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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): September 12, 2019



LOGO

FIBROCELL SCIENCE, INC.
(Exact Name of Registrant as Specified in its Charter)



DELAWARE
(State or Other Jurisdiction
of Incorporation or Organization)
  001-31564
(Commission
File No.)
  87-0458888
(I.R.S. Employer
Identification No.)

405 EAGLEVIEW BLVD., EXTON, PA 19341
(Address of principal executive offices and zip code)

(484) 713-6000
(Registrant's telephone number, including area code)

(Former name or former address, if changed from last report)



Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

ý
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-14(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
Common Stock, par value $0.001   FCSC   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 o

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. o


Item 1.01.    Entry into a Material Definitive Agreement.

        On September 12, 2019, Fibrocell Science, Inc., a Delaware corporation (the "Company"), Castle Creek Pharmaceutical Holdings, Inc. ("Castle Creek"), and Castle Creek Merger Corp., a Delaware corporation and wholly owned subsidiary of Castle Creek ("Merger Sub"), entered into an Agreement and Plan of Merger (the "Merger Agreement"), pursuant to which, and on the terms and conditions set forth in the Merger Agreement, Merger Sub will merge with and into the Company (the "Merger"). The Company will survive the Merger as a wholly owned subsidiary of Castle Creek.

        Subject to the terms and conditions set forth in the Merger Agreement, at the effective time of the Merger (the "Effective Time"), each share of common stock of the Company issued and outstanding immediately prior to the Effective Time (other than shares held directly by Castle Creek or Merger Sub and shares owned by Company stockholders who have exercised their appraisal rights under Delaware law) will be converted into the right to receive $3.00 in cash, without interest (the "Merger Consideration").

        In addition, after the Effective Time, each share of the Company's Series A Convertible Preferred Stock (the "Preferred Stock") will remain outstanding (until converted by the holders thereof pursuant to the Consent and Termination Agreement, as defined below), and will thereafter only represent the right to receive an amount in cash, without interest, equal to (i) the number of shares of common stock underlying each share of Preferred Stock multiplied by (ii) the Merger Consideration. After the Effective Time, each outstanding Company warrant shall be generally entitled to receive (i) upon any subsequent exercise, an amount equal to the Merger Consideration less the exercise price for such warrant, or (ii) if eligible pursuant to the terms of the warrant, upon notification by the holder of such warrant to the Company within 30 days of the Effective Time, an amount equal to the Black-Scholes value of the warrant. Each stock option issued under the Company's equity incentive plans outstanding immediately prior to the Effective Time, whether vested or unvested, will accelerate and be converted into the right to receive in cash an amount equal to the Merger Consideration minus the exercise price of such stock option.

        The Merger Agreement contains customary representations and warranties of the Company, Castle Creek and Merger Sub, and customary pre-closing covenants, including covenants requiring the Company (i) to conduct its business in the ordinary course, and (ii) to refrain from taking certain actions without Castle Creek's consent.

        Castle Creek has obtained financing commitments for the purpose of financing the Merger.

        In addition, the Merger Agreement requires that the Company refrain from soliciting proposals relating to alternative transactions or, subject to certain exceptions, enter into discussions concerning, or provide information in connection with, alternative transactions. Prior to the adoption of the Merger Agreement by the Company's stockholders, the Company's Board of Directors may not, without first complying with certain conditions set forth in the Merger Agreement and solely in response to a Superior Proposal (as defined in the Merger Agreement), (i) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Acquisition Proposal (as defined in the Merger Agreement), (ii) withdraw, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, its recommendation that the Company's stockholders adopt the Merger Agreement, (iii) fail to include in the proxy statement to be filed in connection with the Merger the Board of Directors' recommendation that the Company's stockholders adopt the Merger Agreement, (iv) fail to recommend against any tender offer that constitutes an Acquisition Proposal subject to Regulation 14D under the Securities Exchange Act of 1934, as amended, (v) approve, authorize or cause or permit the Company or its subsidiaries to enter into any acquisition agreement or similar agreement relating to any Acquisition Proposal, or (vi) fail to publicly affirm the Company's Board of Directors' recommendation that the Company's stockholders adopt the Merger Agreement within five business days following receipt of a written request to do so from Castle Creek (collectively, a "Change of Board Recommendation").


        Pursuant to the terms of the Merger Agreement, the consummation of the Merger is subject to certain other customary closing conditions, including, but not limited to, the approval of the Merger by the Company's stockholders, the receipt of regulatory clearances (to the extent required), the continued effectiveness of certain of the Company's contracts, accuracy of the representations of the Company and the absence of a material adverse effect with respect to the Company, and that no more than 8% of the holders of the outstanding shares of the Company's common stock have exercised or purported to exercise statutory appraisal rights under Delaware law with respect to such shares of common stock. Subject to the satisfaction of the closing conditions, the parties anticipate that the Merger will be consummated during the fourth quarter of 2019.

        The Merger Agreement contains certain termination rights for the Company and Castle Creek. Upon termination of the Merger Agreement under specified circumstances, the Company will be required to pay Castle Creek a termination fee of $2,000,000.

        The foregoing description of the Merger Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Merger Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K and incorporated herein by reference. The summary and the copy of the Merger Agreement are intended to provide information regarding the terms of the Merger Agreement and are not intended to modify or supplement any factual disclosures about the Company in its public reports filed with the U.S. Securities and Exchange Commission ("SEC"). The assertions embodied in the representations and warranties included in the Merger Agreement were made solely for purposes of the contract among the Company, Castle Creek and Merger Sub and are subject to important qualifications and limitations agreed to by the Company, Castle Creek and Merger Sub in connection with the negotiated terms, including being qualified by confidential disclosures made by each contracting party to the other for the purposes of allocating contractual risk between them that differ from those applicable to investors. Moreover, some of those representations and warranties may not be accurate or complete as of any specified date, may be subject to a contractual standard of materiality different from those generally applicable to the Company's SEC filings or may have been used for purposes of allocating risk among the Company, Castle Creek and Merger Sub rather than establishing matters as facts. Investors should not rely on the representations and warranties or any description of them as characterizations of the actual state of facts of the Company, Castle Creek, Merger Sub or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, and this subsequent information may or may not be fully reflected in the Company's public disclosures. The Company acknowledges that, notwithstanding the inclusion of the foregoing cautionary statements, it is responsible for considering whether additional specific disclosures of material information regarding material contractual provisions are required to make the statements in this Current Report on Form 8-K not misleading.

Item 1.02.    Termination of a Material Definitive Agreement

        In connection with the execution of the Merger Agreement, on September 12, 2019 the Company also entered into a Consent and Termination Agreement with MSD Credit Opportunity Master Fund L.P. ("MSD"), Merger Sub and Castle Creek, and a separate Consent and Termination Agreement with Merger Sub, Castle Creek and the following affiliates of Randal J. Kirk: Third Security, LLC, NRM VII Holdings I, LLC, Kapital Joe, LLC, Mascara Kaboom, LLC and Intrexon Corporation (the "Kirk Affiliates", and collectively, the "Termination Agreements"). Pursuant to the terms of the Termination Agreements, that certain Securities Purchase Agreement, dated March 7, 2017, by and among the Company and the purchasers named on the signature pages therein (the "Securities Purchase Agreement") will be terminated as of immediately prior to the closing of the Merger. As consideration for entry into the Termination Agreements, the Kirk Affiliates and MSD will each receive a promissory note to be issued by the surviving corporation following the Merger, in each case for an amount equal to (and in addition to) the consideration such party is entitled to pursuant to the Merger Agreement in connection with such party's ownership of shares of Preferred Stock. Pursuant to the Termination Agreements and in addition to the foregoing, each of MSD and the Kirk Affiliates also agree to the


treatment of the Preferred Stock under the Merger Agreement and agree to release all claims related to such party's ownership of equity in the Company. The foregoing description of the Termination Agreements does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Termination Agreements, which are filed as Exhibits 10.1 and 10.2 to this Current Report on Form 8-K and incorporated herein by reference.

Item 8.01.    Other Events.

Support Agreements

        In connection with the execution of the Merger Agreement, on September 12, 2019, Castle Creek also entered into separate Company Security Voting and Support Agreements with the following stockholders of the Company: (i) each of the Kirk Affiliates, and (ii) MSD (collectively, the "Support Agreements"). Pursuant to the Support Agreements, the participating investors agreed to vote their shares of Company securities in favor of the Merger and against any competing transaction, to support the economic treatment of such securities held by them as described in the Merger Agreement, and to forbear from taking certain actions detrimental to the Merger. The foregoing description of the Support Agreements does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Support Agreements, which are filed as Exhibits 99.1 and 99.2 to this Current Report on Form 8-K and incorporated herein by reference.

Forward-Looking Statements

        This current report, and any documents to which the Company refers you in this communication, contains not only historical information, but also forward-looking statements made pursuant to the safe-harbor provisions of the Private Securities Litigation Reform Act of 1995. Forward-looking statements often include the words "anticipates," "expect," "believe," "will," "intend," "plan," and words of similar substance. Such forward-looking statements include the expected completion and timing of the proposed transaction and other information relating to the proposed transaction. Such forward-looking statements are subject to risks and uncertainties that could cause actual results or performance to differ materially from those expressed in or contemplated by the forward-looking statements, including the following (i) the risk that the proposed transaction may not be completed in a timely manner or at all, which may adversely affect the Company's business and the price of the Company's common stock, (ii) the failure to satisfy any of the conditions to the consummation of the proposed transaction, including without limitation, obtaining stockholder approval, (iii) the occurrence of any event, change or other circumstance that could give rise to the termination of the Merger Agreement, (iv) the outcome of any legal proceedings that have been or may be instituted against the Company related to the Merger Agreement or the proposed transaction and (v) other risks described in the Company's filings with the SEC, such as its most recent Quarterly Report on Form 10-Q and Annual Report on Form 10-K. The Company assumes no obligation to update or revise publicly the information in this communication, whether as a result of new information, future events or otherwise, except as otherwise required by law. Readers are cautioned not to place undue reliance on these forward-looking statements that speak only as of the date hereof.

Additional Information about the Proposed Transaction and Where to Find It

        In connection with the proposed acquisition of the Company by Castle Creek, the Company will file with the SEC and mail or otherwise provide to its stockholders a proxy statement regarding the proposed transaction. Investors and security holders are urged to read the proxy statement and other documents relating to the acquisition when they become available, because they will contain important information about the proposed transaction. Investors and security holders may obtain a free copy of the proxy statement and other documents that the Company files with the SEC (when available) from the SEC's website at www.sec.gov and the Company's website at www.fibrocell.com. In addition, the proxy statement and other documents filed by the Company with the SEC (when available) may be obtained from the Company free of charge by directing a request to Fibrocell Science, Inc., Corporate Secretary, 405 Eagleview Blvd., Exton, Pennsylvania 19341, telephone: (484) 713-6000.


Participants in the Solicitation

        The Company and its directors and executive officers may be deemed, under SEC rules, to be participants in the solicitation of proxies from the Company's stockholders with respect to the proposed acquisition of the Company by Castle Creek. Security holders may obtain information regarding the names, affiliations and interests of such individuals in the Company's Annual Report on Form 10-K for the year ended December 31, 2018, which was filed with the SEC on March 27, 2019, and its definitive proxy statement for the 2019 annual meeting of stockholders, which was filed with the SEC on April 29, 2019. Additional information regarding the interests of such individuals in the proposed acquisition of the Company by Castle Creek will be included in the proxy statement relating to such acquisition when it is filed with the SEC. These documents may be obtained free of charge from the SEC's website at www.sec.gov and the Company's website at www.fibrocell.com.

Item 9.01.    Financial Statements and Exhibits.

(d)
Exhibits
Exhibit No.   Description
  2.1   Agreement and Plan of Merger, dated as of September 12, 2019, among Fibrocell Science, Inc., Castle Creek Pharmaceutical Holdings, Inc., and Castle Creek Merger Corp.

 

10.1

 

Consent and Termination Agreement, dated as of September 12, 2019, among Fibrocell Science, Inc. and the other signatories thereto.

 

10.2

 

Consent and Termination Agreement, dated as of September 12, 2019, among Fibrocell Science, Inc., Castle Creek Pharmaceutical Holdings, Inc., Castle Creek Merger Corp. and MSD Credit Opportunity Master Fund, L.P.

 

99.1

 

Company Securityholder Voting and Support Agreement, dated as of September 12, 2019, between Castle Creek Pharmaceutical Holdings, Inc. and MSD Credit Opportunity Master Fund,  L.P.

 

99.2

 

Company Securityholder Voting and Support Agreement, dated as of September 12, 2019, among Castle Creek Pharmaceutical Holdings, Inc. and the other signatories thereto.


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.

  Fibrocell Science, Inc.

 

By:

 

/s/ JOHN M. MASLOWSKI


John M. Maslowski
President and Chief Executive Officer

Date: September 13, 2019




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Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

by and among

CASTLE CREEK PHARMACEUTICAL HOLDINGS, INC.,

CASTLE CREEK MERGER CORP.

and

FIBROCELL SCIENCE, INC.

Dated as of September 12, 2019



TABLE OF CONTENTS

 
   
  Page  

ARTICLE I THE MERGER

    2  

1.1.

 

The Merger

   
2
 

1.2.

 

Closing and Effective Time of the Merger

    3  


ARTICLE II CONVERSION OF SECURITIES IN THE MERGER


 

 

3

 

2.1.

 

Conversion and Treatment of Securities

   
3
 

2.2.

 

Payment for Securities; Surrender of Certificates

    5  

2.3.

 

Dissenting Shares

    9  

2.4.

 

Treatment of Options

    10  

2.5.

 

Withholding Rights

    10  

2.6.

 

Certain Adjustments

    10  


ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY


 

 

11

 

3.1.

 

Corporate Organization

    11  

3.2.

 

Capitalization

    11  

3.3.

 

Authority; Execution and Delivery; Enforceability

    13  

3.4.

 

No Conflicts

    13  

3.5.

 

SEC Documents; Financial Statements; Undisclosed Liabilities

    14  

3.6.

 

Absence of Certain Changes or Events

    16  

3.7.

 

Information Supplied

    16  

3.8.

 

Legal Proceedings

    16  

3.9.

 

Compliance with Laws and Orders

    16  

3.10.

 

Permits

    17  

3.11.

 

Employee Benefit Plans

    17  

3.12.

 

Employee and Labor Matters

    20  

3.13.

 

Environmental Matters

    21  

3.14.

 

Real Property; Title to Assets

    22  

3.15.

 

Tax Matters

    22  

3.16.

 

Material Contracts

    24  

3.17.

 

Intellectual Property

    26  

3.18.

 

Regulatory Matters

    30  

3.19.

 

Broker's Fees

    32  

3.20.

 

Opinion of Financial Advisor

    32  

3.21.

 

Insurance

    32  

3.22.

 

Suppliers

    33  

3.23.

 

No Other Representations or Warranties

    33  


ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB


 

 

33

 

4.1.

 

Corporate Organization

   
33
 

4.2.

 

Authority, Execution and Delivery; Enforceability

    34  

4.3.

 

No Conflicts

    34  

4.4.

 

Litigation

    34  

4.5.

 

Information Supplied

    35  

4.6.

 

Ownership of Company Capital Stock

    35  

4.7.

 

Available Funds

    35  

4.8.

 

Ownership of Merger Sub

    35  

4.9.

 

No Other Representations and Warranties

    36  

i


 
   
  Page  


ARTICLE V COVENANTS


 

 

36

 

5.1.

 

Conduct of Business by the Company Pending the Closing

   
36
 

5.2.

 

Access to Information; Confidentiality

    39  

5.3.

 

No Solicitation

    40  

5.4.

 

SEC Filings; Other Actions

    43  

5.5.

 

Appropriate Action; Consents; Filings

    45  

5.6.

 

Certain Notices

    47  

5.7.

 

Public Announcements

    47  

5.8.

 

Employee Benefit Matters

    47  

5.9.

 

Indemnification

    49  

5.10.

 

Parent Agreements Concerning Merger Sub

    50  

5.11.

 

Takeover Statutes

    50  

5.12.

 

Section 16 Matters

    50  

5.13.

 

Stockholder Litigation

    50  

5.14.

 

Stock Exchange Delisting

    51  

5.15.

 

Regulatory Matters

    51  

5.16.

 

Financing

    51  

5.17.

 

Treatment of Additional Equity Interests

    53  


ARTICLE VI CONDITIONS TO CONSUMMATION OF THE MERGER


 

 

54

 

6.1.

 

Conditions to Obligations of Each Party Under This Agreement

   
54
 

6.2.

 

Conditions to Obligations of the Company Under This Agreement

    54  

6.3.

 

Conditions to Obligations of Parent and Merger Sub Under This Agreement

    54  


ARTICLE VII TERMINATION, AMENDMENT AND WAIVER


 

 

56

 

7.1.

 

Termination

   
56
 

7.2.

 

Effect of Termination

    57  

7.3.

 

Company Termination Fee

    57  

7.4.

 

Parent Termination Fee

    58  

7.5.

 

Limitation on Recourse

    59  

7.6.

 

Amendment

    59  

7.7.

 

Waiver

    59  


ARTICLE VIII GENERAL PROVISIONS


 

 

60

 

8.1.

 

Non-Survival of Representations and Warranties

   
60
 

8.2.

 

Fees and Expenses

    60  

8.3.

 

Notices

    60  

8.4.

 

Certain Definitions

    61  

8.5.

 

Terms Defined Elsewhere

    67  

8.6.

 

Headings

    69  

8.7.

 

Severability

    69  

8.8.

 

Entire Agreement

    70  

8.9.

 

Assignment

    70  

8.10.

 

No Third Party Beneficiaries

    70  

8.11.

 

Mutual Drafting; Interpretation

    70  

8.12.

 

Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury

    70  

8.13.

 

Counterparts

    71  

8.14.

 

Specific Performance

    71  

ii


 
   
  Page  

8.15.

 

Non-Recourse Against Financing Sources

    72  

Exhibit A-1

 

Form of Equity Commitment Letter (Valor)

Exhibit A-2

 

Form of Equity Commitment Letter (Marshman)

Exhibit B

 

Form of Certificate of Incorporation of Surviving Corporation

Exhibit C

 

Form of Bylaws of Surviving Corporation

iii



AGREEMENT AND PLAN OF MERGER

        This AGREEMENT AND PLAN OF MERGER, dated as of September 12, 2019 (this "Agreement"), is made by and among Castle Creek Pharmaceutical Holdings, Inc., a Delaware corporation ("Parent"), Castle Creek Merger Corp., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and Fibrocell Science, Inc., a Delaware corporation (the "Company"). All capitalized terms used in this Agreement shall have the meanings assigned to such terms in Section 8.4 or as otherwise defined elsewhere in this Agreement unless the context clearly indicates otherwise.


RECITALS

        WHEREAS, the Company, Parent and Merger Sub desire to effect the merger of Merger Sub with and into the Company, with the Company continuing as the surviving corporation (the "Merger") on the terms and subject to the conditions set forth in this Agreement and in accordance with the General Corporation Law of the State of Delaware, as amended (the "DGCL");

        WHEREAS, the Board of Directors of Merger Sub has, upon the terms and subject to the conditions set forth herein, approved and declared it advisable for Merger Sub to enter into this Agreement and consummate the transactions contemplated hereby, including the Merger;

        WHEREAS, the Board of Directors of Parent has, upon the terms and subject to the conditions set forth herein, approved this Agreement and the transactions contemplated hereby, including the Merger, and Parent, as the sole stockholder of Merger Sub, has duly executed and delivered to Merger Sub and the Company a written consent, to be effective by its terms immediately following execution of this Agreement, adopting this Agreement;

        WHEREAS, the Board of Directors of the Company (the "Company Board") has established a special committee thereof consisting only of independent and disinterested directors (the "Transaction Committee") to, among other things, consider, review, evaluate and negotiate this Agreement and the transactions contemplated hereby;

        WHEREAS, the Transaction Committee has, by a unanimous vote of all its members, (i) approved and declared advisable this Agreement and the transactions contemplated hereby, including the Merger, (ii) determined that the terms of this Agreement and the Merger are fair to, and in the best interests of, the Company and its stockholders, and (iii) recommended to the Company Board the approval of this Agreement and the transactions contemplated hereby, including the Merger;

        WHEREAS, upon the receipt of recommendation from the Transaction Committee, the Company Board has, upon the terms and subject to the conditions set forth herein, (i) approved and declared advisable this Agreement and the transactions contemplated hereby, including the Merger, (ii) determined that the terms of this Agreement and the Merger are fair to, and in the best interests of, the Company and its stockholders, (iii) directed that this Agreement be submitted to the stockholders of the Company at the Company Meeting, and (iv) recommended that the Company's stockholders adopt this Agreement in accordance with the DGCL and other applicable Law;

        WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition to the willingness of the Company to enter into this Agreement, Valor Equity Partners IV L.P. and Marshman Fund Trust II U/A/D 5/1/08 (the "Equity Financers" and each an "Equity Financer") are entering into equity commitment letters, copies of which are attached as Exhibit A-1 and Exhibit A-2 hereto (the "Equity Commitment Letters", and each an "Equity Commitment Letter"), pursuant to which each Equity Financer will provide equity or debt financing to Parent and Merger Sub on the terms and conditions set forth therein;

        WHEREAS, as a condition to and inducement to Parent's and Merger Sub's willingness to enter into this Agreement, simultaneously with the execution of this Agreement, each of MSD Credit Opportunity Master Fund, L.P., NRM VII Holdings I, LLC, Intrexon Corporation, Kapital Joe, LLC


and Mascara Kaboom, LLC are entering into support agreements with Parent and Merger Sub (the "Support Agreements"); and

        WHEREAS, Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger.


AGREEMENT

        NOW, THEREFORE, in consideration of the foregoing, and the covenants, premises, representations and warranties and agreements contained in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the parties to this Agreement agree as follows:


ARTICLE I
THE MERGER

        1.1.    The Merger.    

2


        1.2.    Closing and Effective Time of the Merger.    The closing of the Merger (the "Closing") will take place at 8:00 a.m., local time, on the third Business Day after satisfaction or waiver of all of the applicable conditions set forth in ARTICLE VI (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions at the Closing), at the offices of Latham & Watkins LLP, 330 North Wabash Avenue, Chicago, IL 60611, unless another time, date or place is agreed to in writing by the parties hereto. The date on which the Closing is to occur pursuant to this Section 1.2 is referred to as the "Closing Date". On the Closing Date, or on such other date as Parent and the Company may agree to, the Company shall cause a certificate of merger (the "Certificate of Merger"), to be executed and filed with the Secretary of State of the State of Delaware in accordance with the relevant provisions of the DGCL and shall make all other filings required under the DGCL. The Merger shall become effective at the time the Certificate of Merger shall have been duly filed with the Secretary of State of the State of Delaware, or such later date and time as is agreed upon by the parties and specified in the Certificate of Merger (such date and time hereinafter referred to as the "Effective Time").


ARTICLE II
CONVERSION OF SECURITIES IN THE MERGER

        2.1.    Conversion and Treatment of Securities.    

3


4


        2.2.    Payment for Securities; Surrender of Certificates.    

        (b)    Procedures for Surrender.    

5


6


7


        (c)    Transfer Books; No Further Ownership Rights in Shares.    At the Effective Time, the stock transfer books of the Company with respect to the Company Shares shall be closed and thereafter there shall be no further registration of transfers of Company Shares on the records of the Company. From and after the Effective Time, the holders of Certificates and Book-Entry Company Shares that represented ownership of Company Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Company Shares except as otherwise provided for herein or by applicable Law. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.

        (d)    Termination of Fund; Abandoned Property; No Liability.    Any portion of the funds in the Exchange Fund (including any interest received with respect thereto) made available to the Paying Agent that remains unclaimed by the holders of Certificates, Book-Entry Company Shares, shares of Preferred Stock or Company Warrants on the six month anniversary of the Effective Time will be returned to the Surviving Corporation or an affiliate thereof designated by the Surviving Corporation, upon demand, and any such holder who has not tendered its Certificates or Book-Entry Company Shares for the Merger Consideration, its Notice of Conversion in exchange for the Conversion Amount, or its Repurchase Notice or Notice of Exercise, in each case in accordance with Section 2.2(b), prior to such time shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws) for delivery of the Merger Consideration, Conversion Amount, Warrant Consideration or Black-Scholes Value, without interest and subject to any withholding of Taxes required by applicable Law or the terms of such Equity Interest, in respect of such holder's surrender of their Certificates or Book-Entry Company Shares or delivery of their Notice of Exercise or Notice of Conversion and compliance with the procedures in Section 2.2(b). Any Merger Consideration remaining

8


unclaimed by the holders of Certificates or Book-Entry Company Shares immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity will, to the extent permitted by applicable Law, become the property of the Surviving Corporation or an affiliate thereof designated by the Surviving Corporation, free and clear of any claim or interest of any Person previously entitled thereto. Holders of shares of Preferred Stock may deliver a Notice of Conversion in exchange for the Conversion Amount at any time following the Effective Time. Holders of Common Warrants or Black-Scholes Warrants may deliver a Repurchase Notice to the Surviving Corporation at any time within 30 days following the Warrant Repurchase Date, and any Repurchase Notice received after such date shall be invalid and the holder of the Company Warrant in respect of such Repurchase Notice shall not be entitled to the Black-Scholes Value. Holders of the Common Warrants that do not otherwise deliver a Repurchase Notice shall be entitled to the Warrant Consideration upon delivery of a Notice of Exercise and compliance with the procedures in Section 2.2(b)(iv) until the expiry of such Common Warrants in accordance with their terms. Notwithstanding the foregoing, none of Parent, Merger Sub, the Surviving Corporation, the Paying Agent or their respective affiliates will be liable to any holder of a Certificate or Book-Entry Company Shares for Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 2.2(a), to pay for Company Shares for which appraisal rights have been perfected shall be returned to the Surviving Corporation, upon demand.

        (e)    Lost, Stolen or Destroyed Certificates.    In the event that any Certificates shall have been lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificates, upon the making of an affidavit of that fact by the person claiming such Certificates to be lost, stolen or destroyed, the Merger Consideration, payable in respect thereof pursuant to Section 2.1(a). Parent may, in its reasonable discretion and as a condition precedent to the payment of such Merger Consideration, require the owners of such lost, stolen or destroyed Certificates to deliver a bond in a reasonable sum as it may reasonably direct as indemnity against any claim that may be made against Parent, Merger Sub, the Surviving Corporation or the Paying Agent with respect to the Certificates alleged to have been lost, stolen or destroyed.

