4.11      Insurance . Section 4.11 of the Disclosure Schedules sets forth (i) a true and complete list of all current policies or binders of fire, liability, product liability, umbrella liability, real and personal property, workers’ compensation, vehicular, fiduciary liability and other casualty and property insurance maintained by Transferor or its Affiliates and relating to the Business, the Acquired Assets or the Assumed Liabilities (collectively, the “ Insurance Policies ”); and (ii) with respect to the Business, the Acquired Assets or the Assumed Liabilities, a list of all pending claims and the claims history for Transferor since January 1, 2014. There are no claims related to the Business, the Acquired Assets or the Assumed Liabilities pending under any such Insurance Policies as to which coverage has been questioned, denied or disputed or in respect of which there is an outstanding reservation of rights. All such Insurance Policies (i) are in full force and effect and enforceable in accordance with their terms; (ii) are provided by carriers who are financially solvent; and (iii) have not been subject to any lapse in coverage. None of Transferor or any of its Affiliates is in default under, or has otherwise failed to comply with, in any material respect, any provision contained in any such Insurance Policy. True and complete copies of the Insurance Policies have been made available to Acquirer.

Section 4.12      Legal Proceedings; Governmental Orders .

(a)     Except for the Litigation and as set forth in Section 4.12(a) of the Disclosure Schedules, there are no Actions pending or, to Transferor’s Knowledge, threatened against or by Transferor (i) relating to or affecting the Business, the Acquired Assets or the Assumed Liabilities, or (ii) that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. To Transferor’s Knowledge, no event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Action.

(b)     There are no material outstanding Governmental Orders and no unsatisfied judgments, penalties or awards against, relating to or affecting the Business or the Acquired Assets.

Section 4.13      Compliance with Laws; Permits .

(a)     Transferor has complied, and is now complying, with all Laws applicable to the conduct of the Business as currently conducted or the ownership and use of the Acquired Assets in all material respects.

(b)     All Permits required for Transferor to conduct the Business as currently conducted or for the ownership and use of the Acquired Assets have been obtained by Transferor and are valid and in full force and effect, except where the failure to obtain such Permits would not be material to the Business. All fees and charges with respect to such Permits as of the date hereof have been paid in full. Section 4.13 of the Disclosure Schedules lists all current Permits issued to Transferor which are related to the conduct of the Business as currently conducted or the ownership and use of the Acquired Assets, including the names of the Permits and their respective dates of issuance and expiration. No event has occurred that, with or without notice or lapse of time or both, would reasonably be expected to result in the revocation, suspension, lapse or limitation of any Permit set forth in Section 4.13 of the Disclosure Schedules, except for such events that would not be expected to be material to the Business.

Section 4.14      Employee Benefit Matters .

(a)      Section 4.14(a) of the Disclosure Schedules contains a true and complete list of each pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off, welfare, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” within the meaning of Section 3(3) of ERISA, whether or not tax-qualified and whether or not subject to ERISA, which is or has been maintained, sponsored, contributed to, or required to be contributed to by Transferor for the benefit of any current or former employee, officer, director, retiree, independent contractor or consultant of the Business or any spouse or dependent of such individual, or under which Transferor or any of its ERISA Affiliates has or may have any Liability, or with respect to which Acquiror or any of its Affiliates would reasonably be expected to have any Liability, contingent or otherwise (as listed on Section 4.14(a) of the Disclosure Schedules, each, a “ Benefit Plan ”).

(b)     No Benefit Plan is subject to ERISA or Section 401(a) of the Code.

(c)     Other than the COC Bonus Plan or as would not have a Transferor Material Adverse Effect, no Benefit Plan exists that could: (i) result in the payment to any Employee, director or consultant of the Business of any money or other property; or (ii) accelerate the vesting of or provide any additional rights or benefits (including funding of compensation or benefits through a trust or otherwise) to any Employee, director or consultant of the Business, in each case, as a result of the execution of this Agreement. Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will result in “excess parachute payments” within the meaning of Section 280G(b) of the Code.

(d)     With respect to each Benefit Plan, Transferor has made available to Acquiror accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; and (iv) copies of any summary plan descriptions, summaries of material modifications, employee handbooks and any other written communications (or a description of any oral communications) relating to any Benefit Plan.

Section 4.15      Employment Matters .

(a)      Section 4.15 of the Disclosure Schedules contains a list of all Persons who are employees, independent contractors or consultants of the Business as of the date hereof, including any employee who is on a leave of absence of any nature, paid or unpaid, authorized or unauthorized, and sets forth for each such individual the following: (i) name; (ii) title or position (including whether full or part time); (iii) hire date; (iv) current annual base compensation rate; (v) commission, bonus or other incentive-based compensation; and (vi) a description of the fringe benefits provided to each such individual as of the date hereof. As of the date hereof, all compensation, including wages, commissions and bonuses payable to all employees, independent contractors or consultants of the Business for services performed on or prior to the date hereof have been paid in full in accordance with Transferor’s regular payroll cycle.

(b)     Transferor is not, and has not been for the past five years, a party to, bound by, or negotiating any collective bargaining agreement or other Contract with a union, works council or labor organization (collectively, “ Union ”), and there is not, and has not been for the past five years, any Union representing or purporting to represent any employee of Transferor, and, to Transferor’s Knowledge, no Union or group of employees is seeking or has sought to organize employees for the purpose of collective bargaining. There has never been, nor has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor disruption or dispute affecting Transferor or any employees of the Business. Transferor has no duty to bargain with any Union.

(c)     Transferor is and has been in compliance in all material respects with all applicable Laws pertaining to employment and employment practices to the extent they relate to employees of the Business, including all Laws relating to labor relations, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, overtime compensation, child labor, hiring, promotion and termination of employees, working conditions, meal and break periods, privacy, health and safety, workers’ compensation, leaves of absence and unemployment insurance. All individuals characterized and treated by Transferor as consultants or independent contractors of the Business are properly treated as independent contractors under all applicable Laws. All employees of the Business classified as exempt under the Fair Labor Standards Act and state and local wage and hour laws are properly classified in all material respects. There are no material Actions against Transferor pending, or to Transferor’s Knowledge, threatened to be brought or filed, by or with any Governmental Authority or arbitrator in connection with the employment of any current or former applicant, employee, consultant, volunteer, intern or independent contractor of the Business, including, without limitation, any claim relating to unfair labor practices, employment discrimination, harassment, retaliation, equal pay, wages and hours or any other employment related matter arising under applicable Laws.

Section 4.16      Taxes .

(a)     Except as set forth in Section 4.16 of the Disclosure Schedules, all Tax Returns with respect to the Business or the Acquired Assets required to have been filed (taking into account any available extensions) by Transferor for any Pre-Closing Tax Period have been timely filed. Such Tax Returns are true, complete and correct in all material respects. All Taxes due and owing by Transferor (whether or not shown on any Tax Return) have been timely paid.

(b)     Transferor has withheld and paid each Tax required to have been withheld and paid in connection with amounts paid or owing by Transferor to any employee, independent contractor, creditor, customer, shareholder or other party, and has complied with all information reporting and backup withholding provisions of applicable Law. No extensions or waivers of statutes of limitations have been given (which extensions or waivers are currently in effect) or requested with respect to any Taxes of Transferor. All deficiencies asserted, or assessments made, against Transferor as a result of any examinations by any taxing authority have been fully paid or otherwise finally resolved.

(c)     Transferor is not a party to any Action by any taxing authority. There are no pending or threatened Actions by any taxing authority against Transferor or the Acquired Assets.

(d)     There are no Encumbrances for Taxes upon any of the Acquired Assets nor, to Transferor’s Knowledge, is any taxing authority in the process of imposing any Encumbrances for Taxes on any of the Acquired Assets (other than for current Taxes not yet due and payable).

(e)     Transferor is not a “foreign person” as that term is used in Treasury Regulations Section 1.1445-2. Transferor is not, and has not been, a party to, or a promoter of, a “reportable transaction” within the meaning of Section 6707A(c)(1) of the Code and Treasury Regulations Section 1.6011 4(b).

(f)      Transferor is not a party to or bound by any Tax allocation, Tax sharing, Tax indemnity, or Tax reimbursement agreement or arrangement (excluding (i) customary agreements with customers, vendors, lenders, lessors or the like entered into in the ordinary course of business, (ii) this Agreement, (iii) the Transaction Documents, and (iv) other agreements or arrangements for which Taxes is not the principal subject matter) under which Acquiror will have liability for the Taxes of any other Person after the Closing.

Nothing in this Section 4 or otherwise in this Agreement shall be construed as a representation or warranty with respect to, or a guarantee of, the Taxes with respect to the Business or the Acquired Assets attributable to any Post-Closing Tax Period.

Section 4.17      Brokers . No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement or any other Transaction Document based upon arrangements made by or on behalf of Transferor.

Section 4.18      Acquisition Consideration . The Acquisition Consideration constitutes reasonably equivalent value in exchange for the Acquired Assets. In transferring the Acquired Assets to Acquiror, Transferor has no intent (actual or otherwise) to hinder, delay, or defraud any creditors or potential creditors of the Transferor. Transferor has no present intention to file a bankruptcy petition now or in the near future, to make an assignment for the benefit of creditors, to dissolve, or to engage in any other insolvency proceedings or actions, whether federal or state, under any present or future law, act, or statute.

Section 4.19      No Other Representations and Warranties . Except for the representations and warranties contained in this ARTICLE IV (including the related portions of the Disclosure Schedules), neither Transferor nor any other Person has made or makes any other express or implied representation or warranty, either written or oral, on behalf of Transferor including any representation or warranty as to the accuracy or completeness of any information regarding the Business and the Acquired Assets furnished or made available to Acquiror and its Representatives (including any information, documents or material made available to Acquiror, management presentations or any other information in expectation of the transactions contemplated hereby) or as to the future revenue, profitability or success of the Business, or any representation or warranty arising from statute or otherwise in law.

ARTICLE V
REPRESENTATIONS AND WARRANTIES OF ACQUIROR

Except as set forth in the Disclosure Schedules, Acquiror represents and warrants to Transferor that the statements contained in this ARTICLE V are true and correct as of the date hereof.

Section 5.01      Organization and Qualification of Acquiror . Acquiror is a corporation duly organized, validly existing and in good standing under the Laws of the state of Delaware and has full corporate power and authority to own, operate or lease the properties and assets now owned, operated or leased by it and to carry on its business as currently conducted. Acquiror is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the ownership of its assets and properties and the conduct of its business as currently conducted makes such licensing or qualification necessary, except where the failure to be so licensed, qualified or in good standing would not have an Acquiror Material Adverse Effect.

Section 5.02      Authority of Acquiror . Acquiror has full corporate power and authority to enter into this Agreement and the other Transaction Documents to which Acquiror is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Acquiror of this Agreement and any other Transaction Document to which Acquiror is a party, the performance by Acquiror of its obligations hereunder and thereunder and the consummation by Acquiror of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of Acquiror. This Agreement has been duly executed and delivered by Acquiror, and (assuming due authorization, execution and delivery by Transferor) this Agreement constitutes a legal, valid and binding obligation of Acquiror enforceable against Acquiror in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). When each other Transaction Document to which Acquiror is or will be a party has been duly executed and delivered by Acquiror (assuming due authorization, execution and delivery by each other party thereto), such Transaction Document will constitute a legal and binding obligation of Acquiror enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

Section 5.03      No Conflicts; Consents . The execution, delivery and performance by Acquiror of this Agreement and the other Transaction Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) conflict with or result in a violation or breach of, or default under, any provision of the certificate of incorporation or bylaws of Acquiror; (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable to Acquiror; or (c) except as set forth in Section 5.03 of the Disclosure Schedules, require the consent, notice or other action by any Person under any Contract to which Acquiror is a party, except in the cases of clauses (b) and (c) , where the violation, breach, conflict, default, or failure to give notice would not have a material adverse effect on Acquiror’s ability to consummate the transactions contemplated hereby. No consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to Acquiror in connection with the execution and delivery of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, except for filings pursuant to Regulation D under the Securities Act and applicable state securities laws, which have been made or will be made in a timely manner, and such consents, approvals, Permits, Governmental Orders, declarations, filings or notices which would not have a material adverse effect on Acquiror’s ability to consummate the transactions contemplated hereby and thereby.

