UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): January 27, 2016
AMARANTUS BIOSCIENCE HOLDINGS, INC.
(Exact name of registrant as specified
in its charter)
Nevada |
|
000-55016 |
|
26-0690857 |
(State or other jurisdiction of
incorporation or organization) |
|
(Commission File Number) |
|
IRS Employer
Identification No.) |
655 Montgomery Street, Suite 900
San Francisco, CA |
|
94111 |
(Address of Principal Executive Offices) |
|
(Zip Code) |
(408) 737-2734
(Registrant’s telephone number,
including area code)
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities Act
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item
1.01 Entry Into a Material Definitive Agreement.
On
January 27, 2016, Amarantus BioScience Holdings, Inc. (the “Company”) entered into a Securities Purchase Agreement
(the “Series H SPA”) with an accredited investor for the sale of 1,166.666 (including 10% OID) shares of the Company’s
12% Series H Preferred Stock (the “Series H Preferred Stock”) and a warrant to purchase 495,833 shares of common stock
(the “RD Warrant” and together with the Series H Preferred Stock, the “Securities”) in a registered direct
offering (the “RD Offering”), subject to customary closing conditions. The gross proceeds to the Company from
the RD Offering were $1,000,000. Each share of Series H Preferred Stock has a stated value of $1,000 and is convertible into shares
of common stock at an initial conversion price of the lower of (i) $2.50, subject to adjustment and (ii) 75%, subject to
adjustment, of the lowest volume weighted average price, or VWAP, during the fifteen (15) Trading Days immediately prior to the
date a conversion notice is sent to the Company by a holder, at any time at the option of the holder.
The
RD Warrant is exercisable at any time on or after the earlier to occur of (i) all shares of common stock underlying the RD Warrant
are registered for resale under the Securities Act of 1933, and (ii) the date six (6) months from January 27, 2016 (the earlier
to occur of (i) and (ii), the “Initial Exercise Date”) and on or prior to the close of business on the five-year anniversary
of the Initial Exercise Date at an exercise price of $2.00 per share.
The
Securities were issued pursuant to a prospectus supplement dated January 28, 2016 filed with the Securities and Exchange Commission
on January 28, 2016, in connection with a takedown from the Registration Statement on Form S-3 (File No. 333-203845),
which was declared effective by the SEC on May 22, 2015.
In
addition, the Company and certain of its investors agreed to a leak-out agreement dated January 27, 2016 pursuant to which the
investors agreed to certain trading restrictions with respect to its holdings of preferred stock and convertible notes of the
Company until March 12, 2016.
The
Company also entered into repurchase agreements dated January 27, 2016 with two of its institutional investors pursuant to which
the Company agreed to repurchase an aggregate 496.031746 shares of Series H Preferred Stock
and 496.031746 shares of Series E Preferred Stock each at a price of $750,000 in 3 tranches in February 2016. Concurrently therewith,
the Company has entered into an agreement with International Infusion LLC to provide funding of up to $1,500,000 to be used solely
to repurchase such shares of Series H Preferred Stock.
Item
8.01 Other Items.
On
January 27, 2016, the Company issued a press release announcing the closing of a $1M investment from an investor introduced to
the Company by International Infusion, LLC A copy of the Company’s press release is furnished as Exhibit 99.1 to this
Current Report on Form 8-K.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
Exhibit
No. |
|
Description |
|
|
|
10.1 |
|
Form
of Securities Purchase Agreement |
|
|
|
10.2 |
|
Form
of Leak-Out Agreement dated January 27, 2016 between the Company and the holders of the Company’s Series E Convertible
Preferred Stock, Series H Convertible Preferred Stock and Five Year Common Stock Purchase Warrants. |
|
|
|
10.3 |
|
Form
of Stock Repurchase Agreement dated January 27, 2016. |
|
|
|
10.4 |
|
Form
of Stock Repurchase Agreement dated January 27, 2016. |
|
|
|
99.1 |
|
Amarantus
Bioscience Holdings, Inc. Press Release, dated January 27, 2016. |
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
|
AMARANTUS
BIOSCIENCE HOLDINGS, INC. |
|
|
|
Date:
January 28, 2016 |
By: |
/s/
Gerald E. Commissiong |
|
Name:
|
Gerald
E. Commissiong |
|
Title: |
Chief
Executive Officer |
3
Exhibit
10.1
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”) is dated as of January 27, 2016, by and among Amarantus BioScience
Holdings, Inc., a Nevada corporation (the “Company”), and each purchaser identified on the signature pages
hereto (each, including its successors and assigns, a “Purchaser” and collectively, the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant an effective registration statement under the Securities
Act of 1933, as amended (the “Securities Act”), the Company desires to issue and sell to each Purchaser, and
each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the Company as more fully described
in this Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE
I.
DEFINITIONS
1.1
Definitions. In addition to the terms defined elsewhere in this Agreement: (a) capitalized terms that are not otherwise
defined herein have the meanings given to such terms in the Certificate of Designation (as defined herein), and (b) the following
terms have the meanings set forth in this Section 1.1:
“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.7.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common
control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Alternative
Conversion Price” has the meaning set forth in the Certificate of Designation.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or
any day on which banking institutions in the State of New York are authorized or required by law or other governmental action
to close.
“Certificate
of Designation” means the Certificate of Designation for the 12% Series H Convertible Preferred Stock of the Company
filed by the Company with the Secretary of State of Nevada on September 30, 2015.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable
parties thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and
(ii) the Company’s obligations to deliver the Securities, in each case, have been satisfied or waived, but in no event
later than the third Trading Day following the date hereof.
“Closing
Statement” means the Closing Statement in the form on Annex A attached hereto.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which
such securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to
acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument
that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive,
Common Stock.
“Company
Counsel” means Sichenzia Ross Friedman Ference LLP, with offices located at 61 Broadway, 32nd floor, New
York, New York 10006.
“Conversion
Shares” means, collectively, the shares of Common Stock issuable upon conversion of the shares of Preferred Stock in
accordance with the terms Certificate of Designation.
“Disclosure
Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(r).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock, options or other equity awards (including, without
limitation, restricted awards) to employees, officers or directors of the Company pursuant to any stock or option plan duly adopted
for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee
of non-employee directors established for such purpose, (b) securities upon the exercise or exchange of or conversion of
any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock
issued and outstanding on the date of this Agreement, provided that such securities have not been amended since June 1,
2015 to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities,
financings, commercial property lease transactions or similar transactions, (c) securities issued to (or securities issued upon
exercise conversion of exchange of Common Stock Equivalents issued to any such persons), Delafield Investments Limited, a company
organized under the laws of the British Virgin Islands (“Delafield”), and/or Dominion Holdings, LLC (“Dominion”),
or (d) strategic transactions, which are approved by a majority of the disinterested directors of the Company, provided that
any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries,
an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the
Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is
issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities
and provided further that the Purchasers have each provided their written consent to each such issuance.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“FDA”
shall have the meaning ascribed to such term in Section 3.1(gg).
“FDCA”
shall have the meaning ascribed to such term in Section 3.1(gg).
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(aa).
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(o).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3.1(m).
“Maximum
Rate” shall have the meaning ascribed to such term in Section 5.17.
“Participation
Maximum” shall have the meaning ascribed to such term in Section 4.12(a).
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Pre-Notice”
shall have the meaning ascribed to such term in Section 4.12(c).
“Preferred
Stock” means the up to 10,000 shares of the Company’s Series H 12% Convertible Preferred Stock issued and/or issuable
hereunder having the rights, preferences and privileges set forth in the Certificate of Designation.
“Pro
Rata Portion” shall have the meaning ascribed to such term in Section 4.12(e).
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
“Prospectus”
means the prospectus contained in the Registration Statement at the time the Registration Statement became effective, as amended
or supplemented prior to the date hereof.
“Prospectus
Supplement” means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that is filed with
the Commission in connection with the transactions contemplated by the Transaction Documents and delivered by the Company to each
Purchaser at the Closing.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.10.
“Registration
Statement” means the effective registration statement with the Commission file No. 333-203845 which registers the sale
of the Preferred Stock, Warrants and Underlying Shares.
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Required
Minimum” means, as of any date, the sum of (I) the product of (i) 300%, multiplied by, (ii) the quotient obtained by
dividing (A) the sum of (1) the Stated Value of all issued and outstanding Preferred Stock (2), all dividends due on the issued
and outstanding Preferred Stock (whether or not accrued), and (3) all fees and expenses including, but not limited to, Late Fees
and liquidated damages owed related to the issued and outstanding Preferred Stock, by (B), the lower of (1) the Conversion Price
on the Closing Date, and (2) in the event that the average closing bid price of the Common Stock on the Trading Market for the
5 Trading Days prior to the determination date is below the Conversion Price, the Alternative Conversion Price, plus (II) the
product of (i) 300%, multiplied by (ii) the quotient obtained by dividing (A) the maximum number of Warrant Shares issuable upon
exercise of the Warrants, by (B) the lowest of (1) the Exercise Price on the Closing Date, and (2) if the average closing bid
price of the Common Stock on the Trading Market for the 5 Trading Days prior to the determination date is lower than the Exercise
Price, the Alternative Conversation Price. The Company shall be required to calculate the Required Minimum on the first Trading
Day of each month that the Preferred Stock is outstanding and provide such calculation to the Purchasers and the Transfer Agent
promptly. In calculating the Required Minimum all adjustments set forth in Section 7 of the Certificate of Designation, and Section
3 of the Warrants, shall be taken into account, but all limitations on conversion and/or exercise shall be ignored including,
but not limited to, Beneficial Ownership Limitations, and assuming all Preferred Stock will remain outstanding for 18 months following
the Closing Date.
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose
and effect as such Rule.
“Rule
424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose
and effect as such Rule.
“SEC
Reports” shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
means the Preferred Stock, the Warrants and the Underlying Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Share
Authorization Failure” shall have the meaning ascribed to such term in Section 4.11(b).
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall
not be deemed to include the location and/or reservation of borrowable shares of Common Stock).
“Stated
Value” means $1,000 per share of Preferred Stock.
“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for the Preferred Stock and Warrants purchased
hereunder as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription
Amount,” in United States dollars and in immediately available funds.
“Subsidiary”
means, with respect to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock
or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power
only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such Person. Schedule 3.1(a) lists all of the Subsidiaries of the Company.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock (or any other common stock of any
other Person that references the Trading Market for its common stock) is listed or quoted for trading on the date in question:
the OTC Bulletin Board, The NASDAQ Global Market, The NASDAQ Global Select Market, The NASDAQ Capital Market, the New York Stock
Exchange, NYSE Arca, the NYSE MKT, or the OTCQX Marketplace, the OTCQB Marketplace, the OTCPink Marketplace or any other tier
operated by OTC Markets Group Inc. (or any successor to any of the foregoing).
“Transaction
Documents” means this Agreement, the Certificate of Designation, the Warrants, all exhibits and schedules thereto and
hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette
Place, Woodmere, New York 11598, and a facsimile number of (646) 536-3179, and any successor transfer agent of the Company.
“Underlying
Shares” means the Conversion Shares and the Warrant Shares.
“Variable
Rate Transaction” shall have the meaning ascribed to such term in Section 4.13(b).
