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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): November 25, 2024
Celularity
Inc.
(Exact
name of registrant as specified in its charter)
Delaware |
|
001-38914 |
|
83-1702591 |
(State
or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS
Employer
Identification No.) |
170 Park Ave |
|
|
Florham Park, New Jersey |
|
07932 |
(Address of principal executive offices) |
|
(Zip Code) |
Registrant’s telephone number, including area code: (908) 768-2170
N/A
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under
any of the following provisions:
|
☐ | Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
| |
|
☐ | Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
| |
|
☐ | 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)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title of each class |
|
Trading
Symbol(s) |
|
Name of each exchange on which registered |
Class
A Common Stock, $0.0001 par value per share |
|
CELU |
|
The
Nasdaq Stock Market LLC |
Warrants,
each exercisable for one-tenth of one share of Class A Common Stock at an exercise price of $11.50 per share |
|
CELUW |
|
The
Nasdaq Stock Market LLC |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging
growth company ☒
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01 Entry into a Material Definitive Agreement.
On
November 25, 2024, Celularity Inc. (the “Company”) entered into a securities purchase agreement (the “Purchase Agreement”)
with an accredited investor pursuant to which the Company agreed to sell and issue to the investor and other purchasers in
a private placement transaction (the “Purchasers”), in one or more closings, unsecured senior convertible notes (the
“Notes”) and warrants (the “Purchaser Warrants”) for an aggregate original principal amount of up to $1,000,000.
As of the date of this Current Report, the Company issued and sold $500,000 Notes and Warrants pursuant to the Purchase
Agreement.
The
Notes bear interest at an annual rate of 8% (increasing to 10% in the event of default as defined in the Purchase Agreement) and have
a maturity date of one year from the date of issuance. Upon an event of default, the Notes are convertible at the Purchasers’ option
into shares of the Company’s Class A common stock, par value $0.0001 per share (the “Common Stock”), at a price per
share equal to (i) $2.85 (adjusted for stock splits, reverse stock splits, stock dividends, or similar transactions); or (ii) the offering
price of a subsequent financing transaction with gross proceeds of $2,500,000 or more (a “Subsequent Financing”), subject
to a floor price of $1.00 per share. The Notes include customary negative covenants restricting the Company’s ability to incur
other indebtedness other than as permitted, pay dividends to stockholders, grant or suffer to exist a security interest in any of the
Company’s assets, other than as permitted, amongst others. In addition, the Notes include customary events of default.
The
Purchaser Warrants entitle the Purchasers to purchase shares of Common Stock equal to each Purchaser’s subscription amount divided
by the exercise price of $2.85 per share. The exercise price, and the number of shares of Common Stock issuable under the Purchaser
Warrants, are subject to a one-time reset upon the completion of a Subsequent Financing, subject to a floor price of $1.00 per
share. The Purchaser Warrants are immediately exercisable and have a 5-year term.
The
Company intends to use the net proceeds from the Notes and the Purchaser Warrants for working capital and general corporate purposes.
Madison
Global Partners, LLC served as the exclusive placement agent for the offering. In connection with the transaction, the Company
paid a cash fee equal to 7% of the aggregate proceeds, a non-accountable expense fee of 1% of the aggregate proceeds, and an initial
retainer fee of $25,000, and a reimbursement of legal expenses up to $75,000. In addition, the Company agreed to issue a 5-year
warrant to purchase a number of shares of Common Stock equal to 7% of the proceeds of the transaction (the “Placement Agent Warrants”),
at an exercise price equal to 125% of the offering price. The Placement Agent Warrants are subject to the same one-time exercise price adjustment
provision as the Purchaser Warrants in connection with a Subsequent Financing.
The
issuance of the Notes, the Purchaser Warrants, the Placement Agent Warrants and the underlying shares of Common Stock was made in reliance
upon exemptions from registration under Section 4(a)(2) of the Securities Act of 1933, as amended, and Rule 506(b) of Regulation D promulgated
thereunder. The Company relied on this exemption from registration based in part on representations made by the Purchasers.
The
offer and sale of the Notes, the Purchaser Warrants and the Placement Agent Warrants (including the shares underlying the Notes,
the Purchaser Warrants and the Placement Agent Warrants) have not been registered under the Act or any state securities laws.
The securities may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements.
Neither this current report on Form 8-K, nor the exhibits attached hereto, is an offer to sell or the solicitation of an offer to buy
the securities described herein.
The
foregoing descriptions of the Purchase Agreement, the Notes, the Pruchaser Warrants, and the Placement Agent Warrants
are not complete and are qualified in their entirety by references to the full text of such agreements, which are filed as exhibits
10.1, 10.2, 10.3, and 10.4, respectively, to this current report on Form 8-K and are incorporated by reference herein.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The
information contained above under Item 1.01 to the extent applicable is hereby incorporated by reference herein.
Item
3.02 Unregistered Sales of Equity Securities.
The
information contained above under Item 1.01 to the extent applicable is hereby incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits.
(d)
Exhibits:
10.1 Securities Purchase Agreement dated as of November 25, 2024, by and between Celularity Inc. and the investor parties thereto.
10.2 Form of Unsecured Bridge Note.
10.3 Form of Purchaser Warrant.
10.4 Form of Placement Agent Warrant.
104
Cover Page Interactive Data File (embedded within the Inline XBRL document).
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 hereunto duly authorized.
|
|
|
CELULARITY
INC. |
|
|
|
|
Date: |
December
2, 2024 |
By: |
/s/
Robert J. Hariri |
|
|
|
Robert
J. Hariri, M.D., Ph.D.
|
|
|
|
Chairman
and CEO |
Exhibit
10.1
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”) is dated as of November 25, 2024, and is by and between Celularity
Inc., a Delaware corporation (the “Company”), and each purchaser identified on the Annex A hereto
(each, including its successors and assigns, an “Investor” or “Holder”) and collectively, the “Investors”).
WHEREAS,
the Investors wish to purchase from the Company, and the Company wishes to sell and issue to the Investors: (i) its unsecured senior
notes in the form of Appendix B hereto (each, a “Note”; and collectively, the “Notes”)
in an aggregate original principal amount of $1,000,000, and (ii) Warrants to purchase Common Shares of the Company in the form of Exhibit
1 to Appendix C hereto (each, a “Warrant”; and collectively, the “Warrants”);
WHEREAS,
Madison Global Partners, LLC (the “Placement Agent”) is acting as the exclusive placement agent for the offering of
the Notes and Warrants contemplated by this Agreement (“Offering”); and
WHEREAS,
the Company and Investors are executing and delivering this Agreement in reliance upon an exemption from securities registration requirements
of the Securities Act of 1933, as amended, afforded by the provisions of Section 4(a)(2) and/or Rule 506(b) of Regulation D promulgated
thereunder by the U.S. Securities and Exchange Commission;
NOW,
THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Company and each Investor agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions. In addition to the terms defined elsewhere in this Agreement: (a) capitalized terms that are not otherwise
defined herein have the meanings given to such termsin the Notes (as defined herein), and (b) the following terms have the meanings
set forth in this Agreement.
“$”
means United States Dollars.
“Action”
has the meaning ascribed to such term in Section 3.01(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.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day except Saturday, 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. 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.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.01.
SECURITIES PURCHASE AGREEMENT |
“Closing
Date” means for any Securities, the Business Day when all of the Transaction Documents for such Securities have been executed
and delivered by the applicable parties thereto, and conditions precedent to: (i) the applicable Investors’ obligations to pay
the Subscription Amount and (ii) the Company’s obligations to deliver such Securities have been satisfied or waived.
“Commission”
means the U.S. Securities and Exchange Commission.
“Common
Shares” means the Common Shares, par value $0.0001 per share, of the Company, and any other class of securities into which
such securities may hereafter be reclassified or changed.
“Common
Shares Equivalent” means any warrant, note, option or similar security or other right to subscribe for or purchase any additional
Common Shares or any other such security.
“Confidential
Investor Questionnaire” means the Confidential Investor Questionnaire attached as Appendix A
hereto.
“Conversion
Shares” means the Common Shares and/or other securities issuable upon conversion of the Notes following an Event of Default
(as defined therein) thereunder.
“Equityholder
Approval” has the meaning set forth in Section 4.07.
“Exempt
Issuance” means the issuance of: (i) Common Shares or options to employees, officers, managers or directors of the Company
pursuant to any stock or option plan duly adopted by a majority of the Board of Directors of the Company or a majority of the members
of a committee of managerss established for such purpose, (ii) Common Shares or options to management of the Company pursuant to any
management incentive plan duly adopted by a majority of the Board of Directors of the Company or a majority of the members of a committee
of directors established for such purpose, and (iv) Common Shares issued to an Investor in repayment of interest under any Note as agreed
upon by the Company and the applicable Investor.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“GAAP”
has the meaning ascribed to such term in Section 3.01(h).
“Intellectual
Property Rights” has the meaning ascribed to such term in Section 3.01(o).
“Lead
Investor” means [ ].
“Legend
Removal Date” has the meaning ascribed to such term in Section 4.01(c).
“Liens”
shall mean a lien, charge, security interest, encumbrance, right of first refusal, preemptive right or other restriction or adverse claim
of a third party.
“Material
Adverse Effect” has the meaning ascribed to such term in Section 3.01(b).
“Maximum
Offering Amount” means an aggregate Subscription Amount of up to $1,000,000 equating to an aggregate maximum principal amount
of Notes of $1,000,000
“Notes”
has the meaning provided in the recitals hereof.
“Permitted
Liens” has the meaning ascribed to such term in Section 3.01(n).
SECURITIES PURCHASE AGREEMENT |
“Placement
Agent” has the meaning ascribed to such term in the recitals hereof.
“Person”
means an individual or corporation, partnership, trust, incorporated or un-incorporated association, joint-venture, limited liability
company, joint-stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“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.
“Required
Approvals” has the meaning ascribed to such term in Section 3.01(e).
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“SEC
Reports” has the meaning ascribed to such term in Section 3.01(h).
“Securities”
means the Notes and the Warrants.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“State
Securities Laws” means the securities (or “blue sky”) rules, regulations, or other similar laws of a particular
state.
“Subscription
Amount” means, as to each Investor, the aggregate amount to be paid for Securities purchased hereunder as specified below such
Investor’s name on the signature page of this Agreement and next to the heading “Aggregate Subscription Amount.”
“Subsequent
Financing” has the meaning set forth in Section 4.08.
“Subsidiary”
means any subsidiary of the Company as disclosed pursuant to Section 3.01(a) and shall, where applicable, include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
“Termination
Date” means a date determined by the Company on which the offering of the Securities shall terminate.
“Trading
Day” means any day on which the principal Trading Market is open for trading or quoting.
“Trading
Market” means any of the following markets or exchanges on which the Common Shares are listed or quoted for trading on the
date in question: the Nasdaq Stock Market LLC(or any successor thereto).
“Transaction
Documents” means this Agreement, the Notes, the Warrants, and all appendices, exhibits and schedules hereto and thereto and
any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Underlying
Securities” means the Warrant Shares and (if issued) the Conversion Shares.
“Warrants”
has the meaning provided in the recitals hereof.
SECURITIES PURCHASE AGREEMENT |
“Warrant
Shares” means the Common Shares and/or other securities issuable upon the exercise of the Warrants.
ARTICLE
II
PURCHASE AND SALE
Section
2.01 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 Investors, severally
and not jointly, agree to purchase the Securities. At the Closing, the Investors shall deliver, via wire transfer, immediately
available funds equal to the Investors’ aggregate Subscription Amounts as set forth hereinbelow and the Company shall deliver
to each Investor its Securities. The Company and each Investor shall deliver the other items set forth in Section 2.01 deliverable
at the Closing. Upon satisfaction of the conditions set forth in Section 2.01 and Section 2.03, the Closing shall occur at the
offices of Placement Agent’s counsel, or such other location as the parties shall mutually agree or may be closed remotely by
electronic delivery of documents. The Company may conduct multiple closings for the sale of the Securities until it has received the
total offering amount of $1,000,000. The Closing Date for any Securities shall be the date indicated on the applicable Investor
signature pages attached hereto and the final Closing Date shall be no later than the Termination Date.
Section
2.02 Closing Deliverables.
(a) By
Each Investor. On or prior to the Closing Date, each Investor shall deliver or cause to be delivered to the Company the following:
| (i) | this
Agreement, including a fully completed Annex A attached hereto, duly executed
by such Investor; |
| | |
| (ii) | such
Investor’s Subscription Amount by wire transfer Sichenzia Ross Ference Carmel LLP (the
“Escrow Agent”) pursuant to the wiring instructions set forth in Section 2.03(c)
below; and |
| | |
| (iii) | a
duly completed and signed Confidential Investor Questionnaire, a copy of which is attached
hereto as Appendix A. |
(b) By
the Company. On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Investor the following:
| (i) | this
Agreement, duly executed by an authorized officer of behalf of the Company; |
| | |
| (ii) | a
Note, the form of which is attached hereto as Appendix B, registered in the
name of such Investor (or its designee), with a principal amount equal to such Investor’s
original principal amount, duly executed by an authorized officer of behalf of the Company; |
| | |
| (iii) | a
legal opinion of Company Counsel, substantially in the form acceptable to the Placement Agent
and each of the Purchaser(s); |
| | |
| (iv) | a
CFO certificate, substantially in the form acceptable to the Placement Agent and each of
the Purchaser(s); |
SECURITIES PURCHASE AGREEMENT |
| (v) | a
Warrant instrument, the form of which is attached as Exhibit 1 to Appendix C,
registered in the name of such Investor (or its designee) and duly executed by an authorized
officer of behalf of the Company, to initially purchase additional Common Shares, with a
coverage ratio of 100% of the principal amount invested; and |
| | |
| (vi) | an
officer’s certificate of the Company certifying the Company’s: (a) certified
certificate of formation; (b) , bylaws and/or any similar governing document(s); and (c)
resolutions of its Board of Directors (or similar governing body) approving and authorizing
the execution, delivery and performance of the Transaction Documents and the transactions
contemplated thereby. |
Section
2.03 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 each Investor’s representations
and warranties contained herein; |
| | |
| (ii) | all
obligations, covenants and agreements of each Investor required to be performed at or prior
to the Closing Date shall have been performed; and |
| | |
| (iii) | the
delivery by each Investor of the items set forth in Section 2.02(a) of this Agreement. |
(b) The
respective obligations of the Investors hereunder in connection with the Closing are subject to the following conditions being met (it
being understood that the Company may waive any of the conditions for any Closing hereafter):
| (i) | the
accuracy in all material respects (or, to the extent representations or warranties are qualified
by materiality or Material Adverse Effect, in all 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 in which case they shall be accurate as of such date); |
| | |
| (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 2.02(b) of this Agreement; and |
| | |
| (iv) | there
shall have been no Material Adverse Effect with respect to the Company since the date hereof. |
(c) The wiring instructions for the Escrow Agent are as follows:
Bank
Name: Citbank, 153 East 53rd Street, 23rd Floor, New York, NY 10022
Routing
No.: 021000089
Account
No.: 4974921703
Account
Title: Sichenzia Ross Ference Carmel LLP
SECURITIES PURCHASE AGREEMENT |
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
Section
3.01 Representations and Warranties of the Company. The Company hereby represents and warrants to each Investor that, except as
set forth on the Disclosure Schedule to this Agreement delivered by the Company to the Lead Investor on or before the initial Closing
Date (the “Disclosure Schedule”) and/or SEC Reports, the following representations are true and complete as of the
date of the date hereof. The Disclosure Schedule shall be arranged in sections corresponding to the numbered and lettered sections contained
in this Section 3.01, and the disclosures in any section of the Disclosure Schedule shall qualify other sections in this Section 3.01
only to the extent it is readily apparent from a reading of the disclosure that such disclosure is applicable to such other sections.
(a) Subsidiaries.
Except as disclosed on Schedule 3.01(a), the Company does not have any Subsidiaries other than as set forth in the SEC Reports.
(b) Organization
and Qualification. The Company is an entity with the requisite power and authority to own and use its properties and assets and to
carry on its business as currently conducted. The Company is not in violation or default of any of the provisions of its certificate
of formation and operating agreement, each, as amended and in effect. A complete and correct copy of the Company’s certificate
of formation and bylaws, each as amended and in effect on the date of this Agreement and as they will be in effect on the Closing Date,
is attached to the officer’s certificate referenced in section 2.02(b)(v). There are no other organizational or charter documents
of the Company. Each Subsidiary is an entity duly incorporated or otherwise organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation or organization, has the requisite power and authority to own and use its properties and assets
and to carry on its business as currently conducted. The Company and each Subsidiary 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 its Subsidiaries, taken as a whole, or any of its material assets or lines of business, individually;
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 legal power and authority to enter into and to consummate the transactions
contemplated by each of the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution
and delivery of each of the 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 therewith other than in connection with the
Required Approvals. Each 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.