Section 5.04      Brokers . No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement or any other Transaction Document based upon arrangements made by or on behalf of Acquiror.

Section 5.05      Capitalization . As of the Effective Date:

(a)     The authorized capital stock of Acquiror consists of 11,000,000 shares of Common Stock, of which 8,000,000 shares are issued and outstanding. All of the outstanding shares of Common Stock have been duly authorized and validly issued, are fully paid and nonassessable and were issued in compliance with all applicable federal, state and foreign securities laws.

(b)     Other than the shares of Common Stock, no other shares of capital stock have been authorized and/or issued by Acquiror.

(c)      Section 5.05(c) of the Disclosure Schedules sets forth the capitalization of Acquiror as of the Effective Date. Except for (i) the issuance of shares of Common Stock to Transferor pursuant to the terms of this Agreement and (ii) the issuance of shares of Common Stock to Cesca pursuant to the terms of the Cesca Contribution Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights, rights of first refusal or similar rights) or agreements, oral or in writing, to purchase or acquire any shares of capital stock from Acquiror, or any securities convertible into or exchangeable for shares of capital stock of Acquiror.

(d)     Acquiror is not under any obligation to register under the Securities Act or any foreign securities law any of its currently outstanding securities or any securities issuable upon exercise or conversion of its currently outstanding securities. No stockholder of Acquiror has entered into any agreements with respect to the voting of capital stock of Acquiror.

(e)     Acquiror has, or will prior to the Closing have, obtained waivers of any rights held by existing stockholders or other parties to purchase any of the Shares covered by this Agreement.

Section 5.06      Issuance of Shares . The Shares, when issued, sold and delivered in accordance with the terms set forth in this Agreement, will be duly authorized, validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under the certificate of incorporation and bylaws of Acquiror, as the same may be amended or restated from time to time, and applicable state and federal securities laws. Subject to the filings described in Section 5.03 above, the offer and issuance of the Shares pursuant to this Agreement will be in compliance with Law.

Section 5.07      Solvency . Immediately after giving effect to the transactions contemplated hereby, Acquiror shall be solvent and shall: (i) be able to pay its debts as they become due; (ii) own property that has a fair saleable value greater than the amounts required to pay its debts (including a reasonable estimate of the amount of all contingent liabilities); and (iii) have adequate capital to carry on its business for at least six months after the Closing. No transfer of property is being made and no obligation is being incurred in connection with the transactions contemplated hereby with the intent to hinder, delay or defraud either present or future creditors of Acquiror or Transferor. In connection with the transactions contemplated hereby, Acquiror has not incurred, nor plans to incur, debts beyond its ability to pay as they become absolute and matured.

Section 5.08      Financial Statements; Liabilities and Obligations .

(a)     A copy of the pro forma balance sheet of Acquiror as of April 1, 2017 after giving effect to the Dropdown (the “ Acquiror Balance Sheet ”) has been delivered or made available to Transferor.

(b)     Except for those Liabilities that (i) are of a nature not required to be reflected as Liabilities on a balance sheet prepared in accordance with GAAP, or (ii) are described on Section 5.08(b) of the Disclosure Schedules, the Acquiror Balance Sheet fairly and accurately reflect all material Liabilities of Acquiror accrued, contingent or otherwise (known or unknown and asserted or unasserted) of the date of the Acquiror Balance Sheet. All reserves shown in the Acquiror Financial Statements are reasonable and sufficient to provide for any losses thereby contemplated

Section 5.09      Absence of Certain Changes . Except as set forth in ☒ Section 5.09 of the Disclosure Schedules, since March 9, 2017 (Acquiror’s date of formation), Acquiror has not suffered an Acquiror Material Adverse Effect.

Section 5.10      Legal Proceedings . Except for the Litigation and as set forth in Section 5.10 of the Disclosure Schedules, there are no Actions pending or, to Acquiror’s knowledge, threatened against or by Acquiror or any Affiliate of Acquiror that would reasonably be expected to have an Acquiror Material Adverse Effect.

Section 5.11      Material Contracts .

(a)      Section 5.11(a) of the Disclosure Schedules lists each of the following Contracts to which Acquiror is a party or by which Acquiror or any of its material assets or properties is bound and which is material to Acquiror:

(i)     any indenture, mortgage, trust deed, promissory note, loan agreement, security agreement, guarantee or other Contract for or with respect to the borrowing of money, a line of credit, any currency exchange, commodities or other hedging arrangement, or that evidences any Encumbrance on the material assets or properties of Acquiror, or that evidences a leasing transaction of a type required to be capitalized in accordance with GAAP;

(ii)     any joint venture, partnership, co-marketing, management or similar Contract that has involved, or is reasonably expected to involve, a sharing of revenues, profits, cash flows, expenses or losses with any other party or a payment of royalties to any other party;

(iii)     any Contract that involves the acquisition or disposition of any business or all or substantially all of the capital stock or assets of any other Person (whether by merger, sale of stock, sale of assets or otherwise);

(iv)     any Contract pursuant to which rights of any third party are triggered or become exercisable in connection with or as a result of the execution of any of the Transaction Documents or the consummation of the transactions contemplated thereunder, either alone or in combination with any other event; and

(v)      any Contract that upon any default or termination thereof could have an Acquiror Material Adverse Effect.

Section 5.12      Sufficiency of Asset s . Subject to the exclusion of leased real property from the Dropdown, the assets acquired from Cesca in connection with the Dropdown are sufficient for the conduct of Acquiror’s Business and constitute all of the rights, property and assets necessary to conduct Acquiror’s Business as currently conducted.

Section 5.13      Intellectual Property . Except as would not have an Acquiror Material Adverse Effect, to Acquiror’s Knowledge: (i) the conduct of the Acquiror’s business as currently conducted does not infringe, misappropriate, dilute or otherwise violate the Intellectual Property of any Person; and (ii) no Person is infringing, misappropriating or otherwise violating any Intellectual Property of Acquiror.

Section 5.14      Properties and Assets . The property and assets that Acquiror owns are free and clear of all Encumbrances other than (a) Permitted Encumbrances and (b) Encumbrances that arise in the ordinary course of business and do not materially impair Acquiror’s ownership or use of such property or assets. With respect to the property and assets Acquiror leases, to the knowledge of Acquiror, Acquiror holds a valid leasehold interest free of any Encumbrances other than (i) Permitted Encumbrances and (ii) those of the lessors of such property or assets.

Section 5.15      Employee Matters . As of the date hereof, Acquiror does not have any employees or independent contractors, provided that employees who will provide services to the Acquiror after the Dropdown are being paid through the Acquiror as of the date hereof for services provided to Cesca.

Section 5.16      No Other Representations and Warranties . Except for the representations and warranties contained in this ARTICLE V (including the related portions of the Disclosure Schedules), neither Acquiror nor any other Person has made or makes any other express or implied representation or warranty, either written or oral, on behalf of Acquiror, including any representation or warranty as to the accuracy or completeness of any information regarding the Acquiror’s business furnished or made available to Transferor and its Representatives (including any information, documents or material made available to Transferor, management presentations or any other information in expectation of the transactions contemplated hereby) or as to the future revenue, profitability or success of Acquiror’s business, or any representation or warranty arising from statute or otherwise in law.

ARTICLE VI
COVENANTS

Section 6.01      Conduct of Business Prior to the Closing . From the date hereof until the Closing, except as otherwise provided in this Agreement or consented to in writing by Acquiror (which consent shall not be unreasonably withheld or delayed), Transferor shall (x) conduct the Business in the ordinary course of business consistent with past practice; and (y) use commercially reasonable efforts to maintain and preserve intact its current Business organization, operations and franchise and to preserve the rights, franchises, goodwill and relationships of its employees, customers, lenders, suppliers, regulators and others having relationships with the Business. Without limiting the foregoing, from the Effective Date until the Closing Date, Transferor shall use commercially reasonable efforts to:

(a)     preserve and maintain all material Permits required for the conduct of the Business as currently conducted or the ownership and use of the Acquired Assets;

(b)     pay the debts, Taxes and other obligations of the Business when due;

(c)     continue to collect accounts receivable in a manner consistent with past practice, without discounting such accounts receivable other than such discounts made in the ordinary course of business consistent with past practice;

(d)     maintain the properties and assets included in the Acquired Assets in the same condition as they were on the Effective Date, subject to normal wear and tear;

(e)     continue in full force and effect without modification all Insurance Policies, except as required by applicable Law;

(f)     defend and protect the properties and assets included in the Acquired Assets from infringement or usurpation;

(g)     perform all of its obligations under all Assigned Contracts;

(h)     maintain the Books and Records in accordance with past practice;

(i)     comply in all material respects with all Laws applicable to the conduct of the Business or the ownership and use of the Acquired Assets; and

(j)     except as consented to in writing by Acquiror (which consent shall not be unreasonably withheld, conditioned or delayed), not take or permit any action that would cause any of the changes, events or conditions described in Section 4.06 to occur.

Section 6.02      Access to Information . From the date hereof until the Closing, Transferor shall (a) afford Acquiror and its Representatives reasonable access to and the right to inspect all of the assets, premises, Inventory, Books and Records, Contracts and other documents and data related to the Business; (b) furnish Acquiror and its Representatives with such financial, operating and other data and information related to the Business as Acquiror or any of its Representatives may reasonably request; and (c) instruct the Representatives of Transferor to cooperate with Acquiror in its investigation of the Business; provided, however, that any such investigation shall be conducted during normal business hours upon reasonable advance notice to Transferor, under the supervision of Transferor’s personnel and in such a manner as not to interfere with the conduct of the Business or any other businesses of Transferor. All requests by Acquiror for access pursuant to this Section 6.02 shall be submitted or directed exclusively to William Gerber or such other individuals as Transferor may designate in writing from time to time. Notwithstanding anything to the contrary in this Agreement, Transferor shall not be required to disclose any information to Acquiror if such disclosure would, in Transferor’s sole discretion: (y) jeopardize any attorney-client or other privilege, or (z) contravene any applicable Law, fiduciary duty or binding agreement entered into prior to the date of this Agreement. Prior to the Closing, without the prior written consent of Transferor, which may be withheld for any reason, Acquiror shall not contact any suppliers to, or customers of, the Business and Acquiror shall have no right to perform invasive investigations of the Leased Real Property. Acquiror shall, and shall cause its Representatives to, abide by the terms of the Confidentiality Agreement with respect to any access or information provided pursuant to this Section 6.02 . No investigation by Acquiror or other information received by Acquiror shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Transferor in this Agreement.

Section 6.03      Notice of Certain Events; Schedule Supplements .

(a)     From the date hereof until the Closing, Transferor shall promptly notify Acquiror in writing of the following to the extent that Transferor has Knowledge thereof:

(i)     any fact, circumstance, event or action the existence, occurrence or taking of which (A) has had, or could reasonably be expected to have, individually or in the aggregate, a Transferor Material Adverse Effect, (B) has resulted in, or could reasonably be expected to result in, any representation or warranty made by Transferor hereunder not being true and correct or (C) has resulted in, or could reasonably be expected to result in, the failure of any of the conditions set forth in Section 7.02 to be satisfied;

(ii)     any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement;

(iii)     any notice or other communication from any Governmental Authority in connection with the transactions contemplated by this Agreement; and

(iv)     any Actions commenced or, to Transferor’s Knowledge, threatened against, relating to or involving or otherwise affecting the Business, the Acquired Assets or the Assumed Liabilities that, if pending on the date of this Agreement, would have been required to have been disclosed pursuant to Section 4.12 or that relates to the consummation of the transactions contemplated by this Agreement.

