EXHIBIT 10.1
CARMELL CORPORATION
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”) is dated as of April [__], 2024, by and among Carmell Corporation, a Delaware corporation (the “Company”), and each purchaser identified on the Schedule of Purchasers attached as Schedule I hereto (including its successors and assigns, a “Purchaser” and collectively, the “Purchasers”).
WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), including Rule 506 of Regulation D as promulgated thereunder, the Company desires to issue and sell to each Purchaser, and each Purchaser desires to purchase from the Company, the Securities (as defined below) as more fully described in this Agreement.
WHEREAS, contemporaneously with the sale of the Securities contemplated hereby, the parties hereto will execute and deliver a Registration Rights Agreement, in the form attached hereto as Exhibit A (the “Registration Rights Agreement”), pursuant to which the Company will agree to provide certain registration rights in respect of the Securities under the Securities Act and applicable state securities laws.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and each of the Purchasers, severally and not jointly, agree as follows:
DEFINITIONS
“Action” shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Agreement” shall have the meaning ascribed to such term in the preamble hereto.
“Board of Directors” means the board of directors of the Company.
“Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed.
“Closing” means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s obligations to deliver the Securities, in each case, have been satisfied or waived.
“Commission” means the United States Securities and Exchange Commission.
“Common Stock” means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed.
EXHIBIT 10.1
“Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company” shall have the meaning ascribed to such term in the preamble hereto.
“Disqualification Event” shall have the meaning ascribed to such term in Section 3.1(hh).
“Disclosure Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed between midnight (New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
“Environmental Laws” shall have the meaning ascribed to such term in Section 3.1(m).
“Escrow Agent Letter” shall have the meaning ascribed to such term in Section 2.2(b)(iii).
“Evaluation Date” shall have the meaning ascribed to such term in Section 3.1(s).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended.
“GAAP” shall have the meaning ascribed to such term in Section 3.1(h).
“Hazardous Materials” shall have the meaning ascribed to such term in Section 3.1(m).
“Indebtedness” shall have the meaning ascribed to such term in Section 3.1(z).
“Intellectual Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“Issuer Covered Person” shall have the meaning ascribed to such term in Section 3.1(hh).
“IT Systems and Data” shall have the meaning ascribed to such term in Section 3.1(gg).
“Liens” means a lien, charge pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material Permits” shall have the meaning ascribed to such term in Section 3.1(n).
“Per Share Purchase Price” equals $[__], subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Placement Agent” means Brookline Capital Markets, a division of Arcadia Securities, LLC.
EXHIBIT 10.1
“Proceeding” means an action, claim, suit, investigation or proceeding (including an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened in writing.
“Purchaser” or “Purchasers” shall have the meaning ascribed to such term in the preamble hereto.
“Purchaser Party” shall have the meaning ascribed to such term in Section 4.5.
“Registration Rights Agreement” shall have the meaning set forth in the recitals hereto.
“Required Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Schedule of Purchasers” means Schedule I to this Agreement.
“SEC Reports” shall have the meaning ascribed to such term in Section 3.1(h).
“Securities” means the shares of Common Stock issued or issuable to the Purchasers pursuant to this Agreement.
“Securities Act” shall have the meaning ascribed to such term in the recitals hereto.
“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include locating and/or borrowing shares of Common Stock).
“Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for the Securities purchased hereunder by such Purchaser at the Closing as specified opposite such Purchaser’s name on the Schedule of Purchasers under the heading “Subscription Amount,” in United States dollars and in immediately available funds. The Subscription Amount, with respect to each Purchaser, shall be the Per Share Purchase Price multiplied by the number of Securities purchased hereunder by such Purchaser as specified opposite such Purchaser’s name on the Schedule of Purchasers under the heading “Number of Securities.”
“Subsidiary” means any subsidiary (as defined under Regulation S-X) of the Company as set forth in the SEC Reports and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading Day” means a day on which the principal Trading Market is open for trading.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or the New York Stock Exchange (or any successors to any of the foregoing).
“Transaction Documents” means this Agreement, the Registration Rights Agreement, Escrow Agent Letter, and all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company, with a mailing address of One State Street Plaza, 30th Floor, New York, New York 10004, and any successor transfer agent of the Company.
EXHIBIT 10.1
PURCHASE AND SALE
EXHIBIT 10.1
EXHIBIT 10.1
REPRESENTATIONS AND WARRANTIES
EXHIBIT 10.1
EXHIBIT 10.1
EXHIBIT 10.1
EXHIBIT 10.1
EXHIBIT 10.1
EXHIBIT 10.1
EXHIBIT 10.1
EXHIBIT 10.1
EXHIBIT 10.1
The Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
OTHER AGREEMENTS OF THE PARTIES
EXHIBIT 10.1
EXHIBIT 10.1
EXHIBIT 10.1
MISCELLANEOUS
EXHIBIT 10.1
EXHIBIT 10.1
(Signature Pages Follow)
EXHIBIT 10.1
IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
CARMELL CORPORATION
By:
| Address for Notice: [●] Carmell Corporation 2403 Sidney Street, Suite 300 Pittsburgh, PA 152023 Email: [●]
With a copy to (which shall not constitute notice): Michael A. Hedge K&L Gates LLP 1 Park Plaza, Twelfth Floor Irvine, CA 92614 Email: michael.hedge@klgates.com
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
EXHIBIT 10.1
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
[●]
By: [●]
By: ________________________
Name:
Title:
[PURCHASER SIGNATURE PAGE TO CARMELL CORPORATION SECURITIES PURCHASE AGREEMENT]
EXHIBIT 10.1
SCHEDULE I
SCHEDULE OF PURCHASERS
Purchaser Name and Address | Number of Securities | Subscription Amount |
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EXHIBIT 10.1
EXHIBIT A
Registration Rights Agreement
Attached.