“VWAP”
means, for or as of any date, the dollar volume-weighted average price for such security on the Trading Market (or, if the Trading
Market is not the principal trading market for such security, then on the principal securities exchange or securities market on
which such security is then traded) during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New
York time, as reported by Bloomberg through its “HP” function (set to weighted average) or, if the foregoing does
not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin
board for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time,
as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours,
the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as
reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the VWAP cannot be calculated
for such security on such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market
value as mutually determined by the Company and the Holder. All such determinations shall be appropriately adjusted for any stock
dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
“Warrants”
means, collectively, the Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a)
hereof, which Warrants shall be exercisable upon issuance and have a term of exercise equal to five years from the initial exercise
date, in the form of Exhibit B attached hereto.
“Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Warrants.
ARTICLE
II.
PURCHASE
AND SALE
2.1
Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with
the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally
and not jointly, agree to purchase (i) up to an aggregate of $1,111,111 (which includes 10% of original issue discount) Stated
Value of shares of Preferred Stock with an aggregate Stated Value for each Purchaser equal to such Purchaser’s Subscription
Amount as set forth on the signature page hereto executed by such Purchaser, and (ii) Warrants as determined pursuant to Section 2.2(a).
Each Purchaser shall deliver to the Company, via wire transfer, immediately available funds equal to its Subscription Amount,
and the Company shall deliver to each Purchaser its respective shares of Preferred Stock and Warrants, as determined pursuant
to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable
at the Closing. Upon satisfaction or waiver of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall
occur at the offices of Sichenzia Ross or such other location as the parties shall mutually agree. The Company covenants that,
if the Purchaser delivers a Notice of Conversion (as defined in the Certificate of Designation) to convert any shares of Preferred
Stock between the date hereof and the Closing Date, the Company shall deliver Conversion Shares to the Purchaser on the Closing
Date in connection with such Notice of Conversion.
2.2
Deliveries.
(a)
On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:
(i)
this Agreement duly executed by the Company;
(ii)
a legal opinion of Company Counsel, substantially in the form of Exhibit A attached hereto;
(iii)
a certificate evidencing a number of shares of Preferred Stock equal to such Purchaser’s Subscription Amount divided by
the Stated Value, registered in the name of such Purchaser;
(iv)
a Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 85% of such Purchaser’s
Conversion Shares on the date hereof, with an exercise price equal to $2.00, subject to adjustment therein; and
(v)
the Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).
(b)
On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:
(i)
this Agreement duly executed by such Purchaser; and
(ii)
such Purchaser’s Subscription Amount by wire transfer to the account specified in writing by the Company.
2.3
Closing Conditions.
(a)
The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i)
the accuracy in all material respects on the Closing Date of the representations and warranties of the Purchasers contained herein
(unless as of a specific date therein in which case they shall be accurate as of such date);
(ii)
all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have
been performed; and
(iii)
the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b)
The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions
being met:
(i)
the accuracy in all material respects when made and on the Closing Date of the representations and warranties of the Company contained
herein (unless as of a specific date therein);
(ii)
all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been
performed;
(iii)
the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv)
there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v)
from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s
principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg
L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are
reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States
or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national
or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in
each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the
Closing;
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1
Representations and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules
shall be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained
in the corresponding section of the Disclosure Schedules, the Company hereby makes the following representations and warranties
to each Purchaser:
(a)
Subsidiaries. All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a). The Company
owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens,
and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable
and free of preemptive and similar rights to subscribe for or purchase securities.
(b)
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite
power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the
Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation,
bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business
and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted
or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as
the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity
or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business,
prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material
adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction
Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been instituted
in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
(c)
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company
and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action
on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders
in connection herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction
Document to which it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in
accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights
generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
(d)
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents,
the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby to which
it is a party do not and will not: (i) conflict with or violate any provision of the Company’s or any Subsidiary’s
certificate or articles of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute
a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any
Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the
Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or
other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and
state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected;
except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material
Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of,
give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority
or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other
than: (i) the filings required pursuant to Section 4.6 of this Agreement, (ii) the filing with the Commission of
the Prospectus Supplement and (iii) the notice and/or application(s) to each applicable Trading Market for the issuance and
sale of the Securities and the listing of the Underlying Shares for trading thereon in the time and manner required thereby (collectively,
the “Required Approvals”).
(f)
Issuance of the Securities; Registration. The Securities are duly authorized and, when issued and paid for in accordance
with the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all
Liens imposed by the Company. The Underlying Shares, when issued in accordance with the terms of the Transaction Documents, will
be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved
from its duly authorized capital stock a number of shares of Common Stock for issuance of the Underlying Shares at least equal
to the Required Minimum on the date hereof. The Company has prepared and filed the Registration Statement in conformity with the
requirements of the Securities Act, which became effective on May 22, 2015 (the “Effective Date”), including
the Prospectus, and such amendments and supplements thereto as may have been required to the date of this Agreement. The Registration
Statement is effective under the Securities Act and no stop pending or preventing the use of the Prospectus has been issued by
the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened by
the Commission. The Company, if required by the rules and regulations of the Commission, shall file the Prospectus with the Commission
pursuant to Rule 424(b). At the time the Registration Statement and any amendments thereto became effective, at the date of this
Agreement and at the Closing Date, the Registration Statement and any amendments thereto conformed and will conform in all material
respects to the requirements of the Securities Act and did not and will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and
the Prospectus and any amendments or supplements thereto, at time the Prospectus or any amendment or supplement thereto was issued
and at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities Act and did
not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading.
(g)
Capitalization. The Company’s capitalization is as set forth on Schedule 3.1(g). The Company has not issued
any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of
equity awards under the Company’s equity incentive plans, the issuance of shares of Common Stock to employees pursuant to
the Company’s equity incentive plans, pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding
as of the date of the most recently filed periodic report under the Exchange Act, and as set forth on Schedule 3.1(g).
No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the
transactions contemplated by the Transaction Documents, except for such rights that have been waived or complied with. Except
as a result of the purchase and sale of the Securities or as set forth on Schedule 3.1(g), there are no outstanding options,
warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or
obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire any
shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or
may become bound to issue additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Securities
will not obligate the Company to issue shares of Common Stock or other securities to any Person (other than the Purchasers) and
will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under
any of such securities. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully
paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding
shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further
approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Securities.
Except as set forth on Schedule 3.1(g), there are no stockholders agreements, voting agreements or other similar agreements
with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between
or among any of the Company’s stockholders.
(h)
SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents
required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or
15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation
to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein,
together with the Prospectus and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”)
on a timely basis (except for its Form 10-K for the year ended December 31, 2013) or has received a valid extension of such time
of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the
SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable,
and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects
with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the
time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles
applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in
such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required
by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as
of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal, immaterial, year-end audit adjustments.
(i)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements
included within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof and
as set forth in Schedule 3.1(i): (i) there has been no event, occurrence or development that has had or that could reasonably
be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise)
other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice
and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed
in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has
not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made
any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity securities
to any officer, director or Affiliate, except pursuant to existing Company equity incentive plans. The Company does not have pending
before the Commission any request for confidential treatment of information. Except for the issuance of the Securities contemplated
by this Agreement, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably
expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, properties, operations,
assets or financial condition, that would be required to be disclosed by the Company under applicable securities laws at the time
this representation is made or deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that
this representation is made.
(j)
Litigation. There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge
of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by
any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability
of any of the Transaction Documents or the Securities or (ii) could, if there were an unfavorable decision, have or reasonably
be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor, to the knowledge of the Company,
any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under
federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company,
there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director
or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration
statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
(k)
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its
Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company or such
Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company
and its Subsidiaries believe that their relationships with their employees are good. To the knowledge of the Company, no executive
officer of the Company or any Subsidiary, is, or is now expected to be, in violation of any material term of any employment contract,
confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement
or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer does not
subject the Company or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and
its Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment
and employment practices, terms and conditions of employment and wages and hours, except where the failure to be in compliance
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(l)
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred
that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary
under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation
of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any
of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment,
decree or order of any court, arbitrator or other governmental authority or (iii) is or has been in violation of any statute,
rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state and local
laws relating to taxes, environmental protection, occupational health and safety, product quality and safety and employment and
labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect.
(m)
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described
in the SEC Reports, except where the failure to possess such permits could not reasonably be expected to result in a Material
Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any Material Permit.
(n)
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned
by them and good and marketable title in all personal property owned by them that is material to the business of the Company and
the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of
such property and do not materially interfere with the use made and proposed to be made of such property by the Company and the
Subsidiaries and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made
in accordance with GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities
held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which
the Company and the Subsidiaries are in compliance, except for any failures to comply as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
(o)
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual
property rights and similar rights as described in the SEC Reports as necessary or required for use in connection with their respective
businesses and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property
Rights”). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any
of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned,
within two (2) years from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date
of the latest audited financial statements included within the SEC Reports, a written notice of a claim or otherwise has any knowledge
that the Intellectual Property Rights violate or infringe upon the rights of any Person, except as could not have or reasonably
be expected to not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are
enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company and
its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual
properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(p)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries
are engaged, including, but not limited to, directors and officers insurance coverage at least equal to the aggregate Subscription
Amount. Neither the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue
its business without a significant increase in cost.
(q)
Transactions with Affiliates and Employees. Except as set forth in the SEC Reports, none of the officers or directors of
the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is
presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental
of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring
payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer,
director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner,
in each case in excess of $120,000 other than for: (i) payment of salary or consulting fees for services rendered, (ii) reimbursement
for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option or other equity
award agreements under any equity incentive plan of the Company.
(r)
Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in compliance in all material respects
with any and all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and
all applicable rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as
of the Closing Date. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide
reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to
maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or
specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established disclosure
controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed
such disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports it files
or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s
rules and forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures
of the Company and the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange
Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under
the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures
based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control
over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially
affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.
(s)
Certain Fees. Except as set forth in the Prospectus Supplement, no brokerage or finder’s fees or commissions are
or will be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Purchasers shall
have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a
type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents.
(t)
Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities,
will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940,
as amended. The Company shall conduct its business in a manner so that it will not become an “investment company”
subject to registration under the Investment Company Act of 1940, as amended.
(u)
Registration Rights. Except for the Registration Rights Agreement dated on September 30, 2015, by and among, the Company,
Dominion and Delafield and those set forth on Schedule 3.1(u), no Person has any right to cause the Company or any Subsidiary
to effect the registration under the Securities Act of any securities of the Company or any Subsidiary.
(v)
Listing, Etc. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company
has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the
Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating
such registration. The Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on
which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or
maintenance requirements of such Trading Market. Except as set forth on Schedule 3.1(v), the Company is, and has no reason
to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements.
The Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established clearing
corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing
corporation) in connection with such electronic transfer.
(w)
Application of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in
order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under
a rights agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar
charter documents) or the laws of its state of incorporation that is or could become applicable to the Purchasers as a result
of the Purchasers and the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including
without limitation as a result of the Company’s issuance of the Securities and the Purchasers’ ownership of the Securities.