        2.3.    Dissenting Shares.    Notwithstanding anything in this Agreement to the contrary (but subject to the provisions of this Section 2.3), Company Shares and shares of Preferred Stock outstanding immediately prior to the Effective Time and held by a holder who did not vote in favor of the adoption of this Agreement with respect to such shares, and who is entitled to demand and has properly demanded appraisal for such Company Shares or shares of Preferred Stock in accordance with, and who complies in all respects with, Section 262 of the DGCL (such Company Shares, the "Dissenting Shares") shall not be converted into the right to receive the Merger Consideration. At the Effective Time, all Dissenting Shares shall no longer be outstanding and shall automatically be cancelled and cease to exist, and the holders of Dissenting Shares shall cease to have any rights with respect thereto, except the rights granted to them under Section 262 of the DGCL. If any such holder fails to perfect or otherwise waives, withdraws or loses his right to appraisal under Section 262 of the DGCL or other applicable Law, then the right of such holder to be paid the fair value of such Dissenting Shares shall cease and such Dissenting Shares shall thereupon be deemed to have been converted, as of the Effective Time, into and shall be exchangeable solely for the right to receive the Merger Consideration, without interest and subject to any withholding of Taxes required by applicable Law in accordance with this ARTICLE II and shall not thereafter be deemed to be Dissenting Shares. The Company shall give Parent prompt notice of any demands received by the Company for appraisal of Company Shares and any other instruments served pursuant to the DGCL and received by the Company relating to rights to be paid the fair value of Dissenting Shares, and Parent shall have the right to participate in and control all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, except with the prior written consent of Parent, make any payment with respect to,

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or settle or compromise, any such demands, or approve any withdrawal of any such demands, or agree to do any of the foregoing, except to the extent required by applicable Law.

        2.4.    Treatment of Options.    

        (a)    Treatment of Options.    At the Effective Time, (i) each option to purchase Company Shares (each a "Company Option") granted under the Fibrocell Science, Inc. 2009 Equity Incentive Plan (the "2009 Plan"), whether vested or unvested, and (ii) each Company Option granted under the Fibrocell Science, Inc. 2019 Equity Incentive Plan (the "2019 Plan"), whether vested or unvested, in each case, that is outstanding and unexercised immediately prior to the Effective Time (each, an "Eligible Company Option") shall automatically and without any required action on the part of the holder thereof, be cancelled and shall only entitle the holder of such Eligible Company Option to receive an amount equal to (i) the Merger Consideration minus the exercise price per Company Share subject to such Eligible Company Option, multiplied by (ii) the number of Company Shares subject to such Eligible Company Option, payable in accordance with Section 2.1, less applicable Taxes required to be withheld pursuant to Section 2.5; provided that, if the exercise price per Company Share subject to an Eligible Company Option is equal to or greater than the Merger Consideration, such Eligible Company Option shall be cancelled for no consideration.

        (b)    Termination of Company Equity Plans.    As of the Effective Time, the 2009 Plan and the 2019 Plan (each, a "Company Equity Plan" and, collectively, the "Company Equity Plans") shall be terminated and no further Company Shares, Company Options, Equity Interests or other rights with respect to Company Shares shall be granted thereunder.

        (c)    Board Actions.    Prior to the Effective Time, the Company Board (upon the unanimous recommendation of the Transaction Committee) shall adopt appropriate resolutions and take such other actions as are reasonably necessary and appropriate (including using reasonable best efforts to obtain any required consents) to effect the transactions described in this Section 2.4.

        2.5.    Withholding Rights.    The Company, Parent, Merger Sub, the Surviving Corporation and the Paying Agent, as the case may be, shall be entitled to deduct and withhold from any amounts otherwise payable pursuant to this Agreement (except as otherwise set forth in the Certificate of Designations or a Company Warrant, as applicable), such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code, the Treasury Regulations or any other provision of applicable Law. To the extent that amounts are so deducted or withheld, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made.

        2.6.    Certain Adjustments.    In the event that, between the date of this Agreement and the Effective Time, any change in the outstanding Company Shares, Preferred Stock or Company Warrants shall occur as a result of any stock split, reverse stock split, stock dividend (including any dividend or distribution of Equity Interests convertible into or exchangeable for Company Shares), recapitalization, reclassification, combination, exchange of shares or other similar event, the Merger Consideration, Conversion Amount or Warrant Consideration, as applicable, shall be equitably adjusted to reflect such event and to provide to holders of Company Shares, shares of Preferred Stock and Company Warrants the same economic effect as contemplated by this Agreement prior to such event; provided that nothing in this Section 2.6 shall be deemed to permit or authorize the Company to take any such action or effect any such change that it is not otherwise authorized or permitted to take pursuant to this Agreement (including Section 5.1).

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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

        Except (a) as set forth in the disclosure schedule delivered by the Company to Parent and Merger Sub (the "Company Disclosure Schedule") prior to the execution of this Agreement (with specific reference to the representations and warranties in this ARTICLE III to which the information in such schedule relates; provided that, disclosure in the Company Disclosure Schedule as to a specific representation or warranty shall qualify any other sections of this Agreement to the extent (notwithstanding the absence of a specific cross reference) it is reasonably apparent on its face that such disclosure relates to such other sections), and (b) as disclosed in the Company SEC Documents filed since January 1, 2019 and publicly available at least two (2) Business Days prior to the execution and delivery of this Agreement (other than any disclosures contained in the "Forward Looking Statements" or "Risk Factors" sections of such Company SEC Documents, and any other disclosures contained in such Company SEC Documents that are predictive, cautionary or forward-looking in nature); provided that, the foregoing clause (b) shall not be applicable to Section 3.2 or Section 3.4, the Company hereby represents and warrants to Parent and Merger Sub as follows:

        3.1.    Corporate Organization.    Each of the Company and its Subsidiaries is a corporation or other entity duly organized, validly existing and, to the extent applicable, in good standing under the Laws of the jurisdiction of its organization and has the requisite corporate or other entity power and authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted. Each of the Company and its Subsidiaries is duly licensed or qualified to do business in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed or qualified, has not had and would not reasonably be expected to have a Company Material Adverse Effect. The copies of the Company Charter, Certificate of Designations and the Company Bylaws, as most recently filed with the Company SEC Documents, are true, complete and correct copies of such documents as in effect as of the date of this Agreement. The Company is not in violation of any of the provisions of the Company Charter, Certificate of Designations or the Company Bylaws.

        3.2.    Capitalization.    

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        3.3.    Authority; Execution and Delivery; Enforceability.    

        3.4.    No Conflicts.    

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        3.5.    SEC Documents; Financial Statements; Undisclosed Liabilities.    

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        3.6.    Absence of Certain Changes or Events.    Since January 1, 2019 through the date of this Agreement, (a) except with respect to the Company, entry into this Agreement, the Merger or the Transactions or as expressly contemplated, the Company and its Subsidiaries have conducted their businesses in all material respects only in the ordinary course and in a manner consistent with past practice and (b) there has not been any change, event, development, condition or occurrence that has had or would reasonably be expected to have a Company Material Adverse Effect. Since January 1, 2019 through the date of this Agreement, neither the Company nor any of its Subsidiaries has taken any action that would have constituted a breach of, or required Parent's consent pursuant to, Sections 5.1(c), (d), (g) -(k), (m)-(p), (t) and (u) had the covenants therein applied since January 1, 2019.

        3.7.    Information Supplied.    None of the information supplied or to be supplied by the Company for inclusion or incorporation by reference in the Proxy Statement will, at the date that the Proxy Statement or any amendment or supplement thereto is first mailed to holders of Company Shares and at the time of the Company Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading (except that no representation or warranty is made by the Company to such portions of the Proxy Statement that relate to Parent and its Subsidiaries, including Merger Sub, or to statements made therein based on information supplied by or on behalf of Parent for inclusion or incorporation by reference therein). The Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act.

        3.8.    Legal Proceedings.    Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (a) there are no Proceedings pending, or to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries or any of their respective assets or properties or any of the officers or directors of the Company (in their capacity as such) and (b) neither the Company nor any of its Subsidiaries nor any of their respective assets or properties is or are subject to any Order.

        3.9.    Compliance with Laws and Orders.    The Company and its Subsidiaries are, and since January 1, 2017 have been, in compliance in all material respects with all Laws, Orders and NASDAQ rules and regulations applicable to the Company or any of its Subsidiaries or any assets owned or used by any of them. Neither the Company nor any of its Subsidiaries has received any written communication since January 1, 2017 from a Governmental Entity or NASDAQ that alleges that the Company or any of its Subsidiaries is in material violation of any such Law, Order or NASDAQ rule. During the past five (5) years, neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any director, officer, agent, employee or other Person acting on behalf of the Company or any of its Subsidiaries, has, in the course of its actions for, or on behalf of, any of them, (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful

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expenses relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated any provision of any applicable Anti-corruption Laws; or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee. During the past five (5) years, neither the Company nor any of its Subsidiaries has received any written communication from a Governmental Entity (x) related to any investigation or inquiry with respect to a potential violation by the Company or any of its Subsidiaries or any Representative thereof of any Anti-corruption Laws, or (y) that alleges that the Company or any of its Subsidiaries or any Representative thereof is in violation of any Anti-corruption Laws. During the past five (5) years, neither the Company nor any of its Subsidiaries has had a customer or supplier or other business relationship with, is a party to any Contract with, or has engaged in any transaction with, any Person (i) that is located, organized or domiciled in or that is a citizen of Cuba, Iran, North Korea, Sudan, Syria or the Crimea Region of Ukraine (including any Governmental Entity within such country or territory) or (ii) that is the target of any international economic or trade sanction administered or enforced by the Office of Foreign Assets Control of the United States Department of the Treasury ("OFAC"), the United Nations Security Council, the European Union, Her Majesty's Treasury, the United Kingdom Export Control Organization or other relevant sanctions authority (including but not limited to being listed on the Specially Designated Nationals and Blocked Persons List administered by OFAC).

        3.10.    Permits.    The Company and each of its Subsidiaries have all governmental licenses, permits, certificates, certifications, approvals, clearances, consents, franchises, registrations, billing, exemptions and authorizations ("Permits") necessary for the conduct of their business and the use of their properties and assets, as presently conducted and used, and each of the Permits is valid, subsisting and in full force and effect, except where the failure to have or maintain such Permit has not had and would not reasonably be expected to, individually or in the aggregate, (a) result in a material liability to the Company and its Subsidiaries, taken as a whole, or materially impair the business or operation of the Company and its Subsidiaries or (b) have a material adverse effect on the ability of the Company to timely perform its obligations hereunder or under the other Transaction documents to which it is a party or consummate the Transactions. The operation of the Company and its Subsidiaries as currently conducted is not, and has not been since January 1, 2017, in violation of, nor is the Company or its Subsidiaries in default or violation under, any Permit, and, to the Knowledge of the Company, no event has occurred which, with notice or the lapse of time or both, would constitute a default or violation of any term, condition or provision of any Permit, except where such default or violation of such Permit has not had and would not reasonably be expected to, individually or in the aggregate, (a) result in material liability to the Company and its Subsidiaries, taken as a whole, or materially impair the business or operation of the Company and its Subsidiaries or (b) have a material adverse effect on the ability of the Company to timely perform its obligations hereunder or under the other Transaction documents to which it is a party or consummate the Transactions. There are no actions pending or, to the Knowledge of the Company, threatened, that seek the revocation, cancellation or modification of any Permit, except where such revocation, cancellation or modification has not had and would not reasonably be expected to, individually or in the aggregate, (a) result in a material liability to the Company and its Subsidiaries, taken as a whole, or materially impair the business or operation of the Company and its Subsidiaries or (b) have a material adverse effect on the ability of the Company to timely perform its obligations hereunder or under the other Transaction documents to which it is a party or consummate the Transactions.

        3.11.    Employee Benefit Plans.    

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        3.12.    Employee and Labor Matters.    

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        3.13.    Environmental Matters.    

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        3.14.    Real Property; Title to Assets.    

        3.15.    Tax Matters.    

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        3.16.    Material Contracts.    

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        3.17.    Intellectual Property.    

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        3.18.    Regulatory Matters.    

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        3.19.    Broker's Fees.    Except for the Company's obligations to Canaccord Genuity LLC, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors on behalf of the Company or such Subsidiaries has employed any financial advisor, broker or finder or incurred any liability for any financial advisory, broker's fees, commissions or finder's fees in connection with any of the Transactions.

        3.20.    Opinion of Financial Advisor.    Canaccord Genuity LLC, the Company's financial advisor, has delivered to the Transaction Committee and the Company Board its opinion in writing or orally, in which case, such opinion will be subsequently confirmed in writing, to the effect that, as of the date thereof and based upon and subject to the factors, procedures, qualifications, limitations and assumptions set forth therein, the consideration to be received by the holders of Company Shares (other than Parent, Merger Sub, the Company and their respective direct or indirect wholly-owned subsidiaries or holders of Dissenting Shares) pursuant to this Agreement is fair, from a financial point of view, to such holders.

        3.21.    Insurance.    Except as would not reasonably be expected to have a Company Material Adverse Effect, (a) the Company and its Subsidiaries maintain insurance of a scope and coverage as is sufficient to comply with applicable Law as is customary in all material respects for businesses in the Company's and its Subsidiaries' businesses, (b) all insurance policies of the Company and its Subsidiaries are in full force and effect, and all premiums due and payable thereon have been paid and (c) neither the Company nor any of its Subsidiaries is in breach of, or default under, any such insurance policy or has taken any action or failed to take any action which, with notice or lapse of time or both, would constitute such a breach or default or permit termination or modification of any of the insurance policies. Since January 1, 2019, neither the Company nor any of its Subsidiaries has received any written notice of cancellation. Since January 1, 2017, neither the Company nor any of its

32


Subsidiaries has received any written notice of invalidation or termination, or as of the date of this Agreement, denial of coverage, rejection of a material claim or material adjustment in the amount of premiums payable under any material insurance policy maintained by the Company or any of its Subsidiaries.

        3.22.    Suppliers.    Section 3.22 of the Company Disclosure Schedule sets forth a list showing the ten (10) largest suppliers of the Company and its Subsidiaries, taken as a whole, determined by gross expenditures, during the twelve (12) month period ending on August 27, 2019 (each, a "Significant Supplier"). As used in this Section 3.22, the term "supplier" shall mean a supplier of goods or materials to, or a provider of services necessary for the conduct of the business of, the Company and its Subsidiaries. Since January 1, 2019, no Significant Supplier has indicated in writing an intention to (i) terminate its relationship with, or otherwise stop or materially reduce its supply of the Company or any of its Subsidiaries, as applicable, or (ii) materially change the terms and conditions on which it is prepared to supply the Company or such Subsidiary of the Company, as applicable, in a manner adverse to the Company or its Subsidiaries as applicable.

        3.23.    No Other Representations or Warranties.    Except for the representations and warranties expressly set forth in this ARTICLE III or the Company Disclosure Schedule, none of the Company, any of its affiliates or any other Person on behalf of the Company makes any express or implied representation or warranty (and there is and has been no reliance by Parent, Merger Sub or any of their respective affiliates or Representatives on any such representation or warranty) with respect to the Company, its Subsidiaries or their respective businesses or with respect to any other information provided, or made available, to Parent, Merger Sub or their respective Representatives or affiliates in connection with the transactions contemplated hereby, including the accuracy or completeness thereof. Without limiting the foregoing, neither the Company nor any other Person will have or be subject to any liability or other obligation to Parent, Merger Sub or their Representatives or affiliates or any other Person resulting from Parent's, Merger Sub's or their Representatives' or affiliates' use of any information, documents, projections, forecasts or other material made available to Parent, Merger Sub or their Representatives or affiliates, including any information made available in the electronic data room maintained by the Company for purposes of the transactions contemplated by this Agreement, teaser, marketing material, confidential information memorandum, management presentations, functional "break-out" discussions, responses to questions submitted on behalf of Parent, Merger Sub or their respective Representatives or in any other form in connection with the transactions contemplated by this Agreement, unless and to the extent any such information is expressly included in a representation or warranty contained in this ARTICLE III or the Company Disclosure Schedule.


ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

        Parent and Merger Sub hereby represent and warrant to the Company as follows:

        4.1.    Corporate Organization.    Each of Parent and Merger Sub is a corporation or other entity duly organized, validly existing and, to the extent applicable, in good standing under the Laws of the jurisdiction of its organization and has the requisite corporate or other entity power and authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted. Each of Parent and Merger Sub is duly licensed or qualified to do business in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed or qualified, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.

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        4.2.    Authority, Execution and Delivery; Enforceability.    Each of Parent and Merger Sub has all necessary power and authority to execute and deliver this Agreement, to perform and comply with each of its obligations under this Agreement and to consummate the Transactions applicable to such party. The execution and delivery by each of Parent and Merger Sub of this Agreement, the performance and compliance by Parent and Merger Sub with each of its obligations herein and the consummation by Parent and Merger Sub of the Transactions applicable to it have been duly authorized by all necessary corporate action on the part of Parent and Merger Sub, and no other corporate proceedings on the part of Parent or Merger Sub and no stockholder votes are necessary to authorize this Agreement or the consummation by Parent and Merger Sub of the Transactions to which it is a party. Each of Parent and Merger Sub has duly executed and delivered this Agreement and, assuming the due authorization, execution and delivery by the Company of this Agreement, this Agreement constitutes Parent's and Merger Sub's legal, valid and binding obligation, enforceable against each of Parent and Merger Sub in accordance with its terms, except as may be limited by Laws affecting the enforcement of creditors' rights generally or by general equitable principles (whether considered in a Proceeding at law or in equity).

        4.3.  No Conflicts.

        4.4.    Litigation.    There is no Proceeding pending, or, to the actual knowledge of Parent, threatened that has had or would reasonably be expected to have a Parent Material Adverse Effect, and neither Parent nor Merger Sub is subject to any outstanding Order that has had or would reasonably be expected to have a Parent Material Adverse Effect.

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        4.5.    Information Supplied.    None of the information supplied or to be supplied by Parent or Merger Sub for inclusion or incorporation by reference in the Proxy Statement will, at the date that the Proxy Statement or any amendment or supplement thereto is first mailed to holders of Company Shares and at the time of the Company Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading (except that no representation or warranty is made by Parent or Merger Sub to such portions of the Proxy Statement that relate expressly to the Company or any of its Subsidiaries or to statements made therein based on information supplied by or on behalf of Company for inclusion or incorporation by reference therein). The Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act.

        4.6.    Ownership of Company Capital Stock.    None of Parent, Merger Sub or any Subsidiary of Parent beneficially owns any Company Shares as of the date hereof. Neither Parent nor Merger Sub is, nor at any time during the last three years has it been, an "interested stockholder" of the Company as defined in Section 203 of the DGCL (other than as contemplated by this Agreement).

        4.7.  Available Funds.

        4.8.    Ownership of Merger Sub.    All of the issued and outstanding Equity Interests of Merger Sub are, and at the Effective Time will be, owned directly or indirectly by Parent. Merger Sub was formed

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solely for purposes of the Merger and, except for matters incident to formation and execution and delivery of this Agreement and the performance of the transactions contemplated hereby, has not prior to the date hereof engaged in any business or other activities.

        4.9.    No Other Representations and Warranties.    Except for the representations and warranties expressly set forth in this ARTICLE IV, none of Parent, Merger Sub, any of their respective affiliates or any other Person on behalf of Parent or Merger Sub makes any express or implied representation or warranty (and there is and has been no reliance by the Company or any of its affiliates or Representatives on any such representation or warranty) with respect to Parent, Merger Sub, any other Subsidiary of Parent or their respective businesses or with respect to any other information provided, or made available, to the Company or its Representatives or affiliates in connection with the transactions contemplated hereby, including the accuracy or completeness thereof. Without limiting the foregoing, none of Parent, Merger Sub or any other Person will have or be subject to any liability or other obligation to the Company or its Representatives or affiliates or any other Person resulting from the Company's or its Representatives' or affiliates' use of any information, documents, projections, forecasts or other material made available to the Company or its Representatives or affiliates, including any information made available in management presentations, functional "break-out" discussions, responses to questions submitted on behalf of the Company or its Representatives or in any other form in connection with the transactions contemplated by this Agreement, unless and to the extent any such information is expressly included in a representation or warranty contained in this ARTICLE IV.


ARTICLE V
COVENANTS

        5.1.    Conduct of Business by the Company Pending the Closing.    Between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with ARTICLE VII, except as set forth in Section 5.1 of the Company Disclosure Schedule or as otherwise expressly required or permitted by any other provision of this Agreement, or with the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed), the Company will, and will cause each of its Subsidiaries to, (i) use its reasonable best efforts to conduct its operations in all material respects in the ordinary course of business, (ii) use its reasonable best efforts to keep available the services of the current officers, key employees and consultants of the Company and each of its Subsidiaries and to preserve the goodwill and current relationships of the Company and each of its Subsidiaries with customers, suppliers and other Persons with which the Company or any of its Subsidiaries has significant business relations, (iii) use its reasonable best efforts to preserve in all material respects its present properties and its tangible and intangible assets, (iv) comply in all material respects with all applicable Laws and Material Contracts, (v) pay all applicable Taxes as such Taxes become due and payable, unless such Taxes are contested in good faith by appropriate proceedings and appropriate reserves have been established in accordance with GAAP on the financial statements of the Company and its Subsidiaries; and (vi) maintain all existing licenses and permits applicable to its operations and businesses. Without limiting the foregoing, and as an extension thereof, except as set forth in Section 5.1 of the Company Disclosure Schedule, as otherwise expressly required or permitted by any other provision of this Agreement or as required by law, the Company shall not, and shall not permit any of its Subsidiaries to, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with ARTICLE VII, directly or indirectly, take any of the following actions without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed):

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        5.2.  Access to Information; Confidentiality.

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        5.3.  No Solicitation.

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        5.4.    SEC Filings; Other Actions.    

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        5.5.    Appropriate Action; Consents; Filings.    

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        5.6.    Certain Notices.    From and after the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with ARTICLE VII, unless prohibited by applicable Law, each party shall give prompt notice to the other parties if any of the following occur: (a) receipt of any notice or other communication in writing from any Person alleging that the consent or approval of such Person is or may be required in connection with the Transactions; (b) receipt of any notice or other communication from any Governmental Entity or NASDAQ (or any other securities market) in connection with the Transactions; or (c) such party becoming aware of the occurrence of an event that could prevent or delay beyond the Outside Date the consummation of the Transactions or that would reasonably be expected to result in any of the conditions to the Merger set forth in ARTICLE VI being incapable of satisfaction. Any such notice delivered pursuant to this Section 5.6 shall not affect any representation, warranty, covenant or agreement contained in this Agreement and any failure to make such notice (in and of itself) shall not be taken into account in determining whether the conditions set forth in ARTICLE VI have been satisfied or give rise to any right of termination set forth in ARTICLE VII.

        5.7.    Public Announcements.    So long as this Agreement is in effect, Parent and Merger Sub, on the one hand, and the Company, on the other, shall not issue any press release or make any public statement with respect to the Merger or this Agreement without the prior written consent of the other party (which consent shall not be unreasonably withheld, conditioned or delayed), except (a) as may be required by applicable Law or the rules or regulations of any applicable United States securities exchange or regulatory or governmental body to which the relevant party is subject, in which case the party required to make the release or announcement shall use its reasonable best efforts to allow each other party reasonable time to comment on such release or announcement in advance of such issuance, or (b) with respect to any press release or other public statement by the Company permitted by Section 5.3. The Company shall file a current report on Form 8-K with the SEC attaching its press release and copy of this Agreement as exhibits.

        5.8.    Employee Benefit Matters.    

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        5.9.    Indemnification.    

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        5.10.    Parent Agreements Concerning Merger Sub.    Prior to the termination of this Agreement in accordance with its terms, Parent shall take all actions necessary or advisable to cause Merger Sub to perform its covenants, agreements and obligations under this Agreement in accordance with the terms hereof.

        5.11.    Takeover Statutes.    If any state takeover Law or state Law that purports to limit or restrict business combinations or the ability to acquire or vote Company Shares (including any "control share acquisition," "fair price," "business combination" or other similar takeover Law) becomes or is deemed to be applicable to the Company, Parent or Merger Sub, the Merger or any other transaction contemplated by this Agreement, then the Company and the Company Board shall take all action reasonably available to it to render such Law inapplicable to the foregoing.

        5.12.    Section 16 Matters.    Prior to the Effective Time, the Company shall take all such steps as may be required to cause the transactions contemplated by this Agreement and any other dispositions of Company Shares (including derivative securities with respect to Company Shares) resulting from the Transactions by each individual who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to the Company, to be exempt under Rule 16b-3 promulgated under the Exchange Act.

        5.13.    Stockholder Litigation.    The Company shall give Parent the opportunity to participate in the defense or settlement of any litigation brought by stockholders of the Company or any other Person against the Company and/or its directors and officers relating to the transactions contemplated by this Agreement, including the Merger ("Transaction Litigation"), and the Company shall not compromise, settle, come to an arrangement regarding or agree to compromise, settle or come to an arrangement regarding any Transaction Litigation without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed). The Company shall promptly notify Parent of any Transaction Litigation and shall keep Parent reasonably and promptly informed with respect to the status thereof.

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        5.14.    Stock Exchange Delisting.    The Surviving Corporation shall cause the Company's securities to be de-listed from NASDAQ and de-registered under the Exchange Act as promptly as practicable following the Effective Time, and prior to the Effective Time the Company shall reasonably cooperate with Parent with respect thereto.

        5.15.    Regulatory Matters.    To the extent consistent with applicable Law, the Company and Parent shall cooperate in good faith to develop the strategy and process by which the parties will communicate with all Governmental Entities regarding any plans or strategies in pursuit of future Regulatory Permits, changes to existing Regulatory Permits, and the conduct or design of clinical trials in furtherance thereof (collectively, the "Regulatory Matters"). To the extent permitted by applicable Law, the Company shall (a) give Parent prompt notice upon obtaining knowledge of any written request, inquiry or communication from or by the FDA in connection with any such Regulatory Matters (b) keep Parent reasonably informed in a timely manner as to the status of any such request, inquiry or communication, and (c) permit Parent to review any material communication delivered to, and consult with Parent in advance of any meeting or conference with, the FDA relating to such Regulatory Matters. The Company will consult and cooperate with Parent, and consider in good faith the reasonable views of Parent, in connection with, and provide to Parent in advance, any responses, materials, analyses, presentations, memoranda, or proposals to be made or submitted to the FDA in connection with the Regulatory Matters.