SECURITIES PURCHASE AGREEMENT |
(d) No
Conflicts. The execution, delivery and performance by the Company of the Transaction Documents to which it is a party, the issuance
and sale of the Securities hereunder and the consummation by the Company of the other transactions contemplated hereby and thereby do
not and will not: (i) conflict with or violate any provision of the Company’s certificate of formation 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 any Subsidiary is subject (including federal
and State Securities Laws and regulations), or by which any property or asset of the Company or any Subsidiary is bound or affected;
except in the case of each of clause (ii), 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) such consents,
waivers, or authorizations as have been obtained before the Closing; and (ii) the filing of Form D with the Commission and such filings
as are required to be made under applicable State Securities Laws (collectively, the “Required Approvals”).
(f) Issuance
of the Securities. The Securities are (or, in the case of any Conversion Shares, will be upon issuance) duly authorized and, when
issued and/or 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 other than restrictions on transfer provided for in the Transaction Documents. The Company has reserved from
its duly authorized capital stock a number of Common Shares at least equal to the subscription amount.
(g) Capitalization.
The capitalization of the Company is as set forth in the most recent SEC Report. The Company has not issued any Common Shares or Common
Shares Equivalents since its most recently filed periodic report under the Exchange Act, other than Exempt Issuances, the issuance of
Common Shares or Common Shares Equivalents pursuant to agreements outstanding as of the date of the most recently filed periodic report
under the Exchange Act and pursuant to the conversion and/or exercise of Common Shares Equivalents outstanding as of the date of the
most recently filed periodic report under the Exchange Act. 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 as set forth in the SEC Reports,
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 Common Shares or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by
which the Company or any Subsidiary is or may become bound to issue additional Common Shares or Common Shares Equivalents or capital
stock of any Subsidiary. The issuance and sale of the Securities will not obligate the Company or any Subsidiary to issue Common Shares
or other securities to any Person (other than the Investors) 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. There are no outstanding securities or instruments of
the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings
or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary.
The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.
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. Except for the Required Approvals, no further approval
or authorization of any stockholder, the Board of Managers or others is required for the issuance and sale of the Securities. There are
no members 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.
SECURITIES PURCHASE AGREEMENT |
(h) SEC
Reports; Financial Statements. Except as disclosed on Schedule 3.01(h),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, being
collectively referred to herein as the “SEC Reports”). 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 SEC 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 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: (a) there has been no event,
occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (b) 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 SEC, (c) the Company has not altered its method of accounting, (d) 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 (e) the Company has not issued any equity securities to any officer,
manager, director or Affiliate, except pursuant to existing Company equity incentive plans. The Company does not have pending before
the SEC 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, prospects, 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 one 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 or 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: (A) 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. None of
the Company, any Subsidiary or any manager, director or officer thereof, is or has been the subject of any Action involving a claim of
violation of or liability under any of the following: (x) the Securities Act, the Exchange Act or any State Securities Laws; (y) breach
of fiduciary duty; or (z) fraud (statutory or common law), embezzlement, misappropriation or conversion of property or rights, or any
other crime involving deceit.
SECURITIES PURCHASE AGREEMENT |
(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
or any Subsidiary which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or any Subsidiary’s
employees is a member of a union that relates to such employee’s relationship with the Company or any Subsidiary, and the Company
and its Subsidiaries are not a party to any collective bargaining agreement. The Company believes that its relationships with its employees
are good. No executive officer, to the knowledge of the Company, 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 Subsidiary to any liability with respect to any of the foregoing matters. To the best of the Company’s
knowledge, it 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.
Except as disclosed in the SEC Reports, the Company and each Subsidiary: (i) is neither in default under nor 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 not in violation of any order of any court, arbitrator
or governmental body; and (iii) is not and has not been in material violation of any statute, law, rule or regulation of any governmental
authority, including without limitation all foreign, federal, state and local laws applicable to its business and all such laws that
affect the environment.
(m) Permits.
The Company and its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state, local
or foreign regulatory authorities necessary to conduct its business (“Permits”), if applicable, and the Company and
its Subsidiaries have not received any notice of proceedings relating to the revocation or modification of any Permit.
(n) Title
to Assets. The Company and its Subsidiaries have good and marketable title in fee simple to all real property and good and marketable
title in all personal property owned by it that, in each case, is material to the business of the Company and its Subsidiaries, in each
case free and clear of all Liens, except for (collectively, “Permitted Liens”) (i) Liens disclosed in the SEC Reports
that do not materially and adversely (x) affect the value of such property or (y) interfere with the use made and proposed to be made
of such property by the Company and its Subsidiaries and (ii) Liens for the payment of federal, state or other taxes, the payment
of which is neither delinquent nor subject to penalties in any material respect. Any real property and facilities held under lease by
the Company or a Subsidiary is held by it under valid, subsisting and enforceable leases with which the Company or such Subsidiary (as
applicable) are in compliance.
(o) Patents
and Trademarks. (i) The Company and its Subsidiaries has, or has 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 necessary or material for use in connection with its business and which the failure to so have could reasonably be
expected to have a Material Adverse Effect (collectively, the “Intellectual Property Rights”); (ii) the Company and
its Subsidiaries have not received a notice (written or otherwise) that any of the Intellectual Property Rights violates or infringes
upon the intellectual property rights of any other Person; (iii) all Intellectual Property Rights are enforceable by the Company or a
Subsidiary, and there is no existing infringement by any other Person of any of the Intellectual Property Rights, except where the failure
to be so enforceable or for such infringements as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; and (iv) the Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality
and value of all of its Intellectual Property Rights, except where failure to do so could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
SECURITIES PURCHASE AGREEMENT |
(p) Transactions
with Officers, Managers and Employees. Except as disclosed in the SEC Reports, none of the officers, managers or directors of the
Company or its Subsidiaries and, to the knowledge of the Company, none of the employees of the Company or its Subsidiaries, is presently
a party to any transaction with the Company (other than for services as employees, officers, managers 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, or otherwise requiring payments to or from, any such officer, manager, director or employee or, to the knowledge of the Company,
any entity in which any such officer, manager, director or employee has a substantial interest or is an officer, manager, director, trustee,
member or partner, in each case in excess other than for: (x) payment of salary or fees for services rendered; (y) reimbursement for
expenses incurred on behalf of the Company or a Subsidiary; and (z) other employee benefits, including stock option agreements under
any stock option plan of the Company.
(q) Certain
Fees. Other than fees, commissions and expense reimbursement payable to the Placement Agent (which include: (i) a cash commission
of seven percent (7%) of the proceeds raised in the Offering; (ii) a non-accountable and non-reimbursable due diligence and expense fee
of one percent (1%) of the proceeds raised in the Offering; (iii) placement agent warrants of seven percent (7%) of the gross proceeds
raised in the Offering; and (iv) the other matters set forth in the engagement letter between the Company and the Placement Agent dated
November 20, 2024), 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 Offering
or any of the transactions contemplated by the Transaction Documents. The Investors 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 3.01(q) that may
be due in connection with the Offering or any of the transactions contemplated by the Transaction Documents.
(r) Private
Placement. Assuming the accuracy of the Investors’ representations and warranties set forth in section 3.02, no registration
under the Securities Act is required for the offer and sale of the Securities by the Company to the Investors as contemplated hereby.
(s) 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 be an ‘investment company’ subject to registration under
the Investment Company Act of 1940, as amended.
(t) Registration
Rights. Except as set forth on Schedule 3.01(t), 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. Assuming the accuracy of the Purchaser(s) representation
and warranties set forth in this Agreement and the corresponding transaction documents, no registration under the Securities Act is required
for the offer and sale of the Securities by the Company to the Purchase(s) as contemplated hereby.
(u) 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 bylaws or the laws of its state of incorporation that
is or could become applicable to the Investors as a result of the Investors and the Company fulfilling their obligations or exercising
their rights under the Transaction Documents.
SECURITIES PURCHASE AGREEMENT |
(v) Disclosure.
Except with respect to: (i) the material terms and conditions of the transactions contemplated by the Transaction Documents; and (ii)
information given to the Investors, if any, which the Company hereby confirms will not constitute material non-public information, the
Company confirms that neither it nor any other Person acting on its behalf has provided any of the Investors or their agents or counsel
withany information that it believes constitutes or might constitute material, nonpublic information. The Company understands and confirms
that the Investors will rely on the foregoing representation in effecting transactions in securities of the Company. All disclosure furnished
by or on behalf of the Company to the Investors regarding the Company, its business and the transactions contemplated hereby, 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.
(w) No
Integrated Offering. Assuming the accuracy of the Investors’ representations and warranties set forth in section 3.02, 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 to be integrated
with prior offerings by the Company for purposes of the Securities Act which would require the registration of any such securities under
the Securities Act.
(x) 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, 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 will not, after the Closing Date, 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). Except as disclosed in the SEC Reports,
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.
(y) 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 have filed all federal, state and foreign income and franchise tax returns and have
paid or accrued all taxes shown as due thereon, and the Company has no knowledge of a tax deficiency which has been asserted or threatened
against the Company or any Subsidiary.
(z) No
General Solicitation. Neither the Company nor any Person acting on behalf of the Company has offered or sold any of the Securities
by any form of general solicitation or general advertising. The Company has offered the Securities for sale only to the Investors and
certain other “accredited investors” within the meaning of Rule 501 under the Securities Act.
(aa)
Insurance. The Company and its Subsidiaries are insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as management of the Company reasonably believes to be prudent and customary in the businesses in which
the Company and its Subsidiaries are engaged. Neither the Company nor any of the Subsidiaries has been refused any insurance coverage
sought or applied for, and the Company has no reason to believe that it will not be able to renew all existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar insurers.
(bb)
Acknowledgment Regarding Investors’ Purchase of Securities. The Company acknowledges and agrees that each of the Investors
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 Investor is acting as a financial adviser 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 Investor or
any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby
is merely incidental to the Investors’ purchase of the Securities. The Company further represents to each Investor 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.
SECURITIES PURCHASE AGREEMENT |
(cc)
No Disqualification Events. With respect to Securities to be offered and sold hereunder in reliance on Rule 506(b) under the Securities
Act (“Regulation D Securities”), none of the Company, any of its predecessors, any affiliated issuer, any director,
manager, owner of twenty percent (20%) or more of the Company’s outstanding voting equity securities, calculated on the basis of
voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity
at the time of sale (each, an “Issuer Covered Person” and, together, “Issuer Covered Persons”)
is subject to any of the ‘Bad Actor’ disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act
(a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company
has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event. The Company has
complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Investors a copy of any
disclosures provided thereunder.
(dd)
Other Covered Persons. The Company is not aware of any person (other than any Issuer Covered Person or the Placement Agent) that
has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the sale of any Regulation
D Securities.
(ee)
Notice of Disqualification Events. The Company will notify the Investors in writing, prior to the Closing Date of: (i) any Disqualification
Event relating to any Issuer Covered Person; and (ii) any event that would, with the passage of time, become a Disqualification Event
relating to any Issuer Covered Person.
(ff)
Foreign Corrupt Practices. Neither the Company and its Subsidiaries, and to the knowledge of the Company, no 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 the Foreign Corrupt Practices
Act.
(gg)
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director,
manager, officer, agent, employee or affiliate of the Company or any Subsidiary, is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(hh)
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 an Investor’s
request.
(ii) Bank
Holding Company Act. Neither the Company nor any of its Affiliates is subject to the Bank Holding Company Act of 1956, as amended
(“BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (“Federal Reserve”).
Neither the Company nor any of its 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 (25%) 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 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.
(jj)
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 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, threatened.
SECURITIES PURCHASE AGREEMENT |
(kk)
Representations. The representations and warranties of the Company contained in this Agreement, and the certificate(s) furnished
or to be furnished to the Investors at the Closing, when taken as a whole, do not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances
under which they were made. The Company acknowledges and agrees that the representations contained in section 3.02 shall not modify,
amend or affect such Investor’s right to rely on the Company’s representations and warranties contained in this section 3.01
or elsewhere 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 transactions contemplated hereby.
Section
3.02 Representations and Warranties of the Investors.
Each
Investor, for itself and for no other Investor, 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 datetherein, in which case they shall be accurate as of such date):
(a) Authority;
Organization. Such Investor has full power and authority (and, if such Investor is an individual, the capacity) to enter into this
Agreement and to perform all obligations required to be performed by it hereunder. If an entity, such Investor is an entity duly organized,
validly existing under the laws of the jurisdiction of its organization with full right, corporate or partnership 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 Investor of the transactions
contemplated by the Transaction Documents have been duly authorized by all necessary corporate or similar action on the part of such
Investor. Each Transaction Document to which it is a party has been duly executed by such Investor, and when delivered by such Investor
in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Investor, 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 tothe availability of specific performance, injunctive relief or other equitable remedies, and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law.
(b) Own
Account. Such Investor understands that the Securities are “restricted securities” and have not been registered under
the Securities Act or any applicable State Securities Law and is acquiring the Securities as principal for its own account and not with
a view to or for distributing or reselling such Securities or any part thereof in violation of the Securities Act or any applicable State
Securities Law, has no present intention of distributing anyof such Securities in violation of the Securities Act or any applicable State
Securities Law 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 Investor’s right to sell the Securities in compliance with
applicable federal and State Securities Laws) in violation of the Securities Act or any applicable State Securities Law. Such Investor
is acquiring the Securities hereunder in the ordinary course of its business.
(c) Non-Transferrable.
Such Investor agrees: (i) that the Investor will not sell, assign, pledge, give, transfer or otherwise dispose of the Securities or any
interest therein, or make any offer or attempt to do any of the foregoing, except pursuant to a registration of the Securities under
the Securities Act and all applicable State Securities Laws, or in a transaction which is exempt from the registration provisions of
the Securities Act and all applicable State Securities Laws, (ii) that the certificates representing the Securities will bear a legend
making reference to the foregoing restrictions, and (iii) that the Company and its Affiliates shall not be required to give effect to
any purported transfer of such Securities except upon compliance with the foregoing restrictions.
SECURITIES PURCHASE AGREEMENT |
(d) Investor
Status. Such Investor is an “accredited investor” as defined in Rule 501(a) under Regulation D of the Securities Act.
The undersigned agrees to furnish any additional information requested by the Company or any of its Affiliates to assure compliance with
applicable U.S. federal and state securities laws in connection with the purchase and sale of the Securities. The undersigned has completed
the Confidential Investor Questionnaire contained in Appendix A and the information contained therein is complete and accurate
as of the date thereofand is hereby affirmed as of the Closing Date. Any information that has been furnished or that will be furnished
by the undersigned to evidence its status as an accredited investor is accurate and complete, and does not contain any misrepresentation
or material omission.
(e) Experience
of Such Investor. Such Investor, 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 theSecurities,
and has so evaluated the merits and risks of such investment. Such Investor 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.
(f) No
Trading Market. Such Investor acknowledges that there is currently no active trading market for the Securities and that none is expected
to develop.
(g) General
Solicitation. Such Investor undersigned acknowledges that neither the Company nor any other person offered to sell the Securities
to it by means of any form of general solicitation or advertising, including, but not limited to: (i) any advertisement, article, notice,
or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or (ii) any seminar
or meeting whose attendees were invited by any general solicitation or general advertising.
(h) Confidentiality.
Other than to other Persons party to this Agreement and its advisors who have agreed to keep information confidential or have a fiduciary
obligation to keep such information confidential, such Investor has maintained the confidentiality of all disclosures made to it in connection
with the transaction (including the existence and terms of this transaction).
(i) Foreign
Investor. If such Investor is not a United States person, such Investor represents that it has satisfied itself as to the full observance
of the laws of its jurisdiction in connection with any invitation to subscribe for the Securities or any use of this Agreement, including:
(i) the legal requirements within its jurisdiction for the purchase of the Securities, (ii) any foreign exchange restrictions applicable
to such purchase, (iii) any governmental or other consents that may need to be obtained, and (iv) the income tax and other tax consequences,
if any, that may be relevant to the purchase, holding, redemption, sale or transfer of the Securities. The Investor further represents
that its payment for, and its continued beneficial ownership of the Securities, will not violate any applicable securities or other laws
ofits jurisdiction.