(b)     From time to time prior to the Closing, Transferor shall have the right (but not the obligation) to supplement or amend the Disclosure Schedules hereto with respect to any matter hereafter arising or of which it becomes aware after the date hereof (each a “ Schedule Supplement ”). Any disclosure in any such Schedule Supplement shall not be deemed to have cured any inaccuracy in or breach of any representation or warranty contained in this Agreement, including for purposes of the indemnification or termination rights contained in this Agreement or of determining whether or not the conditions set forth in Section 7.02(a) have been satisfied;  provided, however,  that if Acquiror has the right to, but does not elect to, terminate this Agreement within ten Business Days of its receipt of such Schedule Supplement, then Acquiror shall be deemed to have irrevocably waived any right to terminate this Agreement with respect to such matter and, further, unless otherwise agreed to by the Transferor and Acquiror in writing, shall have irrevocably waived its right to indemnification under  Section 8.02  with respect to such matter.

Section 6.04      Employees and Employee Benefits .

(a)     Acquiror shall, or shall cause an Affiliate of Acquiror to, offer employment effective on the Closing Date, to all Employees listed on Section 6.04(a) of the Disclosure Schedule (the Employees who accept such employment and commence employment on the Closing Date, the “ Transferred Employees ”).

(b)     During the period commencing on the Closing Date and ending on the date which is 12 months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with Acquiror or an Affiliate of Acquiror), Acquiror shall, or shall cause an Affiliate of Acquiror to, provide each Transferred Employee with: (i) the base salary or hourly wages which are set forth next the Transferred Employee’s name on Section 6.04(a) of the Disclosure Schedule, and (ii) severance benefits that are no less favorable than those set forth in Section 6.04(b) of the Disclosure Schedule. Notwithstanding the foregoing, except as set forth in Section 6.04(c) below, Transferor shall be solely responsible, and Acquiror shall have no obligations whatsoever for, any compensation or other amounts payable to any current or former employee, officer, director, independent contractor or consultant of the Business, including, without limitation, hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits or severance pay for any period relating to the service with Transferor at any time on or prior to the Closing Date and Transferor shall pay all such amounts to all entitled persons on or prior to the Closing Date.

(c)     As of the Closing Date, Transferred Employees shall be eligible for employee benefit plans maintained by Acquiror or its Affiliate that are provided to similarly situated employees of Acquiror and its Affiliates. With respect to any employee benefit for the benefit of any Transferred Employee, effective as of the Closing, Acquiror shall, or shall cause its Affiliate to, recognize all service of the Transferred Employees with Transferor, as if such service were with Acquiror, for vesting, eligibility and accrual purposes (but only to the extent permitted by the Acquiror’s applicable benefit plans); provided, however, such service shall not be recognized to the extent that (x) such recognition would result in a duplication of benefits (y) such service was not recognized under the corresponding Benefit Plan or (z) service credit for benefit accruals under a defined benefit pension plan.

(d)     Effective as of the Closing, the Transferred Employees shall cease active participation in the Benefit Plans. Transferor shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Employees prior to the Closing Date.

(e)     Acquiror and Transferor intend that the transactions contemplated by this Agreement should not constitute a separation, termination or severance of employment of any Transferred Employee who accepts an employment offer by Acquiror that is consistent with the requirements of this Section 6.04 for purposes of any Benefit Plan that provides for severance benefits and that each such Transferred Employee will have continuous employment immediately before and immediately after the Closing.

(f)     This Section 6.04 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 6.04 , express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 6.04 . Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement. The parties hereto acknowledge and agree that the terms set forth in this Section 6.04 shall not create any right in any Transferred Employee or any other Person, including to any continued employment with Acquiror or any of its Affiliates or compensation or benefits of any nature or kind whatsoever.

Section 6.05      Confidentiality . Transferor and Acquiror each acknowledge and agree that the Confidentiality Agreement remains in full force and effect and, in addition, each party covenants and agrees to keep confidential, in accordance with the provisions of the Confidentiality Agreement, information provided by the other party pursuant to this Agreement. If this Agreement is, for any reason, terminated prior to the Closing, the Confidentiality Agreement and the provisions of this Section 6.05 shall nonetheless continue in full force and effect.

Section 6.06      Governmental Approvals and Consents .

(a)     Each party hereto shall, as promptly as possible, use its reasonable best efforts to obtain, or cause to be obtained, all consents, authorizations, orders and approvals from all Governmental Authorities that may be or become necessary for its execution and delivery of this Agreement and the performance of its obligations pursuant to this Agreement and the other Transaction Documents. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such consents, authorizations, orders and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.

(b)     Without limiting the generality of the parties’ undertakings pursuant to subsection (a) above and subsection (d) below, each of the parties hereto shall use all reasonable best efforts to:

(i)     respond to any inquiries by any Governmental Authority regarding antitrust or other matters with respect to the transactions contemplated by this Agreement or any other Transaction Document; and

(ii)     avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any other Transaction Document.

(c)     All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between Transferor or Acquiror with Governmental Authorities in the ordinary course of business, any disclosure which is not permitted by Law, or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.

(d)     Transferor and Acquiror shall use commercially reasonable efforts to give all notices to, and obtain all consents from, all third parties that are described in Section 4.03 and Section 5.03 of the Disclosure Schedules.

(e)     Notwithstanding the foregoing, nothing in this Section 6.06 shall require, or be construed to require, Acquiror or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of Acquiror or any of its Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to result in an Acquiror Material Adverse Effect; or (iii) any material modification or waiver of the terms and conditions of this Agreement.   

Section 6.07      Books and Records .

(a)     In order to facilitate the resolution of any claims made against or incurred by Transferor prior to the Closing, or for any other reasonable purpose, for a period of three years after the Closing, Acquiror shall:

(i)     retain the Books and Records (including personnel files, but excluding personnel files relating to employment at Cesca) relating to periods prior to the Closing in a manner reasonably consistent with the prior practices of Transferor; and

(ii)     upon reasonable notice, afford Transferor’s Representatives reasonable access (including the right to make, at Transferor’s expense, photocopies), during normal business hours, to such Books and Records.

(b)     In order to facilitate the resolution of any claims made by or against or incurred by Acquiror after the Closing, or for any other reasonable purpose, for a period of three years after the Closing, Transferor shall:

(i)     retain the books and records (including personnel files) of Transferor which relate to the Business and its operations for periods prior to the Closing; and

(ii)     upon reasonable notice, afford the Acquiror’s Representatives reasonable access (including the right to make, at Acquiror’s expense, photocopies), during normal business hours, to such books and records.

(c)     Neither Acquiror nor Transferor shall be obligated to provide the other party with access to any books or records (including personnel files) pursuant to this Section 6.07 where such access would violate any Law.

Section 6.08      Acquiror Restrictions . From the date hereof until the Closing, except as contemplated by the Cesca Contribution Agreement or the other Transaction Documents, Acquiror shall not:

(a)     issue or sell any equity interests, notes, bonds or other securities, or any option, warrant or right to acquire the same, or incur, assume or guarantee any indebtedness for borrowed money;

(b)     make any distribution with respect to any of its equity interests or redeem, repurchase or otherwise acquire any of its equity interests;

(c)     amend the certificate of incorporation or bylaws of Acquiror;

(d)     purchase or otherwise acquire any asset or business of, or any equity interest in, any Person for consideration in excess of $50,000.00 other than in the ordinary course of business;

(e)     sell, lease or otherwise dispose of any asset for consideration in excess of $50,000.00 other than in the ordinary course of business;

(f)     merge, consolidate or sell all or substantially all of its assets; or

(g)     take any action that could reasonably be expected to have an Acquiror Material Adverse Effect.

Section 6.09      Conduct of Acquiror’s Business Prior to the Closing . From the date hereof until the Closing, except as otherwise provided in this Agreement, the Cesca Contribution Agreement or any of the other Transaction Documents or consented to in writing by Transferor (which consent shall not be unreasonably withheld or delayed), Acquiror shall (a) conduct the Acquiror’s Business in the ordinary course of business and (b) use commercially reasonable efforts to maintain and preserve intact the organization of Acquiror’s Business and its operations and franchise and to preserve the rights, franchises, goodwill and relationships of its employees, customers, lenders, suppliers, regulators and others having relationships with the Acquiror’s Business.

Section 6.10      Closing Conditions . From the date hereof until the Closing, each party hereto shall use commercially reasonable efforts to take such actions as are necessary to expeditiously satisfy the closing conditions set forth in ARTICLE VII hereof.

Section 6.11      Public Announcements . Unless otherwise required by applicable Law or stock exchange requirements (based upon the reasonable advice of counsel), no party to this Agreement shall make any public announcements in respect of this Agreement or the transactions contemplated hereby or otherwise communicate with any news media without the prior written consent of the other party (which consent shall not be unreasonably withheld or delayed), and the parties shall cooperate as to the timing and contents of any such announcement.

Section 6.12      Bulk Sales Laws . The parties hereby waive compliance with the provisions of any bulk sales, bulk transfer or similar Laws of any jurisdiction that may otherwise be applicable with respect to the sale of any or all of the Acquired Assets to Acquiror; it being understood that any Liabilities arising out of the failure of Transferor to comply with the requirements and provisions of any bulk sales, bulk transfer or similar Laws of any jurisdiction which would not otherwise constitute Assumed Liabilities shall be treated as Excluded Liabilities.

Section 6.13      Tax Matters .

(a)     All transfer, documentary, sales, use, stamp, registration, value added and other similar Taxes and fees (including any penalties and interest) incurred in connection with this Agreement and the other Transaction Documents (collectively, “ Transfer Taxes ”), if any, shall be borne and paid 50% by Transferor and 50% by the Acquiror when due. Any Tax Return required to be filed with respect to such Transfer Taxes shall be filed by the party that is primarily responsible to file such Tax Return under applicable Law, and Transferor and Acquiror shall reasonably cooperate with each other in the preparation, execution and filing of such Tax Returns and to minimize any applicable Transfer Taxes. The party filing any Tax Return with respect to Transfer Taxes shall be entitled to reimbursement from the non-filing party for 50% of the reasonable costs of preparing such Tax Returns. In furtherance of the foregoing, Transferor will timely remit sales tax in the amount of $40,473 to the State of California by reason of the transfer of the tangible personal property included in the Acquired Assets, and Acquiror will remit fifty percent (50%) of such amount to Transferor at the Closing in full satisfaction of Acquiror’s obligations under this paragraph. Transferor shall promptly after the Closing make the sales tax payment referenced in this Section 6.13(a) .

(b)     Transferor’s transfer of the Acquired Assets and the Business pursuant to this Agreement, together with the transfers to Acquiror described in the Cesca Contribution Agreement (collectively, the “ Contributions ”), are intended to constitute a transaction described in Section 351(a) of the Code except to the extent of the Cash Consideration. Transferor and Acquiror and their respective Affiliates shall (i) file and retain such information as shall be required under Section 1.351-3 of the United States Treasury Regulations, and (ii) file all Tax Returns on a basis consistent with such characterization. Notwithstanding the foregoing or anything else to the contrary contained in this Agreement, the parties acknowledge and agree that no party is making any representation or warranty as to the qualification of the Contributions under Section 351 of the Code or as to the effect, if any, that any transaction consummated on, after or prior to the Closing Date has or may have on the U.S. federal income Tax characterization of the Contributions. Each of the parties acknowledge and agree that each (i) has had the opportunity to obtain independent legal and tax advice with respect to the transactions contemplated by this Agreement, and (ii) is responsible for paying its own Taxes, including any adverse Tax consequences that may result if the Contributions are determined not to qualify under Section 351 of the Code.

(c)     For purposes of determining the Taxes relating to the Acquired Assets or the conduct or operation of the Business with respect to a taxable period that begins on or before the Closing Date and ends after the Closing Date (a “ Straddle Period ”), the portion of such Taxes that are attributable to that portion of the Straddle Period ending on the Closing Date shall be (x) the amount that would be payable if the relevant taxable period ended on the Closing Date pursuant to an interim closing of the books in the case of all Taxes (other than the Taxes described in (y) below) and (y) in the case of Taxes imposed on a periodic basis (such as property, ad valorem and similar Taxes), the amount of such Tax for the entire Straddle Period multiplied by a fraction the numerator of which is the total number of days in the Pre-Closing Tax Period and the denominator of which is the total number of days in such Straddle Period. To the extent that Transferor pays or has paid to the appropriate taxing authority any property Tax with respect to a Straddle Period and Transferor provides evidence to Acquiror of such payment, Acquiror shall reimburse Transferor for the portion of such property Tax not allocable to the Pre-Closing Tax Period.