(x)
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or
their agents or counsel with any information that it believes constitutes or might constitute material, non-public information
which is not otherwise disclosed in the Prospectus Supplement. The Company understands and confirms that the Purchasers will rely
on the foregoing representation in effecting transactions in securities of the Company. All of the disclosure furnished by or
on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries, their respective businesses and the transactions
contemplated hereby, including the Disclosure Schedules to this Agreement, is true and correct and does not contain any untrue
statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading. The press releases disseminated by the Company during the twelve
months preceding the date of this Agreement taken as a whole, and in light of disclosures in the SEC Reports, do not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were made and when made, not misleading. The Company acknowledges
and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in Section 3.2 hereof.
(y)
No Aggregated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2,
neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made
any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering
of the Securities to be aggregated with prior offerings by the Company for purposes of any applicable stockholder approval provisions
of any Trading Market on which any of the securities of the Company are listed or designated.
(z)
Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the
receipt by the Company of the proceeds from the sale of the Securities hereunder: (i) the fair saleable value of the Company’s
assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities
(including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small
capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account
the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements
and capital availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company
would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient
to pay all amounts on or in respect of its liabilities when such amounts are required to be paid. The Company does not intend
to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable
on or in respect of its debt). The Company has no knowledge of any facts or circumstances which lead it to believe that it will
file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the
Closing Date. Schedule 3.1(z) sets forth as of the date hereof all outstanding secured and unsecured Indebtedness of the
Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness”
means (x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred
in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness
of others, whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes
thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the
ordinary course of business; and (z) the present value of any lease payments in excess of $50,000 due under leases required
to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
(aa)
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state
and local income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which
it is subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown
or determined to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably
adequate for the payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the
officers of the Company or of any Subsidiary know of no basis for any such claim.
(bb)
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary,
any agent or other person acting on behalf of the Company or any Subsidiary, has: (i) directly or indirectly, used any funds
for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity,
(ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political
parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary
(or made by any person acting on its behalf of which the Company is aware) which is in violation of law or (iv) violated
in any material respect any provision of FCPA.
(cc)
Accountants. The Company’s accounting firm is set forth in the SEC Reports. To the knowledge and belief of the Company,
such accounting firm: (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express
its opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending
December 31, 2014.
(dd)
Acknowledgment Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the
Purchasers is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the
transactions contemplated thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary
of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby
and any advice given by any Purchaser or any of their respective representatives or agents in connection with the Transaction
Documents and the transactions contemplated thereby is merely incidental to the Purchasers’ purchase of the Securities.
The Company further represents to each Purchaser that the Company’s decision to enter into this Agreement and the other
Transaction Documents has been based solely on the independent evaluation of the transactions contemplated hereby by the Company
and its representatives.
(ee)
Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary
notwithstanding (except for Sections 3.2(e) and 4.15 hereof), it is understood and acknowledged by the Company that: (i) none
of the Purchasers has been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling,
long and/or short, securities of the Company, or “derivative” securities based on securities issued by the Company
or to hold the Securities for any specified term, (ii) past or future open market or other transactions by any Purchaser,
specifically including, without limitation, Short Sales or “derivative” transactions, before or after the closing
of this or future private placement transactions, may negatively impact the market price of the Company’s publicly-traded
securities, (iii) any Purchaser, and counter-parties in “derivative” transactions to which any such Purchaser
is a party, directly or indirectly, may presently have a “short” position in the Common Stock and (iv) each Purchaser
shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative”
transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage in hedging activities
at various times during the period that the Securities are outstanding, including, without limitation, during the periods that
the value of the Underlying Shares deliverable with respect to Securities are being determined, and (z) such hedging activities
(if any) could reduce the value of the existing stockholders’ equity interests in the Company at and after the time that
the hedging activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute
a breach of any of the Transaction Documents.
(ff)
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken,
directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or paid any compensation
for soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting
another to purchase any other securities of the Company, other than, in the case of clauses (ii) and (iii), compensation
paid to the Company’s placement agent in connection with the placement of the Securities.
(gg)
FDA. As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”)
under the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is
manufactured, packaged, labeled, tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such
product, a “Pharmaceutical Product”), such Pharmaceutical Product is being manufactured, packaged, labeled,
tested, distributed, sold and/or marketed by the Company in compliance with all applicable requirements under FDCA and similar
laws, rules and regulations relating to registration, investigational use, premarket clearance, licensure, or application approval,
good manufacturing practices, good laboratory practices, good clinical practices, product listing, quotas, labeling, advertising,
record keeping and filing of reports, except where the failure to be in compliance would not have a Material Adverse Effect. There
is no pending, completed or, to the Company’s knowledge, threatened, action (including any lawsuit, arbitration, or legal
or administrative or regulatory proceeding, charge, complaint, or investigation) against the Company or any of its Subsidiaries,
and none of the Company or any of its Subsidiaries has received any notice, warning letter or other communication from the FDA
or any other governmental entity, which (i) contests the premarket clearance, licensure, registration, or approval of, the
uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling and promotion of
any Pharmaceutical Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws
or orders the withdrawal of advertising or sales promotional materials relating to, any Pharmaceutical Product, (iii) imposes
a clinical hold on any clinical investigation by the Company or any of its Subsidiaries, (iv) enjoins production at any facility
of the Company or any of its Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction
with the Company or any of its Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by
the Company or any of its Subsidiaries, and which, either individually or in the aggregate, would have a Material Adverse Effect.
The properties, business and operations of the Company have been and are being conducted in all material respects in accordance
with all applicable laws, rules and regulations of the FDA. Except as set forth on Schedule 3.1(gg), the Company has not
been informed by the FDA that the FDA will prohibit the marketing, sale, license or use in the United States of any product proposed
to be developed, produced or marketed by the Company nor has the FDA expressed any concern as to approving or clearing for marketing
any product being developed or proposed to be developed by the Company.
(hh)
Stock Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i) in
accordance with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the
fair market value of the Common Stock on the date such stock option would be considered granted under GAAP and applicable law.
No stock option granted under the Company’s stock option plan has been backdated. The Company has not knowingly granted,
and there is no and has been no Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly
coordinate the grant of stock options with, the release or other public announcement of material information regarding the Company
or its Subsidiaries or their financial results or prospects.
(ii)
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director,
officer, agent, employee or affiliate of the Company is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(jj)
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation
within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon
Purchaser’s request.
(kk)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding
Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve
System (the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls,
directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five
percent or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
Neither the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies
of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
(ll)
Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money
Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body
or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge
of the Company or any Subsidiary, threatened.
3.2
Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents
and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein):
(a)
Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership,
limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by the
Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction
Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized
by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser.
Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser
in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against
it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar
as indemnification and contribution provisions may be limited by applicable law. Such Purchaser’s execution, delivery and
performance of this Agreement and the other Transaction Documents and the consummation by it of the transactions contemplated
hereby and thereby to which it is a party do not and will not: (x) conflict with or violate any provision of such Purchaser’s
certificate or articles of incorporation, bylaws or other organizational or charter documents, (ii) conflict with or result
in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or government
authority to which the Purchaser is subject (including federal and state securities laws and regulations), or by which any property
or asset of the Purchaser is bound or affected.
(b)
Understandings or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no
direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Securities
(this representation and warranty not limiting such Purchaser’s right to sell the Securities pursuant to the Registration
Statement or otherwise in compliance with applicable federal and state securities laws). Such Purchaser is acquiring the Securities
hereunder in the ordinary course of its business.
(c)
Purchaser Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on
each date on which it exercises any Warrants or converts any shares of Preferred Stock it will be an “accredited investor”
as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act.
(d)
Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication
and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment
in the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk
of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment. Such Purchaser
understands that nothing in the Transaction Documents or any other materials presented to such Purchaser in connection with the
purchase and sale of the Securities constitutes legal, tax or investment advice
(e)
Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser
has not directly or indirectly, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, executed
any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time
that such Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company
setting forth the material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof.
Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the
investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the representation
set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment
decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement, such Purchaser
has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence
and terms of this transaction). Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute
a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing
of, available shares to borrow in order to effect Short Sales or similar transactions in the future.
The
Company acknowledges and agrees that the representations contained in Section 3.2 shall not modify, amend or affect such
Purchaser’s right to rely on the Company’s representations and warranties contained in this Agreement or any representations
and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection
with this Agreement or the consummation of the transaction contemplated hereby.
ARTICLE
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1
Underlying Shares. The Conversion Shares shall be issued free of legends. If all or any portion of a Warrant is exercised
at a time when there is an effective registration statement to cover the issuance or resale of the Warrant Shares or if the Warrant
is exercised via cashless exercise, the Warrant Shares issued pursuant to any such exercise shall be issued free of all legends.
If at any time following the date hereof the Registration Statement (or any subsequent registration statement registering the
sale or resale of the Warrant Shares) is not effective or is not otherwise available for the sale or resale of the Warrant Shares,
the Company shall immediately notify the holders of the Warrants in writing that such registration statement is not then effective
and thereafter shall promptly notify such holders when the registration statement is effective again and available for the sale
or resale of the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company
to issue, or any Purchaser to sell, any of the Warrant Shares in compliance with applicable federal and state securities laws).
The Company shall use commercially reasonable best efforts to keep a registration statement (including the Registration Statement)
registering the issuance or resale of the Warrant Shares effective during the term of the Warrants.
4.2
Acknowledgment of Dilution. The Company acknowledges that the issuance of the Securities may result in dilution of the
outstanding shares of Common Stock, which dilution may be substantial under certain market conditions. The Company further acknowledges
that its obligations under the Transaction Documents, including, without limitation, its obligation to issue the Underlying Shares
pursuant to the Transaction Documents, are unconditional and absolute and not subject to any right of set off, counterclaim, delay
or reduction, regardless of the effect of any such dilution or any claim the Company may have against any Purchaser and regardless
of the dilutive effect that such issuance may have on the ownership of the other stockholders of the Company.
4.3
Furnishing of Information; Public Information. Until the earliest of the time that (i) no Purchaser owns Securities
or (ii) the Warrants have expired, the Company covenants to maintain the registration of the Common Stock under Section 12(b)
or 12(g) of the Exchange Act and to timely file (or obtain extensions in respect thereof and file within the applicable grace
period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act even if the Company
is not then subject to the reporting requirements of the Exchange Act.
4.4
Aggregation. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in Section 2 of the Securities Act) that would be aggregated with the offer or sale of the Securities
for purposes of the rules and regulations of any Trading Market such that it would require stockholder approval prior to the closing
of such other transaction unless stockholder approval is obtained before the closing of such subsequent transaction.
4.5
Conversion and Exercise Procedures. Each of the form of Notice of Exercise included in the Warrants and the form of Notice
of Conversion included in the Certificate of Designation set forth the totality of the procedures required of the Purchasers in
order to exercise the Warrants or convert the Preferred Stock. Without limiting the preceding sentences, no ink-original Notice
of Exercise or Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization)
of any Notice of Exercise or Notice of Conversion form be required in order to exercise the Warrants or convert the Preferred
Stock.
No
additional legal opinion, other information or instructions shall be required of the Purchasers to exercise their Warrants or
convert their Preferred Stock. The Company shall honor exercises of the Warrants and conversions of the Preferred Stock and shall
deliver Underlying Shares in accordance with the terms, conditions and time periods set forth in the Transaction Documents.