        5.16.    Financing.    

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        5.17.    Treatment of Additional Equity Interests.    The Company shall use reasonable best efforts to (i) take any actions that may be required by the Convertible Notes, the Certificate of Designations and the Company Warrants, as applicable, to be performed by the Company prior to the Effective Time, including, without limitation, as a result of the execution and delivery of this Agreement and the pending or actual consummation of the Merger and the other Transactions, including, as may be applicable, the giving of any notices, announcements, certificates, opinions, documents or instruments that the Company may be required to give prior to the Effective Time and (ii) provide to Parent reasonable prior notice of any such action, including, without limitation, a draft of any writing to be provided in connection with such required actions, and the opportunity to comment on such writings, and the Company shall consider any such comments in good faith. In addition, the Company shall promptly cooperate with any and all reasonable requests made by Parent to the Company in connection with such requirements of the Convertible Notes, the Certificate of Designations and the Company Warrants, as applicable, or as Parent may be required, or may deem desirable, to undertake in

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connection with the Convertible Notes, the Certificate of Designations and the Company Warrants in anticipation of or in preparation for the Closing Date, or in connection with this Agreement, the Support Agreements or the Transactions, including any tender offer the Parent may pursue or the Parent may direct the Company to pursue for any such Equity Interests, it being understood that any such tender offer shall be conditioned on the consummation of the Merger at the Effective Time, and the Company shall not be liable for any payments thereunder until after the consummation of the Merger after the Effective Time.


ARTICLE VI
CONDITIONS TO CONSUMMATION OF THE MERGER

        6.1.    Conditions to Obligations of Each Party Under This Agreement.    The respective obligations of each party to consummate the Merger shall be subject to the satisfaction (or waiver, if permissible under Law) at or prior to the Effective Time of each of the following conditions:

        6.2.    Conditions to Obligations of the Company Under This Agreement.    The obligation of the Company to effect the Merger is further subject to the fulfillment (or waiver by the Company) at or prior to the Effective Time of the following conditions:

        6.3.    Conditions to Obligations of Parent and Merger Sub Under This Agreement.    The obligations of Parent and Merger Sub to effect the Merger are further subject to the fulfillment (or waiver by Parent and Merger Sub) at or prior to the Effective Time of the following conditions:

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ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER

        7.1.    Termination.    This Agreement may be terminated, and the Merger and the other transactions contemplated hereby may be abandoned, by action taken or authorized by the board of directors of the terminating party or parties (in the case of the Company Board, only to the extent the Company Board is acting upon the recommendation of the Transaction Committee), as applicable:

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        7.2.    Effect of Termination.    In the event of termination of this Agreement by either the Company or Parent as provided in Section 7.1, written notice thereof shall be given to the other party or parties, specifying the provisions hereof pursuant to which such termination is made and the basis therefor described in reasonable detail, this Agreement shall forthwith become void have no further force and effect (other than Section 5.2(b), Section 7.2, Section 7.3, and ARTICLE VIII, each of which shall survive termination of this Agreement); provided, that, nothing herein shall relieve any party from liabilities or damages incurred or suffered as a result of a willful and material breach of any representations, warranties, covenants or other agreements set forth in this Agreement prior to such termination.

        7.3.    Company Termination Fee.    

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        7.4.    Parent Termination Fee.    

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        7.5.    Limitation on Recourse.    No Parent Related Party (excluding, for avoidance of doubt, Parent and Merger Sub) shall have any liability for any liabilities of Parent or Merger Sub under this Agreement or for any Proceeding based on, in respect of, or by reason of, the Transactions (including the breach, termination or failure to consummate such Transactions), and except for any Proceeding arising under or related to any Support Agreement, no former, current or future direct or indirect equityholder, general or limited partner, controlling Person, shareholder, member, manager, director, officer, incorporator, employee, agent, affiliate, portfolio company, assignee, advisor, attorney, consultant, Representative, principal or financing source of the Company or any affiliate of the Company shall have any rights or claims against a Parent Related Party under this Agreement, or for any Proceeding based on, in respect of, or by reason of, the Transactions, whether at law or equity, in contract, in tort or strict liability, by the enforcement of any assessment, by any legal or equitable Proceeding, by virtue of any statute, regulation or applicable Laws or otherwise and whether by or through attempted piercing of the corporate, limited liability company or partnership veil, by or through a claim by or on behalf of a party or another Person or otherwise.

        7.6.    Amendment.    This Agreement may be amended by the Company, Parent and Merger Sub by action taken by or on behalf of their respective boards of directors or other duly appointed governing authority at any time prior to the Effective Time; provided, however, that, after receipt of the Company Stockholder Approval, no amendment may be made which, by Law or in accordance with the rules of any relevant stock exchange, requires further approval by the Company's stockholders without such approval. This Agreement may not be amended except by an instrument in writing signed by the parties hereto.

        7.7.    Waiver.    At any time prior to the Effective Time, Parent and Merger Sub, on the one hand, and the Company, on the other hand, may (a) extend the time for the performance of any of the obligations or other acts of the other, (b) waive any breach of the representations and warranties of the other contained herein or in any document delivered pursuant hereto or (c) waive compliance by the other with any of the agreements or covenants contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party or parties to be bound thereby, but such extension or waiver or failure to insist on strict compliance with an obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.

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ARTICLE VIII
GENERAL PROVISIONS

        8.1.    Non-Survival of Representations and Warranties.    None of the representations, warranties or covenants in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Effective Time except that this Section 8.1 shall not limit any covenant or agreement of the parties which by its terms contemplates performance after the Effective Time, which shall survive to the extent expressly provided for herein.

        8.2.    Fees and Expenses.    Subject to Section 7.3 and Section 5.16(a), all Expenses incurred by the parties hereto shall be borne solely and entirely by the party which has incurred the same.

        8.3.    Notices.    Any notices or other communications to any party required or permitted under, or otherwise given in connection with, this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered or sent if delivered in Person or sent by facsimile transmission (provided confirmation of facsimile transmission is obtained), (b) on the fifth Business Day after dispatch by registered or certified mail or (c) on the next Business Day if transmitted by nationally recognized overnight courier, in each case, as follows (or to such other Persons or addressees as may be designated in writing by the party to receive such notice pursuant to a notice delivered in accordance with this Section 8.3):

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        8.4.    Certain Definitions.    For purposes of this Agreement, the term:

        "Acceptable Confidentiality Agreement" means a confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement; provided, that any such confidentiality agreement need not prohibit the making of an Acquisition Proposal.

        "affiliate" means, as to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first-mentioned Person.

        "Anti-corruption Laws" means Laws relating to anti-bribery or anti-corruption (governmental or commercial) which apply to the Company or any of its Subsidiaries, including Laws that prohibit the corrupt payment, offer, promise or authorization of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any foreign government official, foreign government employee or commercial entity to obtain a business advantage, including the U.S. Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act of 2010 and all national and international Laws enacted to implement the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions.

        "beneficial ownership" (and related terms such as "beneficially owned" or "beneficial owner") has the meaning set forth in Rule 13d-3 under the Exchange Act.

        "Black-Scholes Value" shall (i) with respect to the Common Stock Purchase Warrants issued by the Company on December 11, 2017, May 31, 2018 and July 5, 2018, and the Placement Agent Common Stock Purchase Warrants issued by the Company on May 31, 2018 and July 5, 2018, have the meaning ascribed to such term in such warrant and (ii) with respect to the warrants issued pursuant to that certain Agreement for the Purchase and Sale of Convertible Debt and Common Stock Warrants dated August 9, 2016, by and among the Company and the other parties signatory thereto, mean the option value of such warrant using Black-Scholes calculation methods and making the assumptions described in the Black-Scholes methodology described in Exhibit A thereof.

        "Black-Scholes Warrants" means (i) the warrants issued pursuant to that certain Agreement for the Purchase and Sale of Convertible Debt and Common Stock Warrants dated August 9, 2016, by and among the Company and the other parties signatory thereto, (ii) the Common Stock Purchase Warrants issued by the Company on December 11, 2017, and (iii) the Placement Agent Common Stock Purchase Warrants issued by the Company on May 31, 2018 and July 5, 2018.

        "Business Day" means a day other than Saturday, Sunday or any day on which banks located in New York, New York are authorized or obligated by applicable Law to close.

        "Certificate of Designation" means the Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock of the Company, as filed with the Secretary of State of the State of Delaware on March 7, 2017.

        "Code" means the United States Internal Revenue Code of 1986, as amended.

        "Common Warrants" means the Common Stock Purchase Warrants issued by the Company on May 31, 2018 and July 5, 2018.

        "Company Material Adverse Effect" means any change, event, condition, occurrence, state of facts, development or effect (an "Effect") that, individually or in the aggregate, (i) has a material adverse effect on the business, properties, assets, condition or results of operations of the Company and its Subsidiaries, taken as a whole; provided, however, that adverse Effects arising out of, resulting from or attributable to the following shall not constitute or be deemed to contribute to a Company Material Adverse Effect, and shall not otherwise be taken into account in determining whether a Company

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Material Adverse Effect has occurred or would reasonably be expected to occur, except that Effects with respect to clauses (a), (b) and (c) of the below shall be so considered to the extent such Effect disproportionately impacts the Company and its Subsidiaries, taken as a whole, relative to other companies operating in the same industries: (a) changes or proposed changes in applicable Laws, GAAP or the interpretation or enforcement thereof, (b) changes in general economic, business, labor or regulatory conditions, or changes in securities, credit or other financial markets, including interests rates or exchange rates, in the United States or globally, or changes generally affecting the industries (including seasonal fluctuations) in which the Company or its Subsidiaries operate in the United States or globally, (c) changes in global or national political conditions (including the outbreak or escalation of war (whether or not declared), military action, sabotage or acts of terrorism), changes due to natural disasters or changes in the weather or changes due to the outbreak or worsening of an epidemic, pandemic or other health crisis, (d) any change in supplier, employee, financing source, regulatory, partner, customer, client or similar relationships directly resulting from the public announcement or pendency of this Agreement and the Merger (provided, that the exception in this clause (d) shall not apply in the context of any representation or warranty set forth in Section 3.4 or Section 3.12), (e) any Transaction Litigation, (f) the performance of this Agreement and the Transactions, including compliance with covenants set forth herein, or any action taken or omitted to be taken by the Company or any of its Subsidiaries (excluding the requirement that the Company use reasonable best efforts to operate in the ordinary course of business or any restriction in Section 5.1 that otherwise permits the Company and its Subsidiaries to operate in the ordinary course of business) at the request of Parent prior to the taking or the omission of such action, (g) changes in the trading price or trading volume of Company Shares or any suspension of trading, provided that the underlying facts or circumstances giving rise or contributing to such changes may be taken into account in determining whether a Company Material Adverse Effect has occurred, (h) any failure by the Company or any of its Subsidiaries to meet any revenue, earnings or other financial projections or forecasts, provided that the underlying facts or circumstances giving rise or contributing to such changes may be taken into account in determining whether a Company Material Adverse Effect has occurred, or (i) changes generally affecting products competitive with the products and services made or currently intended to be made commercially available or otherwise distributed, or currently under development, by the Company or any of its Subsidiaries, or (ii) would prevent or materially impair or delay the consummation by the Company of the transactions contemplated by this Agreement.

        "Company Material Intellectual Property" means the Intellectual Property that is owned or licensed by the Company or any of its Subsidiaries and that is material to the business of the Company and its Subsidiaries, taken as a whole.

        "Company Owned Intellectual Property" means Intellectual Property that is owned by the Company or any of its Subsidiaries.

        "Company Warrants" means, collectively, the Black-Scholes Warrants, the Common Warrants and the Underwater Warrants.

        "Competition Laws" means applicable supranational, national, federal, state, provincial or local Law designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolizing or restraining trade or lessening competition in any other country or jurisdiction, including the HSR Act, the Sherman Act, the Clayton Act, and the Federal Trade Commission Act, in each case, as amended and other similar competition or antitrust laws of any jurisdiction other than the United States.

        "Contract" or "Contracts" means any of the agreements, arrangements, contracts, leases (whether for real or personal property), powers of attorney, notes, bonds, mortgages, indentures, deeds of trust, loans, evidences of indebtedness, letters of credit, settlement agreements, franchise agreements, undertakings, covenants not to compete, employment agreements, licenses, purchase and sale orders

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and other legal commitments to which in each case a Person is a party or to which any of the properties or assets of such Person or its Subsidiaries are subject.

        "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of capital stock or other Equity Interests, as trustee or executor, by Contract or credit arrangement or otherwise.

        "Conversion Amount" means, the dollar amount to which a share of Preferred Stock will be converted in the merger as provided under the Certificate of Designations, to wit: with respect to a share of Preferred Stock, an amount equal to: (i) the number of Company Shares such share of Preferred Stock is entitled to be converted into pursuant to the Certificate of Designations, based on the Stated Value (as defined in the Certificate of Designations) of such share of Preferred Stock (each issued and outstanding share of Preferred Stock having a Stated Value as of the date hereof of $1,105) and assuming a "Conversion Price" (as defined in the Certificate of Designations) of $11.6355 (as may be adjusted prior to the Effective Time in accordance with the Certificate of Designations), multiplied by (ii) the Merger Consideration.

        "Convertible Notes" means the convertible promissory notes issued by the Company on September 7, 2016 pursuant to that certain Agreement for the Purchase and Sale of Convertible Debt and Common Stock Warrants dated August 9, 2016, by and among the Company and the other parties signatory thereto.

        "Environmental Claims" means any Proceeding, Order, demand, allegation, accusation or notice (written or oral) by any Person or entity alleging actual or potential violation of or liability arising out of or relating to any Environmental Laws, Environmental Permits or the presence in, or Release into, the environment of, or exposure to, any Hazardous Materials, but shall not include any claims relating to products liability.

        "Environmental Laws" means any and all applicable, federal, state, provincial, local or foreign Laws, and all rules or regulations promulgated thereunder, regulating or relating to Hazardous Materials, pollution, protection of the environment (including ambient air, surface water, ground water, land surface, subsurface strata, wildlife, plants or other natural resources), and/or the protection of health and safety of persons from exposures to Hazardous Materials in the environment.

        "Environmental Permits" means any permit, certificate, registration, notice, approval, identification number, license or other authorization required under any applicable Environmental Law.

        "Equity Interest" means any share, capital stock, partnership, limited liability company, member or similar equity interest in any Person, and any option, warrant, right or security (including debt securities) convertible, exchangeable or exercisable into or for any such share, capital stock, partnership, limited liability company, member or similar equity interest or other instrument or right the value of which is based on any of the foregoing.

        "ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.

        "ERISA Affiliate" means any Person (whether or not incorporated) that, together with another Person, is considered under common control and treated as one employer under Section 414(b), (c), (m) or (o) of the Code.

        "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

        "Expenses" includes all expenses (including all fees and expenses of counsel, accountants, investment bankers, financing sources, experts and consultants to a party hereto and its affiliates)

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incurred by a party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby, including the preparation, printing, filing and mailing of the Proxy Statement and all other matters related to the transactions contemplated by this Agreement.

        "FDA" means the United States Food and Drug Administration.

        "Financing Sources Related Parties" means the respective Financing Sources' affiliates and their and their affiliates' respective officers, directors, employees, attorneys, partners (general or limited), controlling parties, advisors, members, managers, accountants, consultants, agents, Representatives and funding sources involved in the Equity Financing and their respective successors and permitted assigns.

        "GAAP" means generally accepted accounting principles, as applied in the United States.

        "Governmental Entity" means any national, supranational, federal, state, county, provincial, municipal, local or foreign government, or other political subdivision thereof, including commission or authority, and any entity exercising executive, legislative, judicial, regulatory, taxing, administrative or prosecutorial functions of or pertaining to government, including any court of competent jurisdiction, any arbitral body or any administrative, regulatory (including any stock exchange) or other agency.

        "Hazardous Materials" means any materials or wastes that are listed or defined as hazardous substances, medical waste, hazardous wastes, hazardous materials, extremely hazardous substances, toxic substances, pollutants, contaminants or terms of similar import or serve as the basis of liability under any applicable Environmental Law.

        "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder.

        "Information Privacy and Security Laws" means all applicable Laws concerning the privacy and/or security of Personal Data, and all regulations promulgated thereunder, including, without limitation, HIPAA, the Health Information Technology for Economic and Clinical Health Act, the Gramm-Leach-Bliley Act, the Fair Credit Reporting Act, as amended by the Fair and Accurate Credit Transaction Act, the Federal Trade Commission Act, the Privacy Act of 1974, the CAN-SPAM Act, the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, social security number protection Laws and data security and security breach notification Laws.

        "Intellectual Property" means all intellectual property rights in any jurisdiction, including all: (a) patents, patent applications, and patent disclosures, together with all provisionals, reissues, continuations, continuations-in-part, divisions, revisions, extensions, and reexaminations thereof; (b) trademarks, service marks, trade dress, logos, slogans, brand names, trade names, Internet domain names and corporate names (whether or not registered), and other indicia of origin, and all applications, registrations and renewals in connection therewith; (c) all copyrights (whether or not published), mask works, and industrial designs, and all applications, registrations and renewals in connection therewith; (d) intellectual property rights in Software Programs; (e) mask works and industrial designs, and all applications and registrations in connection therewith; and (f) trade secrets and other intellectual property rights in confidential and proprietary information (including any intellectual property rights in inventions, ideas, research and development information, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, research records, test information, financial, marketing and business data, customer and supplier lists, algorithms and information, pricing and cost information, business and marketing plans and proposals, and databases and compilations of data).

        "IRS" means the United States Internal Revenue Service.

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        "IT Assets" means computers, Software Programs, servers, workstations, routers, hubs, switches, circuits, networks, data communications lines and all other information technology equipment owned, used, or held for use by the Company or any of its Subsidiaries.

        "Knowledge" means, when used with respect to the Company, the actual knowledge of the individuals listed in Section 8.4(a) of the Company Disclosure Schedule.

        "Law" means any applicable national, provincial, state, municipal and local laws (including common law), statutes, ordinances, codes, decrees, rules, regulations or Orders of any Governmental Entity, in each case, having the force of law.

        "Lien" means with respect to any property, equity interest or asset, any mortgage, deed of trust, hypothecation, lien, encumbrance, pledge, charge, security interest, right of first refusal, right of first offer, adverse claim, conditional sales or other title retention agreement, easement, right of way or other title defect, restriction on transfer, covenant or option in respect of such property, equity interest or asset.

        "NASDAQ" means the Nasdaq Stock Market LLC.

        "Order" means any judgment, order, ruling, decision, writ, injunction, decree or arbitration award of any Governmental Entity.

        "Parent Material Adverse Effect" means any change, event, condition, occurrence, state of facts, development or effect that, individually or in the aggregate, prevents or materially impairs or delays (beyond the Outside Date) the consummation by Parent or Merger Sub of the Merger or any of the other transactions contemplated this Agreement.

        "Permitted Liens" means (a) statutory Liens for Taxes not yet due and payable or for Taxes that are being contested in good faith by appropriate proceedings and for which appropriate reserves have been established in accordance with GAAP on the financial statements of the Company and its Subsidiaries, (b) Liens in favor of landlords, vendors, carriers, warehousemen, repairmen, mechanics, workmen, materialmen, construction or similar liens or encumbrances arising by operation of Law in the ordinary course of business for amounts not yet due and payable or are being contested in good faith by appropriate proceedings, and for which appropriate reserves have been established in accordance with GAAP on the financials statements of the Company and its Subsidiaries, and (c) (i) applicable building, zoning and land use regulations regulating the use or occupancy of Company Leased Real Property or the activities conducted thereon which are imposed by any Governmental Entity having jurisdiction over such Company Leased Real Property which are not violated by the current use or occupancy of such Company Leased Real Property or the operation of the businesses thereon, and (ii) other imperfections or irregularities in title, charges, restrictions and other encumbrances of record that do not materially impair the use of the Company Leased Real Property to which they relate.

        "Person" means an individual, corporation, limited liability company, partnership, association, trust, unincorporated organization, other entity or group (as defined in Section 13(d) of the Exchange Act), including a Governmental Entity.

        "Personal Data" means information, in any form, that identifies an individual or, in combination with any other information or data in the possession of the Company or any of its Subsidiaries, could be used to identify an individual.

        "Preferred Stock" means the Series A Convertible Preferred Stock, par value $0.001 per share, of the Company.

        "Prime Rate" means the rate per annum published in The Wall Street Journal from time to time as the prime lending rate prevailing during any relevant period.

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        "Proceedings" means all actions, suits, claims, investigations, audits, litigation or proceedings, in each case, by or before (or that could be brought before) any Governmental Entity.

        "Release" means disposing, discharging, injecting, spilling, leaking, pumping, pouring, leaching, dumping, emitting, escaping or emptying into or upon the indoor or outdoor environment, including any soil, sediment, subsurface strata, surface water, groundwater, ambient air, the atmosphere or any other media.

        "Representatives" means, with respect to a Person, such Person's directors, officers, employees, accountants, consultants, legal counsel, investment bankers, advisors, agents and other representatives.

        "SEC" means the Securities and Exchange Commission.

        "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

        "Software Programs" means computer programs (whether in source code, object code or other form), including any and all software implementations of algorithms, models and methodologies, and all documentation, including user manuals and training materials, related to any of the foregoing.

        "Subsidiary" of Parent, the Company or any other Person means any corporation, partnership, limited liability company, joint venture or other legal entity of which Parent, the Company or such other Person, as the case may be (either alone or through or together with any other Subsidiary), owns, directly or indirectly, a majority of the capital stock or other Equity Interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation, limited liability company, partnership, joint venture or other legal entity, or otherwise owns, directly or indirectly, such capital stock or other Equity Interests that would confer control of any such corporation, limited liability company, partnership, joint venture or other legal entity, or any Person that would otherwise be deemed a "subsidiary" under Rule 12b-2 promulgated under the Exchange Act.

        "Tax Authority" means any Governmental Entity having or purporting to exercise jurisdiction with respect to the determination, collection or imposition of any Tax.

        "Tax Return" means any report, return (including information return), claim for refund, election, estimated tax filing or declaration required to be filed or actually filed with a Tax Authority, including any schedule or attachment thereto, and including any amendments thereof.

        "Taxes" means any and all federal, state, local or foreign taxes, fees, levies, duties, tariffs, imposts, payments in lieu and other charges in the nature of a tax or any other similar fee, charge, assessment or payment, including, without limitation, income, franchise, windfall or other profits, gross receipts, branch profits, real property, personal property, sales, use, goods and services, net worth, capital stock, license, occupation, premium, commercial activity, customs duties, alternative or add-on minimum, environmental, escheat or unclaimed property, payroll, employment, social security, workers' compensation, unemployment compensation, disability, excise, severance, estimated, withholding, ad valorem, stamp, transfer, registration, value-added, transactional and gains tax, whether disputed or not, and any interest, penalty, fine or additional amounts imposed in respect of any of the foregoing.

        "Third Party" shall mean any Person other than Parent, Merger Sub and their respective affiliates.

        "Treasury Regulations" means regulations promulgated under the Code.

        "Underwater Warrants" means (i) the warrants issued pursuant to that certain Securities Purchase Agreement dated March 7, 2017, by and among the Company and the other parties signatory thereto, and (ii) the Underwriter's Common Stock Purchase Warrants issued by the Company on December 11, 2017.

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        "Warrant Consideration" means, with respect to each Company Share for which a Common Warrant is exercisable immediately prior to the Closing, an amount in cash equal to the Merger Consideration less the per-share exercise price for such Common Warrant.

        "Warrant Repurchase Date" means (i) with respect to the Common Stock Purchase Warrants issued by the Company on December 11, 2017, May 31, 2018 and July 5, 2018, and the Placement Agent Common Stock Purchase Warrants issued by the Company on May 31, 2018 and July 5, 2018, the Closing Date and (ii) with respect to the warrants issued pursuant to that certain Agreement for the Purchase and Sale of Convertible Debt and Common Stock Warrants dated August 9, 2016, by and among the Company and the other parties signatory thereto, mean the date of the third Business Day following the date of receipt of the Change of Control Notice (as defined in such warrant).