(d)     Acquiror shall promptly notify Transferor in writing of any matter which may give rise to a claim for indemnification against Transferor in respect of Taxes that are an Excluded Liability (or for which Transferor would otherwise be required to indemnify Acquiror under this Agreement) upon receiving written notice of such matter ; provided, however , that the failure to so notify Transferor will not relieve Transferor from any liability that Transferor may have hereunder with respect to such claim, except to the extent that Transferor is prejudiced as a result of such failure . Transferor shall be solely entitled to manage, conduct, control and resolve any Tax audits, examinations, appeals, litigation or other Tax proceedings relating to Taxes that are an Excluded Liability (or for which Transferor would otherwise be required to indemnify Acquiror under this Agreement) (each, a “ Transferor Tax Contest ”); provided, however , that if Transferor elects not to assume the defense, or fails to assume the defense in a timely manner, then Acquiror may employ counsel reasonably satisfactory to Transferor to represent or defend Acquiror in such Transferor Tax Contest, except that Acquiror may not settle a Transferor Tax Contest without Transferor’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). In any event, Acquiror shall have the right to participate in, and consult with Transferor regarding, any Transferor Tax Contest described in this Section 6.13(d) that may affect Acquiror for any periods ending after the Closing Date at Acquiror’s own expense. For the avoidance of doubt, this Section 6.13(d) (rather than Section 8.05) shall exclusively govern the conduct of Transferor Tax Contests.

(e)      Acquiror shall promptly forward to or reimburse Transferor for any refunds it receives of Taxes that constitute Excluded Assets.

(f)     After the Closing Date, each of Transferor and Acquiror shall:

(i)     Upon the reasonable request of the other party, use commercially reasonable efforts to cooperate in preparing for any audits of, or disputes with taxing authorities regarding, any Tax Returns relating to the Acquired Assets and make available to the other party and/or its designees as reasonably requested by such other party all information, records, and documents (or applicable portions thereof) relating to liabilities for Taxes associated with the Acquired Assets as set forth in this Agreement.

(ii)     Make available to the other, as reasonably requested and available and during business hours, personnel responsible for preparing or maintaining information, records and documents in connection with Taxes relating to the Acquired Assets as well as any related litigation;

(iii)      Provide timely notice to the other in writing of any pending or threatened Tax audits, actions, claims, assessments or information request related to (1) the Acquired Assets for periods beginning prior to the Closing Date, or (2) Transfer Taxes, and in each case furnish the other with copies of all correspondence (or applicable portions thereof) received from any taxing authority in connection with any such Tax audit, action, claim, assessment or information request; and

(iv)      Notwithstanding anything else to the contrary in this Section 6.13(f), if a Party is required to provide information that is contained within a document containing any unrelated information, only portions pertaining to such relevant information shall be required to be furnished. Furthermore, for the avoidance of doubt, nothing herein shall give Acquiror or Transferor the right to see any Tax Return to the extent that such Tax Return includes any information unrelated to the Acquired Assets.

Section 6.14      Investor Agreements . Each of the parties hereto acknowledges and agrees that, as of the Closing Date, Bay City shall be entitled to receive the benefits and protections set forth in the Investor Agreements that are expressly applicable to Bay City therein, provided that nothing in this paragraph shall be deemed to expand the obligations of the Acquiror or expand the rights of any party other Acquiror under the Investor Agreements.

Section 6.15      Further Assurances . Following the Closing, each of the parties hereto shall, and shall cause their respective Affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement and the other Transaction Documents. Acquiror shall use its commercially reasonable efforts to satisfy the Post-Closing Warranty Obligations to mitigate any monetary Liability with respect thereto.

ARTICLE VII
CONDITIONS TO CLOSING

Section 7.01      Conditions to Obligations of All Parties . The obligations of each party to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to the Closing, of each of the following conditions:

(a)     No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Governmental Order which is in effect and has the effect of making the transactions contemplated by this Agreement illegal, otherwise restraining or prohibiting consummation of such transactions or causing any of the transactions contemplated hereunder to be rescinded following completion thereof.

Section 7.02      Conditions to Obligations of Acquiror . The obligations of Acquiror to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Acquiror’s waiver, at or prior to the Closing, of each of the following conditions:

(a)     Other than the representations and warranties of Transferor contained in Section 4.01 , Section 4.02 and Section 4.17 , the representations and warranties of Transferor contained in this Agreement shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Transferor Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Transferor Material Adverse Effect) on and as of the Effective Date and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Transferor contained in Section 4.01 , Section 4.02 and Section 4.17 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).

(b)     Transferor shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date; provided that, with respect to agreements, covenants and conditions that are qualified by materiality, Transferor shall have performed such agreements, covenants and conditions, as so qualified, in all respects.

(c)     No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any material transaction contemplated hereby.

(d)     From the date of this Agreement, there shall not have occurred any Transferor Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a Transferor Material Adverse Effect.

(e)     Transferor shall have delivered to Acquiror duly executed counterparts to the Transaction Documents (other than this Agreement) to which Transferor is a party and such other documents and deliveries set forth in Section 3.02(a) .

(f)     All Encumbrances relating to the Acquired Assets shall have been released in full, other than Permitted Encumbrances, and Transferor shall have delivered to Acquiror written evidence, in form satisfactory to Acquiror in its sole discretion, of the release of such Encumbrances.

(g)     Acquiror shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Transferor, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (the “ Transferor Closing Certificate ”).

(h)     Acquiror shall have received a certificate of the Secretary (or equivalent officer) of Transferor certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Transferor and the stockholders of Transferor authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect as of the Closing Date and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.

(i)     Acquiror shall have received a certificate of the Secretary (or equivalent officer) of Transferor certifying the names and signatures of the officers of Transferor authorized to sign this Agreement, the Transaction Documents and the other documents to be delivered hereunder and thereunder.

(j)     Acquiror shall have received a certificate pursuant to Treasury Regulations Section 1.1445-2(b) (the “ FIRPTA Certificate ”) that Transferor is not a foreign person within the meaning of Section 1445 of the Code duly executed by Transferor.

Section 7.03      Conditions to Obligations of Transferor . The obligations of Transferor to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Transferor’s waiver, at or prior to the Closing, of each of the following conditions:

(a)     Other than the representations and warranties of Acquiror contained in Section 5.01 , Section 5.02 and Section 5.04 , the representations and warranties of Acquiror contained in this Agreement shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Acquiror Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Acquiror Material Adverse Effect) on and as of the Effective Date and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Acquiror contained in Section 5.01 , Section 5.02 and Section 5.04 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date.

(b)     Acquiror shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date; provided that, with respect to agreements, covenants and conditions that are qualified by materiality, Acquiror shall have performed such agreements, covenants and conditions, as so qualified, in all respects.

(c)     No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any material transaction contemplated hereby.

(d)     All approvals, consents and waivers that are listed on Section 5.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Transferor at or prior to the Closing.

(e)     Acquiror shall have delivered to Transferor the Acquisition Consideration and duly executed counterparts to the Transaction Documents (other than this Agreement) to which Acquiror is a party and such other documents and deliveries set forth in Section 3.02(b) .

(f)     Transferor shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Acquiror, that each of the conditions set forth in Section 7.03(a) and Section 7.03(b) have been satisfied (the “ Acquiror Closing Certificate ”).

(g)     Transferor shall have received a certificate of the Secretary (or equivalent officer) of Acquiror (i) certifying as to the certificate of incorporation and bylaws of Acquiror, each as in effect as of the Closing Date, (ii) certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Acquiror authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, (iii) certifying that attached thereto are true and complete copies of all resolutions adopted by the sole stockholder of Acquiror authorizing the issuance of the Shares in accordance with this Agreement and approving the terms and conditions of the Voting Agreement, ROFR and Co-Sale Agreement, the Investors’ Rights Agreement and the Amended and Restated Charter, and (iv) certifying that all such resolutions are in full force and effect as of the Closing Date and are all the resolutions in connection with the transactions contemplated hereby and thereby.

(h)     Transferor shall have received a certificate of the Secretary (or equivalent officer) of Acquiror certifying the names and signatures of the officers of Acquiror authorized to sign this Agreement, the Transaction Documents and the other documents to be delivered hereunder and thereunder.

(i)     The closing of the transactions set forth in the Cesca Contribution Agreement shall have occurred or shall occur contemporaneously with the Closing of this Agreement.

ARTICLE VIII
INDEMNIFICATION

Section 8.01      Survival . Subject to the limitations and other provisions of this Agreement, the representations and warranties contained herein shall survive the Closing and shall remain in full force and effect until the date that is 18 months from the Closing Date (the “ Survival Period ”); provided that (a) the representations and warranties contained in Section 4.01 (Organization and Qualification of Transferor), Section 4.02 (Authority of Transferor), 8 (Title to Tangible Acquired Assets), Section 4.16 (Taxes), Section 4.17 (Brokers), Section 5.01 (Organization and Qualification of Acquiror), Section 5.02 (Authority of Acquiror), Section 5.04 (Brokers), Section 5.05 (Capitalization) and Section 5.06 (Issuance of Shares) (collectively, the “ Fundamental Representations ”) shall survive until the date that is 60 days after the expiration of the full period of all applicable statutes of limitations (giving effect to any waiver, mitigation or extension thereof), and (b) claims for fraud, willful breach or willful misconduct or intentional misrepresentation shall survive and remain in full force and effect indefinitely. All covenants and agreements of the parties contained herein shall survive the Closing indefinitely or for the period explicitly specified therein. Notwithstanding the foregoing, any claims asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching party to the breaching party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of such survival period and such claims shall survive until finally resolved.

Section 8.02      Indemnification by Transferor . Subject to the other terms and conditions of this ARTICLE VIII , Transferor shall indemnify and defend each of Acquiror and its Affiliates and their respective Representatives (collectively, the “ Acquiror I ndemnitees ”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Acquiror Indemnitees based upon, arising out of, with respect to or by reason of:

(a)     any inaccuracy in or breach of any of the representations or warranties of Transferor contained in this Agreement;

(b)     any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Transferor pursuant to this Agreement; or

(c)     any Excluded Asset or any Excluded Liability.

Section 8.03      Indemnification by Acquiror . Subject to the other terms and conditions of this ARTICLE VIII , Acquiror shall indemnify and defend each of Transferor and its Affiliates and their respective Representatives (collectively, “ Transferor Indemnitees ”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Transferor Indemnitees based upon, arising out of, with respect to or by reason of:

(a)     any inaccuracy in or breach of any of the representations or warranties of Acquiror contained in this Agreement;

(b)     any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Acquiror pursuant to this Agreement; or

(c)     any Assumed Liability.

Section 8.04      Certain Limitations . The party making a claim under this ARTICLE VIII is referred to as the “ Indemnified Party ,” and the party against whom such claim is asserted under this ARTICLE VIII is referred to as the “ Indemnifying Party .” The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:

(a)     The Indemnifying Party shall not be liable to the Indemnified Party for indemnification under Section 8.02(a) or Section 8.03(a) , as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) or Section 8.03(a) , as applicable, exceeds $50,000.00 (the “ Deductible ”), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess of the Deductible. Notwithstanding the foregoing, the Deductible shall not apply to Losses (i) arising out of any inaccuracy in or breach of any Fundamental Representation, (ii) for the avoidance of doubt, arising out of or in respect of Section 8.02(b) , Section 8.02(c) , Section 8.03(b) or Section 8.03(c) , or (iii) resulting from fraud, willful breach or willful misconduct or intentional misrepresentation by the Indemnifying Party.