4.6
Securities Laws Disclosure; Publicity. (1) No later than 9:30 AM New York Time on the Trading Day after the Closing of
the transactions contemplated hereby, the Company shall issue a Current Report on Form 8-K (the “Current Report”)
disclosing the material terms of the transactions contemplated hereby, and including the Transaction Documents required to be
included in such Current Report as exhibits thereto, within the time required by the Exchange Act. From and after the issuance
of the Current Report, the Company represents to the Purchasers that the Company shall have publicly disclosed all material, non-public
information delivered to the Purchasers as of such time by the Company, or any of its respective officers, directors, employees
or agents in connection with the transactions contemplated by the Transaction Documents. The Company shall afford the Purchasers
and its counsel with a reasonable opportunity to review and comment upon, shall consult with the Purchasers and its counsel on
the form and substance of, and shall give due consideration to all such comments from the Purchasers and its counsel on, any press
release, SEC filing or any other public disclosure made by or on behalf of the Company relating to the Purchasers, the Transaction
Documents and/or the transactions contemplated by any of the Transaction Documents, prior to the issuance, filing or public disclosure
thereof, and the Company shall not issue, file or publicly disclose any such information to which the Purchasers shall reasonably
object, unless required by law. For the avoidance of doubt, the Company shall not be required to submit for review any such disclosure
contained in periodic reports filed with the SEC under the Exchange Act if it shall have previously provided the same disclosure
for review in connection with a previous filing.
(2) The
Company confirms that neither it nor any other person acting on its behalf shall provide the Purchasers or their agents or counsel
with any information that constitutes or might constitute material, non-public information, unless a simultaneous public announcement
thereof is made by the Company in the manner contemplated by Regulation FD. In the event of a breach of the foregoing covenant
by the Company or any person acting on its behalf (as determined in the reasonable good faith judgment of the Purchasers), in
addition to any other remedy provided herein or in the other Transaction Documents, if any Purchaser is holding any securities
of the Company at the time of the disclosure of material, non-public information, any Purchaser shall have the right to make a
public disclosure, in the form of a press release, public advertisement or otherwise, of such material, non-public information
without the prior approval by the Company; provided the Purchaser shall have first provided notice to the Company that it believes
it has received information that constitutes material, non-public information, the Company shall have 48 hours publicly to disclose
such material, non-public information prior to any such disclosure by the Purchaser or demonstrate to the Purchasers in writing
why such information does not constitute material, non-public information, and (assuming the Purchasers and Purchasers’
counsel disagree with the Company’s determination) the Company shall have failed to publicly disclose such material, non-public
information within such time period. The Purchasers shall not have any liability to the Company, any of its Subsidiaries, or any
of their respective directors, officers, employees, stockholders or agents, for any such disclosure. The Company understands and
confirms that the Purchasers shall be relying on the foregoing covenants and obligations in effecting transactions in securities
of the Company.
4.7
Stockholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other
Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison
pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter
adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue
of receiving Securities under the Transaction Documents or under any other agreement between the Company and the Purchasers.
4.8
Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the
Transaction Documents, the Company covenants and agrees that neither it, nor any other Person acting on its behalf, will provide
any Purchaser or its agents or counsel with any information that the Company believes constitutes material non-public information,
unless prior thereto such Purchaser shall have entered into a written agreement with the Company regarding the confidentiality
and use of such information. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant
in effecting transactions in securities of the Company.
4.9
Use of Proceeds. Except as set forth on Schedule 4.9 attached hereto, the Company shall use the net proceeds from
the sale of the Securities hereunder for working capital purposes and shall not use such proceeds: (a) for the satisfaction
of any portion of the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s
business and prior practices), (b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement
of any outstanding litigation or (d) in violation of FCPA or OFAC regulations.
4.10
Indemnification of Purchasers. Subject to the provisions of this Section 4.10, the Company will indemnify and hold
each Purchaser and its directors, officers, stockholders, members, partners, employees and agents (and any other Persons with
a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each
Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act), and the directors, officers, stockholders, agents, members, partners or employees (and any other Persons with a functionally
equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons
(each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies,
damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’
fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach
of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction
Documents or (b) any action instituted against Purchaser Parties in any capacity, or any of them or their respective Affiliates,
by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated
by the Transaction Documents (unless such action is based upon a breach of such Purchaser Party’s representations, warranties
or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder
or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which constitutes
fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect
of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing,
and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the
Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent
that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed
after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable
opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser
Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel.
The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected
without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent,
but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of
the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction
Documents. The indemnification required by this Section 4.10 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained
herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any
liabilities the Company may be subject to pursuant to law.
4.11
Reservation and Listing of Securities.
(a)
The Company shall maintain a reserve from its duly authorized shares of Common Stock for issuance pursuant to the Transaction
Documents in such amount as may then be required to fulfill its obligations in full under the Transaction Documents.
(b)
If, on any date, the number of authorized but unissued (and otherwise unreserved) shares of Common Stock is less than the Required
Minimum on such date (“Share Authorization Failure”), then the Board of Directors shall use commercially reasonable
efforts to amend the Company’s certificate or articles of incorporation to increase the number of authorized but unissued
shares of Common Stock to at least the Required Minimum at such time, as soon as possible and in any event not later than the
75th day after such date. In the event a Purchaser holds both shares of Preferred Stock and Warrants at a time when there exists
a Share Authorization Failure, such Purchaser (or its permitted assigns) shall have the right to re-allocate any available shares
reserved for such issuances among the Conversion Shares and Warrant Shares by notice to the Company.
(c)
The Company shall, if applicable: (i) in the time and manner required by the principal Trading Market, prepare and file with
such Trading Market an additional shares listing application covering a number of shares of Common Stock at least equal to the
Required Minimum on the date of such application, (ii) take all steps necessary to cause such shares of Common Stock to be
approved for listing or quotation on such Trading Market as soon as possible thereafter, (iii) provide to the Purchasers
evidence of such listing or quotation and (iv) maintain the listing or quotation of such Common Stock on any date at least
equal to the Required Minimum on such date on such Trading Market or another Trading Market. The Company agrees to maintain the
eligibility of the Common Stock for electronic transfer through the Depository Trust Company or another established clearing corporation,
including, without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing corporation
in connection with such electronic transfer. In addition, the Company shall use best efforts to obtain a quorum and shareholder
approval for all proposals to be voted upon at the 2015 Meeting. In the event the Company is unable to obtain a quorum and have
all proposals approved at the 2015 Meeting, the Company shall call a meeting every 45 days thereafter to until the earlier of
the date all proposals for the 2015 Meeting are approved by the required vote of the Company’s stockholders Upon approval
of the Amendment by the stockholders of the Company, the Company shall its best efforts to file the Amendment with the State of
Nevada as soon as practicable but in any event within 3 days following such approval by the stockholders.
4.12
Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered
or paid to any Person to amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration
is also offered to all of the parties to this Agreement. For clarification purposes, this provision constitutes a separate right
granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat
the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect
to the purchase, disposition or voting of Securities or otherwise.
4.13
Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants
that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or
sales, including Short Sales, of any of the Company’s securities during the period commencing with the execution of this
Agreement and ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to
the initial press release as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers,
covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant
to the initial press release as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence
and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding
the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and
agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions
in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced
pursuant to the initial press release as described in Section 4.6, (ii) no Purchaser shall be restricted or prohibited
from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after
the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release
as described in Section 4.6 and (iii) no Purchaser shall have any duty of confidentiality to the Company or its Subsidiaries
after the issuance of the initial press release as described in Section 4.6. Notwithstanding the foregoing, in the case
of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such
Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio
managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect
to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered
by this Agreement.
ARTICLE
V.
MISCELLANEOUS
5.1
Termination. This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder
only and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the
other parties, if the Closing has not been consummated on or before January 31, 2016; provided, however, that such
termination will not affect the right of any party to sue for any breach by any other party (or parties).
5.2
Fees and Expenses. At the Closing, the Company shall pay and/or reimburse the Purchasers for all of the non-accountable
sum of its legal fees and expenses. The Company shall deliver to each Purchaser, prior to the Closing, a completed and executed
copy of the Closing Statement, attached hereto as Annex A. Except as expressly set forth in the Transaction Documents to
the contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and
all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this
Agreement. The Company shall pay all Transfer Agent fees (including, without limitation, any fees required for same-day processing
of any instruction letter delivered by the Company and any conversion or exercise notice delivered by a Purchaser), stamp taxes
and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers.
5.3
Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Prospectus and the Prospectus
Supplement, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede
all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been
merged into such documents, exhibits and schedules.
5.4
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall
be in writing and shall be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number or email address as set forth on the signature pages attached
hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile number or email address as set forth on the signature
pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the
second (2 nd ) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier
service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices
and communications shall be as set forth on the signature pages attached hereto.
5.5
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written
instrument signed, in the case of an amendment, by the Company and the Purchasers who purchased at least 80% in interest of the
Securities based on the initial Subscription Amounts hereunder or, in the case of a waiver, by the party against whom enforcement
of any such waived provision is sought. No waiver of any default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any
manner impair the exercise of any such right.
5.6
Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed
to limit or affect any of the provisions hereof.
5.7
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors
and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written
consent of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any
Person to whom such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound,
with respect to the transferred Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8
No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors
and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as
otherwise set forth in Section 4.10.
5.9
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents
shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard
to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a
party hereto or its respective affiliates, directors, officers, stockholders, partners, members, employees or agents) shall be
commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to
the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including
with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert
in any action, suit or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such
suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under
this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either
party shall commence an action or proceeding to enforce any provisions of the Transaction Documents, then, in addition to the
obligations of the Company under Section 4.10, the prevailing party in such action, suit or proceeding shall be reimbursed
by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
5.10
Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.
5.11
Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other
party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof.
5.12
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use
their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention
of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any
of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13
Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar
provisions of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under
a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided, then
such Purchaser may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant
notice, demand or election in whole or in part without prejudice to its future actions and rights; provided, however,
that in the case of a rescission of a conversion of the Preferred Stock or exercise of a Warrant, the applicable Purchaser shall
be required to return any shares of Common Stock subject to any such rescinded conversion or exercise notice concurrently with
the return to such Purchaser of the aggregate exercise price paid to the Company for such shares and the restoration of such Purchaser’s
right to acquire such shares pursuant to such Purchaser’s Warrant (including, issuance of a replacement warrant certificate
evidencing such restored right).
5.14
Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation),
or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory
to the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances
shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement
Securities.
5.15
Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of
damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The
parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations
contained in the Transaction Documents and hereby agree to waive and not to assert in any action for specific performance of any
such obligation the defense that a remedy at law would be adequate.
5.16
Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction
Document or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement
or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered
from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other
Person under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of
action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.