        8.5.    Terms Defined Elsewhere.    The following terms are defined elsewhere in this Agreement, as indicated below:

"2009 Plan"   Section 2.4(a)

"2012 Channel Collaboration Agreement"

 

Section 6.3(f)

"2015 Channel Collaboration Agreement"

 

Section 6.3(f)

"2019 Plan"

 

Section 2.4(a)

"Acquisition Proposal"

 

Section 5.3(g)(i)

"Agreement"

 

Preamble

"Book-Entry Company Shares"

 

Section 2.2(b)(ii)

"Certificate of Merger"

 

Section 1.2

"Certificates"

 

Section 2.2(b)(i)

"Change of Board Recommendation"

 

Section 5.3(a)

"Closing"

 

Section 1.2

"Closing Date"

 

Section 1.2

"Company"

 

Preamble

"Company Acquisition Agreement"

 

Section 5.3(a)

"Company Benefit Plan"

 

Section 3.11(a)

"Company Board"

 

Recitals

"Company Board Recommendation"

 

Section 3.3(b)

"Company Bylaws"

 

Section 1.1(b)

"Company Charter"

 

Section 1.1(b)

"Company Disclosure Schedule"

 

ARTICLE III

"Company Equity Plan"

 

Section 2.4(b)

"Company Lease Agreements"

 

Section 3.14(a)

"Company Leased Real Property"

 

Section 3.14(a)

"Company Meeting"

 

Section 5.4(b)

"Company Option"

 

Section 2.4(a)

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"Company Registered Intellectual Property"   Section 3.17(a)

"Company SEC Documents"

 

Section 3.5(a)

"Company SEC Financial Statements"

 

Section 3.5(c)

"Company Shares"

 

Section 2.1(a)

"Company Stockholder Approval"

 

Section 3.3(c)

"Company Termination Fee"

 

Section 7.3(a)

"Confidentiality Agreement"

 

Section 5.2(b)

"Continuing Employee"

 

Section 5.8(a)

"D&O Insurance"

 

Section 5.9(c)

"DGCL"

 

Recitals

"Dissenting Shares"

 

Section 2.3

"Effect"

 

Section 8.4

"Effective Time"

 

Section 1.2

"Eligible Company Option"

 

Section 2.4(a)

"Equity Financer"

 

Recitals

"Equity Financing"

 

Section 4.7(b)

"Exchange Fund"

 

Section 2.2(a)

"FFDCA"

 

Section 3.18(a)

"Financing"

 

Section 5.16(c)

"Financing Source"

 

Section 5.16(d)

"HIPAA"

 

Section 3.18(a)

"Health Care Laws"

 

Section 3.18(a)

"Indemnitee"

 

Section 5.9(a)

"Material Contracts"

 

Section 3.16(b)

"Merger"

 

Recitals

"Merger Consideration"

 

Section 2.1(a)

"Merger Sub"

 

Preamble

"Multiemployer Plan"

 

Section 3.11(f)

"New Plan"

 

Section 5.8(b)

"Notice 8-K"

 

Section 3.4(b)

"Notice of Conversion"

 

Section 2.2(b)(iii)

"Notice of Exercise"

 

Section 2.2(b)(iv)

"Notice Period"

 

Section 5.3(d)(ii)

"OFAC"

 

Section 3.9

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"Old Plan"   Section 5.8(b)

"Outside Date"

 

Section 7.1(d)

"Parent"

 

Preamble

"Parent Related Parties"

 

Section 7.4(d)

"Parent Termination Fee"

 

Section 7.4(a)

"Paying Agent"

 

Section 2.2(a)

"Payroll Date"

 

Section 5.8(d)

"Permits"

 

Section 3.10

"Proposed Changed Terms"

 

Section 5.3(d)(iv)

"Proxy Date"

 

Section 5.4(b)

"Proxy Statement"

 

Section 3.4(b)

"Record Date"

 

Section 5.4(b)

"Regulatory Authority"

 

Section 3.18(b)

"Regulatory Matters"

 

Section 5.15

"Regulatory Permit"

 

Section 3.18(b)

"Repurchase Notice"

 

Section 2.2(b)(iv)

"Safety Notices"

 

Section 3.18(e)

"Sarbanes-Oxley Act"

 

Section 3.5(b)

"Service Provider"

 

Section 3.11(a)

"Significant Supplier"

 

Section 3.22

"Submissions"

 

Section 3.18(c)

"Superior Proposal"

 

Section 5.3(g)(ii)

"Support Agreements"

 

Recitals

"Surviving Corporation"

 

Section 1.1(a)

"Title IV Plan"

 

Section 3.11(f)

"Transaction Committee"

 

Recitals

"Transaction Litigation"

 

Section 5.13

"Transactions"

 

Section 1.1(a)

        8.6.    Headings.    The headings and table of contents contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

        8.7.    Severability.    If any term or other provision (or part thereof) of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other terms, conditions and provisions (or part thereof) of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision (or part thereof) is invalid, illegal or

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incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable Law and in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

        8.8.    Entire Agreement.    This Agreement (together with the Exhibits, Company Disclosure Schedule and the other documents delivered pursuant hereto) and the Confidentiality Agreement constitute the entire agreement of the parties and supersede all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof and, except as otherwise expressly provided herein or therein, are not intended to confer upon any other Person any rights or remedies hereunder or thereunder.

        8.9.    Assignment.    Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto, in whole or in part (whether by operation of law or otherwise), without the prior written consent of each of the other parties, and any attempt to make any such assignment without such consent shall be null and void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.

        8.10.    No Third Party Beneficiaries.    This Agreement shall be binding upon and inure solely to the benefit of the parties and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, other than pursuant to Section 5.9, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

        8.11.    Mutual Drafting; Interpretation.    Each party has jointly participated in the drafting of this Agreement, which each party acknowledges is the result of extensive negotiations between the parties. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision. For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders. As used in this Agreement, the words "include" and "including," and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words "without limitation." As used in this Agreement, the words "ordinary course of business" shall be deemed to be followed by the words "consistent with past practice". As used in this Agreement, references to a "party" or the "parties" are intended to refer to a party to this Agreement or the parties to this Agreement. Except as otherwise indicated, all references in this Agreement to "Sections," "Exhibits," "Annexes" and "Schedules" are intended to refer to Sections of this Agreement and Exhibits, Annexes and Schedules to this Agreement. All references in this Agreement to "dollars" "$" are intended to refer to U.S. dollars. Unless otherwise specifically provided for herein, the term "or" shall not be deemed to be exclusive. As used in this Agreement, the words "hereof," "herein," "hereby," "hereunder" and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Any Contract or Law defined or referred to herein means any such Contract or Law as from time to time amended, modified or supplemented, unless otherwise specifically indicated.

        8.12.    Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury.    

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        8.13.    Counterparts.    This Agreement may be signed in any number of counterparts, including by facsimile or other electronic transmission each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by all of the other parties hereto. Until and unless each party has received a counterpart hereof signed by the other party hereto, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission in .PDF format or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.

        8.14.    Specific Performance.    

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        8.15.    Non-Recourse Against Financing Sources.    This Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or related to this Agreement may only be brought against, the persons who are expressly named as parties hereto and then only with respect to the specific obligations set forth herein with respect to such person. None of the Financing Sources or a Financing Sources Related Party shall have any liability for any obligations or liabilities of any party hereto under this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby, including any dispute arising out of or relating in any way to the Equity Commitment Letters or the performance thereof.

[Signature pages follow]

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        IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Agreement to be executed as of the date first written above by their respective officers or managers thereunto duly authorized.

    Parent:

 

 

CASTLE CREEK PHARMACEUTICAL HOLDINGS, INC.

 

 

By:

 

/s/ GREG WUJEK

        Name:   Greg Wujek
        Title:   Chief Executive Officer

 

 

Merger Sub:

 

 

CASTLE CREEK MERGER CORP.

 

 

By:

 

/s/ BABAR GHIAS

        Name:   Babar Ghias
        Title:   President and Treasurer

   

[Signature Page to Agreement and Plan of Merger]


    The Company:

 

 

FIBROCELL SCIENCE, INC.

 

 

By:

 

/s/ JOHN MASLOWSKI

        Name:   John Maslowski
        Title:   President and Chief Executive Officer

   

[Signature Page to Agreement and Plan of Merger]




QuickLinks

AGREEMENT AND PLAN OF MERGER by and among CASTLE CREEK PHARMACEUTICAL HOLDINGS, INC., CASTLE CREEK MERGER CORP. and FIBROCELL SCIENCE, INC. Dated as of September 12, 2019
TABLE OF CONTENTS
AGREEMENT AND PLAN OF MERGER
RECITALS
AGREEMENT
ARTICLE I THE MERGER
ARTICLE II CONVERSION OF SECURITIES IN THE MERGER
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
ARTICLE V COVENANTS
ARTICLE VI CONDITIONS TO CONSUMMATION OF THE MERGER
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER
ARTICLE VIII GENERAL PROVISIONS

Exhibit 10.1

 

CONSENT AND TERMINATION AGREEMENT

 

THIS CONSENT AND TERMINATION AGREEMENT (hereinafter referred to as this “Agreement”) is made and entered into as of September 12, 2019 by and among Castle Creek Pharmaceutical Holdings, Inc., a Delaware corporation (“Parent”), Fibrocell Science, Inc., a Delaware corporation (the “Company”), the undersigned securityholders of the Company (collectively the “Securityholders” and each individually, a “Securityholder”), and Castle Creek Merger Corp., a Delaware corporation (“Merger Sub”).

 

WHEREAS, the Company has issued 8,000 shares of Series A Convertible Preferred Stock, par value $0.001 per share, of the Company (the “Preferred Stock”), and related warrants (the “Company Warrants”) pursuant to that certain Securities Purchase Agreement dated as of March 7, 2017 (the “Securities Purchase Agreement”), by and among the Company and the Holders;

 

WHEREAS, concurrently with the execution of this Agreement, the Company, Parent and Merger Sub, have entered into an Agreement and Plan of Merger (as amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), dated as of the date hereof, pursuant to which Merger Sub will be merged with and into the Company (the “Merger”), with the Company being the surviving entity of such Merger and a wholly owned subsidiary of Parent on the terms, and subject to the conditions, set forth in the Merger Agreement;

 

WHEREAS, as of the date hereof, the Securityholders are the beneficial owners (for purposes of this Agreement, “beneficial owner” (including “beneficially own” and other correlative terms) shall have the meaning set forth in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) of the number of Company Warrants and shares of Preferred Stock set forth on Schedule I hereto (such Equity Interests, the “Subject Securities”); and

 

WHEREAS, as a condition to and as an inducement to Parent’s and Merger Sub’s willingness to enter into the Merger Agreement, the Securityholders have agreed to enter into this Agreement, to cause the conversion of their shares of Preferred Stock as contemplated by the Merger Agreement and in accordance with the terms of the Certificate of Designation and to cancel their Company Warrants as contemplated by the Merger Agreement and in accordance with the terms of the applicable Company Warrants.

 

WHEREAS, Section 5.4 of the Securities Purchase Agreement provides that any provision of the Securities Purchase Agreement may be amended with the written consent of the Company and the Required Purchasers;

 

WHEREAS, the Company and the undersigned Securityholders (together with other holders of Preferred Stock and Company Warrants executing agreements substantially similar to this Agreement with respect to the Termination (as defined below) constituting all of the parties to the Transaction Documents (as defined in the Securities Purchase Agreement) desire to terminate the Securities Purchase Agreement in its entirety upon consummation of the Merger (the “Termination”); and

 


 

WHEREAS, in connection with and as consideration for the Termination, Merger Sub desires to issue a promissory note substantially in the form attached hereto as Exhibit A (each “Note” and, collectively, the “Notes”) to each Securityholder in the principal amount described below.

 

NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

 

SECTION 1.                            Certain Definitions.  Capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.  For all purposes of and under this Agreement, the following terms shall have the following respective meanings:

 

(a)                                 Constructive Sale” shall mean, with respect to any Subject Security, a short sale with respect to such Subject Securities, entering into or acquiring an offsetting derivative contract with respect to such Subject Securities, entering into or acquiring a future or forward contract to deliver such Subject Securities, or entering into any other hedging or other derivative transaction that has the effect of either directly or indirectly materially changing the economic benefits or risks of ownership of such Subject Securities.

 

(b)                                 Conversion Amount” shall mean, with respect to a share of Preferred Stock, an amount equal to: (i) the number of Company Shares such share of Preferred Stock is entitled to be converted into pursuant to the Certificate of Designation, based on the “Stated Value” of such share of Preferred Stock (each issued and outstanding share of Preferred Stock having a Stated Value as of the date hereof of $1,105 (as may be adjusted prior to the Effective Time in accordance with the Certificate of Designation, including by virtue of the dividend continuing to accrue until the Effective Time in accordance with the Certificate of Designation)) and assuming a “Conversion Price” (as defined in the Certificate of Designation) of $11.6355 (as may be adjusted prior to the Effective Time in accordance with the Certificate of Designation), multiplied by (ii) the Merger Consideration.

 

(c)                                  Expiration Date” shall mean the earliest to occur of (i) such date and time after the Effective Time at which all of the Subject Securities shall have been converted or otherwise terminated or cancelled, and such Securityholder no longer has any right or claim of ownership over any Subject Security or other Equity Interests of the Company or the Surviving Corporation, (ii) such date and time as the Merger Agreement shall be properly terminated pursuant to Article VII of the Merger Agreement, (iii) any amendment to the terms of the Merger Agreement that (A) reduces the amount or value of, or changes the type of, consideration payable to the Securityholders in respect of any of their Subject Securities, (B) imposes any material restrictions on or additional conditions on the payment of the consideration payable to the Securityholders in respect of any of their Subject Securities, except, in the case of (B), as may be required by law, stock exchange rule or other regulation, or the interpretation thereof by any Governmental Entity with proper jurisdiction, or (C) extends the Outside Date

 

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beyond April 12, 2020 and (iv) the mutual written agreement of each of the parties hereto to terminate this Agreement.

 

(d)                                 Transfer” shall mean, with respect to any Subject Security, the direct or indirect assignment, sale, transfer, tender (into a tender offer, exchange offer or otherwise), pledge, hypothecation, or the grant, creation or suffrage of a Lien upon, or the gift, placement in trust, or the Constructive Sale or other disposition (including by merger or any other conversion into securities or other consideration) of such Subject Securities (including transfers by testamentary or intestate succession or otherwise by operation of Law) or any right, title or interest therein (including any right or power to vote to which the holder thereof may be entitled, whether such right or power is granted by proxy or otherwise), or any change in the record or beneficial ownership of such Subject Securities, and any agreement, arrangement or understanding, whether or not in writing, to effect any of the foregoing.

 

SECTION 2.                            Consent for Amendment and Related Matters.

 

(a)                                 Termination of the Securities Purchase Agreement. Pursuant to Section 5.4 of the Securities Purchase Agreement, each of the Securityholders and the Company hereby agree, that, effective immediately prior to consummation of the Merger and without any further action on the part of the parties hereto, the Securities Purchase Agreement shall be deemed terminated and of no further force or effect.

 

(b)                                 Consent Fee. Subject to the terms and conditions of this Agreement, as consideration for the consent of each Securityholder to the Termination, Merger Sub hereby agrees to, immediately prior to consummation of the Merger, to issue and deliver to each Securityholder the Note in the principal amount equal to the aggregate amount of all of the Conversion Amounts which such Securityholder is entitled to receive in connection with the conversion of the shares of Preferred Stock held by such Securityholder and converted in accordance with the terms of the Merger Agreement and this Agreement.

 

SECTION 3.                            Transfer of Subject Securities or Voting Rights.

 

(a)                                 Transfer of Subject Securities.  Except as otherwise permitted by this Agreement or the Merger Agreement, each Securityholder hereby agrees that at all times during the period commencing on the date hereof until the Expiration Date, such Securityholder shall not (i) cause or permit, or commit or agree to cause or permit, any Transfer of any of the Subject Securities or (ii) take any other action that would in any way delay, restrict, limit or interfere with the performance of the Securityholder’s obligations hereunder or the transactions contemplated hereby or by the Merger Agreement; provided, however, this Section (2)(a) shall not prohibit a Transfer of any of the Subject Securities to any person, so long as the assignee or transferee agrees to be bound by the terms of this Agreement and executes and delivers to the parties hereto a written consent and joinder memorializing such agreement in form and substance reasonably satisfactory to

 

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Parent; provided further, that no such Transfer shall relieve such transferring Securityholder from its obligations under this Agreement, other than with respect to those Subject Securities transferred in accordance with the foregoing provision (it being understood, for the avoidance of doubt, that such transferring Securityholder shall continue to be bound by the covenants and obligations set forth in Section 10, Section 12 and Section 15 hereof).

 

(b)                                 Any Transfer or other action taken or effected in violation of this Section 3 shall, to the fullest extent permitted by Law, be void ab initio and of no force or effect, and the Company may decline to give effect to such transfer in its books and records and those of its agents.

 

SECTION 4.                            No Ownership Interest.  Nothing contained in this Agreement shall be deemed to vest in Parent any direct or indirect ownership or incidence of ownership of, or with respect to, any Subject Security.  All rights, ownership and economic benefits of and relating to the Subject Securities shall remain vested in and belong to the Securityholders, and this Agreement shall not confer any right, power or authority upon Parent or any other Person (a) to direct the Securityholders in the voting of any of the Subject Securities, except as otherwise specifically provided herein, or (b) in the performance of any of the Securityholders’ duties or responsibilities as officers or directors, as applicable, of the Company.

 

SECTION 5.                            Treatment of Securities.

 

(a)                                 Preferred Stock.

 

(i)                                     In the event that, immediately prior to the Effective Time, any Securityholder is the beneficial owner of shares of Preferred Stock such Securityholder hereby irrevocably agrees that at and after the Effective Time, each such share of Preferred Stock shall, in accordance with the terms of the Certificate of Designation and the Merger Agreement, thereafter represent only the right to receive an amount in cash, without interest, equal to the Conversion Amount with respect to such share of Preferred Stock, subject to any withholding of Taxes required by applicable Law, upon delivery of a Notice of Conversion in accordance with Section 2.2 of the Merger Agreement and Section 6(a) of the Certificate of Designation.

 

(ii)                                  Each Securityholder shall, within ten (10) calendar days from the date hereof, execute (or cause the holder of record to execute) and deliver to the Company a Notice of Conversion electing to convert each share of Preferred Stock beneficially owned by such Securityholder into the right to receive the Conversion Amount and all shares of Preferred Stock represented by such Notice of Conversion shall forthwith be cancelled, in each case in accordance with the Certificate of Designation and the Merger Agreement.

 

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(iii)                               The parties hereto acknowledge and agree that the effectiveness of a Notice of Conversion shall be conditioned upon the consummation of the Merger.

 

(b)                                 Warrants.

 

(i)                                     Each Securityholder hereby agrees that each Company Warrant shall terminate at the Effective Time and be cancelled and shall be entitled to receive no consideration or securities of any kind. Each Securityholder further agrees that any such Company Warrant shall thereafter cease to be binding upon the Company and the Surviving Corporation, and none of the Company, the Surviving Corporation or any of their affiliates shall have any further obligations with respect thereto.

 

SECTION 6.                            Additional Agreements.

 

(a)                                 No Appraisal or Other Claims.  Each Securityholder (i) knowingly, voluntarily, intentionally, unconditionally and irrevocably waives and agrees not to exercise any rights (including, without limitation, under Section 262 of the Delaware General Corporation Law) to demand appraisal of any of the Subject Securities or any other Equity Interests of the Company held by the Securityholder or rights to dissent from the Merger that such Securityholder may have (collectively, “Appraisal Rights”) or to receive notice of any right to seek Appraisal Rights in connection with the Merger; (ii) agrees not to commence, participate in or voluntarily aid in any way any claim or proceeding to seek (or file any petition related to) Appraisal Rights in connection with the Merger; and (iii) agrees not to commence, participate in or voluntarily aid in any way, and will take all actions necessary to opt out of, any class in any class action with respect to, any claim, derivative or otherwise, against Parent, Merger Sub, the Company or any of their respective representatives or successors relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the consummation of the Merger, including any claim (x) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or the Merger Agreement, (y) alleging a breach of any fiduciary duty of the Company Board in connection with the Merger Agreement or the transactions contemplated thereby, (z) making any claim with respect to SEC disclosures in connection with the Merger Agreement or the transaction; provided, that the foregoing covenants shall not be deemed a consent to or waiver of any rights of the Securityholder for any breach of this Agreement or the Merger Agreement.

 

(b)                                 Communications.  Unless required by applicable Law or legal process, the Securityholder shall not, and shall cause its representatives not to, make any press release or other public announcement with respect to the business or affairs of the Company, Parent or Merger Sub, including this Agreement and the Merger Agreement and the transactions contemplated hereby and thereby, without the prior written consent of Parent.

 

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SECTION 7.                            Representations, Warranties and Other Agreements of Securityholders.  Each Securityholder hereby represents and warrants to Parent as of the date hereof and, as applicable, covenants, that:

 

(a)                                 (i) such Securityholder is the beneficial owner of, and has good, valid and marketable title to, the Subject Securities set forth opposite its name on Schedule I, (ii) such Securityholder has sole voting power, and sole power of disposition, with respect to all of its Subject Securities, (iii) the Subject Securities are free and clear of all Liens, other than any Liens created by this Agreement, the underlying agreements pursuant to which such shares were issued or as imposed by applicable securities Laws, or that will otherwise be discharged at or prior to the Effective Time and will not impact the Securityholder’s obligations under this Agreement and (iv) the Securityholder has not appointed or granted any proxy inconsistent with this Agreement, which appointment or grant is still effective, with respect to the Subject Securities.

 

(b)                                 such Securityholder is duly organized and validly existing in good standing under the laws of its state of incorporation or formation and has full power and authority to make, enter into and carry out the terms of this Agreement applicable to such Securityholder;

 

(c)                                  as of the date hereof, there is no Proceeding pending or, to the knowledge of such Securityholder, threatened against such Securityholder at law or in equity before or by any Governmental Entity that would reasonably be expected to impair or delay the ability of such Securityholder to perform its obligations hereunder or consummate the transactions contemplated hereby;

 

(d)                                 the execution and delivery of this Agreement by such Securityholder does not, and the performance of this Agreement by such Securityholder will not, result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation, modification or acceleration) (whether after the giving of notice of or the passage of time or both) under any applicable Law, any of such Securityholder’s certificate of incorporation, bylaws or equivalent governing documents or any contract to which such Securityholder is a party or which is binding on such Securityholder or the Subject Securities, and will not result in the creation of any Lien on any of the Subject Securities;

 

(e)                                  this Agreement has been duly executed by such Securityholder and constitutes the valid and legally binding obligation of such Securityholder, enforceable against such Securityholder in accordance with its terms, except that such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity, whether considered in a proceeding at law or in equity;

 

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(f)                                   the execution and delivery of this Agreement by such Securityholder does not, and the performance of this Agreement by such Securityholder will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity by such Securityholder, (i) except for any applicable requirements, if any, of the Exchange Act, and (ii) except where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not prevent or delay the performance by such Securityholder of such Securityholder’s obligations under this Agreement in any material respect;

 

(g)                                  such Securityholder has not employed any investment banker, broker, financial advisor, finder or other intermediary in connection with the transactions contemplated by this Agreement which would be entitled to any investment banking, brokerage, finder’s, financial advisory or similar fee or commission in connection with this Agreement or the transactions contemplated hereby;

 

(h)                                 such Securityholder agrees that, in the event of any stock split, stock dividend or distribution, or any change in the Subject Securities by reason of any split-up, reverse stock split, recapitalization, combination, reclassification, exchange of shares or the like, the term “Subject Securities”  shall be deemed to refer to and include such Subject Securities as well as all shares distributed in such stock dividends and distributions and any securities into which or for which any or all of such Subject Securities may be changed or exchanged or which are received in such transaction, and such Securityholder agrees, while this Agreement is in effect, to as promptly as practicable notify Parent of the number of any new Subject Securities, if any, acquired by such Securityholder or any of its affiliates after the date hereof; and

 

(i)                                     such Securityholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon such Securityholder’s execution and delivery of this Agreement and the representations and warranties of such Securityholder contained herein.

 

SECTION 8.                            Representations, Warranties and Other Agreements of Merger Sub.  Merger Sub hereby represents and warrants to the Securityholders as of the date hereof that there are no other agreements between any holders of shares of Preferred Stock, on the one hand, and Parent or its Subsidiaries, on the other hand, relating to the Preferred Stock or receipt of any consideration with respect thereto, other than the Merger Agreement and that certain Consent and Termination Agreement, dated as of the date hereof, by and among Parent, Merger Sub, the Company and MSD Credit Opportunity Master Fund, L.P.

 

SECTION 9.                            Consent.  Each Securityholder on behalf of itself only consents to and authorizes the Company, Parent and their respective affiliates to (and Parent authorizes such Securityholder to) (a) publish and disclose in the Proxy Statement, any Schedule TO or related materials filed in connection with an offer, any current report of the Company on Form 8-K and any other documents required to be filed with the SEC or any government or regulatory authority in connection with the Merger Agreement, such Securityholder’s

 

7


 

identity and ownership of Subject Securities and the nature of such Securityholder’s commitments, arrangements and understandings under this Agreement and (b) file this Agreement as an exhibit to the extent required to be filed with the SEC or any regulatory authority relating to the Merger.

 

SECTION 10.                     Securityholder Capacity.  To the extent that any Securityholder or any of its affiliates or Representatives is an officer or director of the Company or any of the Company’s Subsidiaries, nothing in this Agreement shall be construed as preventing or otherwise affecting any actions taken or not taken by such Person in its capacity as an officer or director of the Company or any of the Company’s Subsidiaries or from fulfilling the duties and obligations of such office (including the performance of obligations required by the fiduciary duties of such Person acting in its capacity as an officer or director of the Company or any of the Company’s Subsidiaries), and none of such actions (or determinations not to take any action) in such other capacities shall be deemed to constitute a breach of this Agreement.

 

SECTION 11.                     Termination.  Notwithstanding anything to the contrary provided herein, this Agreement and any undertaking or waiver granted by the Securityholders hereunder automatically shall terminate and be of no further force or effect and the Securityholders shall not be entitled to the Notes, in each case as of the Expiration Date; provided that (i) Section 15 and, if the Merger is consummated, Section 6, and Section 12 shall survive any termination or expiration of this Agreement, (ii) any such termination shall not relieve any party from liability for any willful and material Breach of its obligations hereunder prior to such termination or relieve any party from completing any obligation hereunder that arose in connection with the consummation of the transactions contemplated hereby, and (iii) each party will be entitled to any remedies at law or in equity to recover its losses arising from any such pre-termination breach.

 

SECTION 12.                     Release.  Subject to Section 15(o), effective as of the Closing, other than with respect to the Note, the Company’s obligations under this Agreement, the Merger Agreement and the Company Securityholder Voting and Support Agreement, dated as of the date hereof, by and between Parent and the Securityholders (the “Voting Agreement”), and the Company’s obligations to pay the consideration for the Subject Securities (as defined herein and in the Voting Agreement) as contemplated by the Merger Agreement, each Securityholder hereby (i) fully and unconditionally releases, acquits and forever discharges the Parent and its Subsidiaries and Company and its Subsidiaries and each of their respective past, present and future successors, predecessors, assigns, employees, agents, partners, members, subsidiaries, equityholders, parent companies, controlling Persons, other affiliates (corporate or otherwise) and legal representatives, including its past, present and future officers and directors, solely in their capacities as such, and any past, present and future successors, predecessors, assigns, employees, agents, partners, members, subsidiaries, equityholders, parent companies, controlling Persons, other affiliates (corporate or otherwise) and legal representatives, including past, present and future officers and directors of any of the foregoing, solely in their capacities as such (together, the “Released Parties”), from any and all manner of actions, causes of actions, claims, debts, obligations, demands, liabilities, damages, costs, losses, expenses (including attorneys’ and other professional fees and expenses), compensation or other relief, whether known or unknown, matured or unmatured, contingent or otherwise, whether in law or equity, arising out of, relating to, accruing from or in connection with, (a) such Securityholder’s ownership and acquisition of Subject Securities and/or other Equity Interests (including for the avoidance of doubt, any warrants to purchase common stock and convertible promissory notes) in the Company or any of its Subsidiaries

 

8


 

(including for the avoidance of doubt, all claims against the Company and its current and former directors and officers arising out of such Securityholder’s acquisition and ownership of the Subject Securities), (b) the Merger, any provision of the Merger Agreement or the transactions contemplated thereby (other than with respect to such Released Party’s respective rights under the Merger Agreement), (c) any appraisal rights or rights to dissent from the Merger, or (d) any claims alleging a breach of duty on the part of the Company or any officer, director or equityholder of the Company prior to the Closing Date (any and all claims of whatever kind or character, known or unknown described in clauses (a) through (d), collectively, “Released Claims”), and agrees not to commence or participate in, and to take all actions necessary to opt out of any class in, any class action with respect to any Released Claims and (ii) agrees to remit any damages or other payments received in relation to any Released Claims, settlements or adjudications related to any claims arising out of, relating to, accruing from or in connection with the Exchange Act or the Securities Act of 1933.  For the avoidance of doubt, nothing in this paragraph shall affect any right to indemnification or advancement of expenses in favor of, or limitation of liability of, a current or former director of the Company or any of its Subsidiaries.  It is the intention of the parties that this Agreement shall, at the Effective Time, be effective as a full and final accord and satisfaction, and release of the Released Claims.  For the avoidance of doubt, in the event any Subject Security or other Equity Interest of the Company held by a Securityholder has not been converted, repurchased, tendered, redeemed or cancelled in accordance with this Agreement, the Merger Agreement or any tender offer commenced by Parent or the Company, the Released Claims shall not include any claims by any Securityholder for the right to receive the amounts contemplated hereby, in the Merger Agreement or any tender offer commenced by Parent or the Company in exchange for such Subject Securities or other Equity Interests.

