Contract
Exhibit 10.1 Execution Version \\PH - 036137/000006 - 396952 v6 COMMON STOCK ISSUANCE AGREEMENT THIS COMMON STOCK ISSUANCE AGREEMENT (this “Agreement”) is made as of December 7, 2018, by and among Fibrocell Science, Inc., a Delaware corporation (the “Company”), and EB Research Partnership, Inc., a New York not-for-profit corporation (“EBRP”), and Epidermolysis Bullosa Medical Research Foundation, a California domestic non- profit corporation (“EBRF”) (each of EBRP and EBRF, a “Purchaser” and collectively, the “Purchasers”). For this and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: 1. Issuance of Shares. On the date hereof, the Company shall issue and sell to each Purchaser, and each Purchaser shall purchase from the Company, such number of shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), as set forth on Exhibit A hereto at a purchase price of $2.03 per Share, resulting in gross proceeds to the Company of $900,000. 2. Company Representations and Warranties. The Company hereby represents, warrants, acknowledges, and agrees as follows: (a) Organization and Corporate Power. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as presently conducted. (b) Authorization. All corporate action required to be taken by the Company’s board of directors in order to authorize the Company to enter into this Agreement, and to issue the Shares hereunder, has been taken. All action on the part of the officers of the Company necessary for the execution and delivery of this Agreement, the performance of all obligations of the Company under this Agreement, and the issuance and delivery of the Shares has been taken. This Agreement, when executed and delivered by the Company, shall constitute a 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, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, or (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies. (c) Valid Issuance of Shares. The Shares, when issued, sold and delivered in accordance with the terms and for the consideration set forth in this Agreement, will be validly issued, fully paid, and nonassessable and free of restrictions on transfer other than applicable state and federal securities laws and liens or encumbrances created by or imposed by the Purchasers. Assuming the accuracy of the representations of each Purchaser in Section 3 of this Agreement and subject to required federal and state securities filings, the Shares will be issued in compliance with all applicable federal and state securities laws.
-2- \\PH - 036137/000006 - 396952 v6 3. Purchaser Representations and Warranties. Each Purchaser hereby represents, warrants, acknowledges, and agrees as follows: (a) Authorization. Such Purchaser has full power and authority to enter into this Agreement. This Agreement, when executed and delivered by such Purchaser, will constitute a valid and legally binding obligation of such Purchaser, enforceable against such Purchaser in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or any other laws of general application affecting enforcement of creditors’ rights generally, or (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies. (b) Purchase Entirely for Own Account. This Agreement is made with such Purchaser in reliance upon such Purchaser’s representation to the Company, which by such Purchaser’s execution of this Agreement, such Purchaser hereby confirms, that the Shares will be acquired for investment for such Purchaser’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that such Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same. By executing this Agreement, such Purchaser further represents that such Purchaser does not presently have any contract, undertaking, agreement, or arrangement with any person or entity to sell, transfer, or grant participations to such person or entity or to any third person or entity, with respect to any of the Shares. Such Purchaser has not been formed for the specific purpose of acquiring the Shares. (c) Disclosure of Information. Such Purchaser acknowledges that it has had the opportunity to review this Agreement and all reports, schedules, forms, statements and other documents filed by the Company under the Securities Exchange Act of 1934, as amended, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) and has been afforded, (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Shares and the merits and risks of investing in the Shares; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. (d) Restricted Securities. Such Purchaser understands that the Shares have not been, and will not be, registered under the Securities Act of 1933, as amended (the “Securities Act”) and, by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of such Purchaser’s representations as expressed herein. Such Purchaser understands that the Shares are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, such Purchaser must hold the Shares indefinitely unless they are registered with the Securities and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualification requirements is available. Such Purchaser acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the