(j) Information
from Company. Such Investor and its investment managers, if any, have been afforded the opportunity to obtain any information necessary
to verify the accuracy of any representations or information presented by the Company in this Agreement and have had all inquiries to
the Company answered, and have been furnished all requested materials, relating to the Company and the Offering and sale of the Securities
and anything set forth in the Transaction Documents. Neither the Investor nor the Investor’s investment managers, if any, have
been furnished any offering literature by the Company or any of its Affiliates, associates, or agents other than the Transaction Documents,
and the agreements referenced therein.
SECURITIES PURCHASE AGREEMENT |
(k) Speculative
Nature of Investment; Risk Factors. SUCH INVESTOR UNDERSTANDS THAT AN INVESTMENT IN THE SECURITIES INVOLVES A HIGH DEGREE OF RISK.
Such Investor acknowledges that: (i) any projections, forecasts or estimates as may have been provided to the Investor are purely
speculative and cannot be relied upon to indicate actual results that may be obtained through this investment; any such projections,
forecasts and estimates are based upon assumptions which are subject to change and which are beyond the control of the Company or its
management, (ii) the tax effects which may be expected by this investment are not susceptible to absolute prediction, and new developments
and rules of the Internal Revenue Service, audit adjustment, court decisions or legislative changes may have an adverse effect on one
or more of the tax consequences of this investment, and (iii) the Investor has been advised to consult with his own advisor regarding
legal matters andtax consequences involving this investment. The Investor represents that the Investor’s investment objective is
speculative in that the Investor seeks the maximum total return through an investment in a broad spectrum of securities, which involves
a higher degree of risk than other investment styles and therefore the Investor’s risk exposure is also speculative. The Securities
offered hereby are highly speculative and involve a high degree of risk and Investor should only purchase these securities if Investor
can afford to lose their entire investment.
(l) Money
Laundering. If an entity, the operations of such Investor 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 or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company
with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
(m) Independent
Evaluation. Such Investor confirms and agrees that (i) it has independently evaluated the merits of its decision to purchase the
Securities referenced hereinabove, (ii) it has not relied on the advise of, or any representation by the Placement Agent or any affiliate
thereof or any representative of the Placement Agent or its affiliates in making such decision, and (iii) neither the Placement Agent
nor any of its representatives has any responsibility with respect to the completeness or accuracy of any information or materials furnished
to such Investor in connection with the transactions contemplated hereby.
The
Company acknowledges and agrees that the representations contained in Section 3.02 shall not modify, amend or affect such Investor’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
Section
4.01 Transfer Restrictions.
(a) The
Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Securities
other than pursuant to an effective registration statement or Rule 144, the Company may require the transferor thereof to provide to
the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which
opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred
Securities under the Securities Act. The Securities may not be sold or transferred by the Investors without the written consent of the
Company, which shall not be unreasonably withheld. As a condition of such sale or transfer, any such transferee shall agree in writing
to be bound by the terms of this Agreement and shall have the rights of an Investor under this Agreement.
SECURITIES PURCHASE AGREEMENT |
(b) The
Investors agree to the imprinting, so long as is required by this Section 4.01, of a legend on any of the Securities in the following
form:
[NEITHER]
THIS SECURITY [NOR THE SECURITIES FOR/INTO WHICH THIS SECURITY IS EXERCISABLE/CONVERTIBLE] HAS BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL
TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
(c) Upon
the Investor’s request in connection with a proposed sale of Securities pursuant to Rule 144 and if the Company reasonably determines
it is so required, upon receipt of customary documentation from Investor’s broker (if the Securities are sold in brokers transactions),
the Company shall, at its own cost and effort, retain legal counsel to provide an opinion letter to the Company’s transfer agent
opining that the Securities may be resold without registration under the Securities Act, pursuant to Rule 144, promulgated thereunder,
so long as the requirements of Rule 144 are met for any Securities to be resold thereunder. The Company shall arrange for any such opinion
letter to be provided not later than two (2) Business Days after the date of delivery to and receipt by the Company of a written request
by any Investor together with (if required in order to renderthe opinion) any broker’s representation letter of other customary
documentation reasonably requested by the Company evidencing compliance with Rule 144 (the “Legend Removal Date”),
and such opinion letter may be a “blanket” opinion letter covering Securities held bymore than one Investor (if applicable
to more than one Investor).
(d) Each
Investor, severally and not jointly with the other Investors, agrees that such Investor will sell any Securities only pursuant to either
the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom,
and that if Securities are sold pursuant to a registration statement, they will be sold in compliance with the plan of distribution set
forth therein, and acknowledges that the removal of the restrictive legend from certificates representing Securities as set forth in
this Section 4.01 is predicated upon the Company’s reliance upon this understanding.
Section
4.02 Use of Proceeds. The Company shall use the net proceeds from the sale of the Securities hereunder to: (a) pay off in
full, the outstanding balance owed to the State of Delaware, for franchise tax, filing fees, and any and all other outstanding
balances that are owed to the State of Delaware; (b) cover the expenses related to the Offering; and (b for general working capital
purposes and shall not use such proceeds: (i) 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); (ii) for the redemption of any Common
Shares or Common Shares Equivalents; (iii) for the settlement of any outstanding litigation; (iv) in violation of FCPA or OFAC
regulations; or (v) to lend, give credit or make advances to any officers, managers, directors, employees or Affiliates of the
Company other than as stated in Section 4.02(b).
Section
4.03 Integration. 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), including in or as any Subsequent Financing, that would be integrated with
the offer or sale of the Securities to the Investors in a manner that would require the registration under the Securities Act of the
sale of the Securities to the Investors.
SECURITIES PURCHASE AGREEMENT |
Section
4.04 Publicity. The Company and each Investor shall consult with each other in issuing any other press releases with respect to
the transactions contemplated hereby, and neither the Company nor any Investor shall issue any such press release nor otherwise make
any such public statement without the prior consent of the Company with respect to any press release of any Investor, or without the
prior consent of each Investor with respect to any press release of the Company mentioning such Investor, which consent shall not unreasonably
be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other
party with prior notice of such public statement or communication.
Section
4.05 Indemnification of Investors. The Company shall indemnify, reimburse and hold harmless the Investors and their respective
partners, members, stockholders, officers, directors, managers, employees and agents (and any other persons with other titles that have
similar functions) (collectively, “Indemnitees”) from and against any and all losses, claims, liabilities, damages,
penalties, suits, costs and expenses, of any kind or nature, (including fees relating to the cost of investigating and defending any
of the foregoing) imposed on, incurred by or asserted against such Indemnitee in any way related to or arising from or alleged to arise
from: (i) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the
other Transaction Documents and (ii) any action instituted against such Indemnitee in any capacity, or any of them or their respective
Affiliates, by any stockholder of the Company who is not an Affiliate of such Indemnitee, with respect to any of the transactions contemplated
by the Transaction Documents (unless such action is based upon a breach of such Indemnitee’s representations, warranties or covenants
under the Transaction Documents or any agreements or understandings such Indemnitee may have with any such stockholder or any violations
by such Indemnitee of state or federal securities laws or any conduct by such Indemnitee which results from the gross negligence or willful
misconduct of the Indemnitee as determined by a final, nonappealable decision of a court of competent jurisdiction).
Section
4.06 Reservation of Shares.
(a) The
Company shall maintain a reserve from its duly authorized shares of Common Shares for issuance pursuant to the Securities.
(b) If,
on any date, the number of authorized but unissued (and otherwise unreserved) Common Shares is less than the minimum amount of shares
to be issued pursuant to this Agreement, on such date, 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 Common Shares to at least
the necessary amount in accordance with the applicable subscription amount, at such time, as soon as possible and in any event not later
than the 60th day after such date.
SECURITIES PURCHASE AGREEMENT |
Section
4.07 Equityholder Approval; Prohibition on Issuance. In this Agreement “Equityholder Approval” means the approval
of the holders of a majority of the Company’s outstanding Common Shares to effectuate the transactions contemplated by this Agreement,
including the issuance of all of the Underlying Securities, in excess of 19.99% of the Company’s Common Shares (measured by number
and voting power in accordance with the rules of the Nasdaq Stock Market LLC)) (the “Exchange Cap”, subject to appropriate
adjustment for any stock dividend, stock split, stock combination, rights offerings, reclassification or similar transaction that proportionately
decreases or increases the number of outstanding Common Shares). Further, the Investors hereby acknowledge and agree that: (A) the portion
of the Exchange Cap allocated to the Investors for the issuance of the shares of Underlying Securities shall be limited to 19.99%
Common Shares (the “Allocated Exchange Cap”, subject to appropriate adjustment for any stock dividend, stock split,
stock combination, rights offerings, reclassification or similar transaction that proportionately decreases or increases the number of
outstanding Common Shares), and (B) notwithstanding anything to the contrary set forth in the Notes or Warrants, in no event shall the
Company issue Conversion Shares or Warrant Shares thereunder prior to the time that Equityholder Approval shall have been obtained. The
Company shall hold a special meeting of its members on or before the date that is sixty (60) calendar days after the date hereof, for
the purpose of obtaining Equityholder Approval, with the recommendation of the Company’s Board of Managers that such proposal be
approved, and the Company shall solicit proxies from its members in connection therewith in the same manner as all other management proposals
in such proxy statement and all management-appointed proxyholders shall vote their proxies in favor of such proposal. In addition, all
members of the Company’s Board of Directors and all of the Company’s executive officers shall vote in favor of such proposal,
for purposes of obtaining the Equityholder Approval, with respect to all membership interests of the Company then held by such Persons.
The Company shall use its best efforts to obtain such Equityholder Approval. If the Company does not obtain Equityholder Approval at
the first meeting, the Company shall call a meeting as often as possible thereafter to seek Equityholder Approval until the Equityholder
Approval is obtained. Until such approval is obtained, the Investors shall not be issued in the aggregate, pursuant to the Agreement
or upon conversion or exercise, as applicable, of the Note or Warrants, Common Shares in an amount greater than the Exchange Cap. Except
with respect to the Securities, during the period beginning on the date of this Agreement and continuing through the date that the Equityholder
Approval is obtained, the Company shall not issue any (i) Common Shares at a price per share or cost basis of less than the Exercise
Price of the Warrants then in effect or (ii) Common Shares Equivalents that are exercisable or convertible into Common Shares at a price
per share or cost basis of less than such Exercise Price.
Section
4.08 Use of Proceeds of Certain Subsequent Financings, with Conversion Feature. If, at any time while the Notes are outstanding,
the Company consummates another (not more than one) equity or equity-linked securities issuance, loan agreement or other financing, including
(without limitation) any Regulation A, equity line, debt or equity financing, S-1 or S-3 raise) with gross proceeds of equal to or greater
than $2,500,000 (each, a “Subsequent Financing”), the Warrants to be issued in accordance with this Agreement, and
the corresponding transaction documents, shall either (i) convert at the offering price of the next round of Subsequent Financing, or
(ii) the Note shall be repaid from the proceeds of the Subsequent Financing; which the Investor shall have the option to determine whether
it elects option (i) or (ii), at that time.
Section
4.09 Covenant to Fulfill Payment Obligation to the State of Delaware. The Company covenants and agrees that, in connection with
the proceeds of this transaction, upon receipt of the proceeds, it shall make payment to the State of Delaware to fulfill all outstanding
liabilities and obligations with the State of Delaware, which shall include, but are not limited to, payment of all outstanding filing
fees, taxes and any additional fees that may be owed.
Section
4.10 Covenant to Bring All SEC Filings and Reports Current. The Company covenants and agrees to bring all delinquent filings and
reports required under the Exchange Act current within thirty (30) days of the Closing Date.
ARTICLE
V
MISCELLANEOUS
Section
5.01 Termination. This Agreement may be terminated by any Investor, as to such Investor’s obligations hereunder only and
without any effect whatsoever on the obligations between the Company and the other Investors, by written notice to the other parties,
if the Closing has not been consummated on or before the Termination Date; provided, however, that such termination will not affect the
right of any party to sue for any breach by the other party (or parties).
Section
5.02 Fees and Expenses. 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: (i) except as otherwise provided in Section 3.01(q), and (ii) provided that at the initial Closing the Company shall
pay directly to the Placement Agent’s counsel $25,000 on account of the Placement Agent’s legal expenses in connection with
such negotiation, preparation, execution, delivery and performance of the Transaction Documents.
SECURITIES PURCHASE AGREEMENT |
Section
5.03 Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding
of the parties with respect to the subject matter hereof 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.
Section
5.04 Notices. Any notice, request, instruction or other document to be given hereunder by any party to the others shall be in
writing and delivered personally or sent by registered or certified mail, postage prepaid, or by or email:
if
to an Investor or Investors:
To
the address set forth on such Investor’s signature page hereto;
with
a copy to (which shall not constitute notice):
Sichenzia
Ross Ference Carmel LLP |
|
1185
Avenue of the Americas, 31st Floor |
|
New
York, NY 10035 |
|
Attn: |
Jesse
L. Blue, Esq. |
|
Email: |
jblue@srfc.law |
|
if
to the Company:
Celularity
Inc.170 Park Ave, Florham Park, |
|
New
Jersey, 07932 |
|
Attention: |
Robert
J. Hariri, Chief Executive Officer |
|
with
a copy to (which shall not constitute notice):
or
to such other Persons or addresses as may be designated in writing by the party to receive such notice as provided above.
Section
5.05 Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented, or amended except in a written
instrument signed, in thecase of an amendment, by the Company and the Investors holding at least a majority in principal amount of the
Notes then outstanding including the Lead Investor 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 bedeemed
to be a continuing waiver in the future or a waiver of any subsequent default or awaiver 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.
Section
5.06 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 Investor (other than by merger). Any Investor may assign any or all of its rights under this Agreement to any Person to whom
such Investor assignsor transfers any Securities, provided that such transfer complies with all applicable federal and State Securities
Laws and that such transferee agrees in writing with the Company to be bound, with respect to the transferred Securities, by the provisions
of the Transaction Documents that apply to the “Investors.”
SECURITIES PURCHASE AGREEMENT |
Section
5.07 No Third-Party Beneficiaries. This Agreement is intended for sole 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.
Section
5.08 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 conflict of laws thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense
of the transactions contemplated by any of the Transaction Documents (whether brought against a party hereto or its respective Affiliates,
managers, directors, officers, stockholders, employees or agents) shall be commenced exclusively in the federal and state courts sitting
in the County of New York, New York (the “New York Courts”). Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the New York Courts 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 suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such New
York Courts, or such New York Courts are improper or 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 applicable law. Each party hereto
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 the Transaction Documents or the transactions contemplated hereby. If any party shall commence an action
or proceeding to enforce any provisions of the Transaction Documents, then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its attorney’s fees and other costs and expenses incurred in the investigation, preparation and
prosecution of such action or proceeding.
Section
5.09 Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.
Section
5.10 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 datafile, 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 was an original thereof.
Section
5.11 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 hereinshall
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.
SECURITIES PURCHASE AGREEMENT |
Section
5.12 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 Investor 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 Investor 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 a Note, the Investor shall be required to return any Common Shares subject to any such rescinded conversion or exercise notice.
Section
5.13 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.
Section
5.14 Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages,
each of the Investors and the Company will be entitled to seek 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.
Section
5.15 Payment Set Aside. To the extent that the Company makes a payment or payments to any Investor pursuant to any Transaction
Document or an Investor 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 enforcementor setoff had not occurred.
Section
5.16 Independent Nature of Investors’ Obligations and Rights. The obligations of each Investor under any Transaction Document
are several and not joint with the obligations of any other Investor, and no Investor shall be responsible in any way for the performance
or non-performance of the obligations of any other Investor under any Transaction Document. Nothing contained herein or in any other
Transaction Document, and no action taken by any Investor pursuant thereto, shall be deemed to constitute the Investors as a partnership,
an association, a joint venture, or any other kind of entity, or create a presumption that the Investors 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 Investor 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 Investor to be joined as an additional party in any
proceeding for such purpose. Each Investor has been represented by its own separate legal counsel in their review and negotiation of
the Transaction Documents. The Company has elected to provide all Investors 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 the Investors.
Section
5.17 Construction. The parties agree that each of them and/or their respective counsel has 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 hereto. In addition,
each and every reference to share prices and Common Shares 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 Shares that occur after the date
of this Agreement.
Section
5.18 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.