5.17
Usury. To the extent it may lawfully do so, the Company hereby agrees not to insist upon or plead or in any manner whatsoever
claim, and will resist any and all efforts to be compelled to take the benefit or advantage of, usury laws wherever enacted, now
or at any time hereafter in force, in connection with any claim, action or proceeding that may be brought by any Purchaser in
order to enforce any right or remedy under any Transaction Document. Notwithstanding any provision to the contrary contained in
any Transaction Document, it is expressly agreed and provided that the total liability of the Company under the Transaction Documents
for payments in the nature of interest shall not exceed the maximum lawful rate authorized under applicable law (the “Maximum
Rate”), and, without limiting the foregoing, in no event shall any rate of interest or default interest, or both of
them, when aggregated with any other sums in the nature of interest that the Company may be obligated to pay under the Transaction
Documents exceed such Maximum Rate. It is agreed that if the maximum contract rate of interest allowed by law and applicable to
the Transaction Documents is increased or decreased by statute or any official governmental action subsequent to the date hereof,
the new maximum contract rate of interest allowed by law will be the Maximum Rate applicable to the Transaction Documents from
the Closing Date thereof forward, unless such application is precluded by applicable law. If under any circumstances whatsoever,
interest in excess of the Maximum Rate is paid by the Company to any Purchaser with respect to indebtedness evidenced by the Transaction
Documents, such excess shall be applied by such Purchaser to the unpaid principal balance of any such indebtedness or be refunded
to the Company, the manner of handling such excess to be at such Purchaser’s election.
5.18
Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction
Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way
for the performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained
herein or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed
to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption
that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated
by the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its rights, including, without
limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary
for any other Purchaser to be joined as an additional party in any proceeding for such purpose. Each Purchaser has been represented
by its own separate legal counsel in its review and negotiation of the Transaction Documents. The Company has elected to provide
all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it was required
or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in this Agreement
and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and the Purchasers
collectively and not between and among the Purchasers.
5.19
Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under
the Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated
damages and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial
liquidated damages or other amounts are due and payable shall have been canceled.
5.20
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next
succeeding Business Day.
5.21
Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity
to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to
be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments
thereto. In addition, each and every reference to share prices and shares of Common Stock in any Transaction Document shall be
subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions
of the Common Stock that occur after the date of this Agreement.
5.22WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES
EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY
AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
AMARANTUS
BIOSCIENCE HOLDINGS, INC. |
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Address
for Notice: |
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By: |
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Fax: |
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Name: |
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Email: |
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With
a copy to (which shall not constitute notice):
Sichenzia
Ross Friedman Ference LLP
61
Broadway, 32nd Floor
New
York, NY 10006
Attn:
Jeffrey Fessler, Esq.
Fax:
(212) 930-9725
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGES TO AMARANTUS BIOSCIENCE HOLDINGS, INC. SECURITIES
PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Purchaser: _________________________________________________________________________________________________
Signature of Authorized Signatory of Purchaser: __________________________________________________________________________
Name of Authorized Signatory: ________________________________________________________________________________________
Title of Authorized Signatory: _________________________________________________________________________________________
Email Address of Authorized Signatory: _________________________________________________________________________________
Facsimile Number of Authorized Signatory: ______________________________________________________________________________
Address for Notice to Purchaser:
Address
for Delivery of Securities to Purchaser (if not same as address for notice):
Subscription
Amount: $____________ Stated Value (which
includes 10% OID)
Shares
of Preferred Stock:
Warrant
Shares:
EIN
Number:
[SIGNATURE
PAGES CONTINUE]
Annex
A
CLOSING
STATEMENT
Pursuant
to the attached Securities Purchase Agreement, dated as of the date hereof, the purchasers shall purchase up to $_______ Stated
Value of Preferred Stock and Warrants to purchase shares of common stock of and from Amarantus BioScience Holdings, Inc., a Nevada
corporation (the “Company”). All funds will be wired into an account maintained by the Company. All funds will
be disbursed in accordance with this Closing Statement.
Disbursement
Date: January __, 2016
I. PURCHASE PRICE | |
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Gross Proceeds to be Received | |
$ | | |
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II. DISBURSEMENTS | |
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$ | | |
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Total Amount Disbursed: | |
$ | | |
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WIRE INSTRUCTIONS: | |
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To: _____________________________________
To: _____________________________________
Exhibit
A
Form
of Company Legal Opinion
Exhibit
B
Form
of Warrant
Schedule
3.1(a)
List
of Subsidiaries
Schedule
3.1 (g)
Capitalization
Schedule
3.1 (i)
Material,
Changes, Etc.
Schedule
3.1 (u)
Registration
Rights
Name
of Person |
Shares
of Common Stock being Registered |
Schedule
3.1 (v)
Listing
Etc.
Schedule
3.1 (z)
Indebtedness,
Etc.
Schedule
3.1 (gg)
FDA
Schedule
4.9
Use
of Proceeds
36
Exhibit
10.2
LEAK-OUT
AGREEMENT
THIS
LEAK-OUT AGREEMENT (the “Agreement”) is made and entered into as of the 27th day of January 2016,
between Amarantus Bioscience Holdings, Inc.,
a Nevada corporation (the “Company”) and the holders (the “Holders” and each a “Holder”)
of the Company’s issued and outstanding Series E Convertible Preferred Stock and Series H Convertible Preferred Stock (collectively,
the “Preferred Stock”), 12% Senior Secured Convertible Promissory Notes, due September 29, 2016 (the “Notes”)
or five year Common Stock Purchase Warrants (the “Warrants” and together with the Preferred Stock and Notes,
the “Securities”) and
RECITALS
WHEREAS,
each of the Securities provide the Holders with the right to receive shares of the Company’s common stock, par value $0.001
of the Company (the “Common Stock”) through the conversion or exercise of the Notes, Preferred Stock or Warrants;
and
WHEREAS,
the Company and the Holders agree to enter into this Agreement in order to provide for the orderly conversion, exercise and sale
of the Securities; and
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants contained herein, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1.
Representations and Warranties. Each of the parties hereto, by their respective execution and delivery of this Agreement,
hereby represents and warrants to the others and to all third party beneficiaries of this Agreement that: (a) such party has the
full right, capacity and authority to enter into, deliver and perform its respective obligations under this Agreement, (b) this
Agreement has been duly executed and delivered by such party and is the binding and enforceable obligation of such party, enforceable
against such party in accordance with the terms of this Agreement, and (c) the execution, delivery and performance of such party’s
obligations under this Agreement will not conflict with or breach the terms of any other agreement, contract, commitment or understanding
to which such party is a party or to which the assets or securities of such party are bound.
2.
Leak Out.
(a)
Except as otherwise expressly provided herein, and subject to any other restrictions prohibiting the conversion, offer, sale or
transfer of the shares of Common Stock under applicable United States federal or state securities laws, rules and regulations
(collectively, the “Regulations”), the Company and the Holders agree that:
(i)
Commencing the date of this Agreement, subject to any applicable Regulations, each Holder, as applicable, shall be entitled to
convert the Note or Preferred Stock or exercise the Warrant and sell the underlying shares, in accordance with the restrictions
contained on Schedule A (the “Leak Out”). The Leak Out will remain in effect until March 12, 2016, unless
otherwise expressly extended in writing by the Holders (the “Leak Out Period”), at which time the Holders shall
no longer be subject to the Leak Out restrictions, and shall be entitled to convert and exercise the Securities, as the Holders
in their sole discretion may determine.
(ii)
Upon a breach of any representation, warranty or covenant of the Company pursuant to this Agreement, the Company shall be entitled
to a two (2) day cure period (the “Cure Period”). During the Cure Period the Holders shall no longer be subject to
the Leak Out restrictions until such time as the Company provides written notification and demonstrable proof that such breach
has been cured. If such breach is not cured to the satisfaction of any of the Holders during the Cure Period, any of the Holders
may submit written notification of such breach to the Company and the Holders shall no longer be subject to the Leak Out restrictions,
subject to any applicable Regulations.
(iii)
If at any time the payment schedule as set forth
in Schedule B with respect to Dustin Johns is not met, the Company shall provide written notification of non-payment and Dustin
Johns shall be entitled to effect payment within the Cure Period. If Dustin John does not pay the amount payable that is due pursuant
to Schedule B during such Cure Period, Dustin Johns agrees not to sell any Common Stock of the Company for 30 calendar days from
the date of the missed payment and all other Holders will no longer be subject to the Leak Out restrictions.
(iv)
The Company shall facilitate any conversion notice or exercise notice received from the Holders, and shall cause to be issued
such shares, as contained in such conversion notice or exercise notice, on a timely basis, as provided for in the respective Security.
3.
Securities Laws Disclosure; Publicity. The Company shall (a) by 9:30 a.m. (New York City time) on the trading day immediately
following the date hereof, issue a press release disclosing the material terms of the transactions contemplated hereby, and (b)
file a Current Report on Form 8-K, including the transaction documents as exhibits thereto, with the Commission within the time
required by the Securities Exchange Act of 1934, as amended.
4.
Conflict. In the event there is a conflict between the terms of any of the Securities with this Agreement, the terms of
this Agreement shall control any interpretation; provided, however, that, unless this Agreement expressly amends or supplements
the language of the respective Security, the Security shall remain in full force and effect.
5.
Remedies. Each Holder shall have the right
to specifically enforce all of the obligations of the Company under this Agreement (without posting a bond or other security)
and the obligations of the other Holder, in addition to recovering damages by reason of any breach by either the Company or the
other Holder of any provision of this Agreement and to exercise all other rights granted by law and/or any of the documents related
to the acquisition of the Securities by the Holder. The Company shall have the right to
request statements and/or any transaction or trading records from any Holder at any time during the term of this Agreement which
shall be delivered to counsel to the Company promptly within one (1) trading day. In the event that a Holder is found to have
intentionally violated its obligations under this Agreement, such Holder will be precluded from trading for a period of ten (10)
trading days (the “Standstill Period”) and the Company shall not be required to honor any conversions, conversion
notices, or exercise notices during such Standstill Period.
6.
Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things,
and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may request
in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.
7.
Notices. All notices, instructions or other communications required or permitted to be given pursuant to this Agreement
shall be given in writing and delivered by facsimile, certified mail, return receipt requested or overnight courier by a nationally
recognized courier service to the respective address as set forth in the Note. All notices shall be deemed to be given on the
same day if delivered by facsimile, on the following business day if sent by overnight delivery or on the third business day following
the date of mailing.
8.
Entire Agreement. Except for the Letter Agreement and/or otherwise provided herein, this Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter hereof, and may not be amended except by a written instrument
executed by the parties hereto. This Agreement
supersedes any prior agreement (including, without limitation any prior lock-up or leak-out agreements), representation or understanding
with respect to such subject matter.
9.
Governing Law. This Agreement and the
terms and conditions set forth herein, shall be governed by and construed solely and exclusively in accordance with the internal
laws of the State of New York without regard to the conflicts of laws principles thereof. The parties hereto hereby expressly
and irrevocably agree that any suit or proceeding arising directly and/or indirectly pursuant to or under this Agreement shall
be brought solely in a federal or state court located in the City, County and State of New York. By its execution hereof, the
parties hereto covenant and irrevocably submit to the in personam jurisdiction of the federal and state courts located in the
City, County and State of New York and agree that any process in any such action may be served upon any of them personally, or
by certified mail or registered mail upon them or their agent, return receipt requested, with the same full force and effect as
if personally served upon them in New York, New York. The parties hereto expressly and irrevocably waive any claim that any such
jurisdiction is not a convenient forum for any such suit or proceeding and any defense or lack of in personam jurisdiction with
respect thereto. In the event of any such action or proceeding, the party prevailing therein shall be entitled to payment from
the other parties hereto of all of its reasonable counsel fees and disbursements.
10.
Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other
party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered
by facsimile transmission or by e-mail delivery of a “pdf” format data file, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof.