 

SECTION 13.                     Further Assurances.

 

(a)                                 Each of the parties hereto shall execute and deliver any additional certificate, instruments and other documents, and take any additional actions, as any other party reasonably may deem necessary or appropriate to carry out and effectuate the purpose and intent of this Agreement.

 

(b)                                 Each Securityholder agrees, while this Agreement is in effect, to notify Parent promptly in writing of the number and description of any Subject Securities acquired by such Securityholder after the date hereof which are not set forth on Schedule I hereto.

 

SECTION 14.                     RESERVED.

 

9


 

SECTION 15.                     Miscellaneous.

 

(a)                                 Expenses.  All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.

 

(b)                                 Waiver.  Except as provided in this Agreement, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of any other party’s obligations to comply with its representations, warranties, covenants and agreements contained in this Agreement.  The waiver by any party hereto of a breach of any provision hereunder (or any delay in asserting any such breach) shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other provision hereunder or in any other context. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.

 

(c)                                  Severability.  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

 

(d)                                 Assignment; Benefit.  Except as expressly permitted by the terms hereof, no party may assign this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of each other party hereto, except that Parent may assign its rights, interest, or obligations hereunder to any of its affiliates so long as Parent continues to remain primarily liable for all such rights, interest, and obligations.  Any attempted assignment without such prior written approval shall be void.  Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.  This Agreement is not intended to, and shall not be deemed to, confer on any Person other than the parties hereto or their respective heirs, successors, executors, administrators and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, or to

 

10


 

create any agreement of employment with any Person or otherwise create any third party beneficiary hereto.

 

(e)                                  Amendments.  This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by each of the parties hereto.

 

(f)                                   Specific Performance; Injunctive Relief.  The parties agree that irreparable damage would occur to Parent in the event that any provision of this Agreement were not performed by the Securityholders in accordance with the specific terms hereof, and that Parent shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which Parent is entitled at law or in equity.  Each Securityholder agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief to enforce the covenants and obligations contained herein on the basis that Parent has an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity and Parent shall not be required to post a bond or other security in connection with any such order or injunction.

 

(g)                                  Governing Law.  This Agreement and all claims and causes of action based upon, arising out of or in connection herewith shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without regard to Laws that may be applicable under conflicts of laws principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.

 

(h)                                 Jurisdiction and Venue.  Each of the parties hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, if such Court does not have jurisdiction, any Delaware State court, or Federal court of the United States of America, sitting in Delaware, and any appellate court from any thereof, in any Proceeding arising out of or relating to this Agreement or the transactions contemplated hereby or for recognition or enforcement of any judgment relating thereto, and each of the parties hereby irrevocably and unconditionally (i) agrees not to commence any such Proceeding except in such courts, (ii) agrees that any claim in respect of any such Proceeding may be heard and determined in such court, (iii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such Proceeding in any such court, and (iv) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such Proceeding in any such court.  Each of the parties agrees that a final judgment in any such Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.  Each party to this Agreement irrevocably consents to service of process in the manner provided for

 

11


 

notices in Section 15(l).  Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by Law.

 

(i)                                     Waiver of Trial by Jury.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 16(i).

 

(j)                                    No Agreement Until Transaction Documents Executed.  Irrespective of negotiations among the parties or the exchanging of drafts of this Agreement, this Agreement shall not constitute, or be deemed to evidence, a contract, agreement, arrangement or understanding between the parties hereto unless (i) the Merger Agreement is executed and delivered by all parties thereto and (ii) this Agreement is executed and delivered by all parties hereto.

 

(k)                                 Limitation on Recourse.  Section 7.5 of the Merger Agreement shall apply to this Agreement mutatis mutandis.

 

(l)                                     Notices.  Any notices or other communications required or permitted under, or otherwise given in connection with, this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered or sent if delivered in Person or sent by facsimile transmission (provided confirmation of facsimile transmission is obtained), (b) on the fifth Business Day after dispatch by registered or certified mail, (c) on the next Business Day if transmitted by national overnight courier or (d) on the date delivered if sent by email (provided confirmation of email receipt is obtained), in each case, as follows (or to such other Persons or addressees as may be designated in writing by the party to receive such notice):

 

if to Parent, to:

 

c/o Castle Creek Pharmaceuticals, LLC

6 Century Drive, 2nd Floor

 

12


 

Parsippany, New Jersey 07054

Attn: Greg Wujek

 

with a copy (which shall not constitute notice) to:

 

Latham & Watkins LLP

330 North Wabash Avenue, Chicago, IL 60611

Tel:  (312) 876-7700

Fax:  312-993-9767

 

Attention:  Mark Gerstein

Zachary Judd

 

Email:  Mark.Gerstein@lw.com

Zachary.Judd@lw.com

 

If to the Securityholders: to the Securityholders’ address for notice set forth on Schedule I attached hereto

 

(m)                             Counterparts.  This Agreement may be signed in any number of counterparts, including by facsimile or other electronic transmission each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.  This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by all of the other parties hereto.  Until and unless each party has received a counterpart hereof signed by the other party hereto, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication).  The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission in PDF format or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.

 

(n)                                 Interpretation.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”  As used in this Agreement, the words “hereof,” “herein,” “hereby,” “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  All terms defined in this Agreement shall have the defined meanings when used in any document made or delivered pursuant hereto unless otherwise defined therein.  For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall

 

13


 

include masculine and feminine genders.  Any agreement, instrument or statute defined or referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, unless otherwise specifically indicated, including (in the case of agreements or instruments) by valid waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein.  References to a Person are also to its permitted assigns and successors.

 

(o)                                 Other Agreements. Notwithstanding anything to the contrary herein, including Section 12, nothing in this Agreement shall limit, expand or otherwise modify or amend either Channel Collaboration Agreement or modify the rights and obligations of each party to each Channel Collaboration Agreement.  The terms of Section 12 shall not be deemed a release of any claims related to either Channel Collaboration Agreement.

 

[Remainder of page intentionally left blank]

 

14


 

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.

 

CASTLE CREEK PHARMACEUTICAL HOLDINGS, INC.

 

By:

/s/ Greg Wujek

 

Name:

Greg Wujek

 

Title:

Chief Executive Officer

 

 

[Signature Page to Consent and Termination Agreement]

 


 

 

COMPANY:

 

 

 

FIBROCELL SCIENCE, INC.

 

 

 

 

By:

/s/ John M. Maslowski

 

 

Name: John M. Maslowski

 

 

Title:  President and Chief Executive Officer

 

[Signature Page to Consent and Termination Agreement]

 


 

 

MERGER SUB:

 

 

 

CASTLE CREEK MERGER CORP.

 

 

 

 

 

 

 

By:

/s/ Babar Ghias

 

 

Name: Babar Ghias

 

 

Title: President and Treasurer

 

[Signature Page to Consent and Termination Agreement]

 


 

 

SECURITYHOLDERS:

 

 

 

 

 

NRM VII HOLDINGS I, LLC

 

 

 

 

By:

/s/ Randal J. Kirk

 

 

Name:

Randal J. Kirk

 

 

Title:

Manager, Third Security, LLC, which is the Manager, Third Security Capital Partners VII, LLC, which is the Manager of NRM VII Holdings I, LLC

 

 

 

 

INTREXON CORPORATION

 

 

 

 

By:

/s/ Randal J. Kirk

 

 

Name:

Randal J. Kirk

 

 

Title:

Chairman and Chief Executive Officer

 

 

 

 

KAPITAL JOE, LLC

 

 

 

 

By:

/s/ Randal J. Kirk

 

 

Name:

Randal J. Kirk

 

 

Title:

Manager, Third Security, LLC, which is the Manager of Kapital Joe, LLC

 

 

 

 

MASCARA KABOOM, LLC

 

 

 

 

By:

/s/ Randal J. Kirk

 

 

Name:

Randal J. Kirk

 

 

Title:

Manager, Third Security, LLC, which is the Manager of Mascara Kaboom, LLC

 

[Signature Page to Consent and Termination Agreement]

 


 

Schedule I

 

Name

 

Shares
of
Preferred
Stock

 

Company
Warrants

 

Address

 

Intrexon Corporation

 

1,161

 

99,769

 

20374 Seneca Meadows Parkway, Germantown, MD 20876

 

NRM VII Holdings I, LLC

 

1,746

 

150,040

 

1881 Grove Avenue, Radford, VA 24141

 

Kapital Joe, LLC

 

106

 

9,109

 

1881 Grove Avenue, Radford, VA 24141

 

Mascara Kaboom, LLC

 

3

 

258

 

1881 Grove Avenue, Radford, VA 24141

 

TOTAL

 

3,016

 

259,176

 

 

 

 




Exhibit 10.2

 

CONSENT AND TERMINATION AGREEMENT

 

THIS CONSENT AND TERMINATION AGREEMENT (hereinafter referred to as this “Agreement”) is made and entered into as of September 12, 2019 by and among Castle Creek Pharmaceutical Holdings, Inc., a Delaware corporation (“Parent”), Fibrocell Science, Inc., a Delaware corporation (the “Company”), MSD Credit Opportunity Master Fund, L.P., a Cayman exempt limited partnership (the “Securityholder”), and Castle Creek Merger Corp., a Delaware corporation (“Merger Sub”).

 

WHEREAS, the Company has issued 8,000 shares of Series A Convertible Preferred Stock, par value $0.001 per share, of the Company (the “Preferred Stock”), and related warrants (the “Company Warrants”) pursuant to that certain Securities Purchase Agreement dated as of March 7, 2017 (the “Securities Purchase Agreement”), by and among the Company and the Holders;

 

WHEREAS, concurrently with the execution of this Agreement, the Company, Parent and Merger Sub, have entered into an Agreement and Plan of Merger (as amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), dated as of the date hereof, pursuant to which Merger Sub will be merged with and into the Company (the “Merger”), with the Company being the surviving entity of such Merger and a wholly owned subsidiary of Parent on the terms, and subject to the conditions, set forth in the Merger Agreement;

 

WHEREAS, as of the date hereof, the Securityholder is the beneficial owner (for purposes of this Agreement, “beneficial owner” (including “beneficially own” and other correlative terms) shall have the meaning set forth in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) of the number of Company Warrants and shares of Preferred Stock set forth on Schedule I hereto (such Equity Interests, the “Subject Securities”); and

 

WHEREAS, as a condition to and as an inducement to Parent’s and Merger Sub’s willingness to enter into the Merger Agreement, the Securityholder has agreed to enter into this Agreement, to cause the conversion of their shares of Preferred Stock as contemplated by the Merger Agreement and in accordance with the terms of the Certificate of Designation and to cancel their Company Warrants as contemplated by the Merger Agreement and in accordance with the terms of the applicable Company Warrants.

 

WHEREAS, Section 5.4 of the Securities Purchase Agreement provides that any provision of the Securities Purchase Agreement may be amended with the written consent of the Company and the Required Purchasers;

 

WHEREAS, the Company and the Securityholder (together with other holders of Preferred Stock and Company Warrants executing agreements substantially similar to this Agreement with respect to the Termination (as defined below) constituting all of the parties (including as successors by assignment) to the Transaction Documents (as defined in the Securities Purchase Agreement) desire to terminate the Securities Purchase Agreement in its entirety upon consummation of the Merger (the “Termination”); and

 


 

WHEREAS, in connection with and as consideration for the Termination, Merger Sub desires to issue a promissory note substantially in the form attached hereto as Exhibit A (the “Note”) to the Securityholder in the principal amount described below.

 

NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

 

SECTION 1.                            Certain Definitions.  Capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.  For all purposes of and under this Agreement, the following terms shall have the following respective meanings:

 

(a)                                 Constructive Sale” shall mean, with respect to any Subject Security, a short sale with respect to such Subject Securities, entering into or acquiring an offsetting derivative contract with respect to such Subject Securities, entering into or acquiring a future or forward contract to deliver such Subject Securities, or entering into any other hedging or other derivative transaction that has the effect of either directly or indirectly materially changing the economic benefits or risks of ownership of such Subject Securities.

 

(b)                                 Conversion Amount” shall mean, with respect to a share of Preferred Stock, an amount equal to: (i) the number of Company Shares such share of Preferred Stock is entitled to be converted into pursuant to the Certificate of Designation, based on the “Stated Value” of such share of Preferred Stock (each issued and outstanding share of Preferred Stock having a Stated Value as of the date hereof of $1,105 (as may be adjusted prior to the Effective Time in accordance with the Certificate of Designation, including by virtue of the dividend continuing to accrue until the Effective Time in accordance with the Certificate of Designation)) and assuming a “Conversion Price” (as defined in the Certificate of Designation) of $11.6355 (as may be adjusted prior to the Effective Time in accordance with the Certificate of Designation), multiplied by (ii) the Merger Consideration.

 

(c)                                  Expiration Date” shall mean the earliest to occur of (i) such date and time after the Effective Time at which all of the Subject Securities shall have been converted or otherwise terminated or cancelled, and the Securityholder no longer has any right or claim of ownership over any Subject Security or other Equity Interests of the Company or the Surviving Corporation, (ii) such date and time as the Merger Agreement shall be properly terminated pursuant to Article VII of the Merger Agreement, (iii) any amendment to the terms of the Merger Agreement that (A) reduces the amount or value of, or changes the type of, consideration payable to the Securityholder in respect of any of their Subject Securities, (B) imposes any material restrictions on or additional conditions on the payment of the consideration payable to the Securityholder in respect of any of the Subject Securities, except, in the case of (B), as may be required by law, stock exchange rule or other regulation, or the interpretation thereof by any Governmental Entity with proper jurisdiction, or (C) extends the Outside Date beyond April 12, 2020

 

2


 

and (iv) the mutual written agreement of each of the parties hereto to terminate this Agreement.

 

(d)                                 Transfer” shall mean, with respect to any Subject Security, the direct or indirect assignment, sale, transfer, tender (into a tender offer, exchange offer or otherwise), pledge, hypothecation, or the grant, creation or suffrage of a Lien upon, or the gift, placement in trust, or the Constructive Sale or other disposition (including by merger or any other conversion into securities or other consideration) of such Subject Securities (including transfers by testamentary or intestate succession or otherwise by operation of Law) or any right, title or interest therein (including any right or power to vote to which the holder thereof may be entitled, whether such right or power is granted by proxy or otherwise), or any change in the record or beneficial ownership of such Subject Securities, and any agreement, arrangement or understanding, whether or not in writing, to effect any of the foregoing.

 

SECTION 2.                            Consent for Amendment and Related Matters.

 

(a)                                 Termination of the Securities Purchase Agreement. Pursuant to Section 5.4 of the Securities Purchase Agreement, the Securityholder and the Company hereby agree that effective immediately prior to consummation of the Merger and without any further action on the part of the parties hereto, the Securities Purchase Agreement shall be deemed terminated and of no further force or effect.

 

(b)                                 Consent Fee. Subject to the terms and conditions of this Agreement, as consideration for the consent of the Securityholder to the Termination, Merger Sub hereby agrees to, immediately prior to consummation of the Merger, to issue and deliver to the Securityholder the Note in the principal amount equal to the aggregate amount of all of the Conversion Amounts which the Securityholder is entitled to receive in connection with the conversion of the shares of Preferred Stock held by the Securityholder and converted in accordance with  the terms of the Merger Agreement and this Agreement.

 

SECTION 3.                            Transfer of Subject Securities or Voting Rights.

 

(a)                                 Transfer of Subject Securities.  Except as otherwise permitted by this Agreement or the Merger Agreement, the Securityholder hereby agrees that at all times during the period commencing on the date hereof until the Expiration Date, the Securityholder shall not (i) cause or permit, or commit or agree to cause or permit, any Transfer of any of the Subject Securities or (ii) take any other action that would in any way delay, restrict, limit or interfere with the performance of the Securityholder’s obligations hereunder; provided, however, this Section (2)(a) shall not prohibit (A) a Transfer of any of the Subject Securities to any person, so long as the assignee or transferee agrees to be bound by the terms of this Agreement and executes and delivers to the parties hereto a written consent and joinder memorializing such agreement in form and substance reasonably satisfactory to Parent or (B) any direct or indirect Transfer of the Subject Shares

 

3


 

(or beneficial or economic interest in any Subject Shares) by Transfer of any equity interests of the Securityholder or any parent entity of the Securityholder, provided that the Securityholder remains directly or indirectly wholly-controlled by MSD Partners, L.P. or its affiliates; provided further, that no such Transfer shall relieve the Securityholder from its obligations under this Agreement, other than with respect to those Subject Securities transferred in accordance with the foregoing provision (it being understood, for the avoidance of doubt, that such transferring Securityholder shall continue to be bound by the covenants and obligations set forth in Section 9, Section 11 and Section 13 hereof).

 

(b)                                 Any Transfer or other action taken or effected in violation of this Section 3 shall, to the fullest extent permitted by Law, be void ab initio and of no force or effect, and the Company may decline to give effect to such transfer in its books and records and those of its agents.

 

SECTION 4.                            No Ownership Interest.  Nothing contained in this Agreement shall be deemed to vest in Parent any direct or indirect ownership or incidence of ownership of, or with respect to, any Subject Security.  All rights, ownership and economic benefits of and relating to the Subject Securities shall remain vested in and belong to the Securityholder, and this Agreement shall not confer any right, power or authority upon Parent or any other Person to direct the Securityholder in the voting of any of the Subject Securities, except as otherwise specifically provided herein.

 

SECTION 5.                            Treatment of Securities.

 

(a)                                 Preferred Stock.

 

(i)                                     In the event that, immediately prior to the Effective Time, the Securityholder is the beneficial owner of shares of Preferred Stock, the Securityholder hereby irrevocably agrees that at and after the Effective Time, each such share of Preferred Stock shall, in accordance with the terms of the Certificate of Designation and the Merger Agreement, thereafter represent only the right to receive an amount in cash, without interest, equal to the Conversion Amount with respect to such share of Preferred Stock, subject to any withholding of Taxes required by applicable Law, upon delivery of a Notice of Conversion in accordance with Section 2.2 of the Merger Agreement and Section 6(a) of the Certificate of Designation.

 

(ii)                                  The Securityholder shall, within ten (10) calendar days from the date hereof, execute (or cause the holder of record to execute) and deliver to the Company a Notice of Conversion electing to convert each share of Preferred Stock beneficially owned by the Securityholder into the right to receive the Conversion Amount and all shares of Preferred Stock shall forthwith be cancelled, in each case in accordance with the Certificate of Designation and the Merger Agreement.

 

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(iii)                               The parties hereto acknowledge and agree that the effectiveness of a Notice of Conversion may be conditioned upon the consummation of the Merger.

 

(b)                                 Warrants.

 

(i)                                     The Securityholder hereby agrees that each Company Warrant shall terminate at the Effective Time and be cancelled and shall be entitled to receive no consideration or securities of any kind. The Securityholder further agrees that any such Company Warrant shall thereafter cease to be binding upon the Company and the Surviving Corporation, and none of the Company, the Surviving Corporation or any of their affiliates shall have any further obligations with respect thereto.

 

SECTION 6.                            Additional Agreements.

 

(a)                                 No Appraisal or Other Claims.  The Securityholder (i) knowingly, voluntarily, intentionally, unconditionally and irrevocably waives and agrees not to exercise any rights (including, without limitation, under Section 262 of the Delaware General Corporation Law) to demand appraisal of any of the Subject Securities or any other Equity Interests of the Company held by the Securityholder or rights to dissent from the Merger that the Securityholder may have (collectively, “Appraisal Rights”) or to receive notice of any right to seek Appraisal Rights in connection with the Merger; (ii) agrees not to commence, participate in or voluntarily aid in any way any claim or proceeding to seek (or file any petition related to) Appraisal Rights in connection with the Merger; and (iii) agrees not to commence, participate in or voluntarily aid in any way, and will take all actions necessary to opt out of, any class in any class action with respect to, any claim, derivative or otherwise, against Parent, Merger Sub, the Company or any of their respective representatives or successors relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the consummation of the Merger, including any claim (x) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or the Merger Agreement, (y) alleging a breach of any fiduciary duty of the Company Board in connection with the Merger Agreement or the transactions contemplated thereby, (z) making any claim with respect to SEC disclosures in connection with the Merger Agreement or the transaction; provided, that the foregoing covenants shall not be deemed a consent to or waiver of any rights of the Securityholder for any breach of this Agreement or the Merger Agreement.

 

(b)                                 Communications.  Unless required by applicable Law or legal process, the Securityholder shall not, and shall cause its representatives not to, make any press release or other public announcement with respect to this Agreement and the Merger Agreement and the transactions contemplated hereby and thereby, without the prior written consent of Parent.

 

5


 

SECTION 7.                            Representations, Warranties and Other Agreements of Securityholder.  The Securityholder hereby represents and warrants to Parent as of the date hereof and, as applicable, covenants, that:

 

(a)                                 (i) the Securityholder is the beneficial owner of, and has good, valid and marketable title to, the Subject Securities set forth opposite its name on Schedule I, (ii) the Securityholder has sole voting power, and sole power of disposition, with respect to all of its Subject Securities, (iii) the Subject Securities are free and clear of all Liens, other than any Liens created by this Agreement, the underlying agreements pursuant to which such shares were issued or as imposed by applicable securities Laws, or that will otherwise be discharged at or prior to the Effective Time and will not impact the Securityholder’s obligations under this Agreement and (iv) the Securityholder has not appointed or granted any proxy inconsistent with this Agreement, which appointment or grant is still effective, with respect to the Subject Securities.

 

(b)                                 the Securityholder is an exempted limited partnership duly organized and validly existing in good standing under the laws of the Cayman Islands and has full power and authority to make, enter into and carry out the terms of this Agreement applicable to the Securityholder;

 

(c)                                  as of the date hereof, there is no Proceeding pending or, to the knowledge of the Securityholder, threatened against the Securityholder at law or in equity before or by any Governmental Entity that would reasonably be expected to impair or delay the ability of the Securityholder to perform its obligations hereunder or consummate the transactions contemplated hereby;

 

(d)                                 the execution and delivery of this Agreement by the Securityholder does not, and the performance of this Agreement by the Securityholder will not, result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation, modification or acceleration) (whether after the giving of notice of or the passage of time or both) under any applicable Law, any of the Securityholder’s certificate of incorporation, bylaws or equivalent governing documents or any contract to which the Securityholder is a party or which is binding on the Securityholder or the Subject Securities, and will not result in the creation of any Lien on any of the Subject Securities;

 

(e)                                  this Agreement has been duly executed by the Securityholder and constitutes the valid and legally binding obligation of the Securityholder, enforceable against the Securityholder in accordance with its terms, except that such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity, whether considered in a proceeding at law or in equity;

 

6


 

(f)                                   the execution and delivery of this Agreement by the Securityholder does not, and the performance of this Agreement by the Securityholder will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity by the Securityholder, (i) except for any applicable requirements, if any, of the Exchange Act, and (ii) except where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not prevent or delay the performance by the Securityholder of the Securityholder’s obligations under this Agreement in any material respect;

 

(g)                                  the Securityholder has not employed any investment banker, broker, financial advisor, finder or other intermediary in connection with the transactions contemplated by this Agreement which would be entitled to any investment banking, brokerage, finder’s, financial advisory or similar fee or commission in connection with this Agreement or the transactions contemplated hereby;

 

(h)                                 the Securityholder agrees that, in the event of any stock split, stock dividend or distribution, or any change in the Subject Securities by reason of any split-up, reverse stock split, recapitalization, combination, reclassification, exchange of shares or the like, the term “Subject Securities”  shall be deemed to refer to and include such Subject Securities as well as all shares distributed in such stock dividends and distributions and any securities into which or for which any or all of such Subject Securities may be changed or exchanged or which are received in such transaction, and the Securityholder agrees, while this Agreement is in effect, to as promptly as practicable notify Parent of the number of any new Subject Securities, if any, acquired by the Securityholder or any of its controlled affiliates after the date hereof;

 

(i)                                     the Securityholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Securityholder’s execution and delivery of this Agreement and the representations and warranties of the Securityholder contained herein; and

 

(j)                                    the Securityholder was validly assigned the rights and obligations of MSD Partners, L.P. under the Securities Purchase Agreement pursuant to Section 5.6 thereof.

 

SECTION 8.                            Representations, Warranties and Other Agreements of Merger Sub.  Merger Sub hereby represents and warrants to the Securityholder as of the date hereof that none of Parent, Merger Sub or any subsidiary of Parent beneficially owns any shares of common stock, par value $0.001 per share, of the Company as of the date hereof.  Merger Sub represents and warrants that the other holders of Subject Securities have executed an agreement with Merger Sub with respect to the Subject Securities with terms no more favorable to such holders than the terms set forth in this Agreement, and Merger Sub shall not amend such agreement in a manner more favorable in any material respect to such other holders without also offering to make a similar amendment to this Agreement.

 

7


 

SECTION 9.                            Consent.  The Securityholder consents to and authorizes the Company, Parent and their respective affiliates to (and Parent authorizes the Securityholder to) (a) publish and disclose in the Proxy Statement, any Schedule TO or related materials filed in connection with an offer, any current report of the Company on Form 8-K and any other documents required to be filed with the SEC or any government or regulatory authority in connection with the Merger Agreement, the Securityholder’s identity and ownership of Subject Securities and the nature of the Securityholder’s commitments, arrangements and understandings under this Agreement and (b) file this Agreement as an exhibit to the extent required to be filed with the SEC or any regulatory authority relating to the Merger.