Section
5.19 WAIVER 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]
SECURITIES PURCHASE AGREEMENT |
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 below.
|
CELULARITY
INC. |
|
|
|
By: |
|
|
Name: |
Robert
J. Hariri |
|
Title: |
Chief
Executive Officer |
|
|
|
|
INVESTORS:
The
Investors executing the Signature Page in the form attached hereto as Annex A and delivering the same to the Company
or its agents shall be deemed to have executed this Agreement and agreed to the terms hereof. |
SECURITIES PURCHASE AGREEMENT |
Annex
A
Securities
Purchase Agreement Investor Counterpart Signature Page
The
undersigned, desiring to: (i) enter into this Securities Purchase Agreement dated as of November [ ], 2024 (the
“Agreement”), with the undersigned, Celularity Inc., a Delaware corporation (the “Company”), in
or substantially in the form furnished to the undersigned and (ii) purchase the Securities as set forth below, hereby agrees to purchase
such Securities from the Company as of the Closing and further agrees to join the Agreement as a party thereto, with all the rights and
privileges appertaining thereto, and to be bound in all respects by the terms and conditions thereof. The undersigned specifically acknowledges
having read the representations in this Agreement’s section entitled “Representations Warranties of the Investors”,
and hereby represents that the statements contained therein are complete and accurate with respect to the undersigned as an Investor.
INVESTOR
(if an individual): |
|
INVESTOR
(if an entity): |
|
|
|
By |
|
|
|
Name: |
|
|
(Legal
Name of Entity) |
Date: |
|
|
|
|
|
|
|
By |
|
INVESTOR
(if investing jointly) |
|
Name: |
|
|
|
|
Title: |
|
By |
|
|
Date: |
|
Name: |
|
|
|
|
Date: |
|
|
|
|
State/Country
of Domicile or Formation: ____________________________________________________
Aggregate
Subscription Amount: $____________________________________________________
SSN/EIN/ITIN:
____________________________________________________
Address:
____________________________________________________________________
SECURITIES PURCHASE AGREEMENT |
APPENDIX
A
CONFIDENTIAL
INVESTOR QUESTIONNAIRE
APPENDIX
B
FORM
OF NOTES
APPENDIX
C
FORM
OF WARRANT
SECURITIES PURCHASE AGREEMENT |
Schedule
3.01(a)
Anthrogenesis
LLC
Caricord,
Inc.
Celularity
Biobanking LLC
Celularity
LLC
Schedule
3.01(a)
The
quarterly report on form 10-Q for the quarter ended September 30th, 2024.
Exhibit
10.2
APPENDIX
B
UNSECURED
BRIDGE NOTE
NEITHER
THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON CONVERSION
OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
Original
Issue Date: November [__], 2024
Maturity
Date: November [ ], 2025
Principal
Amount: $[_____]
CELULARITY
INC.
UNSECURED BRIDGE NOTE
THIS
UNSECURED BRIDGE NOTE is a validly issued promissory notes of Celularity Inc., a Delaware corporation (the “Company”),
designated a unsecured promissory notes (the “Note”).
FOR
VALUE RECEIVED, the Company promises to pay to [ ] or its registered assigns (“Holder”) the principal sum of $[ ]
(the “Original Principal Amount”), together with eight percent (8%) per annum interest thereon (computed on the basis
of a 360-day year for the actual number of days elapsed) on the Maturity Date specified above (the “Maturity Date”)
or such earlier date as this Note is required or permitted to be repaid as provided hereunder. This Note is subject to the following
additional provisions:
Section
1. Definitions. For the purposes hereof, in addition to the terms defined elsewhere in this Note: (a) capitalized
terms not otherwise defined herein shall have the meanings set forth in the Purchase Agreement, and (b) the following terms shall
have the following meanings:
“Alternate
Consideration” shall have the meaning set forth in Section 5(j).
“Bankruptcy
Event” means any of the following events: (a) the Company or any Significant Subsidiary (as such term is defined in Rule 1-02(w)
of Regulation S-X) thereof commences a case or other proceeding under any bankruptcy, reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction relating to the Company or any Significant
Subsidiary thereof, (b) there is commenced against the Company or any Significant Subsidiary thereof any such case or proceeding that
is not dismissed within 60 days after commencement, (c) the Company or any Significant Subsidiary thereof is adjudicated insolvent or
bankrupt or any order of relief or other order approving any such case or proceeding is entered, (d) the Company or any Significant Subsidiary
thereof suffers any appointment of any custodian or the like for it or any substantial part of its property that is not discharged or
stayed within 60 calendar days after such appointment, (e) the Company or any Significant Subsidiary thereof makes a general assignment
for the benefit of creditors, (f) the Company or any Significant Subsidiary thereof calls a meeting of its creditors with a view to arranging
a composition, adjustment or restructuring of its debts, (g) the Company or any Significant Subsidiary thereof admits in writing that
it is generally unable to pay its debts as they become due, (h) the Company or any Significant Subsidiary thereof, by any act or failure
to act, expressly indicates its consent to, approval of or acquiescence in any of the foregoing or takes any corporate or other action
for the purpose of effecting any of the foregoing.
“Beneficial
Ownership Limitation” shall have the meaning set forth in Section 4(c)
“Business
Day” means any day except Saturday, 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.
“Change
of Control Transaction” means the occurrence after the date hereof of any of: (a) an acquisition after the date hereof by an
individual or legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective
control (whether through legal or beneficial ownership of capital stock of the Company, by contract or otherwise) of in excess of 50%
of the voting securities of the Company (other than by means of conversion of the Notes), (b) the Company merges into or consolidates
with any other Person, or any Person merges into or consolidates with the Company and, after giving effect to such transaction, the stockholders
of the Company immediately prior to such transaction own less than 50% of the aggregate voting power of the Company or the successor
entity of such transaction, (c) the Company sells or transfers all or substantially all of its assets to another Person and the stockholders
of the Company immediately prior to such transaction own less than 50% of the aggregate voting power of the acquiring entity immediately
after the transaction, (d) a replacement at one time or within a three year period of more than one-half of the members of the Board
of Directors which is not approved by a majority of those individuals who are members of the Board of Directors on the Original Issue
Date (or by those individuals who are serving as members of the Board of Directors on any date whose nomination to the Board of Directors
was approved by a majority of the members of the Board of Directors who are members on the date hereof), or (e) the execution by the
Company of an agreement to which the Company is a party or by which it is bound, providing for any of the events set forth in clauses
(a) through (d) above.
“Conversion”
means a conversion of this Note pursuant to Section 4.
“Conversion
Date” means the date of any Conversion following the occurrence of any Event of Default in accordance with the terms of this
Note.
“Conversion
Price” means, as of any Conversion Date or the other date of determination (i) $2.85 (as may be adjusted for any stock splits,
reverse stock splits, stock dividends, or similar transaction as set forth in the Note; or (ii) a price equal to the greater of (a) the
offering price of the next Subsequent Financing, or (b) the Floor Price. For the avoidance of doubt, in no event shall the Conversion
Price be lower than the Floor Price, or greater than $2.85. Soley by way of example to illustrate the conversion price adjustment contemplated
herein, if a Subsequent Financing is consummated at $0.50, the Conversion Price adjusts to the Floor Price of $1.00 and; if a Subsequent
Financing is consummated at $2.00, the Conversion Price would adjust to $2.00.
“Default
Amount” means the sum of: (i) the product of (x) the outstanding balance of the Original Principal Amount of this Note and
(y) 110%, plus (ii) all other amounts, costs, expenses, and liquidated damages due under or in respect of this Note, if any.
“Event
of Default” shall have the meaning set forth in Section 7(a).
“Fundamental
Transaction” shall have the meaning set forth in Section 5(j).
“Indebtedness”
means any liabilities of the Company for borrowed money or amounts owed and all guaranties made by the Company of borrowed money or amounts
owed by others.
“Lien”
means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest
in, on or of such asset, and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.
“New
York Courts” shall have the meaning set forth in Section 8(e).
“Note
Register” shall have the meaning set forth in Section 2.
“Original
Issue Date” means the date of the first issuance of the Note(s), regardless of any transfers of any Note and regardless of
the number of instruments which may be issued to evidence such Notes.
“Payment
Amount” means the sum of: (i) the outstanding balance of the Original Principal Amount of this Note plus (ii) all other
amounts, costs, expenses, and liquidated damages due under or in respect of this Note, if any.
“Purchase
Agreement” means the Securities Purchase Agreement, dated as of November [ ], 2024 by and among the Company and the original
Holders, as amended, modified, or supplemented from time to time in accordance with its terms.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Share
Delivery Date” shall have the meaning set forth in Section 4(b)(ii).
“Subsequent
Financing” means, any time while the Notes are outstanding, the Company consummates another (not more than one) equity or equity-linked
securities issuance, loan agreement or other financing, including (without limitation) any Regulation A, equity line, debt or equity
financing, S-1 or S-3 raise, with gross proceeds of equal to or greater than $2,500,000.
“Successor
Entity” shall have the meaning set forth in Section 5(j).
“Trading
Day” means any day on which the principal Trading Market is open for trading or quoting.
“Trading
Market” means any of the following markets or exchanges on which the Common Shares are listed or quoted for trading
on the date in question, the Nasdaq Stock Market LLC (or any successor thereto).
Section
2. Payment and Prepayment. On the Maturity Date the entire unpaid Payment Amount (or, if an Event of Default shall have previously
occurred, the entire Default Amount) shall become due and payable. The Company may prepay this Note in full at any time after the Original
Issue Date, and shall prepay this Note as required pursuant to Section 4.09 of the Purchase Agreement, in an amount equal to the Payment
Amount (or, if an Event of Default shall have previously occurred, the Default Amount). The Company must provide at least ten (10) calendar
days’ prior written notice to the Holder of any intended payment or prepayment under this Note following the occurrence of any
Event of Default, during which time the Holder may convert this Note, in whole or in any part, pursuant to Section 4. Prepayment shall
not be offered to any holder of Notes unless prepayment is offered pro rata to all holders of Notes on identical terms.
Section
3. Registration of Transfers and Exchanges.
(a)
Different Denominations. This Note is exchangeable for an equal aggregate Original Principal Amount of Notes of different authorized
denominations, as requested by the Holder surrendering the same. No service charge will be payable for such registration of transfer
or exchange.
(b)
Investment Representations. This Note has been issued subject to certain investment representations of the original Holder set
forth in the Purchase Agreement and may be transferred or exchanged only in compliance with the Purchase Agreement and applicable federal
and state securities laws and regulations.
(c)
Reliance on Note Register. Prior to due presentment for transfer to the Company of this Note, the Company and any agent of the
Company may treat the Person in whose name this Note is duly registered on the Note Register as the owner hereof for the purpose of receiving
payment as herein provided and for all other purposes, whether or not this Note is overdue, and neither the Company nor any such agent
shall be affected by notice to the contrary.
Section
4. Conversion.
(a)
Conversion. Subject to the applicable sections of the Purchase Agreement, on any date in which there has been a Subsequent Financing,
while this Note is outstanding and an Event of Default shall have previously occurred, the Holder shall have the right, at the Holder’s
option, to convert the Default Amount of this Note at the Conversion Price, in whole or in part, into the Company’s Common Shares
by following the mechanics of conversion set forth in Section 4(b) provided that in no event shall the Conversion Price be less than
the Floor Price. The “Floor Price” shall mean $1.00 per Common Share, as adjusted for any stock splits, reverse stock splits,
stock dividends, or similar transactions.
(b)
Mechanics of Conversion.
(i)
Conversion Notice. Holder may, upon a Subsequent Financing shall be permitted to convert all or any portion of the Note amount
into the Company’s Common Shares at the Conversion Price, by delivering to the Company: (A) written notice of its election to convert
this Note pursuant to this Section 4, including the Conversion Amount, and (B) in the case of a Conversion of the entire Conversion Amount
of this Note, the original Note instrument (or a notice to the effect that such original Note has been lost, stolen or destroyed). For
the avoidance of doubt, any Conversion Notice provided hereunder shall comply with the Floor Price limitation set forth in Section 4(a).
(ii)
Delivery of Conversion Shares Upon Conversion. Not later than two (10) Trading Days after the Conversion Date (the “Share
Delivery Date”), the Company shall deliver, or cause to be delivered, to the Holder the Conversion Shares. The Conversion Shares
shall be calculated using the Conversion Price, unless the Conversion Price is below the Floor Price, in which case, the Floor Price
would be used.
(iii)
Failure to Deliver Conversion Shares. If, in the case of any Conversion, the Conversion Shares are not delivered to or as directed
by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Company at any time
on or before its receipt of such Conversion Shares to rescind the Conversion, in which event the Company shall promptly return to the
Holder any original Note delivered to the Company and the Holder shall promptly return to the Company the Conversion Shares (if any)
issued to such Holder pursuant to the rescinded Conversion Notice. Additionally, if the Conversion Shares are not delivered to a Holder
of such Conversion Shares pursuant to this section, on the second Trading Day after the Share Delivery Date applicable to such conversion,
the Company shall pay to such Holder, in cash, as liquidated damages and not as a penalty, for each $5,000 of Indebtedness being converted,
$50 per Trading Day (increasing to $100 per Trading Day on the third Trading Day and increasing to $200 per Trading Day on the sixth
Trading Day after such damages begin to accrue) for each Trading Day after such second Trading Day after the Share Delivery Date until
such Conversion Shares are delivered or Holder rescinds such conversion.
(iv)
Failure to Register the Securities. If: (i) the Initial Registration Statement is not filed on or prior to 60 days from (if the
Company files the Initial Registration Statement without affording the Holders the opportunity to review and comment on the same as
required herein or the Company subsequently withdraws the filing of the Registration Statement, the Company shall be deemed to have
not satisfied this clause (i)) as of the Filing Date, or (ii) the Company fails to file with the Commission a request for
acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act,
within five Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission
that such Registration Statement will not be “reviewed” or will not be subject to further review, or (iii) prior to the
effective date of a Registration Statement, the Company fails to file a pre-effective amendment and otherwise respond in writing to
comments made by the Commission in respect of such Registration Statement within ten (10) calendar days after the receipt of
comments by or notice from the Commission that such amendment is required in order for such Registration Statement to be declared
effective, or (iv) a Registration Statement registering for resale all of the Registrable Securities is not declared effective by
the Commission by the Effectiveness Date of the Initial Registration Statement (provided if the Registration Statement does not
allow for the resale of Registrable Securities at prevailing market prices (i.e., only allows for fixed price sales), the Company
shall have been deemed to have not satisfied this clause), or (v) after the effective date of a Registration Statement, such
Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such
Registration Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable
Securities, for more than ten (10) consecutive calendar days or more than an aggregate of fifteen (15) calendar days (which need not
be consecutive calendar days) during any 12-month period (any such failure or breach being referred to as an
“Event”, and for purposes of clauses (i) and (iv), the date on which such Event occurs, and for purpose of
clause (ii) the date on which such five (5) Trading Day period is exceeded, and for purpose of clause (iii) the date which
such ten (10) calendar day period is exceeded, and for purpose of clause (v) the date on which such ten (10) or fifteen (15)
calendar day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to
any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of
each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the
Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of 2.0%
multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay
any partial liquidated damages pursuant to this Section 2.4 in full within seven days after the date payable, the Company will pay
interest thereon at a rate of 15% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the
Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are
paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a
month prior to the cure of an Event.
(v)
Obligation Absolute; Partial Liquidated Damages. The Company’s obligations to issue and deliver the Conversion Shares upon
conversion of this Note in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by
the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any
Person or any action to enforce the same, or any set off, counter claim, recoupment, limitation or termination, or any breach or alleged
breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder
or any other Person (unless the Conversion would violate any law applicable to the Company), and irrespective of any other circumstance
which might otherwise limit such obligation of the Company to the Holder in connection with the issuance of such Conversion Shares; provided,
however, that such delivery shall not operate as a waiver by the Company of any such action the Company may have against the Holder.
In the event the Holder of this Note shall elect to convert any or all of the Conversion Amount hereof, the Company may not refuse conversion
based on any claim that the Holder or anyone associated or affiliated with the Holder has been engaged in any violation of law, agreement
or for any other reason, unless an injunction from a court, on notice to Holder, restraining and or enjoining conversion of all or part
of this Note shall have been sought and obtained, and the Company posts a surety bond for the benefit of the Holder in the amount of
150% of the Default Amount of this Note, which is subject to the injunction, which bond shall remain in effect until the completion of
arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to the Holder to the extent it obtains judgment.
In the absence of such injunction, the Company shall issue Conversion Shares or, if applicable, cash, upon a properly noticed conversion.
If the Company fails for any reason to deliver to the Holder such Conversion Shares pursuant to Section 4(b)(ii) by the Share Delivery
Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Conversion Amount
being converted, $10 per Trading Day (increasing to $20 per Trading Day on the fifth (5th) Trading Day after such liquidated damages
begin to accrue) for each Trading Day after such Share Delivery Date until such Conversion Shares are delivered or Holder rescinds such
conversion. Nothing herein shall prohibit the Holder from seeking to enforce damages pursuant to any other section hereof or under applicable
law.
