SELLING SHAREHOLDERS The common stock being offered by the selling shareholders are those issuable to the selling shareholders upon conversion of the Debentures. For additional information regarding the issuances of those shares of common stock and warrants, see “Private Placement of Debentures” above. We are registering the shares of common stock in order to permit the selling shareholders to offer the shares for resale from time to time. The table below lists the selling shareholders and other information regarding the beneficial ownership of the shares of common stock by each of the selling shareholders. The second column lists the number of shares of common stock beneficially owned by each selling shareholder, based on its ownership of the shares of common stock and warrants, as of ________, 2022, assuming exercise of the warrants held by the selling shareholders on that date, without regard to any limitations on exercises. The third column lists the shares of common stock being offered by this prospectus by the selling shareholders. In accordance with the terms of a registration rights agreement with the selling shareholders, this prospectus generally covers the resale of the maximum number of shares of common stock issuable upon conversion of the Debentures, determined as if the outstanding Debentures were exercised in full as of the trading day immediately preceding the date this registration statement was initially filed with the SEC, each as of the trading day immediately preceding the applicable date of determination and all subject to adjustment as provided in the registration right agreement, without regard to any limitations on the exercise of the warrants. The fourth column assumes the sale of all of the shares offered by the selling shareholders pursuant to this prospectus. The selling shareholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.” The undersigned beneficial owner of common stock (the “Registrable Securities”) of Progressive Care, Inc., a Delaware corporation (the “Company”), understands that the Company has filed or intends to file with the Securities and Exchange Commission (the “Commission”) a registration statement (the “Registration Statement”) for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), of the Registrable Securities, in accordance with the terms of the Registration Rights Agreement (the “Registration Rights Agreement”) to which this document is annexed. A copy of the Registration Rights Agreement is available from the Company upon request at the address set forth below. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement. Certain legal consequences arise from being named as a selling stockholder in the Registration Statement and the related prospectus. Accordingly, holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or not being named as a selling stockholder in the Registration Statement and the related prospectus.
SELLING STOCKHOLDERS The common stock being offered by the selling stockholders are those previously issued to the selling stockholders, and those issuable to the selling stockholders, upon exercise of the warrants. For additional information regarding the issuances of those shares of common stock and warrants, see “Private Placement of Shares of Common Stock and Warrants” above. We are registering the shares of common stock in order to permit the selling stockholders to offer the shares for resale from time to time. Except for the ownership of the shares of common stock and the warrants, the selling stockholders have not had any material relationship with us within the past three years. The table below lists the selling stockholders and other information regarding the beneficial ownership of the shares of common stock by each of the selling stockholders. The second column lists the number of shares of common stock beneficially owned by each selling stockholder, based on its ownership of the shares of common stock and warrants, as of ________, 2023, assuming exercise of the warrants held by the selling stockholder on that date, without regard to any limitations on exercise. The third column lists the shares of common stock being offered by this prospectus by the selling stockholders. In accordance with the terms of a registration rights agreement with the selling stockholders, this prospectus generally covers the resale of the (i) sum of the number of shares of common stock issued to the selling stockholders in the “Private Placement of Shares of Common Stock and Warrants” described above and (ii) the maximum number of shares of common stock issuable upon exercise of the related warrants, determined as if the outstanding warrants were exercised in full as of the trading day immediately preceding the date this registration statement was initially filed with the SEC, each as of the trading day immediately preceding the applicable date of determination and all subject to adjustment as provided in the registration right agreement, without regard to any limitations on the exercise of the warrants. The fourth column assumes the sale of all of the shares offered by the selling stockholders pursuant to this prospectus. Under the terms of the warrants, a selling stockholder may not exercise the warrants to the extent such exercise would cause such selling stockholder, together with its affiliates and attribution parties, to beneficially own a number of shares of common stock which would exceed 9.99%, of our then outstanding common stock following such exercise, excluding for purposes of such determination shares of common stock issuable upon exercise of such warrants which have not been exercised. The number of shares in the second and fourth columns do not reflect this limitation. The selling stockholders may sell all, some or none of their shares in this offering. See "Plan of Distribution." The undersigned owner of common stock and warrants to purchase common stock (such shares of common stock, the “Registrable Securities”) of Celularity Inc., a Delaware corporation (the “Company”), understands that the Company has filed or intends to file with the Securities and Exchange Commission (the “Commission”) a registration statement (the “Registration Statement”) for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), of the Registrable Securities, in accordance with the terms of the Registration Rights Agreement (the “Registration Rights Agreement”) to which this document is annexed. A copy of the Registration Rights Agreement is available from the Company upon request at the address set forth below. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement. Certain legal consequences arise from being named as a selling stockholder in the Registration Statement and the related prospectus. Accordingly, holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or not being named as a selling stockholder in the Registration Statement and the related prospectus.