 

SECTION 10.                     Termination.  Notwithstanding anything to the contrary provided herein, this Agreement and any undertaking or waiver granted by the Securityholder hereunder automatically shall terminate and be of no further force or effect and the Securityholder shall not be entitled to the Note as of the Expiration Date; provided that (i) Section 13 and, if the Merger is consummated, Section 6, and Section 11 shall survive any termination or expiration of this Agreement, (ii) any such termination shall not relieve any party from liability for any willful and material Breach of its obligations hereunder prior to such termination or relieve any party from completing any obligation hereunder that arose in connection with the consummation of the transactions contemplated here, and (iii) each party will be entitled to any remedies at law or in equity to recover its losses arising from any such pre-termination breach.

 

SECTION 11.                     Release.  Effective as of the Closing, other than with respect to the Note, the Company’s obligations under this Agreement, the Merger Agreement and the Company Securityholder Voting and Support Agreement, dated as of the date hereof, by and between Parent and the Securyityholder (the “Voting Agreement”), and the Company’s obligations to pay the consideration for the Subject Securities (as defined herein and in the Voting Agreement) as contemplated by the Merger Agreement, the Securityholder hereby (i) fully and unconditionally releases, acquits and forever discharges the Parent and its Subsidiaries and Company and its Subsidiaries and each of their respective past, present and future successors, predecessors, assigns, employees, agents, partners, members, subsidiaries, equityholders, parent companies, controlling Persons, other affiliates (corporate or otherwise) and legal representatives, including its past, present and future officers and directors, solely in their capacities as such, and any past, present and future successors, predecessors, assigns, employees, agents, partners, members, subsidiaries, equityholders, parent companies, controlling Persons, other affiliates (corporate or otherwise) and legal representatives, including past, present and future officers and directors of any of the foregoing, solely in their capacities as such (together, the “Released Parties”), from any and all manner of actions, causes of actions, claims, debts, obligations, demands, liabilities, damages, costs, losses, expenses (including attorneys’ and other professional fees and expenses), compensation or other relief, whether known or unknown, matured or unmatured, contingent or otherwise, whether in law or equity, arising out of, relating to, accruing from or in connection with, (a) the Securityholder’s ownership and acquisition of Subject Securities and/or other Equity Interests (including for the avoidance of doubt, any warrants to purchase common stock and convertible promissory notes) in the Company or any of its Subsidiaries (including

 

8


 

for the avoidance of doubt, all claims against the Company and its current and former directors and officers arising out of the Securityholder’s acquisition and ownership of the Subject Securities), (b) the Merger, any provision of the Merger Agreement or the transactions contemplated thereby (other than with respect to such Released Party’s respective rights under the Merger Agreement), (c) any appraisal rights or rights to dissent from the Merger, or (d) any claims alleging a breach of duty on the part of the Company or any officer, director or equityholder of the Company prior to the Closing Date (any and all claims of whatever kind or character, known or unknown described in clauses (a) through (d), collectively, “Released Claims”), and agrees not to commence or participate in, and to take all actions necessary to opt out of any class in, any class action with respect to any Released Claims and (ii) agrees to remit any damages or other payments received in relation to any claims, settlements or adjudications related to any Released Claims arising out of, relating to, accruing from or in connection with the Exchange Act or the Securities Act of 1933.  For the avoidance of doubt, nothing in this paragraph shall affect any right to indemnification or advancement of expenses in favor of, or limitation of liability of, a current or former director of the Company or any of its Subsidiaries.  It is the intention of the parties that this Agreement shall, at the Effective Time, be effective as a full and final accord and satisfaction, and release of the Released Claims.  For the avoidance of doubt, in the event any Subject Securities or other Equity Interests of the Company held by Securityholder have not been converted, repurchased, tendered, redeemed or cancelled in accordance with this Agreement, the Merger Agreement or any tender offer commenced by Parent or the Company, the Released Claims shall not include any claims by any Securityholder for the right to receive the amounts contemplated hereby, in the Merger Agreement or any tender offer commenced by Parent or the Company in exchange for such Subject Securities or other Equity Interests.

 

SECTION 12.                     Further Assurances.  Each of the parties hereto shall execute and deliver any additional certificate, instruments and other documents, and take any additional actions, as any other party reasonably may deem necessary or appropriate to carry out and effectuate the purpose and intent of this Agreement.

 

SECTION 13.                     Miscellaneous.

 

(a)                                 Expenses.  All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.

 

(b)                                 Waiver.  Except as provided in this Agreement, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of any other party’s obligations to comply with its representations, warranties, covenants and agreements contained in this Agreement.  The waiver by any party hereto of a breach of any provision hereunder (or any delay in asserting any such breach) shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other provision hereunder or in any other context. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.

 

9


 

(c)                                  Severability.  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

 

(d)                                 Assignment; Benefit.  Except as expressly permitted by the terms hereof, no party may assign this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of each other party hereto, except that Parent may assign its rights, interest, or obligations hereunder to any of its affiliates so long as Parent continues to remain primarily liable for all such rights, interest, and obligations.  Any attempted assignment without such prior written approval shall be void.  Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.  This Agreement is not intended to, and shall not be deemed to, confer on any Person other than the parties hereto or their respective heirs, successors, executors, administrators and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, or to create any agreement of employment with any Person or otherwise create any third party beneficiary hereto.

 

(e)                                  Amendments.  This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by each of the parties hereto.

 

(f)                                   Specific Performance; Injunctive Relief.  The parties agree that irreparable damage would occur to Parent in the event that any provision of this Agreement were not performed by the Securityholder in accordance with the specific terms hereof, and that Parent shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which Parent is entitled at law or in equity.  The Securityholder agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief to enforce the covenants and obligations contained herein on the basis that Parent has an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity and Parent shall not be required to post a bond or other security in connection with any such order or injunction.

 

(g)                                  Governing Law.  This Agreement and all claims and causes of action based upon, arising out of or in connection herewith shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without regard to Laws that

 

10


 

may be applicable under conflicts of laws principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.

 

(h)                                 Jurisdiction and Venue.  Each of the parties hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, if such Court does not have jurisdiction, any Delaware State court, or Federal court of the United States of America, sitting in Delaware, and any appellate court from any thereof, in any Proceeding arising out of or relating to this Agreement or the transactions contemplated hereby or for recognition or enforcement of any judgment relating thereto, and each of the parties hereby irrevocably and unconditionally (i) agrees not to commence any such Proceeding except in such courts, (ii) agrees that any claim in respect of any such Proceeding may be heard and determined in such court, (iii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such Proceeding in any such court, and (iv) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such Proceeding in any such court.  Each of the parties agrees that a final judgment in any such Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.  Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 16(l).  Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by Law.

 

(i)                                     Waiver of Trial by Jury.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 16(i).

 

(j)                                    No Agreement Until Transaction Documents Executed.  Irrespective of negotiations among the parties or the exchanging of drafts of this Agreement, this Agreement shall not constitute, or be deemed to evidence, a contract, agreement,

 

11


 

arrangement or understanding between the parties hereto unless (i) the Merger Agreement is executed and delivered by all parties thereto and (ii) this Agreement is executed and delivered by all parties hereto.

 

(k)                                 Limitation on Recourse.  Section 7.5 of the Merger Agreement shall apply to this Agreement mutatis mutandis.

 

(l)                                     Notices.  Any notices or other communications required or permitted under, or otherwise given in connection with, this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered or sent if delivered in Person or sent by facsimile transmission (provided confirmation of facsimile transmission is obtained), (b) on the fifth Business Day after dispatch by registered or certified mail, (c) on the next Business Day if transmitted by national overnight courier or (d) on the date delivered if sent by email (provided confirmation of email receipt is obtained), in each case, as follows (or to such other Persons or addressees as may be designated in writing by the party to receive such notice):

 

if to Parent, to:

 

c/o Castle Creek Pharmaceuticals, LLC

6 Century Drive, 2nd Floor

Parsippany, New Jersey 07054

Attn: Greg Wujek

 

with a copy (which shall not constitute notice) to:

 

Latham & Watkins LLP

330 North Wabash Avenue, Chicago, IL 60611

Tel:  (312) 876-7700

Fax:  312-993-9767

 

Attention:  Mark Gerstein

Zachary Judd

 

Email:  Mark.Gerstein@lw.com

Zachary.Judd@lw.com

 

If to the Securityholder: to the Securityholder’s address for notice set forth on Schedule I attached hereto:

 

(m)                             Counterparts.  This Agreement may be signed in any number of counterparts, including by facsimile or other electronic transmission each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.  This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by all of the other parties hereto.  Until and unless each party has received a counterpart hereof signed by the other party hereto, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement

 

12


 

or other communication).  The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission in PDF format or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.

 

(n)                                 Interpretation.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”  As used in this Agreement, the words “hereof,” “herein,” “hereby,” “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  All terms defined in this Agreement shall have the defined meanings when used in any document made or delivered pursuant hereto unless otherwise defined therein.  For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.  Any agreement, instrument or statute defined or referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, unless otherwise specifically indicated, including (in the case of agreements or instruments) by valid waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein.  References to a Person are also to its permitted assigns and successors.

 

[Remainder of page intentionally left blank]

 

13


 

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.

 

CASTLE CREEK PHARMACEUTICAL HOLDINGS, INC.

 

By:

/s/ Greg Wujek

 

Name:

Greg Wujek

 

Title:

Chief Executive Officer

 

 

[Signature Page to Consent and Termination Agreement]

 


 

 

COMPANY:

 

 

 

FIBROCELL SCIENCE, INC.

 

 

 

 

By:

/s/ John M. Maslowski

 

 

Name: John M. Maslowski

 

 

Title: President and Chief Executive Officer

 

[Signature Page to Consent and Termination Agreement]

 


 

 

MERGER SUB:

 

 

 

CASTLE CREEK MERGER CORP.

 

 

 

 

 

 

 

By:

/s/ Babar Ghias

 

 

Name: Babar Ghias

 

 

Title: President and Treasurer

 

[Signature Page to Consent and Termination Agreement]

 


 

 

SECURITYHOLDER:

 

 

 

 

 

MSD CREDIT OPPORTUNITY MASTER FUND, L.P.

 

 

 

 

By:

/s/ Marcello Liguori

 

 

Name: Marcello Liguori

 

 

Title: Managing Director

 

 

Date:

 

[Signature Page to Consent and Termination Agreement]

 


 

Schedule I

 

Name

 

Shares of
Preferred
Stock

 

Company
Warrants

 

Address

 

MSD Credit Opportunity Master Fund, L.P

 

4,984

 

428,292

 

645 Fifth Ave., 21st Floor New York, NY 10022

 

TOTAL

 

 

 

 

 

 

 

 




Exhibit 99.1

 

COMPANY SECURITYHOLDER VOTING AND SUPPORT AGREEMENT

 

THIS COMPANY SECURITYHOLDER VOTING AND SUPPORT AGREEMENT (hereinafter referred to as this “Agreement”) is made and entered into as of September 12, 2019 by and between Castle Creek Pharmaceutical Holdings, Inc., a Delaware corporation (“Parent”), on the one hand, and the undersigned securityholders (collectively, the “Securityholders” and each individually, a “Securityholder”) of Fibrocell Science, Inc., a Delaware corporation (the “Company”), on the other hand.

 

WHEREAS, concurrently with the execution of this Agreement, the Company, Parent and Castle Creek Merger Corp., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), have entered into an Agreement and Plan of Merger (as amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), dated as of the date hereof, pursuant to which Merger Sub will be merged with and into the Company (the “Merger”), with the Company being the surviving entity of such Merger and a wholly owned subsidiary of Parent on the terms, and subject to the conditions, set forth in the Merger Agreement;

 

WHEREAS, as of the date hereof, the Securityholders are the beneficial owners (for purposes of this Agreement, “beneficial owner” (including “beneficially own” and other correlative terms) shall have the meaning set forth in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) of the number of Company Shares (as defined in the Merger Agreement) set forth opposite such Securityholder’s name on Schedule I hereto ((such Company Shares, together with any Equity Interests (as defined in the Merger Agreement) of the Company, the power to dispose of or the voting power over which is acquired by the Securityholder during the period from and including the date hereof through and including the Expiration Date (as defined below) (including, for the avoidance of doubt, any Company Shares resulting from the conversion of any other Subject Securities), collectively, the “Subject Shares”));

 

WHEREAS, as of the date hereof, the Securityholders are the beneficial owners of the number of Convertible Notes and Company Warrants (in each case as defined below) set forth opposite such Securityholder’s name on Schedule I hereto (such Equity Interests, together with the Subject Shares, the “Subject Securities”); and

 

WHEREAS, as a condition to and as an inducement to Parent’s and Merger Sub’s willingness to enter into the Merger Agreement, the Securityholders have agreed to enter into this Agreement, to vote their Subject Shares as described herein, to exercise or cause to be repurchased their Company Warrants as contemplated by the Merger Agreement and in accordance with the terms of the applicable Common Stock Purchase Warrants, and to tender their Convertible Notes as described herein.

 

NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

 


 

SECTION 1.                            Certain Definitions.  Capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.  For all purposes of and under this Agreement, the following terms shall have the following respective meanings:

 

(a)                                 Black-Scholes Value” shall (i) with respect to the Common Stock Purchase Warrants issued by the Company on December 11, 2017, May 31, 2018 and July 5, 2018, and the Placement Agent Common Stock Purchase Warrants issued by the Company on May 31, 2018 and July 5, 2018, have the meaning ascribed to such term in such warrant and (ii) with respect to the warrants issued pursuant to that certain Agreement for the Purchase and Sale of Convertible Debt and Common Stock Warrants dated August 9, 2016, by and among the Company and the other parties signatory thereto, mean the option value of such warrant using Black-Scholes calculation methods and making the assumptions described in the Black-Scholes methodology described in Exhibit A thereof.

 

(b)                                 Constructive Sale” shall mean, with respect to any Subject Security, a short sale with respect to such Subject Securities, entering into or acquiring an offsetting derivative contract with respect to such Subject Securities, entering into or acquiring a future or forward contract to deliver such Subject Securities, or entering into any other hedging or other derivative transaction that has the effect of either directly or indirectly materially changing the economic benefits or risks of ownership of such Subject Securities.

 

(c)                                  Expiration Date” shall mean the earliest to occur of (i) such date and time after the Effective Time at which the Securityholders’ Subject Securities shall have been exercised, repurchased, tendered or otherwise terminated or cancelled, and such Securityholder no longer has any right or claim of ownership over any Subject Security or other Equity Interests of the Company or the Surviving Corporation, (ii) such date and time as the Merger Agreement shall be properly terminated pursuant to Article VII of the Merger Agreement, (iii) any amendment to the terms of the Merger Agreement that (A) reduces the amount or value of, or changes the type of, consideration payable to the Securityholders in respect of any of their Subject Securities or (B) imposes any material restrictions on or additional conditions on the payment of the consideration payable to the Securityholders in respect of any of their Subject Securities, except, in the case of (B), as may be required by law, stock exchange rule or other regulation, or the interpretation thereof by any Governmental Entity with proper jurisdiction, or (C) extends the Outside Date beyond April 12, 2020, and (iv) the mutual written agreement of each of the parties hereto to terminate this Agreement.

 

(d)                                 Transfer” shall mean, with respect to any Subject Security, the direct or indirect assignment, sale, transfer, tender (into a tender offer, exchange offer or otherwise), pledge, hypothecation, or the grant, creation or suffrage of a Lien upon, or the gift, placement in trust, or the Constructive Sale or other disposition (including by merger or any other conversion into securities or other consideration) of such Subject Securities (including transfers by testamentary or

 

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intestate succession or otherwise by operation of Law) or any right, title or interest therein (including any right or power to vote to which the holder thereof may be entitled, whether such right or power is granted by proxy or otherwise), or any change in the record or beneficial ownership of such Subject Securities, and any agreement, arrangement or understanding, whether or not in writing, to effect any of the foregoing.

 

SECTION 2.                            Transfer of Subject Securities or Voting Rights.

 

(a)                                 Transfer of Subject Securities.  Except as otherwise permitted by this Agreement or the Merger Agreement, each Securityholder hereby agrees that at all times during the period commencing on the date hereof until the Expiration Date, such Securityholder shall not (i) cause or permit, or commit or agree to cause or permit, any Transfer of any of such Securityholder’s Subject Securities or (ii) take any other action that would in any way delay, restrict, limit or interfere with the performance of the Securityholder’s obligations hereunder or the transactions contemplated hereby or by the Merger Agreement or any tender offer by Parent or the Company in respect of the Convertible Notes; provided, however, this Section (2)(a) shall not prohibit a Transfer of any of such Securityholder’s Subject Securities to any affiliate of such Securityholder, so long as the assignee or transferee agrees to be bound by the terms of this Agreement and executes and delivers to the parties hereto a written consent and joinder memorializing such agreement in form and substance reasonably satisfactory to Parent; provided further, that no such Transfer shall relieve the transferring Securityholder from its obligations under this Agreement, other than with respect to those Subject Securities transferred in accordance with the foregoing provision (it being understood, for the avoidance of doubt, that such transferring Securityholder shall continue to be bound by the covenants and obligations set forth in Section 7 hereof).

 

(b)                                 Transfer of Voting Rights.  Except as otherwise permitted by this Agreement or the Merger Agreement, each Securityholder hereby agrees that, at all times commencing on the date hereof until the Expiration Date, each Securityholder shall not deposit, or permit the deposit of, any of such Securityholder’s Subject Securities in a voting trust, grant any proxy or power of attorney in respect of such Securityholder’s Subject Securities, enter into any voting agreement or similar arrangement, commitment or understanding with respect to such Securityholder’s Subject Securities or otherwise commit any act that could restrict or affect such Securityholder’s legal power or right to vote, or exercise a written consent with respect to, the Subject Securities.

 

(c)                                  Any Transfer or other action taken or effected in violation of this Section 2 shall, to the fullest extent permitted by Law, be void ab initio and of no force or effect, and the Company may decline to give effect to such transfer in its books and records and those of its agents.

 

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SECTION 3.                            Agreement to Vote Shares.  Until the Expiration Date, at every meeting of Securityholders of the Company called with respect to any of the following, and at every adjournment or postponement thereof, and on every action or approval by written consent of stockholders of the Company with respect to any of the following, each Securityholder agrees that it shall, or shall cause the holder of record on any applicable record date to, (i) appear at such meeting or otherwise cause all Subject Shares to be counted as present thereat for purposes of calculating a quorum and (ii) vote the Subject Shares that such Securityholder is entitled to vote at any applicable regular or special meeting of the stockholders of the Company or deliver a written consent in respect of such Securityholder’s Subject Shares:

 

(a)                                 in favor of (i) adoption of the Merger Agreement and approval of the Merger, (ii) each of the actions contemplated by the Merger Agreement in respect of which approval of the Company’s stockholders is requested, and (iii) any proposal or action in respect of which approval of the Company’s stockholders is requested that could reasonably be expected to facilitate the Merger and the other transactions contemplated by the Merger Agreement and would not adversely impact the Securityholders rights under this Agreement and the Merger Agreement (including, for the avoidance of doubt, any proposal to adjourn or postpone such meeting of the Company’s stockholders in accordance with Section 5.4(b) of the Merger Agreement); and

 

(b)                                 against (i) any proposal or action that would constitute a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement or of the Securityholders under this Agreement or that reasonably would be expected to prevent, impede, frustrate, interfere with, delay beyond the Outside Date or materially and adversely affect the Merger or any of the other transactions contemplated by the Merger Agreement, (ii) any Acquisition Proposal or any proposal relating to an Acquisition Proposal, (iii) any stock purchase agreement or other agreement relating to a merger, consolidation, combination, sale, lease or transfer of a material amount of assets of the Company or any of its Subsidiaries, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any of its Subsidiaries (other than the Merger Agreement and the Merger), (iv) any change in the present capitalization or dividend policy of the Company or any amendment or other change to the Company Charter or Company Bylaws (other than by an amendment or change specified in the Merger Agreement) or (v) any proposal or action that would result in any of the conditions set forth in Article VI of the Merger Agreement not being fulfilled;

 

Prior to the Expiration Date, each Securityholder covenants it shall not take any action that would make any representation or warranty of such Securityholder contained in this Agreement untrue or incorrect or prevent or disable such Securityholder from performing any of its obligations under this Agreement.

 

Until the Expiration Date, in the event that any meeting of the stockholders of the Company is held with respect to any of the matters specified in Section 3(a) above (and at every adjournment or postponement thereof), each Securityholder covenants that it shall, or shall cause the holder of record of such Securityholder’s Subject Shares on each record date relevant to such

 

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a stockholder vote with respect to such specified matters to, appear at such meeting or otherwise cause such Securityholder’s Subject Shares that are eligible to be voted at such stockholder meeting to be counted as present thereat for purposes of establishing a quorum.

 

SECTION 4.                            No Ownership Interest.  Nothing contained in this Agreement shall be deemed to vest in Parent any direct or indirect ownership or incidence of ownership of, or with respect to, any Subject Security.  All rights, ownership and economic benefits of and relating to the Subject Securities shall remain vested in and belong to the Securityholders, and this Agreement shall not confer any right, power or authority upon Parent or any other Person (a) to direct the Securityholders in the voting of any of the Subject Securities, except as otherwise specifically provided herein, or (b) in the performance of any of the Securityholders’ duties or responsibilities as officers or directors, as applicable, of the Company.

 

SECTION 5.                            No Solicitation of Acquisition Proposals.

 

(a)                                 From and after the date hereof until the Expiration Date, each Securityholder shall not, and shall cause its affiliates and representatives not to, directly or indirectly, (i) initiate, solicit, knowingly facilitate or knowingly encourage any Acquisition Proposal or the making or submission thereof, (ii) engage in, continue or otherwise participate in any discussions or negotiations with a Third Party regarding any Acquisition Proposal or (iii) furnish or provide any nonpublic information in connection with any Acquisition Proposal; provided that, nothing in this Section 5(a) shall prohibit any Securityholder or its affiliates or representatives from informing any Third Party of the existence of the provisions contained in this Section 5(a).

 

(b)                                 From and after the date hereof until the Expiration Date, each Securityholder shall immediately cease and cause to be terminated any pending or ongoing discussions or negotiations with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal; provided that, nothing in this Section 5(b) shall prohibit any Securityholder or its affiliates or representatives from informing any Third Party of the existence of the provisions contained in this Section 5(b).

 

(c)                                  Each Securityholder shall notify Parent promptly (and in any event within 48 hours), orally and in writing, in the event that such Securityholder receives any Acquisition Proposal or an inquiry that could reasonably be expected to lead to any Acquisition Proposal, which notification shall include the terms of such Acquisition Proposal, the identity of the person making such Acquisition Proposal or inquiry which it may receive and such other items or information required by Section 5.3(c) of the Merger Agreement; provided, however, no Securityholder shall be required to provide such notice unless and to the extent that the Company would be required to provide notice to Parent pursuant to Section 5.3 of the Merger Agreement if such Acquisition Proposal or inquiry had been received by

 

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the Company at such time.  Such Securityholder shall keep Parent fully informed, on a current basis, of the status and terms of any such Acquisition Proposal or inquiry.

 

(d)                                 Any violation of the terms of this Section 5 by any Securityholder shall be deemed to be a material breach of this Agreement by such Securityholder.

 

SECTION 6.                            Treatment of Securities.

 

(a)                                 Warrants.

 

(i)                                     Each Securityholder that, immediately prior to the Effective Time, is the beneficial owner of (A) any warrants issued pursuant to that certain Agreement for the Purchase and Sale of Convertible Debt and Common Stock Warrants dated August 9, 2016, by and among the Company and the other parties signatory thereto or (B) the Common Stock Purchase Warrants issued by the Company on December 11, 2017 (collectively, the “Covered Black-Scholes Warrants”), such Securityholder hereby agrees that each such Covered Black-Scholes Warrant shall terminate at the Effective Time and be cancelled and shall be entitled to receive no consideration or securities of any kind and shall cease to be binding upon the Company and the Surviving Corporation, and none of the Company, the Surviving Corporation or any of their affiliates shall have any further obligations with respect thereto; other than that such Securityholder may notify the Company (or, after the Effective Date, the Surviving Corporation), by delivery thereto of the Repurchase Notice pursuant to Section 2.2(b)(iv) of the Merger Agreement and the terms of such Covered Black-Scholes Warrant within 30 days after the Warrant Repurchase Date, applicable to such Covered Black-Scholes Warrant, that such holder is exercising such Securityholder’s right to cause the Company to repurchase such Covered Black-Scholes Warrant from such Securityholder for the Black-Scholes Value of such warrant, in accordance with its terms and conditions, and the Surviving Corporation shall repurchase such warrants in accordance with their terms. In the event any Securityholder is the beneficial owner of any such Covered Black-Scholes Warrant, such Securityholder shall, within three (3) calendar days after the applicable Warrant Repurchase Date, execute and deliver to the Company a Repurchase Notice in the form set forth in such Covered Black-Scholes Warrant, and such Securityholder further agrees that upon receipt of the Black-Scholes Value in exchange for such Covered Black-Scholes Warrant, such Covered Black-Scholes Warrant shall thereafter cease to be binding upon the Company and the Surviving Corporation, and none of the Company, the Surviving Corporation or any of their affiliates shall have any further obligations with respect thereto.

 

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(ii)                                  The parties hereto acknowledge and agree that the effectiveness of a Repurchase Notice may be conditioned upon the consummation of the Merger.

 

(b)                                 Convertible Notes.

 

(i)                                     In the event that the Company or Parent commence a tender offer (the “Offer”) for all of the then-outstanding convertible promissory notes issued by the Company on September 7, 2016 pursuant to that certain Agreement for the Purchase and Sale of Convertible Debt and Common Stock Warrants dated August 9, 2016, by and among the Company and the other parties signatory thereto (the “Convertible Notes”), and the aggregate purchase price for each Convertible Note in such Offer is equal to the product of (A) the sum of (x) the outstanding aggregate Principal Amount (as defined in such Convertible Note) under such Convertible Note plus (y) the aggregate accrued and unpaid interest on such Notes (including Accrued Interest (as defined in such Convertible Note)) as of the date that is thirty (30) days following the Effective Time, to the extent unpaid, times (B) 1.01, then each Securityholder that is the beneficial owner of any such Convertible Notes (such owned Convertible Notes, the “Covered Convertible Notes”) hereby agrees that it shall tender, or cause to be tendered, its Covered Convertible Notes into such Offer promptly, and in any event no later than five (5) Business Days, following the commencement of the Offer, or if such Securityholder has not received the documents with respect to such Offer by such time, within three (3) Business Days following receipt of such documents but in any event prior to the expiration of such Offer, free and clear of all Liens.  Each such Securityholder further agrees that it will not withdraw the Covered Convertible Notes, or cause the Covered Convertible Notes to be withdrawn, from the Offer at any time other than on or after the Expiration Date or if any of the events in clause (ii) occur.