(b)     The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 8.02(a) or Section 8.03(a) , as the case may be, shall not exceed the Cash Consideration (the “ Cap ”). Notwithstanding the foregoing, the Cap shall not apply to Losses (i) arising out of any inaccuracy in or breach of any Fundamental Representation, (ii) arising out of or in respect of Section 8.02(b) , Section 8.02(c) , Section 8.03(b) or Section 8.03(c) , or (ii) resulting from fraud, willful breach or willful misconduct or intentional misrepresentation by the Indemnifying Party.

(c)     For purposes of this ARTICLE VIII with respect to the calculation of any Losses, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Transferor Material Adverse Effect, Acquiror Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.

(d)     Payments by an Indemnifying Party pursuant to Section 8.02 or Section 8.03 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received by the Indemnified Party in respect of any such claim, less any related costs and expenses, including the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks (it being agreed that, promptly after the realization of any insurance proceeds, indemnity, contribution or other similar payment, the Indemnified Party shall reimburse the Indemnifying Party for such reduction in Losses for which the Indemnified Party was indemnified prior to the realization of reduction of such Losses). The Indemnified Party shall use its commercially reasonable efforts to seek recovery under applicable insurance policies or indemnity, contribution or other similar agreements for any Losses; provided, however, that the Indemnified Party shall have no obligation to: (i) seek such recovery prior to making a claim for indemnification, compensation or reimbursement under this ARTICLE VIII ; (ii) seek such recovery if such recovery would give such insurer or other third party a right of subrogation against the Indemnified Party; or (iii) obtain insurance coverage or other third party protection with respect to any particular matter.

Section 8.05      Indemnification Procedures .

(a)      Third Party Claims . If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “ Third Party Claim ”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 20 calendar days after receipt of such notice of such Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third Party Claim at the Indemnifying Party’s expense and with counsel reasonably satisfactory to the Indemnified Party, and the Indemnified Party shall cooperate in good faith in such defense; provided that, if the Indemnifying Party is Transferor, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that (i) is asserted directly by or on behalf of a Person that is a supplier or customer of the Business, or (ii) seeks an injunction or other equitable relief against the Indemnified Party. In the event that the Indemnifying Party assumes the defense of any Third Party Claim, subject to Section 8.05(b) , it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided that, if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. If the Indemnifying Party elects not to compromise or defend such Third Party Claim, fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such Third Party Claim, the Indemnified Party may, subject to Section 8.05(b) , pay, compromise, defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. Transferor and Acquiror shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 6.05 ) records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.

(b)      Settlement of Third Party Claims . Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not enter into settlement of any Third Party Claim without the prior written consent of the Indemnified Party, except as provided in this Section 8.05(b) . If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party fails to consent to such firm offer within ten days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party fails to consent to such firm offer and also fails to assume defense of such Third Party Claim, the Indemnifying Party may settle the Third Party Claim upon the terms set forth in such firm offer to settle such Third Party Claim. If the Indemnified Party has assumed the defense pursuant to Section 8.05(a) , it shall not agree to any settlement without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).

(c)      Direct Claims . Any claim by an Indemnified Party on account of a Loss which does not result from a Third Party Claim (a “ Direct Claim ”) shall be asserted by the Indemnified Party giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 20 days after the Indemnified Party becomes aware of such Direct Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have 30 days after its receipt of such notice to respond in writing to such Direct Claim. During such 30-day period, the Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance (including access to the Indemnified Party’s premises and personnel and the right to examine and copy any accounts, documents or records; provided, however, that the Indemnified Party may require that such access be provided only during normal business hours upon reasonable advance notice to the Indemnified Party, under the supervision of the Indemnified Party’s personnel and in such a manner as not to interfere with the conduct of the businesses of Indemnified Party) as the Indemnifying Party or any of its professional advisors may reasonably request, subject to the prior execution of a confidentiality agreement by the Indemnifying Party and/or its Representatives. If the Indemnifying Party does not so respond within such 30-day period, the Indemnifying Party shall be deemed to have rejected such claim, in which case the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.

Section 8.06      Payments . Once a Loss is agreed to by the Indemnifying Party or finally adjudicated to be payable pursuant to this ARTICLE VIII , the Indemnifying Party shall satisfy its obligations within 15 Business Days of such final, non-appealable adjudication by wire transfer of immediately available funds.

Section 8.07      Tax Treatment of Indemnification Payments . All indemnification payments made under this Agreement shall be treated by the parties as an adjustment to the Acquisition Consideration for Tax purposes, unless otherwise required by Law.

Section 8.08      Exclusive Remedies . Subject to Section 10.11 , the parties acknowledge and agree that their sole and exclusive remedy with respect to any and all Actions (other than Actions arising from fraud, willful breach or willful misconduct or intentional misrepresentation on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth in this ARTICLE VIII . In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted under Law, any and all Actions for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to the indemnification provisions set forth in this ARTICLE VIII . Nothing in this Section 8.08 shall limit any Person’s right to seek and obtain any equitable relief to which any Person shall be entitled or to seek any remedy on account of any fraud, willful breach or willful misconduct or intentional misrepresentation by any party hereto.

ARTICLE IX
TERMINATION

Section 9.01      Termination . This Agreement may be terminated at any time prior to the Closing:

(a)     by the mutual written consent of Transferor and Acquiror;

(b)     by Acquiror by written notice to Transferor if:

(i)     Acquiror is not then in material breach of any provision of this Agreement and there has been a breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Transferor pursuant to this Agreement that would give rise to the failure of any of the conditions specified in ARTICLE VII and such breach, inaccuracy or failure cannot be cured by Transferor by August 1, 2017 (the “ Drop Dead Date ”); or

(ii)     any of the conditions set forth in Section 7.01 or Section 7.02 shall not have been fulfilled by the Drop Dead Date, unless such failure shall be due to the failure of Acquiror to perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing;

(c)     by Transferor by written notice to Acquiror if:

(i)     Transferor is not then in material breach of any provision of this Agreement and there has been a breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Acquiror pursuant to this Agreement that would give rise to the failure of any of the conditions specified in ARTICLE VII and such breach, inaccuracy or failure cannot be cured by Acquiror by the Drop Dead Date; or

(ii)     any of the conditions set forth in Section 7.01 or Section 7.03 shall not have been fulfilled by the Drop Dead Date, unless such failure shall be due to the failure of Transferor to perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing; or

(d)     by Acquiror or Transferor in the event that:

(i)     there shall be any Law that makes consummation of the transactions contemplated by this Agreement illegal or otherwise prohibited; or

(ii)     any Governmental Authority shall have issued a Governmental Order restraining or enjoining the transactions contemplated by this Agreement, and such Governmental Order shall have become final and non-appealable.

Section 9.02      Effect of Termination . In the event of the termination of this Agreement in accordance with this ARTICLE IX , this Agreement shall forthwith become void and there shall be no liability on the part of any party hereto except:

(a)     as set forth in this ARTICLE IX , Section 6.05 and ARTICLE X hereof; and

(b)     that nothing herein shall relieve any party hereto from liability for any fraud or intentional misrepresentation or for any willful breach of any provision hereof.

ARTICLE X
MISCELLANEOUS

Section 10.01      Expenses . Except as otherwise expressly provided herein, all costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses, whether or not the Closing shall have occurred.

Section 10.02      Notices . All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 10.02 ):

Section 10.03      Interpretation . For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Articles, Sections, Disclosure Schedules and Exhibits mean the Articles and Sections of, and Disclosure Schedules and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Disclosure Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.

Section 10.04      Headings . The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

Section 10.05      Severability . If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

Section 10.06      Entire Agreement . This Agreement and the other Transaction Documents constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and those in the other Transaction Documents, the Exhibits and Disclosure Schedules (other than an exception expressly set forth as such in the Disclosure Schedules), the statements in the body of this Agreement will control.

Section 10.07      Successors and Assigns . This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder.

Section 10.08      No Third Party Beneficiaries . Except as provided in ARTICLE VIII , this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Section 10.09      Amendment and Modification; Waiver . This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Section 10.10      Governing Law; Submission to Jurisdiction; Waiver of Jury Trial .

(a)     This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).

(b)     ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE STATE OF CALIFORNIA IN EACH CASE LOCATED IN THE CITY OF SAN FRANCISCO AND COUNTY OF SAN FRANCISCO, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL TO SUCH PARTY’S ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

(c)     EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 10.10(c) .

Section 10.11      Specific Performance . The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.

Section 10.12      Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

Section 10.13      Non-recourse . This Agreement may only be enforced against, and any Action based upon, arising out of, or related to this Agreement, or the negotiation, execution or performance of this Agreement, may only be brought against the entities that are expressly named as parties hereto and then only with respect to the specific obligations set forth herein with respect to such party. No past, present or future director, officer, employee, incorporator, manager, member, partner, stockholder, Affiliate, agent, attorney or other Representative of any party hereto or of any Affiliate of any party hereto, or any of their successors or permitted assigns, shall have any liability for any obligations or liabilities of any party hereto under this Agreement or for any Action based on, in respect of or by reason of the transactions contemplated hereby.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

 Exhibit A

GENERAL ASSIGNMENT, BILL OF SALE

AND ASSUMPTION OF LIABILITIES

This GENERAL ASSIGNMENT, BILL OF SALE AND ASSUMPTION OF LIABILITIES (this “ Assignment ”) is made effective this 7th day of July, 2017, by and between SYNGEN INC., a Delaware corporation (“ Transferor ”), and THERMOGENESIS CORP., a Delaware corporation (“ Acquiror ”). Terms used but not defined herein shall have the meaning assigned to them in the Acquisition Agreement (as defined below).

WHEREAS, pursuant to that certain Asset Acquisition Agreement dated effective July 7, 2017 (the “ Acquisition Agreement ”) by and among Transferor and Acquiror, Transferor has agreed to contribute and assign to Acquiror, and Acquiror has agreed to acquire and assume from Transferor, for the consideration and upon the terms and conditions set forth in the Acquisition Agreement, the Acquired Assets and the Assumed Liabilities.

NOW, THEREFORE, pursuant to the Acquisition Agreement and in consideration of the premises stated therein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed that:

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IN WITNESS WHEREOF, the parties hereto have executed this General Assignment, Bill of Sale and Assumption of Liabilities as of the date first set forth above.

Exhibit B

ASSIGNMENT AND ASSUMPTION AGREEMENT
(CONTRACTS)

This ASSIGNMENT AND ASSUMPTION AGREEMENT (this “ Assignment ”) is made effective this 7th day of July, 2017, by and between SYNGEN INC., a Delaware corporation (“ Transferor ”), and THERMOGENESIS CORP., a Delaware corporation (“ Acquiror ”). Terms used but not defined herein shall have the meaning assigned to them in the Acquisition Agreement (as defined below).

WHEREAS, Transferor and Acquiror are parties to that certain Asset Acquisition Agreement dated effective July 7, 2017 (the “ Acquisition Agreement ”); and

WHEREAS, pursuant to the Acquisition Agreement, Transferor has agreed to assign the Assigned Contracts to Acquiror and Acquiror has agreed to accept such assignment and assume certain of Transferor’s obligations and liabilities under the Assigned Contracts.

NOW, THEREFORE, pursuant to the Acquisition Agreement and in consideration of the premises stated therein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed that:

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IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of the date first set forth above.

Exhibit C

INTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT

This INTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT (this “ IP Assignment ”), is made effective this 7th day of July, 2017, by and between SYNGEN INC., a Delaware corporation (“ Transferor ”), and THERMOGENESIS CORP., a Delaware corporation (“ Acquiror ”). Terms used but not defined herein shall have the meaning assigned to them in the Acquisition Agreement (as defined below).