11.
Severability. In the event any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason
and in any respect, such invalidity, illegality, or unenforceability shall in no event affect, prejudice or disturb the validity
of the remainder of this Agreement, which shall remain in full force and effect, enforceable in accordance with its terms.
12.
Termination of Leak-Out. In the event that the Preferred Stock in not repurchased by the Company in accordance with those
certain Stock Repurchase Agreements dated as of even date herewith, then this Agreement shall be deemed null and void.
13.
Increase of Share Reserve. In connection with the Securities, the Company shall increase its share reserve to 70,000,000
shares of the Company’s Common Stock.
14.
Effectiveness. This Agreement shall become effective immediately upon the full execution of this Agreement by the Company
and the Holders.
15.
Records Request. Each Holder shall have the right to request statements and/or any transaction or trading records from
the Company at any time during the term of this Agreement which shall be delivered to the applicable Holder promptly within one
(1) trading day.
[Signature
page follows]
IN
WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement as of the day and year first above written.
HOLDERS: |
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AMARANTUS
BIOSCIENCE HOLDINGS, INC. |
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Schedule
A
Notwithstanding
anything to the contrary provided in this Schedule A, the Leak-Out Agreement (the “LOA”) that this Schedule
A is attached to and/or otherwise, all numbers below (as applicable) shall be adjusted for forward and reverse stock splits and
similar transactions effecting all holders of Common Stock equally.
Each
Holder may sell shares underlying the Securities per the following schedule:
| 1) | If
the Company’s Common Stock is trading below $0.09 per share, there are no restrictions
on trading. |
| | |
| 2) | If
the Company’s Common Stock is trading at or above $0.09 per share and below $1.25
per share: |
| a) | From
January 27, 2016 to February 1, 2016 – Other than the conversion permitted below,
none of the Preferred Stock, Warrants and Notes held by the Holders may be converted,
exercised, transferred or sold. |
| | |
| b) | At
any time after February 1, 2016 – Each of _______ and _________ can convert or
exercise Preferred Stock, Notes or Warrants and receive but not sell up to 1,000,000
shares of Common Stock each (the “Converted Shares”). |
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| c) | After
February 5, 2016 – Each of _____ and _______ can sell up to (i) 500,000 of the
Converted Shares without volume restriction at or above $0.16 per share and (ii) up to
an additional 500,000 of the Converted Shares at or above $0.45 per share. |
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| d) | After
February 22, 2016 – Any of the remaining Converted Shares can be sold by each of
_______ and ______ without volume restriction at or above $0.16 per share |
| 3) | If
the Company’s Common Stock is trading above $1.25 per share, there are no restrictions
on sales. |
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| 4) | Notwithstanding
the restrictions contained in item 2 above, in the event the aggregate dollar volume
of trading in Company Common Stock as measured beginning February 1, 2016 exceeds $8
million, each of the Holders can trade no more than 10% of the average daily dollar volume
without restriction at or above $0.16 per share. |
Schedule
B
$1,000,000
Monday January 27, 2016
$500,000
Monday February 15, 2016
$500,000
Monday February 29, 2016
Exhibit 10.3
STOCK
REPURCHASE AGREEMENT
THIS
STOCK REPURCHASE AGREEMENT (this “Agreement”) is entered into as of January 27, 2016 by and between Amarantus Bioscience
Holdings, Inc., a Nevada corporation (the “Company”), and _______ (the “Selling Stockholder”).
Recitals
WHEREAS,
the Selling Stockholder beneficially owns an aggregate of 2,631.556
shares of the Company’s Series H Preferred Stock (the “Series H Preferred”);
WHEREAS,
the Selling Stockholder desires to sell to the Company, and the Company desires to repurchase from the Selling Stockholder, an
aggregate of 496.031746 shares
of Series H Preferred (the “Shares”) at a price of $750,000 (the aggregate price for the Shares, the “Purchase
Price”), upon the terms and subject to the conditions set forth in this Agreement (the “Repurchase”); and
NOW,
THEREFORE, in consideration of the mutual covenants herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the undersigned hereby agree as follows:
Agreement
1. Repurchase.
(a)
Purchase and Sale. At the Closings (as defined below), the Company hereby agrees to repurchase from the Selling Stockholder,
and the Selling Stockholder hereby agrees to sell and deliver, or cause to be delivered, to the Company the Shares. The purchase
will occur in three (3) tranches, with the first tranche of $125,000 being on February 8, 2016 (the “First Closing”).
The second tranche will be for $250,000 and will occur on February 15, 2016 (the “Second Closing”). The third tranche
will be for $375,000 and will occur on February 29, 2016 (the “Third Closing”; the First Closing, the Second Closing,
and the Third Closing, collectively, the “Closings” and each a “Closing”). The Selling Stockholder shall
not be required to sell any of the Shares at
each Closing unless payment is made by the Company. In the event that a payment is not made at any Closing, then at the option
of the Selling Stockholder, this Agreement may be deemed null and void as well as any related agreements, including, but not limited
to, the Leak-Out Agreement (as defined below) at the end of the Cure Period, as defined in the Leak-Out Agreement. The Company
acknowledges that the Shares are being repurchased at a price equal to the product of a) 135% multiplied by b) the sum of (i)
the Stated Value and (ii) all accrued but unpaid dividends (the product of which shall herein be referred to as the “Repurchase
Premium”). Notwithstanding the foregoing, the Company may at any time accelerate the repayment schedule with
no additional penalty beyond the Repurchase Premium.
(b)
Closings. Subject to the terms and conditions of this Agreement and the delivery of the deliverables contemplated by Section 1(c)
of this Agreement, each Closing of the sale of the Shares will take place on the dates set forth in Section 1(a), via the exchange
of deliverables, or such other time, date or place as shall be agreed upon by the parties.
(c)
Closing Deliveries and Actions. At each Closing, the Company shall deliver to the Selling Stockholder by wire transfer,
in accordance with written instructions to be provided by the Selling Stockholder in immediately available funds in an amount
equal to the applicable purchase price as set forth in Section 1(a). Additionally, upon
execution of this Agreement the Selling Stockholder shall execute a Leak-Out Agreement (the “Leak-Out Agreement) that shall
restrict sales of the Company’s common stock as set forth therein.
(d)
Other Payments. The Company agrees to pay all stamp, stock transfer and similar duties, if any, in connection with the
Repurchase.
2. Representations
of the Company. The Company represents and warrants to the Selling Stockholder that:
(a)
The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada.
(b)
The Company has the full power and authority to execute, deliver and carry out the terms and provisions of this Agreement and
to consummate the transactions contemplated hereby, and has taken all necessary action to authorize the execution, delivery and
performance of this Agreement.
(c)
This Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that (i) such
enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect affecting creditors’ rights generally and (ii) the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to certain equitable defenses and to the discretion of the court before which any proceedings
thereof may be brought. The execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby,
have been approved by the Company’s Board of Directors.
(d)
The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with,
result in the breach of any of the terms or conditions of, constitute a default under or violate, accelerate or permit the acceleration
of any other similar right of any other party under, its Articles of Incorporation or Bylaws of the Company, any law, rule or
regulation or any agreement, lease, mortgage, note, bond, indenture, license or other document or undertaking, to which the Company
is a party or by which the Company or its properties may be bound, nor will such execution, delivery and consummation violate
any order, writ, injunction or decree of any federal, state, local or foreign court, administrative agency or governmental or
regulatory authority or body (each, an “Authority”) to which the Company or any of its properties is subject, the
effect of any of which, either individually or in the aggregate, would have, or reasonably be expected to have, a material adverse
effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries,
taken as a whole or materially impact the Company’s ability to consummate the transactions contemplated by this Agreement
(a “Material Adverse Effect”); and no consent, approval, authorization, order, registration or qualification of or
with any such Authority is required for the consummation by the Company of the transactions contemplated by this Agreement, except
such consents, approvals, authorizations and orders as would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(e)
The Company acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by
or on behalf of the Selling Stockholder, whether or not any such representations, warranties or statements were made in writing
or orally, except as expressly set forth for the benefit of the Company in this Agreement.
(f)
The Company further agrees and acknowledges that all representations and warranties in those certain Securities Purchase Agreements
dated September 30, 2015, October 15, 2015, October 23, 2015, and November 12, 2015 (the “Purchase Agreements”) by
and between the Company and the Selling Stockholder remain in full force and effect notwithstanding anything in this Agreement.
3. Representations
of the Selling Stockholder. The Selling Stockholder represents and warrant to the Company that:
(a)
The Selling Stockholder is a corporation duly organized, validly existing and in good standing under the laws of the British Virgin
Islands.
(b)
The Selling Stockholder has the full power and authority to execute, deliver and carry out the terms and provisions of this Agreement
and consummate the transactions contemplated hereby, and has taken all necessary action to authorize the execution, delivery and
performance of this Agreement.
(c)
This Agreement has been duly and validly authorized, executed and delivered by the Selling Stockholder, and constitutes a legal,
valid and binding agreement of the Selling Stockholder, enforceable against the Selling Stockholder in accordance with its terms,
except to the extent that (i) such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting creditors’ rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to certain equitable defenses and to the discretion
of the court before which any proceedings therefor may be brought.
(d)
The sale of the Shares to be sold by the Selling Stockholder hereunder and the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with, result in the breach of any of the terms or conditions
of, constitute a default under or violate, accelerate or permit the acceleration of any other similar right of any other party
under, the articles of incorporation, bylaws or any other governing organizational document of the Selling Stockholder, any law,
rule or regulation, or any agreement, lease, mortgage, note, bond, indenture, license or other document or undertaking, to which
the Selling Stockholder is a party or by which the Selling Stockholder or its properties may be bound, nor will such execution,
delivery and consummation violate any order, writ, injunction or decree of any Authority to which the Selling Stockholder or any
of its properties is subject, the effect of any of which, either individually or in the aggregate, would affect the validity of
the Shares to be sold by the Selling Stockholder or reasonably be expected to materially impact the Selling Stockholder; ability
to perform its obligations under this Agreement; and no consent, approval, authorization, order, registration or qualification
of or with any such Authority is required for the performance by the Selling Stockholder of its obligations under this Agreement
and the consummation by the Selling Stockholder of the transactions contemplated by this Agreement in connection with the Shares
to be sold by the Selling Stockholder hereunder, except such consents, approvals, authorizations and orders as would not, individually
or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Stockholder’s ability to consummate
the transactions contemplated by this Agreement.
(e)
The Selling Stockholder has, and immediately prior to the delivery of the Shares to the Company at each Closing, the Selling Stockholder
will have, valid and unencumbered title to the Shares to be sold by the Selling Stockholder hereunder at such time of delivery.
(f)
The Selling Stockholder has such knowledge and experience in financial and business matters that it is capable of evaluating the
merits and risks of the proposed sale of the Shares to the Company and that it has made an independent decision to sell the Shares
to the Company based on the Selling Stockholder’s knowledge about the Company and its business and other information available
to the Selling Stockholder, which it has determined is adequate for that purpose.