 

(ii)                                If the Offer is terminated or withdrawn by Parent or the Company, or the Merger Agreement is terminated prior to the acceptance for payment of the Covered Convertible Notes in the Offer or the terms of the Offer have been amended resulting in the reduction in the amount or value of, or changes to the type of, consideration payable to the Securityholders in the Offer, Parent or the Company, as applicable shall promptly return, and Parent shall cause any depository acting on its behalf to return, all the Covered Convertible Notes tendered by the Securityholders in the Offer to such Securityholders.

 

SECTION 7.                            Additional Agreements.

 

(a)                                 No Solicitation of Employees.  From the date of this Agreement until 18 months after the date of the Closing, each Securityholder and its affiliates shall not, and shall not knowingly cause any of the companies that are controlled by or invested in by such Securityholder or any of its affiliates (collectively, the “Covered

 

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Parties”), directly or indirectly, to solicit (other than through general advertisements or executive searches not specifically directed at the Company or any of its Subsidiaries or any of their successors or any of their respective employees) or hire, or attempt to solicit (other than through general advertisements or executive searches not specifically directed at the Company or any of its Subsidiaries or any of their respective employees) or hire, any executive management-level employees of the Company or any of its Subsidiaries (or any of their respective successors) with whom such Covered Party first came into contact with as a result of the applicable Securityholder’s ownership of Equity Interests of the Company or the Channel Collaboration Agreements, unless at the time of such solicitation or hiring, such Person had ceased to be an employee of the Company or any of its Subsidiaries (or any of their respective successors) for at least three (3) months prior to the time of such solicitation or hiring.

 

(b)                                 No Appraisal or Other Claims.  Each Securityholder (i) knowingly, voluntarily, intentionally, unconditionally and irrevocably waives and agrees not to exercise any rights (including, without limitation, under Section 262 of the Delaware General Corporation Law) to demand appraisal of any of the Subject Securities or rights to dissent from the Merger that such Securityholder may have (collectively, “Appraisal Rights”) or to receive notice of any right to seek Appraisal Rights in connection with the Merger; (ii) agrees not to commence, participate in or voluntarily aid in any way any claim or proceeding to seek (or file any petition related to) Appraisal Rights in connection with the Merger; and (iii) agrees not to commence, participate in or voluntarily aid in any way, and will take all actions necessary to opt out of, any class in any class action with respect to, any claim, derivative or otherwise, against Parent, Merger Sub, the Company or any of their respective representatives or successors relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the consummation of the Merger, including any claim (x) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or the Merger Agreement, (y) alleging a breach of any fiduciary duty of the Company Board in connection with the Merger Agreement or the transactions contemplated thereby, (z) making any claim with respect to SEC disclosures in connection with the Merger Agreement or the transaction; provided, that the foregoing covenants shall not be deemed a consent to or waiver of any rights of the Securityholder for any breach of this Agreement or the Merger Agreement.

 

(c)                                  Stop Transfer; Legends.  In furtherance of this Agreement, Securityholder agrees that it will use its reasonable efforts to cause the Company, as promptly as practicable after the date of this Agreement, to make a notation on its records and give instructions to the transfer agent for the Subject Securities not to permit, during the term of this Agreement, the Transfer of the Subject Securities.

 

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(d)                                 Communications.  Unless required by applicable Law, including the Exchange Act and the rules and regulations promulgated thereunder, or by the rules and regulations of the Nasdaq Global Select Market, Securityholder shall not, and shall cause its representatives not to, make any press release, public announcement or other communication with respect to the business or affairs of the Company, Parent or Merger Sub, including this Agreement and the Merger Agreement and the transactions contemplated hereby and thereby, without the prior written consent of Parent.  Each Securityholder hereby (i) consents to and authorizes the publication and disclosure by Parent, the Company and their respective affiliates and representatives of Securityholder’s identity and holding of Subject Securities, and the nature of Securityholder’s commitments, arrangements and understandings under this Agreement in any public disclosure document required by applicable Law in connection with the Merger or any other transactions contemplated by the Merger Agreement and (ii) Securityholder agrees as promptly as practicable to notify Parent of any required corrections with respect to any information supplied by Securityholder specifically for use in any such disclosure document.

 

SECTION 8.                            Confidentiality. Subject to Section 16(o) of this Agreement, from the date of this Agreement until the 18 month anniversary of the date of Agreement, each Securityholder agrees, and agrees to cause its affiliates to and to instruct and cause its and their representatives to, keep confidential all nonpublic information in their possession regarding the Company and its Subsidiaries to the extent such nonpublic information is in their possession as a result of the applicable Securityholder’s ownership of Equity Interests of the Company (the “Confidential Information”); provided, however, that such Securityholders, their affiliates funds and their respective representatives shall not be required to maintain as confidential any Confidential Information that (a) becomes generally available to the public other than as a result of disclosure (x) by such Person or any of their respective affiliates or representatives or (y) to the knowledge of such Person and its representatives, by any other Person in violation of an obligation or duty of confidentiality to the Company, (b) is deemed confidential under either Channel Collaboration Agreement, in which case such Confidential Information will be governed by the terms of such Channel Collaboration Agreement, or (c) such Person is required pursuant to the terms of a valid order issued, promulgated or entered by or with any Governmental Entity of competent jurisdiction or any applicable Law to disclose to such

 

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Governmental Entity (provided, that with respect to this clause (c), such Person shall (i) to the extent legally permissible, prior to the disclosing of any Confidential Information, provide Parent with prompt notice of such order and provide commercially reasonable assistance and cooperation with all efforts of Parent, Merger Sub, the Surviving Corporation or any of their respective Subsidiaries in obtaining a protective order or other remedy (at Parent’s sole cost and expense) and (ii) disclose such Confidential Information only to the extent required by such order or Law and request confidential treatment thereof).

 

SECTION 9.                            Representations, Warranties and Other Agreements of Securityholders.  Each Securityholder hereby represents and warrants to Parent as of the date hereof and, as applicable, covenants, that:

 

(a)                                 (i) such Securityholder is the beneficial owner of, and has good, valid and marketable title to, the Subject Securities set forth opposite its name on Schedule I, (ii) such Securityholder has sole voting power, and sole power of disposition, with respect to all of its Subject Securities, (iii) such Securityholder’s Subject Shares, together with the Company Shares underlying the Subject Securities as defined herein and the “Subject Securities” as defined in that certain Consent and Termination Agreement, dated as of the date hereof, by and among the Securityholders, Parent, Merger Sub and the Company, are all of the Company Shares owned, either of record or beneficially, by the Securityholder as of the date hereof, (iv) the Subject Securities owned by such Securityholder are free and clear of all Liens, other than any Liens created by this Agreement, the underlying agreements pursuant to which such shares were issued or as imposed by applicable securities Laws and (v) such Securityholder has not appointed or granted any proxy inconsistent with this Agreement, which appointment or grant is still effective, with respect to the Subject Securities.

 

(b)                                 such Securityholder is a corporation or limited liability company, as applicable, duly organized and validly existing in good standing under the laws of its state of incorporation or formation and has full power and authority to make, enter into and carry out the terms of this Agreement applicable to such Securityholder;

 

(c)                                  such Securityholder shall not bring, commence, institute, maintain, prosecute, participate in or voluntarily aid any action, claim, suit or cause of action, in law or in equity, in any court or before any Governmental Entity, which alleges that (i) the execution and delivery of this Agreement by the Securityholder and the granting of any proxies to be delivered in connection with the execution of the Merger Agreement, or (ii) the approval of the Merger Agreement by the Company Board and the Transaction Committee, breaches any fiduciary duty of the Company Board or any member thereof or such Securityholder or any other Securityholder;

 

(d)                                 as of the date hereof, there is no Proceeding pending or, to the knowledge of such Securityholder, threatened against such Securityholder at law or in equity before or by any Governmental Entity that would reasonably be expected to impair or delay the ability of such Securityholder to perform its obligations hereunder or consummate the transactions contemplated hereby;

 

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(e)                                  the execution and delivery of this Agreement by such Securityholder does not, and the performance of this Agreement by such Securityholder will not, result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation, modification or acceleration) (whether after the giving of notice of or the passage of time or both) under any applicable Law, any of such Securityholder’s certificate of incorporation, bylaws or equivalent governing documents or any contract to which such Securityholder is a party or which is binding on such Securityholder or such Securityholder’s Subject Securities, and will not result in the creation of any Lien on any of such Securityholder’s Subject Securities;

 

(f)                                   this Agreement has been duly executed by such Securityholder and constitutes the valid and legally binding obligation of such Securityholder, enforceable against such Securityholder in accordance with its terms, except that such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity, whether considered in a proceeding at law or in equity;

 

(g)                                  the execution and delivery of this Agreement by such Securityholder does not, and the performance of this Agreement by such Securityholder will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity by such Securityholder, (i) except for any applicable requirements, if any, of the Exchange Act, and (ii) except where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not prevent or delay the performance by such Securityholder of such Securityholder’s obligations under this Agreement in any material respect;

 

(h)                                 such Securityholder has not employed any investment banker, broker, financial advisor, finder or other intermediary in connection with the transactions contemplated by this Agreement which would be entitled to any investment banking, brokerage, finder’s, financial advisory or similar fee or commission in connection with this Agreement or the transactions contemplated hereby;

 

(i)                                     such Securityholder agrees that, in the event of any stock split, stock dividend or distribution, or any change in the Subject Securities by reason of any split-up, reverse stock split, recapitalization, combination, reclassification, exchange of shares or the like, the term “Subject Securities”  shall be deemed to refer to and include such Subject Securities as well as all shares distributed in such stock dividends and distributions and any securities into which or for which any or all of such Subject Securities may be changed or exchanged or which are received in such transaction, and such Securityholder agrees, while this Agreement is in effect, to promptly (and in any event within twenty-four hours) notify Parent of the number of any new Subject Securities, if any, acquired by such Securityholder or any of its affiliates after the date hereof; and

 

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(j)                                    such Securityholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon such Securityholder’s execution and delivery of this Agreement and the representations and warranties of such Securityholder contained herein.

 

SECTION 10.                     Consent.  Each Securityholder on behalf of itself only consents to and authorizes the Company, Parent and their respective affiliates to (and Parent authorizes the Securityholder to) (a) publish and disclose in the Proxy Statement, any Schedule TO or related materials filed in connection with an offer, any current report of the Company on Form 8-K and any other documents required to be filed with the SEC or any regulatory authority in connection with the Merger Agreement, such Securityholder’s identity and ownership of Subject Securities and the nature of such Securityholder’s commitments, arrangements and understandings under this Agreement and (b) file this Agreement as an exhibit to the extent required to be filed with the SEC or any regulatory authority relating to the Merger.

 

SECTION 11.                     Securityholder Capacity.  To the extent that any Securityholder or any of its affiliates or representatives is an officer or director of the Company or any of the Company’s Subsidiaries, nothing in this Agreement shall be construed as preventing or otherwise affecting any actions taken or not taken by such Person in its capacity as an officer or director of the Company or any of the Company’s Subsidiaries or from fulfilling the duties and obligations of such office (including the performance of obligations required by the fiduciary duties of such Person acting in its capacity as an officer or director of the Company or any of the Company’s Subsidiaries), and none of such actions (or determinations not to take any action) in such other capacities shall be deemed to constitute a breach of this Agreement.

 

SECTION 12.                     Termination.  Notwithstanding anything to the contrary provided herein, this Agreement and any undertaking or waiver granted by the Securityholders hereunder automatically shall terminate and be of no further force or effect as of the Expiration Date; provided that (i) Section 15 and, if the Merger is consummated, Section 7 and Section 8 shall survive any termination or expiration of this Agreement, (ii) any such termination shall not relieve any party from liability for any willful and material Breach of its obligations hereunder prior to such termination or relieve any party from completing any obligation that arose hereunder in connection with the consummation of the transactions contemplated here, and (iii) each party will be entitled to any remedies at law or in equity to recover its losses arising from any such pre-termination breach.

 

SECTION 13.                     Further Assurances.

 

(a)                                 Each of the parties hereto shall execute and deliver any additional certificate, instruments and other documents, and take any additional actions, as any other party reasonably may deem necessary or appropriate to carry out and effectuate the purpose and intent of this Agreement.

 

(b)                                 Each Securityholder agrees, while this Agreement is in effect, to notify Parent promptly in writing of the number and description of any Subject Securities

 

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acquired by such Securityholder after the date hereof which are not set forth on Schedule I hereto.

 

SECTION 14.                     RESERVED.

 

SECTION 15.                     Miscellaneous.

 

(a)                                 Expenses.  All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.

 

(b)                                 Waiver.  Except as provided in this Agreement, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of any other party’s obligations to comply with its representations, warranties, covenants and agreements contained in this Agreement.  The waiver by any party hereto of a breach of any provision hereunder (or any delay in asserting any such breach) shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other provision hereunder or in any other context. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.

 

(c)                                  Severability.  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

 

(d)                                 Assignment; Benefit.  Except as expressly permitted by the terms hereof, no party may assign this Agreement or any of its rights, interests, or obligations hereunder

 

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without the prior written approval of each other party hereto, except that Parent may assign its rights, interest, or obligations hereunder to any of its affiliates so long as Parent continues to remain primarily liable for all such rights, interest, and obligations.  Any attempted assignment without such prior written approval shall be void.  Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.  This Agreement is not intended to, and shall not be deemed to, confer on any Person other than the parties hereto or their respective heirs, successors, executors, administrators and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, or to create any agreement of employment with any Person or otherwise create any third party beneficiary hereto.

 

(e)                                  Amendments.  This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by each of the parties hereto.

 

(f)                                   Specific Performance; Injunctive Relief.  The parties agree that irreparable damage would occur to Parent in the event that any provision of this Agreement were not performed by the Securityholders in accordance with the specific terms hereof, and that Parent shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which Parent is entitled at law or in equity.  Each Securityholder agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief to enforce the covenants and obligations contained herein on the basis that Parent has an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity and Parent shall not be required to post a bond or other security in connection with any such order or injunction.

 

(g)                                  Governing Law.  This Agreement and all claims and causes of action based upon, arising out of or in connection herewith shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without regard to Laws that may be applicable under conflicts of laws principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.

 

(h)                                 Jurisdiction and Venue.  Each of the parties hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, if such Court does not have jurisdiction, any Delaware State court, or Federal court of the United States of America, sitting in Delaware, and any appellate court from any thereof, in any Proceeding arising out of or relating to this Agreement or the transactions contemplated hereby or for recognition or enforcement of any judgment relating thereto, and each of the parties hereby irrevocably and unconditionally (i) agrees not to commence any such Proceeding except in such courts, (ii) agrees that any

 

14


 

claim in respect of any such Proceeding may be heard and determined in such court, (iii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such Proceeding in any such court, and (iv) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such Proceeding in any such court.  Each of the parties agrees that a final judgment in any such Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.  Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 16(l).  Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by Law.

 

(i)                                     Waiver of Trial by Jury.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 16(i).

 

(j)                                    No Agreement Until Transaction Documents Executed.  Irrespective of negotiations among the parties or the exchanging of drafts of this Agreement, this Agreement shall not constitute, or be deemed to evidence, a contract, agreement, arrangement or understanding between the parties hereto unless (i) the Merger Agreement is executed and delivered by all parties thereto and (ii) this Agreement is executed and delivered by all parties hereto.

 

(k)                                 Limitation on Recourse.  Section 7.5 of the Merger Agreement shall apply to this Agreement mutatis mutandis.

 

(l)                                     Notices.  Any notices or other communications required or permitted under, or otherwise given in connection with, this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered or sent if delivered in Person or sent by facsimile transmission (provided confirmation of facsimile transmission is obtained), (b) on the fifth Business Day after dispatch by registered or certified mail, (c) on the next Business Day if transmitted by national

 

15


 

overnight courier or (d) on the date delivered if sent by email (provided confirmation of email receipt is obtained), in each case, as follows (or to such other Persons or addressees as may be designated in writing by the party to receive such notice):

 

if to Parent, to:

 

c/o Castle Creek Pharmaceuticals, LLC

6 Century Drive, 2nd Floor

Parsippany, New Jersey 07054

Attn: Greg Wujek

 

with a copy (which shall not constitute notice) to:

 

Latham & Watkins LLP

330 North Wabash Avenue, Chicago, IL 60611

Tel:  (312) 876-7700

Fax:  312-993-9767

 

Attention:  Mark Gerstein

Zachary Judd

 

Email:  Mark.Gerstein@lw.com

Zachary.Judd@lw.com

 

If to the Securityholders: to the Securityholders’ address for notice set forth on Schedule I attached hereto

 

(m)                             Counterparts.  This Agreement may be signed in any number of counterparts, including by facsimile or other electronic transmission each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.  This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by all of the other parties hereto.  Until and unless each party has received a counterpart hereof signed by the other party hereto, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication).  The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission in PDF format or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.

 

(n)                                 Interpretation.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall

 

16


 

be deemed to be followed by the words “without limitation.”  As used in this Agreement, the words “hereof,” “herein,” “hereby,” “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  All terms defined in this Agreement shall have the defined meanings when used in any document made or delivered pursuant hereto unless otherwise defined therein.  For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.  Any agreement, instrument or statute defined or referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, unless otherwise specifically indicated, including (in the case of agreements or instruments) by valid waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein.  References to a Person are also to its permitted assigns and successors.

 

(o)                                 Other Agreements. Notwithstanding anything to the contrary herein, including Section 8 and Section 13, nothing in this Agreement shall limit, expand or otherwise modify or amend either Channel Collaboration Agreement or modify the rights and obligations of each party to each Channel Collaboration Agreement.  The terms of Section 8 shall not govern the treatment of any information exchanged pursuant to either Channel Collaboration Agreement, and the terms of Section 13 shall not be deemed a release of any claims related to either Channel Collaboration Agreement.

 

[Remainder of page intentionally left blank]

 

17


 

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.

 

CASTLE CREEK PHARMACEUTICAL HOLDINGS, INC.

 

 

By:

/s/ Greg Wujek

 

Name:

Greg Wujek

 

Title:

Chief Executive Officer

 

 

[Signature Page to Voting Agreement]

 


 

 

SECURITYHOLDERS:

 

 

 

 

 

NRM VII HOLDINGS I, LLC

 

 

 

 

By:

/s/ Randal J. Kirk

 

 

Name:

Randal J. Kirk

 

 

Title:

Manager, Third Security, LLC, which is the Manager, Third Security Capital Partners VII, LLC, which is the Manager of NRM VII Holdings I, LLC

 

 

 

 

INTREXON CORPORATION

 

 

 

 

By:

/s/ Randal J. Kirk

 

 

Name:

Randal J. Kirk

 

 

Title:

Chairman and Chief Executive Officer

 

 

 

 

KAPITAL JOE, LLC

 

 

 

 

By:

/s/ Randal J. Kirk

 

 

Name:

Randal J. Kirk

 

 

Title:

Manager, Third Security, LLC, which is the Manager of Kapital Joe, LLC

 

 

 

 

MASCARA KABOOM, LLC

 

 

 

 

By:

/s/ Randal J. Kirk

 

 

Name:

Randal J. Kirk

 

 

Title:

Manager, Third Security, LLC, which is the Manager of Mascara Kaboom, LLC

 

[Signature Page to Voting Agreement]

 


 

Schedule I

 

Name

 

Company Shares

 

Company
Warrants
(including date of
issuance)

 

Convertible Notes
(Principal Amount)

 

Address

Intrexon Corporation

 

426,720

 

173,623 — 9/7/16

 

2,604,345

 

20374 Seneca Meadows Parkway, Germantown, MD 20876

NRM VII Holdings I, LLC

 

1,154,726

 

260,932 — 9/7/16
513,425 — 12/11/17

 

3,913,979

 

1881 Grove Avenue, Radford, VA 24141

Kapital Joe, LLC

 

69,878

 

15,791 — 9/7/16
31,070 — 12/11/17

 

236,851

 

1881 Grove Avenue, Radford, VA 24141

Mascara Kaboom, LLC

 

2,162

 

489 — 9/7/16
961- 12/11/17

 

7,325

 

1881 Grove Avenue, Radford, VA 24141

TOTAL

 

1,653,486

 

450,835 — 9/7/16
545,456 — 12/11/17

 

6,762,500

 

 

 


 

Exhibit A

 

FORM OF PROMISSORY NOTE

 

$[ · ]

           , 20      

 

 

1.             Principal Amount; Interest.  For Value Received, Castle Creek Merger Corp., a Delaware corporation (“Company”), promises to pay to [ · ], a [ · ] corporation or its registered assignee (“Payee”), the principal amount of $· ] (the “Principal Amount”).  Interest will be charged on the unpaid principal at a simple (non-compounding) annual rate of eight percent (8%) until the full Principal Amount has been paid.  Except as set forth in Section 2 hereof, Company shall pay the Principal Amount and all accrued and unpaid interest on the date that is one hundred-eighty (180) days following the Closing Date (as such term is defined in that certain Agreement and Plan of Merger, by and between Castle Creek Pharmaceutical Holdings, Inc., a Delaware corporation, Company and Fibrocell Science, Inc.), or if any such day is not a Business Day, the first following Business Day (such date, the “Maturity Date”).  For the purposes hereof, “Business Day” shall mean any day of the year other than (a) any Saturday or Sunday or (b) any other day on which banks located in New York, New York are authorized or required to be closed for business.

 

2.             No Usury.  It is the intention of Company and Payee to conform to applicable usury laws, if any.  Accordingly, notwithstanding anything to the contrary in this Note, it is agreed as follows: (a) the aggregate of all interest and any other charges constituting interest under applicable law and contracted for, chargeable, or receivable under this Note or otherwise in connection with the obligation evidenced hereby shall under no circumstances exceed the maximum amount of interest permitted by applicable law, if any, and any excess shall be deemed a mistake and cancelled automatically and, if theretofore paid, shall, at the option of Company, be refunded to Company or credited on the Principal Amount of this Note; and (b) in the event that the entire unpaid balance of this Note is declared due and payable by Payee, then earned interest may never include more than the maximum amount permitted by applicable law, if any, and any unearned interest shall be cancelled automatically and, if theretofore paid, shall at the option of Company, either be refunded to Company or credited, to the extent permitted by law, on the principal amount of this Note.

 

3.             Payments.  All payments made in respect of this Note shall be made in lawful money of the United States of America in immediately available funds to an account as Payee may from time to time designate in writing.  All payments made in respect of this Note shall be applied first to accrued and unpaid interest hereunder, then to the outstanding principal amount hereof and lastly to all other amounts due and unpaid hereunder.  Company agrees that it shall not withhold taxes from any payment of interest or principal hereunder unless it is required to do so pursuant to applicable law or a final determination by a taxing authority that such withholding tax is required, in which case Company may withhold such amounts without any gross up in the payment to Payee.  Company shall notify Payee when and if any withholding of a tax or similar charge is to be made by Company hereunder, and shall provide all relevant information to Payee

 


 

with respect thereto.  The information shall include, without limitation, the amount payable hereunder with respect to which the withholding is being made, the law or rule pursuant to which such withholding is being made, the federal, state, local or non-U.S. government to which the tax or similar charge is being paid, copies of any forms filed with the relevant government authority, and such other information that is necessary for the Payee to be able to file the proper and accurate returns and to be able to apply for any refunds to which the Payee might be entitled.  In addition, Payee shall deliver to Company a duly completed and executed Internal Revenue Service Form W-8 or W-9 (as applicable) and, if reasonably requested by Company, other documentation as will enable Company to determine whether or not Payee is subject to tax withholding or information reporting requirements.

 

4.             Prepayment.   Company, without premium or penalty, may prepay the Principal Amount, in whole or in part at any time and from time to time prior to the Maturity Date.  All voluntary prepayments shall be accompanied by (i) the accrued but unpaid interest on the Principal Amount prepaid through and including the date of prepayment and (ii) all other sums then due under this Note.

 

5.             Covenants.

 

(a)           Company shall not, directly or indirectly, by operation of law, or otherwise, merge with, consolidate with, or otherwise combine with any person, unless this Note is assumed by such person pursuant to such merger, consolidation or other combination.

 

(b)           Neither Company nor any subsidiary shall repurchase or redeem any equity securities of Company or any subsidiary or pay any dividends or distributions or make any other payments with respect to the equity securities of Company or any subsidiary.

 

(c)           Company shall not enter into any agreement that would prohibit Company from complying with its obligations hereunder, including its obligation to pay the outstanding principal and interest under this Note on the Maturity Date.

 

6.             Representations.  Company hereby represents and warrants that: (a) it is duly organized and validly existing under the laws of its jurisdiction of organization; (b) the execution, delivery and performance of this Note by the Company (i) are within its power, (ii) have been duly authorized by all necessary action and (iii) do not contravene any provision of the its organizational documents, any law or regulation applicable to Company or conflict with, violate, create a lien or default under or require a consent under any document or agreement to which Company is a party or by which it is bound; (c) this Note constitutes a legal, valid and binding obligation of the Company enforceable against it in accordance with its terms (subject to applicable bankruptcy, insolvency, examinership, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally).  No part of the proceeds of the Note will be used directly or indirectly for the purpose of purchasing or carrying margin stock within the meaning of Regulations T, U, or X of the Federal Reserve Board.

 

None of the Company, any of its directors, executive officers, and, to the knowledge of the Company, agents, employees or any other persons acting on their behalf (i) has made or

 


 

provided, or caused to be made or provided, directly or indirectly, any payment or thing of value to a foreign official, foreign political party, candidate for office or any other person knowing that the person shall pay or offer to pay the foreign official, party or candidate, for the purpose of influencing a decision, inducing an official to violate their lawful duty, securing any improper advantage, or inducing a foreign official to use their influence to affect a governmental decision, (ii) has paid, accepted or received any unlawful contributions, payments, expenditures or gifts or (iii) has violated or operated in noncompliance in any material respect with any export restrictions, money laundering law, anti-terrorism law or regulation, anti-boycott regulations or embargo regulations.  Neither the Company nor, to the knowledge of the Company, any director, officer, agent, employee, or person acting on behalf of the Borrower 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”).