Certificate of Selling Shareholders At Closing Time, the Representatives shall have received a certificate of an Attorney-in-Fact on behalf of each Selling Shareholder, dated as of Closing Time, to the effect that (i) the representations and warranties of each Selling Shareholder contained in Section 1(b) hereof are true and correct in all respects with the same force and effect as though expressly made at and as of Closing Time and (ii) each Selling Shareholder has complied in all material respects with all agreements and all conditions on its part to be performed under this Agreement at or prior to Closing Time.
Selling Stockholders’ Documents On the date hereof, the Company and the Selling Stockholders shall have furnished for review by the Representatives copies of the Powers of Attorney and Custody Agreements executed by each of the Selling Stockholders and such further information, certificates and documents as the Representatives may reasonably request.
Warrant Holder Not Shareholder This Warrant does not confer upon the holder hereof any right to vote or to consent or to receive notice as a shareholder of the Company, as such, in respect of any matters whatsoever, or any other rights or liabilities as a shareholder, prior to the exercise hereof as hereinbefore provided.
Certificate of Selling Stockholders A certificate, dated such Date of Delivery, of an Attorney-in-Fact on behalf of each Selling Stockholder confirming that the certificate delivered at Closing Time pursuant to Section 5(f) remains true and correct as of such Date of Delivery.
Buy-Sell (a) Either MCG, on the one hand, or the Manager and the Keystone Investor (acting together), on the other hand, shall have the right and the option to implement the buy/sell procedure as set forth in this Section 10.4 if permitted to do so under Section 9.1(e). For the purposes of this Section 10.4, the Manager and Keystone Investor shall be considered one Member.
(b) Any Member which intends to exercise its buy/sell option hereunder (the “Notifying Member”) shall first give notice of its intent to the other Member (the “Buy/Sell Notice”) which Buy/Sell Notice shall (1) contain a statement of irrevocable intent to utilize this Section 10.4, (2) contain a statement of the aggregate dollar amount which the Notifying Member is willing to pay in cash for all of the assets of the Company, free and clear of all liabilities and obligations relating thereto (the “Specified Valuation Amount”) as of the date of the Buy/Sell Notice, (3) disclose all material liabilities and potential material liabilities of the Company actually known to the Notifying Member and (4) disclose the terms and details of any discussion, offer, contract, similar agreement or documents that the Notifying Member has negotiated or discussed during the 180 days preceding the delivery of the Buy/Sell Notice with any potential purchaser or equity provider (but not debt financier) of or with respect to the Project (or any portion thereof). The other Member, after receiving the Buy/Sell Notice (“Receiving Member”), shall have the option to either: (A) sell its entire Membership Interest to the Notifying Member for an amount equal to the amount the Receiving Member would be entitled to receive if the Company sold all of its assets for the Specified Valuation Amount on the date of the Buy/Sell Notice and immediately thereafter the Company paid all liabilities and obligations of the Company (whether or not such liabilities and/or obligations were listed in the Buy/Sell Notice), and deducted customary closing costs (excluding brokerage fees and commissions) that would be associated with a third party sale, and, subject to Section 10.6, distributed the net proceeds and any other Company assets to each Member in liquidation of the Company pursuant to Section 11 (any disputes regarding such amounts shall be resolved by the Approved Accountants); (B) purchase the entire Membership Interest of the Notifying Member for an amount equal to the amount the Notifying Member would be entitled to receive if the Company sold all of its assets for the Specified Valuation Amount on the date of the Buy/Sell Notice and immediately thereafter the Company paid all liabilities and obligations of the Company (whether or not such liabilities and/or obligations were listed in the Buy/Sell Notice), and deducted customary closing costs that would be associated with a third party sale, and, subject to Section 10.6, distributed the net proceeds and any other Company assets to each Member in liquidation of the Company pursuant to Section 11 (any disputes regarding such amounts shall be resolved by the Approved Accountants); or (C) implement the listing procedures described in Section 10.5, in which case the additional buy/sell procedures described in the remaining provisions of this Section 10.4 shall no longer apply unless and until the buy/sell procedures are re-initiated in accordance with Sections 10.4 and 10.5. If the Receiving Member disputes the Notifying Member’s statement of the amount payable to each Member based on the Specified Valuation Amount (there shall be no right to challenge the Specified Valuation Amount itself), it shall promptly provide notice of such dispute to the Notifying Member and to the Approved Accountants, which dispute the Approved Accountants shall resolve within thirty (30) days of the Buy/Sell Notice (which resolution shall include a written report delivered to all Members specifying the calculations and assumptions underlying such resolution, and shall be binding). Any such dispute shall stay the time periods set forth in this Section 10.4(b) from the date on which notice of such dispute is given to the Notifying Member through and including the date on which the Approved Accountants provide a written report of the resolution of such dispute.
(c) The Receiving Member shall give written notice (the “Election Notice”) to the Notifying Member of its election under Section 10.4(b) within thirty (30) days after receiving such Buy/Sell Notice (the “30 Day Period”). If the Receiving Member does not send its Election Notice within such 30 Day Period, such Receiving Member(s) shall be deemed conclusively to have elected to sell its entire Membership Interest. The Member obligated to purchase under this Section 10.4(c) shall fix a closing date not later than sixty (60) days following the earlier of the date of the delivery of the Election Notice and the expiration of such 30 Day Period (which period may be extended if lender approval, if required, has not been obtained by such date) and shall deposit five percent (5%) of the purchase price (the “Deposit”) in the escrow established for the closing of the sale. At such closing, the selling Member shall Transfer to the buying Member (or the buying Member’s nominee(s)) its entire Membership Interest free and clear of all liens and competing claims and shall deliver to the buying Member (or the buying Member’s nominee(s)) such instruments of transfer and such evidence of due authorization, execution, and delivery, and of the absence of any such liens or competing claims, as the buying Member (or the buying Member’s nominee(s)) shall reasonably request. If the Membership Interest of any Member is purchased pursuant to this Section 10.4(c), then, effective as of the closing for such purchase, the selling Member shall withdraw as a Member and, if applicable, Manager, of the Company. In connection with any such withdrawal of the selling Member, the buying Member may cause any nominee designated in the sole and absolute discretion of the buying Member to be admitted as a substituted Member of the Company. In addition, it shall be a condition of such sale that the purchasing Member either (i) cause the selling Member to be released from any guarantees or indemnities entered into by the selling Member in connection with the Project or other Company business pursuant to releases reasonably acceptable to the selling Member or (ii) cause a creditworthy affiliate of the purchasing Member (in the selling Member’s reasonable judgment) to indemnify and hold harmless the selling Member from and against any and all liabilities under such guarantees and indemnities occurring on or after the date of the sale pursuant to an indemnification agreement reasonably acceptable to the selling Member. Each Member shall pay its own legal, accounting and other consultant fees and expenses in connection with consummating a transaction under this Section 10.4(c), and all other closing costs shall be allocated equally between the Members. Each Member shall pay its own legal, accounting and other consultant fees and expenses in connection with consummating a transaction under this Section 10.4(c), and all other closing costs shall be allocated 50% to the selling Member and 50% to the purchasing Member.
(d) The selling Member hereby irrevocably constitutes and appoints the purchasing Member as its attorney-in-fact to execute, acknowledge and deliver such instruments as may be necessary or appropriate to carry out and enforce the provisions of this Section 10.4 following the failure of the selling Member to execute, acknowledge and deliver such instruments as and when required herein, after written request to do so. If the purchasing Member defaults in the performance of its obligations under this Section 10.4, the selling Member may, as its exclusive remedy (except for the purchasing Member’s loss of rights described below), either (i) retain the Deposit as liquidated damages or (ii) acquire the purchasing Member’s Membership Interest at a ten percent (10%) discount to the price that would otherwise have been applicable to an acquisition of such Member’s Membership Interest under this Section 10.4 and with an extra sixty (60) days (from the time of default) to make such decision, and an extra sixty (60) days (from the time of such election) to close, but otherwise on the terms described in this Section 10.4. If the selling Member defaults, the purchasing Member may enforce its rights by specific performance (and damages incidental to a specific performance action which are allowed as part of such action as well as a dollar amount equal to the Deposit), as its exclusive remedy.
(e) Notwithstanding anything to the contrary in this Section 10.4, the amount to be paid for the selling Member’s Membership Interest in the Company shall be adjusted as follows: There shall be determined, as of the date of the closing: (i) the aggregate amount of all Capital Contributions made by the selling Member between the date of the Buy/Sell Notice and the date of the Closing, and (ii) the aggregate amount of all distributions of capital made to the selling Member during such period pursuant to Section 7. If (A) the amount determined under (i) exceeds the amount determined under (ii), then the amount to be received by the selling Member shall be increased by the amount of such excess, and (B) if the amount determined under (ii) exceeds the amount determined under (i), then the amount to be received by the selling Member shall be decreased by the amount of such excess.
WARRANT HOLDER NOT DEEMED A SHAREHOLDER Except as otherwise specifically provided herein, the Holder, solely in such Person’s capacity as a holder of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in such Person’s capacity as the Holder of this Warrant, any of the rights of a shareholder of the Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the Holder of the Warrant Shares which such Person is then entitled to receive upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a shareholder of the Company, whether such liabilities are asserted by the Company or by creditors of the Company. Notwithstanding this Section 6, the Company shall provide the Holder with copies of the same notices and other information given to the shareholders of the Company generally, contemporaneously with the giving thereof to the shareholders.
Expenses of the Selling Shareholders The Selling Shareholders, jointly and severally, will pay all expenses incident to the performance of their respective obligations under, and the consummation of the transactions contemplated by, this Agreement, including (i) any stamp and other duties and stock and other transfer taxes, if any, payable upon the sale of the Securities to the Underwriters and their transfer between the Underwriters pursuant to an agreement between such Underwriters, and (ii) the fees and disbursements of their respective counsel and other advisors.
Buyer Shares Each Buyer Share issued and outstanding at and as of the Effective Time will remain issued and outstanding.