(vi)
Reservation of Shares Issuable Upon Conversion. The Company covenants that it will at all times reserve and keep available out
of its authorized and unissued Common Shares for the sole purpose of issuance upon Conversion, free from preemptive rights or any other
actual contingent purchase rights of Persons other than the Holder (and the other holders of the Notes). The Company covenants that all
Common Shares that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable and, if a
registration statement covering the resale of the Conversion Shares is then effective under the Securities Act, shall be registered for
public resale in accordance with such registration statement.
(vii)
Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of this Note.
As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Company shall at its
election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion
Price or round up to the next whole share.
(viii)
Transfer Taxes and Expenses. The issuance of Conversion Shares on conversion of this Note shall be made without charge to the
Holder hereof for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such Conversion Shares,
provided that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance
and delivery of any such Conversion Shares upon conversion in a name other than that of the Holder of this Note so converted and the
Company shall not be required to issue or deliver such Conversion Shares unless or until the Person or Persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such
tax has been paid. The Company shall pay all transfer agent fees required for same-day processing of any conversion and all fees to the
Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic
delivery of the Conversion Shares. The Company shall pay all attorney fees required for the issuance of attorney legal opinions for removal
of restrictive legends on Conversion Shares.
(c)
Holder’s Conversion Limitations. The Company shall not affect any conversion of this Note, and a Holder shall not have the
right to convert any portion of this Note, to the extent that after giving effect to the conversion, the Holder (together with the Holder’s
Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution
Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the
foregoing sentence, the number of Common Shares beneficially owned by the Holder and its Affiliates and Attribution Parties shall include
the number of Common Shares issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude
the number of Common Shares which are issuable upon: (i) conversion of the remaining, unconverted Conversion Amount of this Note beneficially
owned by the Holder or any of its Affiliates or Attribution Parties, and (ii) exercise or conversion of the unexercised or unconverted
portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained
herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its Affiliates or
Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 4(c), beneficial ownership shall be
calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that
the limitation contained in this Section 4(c) applies, the determination of whether this Note is convertible (in relation to other securities
owned by the Holder together with any Affiliates and Attribution Parties) and of which Conversion Amount of this Note is convertible
shall be in the sole discretion of the Holder. In addition, a determination as to any group status as contemplated above shall be determined
in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section
4(c), in determining the number of outstanding Common Shares, the Holder may rely on the number of outstanding Common Shares as stated
in the most recent of the following: (A) the Company’s most recent periodic or annual report filed with the Commission, as the
case may be, (B) a more recent public announcement by the Company, or (C) a more recent written notice by the Company or the Company’s
transfer agent setting forth the number of Common Shares outstanding. Upon the written or oral request of a Holder, the Company shall
within one Trading Day confirm orally and in writing to the Holder the number of Common Shares then outstanding. In any case, the number
of outstanding Common Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including
this Note, by the Holder or its Affiliates since the date as of which such number of outstanding Common Shares was reported. The “Beneficial
Ownership Limitation” shall be 4.99% of the number of shares of the Common Shares outstanding immediately after giving effect
to the issuance of Common Shares issuable upon conversion of this Note held by the Holder. The Holder, upon notice to the Company, may
increase or decrease the Beneficial Ownership Limitation provisions of this Section 4(c), provided that the Beneficial Ownership Limitation
in no event exceeds 9.99% of the number of shares of the Common Shares outstanding immediately after giving effect to the issuance of
Common Shares upon conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 4(c)
shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice
is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a
manner otherwise than in strict conformity with the terms of this Section 4(c) to correct this paragraph (or any portion hereof) which
may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements
necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor
holder of this Note.
Section
5. Certain Adjustments.
(a)
Stock Dividends and Stock Splits. If the Company, at any time while this Note is outstanding on or after the date of the occurrence
(if any) of an Event of Default: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in Common Shares
on Common Shares or any Common Shares Equivalents (which, for avoidance of doubt, shall not include any Common Shares issued by the Company
upon conversion of, or payment of interest on, the Notes or the Company’s outstanding Preferred Shares), (ii) subdivides outstanding
Common Shares into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding Common Shares into
a smaller number of shares or (iv) issues, in the event of a reclassification of shares of the Common Shares, any shares of capital stock
of the Company, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of Common Shares
(excluding any treasury shares of the Company) outstanding immediately before such event, and of which the denominator shall be the number
of Common Shares outstanding immediately after such event. Any adjustment made pursuant to this Section 5 shall become effective immediately
after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision, combination or re classification.
(b)
Subsequent Equity Sales. If at any time while this Note is outstanding on or after the date of the occurrence (if any) of an Event
of Default, the Company issues or sells, announces any offer, sale, or other disposition of, or in accordance with this Section 5 is
deemed to have issued, sold or granted (or makes an announcement regarding the same), any Common Shares and/or Common Shares Equivalents
(including the issuance or sale of Common Shares owned or held by or for the account of the Company, but excluding any securities issued
or sold or deemed to have been issued or sold solely in connection with an Exempt Issuance) for a consideration per share (the “New
Issuance Price”) less than a price equal to the Conversion Price in effect immediately prior to such issuance or sale or deemed
issuance or sale (such Conversion Price then in effect is referred to herein as the “Applicable Price”) (the foregoing
a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be
reduced to an amount equal to the New Issuance Price; provided, however, that the foregoing adjustment shall only be in effect one time
only, subject to the Floor Price limitation set forth in Section 4(a). For all purposes of the foregoing (including, without limitation,
determining the adjusted Conversion Price and the New Issuance Price under this Section 5(b)), the following shall be applicable:
(c)
Issuance of Convertible Securities. If, at any time while this Note is outstanding on or after the date of the occurrence (if
any) of an Event of Default, the Company in any manner issues or sells (or enters into any agreement to issue or sell) any Common Shares
Equivalents and the lowest price per share for which one share of Common Shares are at any time issuable upon the conversion, exercise
or exchange thereof or otherwise pursuant to the terms thereof is less than the Applicable Price, then such Common Shares shall be deemed
to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale of such Common Shares Equivalents
for such price per share. For the purposes of this Section 5(c), the “lowest price per share for which one Common Shares are at
any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof” shall be equal
to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to
one Common Shares upon the issuance or sale of the Common Shares Equivalents and upon conversion or exchange of such Common Shares Equivalents
or otherwise pursuant to the terms thereof and (y) the lowest conversion price set forth in such Common Shares Equivalents for which
one share of Common Shares are issuable (or may become issuable assuming all possible market conditions) upon conversion or exchange
thereof or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Common Shares
Equivalents (or any other Person) upon the issuance or sale of such Common Shares Equivalents plus the value of any other consideration
received or receivable by, or benefit conferred on, the holder of such Common Shares Equivalents (or any other Person). Except as contemplated
below, no further adjustment of the Conversion Price shall be made upon the actual issuance of such Common Shares upon conversion or
exchange of such Common Shares Equivalents or otherwise pursuant to the terms thereof. No further adjustment of the Conversion Price
shall be made by reason of such issuance or sale unless expressly contemplated under this Section 5(d).
(d)
Change in Price or Rate of Conversion. If the purchase or exercise price provided for in any Common Shares Equivalents, or the
rate at which any Common Shares Equivalents are convertible into or exercisable or exchangeable for Common Shares increases or decreases
at any time (other than proportional changes in conversion or exercise prices, as applicable, in connection with an event referred to
in Section 5(a)), the Conversion Price in effect at the time of such increase or decrease shall be adjusted to the Conversion Price which
would have been in effect at such time had such Options or Common Shares Equivalents provided for such increased or decreased purchase
price, additional consideration or increased or decreased conversion rate, as the case may be, at the time initially granted, issued
or sold. For purposes of this Section 5(e), if the terms of any Option or Common Shares Equivalents that was outstanding as of the date
this Note was issued are increased or decreased in the manner described in the immediately preceding sentence, then such Option or Common
Shares Equivalents and the Common Shares deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued
as of the date of such increase or decrease. No adjustment pursuant to this Section 5(e) shall be made if such adjustment would result
in an increase of the Conversion Price then in effect.
(e)
Change in Price or Rate of Conversion. If any Common Shares Equivalents and/or Adjustment Right (as defined below) is issued in
connection with the issuance or sale or deemed issuance or sale of any other securities of the Company (as determined by the Holder,
the “Primary Security”, and such Common Shares Equivalents and/or Adjustment Right (as defined below), the “Secondary
Securities”), together comprising one integrated transaction, (or one or more transactions if such issuances or sales or deemed
issuances or sales of securities of the Company either (A) have at least one investor or purchaser in common, (B) are consummated in
reasonable proximity to each other and/or (C) are consummated under the same plan of financing) the aggregate consideration per share
of Common Shares with respect to such Primary Security shall be deemed to be equal to the difference of (x) the lowest price per share
for which one Common Shares was issued (or was deemed to be issued pursuant to Section 5(a)(i) or 5(a)(ii) above, as applicable) in such
integrated transaction solely with respect to such Primary Security, minus (y) with respect to such Secondary Securities, the sum of
the fair market value (as determined by the Holder in good faith) and the fair market value (as determined by the Holder) of such Common
Shares Equivalents, if any, in each case, as determined on a per share basis in accordance with this Section 5(f). If any Common Shares
or Common Shares Equivalents are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will
be deemed to be the net amount of consideration received by the Company therefor. If any Common Shares or Common Shares Equivalents are
issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of
such consideration. If any Common Shares or Common Shares Equivalents are issued to the owners of the non-surviving entity in connection
with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value
of such portion of the net assets and business of the non-surviving entity as is attributable to such Common Shares or Common Shares
Equivalents (as the case may be). The fair value of any consideration other than cash or publicly traded securities will be determined
jointly by the Company and the Holder. If such parties are unable to reach agreement within ten (10) days after the occurrence of an
event requiring valuation (the “Valuation Event”), the fair value of such consideration will be determined within
five (5) Trading Days after the tenth (10th) day following such Valuation Event by an independent, reputable appraiser jointly selected
by the Company and the Holder. The determination of such appraiser shall be final and binding upon all parties absent manifest error
and the fees and expenses of such appraiser shall be borne by the Company). “Adjustment Right” means any right granted
with respect to any securities issued in connection with, or with respect to, any issuance or sale (or deemed issuance or sale hereunder)
of Common Shares (other than rights of the type described in Sections 5(c) and 5(d) hereof) that could result in a decrease in the net
consideration received by the Company in connection with, or with respect to, such securities (including, without limitation, any cash
settlement rights, cash adjustment or other similar rights).
(f)
Change in Price or Rate of Conversion. If the Company takes a record of the holders of Common Shares for the purpose of entitling
them (A) to receive a dividend or other distribution payable in Common Shares or in Common Shares Equivalents or (B) to subscribe for
or purchase Common Shares or Common Shares Equivalents, then such record date will be deemed to be the date of the issuance or sale of
the Common Shares deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or
the date of the granting of such right of subscription or purchase (as the case may be).
(g)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 5(a) above, if at any time while this Note is
outstanding on or after the date of the occurrence (if any) of an Event of Default, the Company grants, issues or sells any Common Shares
Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of
Common Shares (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such
Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of Common Shares
acquirable upon complete conversion of this Note (without regard to any limitations on exercise hereof, including without limitation,
the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase
Rights, or, if no such record is taken, the date as of which the record holders of Common Shares are to be determined for the grant,
issue or sale of such Purchase Rights (provided, however, that, to the extent that the Holder’s right to participate in any such
Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate
in such Purchase Right to such extent (or beneficial ownership of such Common Shares as a result of such Purchase Right to such extent)
and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would
not result in the Holder exceeding the Beneficial Ownership Limitation).
(h)
Pro Rata Distributions. During such time as this Note is outstanding on or after the date of the occurrence (if any) of an Event
of Default, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to
holders of Common Shares, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or
other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement
or other similar transaction) (a “Distribution”), at any time after the issuance of this Note, then, in each such
case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein
if the Holder had held the number of Common Shares acquirable upon complete conversion of this Note (without regard to any limitations
on conversion hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record
is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of Common Shares are to be determined
for the participation in such Distribution (provided, however, that, to the extent that the Holder’s right to participate in any
such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to
participate in such Distribution to such extent (or in the beneficial ownership of any Common Shares as a result of such Distribution
to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever,
as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
(i)
Fundamental Transaction. If, at any time while this Note is outstanding on or after the date of the occurrence (if any) of an
Event of Default: (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of
the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer,
conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct
or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which,
at any time while this Note is outstanding on or after the date of the occurrence (if any) of an Event of Default, holders of Common
Shares are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders
of 50% or more of the outstanding Common Shares, (iv) the Company, directly or indirectly, in one or more related transactions effects
any reclassification, reorganization or recapitalization of the Common Shares or any compulsory share exchange pursuant to which the
Common Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly,
in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without
limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person whereby such other Person
acquires more than 50% of the outstanding Common Shares (not including any Common Shares held by the other Person or other Persons making
or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business
combination) (each a “Fundamental Transaction”), then, upon any subsequent conversion of this Note, the Holder shall
have the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence
of such Fundamental Transaction (without regard to any limitation in Section 4(c) on the conversion of this Note), the number of Common
Shares of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration
(the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of
Common Shares for which this Note is convertible immediately prior to such Fundamental Transaction (without regard to any limitation
in Section 4(c) on the conversion of this Note). For purposes of any such conversion, the determination of the Conversion Price shall
be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect
of one (1) share of Common Shares in such Fundamental Transaction, and the Company shall apportion the Conversion Price among the Alternate
Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders
of Common Shares are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder
shall be given the same choice as to the Alternate Consideration it receives upon any conversion of this Note following such Fundamental
Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the
“Successor Entity”) to assume in writing all of the obligations of the Company under this Note and the other Transaction
Documents (as defined in the Purchase Agreement) in accordance with the provisions of this Section 5(j) pursuant to written agreements
in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental
Transaction and shall, at the option of the holder of this Note, deliver to the Holder in exchange for this Note a security of the Successor
Entity evidenced by a written instrument substantially similar in form and substance to this Note which is convertible for a corresponding
number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Common Shares acquirable and receivable
upon conversion of this Note (without regard to any limitations on the conversion of this Note) prior to such Fundamental Transaction,
and with a conversion price which applies the conversion price hereunder to such shares of capital stock (but taking into account the
relative value of the Common Shares pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number
of shares of capital stock and such conversion price being for the purpose of protecting the economic value of this Note immediately
prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder.
Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from
and after the date of such Fundamental Transaction, the provisions of this Note and the other Transaction Documents referring to the
“Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume
all of the obligations of the Company under this Note and the other Transaction Documents with the same effect as if such Successor Entity
had been named as the Company herein.
(j)
Calculations. All calculations under this Section 5 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 5, the number of Common Shares deemed to be issued and outstanding as of a given date shall
be the sum of the number of Common Shares (excluding any treasury shares of the Company) issued and outstanding.
(k)
Adjustment to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 5, the Company
shall promptly deliver to each Holder a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement
of the facts requiring such adjustment.
Section
6. Negative Covenants. As long as any portion of this Note remains outstanding, unless the holders of a majority in Original
Principal Amount of the then outstanding Notes (including the Lead Investor, if then a Holder) shall have otherwise given prior written
consent, the Company shall not, and shall not permit any of its Subsidiaries (if any) to, directly or indirectly:
(a)
other than Permitted Indebtedness, enter into, create, incur, assume, guarantee or suffer to exist any Indebtedness;
(b)
amend its charter documents, including, without limitation, its certificate of incorporation and bylaws, in any manner that materially
and adversely affects any rights of the Holder unless consented to by the Holder;
(c)
repay, repurchase or offer to repay, repurchase or otherwise acquire more than a de minimis number of Common Shares or Common Shares
Equivalents other than as to (i) the Conversion Shares or Warrant Shares as permitted or required under the Transaction Documents,
(ii) repurchases of Common Shares or Common Shares Equivalents of departing officers and directors of the Company, provided that
such repurchases shall not exceed an aggregate of $25,000 for all officers and directors during the term of this Note, (iii)
repurchases of Common Shares or Common Shares Equivalents, pursuant to existing repurchase agreements, provided that such
repurchases shall not exceed an aggregate of $25,000 during the term of this Note, or (iv) Common Shares and Common Shares
Equivalents which do not vest or are otherwise forfeited, provided (in case of forfeiture) that such Common Shares and Common Shares
Equivalents are not acquired for cash;
(d)
repay, repurchase or offer to repay, repurchase or otherwise acquire any Indebtedness, other than (i) the Notes if on a pro-rata basis,
and (ii) regularly scheduled principal and interest payments under outstanding Indebtedness or Permitted Indebtedness;
(e)
pay cash dividends or distributions on any equity securities of the Company;
(f)
enter into any material transaction with any Affiliate of the Company, unless such transaction is made on an arm’s-length basis
and expressly approved by a majority of the disinterested directors of the Company (even if less than a quorum otherwise required for
board approval);
(g)
create, permit or suffer to exist any Lien on any of its or any Subsidiaries properties and assets other than Permitted Liens; or
(h)
enter into any agreement with respect to any of the foregoing.