WHEREAS, Transferor and Acquiror are parties to that certain Asset Acquisition Agreement dated effective July 7, 2017 (the “ Acquisition Agreement ”);

WHEREAS, pursuant to the Acquisition Agreement, Transferor has agreed to contribute and assign to Acquiror, and Acquiror has agreed to acquire and assume from Transferor, for the consideration and upon the terms and conditions set forth in the Acquisition Agreement, the Intellectual Property Assets; and

WHEREAS, pursuant to the Acquisition Agreement, Transferor has agreed to execute and deliver this IP Assignment, for recording with the United States Patent and Trademark Office and corresponding entities or agencies in any applicable jurisdictions;

NOW, THEREFORE, pursuant to the Acquisition Agreement and in consideration of the premises stated therein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed that:

1.             Assignment . Transferor hereby irrevocably contributes, conveys, transfers and assigns to Acquiror, and Acquiror hereby accepts, all of Transferor’s right, title and interest in and to the Intellectual Property Assets, including, without limitation, the following (the “ Assigned IP ”):

(a)     the patents and patent applications set forth on Schedule 1 hereto and all issuances, divisions, continuations, continuations-in-part, reissues, extensions, reexaminations and renewals thereof;

(b)     the trademark registrations and applications set forth on Schedule 2 hereto and all issuances, extensions and renewals thereof (the “ Trademarks ”), together with the goodwill of the business connected with the use of, and symbolized by, the Trademarks; provided that, with respect to any United States intent-to-use trademark applications set forth on Schedule 2 hereto, the transfer of such applications accompanies, pursuant to the Acquisition Agreement, the transfer of Transferor’s business, or portion of the business to which the trademark pertains, and that business is ongoing and existing;

(c)     all websites and internet domain name registrations which are in Transferor’s possession or control as set forth on Schedule 3 hereto (this clause (c), together with clauses (a) and (b), the “ Scheduled IP ”);

(d)     all rights of any kind whatsoever of Transferor accruing under any of the Scheduled IP provided by applicable law of any jurisdiction, by international treaties and conventions and otherwise throughout the world;

(e)     any and all royalties, fees, income, payments and other proceeds now or hereafter due or payable with respect to any and all of the Scheduled IP; and

(f)     any and all claims and causes of action, with respect to any the Scheduled IP, whether accruing before, on and/or after the date hereof, including all rights to and claims for damages, restitution and injunctive and other legal and equitable relief for past, present and future infringement, dilution, misappropriation, violation, misuse, breach or default, with the right but no obligation to sue for such legal and equitable relief and to collect, or otherwise recover, any such damages, except as expressly provided in the Acquisition Agreement.

2.             Recordation and Further Actions . Transferor hereby authorizes the Commissioner for Patents and the Commissioner for Trademarks in the United States Patent and Trademark Office and the officials of corresponding entities or agencies in any applicable jurisdictions to record and register this IP Assignment upon request by Acquiror. Following the date hereof, upon Acquirer’s request, Transferor shall take such steps and actions, and provide such cooperation and assistance to Acquiror and its successors, assigns and legal representatives, including the execution and delivery of any affidavits, declarations, oaths, exhibits, assignments, powers of attorney, or other documents, as may be necessary to effect, evidence or perfect the assignment of the Assigned IP to Acquiror, or any assignee or successor thereto.

3.             Acquisition Agreement . This IP Assignment is subject in all respects to the terms and conditions of the Acquisition Agreement. Nothing contained in this IP Assignment shall be deemed to supersede, modify or amend any of the covenants and agreements of Transferor or Acquiror contained in the Acquisition Agreement, specifically including, without limitation, the definition of “Intellectual Property Assets” set forth therein.

4.             Counterparts . This IP Assignment may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this IP Assignment delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this IP Assignment.

5.            Successors and Assigns . This IP Assignment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.

6.            Governing Law . This IP Assignment and any claim, controversy, dispute or cause of action (whether in contract, tort or otherwise) based upon, arising out of or relating to this IP Assignment and the transactions contemplated hereby shall be governed by, and construed in accordance with, the laws of the United States and the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).

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IN WITNESS WHEREOF, the parties hereto have executed and delivered this IP Assignment as of the date first above written.

Schedule 3

Assigned WEBSITES AND DOMAIN NAME RegistrationS

 Exhibit D

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SACRAMENTO DIVISION

DEFINITIVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE

This Definitive Settlement Agreement and Mutual Release (the “Settlement Agreement”) is entered into as of the date of execution below, by and among Cesca Therapeutics, Inc. (“Cesca”); SynGen Inc., (“SynGen”); PHC Medical, Inc., (“PHC”); and Philip Coelho (“Coelho”).

WHEREAS, on September 9, 2014, Cesca filed an action captioned Cesca Therapeutics Inc. v . SynGen Inc., PHC Medical, Inc., Philip Coelho, Terrence Wolf, Prince Emmanuel, and Does 1 through 10, inclusive , in Case No. 2:14-CV-02085-GEB-KJN in the United States District Court for the Eastern District of California Sacramento Division (the “Litigation”), pursuant to which Cesca alleged breach of contract and misappropriation of trade secrets, among other claims, related to the invention described in U.S. Patent 8,747,289 (the “Patent”), issued June 10, 2014, entitled “System for purifying certain cell populations in blood or bone marrow by depleting others.”

WHEREAS, on July 24, 2015, Cesca filed a motion requesting the court dismiss without prejudice Defendants Terrence Wolf and Prince Emmanuel from the Litigation, who were terminated from the Litigation on September 30, 2015.

WHEREAS, on the date hereof, ThermoGenesis Corporation, a wholly owned subsidiary of Cesca (“ThemoGenesis”), and SynGen entered into an Asset Acquisition Agreement, pursuant to which SynGen assigned and transferred substantially all of its assets to ThermoGenesis and ThermoGenesis assumed certain liabilities of SynGen for consideration of $1,000,000 in cash and a 20% equity interest in ThermoGenesis (the “Acquisition Transaction”).

WHEREAS, in connection with the Acquisition Transaction, the Parties desire to settle fully and finally the Litigation, all differences between them, and to avoid the costs, expenses, uncertainty, and inconvenience of further litigation.

NOW, THEREFORE, intending to be legally bound and in consideration of the mutual promises and covenants contained in this Settlement Agreement, and other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties agree as follows:

Each capitalized term in this Settlement Agreement shall have the meaning set forth in Exhibit A attached hereto.

The Parties agree that each Party shall bear his or its own attorney’s fees and costs during, deriving from, or related to the Litigation.

A.      Mutual Releases: In consideration of (i) the Acquisition Agreement, and as a material inducement thereto, and (ii) Cesca's agreement to dismiss all defendants from the Litigation with prejudice (Article IV, below), the Parties hereby irrevocably and unconditionally release, acquit, waive, relinquish, and discharge all other parties to this Settlement Agreement, and as applicable to non-individual parties, each of their direct and indirect parents, subsidiaries, Affiliates and divisions, including their respective successors, assigns, present and former officers, directors, members, managers, shareholders, partners, principals, employees, servants, agents, contractors, attorneys, insurers, and their respective heirs, executors, administrators, personal representatives, and assigns (the “Released Party” or “Released Parties,” as the context requires) of and from any and all claims, debts, obligations, promises, agreements, liabilities, damages, costs, attorney’s fees, expenses, compensatory damages, liquidated damages, punitive damages, and other compensation, suits, appeals, actions and causes of action, of whatever kind or character, arising prior to or existing as of the execution date of this Settlement Agreement, which any Party has, had, may have, or may claim to have against any of the Released Parties related to the claims asserted in the Litigation, whether known or unknown, in law or equity, under common law or statute, under federal, state, and/or municipal legislation, statutes, or ordinances (all, the “Released Claims”). For the avoidance of doubt, this release is not intended to release any party of its rights and obligations under this Settlement Agreement.

B.      Release of Unknown Claims: Cesca expressly understands, acknowledges, and agrees that this Settlement Agreement includes a waiver and release of unknown claims related to the Litigation. In connection with this Settlement Agreement, Cesca hereby agrees to waive and relinquish any and all rights it has or may have under any applicable laws.

C.      Covenant Not to Sue: Each Party agrees to refrain forever from instituting, commencing, maintaining, pressing, or in any way aiding or proceeding upon any action or other proceeding of any kind related to the Litigation seeking damages against any other Party or Released Party based upon any claim that is released by this Settlement Agreement. Notwithstanding the foregoing, this Article III(C) shall not apply to any claims related to a breach or violation of the Acquisition Transaction.

Within two business days of the consummation of the Acquisition Transaction, Cesca shall file with the court in which this Litigation is pending, a request to dismiss with prejudice the litigation against all defendants to the Litigation. In its request, Cesca shall request the court in which this Litigation is pending to enter an order of dismissal of the Litigation with prejudice.

A.      Complete Agreement & Disclaimer of Other Representations and Reliance: Each Party represents that this Settlement Agreement is the Parties’ complete agreement regarding the terms of the Parties’ settlement, and that no other agreements, understandings, representations, or promises relating to the terms of the Parties’ settlement have been made except as expressly set forth in this Settlement Agreement. The Parties disclaim reliance on any representations relating to the terms of the Parties’ settlement not memorialized in this Settlement Agreement.

B.      Choice of Law: This Settlement Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of California.

C.      Civil Code § 1542 Waiver: The Parties expressly and specifically waive all rights under California Civil Code § 1542 and any similar rights in any state or territory in the United States and any similar statute or regulation of the United States and any of its agencies.

The Parties understand that Section 1542 of the California Civil Code provides as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

Each Party herein acknowledges that it is aware that it may hereafter discover facts different from or in addition to what it now knows or believes to be true with respect to the matters herein released, and it agrees that these releases shall be and remain in effect in all respects as complete general releases as to the matters released, notwithstanding any such different or additional facts. Each Party further acknowledges that it has been informed of Section 1542 of the California Civil Code, and does hereby expressly waive and relinquish all rights and benefits, if any, which it has or may have under said Section and any similar or comparable federal, state or local law. The Parties represent, warrant and agree that this waiver is a material term of this Agreement, without which the Parties would not have entered into this Agreement.

D.      No Admission of Liability: The Parties jointly acknowledge that this Settlement Agreement does not constitute an admission or concession of liability or wrongdoing by any Party, but is intended to facilitate an amicable and final resolution of the Litigation between the Parties as of the date of this Settlement Agreement.

E.      Assumption Of The Risk Of Difference In Fact: Other than the representations and warranties made herein, each of the Parties acknowledges that if the facts with respect to which this Settlement Agreement is executed are found hereafter to be different from what they now believe those facts to be, each expressly accepts and assumes the risk of such possible differences and agrees that this Settlement Agreement shall be, and shall remain, effective, notwithstanding such differences.

F.      Confidentiality: The Parties and their attorneys agree to keep the terms of this Settlement Agreement strictly confidential. No Party, or any of their agents, servants, employees, or attorneys, shall disclose any of the terms or provision of this Settlement Agreement; except that the Parties may discuss this Settlement Agreement with their attorneys, accountants, other advisors, investors and potential acquirers so long as all such attorneys, accountants, other advisors, investors and potential acquirers are bound by substantially similar confidentiality restrictions as the Parties. In addition, either Party may disclose this Settlement Agreement to the extent that it is required to disclose it by or to the courts of any competent jurisdiction, or to any government, regulatory agency or financial authority, provided that such Party informs the other Party as soon as is reasonably practicable; and the other Party’s request and expense seeks to persuade the court, agency or authority to have the Confidential Information treated in a confidential manner, where this is possible under the court, agency or authority’s procedure.

G.      Acknowledgment of Representation by Counsel: Each Party acknowledges that he or it is represented by counsel of its own choosing and that it fully understands its rights and obligations under the Settlement Agreement. Further, each Party declares that he or it has completely read this Settlement Agreement and enters into this Settlement Agreement freely, voluntarily, and without coercion or duress.

H.      Savings Clause: The provisions of this Settlement Agreement are severable. If a court of competent jurisdiction rules that any provision of this Settlement Agreement is invalid or unenforceable, such a ruling will not affect the validity or enforceability of any other provision of this Settlement Agreement, and the Settlement Agreement shall be deemed to be modified and amended so as to be enforceable to the extent permitted by law.

I.      Authority to Settle: Each Party represents, warrants, and covenants that it has full authority to settle, compromise, and release the Released Parties completely from all of the Released Claims herein and to execute this Settlement Agreement. The Parties each represent, warrant, and covenant that their authorized representatives are of legal age and legal competence to execute this Settlement Agreement, that their authorized representatives have full authority to execute this Settlement Agreement and bind their respective principals to its terms, and that their authorized representatives do so of their own free will and accord without reliance on any representation of any kind or character not expressly set forth herein.

J.      Non-Assignment Representation: The Parties each represent, warrant, and covenant that they have not directly or indirectly assigned, pledged, or in any manner sold or transferred any right, title, or interest in any of their respective claims.

K.      Successors and Assigns: This Settlement Agreement shall be binding upon and inure to the benefit of the Parties and their heirs, successors, and assigns.

L.      Modification and Waiver: This Settlement Agreement may be amended or modified only by a written instrument signed by or on behalf of all Parties or their respective successors-in-interest. No provisions or breach of this Settlement Agreement may be waived except by a writing of the Party so waiving that is executed by said Party or Parties. The waiver by any Party of any breach of this Settlement Agreement by another Party shall not be deemed a waiver of any other prior or subsequent breach of this Settlement Agreement.

M.      Notice: Any notice to be provided pursuant to this Settlement Agreement shall be provided as follows:

Notice to SynGen:

SynGen Inc.

100 Howe Avenue #185N

Sacramento CA 95825

Attn: William Gerber 
          Chief Executive Officer

Notice to Cesca:

Cesca Therapeutics, Inc.

2711 Citrus Road

Rancho Cordova, CA 95742

Attn: Robin C. Stracey
          Chief Executive Officer

N.      Headings: The headings herein are used for the purpose of convenience only and shall not be considered in the interpretation or construction of this Settlement Agreement.

O.      Agreement Not to Be Construed Against Drafter: This Settlement Agreement shall not be construed more strictly against one Party than another merely by virtue of the fact that it, or any part of it, may have been prepared by counsel for one of the Parties, it being recognized that this Settlement Agreement is the result of arm’s-length negotiations among the Parties represented by experienced counsel and that all Parties have contributed substantially and materially to the preparation of this Settlement Agreement.

P.      Multiple Counterparts: This Settlement Agreement may be executed in multiple originals and counterparts. Properly executed signature pages, whether they constitute original signature pages, copied signature pages, or facsimile copied signature pages, may be attached to the original Settlement Agreement. Any such copied signature page or facsimile copied signature page attached to the original Settlement Agreement will have the same force and effect as an original signature page.

[Signature Page Follows]

Effective July 7, 2017.

CESCA THERAPEUTICS, INC.

By:                                                                                                          

Printed Name:                                                                                        

Title:                                                                                                        

Date:                                                                                                        

SYNGEN INC.

By:                                                                                                           

Printed Name:                                                                                        

Title:                                                                                                        

Date:                                                                                                       

PHC MEDICAL, INC.

By:                                                                                                           

Printed Name:                                                                                        

Title:                                                                                                        

Date:                                                                                                       

PHILIP COELHO

By:                                                                                                          

Date:                                                                                                       

EXHIBIT A

DEFINITIONS

“Affiliate” shall mean, with respect to party, any person, organization or entity controlling, controlled by or under common control with, such party. For purposes of this definition only, “control” of another person, organization or entity shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the activities, management or policies of such person, organization or entity, whether through the ownership of voting securities, by contract or otherwise. Without limiting the foregoing, control shall be presumed to exist when a person, organization or entity (a) owns or directly controls fifty percent (50%) or more of the outstanding voting stock or other ownership interest of the other organization or entity, or (b) possesses, directly or indirectly, the power to elect or appoint fifty percent (50%) or more of the members of the governing body of the organization or other entity. The parties acknowledge that in the case of certain entities organized under the laws of certain countries outside of the United States, the maximum percentage ownership permitted by law for a foreign investor may be less than fifty percent (50%) and that in such cases such lower percentage shall be substituted in the preceding sentence.

“Cesca” shall have the meaning set forth in the preamble.

“Coelho” shall have the meaning set forth in the preamble.

“Litigation” shall have the meaning set forth in the recitals.

“Parties” or “Party” shall mean the signatories to this Settlement Agreement. The term Party also includes, without limitation, any and all persons who could possibly fit the description of “Does” 1-10 contained in Cesca’s complaint in the Litigation, whether such persons are presently known or unknown.

“Patent” shall have the meaning set forth in the recitals.

“PHC” shall have the meaning set forth in the preamble.

“Release Party” or “Released Parties” has the meaning set forth in Section III(A).

“Released Claims” has the meaning set forth in Section III(A).

“Settlement Agreement” shall have the meaning set forth in the preamble.

“SynGen” shall have the meaning set forth in the preamble.

 Exhibit E

THERMOGENESIS CORP.

VOTING AGREEMENT

THIS VOTING AGREEMENT is made and entered into as of this 7th day of July, 2017 by and among ThermoGenesis Corp., a Delaware corporation (the “ Company ”), each holder of the Company’s Common Stock, $0.001 par value per share (“ Common Stock ”) listed on Schedule A (together with any subsequent investors, or transferees, who become parties hereto as “ Stockholders ” pursuant to Subsections 5.1(a) or 5.2 below, the “ Stockholders ”).

RECITALS

NOW, THEREFORE, the parties agree as follows:

1.1      Size of the Board . Each Stockholder agrees to vote, or cause to be voted, all Shares (as defined below) owned by such Stockholder, or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that the size of the Board shall be set and remain at five (5) directors. For purposes of this Agreement, the term “ Shares ” shall mean and include any securities of the Company the holders of which are entitled to vote for members of the Board, including without limitation, all shares of Common Stock, by whatever name called, now owned or subsequently acquired by a Stockholder, however acquired, whether through stock splits, stock dividends, reclassifications, recapitalizations, similar events or otherwise.

1.2      Board Composition . Each Stockholder agrees to vote, or cause to be voted, all Shares owned by such Stockholder, or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special meeting of stockholders at which an election of directors is held or pursuant to any written consent of the stockholders, the following persons shall be elected to the Board:

(a)      One person designated by Bay City Capital Fund V, L.P. or its Affiliates (the “ Bay City Designee ”), for so long as Bay City Capital or its Affiliates owns at least five percent (5%) of the Company’s outstanding Common Stock, which individual shall initially be Carl Goldfischer.

(b)      Two individuals designated by Cesca Therapeutics Inc. (the “ Cesca Designees ”), which individuals shall initially be Chris Xu and Vivian Liu; provided, however, that Cesca Therapeutics Inc. shall be entitled to designate only one Cesca Designee from and after such time as Cesca Therapeutics Inc., together with its Affiliates, ceases to own at least thirty percent (30%) of the Company’s Common Stock (on an as-converted basis).

(c)      One individual who qualifies as an “independent director” under Rule 5605 of The NASDAQ Marketplace Rules and who is an industry expert, to be designated by Cesca Therapeutics Inc. (“ Cesca ”) as soon as practicable after the date hereof.

(d)      One individual who qualifies as an “independent director” under Rule 5605 of The NASDAQ Marketplace Rules and who is an industry expert, designated by Bay City Capital Fund V, L.P. or its Affiliates as soon as practicable after the date hereof, for so long as Bay City Capital or its Affiliates owns at least five percent (5%) of the Company’s outstanding Common Stock; provided, however, that any replacement for such initial designee shall be subject to the approval of Cesca Therapeutics Inc., which approval will not be unreasonably withheld.

To the extent that any of clauses (a) through (d) above shall not be applicable, any member of the Board who would otherwise have been designated in accordance with the terms thereof shall instead be voted upon by all the stockholders of the Company entitled to vote thereon in accordance with, and pursuant to, the Certificate of Incorporation of the Company, as may be amended, restated or otherwise modified from time to time (the “ Certificate of Incorporation ”).

For purposes of this Agreement, an individual, firm, corporation, partnership, association, limited liability company, trust or any other entity (collectively, a “ Person ”) shall be deemed an “ Affiliate ” of another Person who, directly or indirectly, controls, is controlled by or is under common control with such Person, including, without limitation, any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such Person.

1.3      Failure to Designate a Board Member . In the absence of any designation from the Persons or groups with the right to designate a director as specified above, the director previously designated by them and then serving shall be reelected if still eligible to serve as provided herein.

1.4      Removal of Board Members . Each Stockholder also agrees to vote, or cause to be voted, all Shares owned by such Stockholder, or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that:

(a)      no director elected pursuant to Subsections 1.2 or 1.4 of this Agreement may be removed from office other than for cause unless (i) such removal is directed or approved by the affirmative vote of the Person entitled under Subsection 1.2 to designate that director or (ii) the Person(s) originally entitled to designate or approve such director pursuant to Subsection 1.2 is no longer so entitled to designate or approve such director;

(b)      any vacancies created by the resignation, removal or death of a director elected pursuant to Subsections 1.2 or 1.4 shall be filled pursuant to the provisions of this Section 1 ; and

(c)      upon the request of any party entitled to designate a director as provided in Subsections 1.2(a) , 1.2(b) , 1.2 (c) or 1.2 (d) to remove such director, such director shall be removed.

All Stockholders agree to execute any written consents required to perform the obligations of this Agreement, and the Company agrees at the request of any party entitled to designate directors to call a special meeting of stockholders for the purpose of electing directors.

1.5      No Liability for Election of Recommended Directors . No Stockholder, nor any Affiliate of any Stockholder, shall have any liability as a result of designating a person for election as a director for any act or omission by such designated person in his or her capacity as a director of the Company, nor shall any Stockholder have any liability as a result of voting for any such designee in accordance with the provisions of this Agreement.

1.6    No “Bad Actor” Designees . Each Person with the right to designate or participate in the designation of a director as specified above hereby represents and warrants to the Company that, to such Person’s knowledge, none of the “bad actor” disqualifying events described in Rule 506(d)(1)(i)-(viii) promulgated under the Securities Act of 1933, as amended (the “ Securities Act ”) (each, a “ Disqualification Event ”), is applicable to such Person’s initial designee named above except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Any director designee to whom any Disqualification Event is applicable, except for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable, is hereinafter referred to as a “ Disqualified Designee ”. Each Person with the right to designate or participate in the designation of a director as specified above hereby covenants and agrees (A) not to designate or participate in the designation of any director designee who, to such Person’s knowledge, is a Disqualified Designee and (B) that in the event such Person becomes aware that any individual previously designated by any such Person is or has become a Disqualified Designee, such Person shall as promptly as practicable take such actions as are necessary to remove such Disqualified Designee from the Board and designate a replacement designee who is not a Disqualified Designee.

2.1      Definitions . A “ Sale of the Company ” shall mean either: (a) a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the Company shares representing more than fifty percent (50%) of the outstanding voting power of the Company (a “ Stock Sale ”); or (b) a transaction that qualifies as a “ Deemed Liquidation Event ” as defined in the Certificate of Incorporation.

2.2      Actions to be Taken . In the event that (i) the holders of at least eighty-five percent (85%) of the shares of Common Stock then issued (the “ Selling Stockholders ”) and (ii) the Board of Directors approve a Sale of the Company in writing, specifying that this Section 2 shall apply to such transaction, then each Stockholder and the Company hereby agree:

(a)      if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment to the Certificate of Incorporation required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;

(b)      if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Stockholders to the Person to whom the Selling Stockholders propose to sell their Shares, and, except as permitted in Subsection 2.3 below, on the same terms and conditions as the Selling Stockholders;

(c)      to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Stockholders in order to carry out the terms and provision of this Section 2 , including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;

(d)      not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;

(e)      to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company;

(f)      if the consideration to be paid in exchange for the Shares pursuant to this Section 2 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and

(g)      in the event that the Selling Stockholders, in connection with such Sale of the Company, appoint a stockholder representative (the “ Stockholder Representative ”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative in connection with its service as the Stockholder Representative, absent fraud or willful misconduct.

2.3      Exceptions . Notwithstanding the foregoing, a Stockholder will not be required to comply with Subsection 2.1 above in connection with any proposed Sale of the Company (the “ Proposed Sale ”) unless:

(a)      any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;

(b)      the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders);

(c)      the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; and

(d)      upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, and (ii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Stockholder Shares pursuant to this Subsection 2.3(c) includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Stockholder Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Stockholder Shares.

