EXHIBIT 10.1


 


ASSIGNMENT AND ASSUMPTION AGREEMENT


 


This Assignment
and Assumption Agreement (this “Agreement”) is entered into as of May 5, 2016 (the “Closing
Date”) by and between NUO THERAPEUTICS, INC. (f/k/a Cytomedix, Inc.), a Delaware corporation, with its principal
office at 209A Perry Parkway, Suite 1, Gaithersburg, MD 20877 (the “Assignor”) and DEERFIELD SS, LLC
(the “Assignee”).


 


WHEREAS, the
Assignor is a debtor and debtor-in-possession in Case No. 16-10192 (MFW) pending in the United States Bankruptcy Court for the
District of Delaware (the “Bankruptcy Court”) (captioned “In re: Nuo Therapeutics, Inc.”)
under Chapter 11 of the United States Bankruptcy Code (11 U.S.C. §101, et seq.);


 


WHEREAS, on
April 25, 2016, the Bankruptcy Court entered an Order Granting Final Approval of Disclosure Statement and Confirming Assignor’s
Plan of Reorganization, which confirmed the Assignor’s Modified First Amended Plan of Reorganization under Chapter 11 of
the Bankruptcy Code (as confirmed, the “Plan”);


 


WHEREAS, pursuant
to the Plan, the Assignor agreed to assign to Assignee, as designee of Deerfield Private Design Fund II, L.P., Deerfield Private
Design International II, L.P. and Deerfield Special Situations Fund, L.P., (i) all of Assignor’s rights, title and interest
in and to its existing license agreement with Arthrex, Inc. (the “Arthrex Agreement”), (ii) all associated
intellectual property owned by Assignor and licensed thereunder, and (iii) all royalty and payment rights thereunder (collectively,
the “Assigned Assets”); and


 


WHEREAS, this
Agreement is being executed and delivered in accordance with the Plan.


 


NOW, THEREFORE, pursuant
to the Plan and in consideration of the mutual promises it contains, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:


 


1.          Assignment.
Subject to and in accordance with the terms and conditions of the Plan, effective as of and from the Closing Date, Assignor hereby
transfers, conveys and assigns to Assignee all of its legal, beneficial and other rights, title and interest in and to the Assigned
Assets, free and clear of all Liens.


 


2.          Acceptance
and Assumption. Subject to and in accordance with the terms and conditions of the Plan, effective as of and from the
Closing Date, Assignee hereby (a) accepts the Assignment and (b) agrees to perform all of the Assignor’s obligations
under the Assigned Assets.


 


3.          Patent
Assignment. On the Closing Date Assignor and Assignee shall execute the Patent Assignment attached hereto as Exhibit A.


 


4.          Further
Assurances. From time to time on and after the date hereof, as and when reasonably requested by any party hereto, each
other party will, except as otherwise expressly provided in the Plan, execute, deliver and, if required, record, or cause to be
executed, delivered and, if required, recorded, such further instruments of conveyance, transfer and assumption and take such additional
action as such party may reasonably request to consummate the transactions contemplated by the Plan and this Agreement.


 






     


     


    

 


5.          Amendment.
Except as expressly provided herein, this Agreement may be amended only by a written agreement executed by each of the parties
hereto. The parties agree that any amendment executed in accordance with this section will be binding on the parties, unless otherwise
expressly stated in such amendment.


 


6.          Waiver.
Any term or provision of this Agreement may be waived, or the time for its performance may be extended, by a written waiver executed
by the party or parties giving the waiver. The failure of any party hereto to enforce at any time any provision of this Agreement
shall not be construed to be a waiver of such provision, nor in any way to affect the validity of this Agreement or any part hereof
or the right of any party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall
be held to constitute a waiver of any other or subsequent breach.


 


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


 


8.          Governing
Law. The internal law (and not the law of conflicts) of the State of New York shall govern all questions concerning the construction,
validity and interpretation of this Agreement and the performance of the obligations imposed by this Agreement.


 


9.          Governing
Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the state of Delaware
(i.e., without regard to its conflicts of law rules). All disputes arising out of or related to this Agreement, including, without
limitation, any dispute relating to the interpretation, meaning or effect of any provision hereof, will be resolved in the courts
of competent jurisdiction in the state of Delaware and the parties hereto will each submit to the exclusive jurisdiction of the
such courts for the purposes of adjudicating any such dispute. Any legal action, suit or proceeding arising out of or relating
to this Agreement, each and every agreement and instrument contemplated hereby or the transactions contemplated hereby and thereby
shall be instituted in any Federal court of the state of Delaware


 


10.         Interpretation.
This Agreement is intended to implement the provisions of the Plan, is expressly subject to the terms and conditions thereof, and
shall not be construed to enhance, extend or limit the representations and warranties, rights, obligations or remedies of any party
thereunder.


 


11.         Third
Party Beneficiaries. This Agreement does not create any rights, claims or benefits inuring to any person that is not a party
hereto or establish any third-party beneficiary of any of the obligations of the parties set forth herein.


 


12.         Counterparts.
This Agreement may be executed in multiple counterparts (including by means of telecopied or electronically transmitted signature
pages), all of which taken together shall constitute one and the same Agreement.


 


13.         Descriptive
Headings. The headings to the sections of this Agreement are for convenience of reference and shall not affect the meaning
or interpretation of this Agreement.


 


[Signatures on following page]


 




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IN WITNESS WHEREOF, the parties have caused
this Agreement to be executed and delivered as of the date first above written.


 


	 	ASSIGNOR:
	 	 
	 	NUO THERAPEUTICS, INC.
	 	 	 
	 	By: 	/s/ David
    Jorden
	 	 	Name:  David Jorden
	 	 	Title:  Acting CEO/CFO
	 	 
	 	ASSIGNEE:
	 	 
	 	DEERFIELD SS, LLC
	 	 
	 	By: Deerfield Mgmt, L.P., its Manager
	 	 
	 	By: J.E. Flynn Capital, LLC, its General Partner
	 	 
	 	By: 	/s/ David J. Clark
	 	 	Name: David J. Clark
	 	 	Title: Authorized Signatory


 






     


     


    

 


Exhibit A


Patent Assignment