4. Publicity.
The Selling Stockholder and the Company agree that it shall not, and that it shall cause its affiliates and representatives
not to, (a) publish, release or file any initial press release or other public statement or announcement relating to the
transactions contemplated by this Agreement (an “Initial Press Release ”) before providing a copy of such release,
statement or announcement to the other, and (b) after the date hereof, publish, release or file any future press release
or other public statement or announcement relating to the transactions contemplated by this Agreement that is materially inconsistent
with any such Initial Press Release. The Company shall (a) by 9:30 a.m. (New York City time) on the business day immediately following
the date hereof, issue a press release disclosing the material terms of the transactions contemplated hereby, and (b) file a Current
Report on Form 8-K, including this agreement and all related agreements as exhibits thereto, with the Securities and Exchange
Commission within the time required by the Securities Exchange Act of 1934, as amended.
5. Notices.
All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given when delivered personally, mailed by certified or registered mail, return
receipt requested and postage prepaid, or sent via a nationally recognized overnight courier, or sent via email (receipt of which
is confirmed) to the recipient. Such notices, demands and other communications shall be sent as follows:
To
the Selling Stockholder:
With
a copy to (which shall not constitute notice):
David
E. Danovitch, Esq.
Robinson
Brog
875
3rd Avenue – 9th Floor
New
York, NY 10022
Email:
ded@robinsonbrog.com
To
the Company:
Gerald
E. Commissiong
President
& CEO
Amarantus
Bioscience Holdings, Inc.
655
Montgomery St.
Suite
900
San
Francisco, CA 94107
email:
gerald.commissiong@amarantus.com
With
a copy to (which shall not constitute notice):
Jeffrey
Fessler
Sichenzia
Ross Friedman Ference LLP
61
Broadway, 32nd Floor
New
York, NY 10006
jfessler@srff.com
or
such other address or to the attention of such other person as the recipient party shall have specified by prior written notice
to the sending party.
6. Miscellaneous.
(a)
Survival of Representations and Warranties. All representations and warranties contained herein or made in writing by any
party in connection herewith shall survive the execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby until the expiration of the applicable statute of limitations.
(b)
Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any
respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision had never been contained herein.
(c)
Complete Agreement. This Agreement supersedes all prior agreements and understandings (whether written or oral) between
the Company and the Selling Stockholder with respect to the subject matter hereof. For
the avoidance of doubt, to the extent that there is any inconsistency between the provisions of the Purchase Agreements, including
the transaction documents related thereto, (except for the representation and warranties contained in the Purchase Agreements)
and this Agreement, the provisions of this Agreement shall control and be binding.
(d)
Counterparts. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each
of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
(e)
Successors and Assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned,
in whole or in part, by either party without the prior written consent of the other party. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the Selling Stockholder and the Company and their
respective successors and assigns.
(f)
No Third Party Beneficiaries or Other Rights. This Agreement is for the sole benefit of the parties and their successors
and permitted assigns and nothing herein express or implied shall give or shall be construed to confer any legal or equitable
rights or remedies to any person other than the parties to this Agreement and such successors and permitted assigns.
(g)
Governing Law. THIS AGREEMENT AND ANY MATTERS RELATED TO THIS TRANSACTION SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THAT WOULD RESULT IN THE APPLICATION OF
ANY LAW OTHER THAN THE LAWS OF THE STATE OF NEW YORK. The Company and the Selling Stockholder each agrees that any suit or proceeding
arising in respect of this Agreement will be tried exclusively in the U.S. District Court for the Southern District of New York
or, if that court does not have subject matter jurisdiction, in any state court located in The City and County of New York, and
the Company and the Selling Stockholder each agrees to submit to the jurisdiction of, and to venue in, such courts.
(h)
Waiver of Jury Trial. The Company and the Selling Stockholder each hereby irrevocably waives, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby.
(i)
Mutuality of Drafting. The parties have participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the
parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any
provision of the Agreement.
(j)
Remedies. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or deposit) for specific performance or other injunctive relief in order to enforce, or prevent any
violations of, the provisions of this Agreement.
(k)
Amendment and Waiver. The provisions of this Agreement may be amended or waived only with the prior written consent of
the Company and the Selling Stockholder.
(l)
Expenses. The Company shall pay for the expenses incurred by the Selling Shareholders with respect to its fees of counsel.
(m)
Increase of Share Reserve. In connection with the Shares, the Company shall increase
its share reserve to 30,000,000 shares of the Company’s Common Stock.
(n)
Use of Proceeds. The Company and the Selling Shareholder each agree that upon execution of this Agreement, $25,000 shall
be transferred to Robinson Brog Leinwand Greene Genovese & Gluck P.C. and $25,000 to Aegis Capital Corp., for an aggregate
of $50,000 at the time of the First Closing.
(o)
Book Entry. The Selling Shareholder shall have the right to book the Repurchase of the Shares to any of the shares of the
Series H Preferred held by the Selling Stockholder.
[Signatures
appear on following pages.]
IN
WITNESS WHEREOF, the parties hereto have executed this Stock Repurchase Agreement as of the date first written above.
AMARANTUS BIOSCIENCE HOLDINGS, INC. |
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Chief Executive Officer |
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8
Exhibit 10.4
STOCK
REPURCHASE AGREEMENT
THIS
STOCK REPURCHASE AGREEMENT (this “Agreement”) is entered into as of January 27, 2016 by and between Amarantus Bioscience
Holdings, Inc., a Nevada corporation (the “Company”), and _________ (the “Selling Stockholder”).
Recitals
WHEREAS,
the Selling Stockholder beneficially owns an aggregate of 5,882.222
shares of the Company’s Series E Preferred Stock (the “Series E Preferred”);
WHEREAS,
the Selling Stockholder desires to sell to the Company, and the Company desires to repurchase from the Selling Stockholder, an
aggregate of 496.031746 shares
of Series E Preferred (the “Shares”) at a price of $750,000 (the aggregate price for the Shares, the “Purchase
Price”), upon the terms and subject to the conditions set forth in this Agreement (the “Repurchase”); and
NOW,
THEREFORE, in consideration of the mutual covenants herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the undersigned hereby agree as follows:
Agreement
1. Repurchase.
(a)
Purchase and Sale. At the Closings (as defined below), the Company hereby agrees to repurchase from the Selling Stockholder,
and the Selling Stockholder hereby agrees to sell and deliver, or cause to be delivered, to the Company the Shares. The purchase
will occur in three (3) tranches, with the first tranche of $125,000 being on February 8, 2016 (the “First Closing”).
The second tranche will be for $250,000 and will occur on February 15, 2016 (the “Second Closing”). The third tranche
will be for $375,000 and will occur on February 29, 2016 (the “Third Closing”; the First Closing, the Second Closing,
and the Third Closing, collectively, the “Closings” and each a “Closing”). The Selling Stockholder shall
not be required to sell any of the Shares at
each Closing unless payment is made by the Company. In the event that a payment is not made at any Closing, then at the option
of the Selling Stockholder, this Agreement may be deemed null and void as well as any related agreements, including, but not limited
to, the Leak-Out Agreement (as defined below) at the end of the Cure Period, as defined in the Leak-Out Agreement. The Company
acknowledges that the Shares are being repurchased at a price equal to the product of a) 135% multiplied by b) the sum of (i)
the Stated Value and (ii) all accrued but unpaid dividends (the product of which shall herein be referred to as the “Repurchase
Premium”). Notwithstanding the foregoing, the Company may at any time accelerate the repayment schedule with
no additional penalty beyond the Repurchase Premium.
(b)
Closings. Subject to the terms and conditions of this Agreement and the delivery of the deliverables contemplated by Section 1(c)
of this Agreement, each Closing of the sale of the Shares will take place on the dates set forth in Section 1(a), via the exchange
of deliverables, or such other time, date or place as shall be agreed upon by the parties.
(c)
Closing Deliveries and Actions. At each Closing, the Company shall deliver to the Selling Stockholder by wire transfer,
in accordance with written instructions to be provided by the Selling Stockholder in immediately available funds in an amount
equal to the applicable purchase price as set forth in Section 1(a). Additionally, upon
execution of this Agreement the Selling Stockholder shall execute a Leak-Out Agreement (the “Leak-Out Agreement) that shall
restrict sales of the Company’s common stock as set forth therein.
(d)
Other Payments. The Company agrees to pay all stamp, stock transfer and similar duties, if any, in connection with the
Repurchase.
2. Representations
of the Company. The Company represents and warrants to the Selling Stockholder that:
(a)
The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada.
(b)
The Company has the full power and authority to execute, deliver and carry out the terms and provisions of this Agreement and
to consummate the transactions contemplated hereby, and has taken all necessary action to authorize the execution, delivery and
performance of this Agreement.
(c)
This Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that (i) such
enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect affecting creditors’ rights generally and (ii) the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to certain equitable defenses and to the discretion of the court before which any proceedings
thereof may be brought. The execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby,
have been approved by the Company’s Board of Directors.
(d)
The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with,
result in the breach of any of the terms or conditions of, constitute a default under or violate, accelerate or permit the acceleration
of any other similar right of any other party under, its Articles of Incorporation or Bylaws of the Company, any law, rule or
regulation or any agreement, lease, mortgage, note, bond, indenture, license or other document or undertaking, to which the Company
is a party or by which the Company or its properties may be bound, nor will such execution, delivery and consummation violate
any order, writ, injunction or decree of any federal, state, local or foreign court, administrative agency or governmental or
regulatory authority or body (each, an “Authority”) to which the Company or any of its properties is subject, the
effect of any of which, either individually or in the aggregate, would have, or reasonably be expected to have, a material adverse
effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries,
taken as a whole or materially impact the Company’s ability to consummate the transactions contemplated by this Agreement
(a “Material Adverse Effect”); and no consent, approval, authorization, order, registration or qualification of or
with any such Authority is required for the consummation by the Company of the transactions contemplated by this Agreement, except
such consents, approvals, authorizations and orders as would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(e)
The Company acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by
or on behalf of the Selling Stockholder, whether or not any such representations, warranties or statements were made in writing
or orally, except as expressly set forth for the benefit of the Company in this Agreement.
(f)
The Company further agrees and acknowledges that all representations and warranties in those certain Securities Purchase Agreements
dated March 2, 2014, November 7, 2014, December 19, 2014, and July 9, 2015 (the “Purchase Agreements”) by and between
the Company and the Selling Stockholder, remain in full force and effect notwithstanding anything in this Agreement. Additionally,
the Company agrees and acknowledges that pursuant to that certain Exchange Agreement, dated September 30, 2015 (the “Exchange
Agreement”), by and between the Company and the Selling Stockholder, all representations and warranties contained in that
certain Securities Purchase Agreement dated September 30, 2015 (the “September Purchase Agreement”), remain in full
force and effect notwithstanding anything in this Agreement.
3. Representations
of the Selling Stockholder. The Selling Stockholder represents and warrant to the Company that:
(a)
The Selling Stockholder is a limited liability company duly organized, validly existing and in good standing under the laws of
the State of Connecticut.
(b)
The Selling Stockholder has the full power and authority to execute, deliver and carry out the terms and provisions of this Agreement
and consummate the transactions contemplated hereby, and has taken all necessary action to authorize the execution, delivery and
performance of this Agreement.
(c)
This Agreement has been duly and validly authorized, executed and delivered by the Selling Stockholder, and constitutes a legal,
valid and binding agreement of the Selling Stockholder, enforceable against the Selling Stockholder in accordance with its terms,
except to the extent that (i) such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting creditors’ rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to certain equitable defenses and to the discretion
of the court before which any proceedings therefor may be brought.