Section
7. Events of Default.
(a)
“Event of Default” means, wherever used herein, any of the following events (whatever the reason for such event and
whether such event shall be voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of
any court, or any order, rule or regulation of any administrative or governmental body):
(i)
any default in the payment of the Payment Amount on the Maturity Date;
(ii)
the Company’s listing on its current Trading Market shall have been terminated or suspended;
(iii)
the Company shall fail to deliver (or cause to be delivered) Conversion Shares upon any Conversion of this Note on the relevant Shares
Delivery Date;
(iv)
the Company shall fail to observe or perform any other covenant or agreement contained in the Notes (other than a breach by the Company
of its obligations to deliver Common Shares to the Holder upon conversion, which breach is addressed in clause (viii) below) or in any
Transaction Document, which failure is not cured, if possible to cure, within the earlier to occur of (A) five (5) Trading Days after
notice of such failure sent by the Holder or by any other Holder to the Company and (B) seven (7) Trading Days after the Company has
become or should have become aware of such failure;
(v)
a default or event of default (subject to any grace or cure period provided in the applicable agreement, document or instrument) shall
occur under any other material agreement, lease, document or instrument to which the Company or any Subsidiary is obligated, which default
or event of default is not cured, if possible to cure, within the earlier to occur of (A) five (5) Trading Days after notice of such
failure sent by the Holder or by any other Holder to the Company and (B) seven (7) Trading Days after the Company has become or should
have become aware of such failure;
(vi)
the Company or any “Significant Subsidiary” (as such term is defined in Rule 1-02(w) of Regulation S-X) shall cease operations,
or make a make a public announcement to do so, or shall be subject to a Bankruptcy Event;
(vii)
the Company shall be a party to any Change of Control Transaction or Fundamental Transaction or shall agree to sell or dispose of all
or in excess of 33% of its assets in one transaction or a series of related transactions (whether or not such sale would constitute a
Change of Control Transaction);
(viii)
the Company shall fail for any reason to deliver Conversion Shares to a Holder prior to the fifth (10th) Trading Day after
a Conversion Date pursuant to Section 4(b) or the Company shall provide at any time notice to the Holder, including by way of public
announcement, of the Company’s intention to not honor requests for conversions of any Notes in accordance with the terms hereof;
and
(ix)
a final non-appealable judgment by any competent court in Canada or the United States for the payment of money in an amount of at least
$100,000 is rendered against the Company, and the same remains undischarged and unpaid for a period of 45 days during which execution
of such judgment is not effectively stayed.
(b)
Remedies Upon Event of Default. If any Event of Default occurs, the Default Amount of this Note shall become immediately due and
payable, at the Holder’s election, in cash or in Common Shares at the Conversion Price then in effect. Upon the payment or conversion
in full of the Default Amount in accordance with the terms of this Note, the Holder shall promptly surrender this Note to or as directed
by the Company. The Holder need not provide, and the Company hereby waives, any presentment, demand, protest or other notice of any kind,
and the Holder may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and
all other remedies available to it under applicable law. Such acceleration may be rescinded and annulled by Holder at any time prior
to payment hereunder and the Holder shall have all rights as a holder of the Note until such time, if any, as the Holder receives full
payment pursuant to this Section 7(b). No such rescission or annulment shall affect any subsequent Event of Default or impair any right
consequent thereon.
Section
8. Miscellaneous.
(a) Notices.
Any and all notices or other communications or deliveries to be provided by the Holder hereunder shall be in writing and delivered
personally, by email attachment, or sent by a nationally recognized overnight courier service, addressed to the Company, at the
address set forth on in the Purchase Agreement, or such other, email address, or address as the Company may specify for such
purposes by notice to the Holder delivered in accordance with this Section 8(a). Any and all notices or other communications or
deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by facsimile, by email attachment,
or sent by a nationally recognized overnight courier service addressed to each Holder at the facsimile number, email address or
address of the Holder appearing on the books of the Company, or if no such facsimile number or email attachment or address appears
on the books of the Company, at the principal place of business of such Holder, as set forth in the Purchase Agreement. Any notice
or other communication or deliveries hereunder shall be deemed given and effective on the earliest of: (i) the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile number or email attachment to the email address set
forth on the signature pages attached hereto prior to 5:30 p.m. (Eastern time) on any date, (ii) the next Business Day after
the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment to
the email address set forth on the signature pages attached hereto on a day that is not a Business Day or later than 5:30 p.m.
(Eastern time) on any Business Day, (iii) the second Business Day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.
(b) Absolute
Obligation; Ranking. Except as expressly provided herein, no provision of this Note shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, liquidated damages and accrued interest, as applicable, on
this Note at the time, place, and rate, and in the coin or currency, herein prescribed. This Note is a direct debt obligation of the
Company. This Note: (i) is a direct, subordinated debt obligation of the Company; and (ii) ranks junior to the Senior
Indebtedness and pari-passu with all other Notes now or hereafter issued under the terms of the Purchase Agreement.
(c)
Subordination. All claims of the Holder to principal, interest and any other amounts at any time owed under this Note (collectively,
“Junior Indebtedness”) are hereby expressly subordinated in right of payment, as herein set forth, to the prior payment
in full of all Senior Indebtedness (as defined below). No payment under Junior Indebtedness shall be made by the Company, nor shall the
Holder exercise any remedies under the Junior Indebtedness (including taking any legal action (whether judicial or otherwise) to collect
the Junior Indebtedness), if, at the time of such payment, exercise or immediately after giving effect thereto, (i) there shall exist
any “Default” or “Event of Default” under any agreements governing any of the Senior Indebtedness or (ii) the
maturity of any of the Senior Indebtedness has been accelerated and such acceleration has not been waived or such Senior Indebtedness
has not been paid in full; provided, however, that (x) in the event that the holder of any Senior Indebtedness accelerates such Senior
Indebtedness, then the Holder may accelerate the indebtedness evidenced by this Note, and (y) if the Company is permitted under the terms
of the Senior Indebtedness to pay an amount due and owing under this Note and fails to make such payment, then so long as the terms of
the Senior Indebtedness do not prohibit such action, the Holder may exercise its rights to be paid such amount, but only such amount
(and Holder shall not be permitted to accelerate hereunder). Each holder of any Senior Indebtedness, whether such Senior Indebtedness
was created or acquired before or after the issuance of this Note, shall be entitled to rely on the subordination provisions set forth
in this Note. Upon the request of the Company or any holder of Senior Indebtedness, the Holder shall confirm (in writing) the above subordination
provisions and shall execute and deliver such additional subordination agreements as any holder of Senior Indebtedness may require. For
purposes hereof, “Senior Indebtedness” means, all indebtedness of the Company, whether outstanding on the date of
the execution of this Note or thereafter created, to the following lenders to the Company: C.V. Starr & Co. Inc., Resorts World Inc
Pte Ltd.].
(d)
Lost or Mutilated Note. The Company shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated
Note, or in lieu of or in substitution for a lost, stolen or destroyed Note, a new Note for the Original Principal Amount of this Note
so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such Note, and of the
ownership hereof, reasonably satisfactory to the Company.
(e)
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Note 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 conflict
of laws thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions
contemplated by any of the Transaction Documents (whether brought against a party hereto or its respective Affiliates, directors, officers,
shareholders, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the County of New York,
New York (the “New York Courts”). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the
New York Courts 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 suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such New York
Courts, or such New York Courts are improper or 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
Note 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 applicable law. Each party hereto 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 Note or the transactions contemplated hereby. If any party shall commence an action or proceeding to enforce
any provisions of this Note, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorney’s
fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.
(f)
Waiver. Any waiver by the Company or the Holder of a breach of any provision of this Note shall not operate as or be construed
to be a waiver of any other breach of such provision or of any breach of any other provision of this Note. The failure of the Company
or the Holder to insist upon strict adherence to any term of this Note on one or more occasions shall not be considered a waiver or deprive
that party of the right thereafter to insist upon strict adherence to that term or any other term of this Note on any other occasion.
Any waiver by the Company or the Holder must be in writing.
(g)
Severability. If any provision of this Note is invalid, illegal or unenforceable, the balance of this Note shall remain in effect,
and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and
circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing
usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under
applicable law. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law which would prohibit
or forgive the Company from paying all or any portion of the principal of or interest on this Note as contemplated herein, wherever enacted,
now or at any time hereafter in force, or which may affect the covenants or the performance of this Note, and the Company (to the extent
it may lawfully do so) hereby expressly waives all benefits or advantage of any such law, and covenants that it will not, by resort to
any such law, hinder, delay or impede the execution of any power herein granted to the Holder, but will suffer and permit the execution
of every such as though no such law has been enacted.
(h)
Remedies, Characterizations, Other Obligations, Breaches and Injunctive Relief. The remedies provided in this Note shall be cumulative
and in addition to all other remedies available under this Note and any of the other Transaction Documents at law or in equity (including
a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the Holder’s right to pursue actual
and consequential damages for any failure by the Company to comply with the terms of this Note. The Company covenants to the Holder that
there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided
for herein with respect to payments, conversion and the like (and the computation thereof) shall be the amounts to be received by the
Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof).
The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy
at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach,
the Holder shall be entitled, in addition to all other available remedies, to an injunction restraining any such breach or any such threatened
breach, without the necessity of showing economic loss and without any bond or other security being required. The Company shall provide
all information and documentation to the Holder that is reasonably requested by the Holder to enable the Holder to confirm the Company’s
compliance with the terms and conditions of this Note.
(i)
Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day.
(j)
Headings. The headings contained herein are for convenience only, do not constitute a part of this Note and shall not be deemed
to limit or affect any of the provisions hereof.
Section
9. Amendments; Waivers. Any modifications, amendments or waivers of the provisions hereof shall be subject to Section 5.05
of the Purchase Agreement.
Section
10. Usury. 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 effective 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 Holder with respect to indebtedness evidenced
by the Transaction Documents, such excess shall be applied by such Holder to the unpaid principal amount of any such indebtedness or
be refunded to the Company, the manner of handling such excess to be at such Holder’s election.
IN
WITNESS WHEREOF, the Company has caused this Note to be duly executed by a duly authorized officer as of the date first above indicated.
|
CELULARITY
INC. |
|
|
|
|
By: |
|
|
Name:
|
Robert
J. Hariri |
|
Title: |
Chief
Executive Officer |
Exhibit
10.3
THE
SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT
BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS (A) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, AND APPLICABLE
STATE SECURITIES LAWS, COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES, (B) THE COMPANY RECEIVES AN OPINION OF LEGAL COUNSEL
FOR THE HOLDER OF THESE SECURITIES SATISFACTORY TO THE COMPANY STATING THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION, OR (C) THE
COMPANY OTHERWISE SATISFIES ITSELF THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION.
Date
of Issuance: November [ ], 2024
WARRANT
TO PURCHASE CLASS A COMMON STOCK OF CELULARITY INC.
For
value received, Celularity Inc., a Delaware corporation (the “Company”), hereby grants to [ ] (“Holder”)
this warrant to purchase that number of shares of the Company’s Class A Common Stock (defined below) as set forth in Section
2.2 hereof, as may be adjusted from time to time pursuant to Section 12 hereof.
1.
Definitions.
“Business
Days” shall mean any day other than a Saturday, a Sunday or any other day on which the Federal Reserve Bank of New York
is required by Law to be closed.
“Change
of Control” shall mean a transaction or a series of related transactions involving (i) a consolidation or merger of the
Company which results in the stockholders of the Company immediately prior to the transaction owning less than a majority of the equity
or voting power of the surviving entity, (ii) the sale, transfer or lease of all or substantially all of the Company’s assets taken
as a whole together with any assets of the Company’s subsidiaries, whether by merger, consolidation or otherwise, and whether in
a single transaction or a series of related transactions, (iii) the grant of an exclusive license to all or substantially all of the
Company’s intellectual property that is used to generate all or substantially all of the Company’s revenues, or (iv) any
sale of all or substantially all of the Company’s equity or any other transaction which results in the stockholders of the Company
immediately prior to the transaction owning less than a majority of the equity or voting power of the surviving entity but not including
any transaction or series of transactions principally for bona fide equity financing purposes in which cash is received by the Company
or indebtedness of the Company is cancelled or converted (or a combination thereof).
“Class
A Common Stock” shall mean the Class A Common Stock, par value $0.0001 per share, of the Company.
“Date
of Issuance” means the date of issuance first written above.
“Trading
Market” “ means any of the following markets or exchanges on which the Class
A
Common Stock is listed or quoted for trading on the date in question: the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq
Global Select Market, the NYSE American or the New York Stock Exchange (or any successors to any of the foregoing).
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (i) if the Class A Common Stock is then
listed or quoted on a Trading Market, the daily volume weighted average price of the Class A Common Stock for such date (or the nearest
preceding date) on the Trading Market on which the Class A Common Stock is then listed or quoted as reported by Bloomberg L.P. (based
on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)); (ii) if the Class A Common Stock is not then
listed or quoted on a Trading Market, but is listed or quoted on OTCQB or OTCQX, the volume weighted average price of the Class A Common
Stock for such date (or the nearest preceding date) on OTCQB or OTCQX, as applicable; (iii) if the Class A Common Stock is not then listed
or quoted for trading on OTCQB or OTCQX and if prices for the Class A Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Class A Common Stock
so reported; or (iv) in all other cases, the fair market value of a share of Class A Common Stock as determined by an independent appraiser
selected in good faith by the holders of a majority in interest of the Starr Shares then outstanding and reasonably acceptable to the
Company..
“Warrant”
as used herein shall include this amended and restated warrant (as the same may be amended from time to time) and any warrants delivered
in substitution or exchange therefor as provided herein.
2.
Exercise Amount and Price.
2.1
The exercise price per share (the “Exercise
Price”) at which this Warrant will be exercised shall be the lower of (i) $2.85, or (ii) the offering price of the Subsequent
Financing in another equity or equity-linked securities issuance, loan agreement or other financing (excluding any refinancing of the
Company’s present indebtedness), including, without limitation, any Regulation A, equity line, debt or equity financing, S-1 or
S-3 raise, with gross proceeds of at least $2,500,000 after the Date of Issuance (a “Subsequent Financing”)
provided that the Exercise Price shall not be set at less than $1.00..
2.2
This Warrant is exercisable for the purchase of [ ]
shares of Class A Common Stock (as such number may be adjusted from time to time pursuant to Section 12 hereof). The number of
shares shall also be subject to a one-time pro rata adjustment in connection with a Subsequent Financing provided that number upon adjustment
shall not exceed 500,000 shares.
3.
Term.
3.1
Subject to the terms and conditions set forth herein,
the Holder may exercise this Warrant, in whole or in part, during the term commencing on the Date of Issuance and ending at 5:00 p.m.
(Eastern Time) on the five (5) year anniversary of the Date of Issuance.
4.
Exercise of Warrant.
4.1
The purchase rights represented by this Warrant are
exercisable by the Holder in whole or in part, at any time, or from time to time, during the term hereof as described in Section 3
above, by the surrender of this Warrant and the Notice of Exercise, attached hereto as Exhibit A, duly completed and executed
on behalf of the Holder, at the principal offices of the Company (or such other office or agency of the Company as it may designate by
notice in writing to the Holder), upon payment in cash, wire transfer or by check acceptable to the Company of the Exercise Price of
the shares to be purchased (the “Shares”).
4.2
From time to time, in lieu of payment of the aggregate
Exercise Price in the manner as specified in Section 4.1, but otherwise in accordance with the requirements of Section 4.1,
the Holder may elect to receive the Shares equal to the value of this Warrant, or portion hereof as to which this Warrant is being exercised.
Upon such exercise pursuant to this Section 4.2, the Holder shall be issued such number of fully paid and non-assessable Shares
as are computed using the following formula:
X
= Y(A-B)/A
where:
X
= the number of Shares to be issued to the Holder;
Y
= the number of Shares with respect to which this Warrant is being exercised;
A
= the VWAP on the Trading Date immediately preceding the date of the applicable Notice of Exercise; and
B
= the Exercise Price.
5.
Representations and Warranties of the Company.
5.1
The Company hereby represents and warrants to Holder
that the following representations and warranties are true and correct:
(a)
Organization and Qualification. The Company is
a corporation duly organized, validly existing under the laws of the State of Delaware and has all requisite corporate power and authority
to carry on its business as now conducted and as proposed to be conducted. The Company is duly qualified to transact business in each
jurisdiction in which the failure to so qualify would have a material adverse effect on its business or properties.
(b)
Authorization. Other than as set forth on the
Disclosure Schedule, all corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization,
execution and delivery of this Warrant, the performance of all obligations of the Company hereunder and thereunder, and the reservation
for issuance, sale and delivery of the Class A Common Stock to be issued upon exercise of this Warrant has been taken. This Warrant constitutes
the valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement
of creditors’ rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief
or other equitable remedies.
(c)
Valid Issuance of Common Stock. Other than as
set forth on the Disclosure Schedule, the Class A Common Stock for which the Warrant is exercisable, when issued, sold and delivered
in accordance with the terms of this Warrant for the consideration expressed herein, will be duly and validly issued, fully paid, and
nonassessable, and will be free of restrictions on transfer other than restrictions on transfer under this Warrant and under applicable
state and federal securities laws or liens or encumbrances created by or imposed by Holder.
(d)
Governmental Consents. Other than as set forth
on the Disclosure Schedule, no consent, approval, order or authorization of, or registration, qualification, designation, declaration
or filing with, any federal, state or local governmental authority on the part of the Company is required in connection with the issuance
or exercise of this Warrant, except for (i) such federal and state securities filings as may be necessary, which filings will be timely
effected after the date hereof and (ii) such other approval that has been obtained prior to the date hereof.
(e)
Reliance by Holder. The Company understands that
the representations, warranties, covenants and acknowledgements set forth in this Section 5 constitute a material inducement to
Holder entering into this Warrant.
6.
Representations and Warranties of Holder.
6.1
Holder hereby represents and warrants to the Company
that the following representations and warranties are true and correct:
(a)
Purchase Entirely for Own Account. This Warrant
is being entered into for investment for Holder’s own account not as a nominee or agent, and not with a view to the resale or distribution
of any part thereof, and Holder has no present intention of selling, granting any participation in, or otherwise distributing the same.
The acquisition by Holder of this Warrant shall constitute confirmation of the representation by Holder that it does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person,
with respect to this Warrant.
(b)
Investment Experience. Holder is an investor
in securities of companies in the development stage and acknowledges that it is able to fend for itself, can bear the economic risk of
its investment, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and
risks of entering into this Warrant. Holder acknowledges that the acquisition of shares of Class A Common Stock pursuant to this Warrant
involves a high degree of risk, and represents that it is able, without materially impairing its financial condition, to hold such shares
for an indefinite period of time and to suffer a complete loss of its investment. Holder acknowledges that the Company has not made any
representations or warranties as to whether the Exercise Price to be paid by Holder for the Class A Common Stock is a fair value for
such shares and the Company takes no position with respect to the fairness of the Exercise Price or the future prospects and valuation
of the Company. Holder is aware of the fact that the value of the Class A Common Stock to be purchased upon exercise of this Warrant
may significantly depreciate over time and there can be no assurances that the value of such shares will increase or to what extent.
In connection with making an investment decision in connection with entering into this Warrant, Holder will be relying on its own knowledge
and experience and advice obtained from Holder’s legal, tax and financial advisor.
(c)
Accredited Investor. Holder is an “accredited
investor” within the meaning of SEC Rule 501 of Regulation D, as presently in effect.
(d)
Legends. It is understood that the certificates,
if any, evidencing the shares of Class A Common Stock issuable upon exercise of this Warrant may bear any of the legends required by
applicable state securities laws.
(e)
Reliance by Company. Holder understands that
the representations, warranties, covenants and acknowledgements set forth in this Section 6 constitute a material inducement to
the Company entering into this Warrant.
(f)
Foreign Investors. Holder hereby represents that
it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with entering into this Warrant, including
(i) the legal requirements within its jurisdiction for entering into this Warrant and the exercise of this Warrant, (ii) any foreign
exchange restrictions applicable to the exercise of this Warrant, (iii) any governmental or other consents that may need to be obtained,
including with respect to the payment of the Exercise Price, and (iv) the income tax and other tax consequences, if any, that may be
relevant to the purchase, holding, redemption, sale or transfer of this Warrant or the shares of Class A Common Stock issuable upon exercise
hereof. The Holder’s acquisition of this Warrant and payment for the Class A Common Stock upon exercise of this Warrant and continued
beneficial ownership of such shares will not violate any applicable securities or other laws of the Holder’s jurisdiction.
7.
No Fractional Shares.
No fractional share of any class or series of the Company’s capital stock shall be issued upon exercise of this Warrant.
8.
Replacement of Warrant.
On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of this Warrant and (a)
in the case of loss, theft, or destruction, on delivery of an indemnity agreement reasonably satisfactory in form and substance to the
Company or (b) in the case of mutilation, on surrender and cancellation of this Warrant, the Company shall execute and deliver, in lieu
of this Warrant, a new warrant of like tenor and amount. The Holder shall reimburse the Company for all reasonable expenses incidental
to replacement of this Warrant.
9.
Rights of Stockholder.
This Warrant shall not entitle its holder to any of the rights of a stockholder of the Company until this Warrant shall have been exercised
and the shares of Class A Common Stock purchasable upon the exercise hereof shall have been issued.
10.
Notice of Certain Events.
Whenever the Exercise Price or number of shares purchasable hereunder shall be adjusted pursuant to Section 12 hereof and if so
requested by Holder, the Company shall issue a certificate signed by its Chief Financial Officer, or other similar officer, setting forth
in reasonable detail the event requiring the adjustment, the amount of the adjustment, the method by which such adjustment was calculated
and the Exercise Price and number of shares purchasable hereunder after giving effect to such adjustment and shall cause a copy of such
certificate to be mailed (by first class mail, postage prepaid) to the Holder of this Warrant.
11.
Amendments; Waivers.
11.1
Amendments. The provisions of this Warrant
may be amended (either generally or in a particular instance and either retroactively or prospectively), only by an instrument in writing
signed by the Company and the Holder. The foregoing shall not limit or otherwise affect Holder’s right to waive any of such Holder’s
rights hereunder. Any amendment or waiver effected in accordance with this Section 11.1 shall be binding upon Holder and Holder’s
successors and assigns.
11.2
Waivers. No waivers of or exceptions to
any term, condition or provision of this Warrant, in any one or more instances, shall be deemed to be or construed as a further or continuing
waiver of any such term, condition or provision.
12.
Adjustments.
The Exercise Price and the number and type of shares purchasable hereunder are subject to adjustment from time to time as follows:
12.1
Reclassification, etc. If, at any time
on or after the date hereof and while this Warrant remains outstanding and unexpired, the Company shall, by reclassification of securities
or otherwise, change any of the securities as to which purchase rights under this Warrant exist into the same or a different number of
securities of any other class or classes, this Warrant shall thereafter represent the right to acquire such number and kind of securities
as would have been issuable as the result of such change with respect to the securities which were subject to the purchase rights under
this Warrant immediately prior to such reclassification or other change and the Exercise Price therefor shall be appropriately adjusted,
all subject to further adjustment as provided in this Section 12; provided, however, that the aggregate Exercise
Price shall remain the same.
12.2
Split, Subdivision or Combination of Shares.
If at any time on or after the date hereof and while this Warrant remains outstanding and unexpired, the Company shall split, subdivide
or combine the securities as to which purchase rights under this Warrant exist into a different number of securities of the same class,
the Exercise Price for such securities shall be proportionately decreased in the case of a split or subdivision or proportionately increased
in the case of a combination. Upon an adjustment in the Exercise Price pursuant to this Section 12.2, the number of shares subject
to this Warrant (which were the subject of such split, subdivision or combination) shall be adjusted accordingly such that the aggregate
Exercise Price payable for the purchase of such shares shall remain the same as before such split, subdivision or combination.
12.3
Adjustments for Dividends in Stock or Other Securities
or Property. If at any time on or after the date hereof and while this Warrant remains outstanding and unexpired, the holders
of the securities as to which purchase rights under this Warrant exist at the time shall have received, or on or after the record date
fixed for the determination of eligible stockholders shall have become entitled to receive, without payment therefor, other or additional
stock or other securities or property (other than cash) of the Company by way of dividend or other distribution in respect of the Class
A Common Stock, then, and in each case, this Warrant shall represent the right to acquire, in addition to the number of shares of the
security receivable upon exercise of this Warrant and without payment of any additional consideration therefor, the amount of such other
or additional stock or other securities or property (other than cash) of the Company which such holder would hold on the date of such
exercise had it been the holder of record of the security receivable upon exercise of this Warrant on the date hereof and had thereafter,
during the period from the date hereof to and including the date of such exercise, retained such shares and/or all other additional stock
available by it as aforesaid during such period, giving effect to all adjustments called for during such period by the provisions of
this Section 12, and, from and after the date of such distribution, the Company shall hold and set aside (or cause to be held
and set aside in a commercially reasonable manner) an amount of such property equal to Holder’s pro rata portion thereof for distribution
to Holder pursuant hereto.
13.
Reservation of Capital Stock. Other
than as set forth on the Disclosure Schedule, the Company shall at all times reserve and keep available a number of its authorized but
unissued shares of Class A Common Stock that shall be sufficient to permit the exercise in full of all outstanding warrants issued pursuant
to this Warrant.
14.
Miscellaneous.
14.1
Survival of Representations, Warranties and Covenants.
The warranties, representations and covenants of each party hereto contained in or made pursuant to this Warrant shall survive the execution
and delivery of this Warrant and shall in no way be affected by any investigation of the subject matter thereof made by or on behalf
of the Holder or the Company, as applicable.
14.2
Titles and Subtitles. The titles and subtitles
used in this Warrant are used for convenience only and are not to be considered in construing or interpreting this Warrant.
14.3
Governing Law. This Warrant is to be construed
in accordance with and governed by the internal laws of the State of Delaware without giving effect to any choice of law rule that would
cause the application of the laws of any jurisdiction other than the internal laws of the State of Delaware to the rights and duties
of the parties. All disputes and controversies arising out of or in connection with this Warrant shall be resolved exclusively by the
state or federal courts located within the City of Wilmington in the State of Delaware, and each party hereto agrees to submit to the
jurisdiction of said courts and agrees that venue shall lie exclusively with such courts.
14.4
Waiver of Right to Jury Trial. EACH OF HOLDER
AND THE COMPANY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE
RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS WARRANT.
14.5 Notices.
Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant to this Warrant
shall be in writing and shall be conclusively deemed to have been duly given (i) when hand delivered to the other party; (ii) when
sent by email or facsimile if sent between 8:00 a.m. and 5:00 p.m. recipient’s local time on a Business Day, or on the next
Business Day if sent by email or facsimile other than between 8:00 a.m. and 5:00 p.m. recipient’s local time on a
Business Day; (iii) seven Business Days after deposit in the U.S. mail with first class or certified mail receipt requested postage
prepaid and addressed to the other party; or (iv) the next Business Day after deposit with an international overnight delivery
service, postage prepaid, addressed to the parties with next Business Day delivery guaranteed, provided that the sending party
receives a confirmation of delivery from the delivery service provider. Each person making a communication hereunder by email or
facsimile shall promptly confirm by telephone between 8:00 a.m. and 5:00 p.m. recipient’s local time on a Business Day to the
person to whom such communication was addressed each communication made by it by email or facsimile pursuant hereto but the absence
of such confirmation shall not affect the validity of any such communication. All communications shall be sent to the address, email
address or facsimile number of a party appearing in its signature block hereto or at such address, email address or facsimile number
as such party may designate by ten (10) days advance written notice to the other parties hereto.
14.6
Specific Performance. Each party hereto acknowledges
and agrees that any breach of this Warrant would result in substantial harm to the other party hereto for which monetary damages alone
could not adequately compensate. Therefore, the parties hereto unconditionally and irrevocably agree that any non-breaching party hereto
shall be entitled to seek protective orders, injunctive relief and other remedies available at law or in equity (including, without limitation,
seeking specific performance).
14.7
Counterparts. This Warrant may be executed and
delivered by facsimile signature and in two or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic
signature complying with the U.S. federal ESIGN Act of 2000, e.g.www.docusign.com) or other transmission method and any counterpart so
delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly authorized officer as of the Date of Issuance indicated
above.
|
COMPANY: |
|
|
|
|
CELULARITY
INC. |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
Address: |
|
|
|
Celularity
Inc.
|
|
170 Park Ave |
|
Florham Park, New Jersey 07932 |
[Signature
Page to Warrant]
ACKNOWLEDGED
AND AGREED:
[Signature
Page to Warrant]
EXHIBIT
A
FORM
OF
Notice
of Exercise
To:
Celularity Inc.
170
Park Ave
Florham
Park, New Jersey 07932
By
checking the appropriate line, the undersigned (“Holder”), pursuant to the provisions set forth in the Warrant
to Purchase Class A Common Stock, dated [●], 2024 (the “Warrant”), hereby elects to purchase shares
of Class A Common Stock (as defined in the Warrant) pursuant to the terms of the Warrant, and tenders herewith payment of the purchase
price for such shares in full as follows:
[
] |
check
in the amount of $ _____________payable to order of the Company enclosed herewith |
[
] |
wire
transfer of immediately available funds to the Company’s bank account |
[
] |
cashless
exercise pursuant to Section 4.2 of the Warrant |
Exhibit
10.4
Warrant
No. [ ]
NEITHER
THE WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE OF THE WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATES. THE WARRANT AND THE SHARES ISSUABLE UPON EXERCISE OF
THE WARRANT ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER
THE SECURITIES ACT AND THE APPLICABLE STATE SECURITIES LAWS. UNLESS SOLD PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT
THAT REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT.
|
|
Right
to Purchase |
|
|
[
] Units |
|
|
par
value $0.0001 per share |
STOCK
PURCHASE WARRANT
THIS
CERTIFIES THAT, for value received, the person named below (the “Holder”) or its registered assigns, is entitled to purchase
from Celularity Inc., a Delaware corporation (the “Company”), at any time or from time to time during the period specified
in Paragraph 2 hereof, the number of fully paid and nonassessable same Securities (the “Securities) issued in the aforementioned
Securities Purchase Agreement, dated November 25, 2024, (the “Securities Purchase Agreement”) at an exercise price per share
(the “Exercise Price”) each as are set forth in the Warrant details below.
Warrant Information.
|
|
(a) |
Date of Warrant: |
[ ] |
(b) |
Holder: |
Madison Global Partners, LLC |
(c) |
Holder Address: |
350 Motor Parkway, Suite 205 |
|
|
Hauppauge, New York 11788 |
(d) |
Number of Units: |
[ ] |
(e) |
Exercise Price: |
$3.56 |
(f) |
Expiration Date: |
[ ] |
The
term “Units,” as used herein, refers to the shares of Common Stock and one warrant exercisable into one share of common stock,
purchasable hereunder. The Units and the Exercise Price are subject to adjustment as provided in Paragraph 4 hereof. The warrant shall
be annexed in the form attached hereto, as Exhibit A.
This
Warrant is subject to the following terms, provisions, and conditions:
| 1. | Manner
of Exercise; Issuance of Shares; Payment for Shares. |
(a) Subject
to the provisions hereof, this Warrant may be exercised by the Holder, in whole or in part, by the surrender of this Warrant, together
with a completed notice of exercise in the form attached hereto (the “Notice of Exercise”), to the Company during normal
business hours on any business day at the Company’s principal executive offices (or such other office or agency of the Company
as it may designate by notice to the Holder), and upon payment to the Company in cash, by certified or official bank check or by wire
transfer for the account of the Company of the Exercise Price for the Units specified in the Notice of Exercise. The Units so purchased
shall be deemed to be issued to the Holder or such Holder’s designee, as the record owner of such Shares, as of the close of business
on the date on which this Warrant shall have been surrendered, the completed Notice of Exercise shall have been delivered, and payment
shall have been made for such Shares as set forth above. The Company will direct the Company’s Transfer Agent to issue to the Holder
the Units to which Holder is entitled within a reasonable time, not exceeding three (3) business days, after this Warrant shall have
been so exercised. If this Warrant shall have been exercised only in part, then, unless this Warrant has expired, the Company shall,
at its expense, at the time of delivery of such certificates or other evidence, deliver to the Holder a new Warrant representing the
number of Units with respect to which this Warrant shall not then have been exercised.
(b) If
at any time on or after the issuance of the date of this Warrant, there is no Registration Statement effective and available for use
by the Holder to resell the Units immediately upon exercise of this Warrant, this Warrant may also be exercised in whole or in part by
means of a “cashless” or net exercise, in the following manner. Under a cashless exercise the Holder shall be entitled to
receive the number of Units which is equal to the quotient obtained by dividing [(A-B) X (C)] by (A) where:
|
A
= |
The
Market Price of the Units defined as the average of the last reported sale prices on the principal trading market for the Common
Stock during the five (5) trading days immediately preceding such exercise date. |
|
|
|
|
B
= |
The
Exercise Price hereunder (as adjusted). |
|
|
|
|
C
= |
The
number of Units that the Holder wishes to exercise as set forth in the applicable Notice of Exercise. |
(c) All
Units will be issued in “Book Entry” form and no certificates will be issued, unless the Units are then registered under
the Securities Act, or if the Company receives a written opinion of counsel, which opinion and counsel are acceptable to the Company,
to the effect that such Units may freely transferred without registration under said Act and under applicable state securities or blue
sky laws, in which case they may be issued to the Holder by DWAC, upon Holder providing the necessary information. Unless the Units are
then so registered, the Units will be “restricted securities” under applicable securities laws and pursuant to these laws,
Holder must hold the Units indefinitely unless they are registered with the SEC and qualified by state authorities, or an exemption from
such registration and qualification requirements is available. Holder acknowledges that the Company has no obligation to register or
qualify the Units for resale.
(d) Unless
the Units are then registered under the Securities Act, the Units shall bear a legend substantially to the following effect (as well
as any legends required by applicable state corporate law or federal or state securities laws):
“THESE
SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (“THE ACT”) AND ARE “RESTRICTED SECURITIES”
AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. THESE SHARES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED EXCEPT (I) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR (II) UNLESS THE ISSUER HAS RECEIVED AN OPINION
OF COUNSEL SATISFACTORY TO IT THAT THESE SHARES MAY BE SOLD PURSUANT TO RULE 144 OR ANOTHER AVAILABLE EXEMPTION UNDER THE ACT AND THE
RULES AND REGULATIONS THEREUNDER.”
To
ensure compliance with the restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions
to its transfer agent.
(e) Notwithstanding
anything in this Warrant to the contrary, in no event shall the Holder be entitled to exercise a number of Warrants (or portions
thereof) in excess of the number of Warrants (or portions thereof) upon exercise of which the sum of (i) the number of shares of
Common Stock beneficially owned by the Holder and its affiliates (other than shares of Common Stock which may be deemed beneficially
owned through the ownership of the unexercised Warrants and the unexercised or unconverted portion of any other securities of the
Company subject to a limitation on conversion or exercise analogous to the limitation contained herein) and (ii) the number of
shares of Common Stock issuable upon exercise of the Warrants (or portions thereof) with respect to which the determination
described herein is being made, would result in beneficial ownership by the Holder and its affiliates of more than 4.9% of the
outstanding shares of Common Stock. For purposes of the immediately preceding sentence, beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and Regulation 13D-G thereunder, except as
otherwise provided in clause (i) of the preceding sentence. Notwithstanding anything to the contrary contained herein, the
limitation on exercise of this Warrant set forth herein may not be amended without the written consent of the Holder and the
Company.
2. Period
of Exercise. This Warrant is exercisable at any time or from time to time on or after the date on which this Warrant is issued
and delivered and before 6:00 p.m., New York, New York time on the date set forth in paragraph (f) under “Warrant Details”
above (the “Exercise Period”).
3. Certain Agreements of the Company. The Company hereby covenants and agrees as follows:
(a) Shares
to be Fully Paid. All Units will, upon issuance in accordance with the terms of this Warrant, be validly issued, fully paid,
and nonassessable and free from all taxes, liens, and charges with respect to the issue thereof.
(b) Reservation
of Shares. During the Exercise Period, the Company shall at all times have authorized, and reserved for the purpose of issuance
upon exercise of this Warrant, a sufficient number of shares of Common Stock to provide for the exercise of this Warrant.
(c) Successors
and Assigns. This Warrant will be binding upon any entity succeeding to the Company by merger, consolidation, or acquisition
of all or substantially all the Company’s assets.
4. Adjustment
Provisions. During the Exercise Period, the Exercise Price and the number of Units shall be subject to adjustment from time to
time as provided in this Paragraph 4. In the event that any adjustment of the Exercise Price as required herein results in a fraction
of a cent, such Exercise Price shall be rounded up to the nearest cent.
(a) Adjustment.
The exercise price per share shall be adjusted to the lower of (i) $[ ], or 125% of the offering price of the next Subsequent Financing
in another equity or equity-linked securities issuance, loan agreement or other financing (excluding any refinancing of the Company’s
present indebtedness), including, without limitation, any Regulation A, equity line, debt or equity financing, S-1 or S-3 raise, with
gross proceeds of at least $2,500,000 after the issuance date (a “Subsequent Financing”) provided that the Exercise Price
shall not be set at less than $1.00.
(b) Subdivision
or Combination of Common Stock. If the Company at any time subdivides (by any stock split, stock dividend, recapitalization,
reorganization, reclassification or otherwise) the shares of Common Stock acquirable hereunder into a greater number of shares, then,
after the date of record for effecting such subdivision, the Exercise Price in effect immediately prior to such subdivision will be proportionately
reduced. If the Company at any time combines (by reverse stock split, recapitalization, reorganization, reclassification or otherwise)
the shares of Common Stock acquirable hereunder into a smaller number of shares, then, after the date of record for effecting such combination,
the Exercise Price in effect immediately prior to such combination will be proportionately increased.
(c) Adjustment
in Number of Shares. Upon each adjustment of the Exercise Price pursuant to the provisions of this Paragraph 4(a), the number
of shares of Common Stock issuable upon exercise of this Warrant shall be adjusted by multiplying a number equal to the Exercise Price
in effect immediately prior to such adjustment by the number of shares of Common Stock issuable upon exercise of this Warrant immediately
prior to such adjustment and dividing the product so obtained by the adjusted Exercise Price.
(d) Consolidation,
Merger or Sale. In case of any consolidation of the Company with, or merger of the Company into any other corporation, or in
case of any sale or conveyance of all or substantially all of the assets of the Company other than in connection with a plan of complete
liquidation of the Company, then as a condition of such consolidation, merger or sale or conveyance, adequate provision will be made
whereby the Holder will have the right to acquire and receive upon exercise of this Warrant in lieu of the shares of Common Stock immediately
theretofore acquirable upon the exercise of this Warrant, such shares of stock, securities or assets as may be issued or payable with
respect to or in exchange for the number of shares of Common Stock immediately theretofore acquirable and receivable upon exercise of
this Warrant had such consolidation, merger or sale or conveyance not taken place. In any such case, the Company will make appropriate
provision to insure that the provisions of this Paragraph 4 hereof will thereafter be applicable as nearly as may be in relation to any
shares of stock or securities thereafter deliverable upon the exercise of this Warrant. The Company will not effect any consolidation,
merger or sale or conveyance unless prior to the consummation thereof, the successor corporation (if other than the Company) assumes
by written instrument the obligations under this Paragraph 4 and the obligations to deliver to the Holder such shares of stock, securities
or assets as, in accordance with the foregoing provisions, the Holder may be entitled to acquire.
5. Issue
Tax. The issuance of the Units upon the exercise of this Warrant shall be made without charge to the Holder or such shares for
any issuance tax or other costs in respect thereof, provided that the Company shall not be required to pay any tax which may be payable
in respect of any transfer involved in the issuance and delivery of any certificate in a name other than the Holder.
6. No
Rights or Liabilities as a Shareholder. This Warrant shall not entitle the Holder to any voting rights or other rights as a shareholder
of the Company. No provision of this Warrant, in the absence of affirmative action by the Holder to purchase Units, and no mere enumeration
herein of the rights or privileges of the Holder, shall give rise to any liability of such Holder for the Exercise Price or as a shareholder
of the Company, whether such liability is asserted by the Company or by creditors of the Company.
7. Transfer, Exchange, and Replacement of Warrant.
(a) Procedure
on Transfer. This Warrant and the rights granted to the Holder are transferable, in whole or in part, upon surrender of this
Warrant, together with a properly executed assignment in the form attached hereto, at the office or agency of the Company. Until due
presentment for registration of transfer on the books of the Company, the Company may treat the registered Holder as the owner and holder
of this Warrant for all purposes, and the Company shall not be affected by any notice to the contrary.
(b) Warrant
Exchangeable for Different Denominations. This Warrant is exchangeable, upon the surrender hereof by the Holder at the office
or agency of the Company, for new Warrants of like tenor representing in the aggregate the right to purchase the number of shares of
Common Stock which may be purchased hereunder, each of such new Warrants to represent the right to purchase such number of shares as
shall be designated by the Holder at the time of such surrender.
(c) Replacement
of Warrant. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of
this Warrant and, in the case of any such loss, theft, or destruction, upon delivery of an indemnity agreement reasonably satisfactory
in form and amount to the Company, or, in the case of any such mutilation, upon surrender and cancellation of this Warrant, the Company,
at its expense, will execute and deliver, in lieu thereof, a new Warrant of like tenor.
(d) Cancellation.
Upon the surrender of this Warrant in connection with any transfer, exchange, or replacement as provided in this Paragraph 7, this
Warrant shall be promptly canceled by the Company.
(e) Register.
The Company shall maintain, at its principal executive offices (or such other office or agency of the Company as it may designate
by notice to the Holder), a register for this Warrant, in which the Company shall record the name and address of the person in whose
name this Warrant has been issued, as well as the name and address of each transferee and each prior owner of this Warrant.
(f) Exercise
or Transfer Without Registration. If, at the time of the surrender of this Warrant in connection with any exercise, transfer,
or exchange of this Warrant, this Warrant (or, in the case of any exercise, the Units issuable hereunder), shall not be registered under
the Securities Act of 1933, as amended (the “Securities Act”) and under applicable state securities or blue sky laws, the
Company may require, as a condition of allowing such exercise, transfer, or exchange, (i) that the Holder or transferee of this Warrant,
as the case may be, furnish to the Company a written opinion of counsel, which opinion and counsel are acceptable to the Company, to
the effect that such exercise, transfer, or exchange may be made without registration under said Act and under applicable state securities
or blue sky laws, (ii) that the Holder or transferee execute and deliver to the Company an investment representation letter in form and
substance acceptable to the Company and (iii) that the transferee be an “accredited investor” as defined in Rule 501(a) promulgated
under the Securities Act and provides representations to that effect in form and substance acceptable to the Company; provided that no
such opinion, letter or status as an “accredited investor” shall be required in connection with a transfer pursuant to Rule
144 under the Securities Act. The first holder of this Warrant, by taking and holding the same, represents to the Company that such holder
is acquiring this Warrant for investment and not with a view to the distribution thereof. In no event shall the Holder be permitted to
assign the Warrant unless provided with express written consent by the Company.
8. Notices.
All notices, requests, and other communications required or permitted to be given or delivered hereunder to the Holder shall be in
writing, and shall be personally delivered, or shall be sent by certified or registered mail or by recognized overnight mail courier,
postage prepaid and addressed, to such holder at the address shown for such holder on the books of the Company, or at such other address
as shall have been furnished to the Company by notice from such holder. All notices, requests, and other communications required or permitted
to be given or delivered hereunder to the Company shall be in writing, and shall be personally delivered, or shall be sent by certified
or registered mail or by recognized overnight mail courier, postage prepaid and addressed, to the office of the Company at 170 Park Ave,
Florham Park, New Jersey 07932, or at such other address as shall have been furnished to the Holder by notice from the Company. Any such
notice, request, or other communication may be sent by e-mail. All notices, requests, and other communications shall be deemed to have
been given either at the time of the receipt thereof by the person entitled to receive such notice at the address of such person for
purposes of this Section 8, or, if mailed by registered or certified mail or with a recognized overnight mail courier upon deposit with
the United States Post Office or such overnight mail courier, if postage is prepaid and the mailing is properly addressed, as the case
may be.
9. Governing
Law. This Warrant shall be enforced, governed by and construed in accordance with the laws of the State of New York applicable
to agreements made and to be performed entirely within such state, without regard to the principles of conflict of laws. The parties
hereto hereby submit to the exclusive jurisdiction of the courts, Federal and State located in New York County, New York with respect
to any dispute arising under this Warrant, the agreements entered into in connection herewith or the transactions contemplated hereby
or thereby. Both parties irrevocably waive the defense of an inconvenient forum to the maintenance of such suit or proceeding. Both parties
further agree that service of process upon a party mailed by first class mail shall be deemed in every respect effective service of process
upon the party in any such suit or proceeding. Nothing herein shall affect either party’s right to serve process in any other manner
permitted by law. The party which does not prevail in any dispute arising under this Warrant shall be responsible for all fees and expenses,
including attorneys’ fees, incurred by the prevailing party in connection with such dispute.
10. Miscellaneous.
(a) Amendments.
This Warrant and any provision hereof may only be amended by an instrument in writing signed by the Company and the Holder.
(b) Descriptive
Headings. The descriptive headings of the several paragraphs of this Warrant are inserted for purposes of reference only and
shall not affect the meaning or construction of any of the provisions hereof.
(c) Remedies.
The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder, by vitiating the
intent and purpose of the transaction contemplated hereby. Accordingly, the Company acknowledges that the remedy at law for a breach
of its obligations under this Warrant will be inadequate and agrees, in the event of a breach or threatened breach by the Company of
the provisions of this Warrant, that the Holder shall be entitled, in addition to all other available remedies at law or in equity, and
in addition to the penalties assessable herein, to an injunction or injunctions restraining, preventing or curing any breach of this
Warrant and to enforce specifically the terms and provisions thereof, without the necessity of showing economic loss and without any
bond or other security being required.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly authorized officer.
FORM
OF NOTICE OF EXERCISE
Dated__________ ,20
To: |
Celularity
Inc. |
|
170
Park Ave. |
|
Florham
Park, New Jersey 07932 |
The
undersigned, pursuant to the provisions set forth in the within Warrant, hereby agrees to purchase ________________ shares
of Common Stock covered by such Warrant. The undersigned intends that payment of the Exercise Price shall be made as follows (check
one and initial)
_______ a
cash exercise in the amount of $ _________ by means of wire transfer to Company’s bank account within two banking days
of the date hereof; or
_______
a cashless exercise in accordance with Section 1(b) of the Warrant
Please
issue such shares of Common Stock in the name of and pay any cash for any fractional share to:
|
Name: |
|
|
Signature: |
|
|
Address: |
|
|
|
|
|
Note: |
The
above signature should correspond exactly
with
the name on the face of the within Warrant, if applicable. |
FORM
OF ASSIGNMENT
FOR
VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers all the rights of the undersigned under the within Warrant,
with respect to the number of shares of Common Stock covered thereby set forth hereinbelow, to:
Name
of Assignee |
|
Address |
|
No
of Shares |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
,
and hereby irrevocably constitutes and appoints __________________________________ as agent and attorney- in-fact to
transfer said Warrant on the books of the within-named corporation, with full power of substitution in the premises.
Dated:
___________ , 20
In
the presence of: |
|
|
|
|
|
|
Name: |
|
|
Signature: |
|
|
|
|
|
Title of Signing Officer or Agent (if any): |
|
|
|
Address: |
|
|
|
|
|
|
|
|
|
|
|
Note: |
The
above signature should correspond exactly with the name on the face of the
within
Warrant, if applicable. |
EXHIBIT
A
v3.24.3
Cover
|
Nov. 25, 2024 |
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Nov. 25, 2024
|
Entity File Number |
001-38914
|
Entity Registrant Name |
Celularity
Inc.
|
Entity Central Index Key |
0001752828
|
Entity Tax Identification Number |
83-1702591
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
170 Park Ave
|
Entity Address, City or Town |
Florham Park
|
Entity Address, State or Province |
NJ
|
Entity Address, Postal Zip Code |
07932
|
City Area Code |
(908)
|
Local Phone Number |
768-2170
|
Written Communications |
false
|
Soliciting Material |
false
|
Pre-commencement Tender Offer |
false
|
Pre-commencement Issuer Tender Offer |
false
|
Entity Emerging Growth Company |
true
|
Elected Not To Use the Extended Transition Period |
false
|
Class A Common Stock, $0.0001 par value per share |
|
Title of 12(b) Security |
Class
A Common Stock, $0.0001 par value per share
|
Trading Symbol |
CELU
|
Security Exchange Name |
NASDAQ
|
Warrants, each exercisable for one-tenth of one share of Class A Common Stock at an exercise price of $11.50 per share |
|
Title of 12(b) Security |
Warrants,
each exercisable for one-tenth of one share of Class A Common Stock at an exercise price of $11.50 per share
|
Trading Symbol |
CELUW
|
Security Exchange Name |
NASDAQ
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