-3- \\PH - 036137/000006 - 396952 v6 holding period for the Shares, delivery of a legal opinion, and on requirements relating to the Company which are outside of such Purchaser’s control, and which the Company is under no obligation and may not be able to satisfy. (e) Legends. Such Purchaser understands that the book entry or the certificate or certificates representing the Shares may be notated with one or all of the following legends: (i) “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, OR OTHERWISE TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OR (B) 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 OR BLUE SKY LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS TRANSFER AGENT OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER THE SECURITIES ACT.”; and (ii) Any legend required by the securities laws of any state to the extent such laws are applicable to the Shares represented by the certificate, instrument or book entry so legended. (f) Accredited Investor. Such Purchaser is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act. (g) Experience of such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the Shares and, at the present time, is able to afford a complete loss of such investment. (h) No General Solicitation. Such Purchaser is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or, to the knowledge of such Purchaser, any other general solicitation or general advertisement. (i) Residence. Such Purchaser’s principal place of business is located at the address set forth on its signature page to this Agreement. 4. Miscellaneous. (a) Registration Statement. As soon as reasonably practicable (and in any event within 45 calendar days after the date of this Agreement) and subject to the Company’s prior receipt of each of the Purchaser’s Questionnaires (as defined below), the Company shall file a registration statement on Form S-3 providing for the resale by the Purchasers of the Shares. The
-4- \\PH - 036137/000006 - 396952 v6 Company shall use its commercially reasonable efforts to cause such registration statement to become effective 90 days following the date hereof and to keep such registration statement effective at all times until the earliest of (a) the Shares are sold under such registration statement or pursuant to Rule 144 under the Securities Act, (b) the Shares may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 under the Securities Act, and (c) the five (5) year anniversary of the date of the issuance of the Shares. Each Purchaser shall furnish the Company a questionnaire in the form attached hereto as Exhibit B prior to the filing of such registration statement (each, a “Purchaser’s Questionnaire”). (b) Entire Agreement; Governing Law. This Agreement constitutes the entire understanding between the Purchasers and the Company with respect to the subject matter hereof and supersedes any prior understanding and/or written or oral agreements between them with respect to such subject matter. This Agreement shall be governed by the laws of the State of Delaware, without regard to the principles of conflicts of laws of Delaware or any other jurisdiction that would result in the application of the laws of any jurisdiction other than Delaware. (c) Severability. In case any provision of this Agreement shall be invalid, illegal, or unenforceable, it shall, to the extent practicable, be modified so as to make it valid, legal, and enforceable and to retain as nearly as practicable the intent of the parties, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. (d) Amendment; Waiver. Any provision of this Agreement and the obligations of the Company or rights of the Purchasers hereunder may be amended or waived if, but only if, such amendment or waiver is in writing and is approved in writing by the Company and the Purchasers, whereupon such amendment or waiver shall be binding on the Company and the Purchasers. (e) Counterparts; Execution by Electronic Means. This Agreement may be executed in any number of counterparts, and any party may execute any such counterpart, each of which when executed and delivered by facsimile or by electronic scanned copy (including .pdf) exchanged by electronic transmission, shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. [Signature pages follow.]
SIGNATURE PAGE TO COMMON STOCK ISSUANCE AGREEMENT \\PH - 036137/000006 - 396952 v6 IN WITNESS WHEREOF, the undersigned party has duly executed this Equity Issuance Agreement as of the date first written above. COMPANY: FIBROCELL SCIENCE, INC. By: /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Vice President of Business Administration, Corporate Secretary Address: 000 Xxxxxxxxx Xxxxxxxxx Xxxxx, Xxxxxxxxxxxx 00000
SIGNATURE PAGE TO COMMON STOCK ISSUANCE AGREEMENT \\PH - 036137/000006 - 396952 v6 IN WITNESS WHEREOF, the undersigned party has duly executed this Equity Issuance Agreement as of the date first written above. PURCHASERS: EB RESEARCH PARTNERSHIP, INC. By: /s/ Alexander Silver Name: Alexander Silver Title: Chairman Address: 000 X 00xx Xx., Xxxxx 000 Xxx Xxxx, Xxx Xxxx 00000 EPIDERMOLYSIS BULLOSA MEDICAL RESEARCH FOUNDATION By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx Title: Chief Executive Officer Address: 0000 Xxxxxx Xxxxxx Xxx Xxxxxxx, Xxxxxxxxxx 00000
\\XX - 000000/000000 - 000000 v6 EXHIBIT A Purchaser Exact Name Address for Delivery Tax ID Purchase Price Share Amount EB Research Partnership, Inc. 000 X. 00xx Xx. Xxxxx Xx. 000 Xxx Xxxx, XX 00000 (Provided Separately) $450,000 221,675 Epidermolysis Bullosa Medical Research Foundation 0000 Xxxxxx Xxxxxx Xxx Xxxxxxx, XX 00000 (Provided Separately) $450,000 221,675