(d)
The sale of the Shares to be sold by the Selling Stockholder hereunder and the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with, result in the breach of any of the terms or conditions
of, constitute a default under or violate, accelerate or permit the acceleration of any other similar right of any other party
under, the articles of incorporation, bylaws or any other governing organizational document of the Selling Stockholder, any law,
rule or regulation, or any agreement, lease, mortgage, note, bond, indenture, license or other document or undertaking, to which
the Selling Stockholder is a party or by which the Selling Stockholder or its properties may be bound, nor will such execution,
delivery and consummation violate any order, writ, injunction or decree of any Authority to which the Selling Stockholder or any
of its properties is subject, the effect of any of which, either individually or in the aggregate, would affect the validity of
the Shares to be sold by the Selling Stockholder or reasonably be expected to materially impact the Selling Stockholder; ability
to perform its obligations under this Agreement; and no consent, approval, authorization, order, registration or qualification
of or with any such Authority is required for the performance by the Selling Stockholder of its obligations under this Agreement
and the consummation by the Selling Stockholder of the transactions contemplated by this Agreement in connection with the Shares
to be sold by the Selling Stockholder hereunder, except such consents, approvals, authorizations and orders as would not, individually
or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Stockholder’s ability to consummate
the transactions contemplated by this Agreement.
(e)
The Selling Stockholder has, and immediately prior to the delivery of the Shares to the Company at each Closing, the Selling Stockholder
will have, valid and unencumbered title to the Shares to be sold by the Selling Stockholder hereunder at such time of delivery.
(f)
The Selling Stockholder has such knowledge and experience in financial and business matters that it is capable of evaluating the
merits and risks of the proposed sale of the Shares to the Company and that it has made an independent decision to sell the Shares
to the Company based on the Selling Stockholder’s knowledge about the Company and its business and other information available
to the Selling Stockholder, which it has determined is adequate for that purpose.
4. Publicity.
The Selling Stockholder and the Company agree that it shall not, and that it shall cause its affiliates and representatives
not to, (a) publish, release or file any initial press release or other public statement or announcement relating to the
transactions contemplated by this Agreement (an “Initial Press Release ”) before providing a copy of such release,
statement or announcement to the other, and (b) after the date hereof, publish, release or file any future press release
or other public statement or announcement relating to the transactions contemplated by this Agreement that is materially inconsistent
with any such Initial Press Release. The Company shall (a) by 9:30 a.m. (New York City time) on the business day immediately following
the date hereof, issue a press release disclosing the material terms of the transactions contemplated hereby, and (b) file a Current
Report on Form 8-K, including this agreement and all related agreements as exhibits thereto, with the Securities and Exchange
Commission within the time required by the Securities Exchange Act of 1934, as amended.
5. Notices.
All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given when delivered personally, mailed by certified or registered mail, return
receipt requested and postage prepaid, or sent via a nationally recognized overnight courier, or sent via email (receipt of which
is confirmed) to the recipient. Such notices, demands and other communications shall be sent as follows:
To
the Selling Stockholder:
With
a copy to (which shall not constitute notice):
David
E. Danovitch, Esq.
Robinson
Brog
875
3rd Avenue – 9th Floor
New
York, NY 10022
Email:
ded@robinsonbrog.com
To
the Company:
Gerald
E. Commissiong
President
& CEO
Amarantus
Bioscience Holdings, Inc.
655
Montgomery St.
Suite
900
San
Francisco, CA 94107
email:
gerald.commissiong@amarantus.com
With
a copy to (which shall not constitute notice):
Jeffrey
Fessler
Sichenzia
Ross Friedman Ference LLP
61
Broadway, 32nd Floor
New
York, NY 10006
jfessler@srff.com
or
such other address or to the attention of such other person as the recipient party shall have specified by prior written notice
to the sending party.
6. Miscellaneous.
(a)
Survival of Representations and Warranties. All representations and warranties contained herein or made in writing by any
party in connection herewith shall survive the execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby until the expiration of the applicable statute of limitations.
(b)
Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any
respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision had never been contained herein.
(c)
Complete Agreement. This Agreement supersedes all prior agreements and understandings (whether written or oral) between
the Company and the Selling Stockholder with respect to the subject matter hereof. For
the avoidance of doubt, to the extent that there is any inconsistency between the provisions of the Purchase Agreements and the
Exchange Agreement, including the transaction documents related thereto, (except for the representation and warranties contained
in the Purchase Agreements and the September Purchase Agreement) and this Agreement, the provisions of this Agreement shall control
and be binding.
(d)
Counterparts. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each
of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
(e)
Successors and Assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned,
in whole or in part, by either party without the prior written consent of the other party. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the Selling Stockholder and the Company and their
respective successors and assigns.
(f)
No Third Party Beneficiaries or Other Rights. This Agreement is for the sole benefit of the parties and their successors
and permitted assigns and nothing herein express or implied shall give or shall be construed to confer any legal or equitable
rights or remedies to any person other than the parties to this Agreement and such successors and permitted assigns.
(g)
Governing Law. THIS AGREEMENT AND ANY MATTERS RELATED TO THIS TRANSACTION SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THAT WOULD RESULT IN THE APPLICATION OF
ANY LAW OTHER THAN THE LAWS OF THE STATE OF NEW YORK. The Company and the Selling Stockholder each agrees that any suit or proceeding
arising in respect of this Agreement will be tried exclusively in the U.S. District Court for the Southern District of New York
or, if that court does not have subject matter jurisdiction, in any state court located in The City and County of New York, and
the Company and the Selling Stockholder each agrees to submit to the jurisdiction of, and to venue in, such courts.
(h)
Waiver of Jury Trial. The Company and the Selling Stockholder each hereby irrevocably waives, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby.
(i)
Mutuality of Drafting. The parties have participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the
parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any
provision of the Agreement.
(j)
Remedies. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or deposit) for specific performance or other injunctive relief in order to enforce, or prevent any
violations of, the provisions of this Agreement.
(k)
Amendment and Waiver. The provisions of this Agreement may be amended or waived only with the prior written consent of
the Company and the Selling Stockholder.
(l)
Expenses. The Company shall pay for the expenses incurred by the Selling Shareholders with respect to its fees of counsel.
(m)
Increase of Share Reserve. In connection with the Shares, the Company shall increase
its share reserve to 40,000,000 shares of the Company’s Common Stock.
(n)
Use of Proceeds. The Company and the Selling Shareholder each agree that upon execution of this Agreement, $25,000 shall
be transferred to Robinson Brog Leinwand Greene Genovese & Gluck P.C. and $25,000 to Aegis Capital Corp., for an aggregate
of $50,000 at the time of the First Closing.
(o)
Book Entry. The Selling Shareholder shall have the right to book the Repurchase of the Shares to any of the shares of the
Series E Preferred held by the Selling Stockholder.
[Signatures
appear on following pages.]
IN
WITNESS WHEREOF, the parties hereto have executed this Stock Repurchase Agreement as of the date first written above.
AMARANTUS BIOSCIENCE HOLDINGS, INC. |
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By: |
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Name: |
Gerald Commissiong |
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Title: |
Chief Executive Officer |
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By: |
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Name: |
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Title: |
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8
Title:
Exhibit 99.1
Amarantus
Announces $1M Investment
SAN
FRANCISCO, CA – January 27, 2016 – Amarantus BioScience Holdings, Inc. (OTCQX:AMBS),
a biotechnology company developing products in Regenerative Medicine, Neurology and Orphan diseases, today announced the closing
of a $1M investment from an investor introduced to the Company by International Infusion, LLC. The new investment comes in the
form of Series H Convertible Preferred Stock and Warrants on the same terms as previously disclosed. As part of the agreement,
the Company’s 2 largest institutional investors have agreed to certain trading restrictions over the course of the next
7 weeks.
Concurrent
with this announcement, the Company has entered into an agreement with International Infusion to provide funding of up to $1.5M
over the course of the next five weeks to be used solely for the partial repurchase of Convertible Preferred Stock from Company’s
2 largest institutional investors.
This
press release does not constitute an offer to sell, or the solicitation of an offer to buy, these securities.
About
Amarantus BioScience Holdings, Inc.
Amarantus
BioScience Holdings (OTCQX:AMBS) is a biotechnology company developing treatments and diagnostics for diseases in the areas of
Neurology, Regenerative Medicine and Orphan diseases. The Company has an exclusive worldwide license to intellectual property
rights associated with Engineered Skin Substitute (ESS), an autologous full thickness skin replacement product in development
for the treatment of adult severe burns, currently preparing to enter Phase 2 clinical studies. In parallel, the Company is evaluating
human clinical data from previously conducted studies in pediatric severe burns and Congenital Giant Hairy Nevus to support clinical
development expansion into those areas. ESS has achieved Orphan Drug Designation (ODD) in the area of severe burns, and is seeking
ODD status for additional serious dermatologic indications. AMBS also has development rights to eltoprazine, a small molecule
currently in clinical development for Parkinson's disease levodopa-induced dyskinesia, an orphan disorder, with the potential
to expand into adult ADHD and Alzheimer's aggression. AMBS owns the intellectual property rights to a therapeutic protein known
as mesencephalic astrocyte-derived neurotrophic factor (MANF) and is developing MANF as a treatment for orphan ophthalmic disorders,
initially in retinitis pigmentosa (RP) and retinal artery occlusion (RAO). AMBS also owns the technology platform that led to
MANF’s discovery (PhenoGuard™), and which can be used to identify novel neurotrophic factors.
AMBS'
Diagnostics division owns the rights to MSPrecise®, a proprietary next-generation DNA sequencing-based test for
identifying patients with relapsing-remitting multiple sclerosis at first clinical presentation, has an exclusive worldwide license
to the Lymphocyte Proliferation test (LymPro Test®) for Alzheimer's disease, (developed by Prof. Thomas Arendt,
Ph.D., from the University of Leipzig), and owns intellectual property for the diagnosis of Parkinson's disease (NuroPro).
For
further information please visit www.Amarantus.com, or connect with the Company on Facebook, LinkedIn, Twitter
and Google+.
Forward-Looking
Statements
Certain
statements, other than purely historical information, including estimates, projections, statements relating to our business plans,
objectives, and expected operating results, and the assumptions upon which those statements are based, are forward-looking statements.
These forward-looking statements generally are identified by the words "believes," "project," "expects,"
"anticipates," "estimates," "intends," "strategy," "plan," "may,"
"will," "would," "will be," "will continue," "will likely result," and similar
expressions. Forward-looking statements are based on current expectations and assumptions that are subject to risks and uncertainties
which may cause actual results to differ materially from the forward-looking statements. Our ability to predict results or the
actual effect of future plans or strategies is inherently uncertain. Factors which could have a material adverse effect on our
operations and future prospects on a consolidated basis include, but are not limited to: changes in economic conditions, legislative/regulatory
changes, availability of capital, interest rates, competition, and generally accepted accounting principles. These risks and uncertainties
should also be considered in evaluating forward-looking statements and undue reliance should not be placed on such statements.
Amarantus
Investor and Media Contact:
Ascendant
Partners, LLC
Fred
Sommer
732-410-9810
fred@ascendantpartnersllc.com
Source:
Amarantus BioScience Holdings, Inc.
###
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