2.4      Restrictions on Sales of Control of the Company . No Stockholder shall be a party to any Stock Sale unless all holders of Common Stock are allowed to participate in such transaction and the consideration received pursuant to such transaction is allocated among the parties thereto pro rata based on the number of shares of Common Stock held by such parties, unless the holders of at least eighty-five percent (85%) of the Common Stock elect otherwise by written notice given to the Company at least ten (10) days prior to the effective date of any such transaction or series of related transactions.

3.1      Covenants of the Company . The Company agrees to use its best efforts, within the requirements of applicable law, to ensure that the rights granted under this Agreement are effective and that the parties enjoy the benefits of this Agreement. Such actions include, without limitation, the use of the Company’s best efforts to cause the nomination and election of the directors as provided in this Agreement.

3.2      Irrevocable Proxy and Power of Attorney . Each party to this Agreement hereby constitutes and appoints as the proxies of the party and hereby grants a power of attorney to the President of the Company, and a designee of the Selling Stockholders, and each of them, with full power of substitution, with respect to the matters set forth herein, including without limitation, election of persons as members of the Board in accordance with Section 1 hereto and votes regarding any Sale of the Company pursuant to Section 2 hereof, and hereby authorizes each of them to represent and to vote, if and only if the party (i) fails to vote or (ii) attempts to vote (whether by proxy, in person or by written consent) in a manner which is inconsistent with the terms of this Agreement, all of such party’s Shares in favor of the election of persons as members of the Board determined pursuant to and in accordance with the terms and provisions of Section 1 of this Agreement or to take any action necessary to effect a Sale of the Company pursuant to and in accordance with Section 2 of this Agreement. Each of the proxy and power of attorney granted pursuant to the immediately preceding sentence is given in consideration of the agreements and covenants of the Company and the parties in connection with the transactions contemplated by this Agreement and, as such, each is coupled with an interest and shall be irrevocable unless and until this Agreement terminates or expires pursuant to Section 4 hereof. Each party hereto hereby revokes any and all previous proxies or powers of attorney with respect to the Shares and shall not hereafter, unless and until this Agreement terminates or expires pursuant to Section 4 hereof, purport to grant any other proxy or power of attorney with respect to any of the Shares, deposit any of the Shares into a voting trust or enter into any agreement (other than this Agreement), arrangement or understanding with any person, directly or indirectly, to vote, grant any proxy or give instructions with respect to the voting of any of the Shares, in each case, with respect to any of the matters set forth herein.

3.3      Specific Enforcement . Each party acknowledges and agrees that each party hereto will be irreparably damaged in the event any of the provisions of this Agreement are not performed by the parties in accordance with their specific terms or are otherwise breached. Accordingly, it is agreed that each of the Company and the Stockholders shall be entitled to an injunction to prevent breaches of this Agreement, and to specific enforcement of this Agreement and its terms and provisions in any action instituted in any court of the United States or any state having subject matter jurisdiction.

3.4      Remedies Cumulative . All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

4.             Term . This Agreement shall be effective as of the date hereof and shall continue in effect until and shall terminate upon the earliest to occur of (a) a Qualified Public Offering; (b) a Qualified Merger (as such terms are defined in the Investors’ Rights Agreement, of even date herewith, among the Company and each of the investors listed on Schedule A thereto), or (c) the date on which Bay City Capital and its Affiliates, taken together, cease to own at least five percent (5%) of the outstanding shares of Common Stock; provided that the provisions of Section 2 hereof will continue after the closing of any Sale of the Company to the extent necessary to enforce the provisions of Section 2 with respect to such Sale of the Company.

5.1      Additional Parties .

(a)      Notwithstanding anything to the contrary contained herein, if the Company issues additional shares of Common Stock after the date hereof, as a condition to the issuance of such shares the Company shall require that any purchaser of shares of Common Stock become a party to this Agreement by executing and delivering (i) the Adoption Agreement attached to this Agreement as Exhibit A , or (ii) a counterpart signature page hereto agreeing to be bound by and subject to the terms of this Agreement as a Stockholder hereunder. Each such person shall thereafter be deemed a Stockholder for all purposes under this Agreement.

(b)      In the event that after the date of this Agreement, the Company enters into an agreement with any Person to issue shares of capital stock to such Person (other than to a purchaser of Common Stock described in Subsection 5.1(a) above), then, the Company shall cause such Person, as a condition precedent to entering into such agreement, to become a party to this Agreement by executing an Adoption Agreement in the form attached hereto as Exhibit A , agreeing to be bound by and subject to the terms of this Agreement as a Stockholder and thereafter such person shall be deemed a Stockholder for all purposes under this Agreement.

5.2      Transfers . Each transferee or assignee of any Shares subject to this Agreement shall continue to be subject to the terms hereof, and, as a condition precedent to the Company’s recognizing such transfer, each transferee or assignee shall agree in writing to be subject to each of the terms of this Agreement by executing and delivering an Adoption Agreement substantially in the form attached hereto as Exhibit A . Upon the execution and delivery of an Adoption Agreement by any transferee, such transferee shall be deemed to be a party hereto as if such transferee were the transferor and such transferee’s signature appeared on the signature pages of this Agreement and shall be deemed to be a Stockholder. The Company shall not permit the transfer of the Shares subject to this Agreement on its books or issue a new certificate representing any such Shares unless and until such transferee shall have complied with the terms of this Subsection 5.2 . Each certificate representing the Shares subject to this Agreement if issued on or after the date of this Agreement shall be endorsed by the Company with the legend set forth in Subsection 5.12 .

5.3      Successors and Assigns . The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

5.4      Governing Law . This Agreement shall be governed by the internal law of the State of Delaware.

5.5      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. Counterparts may be delivered via facsimile, electronic mail (including pdf) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

5.6      Titles and Subtitles . The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

5.7      Notices . All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or: (a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail or facsimile during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after the business day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their address as set forth on Schedule A hereto, or to such email address, facsimile number or address as subsequently modified by written notice given in accordance with this Subsection 5.7 . If notice is given to the Company, a copy shall also be sent to:

Foley & Lardner LLP

100 North Tampa Street, Suite 2700

Tampa, Florida 33602-5810

Attention: Curt Creely

Email: ccreely@foley.com

Facsimile: (813) 221-4210

and if notice is given to Stockholders, a copy shall also be given to

Stradling Yocca Carlson & Rauth

660 Newport Center Drive, Suite 1600

Newport Beach, CA 92660

Attention: Michael L. Lawhead

Email: mlawhead@sycr.com

Fascimile: (949) 725-5277

5.8      Consent Required to Amend, Terminate or Waive . This Agreement may be amended or terminated and the observance of any term hereof may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a written instrument executed by (a) the Company and (b) the holders of at least eighty-five percent (85%) of the shares of Common Stock issued and outstanding. Notwithstanding the foregoing:

(a)      this Agreement may not be amended or terminated and the observance of any term of this Agreement may not be waived with respect to any Stockholder without the written consent of such Stockholder unless such amendment, termination or waiver applies to all Stockholders, as the case may be, in the same fashion;

(b)      any provision hereof may be waived by the waiving party on such party’s own behalf, without the consent of any other party; and

(c)      Subsections 1.2(a) and 1.2(d)1.2(d) of this Agreement shall not be amended or waived without the written consent of Bay City Capital Fund V, L.P. and Subsections 1.2(b) and 1.2(c) of this Agreement shall not be amended or waived without the written consent of Cesca.

The Company shall give prompt written notice of any amendment, termination or waiver hereunder to any party that did not consent in writing thereto. Any amendment, termination or waiver effected in accordance with this Subsection 5.8 shall be binding on each party and all of such party’s successors and permitted assigns, whether or not any such party, successor or assignee entered into or approved such amendment, termination or waiver. For purposes of this Subsection 5.8 , the requirement of a written instrument may be satisfied in the form of an action by written consent of the Stockholders circulated by the Company and executed by the Stockholder parties specified, whether or not such action by written consent makes explicit reference to the terms of this Agreement.

5.9      Delays or Omissions . No delay or omission to exercise any right, power or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default previously or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

5.10      Severability . The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision.

5.11      Entire Agreement . This Agreement (including the Exhibits hereto), and the Certificate of Incorporation and the other Transaction Documents (as defined in the Acquisition Agreement) constitute the full and entire understanding and agreement between the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly canceled.

5.12      Legend on Share Certificates . Each certificate representing any Shares issued after the date hereof shall be endorsed by the Company with a legend reading substantially as follows:

“THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT, AS MAY BE AMENDED FROM TIME TO TIME, (A COPY OF WHICH MAY BE OBTAINED UPON WRITTEN REQUEST FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF THAT VOTING AGREEMENT, INCLUDING CERTAIN RESTRICTIONS ON TRANSFER AND OWNERSHIP SET FORTH THEREIN.”

The Company, by its execution of this Agreement, agrees that it will cause the certificates evidencing the Shares issued after the date hereof to bear the legend required by this Subsection 5.12 , and it shall supply, free of charge, a copy of this Agreement to any holder of a certificate evidencing Shares upon written request from such holder to the Company at its principal office. The parties to this Agreement do hereby agree that the failure to cause the certificates evidencing the Shares to bear the legend required by this Subsection 5.12 and/or the failure of the Company to supply, free of charge, a copy of this Agreement as provided hereunder shall not affect the validity or enforcement of this Agreement.

5.13      Stock Splits, Stock Dividends, etc . In the event of any issuance of Shares of the Company’s voting securities hereafter to any of the Stockholders (including, without limitation, in connection with any stock split, stock dividend, recapitalization, reorganization, or the like), such Shares shall become subject to this Agreement and shall be endorsed with the legend set forth in Subsection 5.12 .

5.14      Manner of Voting . The voting of Shares pursuant to this Agreement may be effected in person, by proxy, by written consent or in any other manner permitted by applicable law. For the avoidance of doubt, voting of the Shares pursuant to the Agreement need not make explicit reference to the terms of this Agreement.

5.15      Further Assurances . At any time or from time to time after the date hereof, the parties agree to cooperate with each other, and at the request of any other party, to execute and deliver any further instruments or documents and to take all such further action as the other party may reasonably request in order to evidence or effectuate the consummation of the transactions contemplated hereby and to otherwise carry out the intent of the parties hereunder.

5.16      Jurisdiction; Venue . With respect to any disputes arising out of or related to this Agreement, the parties consent to the non-exclusive jurisdiction of, and venue in, the state courts in San Francisco County in the State of California (or in the event of federal jurisdiction, the courts of Northern District of California).

5.17     Costs of Enforcement . If any party to this Agreement seeks to enforce its rights under this Agreement by legal proceedings, the non-prevailing party shall pay all costs and expenses incurred by the prevailing party, including, without limitation, all reasonable attorneys’ fees.

5.18      Aggregation of Stock . All Shares held or acquired by a Stockholder and/or its Affiliates shall be aggregated together for the purpose of determining the availability of any rights under this Agreement, and such Affiliated persons may apportion such rights as among themselves in any manner they deem appropriate.

5.19      Spousal Consent . If any individual Stockholder is married on the date of this Agreement, such Stockholder’s spouse shall execute and deliver to the Company a consent of spouse in the form of Exhibit B hereto (“ Consent of Spouse ”), effective on the date hereof. Notwithstanding the execution and delivery thereof, such consent shall not be deemed to confer or convey to the spouse any rights in such Stockholder’s Shares that do not otherwise exist by operation of law or the agreement of the parties. If any individual Stockholder should marry or remarry subsequent to the date of this Agreement, such Stockholder shall within thirty (30) days thereafter obtain his/her new spouse’s acknowledgement of and consent to the existence and binding effect of all restrictions contained in this Agreement by causing such spouse to execute and deliver a Consent of Spouse acknowledging the restrictions and obligations contained in this Agreement and agreeing and consenting to the same.

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IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first written above.

IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first written above.