 

7.             Event of Default: Remedies.  Upon the Company’s failure to make any payment when due, or Company’s breach of any of its obligations under this Note, or Company’s breach of any covenant, representation or warranty made in this Note, or Borrower’s or any subsidiary’s bankruptcy, general assignment for the benefit of creditors or failure to pay debts as they become due (each, an “Event of Default”), Payee may at its option to the maximum extent permitted by applicable law, accelerate the maturity of this Note, declare all principal, interest and other charges payable hereunder immediately due and payable and seek any and all other remedies available for the enforcement of this Note, at law, in equity or otherwise.  Payee may exercise the option to accelerate upon the occurrence of an Event of Default by Company regardless of any prior forbearance.  The rights and remedies provided herein shall be cumulative and not exclusive of any rights or remedies provided by applicable law or otherwise.  Company agrees that if any amounts due hereunder are not paid when due, whether at maturity or accelerated maturity as provided herein (in addition to any other interest, fees, or expenses which may accrue as a result of such Event of Default), such unpaid amounts will continue to bear interest at the rate set forth herein plus 3%, without waiving any Event of Default caused thereby.

 

8.             Assignment.  This Note shall be binding upon Company and its successors and assigns.  This Note shall inure to the benefit of Payee and its successors and assigns.  Neither Company nor Payee may assign or transfer this Note or its rights, interests or obligations hereunder without the prior written consent of the other; provided that Payee may freely assign this Note at any time during the continuance of an Event of Default.

 

9.             Applicable Law; Consent to Jurisdiction.  This Note and all claims and causes of action based upon, arising out of or in connection herewith (each, a “Proceeding”) shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to laws that may be applicable under conflicts of laws principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.  Payee and the Company hereby irrevocably and unconditionally submit, for itself and its property, to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, if such Court does not have jurisdiction, any Delaware State court, or Federal court of the United States of America, sitting in Delaware, and any appellate court from any thereof, in any Proceeding arising out of or relating to this Note or for recognition or enforcement of any judgment relating thereto, and each of the parties hereby

 


 

irrevocably and unconditionally (i) agrees not to commence any such Proceeding except in such courts, (ii) agrees that any claim in respect of any such Proceeding may be heard and determined in such court, (iii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such Proceeding in any such court, and (iv) waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such Proceeding in any such court.

 

10.          Waiver of Jury TrialCOMPANY AND PAYEE EACH ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS NOTE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS NOTE AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS NOTE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.

 

11.          Waiver of Presentment.  Except as otherwise set forth herein, Company hereby waives presentment for payment, protest, demand, diligence, notice of non-payment and any and all other notices and demands in connection with the delivery, acceptance, performance, default or enforcement of this Note.

 

12.          Notices.  Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing and may be personally served, telecopied or sent by reputable overnight courier service (such as Federal Express, United Parcel Service, DHL or Airborne) and shall be deemed to have been given when delivered in person, upon receipt of telecopy or two business days after deposit with such reputable overnight courier service and properly addressed.  For purposes hereof, the addresses of the parties hereto (until notice of a change thereof is delivered as provided in this Section 12) shall be, in the case of Payee: [ · ].

 

13.          Waiver and Amendment.  Any waiver by Payee or Company 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 or delay of Payee or Company to insist upon strict adherence to any term of this Note on one or more occasions shall not be considered a waiver or deprive Payee of the right thereafter to insist upon strict adherence to that term or any other term of this Note.  Any waiver must be in writing.  This Note may not be amended or modified without the prior written consent of Payee.

 


 

14.          Expenses; Attorney’s Fees.  Company agrees to pay any and all court costs incurred by Payee in a legal action based on an Event of Default hereunder.  Company agrees to pay, to the extent allowed by law, reasonable attorneys’ fees, costs and expenses paid or incurred by Payee in connection with the collection or enforcement of this Note, including but not limited to reasonable attorneys’ fees, court costs, and costs incurred in connection with any bankruptcy proceedings, whether or not suit is filed.  Company agrees to pay in full all amounts due under this Note without setoff, counterclaim, or any deduction whatsoever.

 

15.          Full Recourse.  Company acknowledges that the obligations of Company to Payee under or in connection with this Note are full recourse to Company.

 

Signature Page Follows.

 


 

IN WITNESS WHEREOF, Company has caused this Note to be executed and delivered on the day and year first above written.

 

 

COMPANY:

 

 

 

CASTLE CREEK MERGER CORP.

 

 

 

 

 

By:

 

 

 

Name:

Babar Ghias

 

 

Title:

President and Treasurer

 

[Signature Page to Promissory Note]

 




Exhibit 99.2

 

COMPANY SECURITYHOLDER VOTING AND SUPPORT AGREEMENT

 

THIS COMPANY SECURITYHOLDER VOTING AND SUPPORT AGREEMENT (hereinafter referred to as this “Agreement”) is made and entered into as of September 12, 2019 by and between Castle Creek Pharmaceutical Holdings, Inc., a Delaware corporation (“Parent”), on the one hand, and MSD Credit Opportunity Master Fund, L.P. a Cayman exempted limited partnership (the “Securityholder”), on the other hand.

 

WHEREAS, concurrently with the execution of this Agreement, Fibrocell Science, Inc., a Delaware corporation (the “Company”), Parent and Castle Creek Merger Corp., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), have entered into an Agreement and Plan of Merger (as amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), dated as of the date hereof, pursuant to which Merger Sub will be merged with and into the Company (the “Merger”), with the Company being the surviving entity of such Merger and a wholly owned subsidiary of Parent on the terms, and subject to the conditions, set forth in the Merger Agreement;

 

WHEREAS, as of the date hereof, the Securityholder is the beneficial owner (for purposes of this Agreement, “beneficial owner” (including “beneficially own” and other correlative terms) shall have the meaning set forth in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) of the number of Company Shares (as defined in the Merger Agreement) set forth opposite such Securityholder’s name on Schedule I hereto ((such Company Shares, together with any Equity Interests (as defined in the Merger Agreement) of the Company, the power to dispose of or the voting power over which is acquired by the Securityholder during the period from and including the date hereof through and including the Expiration Date (as defined below) (including, for the avoidance of doubt, any Company Shares resulting from the conversion of any other Subject Securities), collectively, the “Subject Shares”));

 

WHEREAS, as of the date hereof, the Securityholder is the beneficial owner of the number of Convertible Notes and Black-Scholes Warrants set forth opposite such Securityholder’s name on Schedule I hereto (such Equity Interests, together with the Subject Shares, the “Subject Securities”); and

 

WHEREAS, as a condition to and as an inducement to Parent’s and Merger Sub’s willingness to enter into the Merger Agreement, the Securityholder has agreed to enter into this Agreement, to vote their Subject Shares as described herein, cause to be repurchased their Black-Scholes Warrants as contemplated by the Merger Agreement and in accordance with the terms of the applicable Common Stock Purchase Warrants, and to tender their Convertible Notes as described herein.

 

NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

 


 

SECTION 1.                            Certain Definitions.  Capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.  For all purposes of and under this Agreement, the following terms shall have the following respective meanings:

 

(a)                                 Black-Scholes Value” shall, with respect to the warrants issued pursuant to that certain Agreement for the Purchase and Sale of Convertible Debt and Common Stock Warrants dated August 9, 2016, by and among the Company and the other parties signatory thereto, mean the option value of such warrant using Black-Scholes calculation methods and making the assumptions described in the Black-Scholes methodology described in Exhibit A thereof.

 

(b)                                 Constructive Sale” shall mean, with respect to any Subject Security, a short sale with respect to such Subject Securities, entering into or acquiring an offsetting derivative contract with respect to such Subject Securities, entering into or acquiring a future or forward contract to deliver such Subject Securities, or entering into any other hedging or other derivative transaction that has the effect of either directly or indirectly materially changing the economic benefits or risks of ownership of such Subject Securities.

 

(c)                                  Expiration Date” shall mean the earliest to occur of (i) such date and time after the Effective Time at which the Subject Securities shall have been repurchased, tendered or otherwise terminated or cancelled, and the Securityholder no longer has any right or claim of ownership over any Subject Security or other Equity Interests of the Company or the Surviving Corporation, (ii) such date and time as the Merger Agreement shall be properly terminated pursuant to Article VII of the Merger Agreement, (iii) any amendment to the terms of the Merger Agreement that (A) reduces the amount or value of, or changes the type of, consideration payable to the Securityholder in respect of any of the Subject Securities, (B) imposes any material restrictions on or additional conditions on the payment of the consideration payable to the Securityholder in respect of any of the Subject Securities, except, in the case of (B), as may be required by law, stock exchange rule or other regulation, or the interpretation thereof by any Governmental Entity with proper jurisdiction, or (C) extends the Outside Date beyond April 12, 2019 and (iv) the mutual written agreement of each of the parties hereto to terminate this Agreement.

 

(d)                                 Transfer” shall mean, with respect to any Subject Security, the direct or indirect assignment, sale, transfer, tender (into a tender offer, exchange offer or otherwise), pledge, hypothecation, or the grant, creation or suffrage of a Lien upon, or the gift, placement in trust, or the Constructive Sale or other disposition (including by merger or any other conversion into securities or other consideration) of such Subject Securities (including transfers by testamentary or intestate succession or otherwise by operation of Law) or any right, title or interest therein (including any right or power to vote to which the holder thereof may be entitled, whether such right or power is granted by proxy or otherwise), or any change in the record or beneficial ownership of such Subject Securities, and

 

2


 

any agreement, arrangement or understanding, whether or not in writing, to effect any of the foregoing.

 

SECTION 2.                            Transfer of Subject Securities or Voting Rights.

 

(a)                                 Transfer of Subject Securities.  Except as otherwise permitted by this Agreement or the Merger Agreement, the Securityholder hereby agrees that at all times during the period commencing on the date hereof until the Expiration Date, the Securityholder shall not (i) cause or permit, or commit or agree to cause or permit, any Transfer of any of the Subject Securities or (ii) take any other action that would in any way delay, restrict, limit or interfere with the performance of the Securityholder’s obligations hereunder; provided, however, this Section (2)(a) shall not prohibit (A) a Transfer of any of the Subject Securities to any person, so long as the assignee or transferee agrees to be bound by the terms of this Agreement and executes and delivers to the parties hereto a written consent and joinder memorializing such agreement in form and substance reasonably satisfactory to Parent or (B) any direct or indirect Transfer of the Subject Shares (or beneficial or economic interest in any Subject Shares) by Transfer of any equity interests of the Securityholder or any parent entity of the Securityholder, provided that the Securityholder remains directly or indirectly wholly-controlled by MSD Partners, L.P. or its affiliates; provided further, that no such Transfer shall relieve the Securityholder from its obligations under this Agreement, other than with respect to those Subject Securities transferred in accordance with the foregoing provision (it being understood, for the avoidance of doubt, that such transferring Securityholder shall continue to be bound by the covenants and obligations set forth in Section 9 and Section 12 hereof).

 

(b)                                 Transfer of Voting Rights.  Except as otherwise permitted by this Agreement or the Merger Agreement, the Securityholder hereby agrees that, at all times commencing on the date hereof until the Expiration Date, the Securityholder shall not deposit, or permit the deposit of, any Subject Securities in a voting trust, grant any proxy or power of attorney in respect of Subject Securities, enter into any voting agreement or similar arrangement, commitment or understanding with respect to Subject Securities or otherwise commit any act that could restrict or affect such Securityholder’s legal power or right to vote, or exercise a written consent with respect to, the Subject Securities.

 

(c)                                  Any Transfer or other action taken or effected in violation of this Section 2 shall, to the fullest extent permitted by Law, be void ab initio and of no force or effect, and the Company may decline to give effect to such transfer in its books and records and those of its agents.

 

SECTION 3.                            Agreement to Vote Shares.  Until the Expiration Date, at every meeting of Securityholders of the Company called with respect to any of the following, and at every adjournment or postponement thereof, and on every action or approval by written consent of stockholders of the Company with respect to any of the following, each Securityholder agrees that it shall, or shall cause the holder of record on any applicable record date to, (i)

 

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appear at such meeting or otherwise cause all Subject Shares to be counted as present thereat for purposes of calculating a quorum and (ii) vote the Subject Shares that such Securityholder is entitled to vote at any applicable regular or special meeting of the stockholders of the Company or deliver a written consent in respect of such Securityholder’s Subject Shares:

 

(a)                                 in favor of (i) adoption of the Merger Agreement and approval of the Merger, and (ii) each of the actions contemplated by the Merger Agreement in respect of which approval of the Company’s stockholders is requested; and

 

(b)                                 against (i) any proposal or action that would constitute a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement or of the Securityholder under this Agreement or that reasonably would be expected to prevent, impede, frustrate, interfere with, delay beyond the Outside Date or materially and adversely affect the Merger or any of the other transactions contemplated by the Merger Agreement, (ii) any change in the present capitalization or dividend policy of the Company or any amendment or other change to the Company Charter or Company Bylaws (other than by an amendment or change specified in the Merger Agreement) or (iii) any proposal or action that would result in any of the conditions set forth in Article VI of the Merger Agreement not being fulfilled;

 

Prior to the Expiration Date, the Securityholder covenants it shall not take any action that would make any representation or warranty of the Securityholder contained in this Agreement untrue or incorrect or prevent or disable the Securityholder from performing any of its obligations under this Agreement.

 

Notwithstanding the foregoing, the parties hereto agree that the obligations of the Securityholder in this Section 3 shall be of no further effect for so long as the Board has effected a Change of Board Recommendation pursuant to the Merger Agreement.

 

SECTION 4.                            No Ownership Interest.  Nothing contained in this Agreement shall be deemed to vest in Parent any direct or indirect ownership or incidence of ownership of, or with respect to, any Subject Security.  All rights, ownership and economic benefits of and relating to the Subject Securities shall remain vested in and belong to the Securityholder, and this Agreement shall not confer any right, power or authority upon Parent or any other Person (a) to direct the Securityholder in the voting of any of the Subject Securities, except as otherwise specifically provided herein, or (b) in the performance of any of the Securityholder’s duties or responsibilities as officers or directors, as applicable, of the Company.

 

SECTION 5.                            Treatment of Securities.

 

(a)                                 Warrants.

 

(i)                                     The Securityholder hereby agrees that each warrant issued pursuant to that certain Agreement for the Purchase and Sale of Convertible Debt and Common Stock Warrants dated August 9, 2016, by and among the

 

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Company and the other parties signatory thereto (the “Covered Black-Scholes Warrants”) shall terminate at the Effective Time and be cancelled and shall be entitled to receive no consideration or securities of any kind and shall cease to be binding upon the Company and the Surviving Corporation, and none of the Company, the Surviving Corporation or any of their affiliates shall have any further obligations with respect thereto; other than that the Securityholder may notify the Company (or, after the Effective Date, the Surviving Corporation), by delivery thereto of the Repurchase Notice pursuant to Section 2.2(b)(iv) of the Merger Agreement and the terms of such Covered Black-Scholes Warrant within 30 days after the Warrant Repurchase Date applicable to such Covered Black-Scholes Warrant, that the Securityholder is exercising its right to cause the Company to repurchase such Covered Black-Scholes Warrant from the Securityholder for the Black-Scholes Value of such warrant, in accordance with its terms and conditions, and the Surviving Corporation shall repurchase such warrants in accordance with their terms. The Securityholder shall, within three (3) calendar days after the applicable Warrant Repurchase Date, execute and deliver to the Company a Repurchase Notice in the form set forth in such Covered Black-Scholes Warrant, and the Securityholder further agrees that upon receipt of the Black-Scholes Value in exchange for such Covered Black-Scholes Warrant, such Covered Black-Scholes Warrant shall thereafter cease to be binding upon the Company and the Surviving Corporation, and none of the Company, the Surviving Corporation or any of their affiliates shall have any further obligations with respect thereto.

 

(ii)                                  The parties hereto acknowledge and agree that the effectiveness of a Repurchase Notice shall be conditioned upon the consummation of the Merger.

 

(b)                                 Convertible Notes.

 

(i)                                     In the event that the Company or Parent commence a tender offer (the “Offer”) for all of the then-outstanding convertible promissory notes issued by the Company on September 7, 2016 pursuant to that certain Agreement for the Purchase and Sale of Convertible Debt and Common Stock Warrants dated August 9, 2016, by and among the Company and the other parties signatory thereto (the “Convertible Notes”), and the aggregate purchase price for each Convertible Note in such Offer is equal to the product of (A) the sum of (x) the outstanding aggregate Principal Amount (as defined in such Convertible Note) under such Convertible Note plus (y) the aggregate accrued and unpaid interest on such Notes (including Accrued Interest (as defined in such Convertible Note)) as of the date that is thirty (30) days following the Effective Time, to the extent unpaid, times (B) 1.01, then the Securityholder hereby agrees that it shall tender, or cause to be tendered, its Convertible Notes (the “Covered Convertible Notes”) into such Offer promptly, and in any event no later

 

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than ten (10) Business Days, following the commencement of the Offer, or if the Securityholder has not received the documents with respect to such Offer by such time, within five (5) Business Days following receipt of such documents but in any event prior to the expiration of such Offer, free and clear of all Liens.  The Securityholder further agrees that it will not withdraw the Covered Convertible Notes, or cause the Covered Convertible Notes to be withdrawn, from the Offer at any time other than on or after the Expiration Date or if any of the events in clause (ii) below occur.

 

(ii)                                  If the Offer is terminated or withdrawn by Parent or the Company, or the Merger Agreement is terminated prior to the acceptance for payment of the Covered Convertible Notes in the Offer or the terms of the Offer have been amended resulting in the reduction in the amount or value of, or changes to the type of, consideration payable to the Securityholder in the Offer, Parent or the Company, as applicable shall promptly return, and Parent shall cause any depository acting on its behalf to return, all the Covered Convertible Notes tendered by the Securityholder in the Offer to the Securityholder.

 

SECTION 6.                            Communications.  Unless required by applicable Law or legal process, the Securityholder shall not, and shall cause its representatives not to, make any press release or other public announcement with respect to this Agreement and the Merger Agreement and the transactions contemplated hereby and thereby, without the prior written consent of Parent.

 

SECTION 7.                            Representations, Warranties and Other Agreements of Securityholders.  The Securityholder hereby represents and warrants to Parent as of the date hereof and, as applicable, covenants, that:

 

(a)                                 (i) the Securityholder is the beneficial owner of, and has good, valid and marketable title to, the Subject Securities set forth opposite its name on Schedule I, (ii) the Securityholder has sole voting power, and sole power of disposition, with respect to all of its Subject Securities, (iii) the Subject Shares, together with the Company Shares underlying the Subject Securities as defined herein and the “Subject Securities” as defined in that certain Consent and Termination Agreement, dated as of the date hereof, by and among the Securityholder, Parent, Merger Sub and the Company, are all of the Company Shares owned, either of record or beneficially, by the Securityholder as of the date hereof, (iv) the Subject Securities are free and clear of all Liens, other than any Liens created by this Agreement, the underlying agreements pursuant to which such shares were issued or as imposed by applicable securities Laws or that will otherwise be discharged at or prior to the Effective Time and will not impact the Securityholder’s obligations under this Agreement and (v) the Securityholder has not appointed or granted any proxy inconsistent with this Agreement, which appointment or grant is still effective, with respect to the Subject Securities.

 

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(b)                                 the Securityholder is an exempted limited partnership duly organized and validly existing in good standing under the laws of the Cayman Islands and has full power and authority to make, enter into and carry out the terms of this Agreement applicable to the Securityholder;

 

(c)                                  as of the date hereof, there is no Proceeding pending or, to the knowledge of the Securityholder, threatened against the Securityholder at law or in equity before or by any Governmental Entity that would reasonably be expected to impair or delay the ability of the Securityholder to perform its obligations hereunder or consummate the transactions contemplated hereby;

 

(d)                                 the execution and delivery of this Agreement by the Securityholder does not, and the performance of this Agreement by the Securityholder will not, result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation, modification or acceleration) (whether after the giving of notice of or the passage of time or both) under any applicable Law, any of the Securityholder’s certificate of incorporation, bylaws or equivalent governing documents or any contract to which the Securityholder is a party or which is binding on the Securityholder or the Subject Securities, and will not result in the creation of any Lien on any of the Subject Securities;

 

(e)                                  this Agreement has been duly executed by the Securityholder and constitutes the valid and legally binding obligation of the Securityholder, enforceable against the Securityholder in accordance with its terms, except that such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity, whether considered in a proceeding at law or in equity;

 

(f)                                   the execution and delivery of this Agreement by the Securityholder does not, and the performance of this Agreement by the Securityholder will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity by the Securityholder, (i) except for any applicable requirements, if any, of the Exchange Act, and (ii) except where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not prevent or delay the performance by the Securityholder of the Securityholder’s obligations under this Agreement in any material respect;

 

(g)                                  the Securityholder has not employed any investment banker, broker, financial advisor, finder or other intermediary in connection with the transactions contemplated by this Agreement which would be entitled to any investment banking, brokerage, finder’s, financial advisory or similar fee or commission in connection with this Agreement or the transactions contemplated hereby;

 

(h)                                 the Securityholder agrees that, in the event of any stock split, stock dividend or distribution, or any change in the Subject Securities by reason of any split-up,

 

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reverse stock split, recapitalization, combination, reclassification, exchange of shares or the like, the term “Subject Securities”  shall be deemed to refer to and include such Subject Securities as well as all shares distributed in such stock dividends and distributions and any securities into which or for which any or all of such Subject Securities may be changed or exchanged or which are received in such transaction, and the Securityholder agrees, while this Agreement is in effect, to as promptly as practicable notify Parent of the number of any new Subject Securities, if any, acquired by the Securityholder or any of its controlled affiliates after the date hereof; and

 

(i)                                     the Securityholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Securityholder’s execution and delivery of this Agreement and the representations and warranties of the Securityholder contained herein.

 

SECTION 8.                            Representations, Warranties and Other Agreements of Parent.  Parent hereby represents and warrants to the Securityholder as of the date hereof that none of Parent or any subsidiary of Parent beneficially owns any shares of common stock, par value $0.001 per share, of the Company as of the date hereof.

 

SECTION 9.                            Consent.  The Securityholder consents to and authorizes the Company, Parent and their respective affiliates to (and Parent authorizes the Securityholder to) (a) publish and disclose in the Proxy Statement, any Schedule TO or related materials filed in connection with an offer, any current report of the Company on Form 8-K and any other documents required to be filed with the SEC or any government or regulatory authority in connection with the Merger Agreement, the Securityholder’s identity and ownership of Subject Securities and the nature of the Securityholder’s commitments, arrangements and understandings under this Agreement and (b) file this Agreement as an exhibit to the extent required to be filed with the SEC or any regulatory authority relating to the Merger.

 

SECTION 10.                     Termination.  Notwithstanding anything to the contrary provided herein, this Agreement and any undertaking or waiver granted by the Securityholder hereunder automatically shall terminate and be of no further force or effect as of the Expiration Date; provided that (i) Section 6 and, if the Merger is consummated, Section 9 and Section 12 shall survive any termination or expiration of this Agreement, (ii) any such termination shall not relieve any party from liability for any willful and material Breach of its obligations hereunder prior to such termination or relieve any party from completing any obligation that arose hereunder in connection with the consummation of the transactions contemplated here, and (iii) each party will be entitled to any remedies at law or in equity to recover its losses arising from any such pre-termination breach.

 

SECTION 11.                     Further Assurances.  Each of the parties hereto shall execute and deliver any additional certificate, instruments and other documents, and take any additional actions, as any other party reasonably may deem necessary or appropriate to carry out and effectuate the purpose and intent of this Agreement.

 

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SECTION 12.                     Miscellaneous.

 

(a)                                 Expenses.  All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.

 

(b)                                 Waiver.  Except as provided in this Agreement, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of any other party’s obligations to comply with its representations, warranties, covenants and agreements contained in this Agreement.  The waiver by any party hereto of a breach of any provision hereunder (or any delay in asserting any such breach) shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other provision hereunder or in any other context. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.

 

(c)                                  Severability.  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

 

(d)                                 Assignment; Benefit.  Except as expressly permitted by the terms hereof, no party may assign this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of each other party hereto, except that Parent may assign its rights, interest, or obligations hereunder to any of its affiliates so long as Parent continues to remain primarily liable for all such rights, interest, and obligations.  Any attempted assignment without such prior written approval shall be void.  Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.  This Agreement is not intended to, and shall not be deemed to, confer on any Person other than the parties hereto or their respective heirs, successors, executors, administrators and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, or to create any agreement of employment with any Person or otherwise create any third party beneficiary hereto.

 

(e)                                  Amendments.  This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by each of the parties hereto.

 

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(f)                                   Specific Performance; Injunctive Relief.  The parties agree that irreparable damage would occur to Parent in the event that any provision of this Agreement was not performed by the Securityholder in accordance with the specific terms hereof, and that Parent shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which Parent is entitled at law or in equity.  The Securityholder agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief to enforce the covenants and obligations contained herein on the basis that Parent has an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity and Parent shall not be required to post a bond or other security in connection with any such order or injunction.

 

(g)                                  Governing Law.  This Agreement and all claims and causes of action based upon, arising out of or in connection herewith shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without regard to Laws that may be applicable under conflicts of laws principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.

 

(h)                                 Jurisdiction and Venue.  Each of the parties hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, if such Court does not have jurisdiction, any Delaware State court, or Federal court of the United States of America, sitting in Delaware, and any appellate court from any thereof, in any Proceeding arising out of or relating to this Agreement or the transactions contemplated hereby or for recognition or enforcement of any judgment relating thereto, and each of the parties hereby irrevocably and unconditionally (i) agrees not to commence any such Proceeding except in such courts, (ii) agrees that any claim in respect of any such Proceeding may be heard and determined in such court, (iii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such Proceeding in any such court, and (iv) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such Proceeding in any such court.  Each of the parties agrees that a final judgment in any such Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.  Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 16(l).  Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by Law.

 

(i)                                     Waiver of Trial by Jury.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL

 

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BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 16(i).

 

(j)                                    No Agreement Until Transaction Documents Executed.  Irrespective of negotiations among the parties or the exchanging of drafts of this Agreement, this Agreement shall not constitute, or be deemed to evidence, a contract, agreement, arrangement or understanding between the parties hereto unless (i) the Merger Agreement is executed and delivered by all parties thereto and (ii) this Agreement is executed and delivered by all parties hereto.

 

(k)                                 Limitation on Recourse.  Section 7.5 of the Merger Agreement shall apply to this Agreement mutatis mutandis.

 

(l)                                     Notices.  Any notices or other communications required or permitted under, or otherwise given in connection with, this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered or sent if delivered in Person or sent by facsimile transmission (provided confirmation of facsimile transmission is obtained), (b) on the fifth Business Day after dispatch by registered or certified mail, (c) on the next Business Day if transmitted by national overnight courier or (d) on the date delivered if sent by email (provided confirmation of email receipt is obtained), in each case, as follows (or to such other Persons or addressees as may be designated in writing by the party to receive such notice):

 

if to Parent, to: