Fibrocell Science, Inc. (Form: 8-K, Received: 09/08/2016 09:20:25)

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 7, 2016

______________________________________________________________________________________________________

FIBROCELL SCIENCE, INC.

(Exact Name of Registrant as Specified in its Charter)

______________________________________________________________________________________________________



DELAWARE	001-31564	87-0458888
(State or Other Jurisdiction of Incorporation or Organization)	(Commission File No.)	(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):



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

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

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

q	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-14(c))

Item 1.01 Entry into a Material Definitive Agreement.

On September 7, 2016, Fibrocell Science, Inc. (the “Company”) consummated its previously announced private placement offering (the “Offering”) to institutional and accredited investors (each an “Investor” and collectively, the “Investors”) of convertible debt securities, evidenced by convertible promissory notes (each, a “Note” and collectively, the “Notes”) and warrants (each a “Warrant” and collectively, the “Warrants”) to purchase the Company’s common stock, par value $0.001 per share (“Common Stock”).

At the closing, the Company issued an aggregate of $18,087,500 principal amount of Notes and accompanying Warrants to purchase an aggregate of 18,087,500 shares of common stock, on the terms and conditions as set forth in that certain Agreement for the Purchase and Sale of Convertible Debt and Common Stock Warrants by and among the Company and the other signatories thereto (the “Purchase Agreement”). Pursuant to the terms of the Purchase Agreement, the Company is permitted to sell up to an additional $6,912,500 principal amount of Notes and accompanying Warrants in the Offering.

The Notes bear interest at four percent (4%) per annum. Interest is earned daily and compounded quarterly and, at the election of the Company at the beginning of each quarter, shall accrue or be paid in cash. If the Company elects to have interest accrue, such interest will not be added to the principal amount of the Notes but such interest shall be subject to additional interest at the rate of four percent (4%) per annum, compounded quarterly, and shall be due and payable upon the earliest of the conversion of the Notes, exercise of the Put Right, exercise of the Prepayment Right or the Maturity Date (in each case, as defined below). Additionally, if the Company elects for interest to accrue, then (i) the Company may elect to repay any such accrued and unpaid interest in cash at any time and from time to time and (ii) each Investor may elect to have the Company repay any such accrued and unpaid interest by delivering such number of shares of Common Stock equal to (x) the amount of the accrued and unpaid interest to be repaid, divided by (y) the greater of (i) the last closing bid price of a share of Common Stock as reported on the NASDAQ Capital Market (“NASDAQ”) on the date of such election and (ii) the Conversion Price (as defined below).

All unpaid principal of each Investor’s Note is convertible, at any time and from time to time, at the option of such Investor into shares of Common Stock at the greater of (x) $1.13625 and (y) the last closing bid price of a share of Common Stock as reported on NASDAQ at the time of such Investor’s execution of the Purchase Agreement, plus $0.12625 (as subject to adjustment, the “Conversion Price”).

The Notes have a maturity date of the earlier of (i) September 7, 2026 and (ii) one-hundred and eighty (180) days after the date on which the Company’s product candidate, FCX-007, is approved by the United States Food and Drug Administration for the treatment of recessive dystrophic epidermolysis bullosa (the “Maturity Date”). Each Investor has the right to require the Company to repay all or any portion of the unpaid principal and accrued and unpaid interest from time to time on or after September 7, 2021 (such right, a “Put Right”). Such Put Right must be exercised by such Investor by delivering written notice to the Company no later than one-hundred and eighty (180) days prior to such exercise date of such Put Right. In addition, upon consummation of a specified change of control transaction, each Investor may elect to accelerate the repayment of all unpaid principal and accrued interest under such Investor’s Note. If an Investor does not elect to have the Company prepay its Note upon such change of control transaction, then the Company may prepay the Notes, in an amount equal to one hundred one percent (101%) of the outstanding principal due under the Notes (together with accrued and unpaid interest due thereon) (the “Prepayment Right”).

The Notes also contain customary prohibitions on certain Company payments, the incurrence of certain senior and pari passu debt, certain affiliate transactions and the incurrence of certain liens. These prohibitions will generally terminate thirty (30) days following the date in which the Investors are eligible to exercise their Put Right. Upon an event of default (as specified in the Notes), the base interest rate (excluding any additional interest) for the Notes shall be twelve percent (12%) per annum. In addition, the Company shall indemnify the Investors from certain specified claims and losses and reimburse the lead investor for certain expenses in connection with the Offering.

The Warrants for each Investor have an exercise price per one share of Common Stock equal to the greater of (i) $1.50 and (ii) the last closing bid price of a share of Common Stock as reported on NASDAQ at the time of such Investor’s execution of the Purchase Agreement. Each Warrant is exercisable during the period beginning on March 8, 2017 and ending on September 7, 2021. In the event of a specified change of control transaction, the Company or any successor entity is required to purchase at a holder’s option, exercisable at any time concurrently with or within thirty (30) days after the consummation of such change of control transaction, such holder’s Warrants for cash in an amount equal to the value of the unexercised portion of such holder’s Warrants, determined in accordance with the Black-Scholes option pricing model as specified in the Purchase Agreement and the Warrants.

The Conversion Price of the Notes, the exercise price of the Warrants and the number of shares of Common Stock issuable upon conversion of the Notes and exercise of the Warrants are each subject to adjustment upon certain corporate events, including stock dividends, stock splits and distributions of cash or other assets to the Company’s stockholders.

The securities issued in the Offering as described above have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and sales were made pursuant to the exemptions from registration provided by Rule 506(c) of Regulation D (“Reg. D”) promulgated under the Securities Act because, among other things, the Investors are “accredited investors” (as defined under Reg. D), the Investors purchased the securities for investment purposes only and not for resale and the Company took appropriate measures to restrict the transfer of the securities sold and verify the accredited investor status of the Investors.

In connection with the closing of the Offering, and on the terms and conditions set forth in the Purchase Agreement, the Company entered into a registration rights agreement (the “Registration Rights Agreement”) with the Investors, pursuant to which the Company will register under the Securities Act for resale shares of Common Stock issuable upon the conversion of the Notes or the exercise of the Warrants and any other shares held by the Investors. The Registration Rights Agreement contains customary terms such as demand and piggyback registration rights. If the Company fails, under certain circumstances as described in the Registration Rights Agreement, to file and keep effective a registration statement with respect to the securities covered under the Registration Rights Agreement, the Company has agreed to pay liquidated damages to each Investor in an amount equal to one percent (1.0%) of the aggregate amount invested by such Investor pursuant to the Notes then owned thereby for each 30-day period or pro rata for any portion thereof during which the failure to file or keep effective continues.

The foregoing descriptions of the Notes, the Warrants and the Registration Rights Agreement do not purport to be complete, and are qualified in their entirety by reference to the form of each such document, filed as Exhibits 4.1, 4.2 and 10.1, respectively, and incorporated herein by reference.

Item 2.03 Creation of a Direct Financial Obligation.

The information contained above in Item 1.01 is hereby incorporated by reference into this Item 2.03.

Item 3.02 Unregistered Sales of Equity Securities.

The information contained above in Item 1.01 is hereby incorporated by reference into this Item 3.02. Subject to adjustment upon certain corporate events, including stock dividends, stock splits and distributions of cash or other assets to the Company’s stockholders:


•	up to 15,869,608 shares of Common Stock could be issuable by the Company in connection with the conversion of principal under the Notes, plus


•	up to 7,758,072 shares of Common Stock could be issuable by the Company in satisfaction of its interest payment obligations under the Notes; plus


•	up to 18,087,500 shares of Common Stock could be issuable by the Company in connection with the exercise of the Warrants.

Item 8.01 Other Events.

On September 8, 2016, the Company issued a press release announcing the closing of the Offering. The full text of the press release issued in connection with this announcement is attached as Exhibit 99.1 to this Form 8-K and incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits



Exhibit No.		Description
4.1		Form of Convertible Promissory Note
4.2		Form of Common Stock Purchase Warrant
10.1		Form of Registration Rights Agreement
99.1		Press Release dated September 8, 2016

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/ Keith A. Goldan
		Keith A. Goldan
		SVP and Chief Financial Officer

Date: September 8, 2016

EXHIBIT INDEX



Exhibit No.		Description
4.1		Form of Convertible Promissory Note
4.2		Form of Common Stock Purchase Warrant
10.1		Form of Registration Rights Agreement
99.1		Press Release dated September 8, 2016

Exhibit 4.1

THIS NOTE AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION HEREOF OR UPON THE CONVERSION OF ACCRUED INTEREST AS FURTHER DESCRIBED HEREIN HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND SUCH STATE SECURITIES LAWS.

THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR PURPOSES OF SECTIONS 1271 ET. SEQ. OF THE CODE. THE HOLDER OF THIS CONVERTIBLE PROMISSORY NOTE MAY, UPON REQUEST, OBTAIN FROM THE COMPANY INFORMATION REGARDING THE OID BY CONTACTING THE CHIEF FINANCIAL OFFICER OF THE COMPANY AT 405 EAGLEVIEW BLVD, EXTON, PA 19341; TEL: 484.713.6000.

FIBROCELL SCIENCE, INC.

Convertible Promissory Note

due September 7, 2026

Note No. [__] $[__]

Dated: September 7, 2016

For value received, FIBROCELL SCIENCE, INC. , a Delaware corporation (the “ Company ”), hereby promises to pay to the order of [__] (together with its successors and assigns, the “ Holder ”), in accordance with the terms hereinafter provided, the principal amount of [__] DOLLARS ($[__]) (the “ Principal Amount ”) together with interest thereon.

All payments under or pursuant to this Note or the other Transaction Documents shall be made in United States Dollars in immediately available funds by wire transfer of funds to the Holder’s account, instructions for which are set forth on Exhibit A . The outstanding principal balance of this Note shall be due and payable on the date (the “ Maturity Date ”) that is the earlier to occur of (i) September 7, 2026 and (ii) one-hundred eighty (180) days after the date on which the Company’s product candidate designated as FCX-007 receives marketing approval by the U.S. Food and Drug Administration for the treatment of recessive dystrophic epidermolysis bullosa, or at such earlier time as provided herein.

1 BACKGROUND.

1A Purchase Agreement. This Note is one of a series of convertible promissory notes to be issued by the Company 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 “ Purchase Agreement ”) in an aggregate principal amount of up to Twenty Five Million Dollars ($25,000,000) (as amended, restated, supplemented or otherwise modified from time to time, collectively, the “ Notes ”). The Holders of the Notes (other than the Holder) are referred to herein as the “ Other Holders ” and the Other Holders and the Holder are collectively referred to herein as the “ Holders ”.

1B Warrants. In connection with the issuance and sale of the Notes and pursuant to the Purchase Agreement, the Company has authorized the issuance of and will concurrently issue to each Holder a Common Stock Purchase Warrant representing the right to purchase initially such number of shares of Common Stock of the Company equal to the Principal Amount specified on the face of such Holder’s Note (as the same may be amended, restated, supplemented or otherwise modified from time to time, collectively, the “ Warrants ”), such Warrants to be in the form of Exhibit B . The Holder shall receive a Warrant (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Warrant ”) representing the right to purchase an aggregate amount of shares of Common Stock of the Company as specified in Exhibit A .

1C Allocation of Purchase Price. The aggregate purchase price for this Note and the Warrant to be purchased by the Holder pursuant to the terms hereof and of the Warrant (the “ Purchase Price ”) shall be $[__]. The Holder shall pay $1.00 for each $1.00 of Principal Amount and the Warrant to be purchased by the Holder. The Holder and the Company agree that this Note and the Warrant constitute an “investment unit” for purposes of Section 1273(c)(2) of the Code. The Holder and the Company mutually agree that the allocation of the issue price of such investment unit between this Note and the Warrant in accordance with Section 1273(c)(2) of the Code and Treasury Regulation Section 1.1273-2(h) shall be an aggregate amount of $0.384 per $1.00 of Purchase Price to be allocated to the Warrant and the balance of the Purchase Price allocated to this Note, and neither the Holder nor the Company shall take any position inconsistent with such allocation in any tax return or in any judicial or administrative proceeding in respect of taxes.

1D Defined Terms. Certain capitalized terms used in this Note are defined in paragraph 11; references to a paragraph are, unless otherwise specified, to one of the paragraphs of this Note and references to an “Exhibit” or “Schedule” are, unless otherwise specified, to one of the exhibits or schedules attached to this Note.

2 INTEREST.

2A Interest Rate. Subject to paragraph 2B below, this Note shall bear interest (computed on the basis of a 365-day year and actual days elapsed) (i) on the unpaid balance of the Principal Amount at the rate of 4.00% per annum from the date hereof, payable on the Maturity Date and quarterly in arrears on the last day of September, December, March and June in each year (each, an “ Interest Payment Date ”), commencing with the first such date next succeeding the date hereof (the “ First Interest Payment Date ”), until the principal hereof shall have become due and payable, and upon any prepayment or repayment of this Note, and (ii) following the occurrence and during the continuance of an Event of Default (other than an Event of Default arising under paragraph 7A(iv)), on the unpaid balance of the Principal Amount and any interest (including, for the avoidance of doubt, Accrued Interest), in each case in respect of the Note, automatically at a rate per annum from time to time equal to the Default Rate, payable quarterly as aforesaid (or at the option of the Holder, on demand).

2B Interest Payments . On each Interest Payment Date, interest accrued on this Note since its issuance (in the case of the First Interest Payment Date) or otherwise since the last Interest Payment Date shall be paid in cash. Notwithstanding the foregoing, in lieu of making the interest payments on this Note in cash on any Interest Payment Date, the Company may, at its option, with notice to the Holder at the commencement of the applicable interest period, elect to accrue interest for such interest period (such accrued interest, including all additional interest in respect of such interest as described further below, the “ Accrued Interest ”). All such Accrued Interest shall bear additional interest (computed on the basis of a 365-day year and actual days elapsed) at the rate of 4.00% per annum from the date of the applicable Interest Payment Date, compounded quarterly. For the avoidance of doubt, the Accrued Interest shall not be added to the outstanding Principal Amount. The Accrued Interest shall be due and payable upon the earliest of (i) the conversion of this Note in accordance with paragraph 3, (ii) the exercise of the Holder’s put option or rights to prepayment in accordance with paragraphs 5A(2) or 5A(3), (iii) the Company’s repayment in full in cash of this Note and all other obligations hereunder and (iv) the Maturity Date. Notwithstanding anything contained herein to the contrary, if the Company elects for interest to accrue, then (a) the Company may, upon ten (10) Business Days’ prior notice to the Holder, elect to repay any such Accrued Interest in cash at any time and from time to time and (b) the Holder may elect in writing (such request, an “ Accrued Interest Conversion Election Notice ”) at any time and from time to time, including upon its receipt of the notice referenced in clause (a) above, to have the Company convert any such Accrued Interest into shares of Common Stock in accordance with paragraph 3B below.

3 CONVERSION; LIMITATION ON BENEFICIAL OWNERSHIP.

3A Conversion of Principal. At any time and from time to time following the Funding Date, subject to paragraphs 3C and 3K hereof, the unpaid Principal Amount then outstanding under this Note shall be convertible (in whole or in part), at the option of the Holder, into such number of fully paid and non-assessable shares of Common Stock as is determined by dividing (i) that portion of the unpaid Principal Amount of this Note then outstanding that the Holder elects to convert by (ii) the Applicable Conversion Price then in effect on the date on which the Company

receives a notice of conversion in the form attached hereto as Exhibit D (each, a “ Conversion Notice ”) from the Holder, duly executed, to the Company (each, a “ Principal Conversion Date ”). With respect to partial conversions of this Note, the Company shall keep written records of the amount of this Note converted as of each Conversion Date.

3B Conversion of Accrued Interest. In the event that the Holder elects to have Accrued Interest converted into shares of Common Stock, subject to paragraphs 3C and 3K hereof, such Accrued Interest shall be convertible into such number of fully paid and non-assessable shares of Common Stock as is determined by dividing (i) that portion of the unpaid Accrued Interest that the Holder elects to convert by (ii) the greater of (a) the last closing bid price of a share of the Company’s Common Stock as reported on the NASDAQ on the date the Company receives the Accrued Interest Conversion Election Notice (each, an “ Accrued Interest Conversion Date ”) and (b) the Applicable Conversion Price (each, an “ Accrued Interest Conversion Price ”).

3C Mechanics of Conversion.

3C(1) Issuance of Certificates. Not later than three (3) Trading Days after each Conversion Date (each, a “ Delivery Date ”), the Company shall, at its expense (including the payment by it of any applicable issue or stamp taxes), cause to be issued in the name of and delivered to the Holder, or as the Holder may direct, a certificate or certificates evidencing the number of fully paid and nonassessable shares of Common Stock (which number shall be rounded down to the nearest whole share in the event any fractional share may otherwise be issuable upon such conversion and the Company shall pay a cash adjustment to the Holder in respect of such final fraction in an amount equal to such fraction multiplied by the Applicable Conversion Price or Accrued Interest Conversion Price, as applicable) to which the Holder shall be entitled upon conversion of all or any portion of the Principal Amount or Accrued Interest (the “ Conversion Shares ”), in such denominations as may be requested by the Holder, which certificate or certificates shall be free of restrictive and trading legends (except for any such legends as may be required under the Securities Act). In lieu of delivering physical certificates for the shares of Common Stock issuable upon any conversion of all or any portion of the Principal Amount or Accrued Interest, provided the Company’s transfer agent is participating in the Depository Trust Company (“ DTC ”) Fast Automated Securities Transfer program or a similar program, upon request of the Holder, the Company shall cause its transfer agent to electronically transmit such shares of Common Stock issuable upon conversion of all or any portion of the Principal Amount or Accrued Interest to the Holder (or its designee), by crediting the account of the Holder’s (or such designee’s) broker with DTC through its Deposit Withdrawal Agent Commission system ( provided that the same time periods herein as for stock certificates shall apply) as instructed by the Holder (or its designee).

3C(2) Buy-Ins. In addition to any other rights available to the Holder, if the Company fails to cause its transfer agent to transmit to the Holder the Conversion Shares pursuant to a conversion on or before the Delivery Date, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise), or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Conversion Shares which the Holder anticipated receiving upon such exercise (a “ Buy-In ”), then the Company shall (i) pay in cash to the Holder the amount, if any, by which (a) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (b) the amount obtained by multiplying (1) the number of Conversion Shares that the Company was required to deliver to the Holder in connection with the conversion at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (ii) at the option of the Holder, either reinstate the Principal Amount (or applicable portion thereof) or Accrued Interest, as applicable, for which such conversion was not honored (in which case such conversion shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of all or any portion of the Principal Amount or Accrued Interest, as applicable, into shares of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (i) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company notice indicating the amounts payable to the Holder in respect of the Buy-In and evidence of the amount of such loss. Nothing herein shall limit the Holder’s right to pursue a decree of specific performance and/or injunctive relief with respect to

the Company’s failure to timely deliver shares of Common Stock upon conversion of all or any portion of the Principal Amount or Accrued Interest, as required pursuant to the terms hereof.

3D Adjustment of Conversion Price. Until the Note has been paid in full or converted in full, the Applicable Conversion Price shall be subject to adjustment from time to time as follows (but shall not be increased, other than pursuant to paragraph 3D(1) hereof):

3D(1) Adjustments for Stock Splits and Combinations . If the Company shall at any time or from time to time after the Funding Date effect a split of the outstanding Common Stock, the Applicable Conversion Price in effect immediately prior to the stock split shall be proportionately decreased. If the Company shall at any time or from time to time after the Funding Date combine the outstanding shares of Common Stock, the Applicable Conversion Price in effect immediately prior to the combination shall be proportionately increased. Any adjustments under this paragraph 3D(1) shall be effective at the close of business on the date the stock split or combination occurs.

3D(2) Adjustments for Certain Dividends and Distributions . If the Company shall at any time or from time to time after the Funding Date make or issue or set a record date for the determination of holders of Common Stock entitled to receive a dividend or other distribution payable in shares of Common Stock, then, and in each event, the Applicable Conversion Price in effect immediately prior to such event shall be decreased as of the time of such issuance by multiplying the Applicable Conversion Price then in effect by a fraction:

(i) the numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance; and

(ii) the denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance plus the number of shares of Common Stock issued in payment of such dividend or distribution.

3D(3) Adjustment for Other Dividends and Distributions . If the Company shall at any time or from time to time after the Funding Date make or issue or set a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in securities of the Company (other than as described in paragraph 3D(1) or 3D(2)) or in cash or other property, then and in each such event provision shall be made so that the Holder shall receive upon conversion hereof, in addition to the number of shares of Common Stock issuable hereunder, the kind and amount of securities of the Company, cash or other property which the Holder would have been entitled to receive had this Note been converted on the date of such event and had the Holder thereafter, during the period from the date of such event to and including the Principal Conversion Date or the Accrued Interest Conversion Date, as the case may be, retained any such securities receivable during such period, giving application to all adjustments called for during such period under this paragraph 3D with respect to the rights of the Holder.

3D(4) Adjustments for Reclassification, Exchange, Substitution, Reorganization, Consolidation, Merger, Etc . If the Common Stock at any time or from time to time after the Funding Date shall be changed to the same or different number of shares or other securities of any class or classes of stock or other property, whether by reclassification, exchange, substitution, reorganization, consolidation, merger, transfer of all or substantially all of the Company’s properties or assets to any other person under any plan or arrangement contemplating the dissolution of the Company, or otherwise (other than by way of a stock split or combination of shares or stock dividends provided for in paragraphs 3D(1), 3D(2) or 3D(3) hereof), then, and in each event, an appropriate revision to the Applicable Conversion Price shall be made and provisions shall be made (by adjustments of the Applicable Conversion Price or otherwise) so that thereafter this Note shall be convertible into the kind and amount of shares of stock or other securities or other property receivable upon reclassification, exchange, substitution, reorganization, consolidation, merger, transfer of all or substantially all of the Company’s properties or assets to any other person under any plan or arrangement contemplating the dissolution of the Company or other change, by holders of the number of shares of Common Stock into which such Note might have been converted immediately prior to such reclassification, exchange, substitution, reorganization, consolidation, merger, transfer of all or substantially all of the Company’s properties or assets to any

other person under any plan or arrangement contemplating the dissolution of the Company or other change, all subject to further adjustment as provided herein.

3D(5) Other Events . If any event occurs of the type contemplated by the provisions of this paragraph 3D but not expressly provided for by such provisions, then the Company’s board of directors, acting in good faith and consistent with its fiduciary duties, shall make an appropriate adjustment in the Applicable Conversion Price so as to protect the rights of the Holder.

3E Record Date . In the event of:

(i) any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, or any right to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other securities or property, or to receive any other right; or

(ii) any capital reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company or any transfer of all or substantially all the assets of the Company to or any consolidation or merger of the Company with or into any other Person or any other Change of Control; or

(iii) any voluntary or involuntary dissolution, liquidation or winding-up of the Company;

then, and in each such event, the Company will mail or cause to be mailed to the Holder a notice specifying (a) the date on which any such record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (b) the date on which any such reorganization, reclassification, recapitalization, transfer, consolidation, merger, dissolution, liquidation or winding-up is anticipated to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock (or other Equity Interests) shall be entitled to exchange their shares of Common Stock (or other Equity Interests) for securities or other property deliverable on such reorganization, reclassification, recapitalization, transfer, consolidation, merger, dissolution, liquidation or winding-up. Such notice shall be mailed at least fifteen (15) days prior to the date specified in such notice on which any such action is to be taken.

3F No Impairment . The Company will not, by amendment of its Organizational Documents or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Note, but will at all times in good faith assist in the carrying out of all such terms and in taking all such action as may be necessary or appropriate in order to protect the rights of the Holder against impairment. Without limiting the generality of the foregoing, the Company (i) will not increase the par value of any shares of stock receivable on the conversion of all or any portion of the Principal Amount or Accrued Interest, as applicable, above the amount payable therefor on such conversion, and (ii) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and non-assessable shares of stock on the conversion of all or any portion of the Principal Amount or Accrued Interest, as applicable.

3G Certificates as to Adjustments . Upon the occurrence of each adjustment of the Applicable Conversion Price pursuant to this paragraph 3, the Company at its expense shall promptly compute such adjustment in accordance with the terms hereof and furnish to the Holder a certificate setting forth such adjustment, showing in detail the facts upon which such adjustment is based. The Company shall, upon written request of the Holder, at any time, furnish or cause to be furnished to the Holder a like certificate setting forth such adjustments, the Applicable Conversion Price in effect at the time, and the number of shares of Common Stock and the amount, if any, of other securities or property which at the time would be received upon the conversion of this Note.

3H Issue Taxes . The Company shall pay any and all issue and other taxes, excluding federal, state or local income taxes, that may be payable in respect of any issue or delivery of shares of Common Stock on conversion of all

or any portion of the Principal Amount or Accrued Interest; provided , however , that the Company shall not be obligated to pay any transfer taxes resulting from any transfer requested by the Holder in connection with any such conversion.

3I Reservation of Common Stock . The Company shall at all times after the Funding Date and while this Note shall be outstanding, reserve and keep available out of its authorized but unissued Common Stock, such number of shares of Common Stock as shall from time to time be sufficient to effect the conversion of all or any portion of the Principal Amount and all Accrued Interest thereon (disregarding for this purpose any and all limitations of any kind on such conversion). The Company shall, from time to time in accordance with the Delaware General Corporation Law, increase the authorized number of shares of Common Stock or take other effective action if at any time the unissued number of authorized shares shall not be sufficient to satisfy the Company’s obligations under this paragraph 3.

3J Regulatory Compliance .

3J(1) General . If any shares of Common Stock to be reserved for the purpose of conversion of the Principal Amount or Accrued Interest require registration or listing with or approval of any Governmental Authority, stock exchange or other regulatory body under any federal or state law or regulation or otherwise before such shares may be validly issued or delivered upon conversion, the Company shall, at its sole cost and expense, in good faith and as expeditiously as possible, secure such registration, listing or approval, as the case may be.

3J(2) Antitrust Notification . If the Holder determines, in its sole judgment upon the advice of counsel, that the conversion of all or any portion of the Principal Amount or Accrued Interest pursuant to the terms hereof would be subject to the provisions of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “ HSR Act ”), the Company shall file as soon as practicable after the date on which the Company receives notice from the Holder of the applicability of the HSR Act and a request to so file with the United States Federal Trade Commission (the “ FTC ”) and the United States Department of Justice (the “ DOJ ”) the notification and report form required to be filed by it pursuant to the HSR Act in connection with such conversion (and in any event the Company shall make such filing no later than seven (7) Business Days after the date on which the Holder filed with the FTC and DOJ the notification and report form required to be filed by the Holder pursuant to the HSR Act in connection with such conversion). Any such notification and report form will be in full compliance with the requirements of the HSR Act. The Company will furnish to the Holder and the Holder shall furnish to the Company promptly (but in no event more than five (5) Business Days after receipt of a reasonable request therefore) such information and assistance as the other party may reasonably request in connection with the preparation of any filing or submission required to be filed by the Holder or the Company under the HSR Act. The Company and the Holder shall respond promptly after receiving any inquiries or requests for additional information from the FTC or the DOJ during the HSR waiting period. Each party shall keep the other apprised periodically and at the other party’s request of the status of any communications with, and any inquiries or requests for additional information from, the FTC or the DOJ. The Holder shall bear all filing or other fees required to be paid by the Company and the Holder (or the “ultimate parent entity” of the Holder, if any) under the HSR Act or any other applicable law in connection with such filings and all costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) incurred by the Company and the Holder in connection with the preparation of such filings and responses to inquiries or requests. In the event that this paragraph 3J(2) is applicable to any conversion of all or any portion of the Principal Amount or Accrued Interest, the acquisition by the Holder of the Note Shares subject to such conversion shall be subject to the expiration or earlier termination of the waiting period under the HSR Act (with the Principal Conversion Date or the Accrued Interest Conversion Date being deemed to be the date immediately following the date of such expiration or early termination).

3K Limitation on Beneficial Ownership . Notwithstanding anything to the contrary contained herein, the Holder shall not be entitled to receive Equity Interests of the Company (i) upon conversion of this Note (in whole or in part) into the Company’s Common Stock in accordance with paragraph 3A, or (ii) upon the Company’s conversion of all or any portion of the Accrued Interest into the Company’s Common Stock in accordance with paragraphs 2B and 3B, in each case to the extent (but only to the extent) that such conversion or receipt would cause the Holder Group to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of a number of Equity Interests of a class that is registered under

the Exchange Act which exceeds the Maximum Percentage of the Equity Interests of such class that are outstanding at such time. This limitation on beneficial ownership (a) may be increased, decreased or terminated, in the Holder’s sole discretion, upon sixty-one (61) days’ notice to the Company by the Holder and (b) shall terminate automatically on the date that is fifteen (15) days' prior to the Maturity Date. Any purported delivery of Equity Interests in connection with the occurrence of either of clauses (i) or (ii) above prior to the termination of this restriction in accordance herewith shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the Holder Group becoming the beneficial owner of more than the Maximum Percentage of the Equity Interests of a class that is registered under the Exchange Act that is outstanding at such time. If any delivery of Equity Interests owed to the Holder following the occurrence of either of clauses (i) or (ii) above is not made, in whole or in part, as a result of this limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such Equity Interests as promptly as practicable after the Holder gives notice to the Company that such delivery would not result in such limitation being triggered or upon termination of the restriction in accordance with the terms hereof. To the extent limitations contained in this paragraph 3K apply, the determination of whether this Note is convertible and of which portion of this Note is convertible shall be the sole responsibility and in the sole determination of the Holder and the submission of a Conversion Notice shall be deemed to constitute the Holder's determination that the issuance of the full number of Note Shares requested in the Conversion Notice is permitted hereunder, and the Company shall not have any obligation to verify or confirm the accuracy of such determination. For any reason at any time, upon written or oral request of the Holder, the Company shall, within one (1) Trading Day of such request, confirm orally and in writing to the Holder the number of Equity Interests of any class then outstanding, it being understood that the Holder may rely on such confirmation from the Company for purposes of the Holder’s determination referenced in the preceding sentence. The provisions of this paragraph 3K shall be construed, corrected and implemented in a manner so as to effectuate the intended beneficial ownership limitation herein contained.

4 DELIVERABLES.

4A(1) Company Deliverables . On the date hereof (the “ Funding Date ”), the Company shall deliver or cause to be delivered to the Holder the following:

(i) a legal opinion from Hogan Lovells US LLP, special counsel to the Company; and

(ii) the Warrant and the Registration Rights Agreement, each duly executed and delivered by the Company and, in the case of the Registration Rights Agreement, each of the other parties thereto.

4A(2) Holder Deliverables . Upon execution and delivery of this Note by the Holder to the Company, the Holder shall deliver the following:

(i) the Principal Amount by wire transfer to the account set forth on Exhibit C ; and

(ii) IRS Form W-9 (or IRS Form W-8 as applicable).

5 PAYMENT OF NOTES.

5A Mandatory Prepayments.

5A(1) Maturity. The entire unpaid Principal Amount and accrued and unpaid interest (including Accrued Interest) and any other amounts due and payable under this Note shall be due and payable on the Maturity Date.

5A(2) Noteholder Put Option. At any time on or after September 7, 2021 (the “ Put Effective Date ”), the Holder may require that the Company prepay this Note, in whole or in part, by delivering a notice at least one hundred eighty (180) days prior to the requested prepayment date specified in such notice (each, a “ Prepayment Date ”) to the Company specifying the principal amount of this Note that the Holder is requesting be so prepaid and the requested date of such prepayment. Upon the Company’s receipt of such notice, the Company shall notify the Other Holders of such requested prepayment and Prepayment Date. If, within ten (10) Business Days of any Other Holder’s receipt of

such notice from the Company, any Other Holder notifies the Company that such Other Holder is requiring that its Note also be prepaid in accordance with the terms specified in paragraph 5A(2) of such Other Holder’s Note, all such Notes to be prepaid shall be prepaid on such Prepayment Date (it being understood that this Note shall be prepaid on such Prepayment Date regardless of whether any Other Holder requires its Note to be prepaid). Promptly upon the Holder’s request, the Company shall provide during such ten (10) Business Day period the Holder with information regarding which Other Holders, if any, have provided such a prepayment notice to the Company and the amounts required to be prepaid in respect of such Other Holders’ Notes. Any such prepayment shall be made by the Company at a price equal to 100% of the outstanding principal amount of the applicable Notes requested to be so prepaid, together with accrued and unpaid interest on such Notes (including Accrued Interest) to, but not including, the date of such prepayment.

5A(3) Prepayment Upon a Change of Control . Within three (3) Business Days of the occurrence of a Change of Control, the Company shall provide written notice to the Holder indicating that a Change of Control has occurred (the “ Change of Control Notice ”). Within thirty (30) days after receiving the Change of Control Notice, the Holder may, by giving written notice to the Company, require the Company to prepay this Note in an amount equal to 100% of the outstanding Principal Amount, together with accrued and unpaid interest hereon (including Accrued Interest) to, but not including, the date of prepayment. The Company shall promptly, and in any event within five (5) Business Days of its receipt of such written notice from the Holder, prepay all such amounts. If the Holder does not elect to require the Company to prepay this Note pursuant to this paragraph 5A(3) and does not elect to convert the Principal Amount and all Accrued Interest in accordance with paragraph 3 during such thirty (30) day period, the Company within thirty (30) days thereafter may prepay this Note in an amount equal to 101% of the sum of the outstanding Principal Amount and accrued and unpaid interest on such Notes (including Accrued Interest) to, but not including, the date of such prepayment.

5B No Optional Prepayments. The Company shall not, and shall not permit any of its Subsidiaries to, prepay or otherwise retire, in whole or in part, prior to the Maturity Date, or purchase or otherwise acquire, directly or indirectly, this Note; provided , however , that nothing in this paragraph 5B shall restrict the Company’s ability to prepay this Note (i) pursuant to paragraphs 5A(2) or 5A(3), (ii) as a result of the conversion of this Note in accordance with paragraph 3, (iii) as a result of the Company’s repayment of all or any portion of the Accrued Interest by delivering the Company’s Common Stock or cash in accordance with paragraph 2B, or (iv) upon the acceleration of such final maturity pursuant to paragraph 7A.

6 NEGATIVE COVENANTS . Until thirty (30) days after this Note becomes eligible for prepayment pursuant to and in accordance with paragraph 5A(2); provided , however , that if the Holder exercises its option to require the Company to prepay this Note pursuant to paragraph 5A(2) during the thirty (30) day period after the Put Effective Date, then until the Company makes such prepayment to the Holder in full, which the Company shall be permitted to make at any time (but no later than the Prepayment Date) after the expiration of the ten (10) Business Day period specified in paragraph 5A(2):

6A Restricted Payments. The Company covenants that it will not, and will not permit any Subsidiary to, make, pay or declare, or commit to make, pay or declare, any Restricted Payment; provided , that, so long as no Default or Event of Default shall have occurred and be continuing at the time of any action described below or would result therefrom, the foregoing will not prohibit the following:

(i) each Subsidiary may make Restricted Payments to the Company; and

(ii) the Company and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person.

6B Liens. The Company covenants that it will not, and will not permit any of its Subsidiaries to create, assume or suffer to exist at any time any Lien upon any of its properties or assets, whether now owned or hereafter acquired, or assign any accounts or other right to receive income, other than the following (each of the following, a “ Permitted Lien ”):

(i) Liens for taxes, assessments or other governmental charges or levies not yet due or payable or which are the subject of a Good Faith Contest;

(ii) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, landlords’, warehousemen’s, workmen’s, and repairmen’s Liens and other similar Liens arising by contract or statute in the ordinary course of business securing obligations which are not yet delinquent or which are the subject of a Good Faith Contest, Liens, pledges or deposits in connection with workers’ compensation, unemployment insurance, social security obligations (other than any Lien imposed by ERISA) or good faith deposits in connection with bids, tenders, contracts or leases to which the Company or its Subsidiaries is a party, or deposits to secure public or statutory obligations of the Company or its Subsidiaries or deposits or cash or United States government bonds to secure performance, surety or appeal bonds to which the Company or its Subsidiaries is a party, or deposits as security for contested taxes or import or customs duties or for the payment of rent, in each case incurred in the ordinary course of business, provided that in each case the obligation secured is not overdue and does not constitute Debt, easements or reservations of, rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties, or Liens incidental to the conduct of the business of the Company and its Subsidiaries or to the ownership of its properties, including minor survey exceptions and other encumbrances on title to real property, that do not, in the aggregate, render title to the property encumbered thereby unmarketable or materially adversely affect the use of such property by the Company or a Subsidiary for its intended purposes;

(iii) Liens securing judgments for the payment of money;

(iv) Liens arising solely by virtue of any statutory or common law provisions relating to banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained or deposited with a depositary institution; provided , however , that the obligations secured are not in default and that such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Company in excess of those set forth by regulations promulgated by the Federal Reserve Board and such deposit account is not intended by the Company or any of its Subsidiaries to provide collateral to the depository institution or any other Person;

(v) Liens securing Debt permitted under paragraph 6C(iv); provided that (a) such Liens do not at any time encumber any property other than the property financed by such Debt and (b) the Debt secured thereby does not exceed the cost of the property being acquired plus reasonable fees and expenses incurred in connection therewith; and

(vi) Liens incurred in connection with the extension, renewal or refinancing of the Debt secured by Liens of the type described in paragraph 6B(v) above.

6C Debt. The Company covenants that it will not, and will not permit any of its Subsidiaries to incur any Debt other than (i) Subordinated Debt, (ii) Debt in respect of the Notes issued on the date hereof and the Additional Notes, (iii) Debt incurred solely for the purpose of financing insurance premiums in the ordinary course of business, (iv) Debt incurred solely for the acquisition or lease of any property, plant or equipment acquired or held by the Company or any of its Subsidiaries for use in its business, and any refinancings, refundings, renewals or extensions thereof; provided that the amount of such Debt is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and the direct or any contingent obligor with respect thereto is not changed, as a result of or in connection with such refinancing, refunding, renewal or extension, and (v) Debt representing capital or equipment lease obligations incurred by the Company or any of its Subsidiaries in the ordinary course of business for use in its business.

6D Affiliate Transactions. The Company covenants that it will not, and will not permit any of its Subsidiaries to directly or indirectly, purchase, acquire or lease any property from, or sell, transfer or lease any property

to, pay or agree to pay any management, advisory or consulting fees to, or otherwise deal with, in the ordinary course of business or otherwise, any Affiliate other than on terms and conditions approved by a majority of the disinterested members of the Company’s board of directors or committee thereof.

6E Use of Proceeds. The Company covenants that it will not use the proceeds of the Securities (i) for any purpose other than solely for the continued pre-clinical and clinical development of the Company’s product candidates and for other general corporate purposes, or (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any margin stock or for the purpose of maintaining, reducing or retiring any indebtedness which was originally incurred to purchase or carry any stock that is currently margin stock or for any other purpose which might constitute this transaction a “purpose credit” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System. The Company further covenants that (a) neither the Company nor any agent acting on its behalf will take any action which might cause this Note or the Securities to violate Regulation T, U, or X or any other regulation of the Board of Governors of the Federal Reserve System or to violate the Exchange Act, in each case as in effect now or as the same may hereafter be in effect and (b) margin stock shall not constitute more than 25% of the value of the consolidated assets of the Company and its Subsidiaries. As used in this paragraph, the term “margin stock” shall have the meaning assigned to it in said Regulation U.

6F Prepayments of Other Notes . The Company covenants that it will not, and will not permit any of its Subsidiaries to, directly or indirectly repay, prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any distribution of securities or other property or assets in respect of, any of the Notes of the Other Holders unless the Company makes an offer in writing to repay, prepay, redeem, purchase, defease or otherwise satisfy this Note on the same equivalent terms ratably to the Holder.

6G Terrorism Sanctions Regulations. The Company covenants that it will not, and will not permit any of its Affiliated Entities to, directly or indirectly, use the proceeds of the Note, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other individual or entity, (i) to fund any activities of or business with any individual or entity, or in any jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any individual or entity (including the Holder) of Sanctions or (ii) for any purpose which would breach any applicable Anti-Corruption Laws.

6H Additional Notes and Warrants. The Company covenants that it will not issue any Notes or Warrants that are not identical to this Note and the Warrant, respectively, other than (i) the name of the applicable Holder, (ii) the principal amount of each such Note, (iii) the number of shares of Common Stock eligible for purchase under each such Warrant, (iv) the exclusion of the expense reimbursement provisions set forth herein, (v) the Applicable Conversion Price; provided that such Applicable Conversion Price will be calculated in accordance with the Purchase Agreement and (vi) the Exercise Price of the Warrant; provided that such Exercise Price will be calculated in accordance with the Purchase Agreement.

7 EVENTS OF DEFAULT .

7A Events of Default. If any of the following events shall occur and be continuing for any reason whatsoever (and whether such occurrence shall be voluntary or involuntary or come about or be effected by operation of law or otherwise):

(i) the Company defaults in the payment of any principal or interest (unless the Company elects to accrue such interest in accordance with paragraph 2B) with respect to this Note when the same shall become due, either by the terms thereof or otherwise as herein provided; or

(ii) the Company defaults in the payment of any other amount due under this Note (other than amounts due under clause (i) of this paragraph 7A) for more than five (5) days after the date due; or

(iii) the Company or any of its Subsidiaries shall (a) default in any payment of any amount or amounts of principal of or interest on any other Note or (b) default in any payment of any amount or amounts of

principal of or interest on any other Debt (other than the Debt hereunder) after any applicable cure period, the aggregate principal amount of which Debt is in excess of $5,000,000; or

(iv) any representation or warranty made by the Company in this Note shall be false on the date as of which made except for any such inaccuracies that would not reasonably be expected to have a Material Adverse Effect (without duplication of any materiality qualifier therein); or

(v) the Company fails to perform or observe any agreement contained in paragraphs 5B, 6 or 12B; or

(vi) the Company fails to perform or observe (x) any other agreement, term or condition contained in this Note (other than paragraph 3 or paragraphs 5B, 6 or 12B) or (y) in a material way any agreement, term or condition contained in paragraph 3, and in the case of each of clauses (x) or (y), such failure shall not be remedied within thirty (30) days after any Responsible Officer obtains actual knowledge thereof; or

(vii) the Company or any Subsidiary makes an assignment for the benefit of creditors or is generally unable to pay its debts as such debts become due; or

(viii) any decree or order for relief in respect of the Company or any Subsidiary is entered under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law, whether now or hereafter in effect (herein called the “ Bankruptcy Law ”), of any jurisdiction; or

(ix) the Company or any Subsidiary petitions or applies to any tribunal for, or consents to, the appointment of, or taking possession by, a trustee, receiver, custodian, liquidator or similar official of the Company or Subsidiary, or of any substantial part of the assets of the Company or Subsidiary, or commences a voluntary case under the Bankruptcy Law of the United States of America or any proceedings (other than proceedings for the voluntary liquidation and dissolution of a Subsidiary) relating to the Company or Subsidiary under the Bankruptcy Law of any other jurisdiction; or

(x) any such petition or application is filed, or any such proceedings are commenced, against the Company or Subsidiary and the Company or Subsidiary by any act indicates its approval thereof, consent thereto or acquiescence therein, or an order, judgment or decree is entered appointing any such trustee, receiver, custodian, liquidator or similar official, or approving the petition in any such proceedings, and such order, judgment or decree remains unstayed and in effect for more than sixty (60) days; or

(xi) any order, judgment or decree is entered in any proceedings against the Company decreeing the dissolution of the Company and such order, judgment or decree remains unstayed and in effect for more than sixty (60) days; or

(xii) this Note, at any time after its execution and delivery, ceases for any reason to be in full force and effect; or the Company contests in any manner the validity or enforceability of this Note; or the Company denies that it has any or further liability or obligation under this Note, or purports to revoke, terminate or rescind this Note; or

(xiii) the Common Stock issuable upon conversion of all or a portion of the Principal Amount or any Accrued Interest ceases to be listed or quoted on any of the NASDAQ or other national securities exchange;

then (1) if such event is an Event of Default specified in clause (viii), (ix) or (x) of this paragraph 7A, this Note shall automatically become immediately due and payable together with interest accrued thereon (including Accrued Interest) and together with any fees or other amounts then owing under the Transaction Documents, without presentment, demand, protest or notice of any kind, all of which are hereby waived by the Company, and (2) with respect to any other event constituting an Event of Default hereunder, the Holder may at its option, by notice in writing to the Company, declare this Note to be, and this Note shall thereupon be and become, immediately due and payable together with

interest accrued thereon (including Accrued Interest) and together with any fees or other amounts then owing under the Transaction Documents, without presentment, demand, protest or additional notice of any kind, all of which are hereby waived by the Company.

7B Rescission of Acceleration. At any time after this Note shall have been declared immediately due and payable pursuant to paragraph 7A, the Holder may, by notice in writing to the Company, rescind and annul such declaration and its consequences if (i) the Company shall have paid all overdue interest on this Note, all overdue fees and other amounts owing under the Transaction Documents, if any, payable with respect to this Note, the principal of this Note which has become due otherwise than by reason of such declaration, and interest on such overdue interest, fees and other amounts and principal at the Default Rate, (ii) the Company shall not have paid any amounts which have become due solely by reason of such declaration, (iii) all Events of Default and Defaults, other than non-payment of amounts which have become due solely by reason of such declaration, shall have been cured or waived pursuant to paragraph 12B, and (iv) no judgment or decree shall have been entered for the payment of any amounts due pursuant to this Note. No such rescission or annulment shall extend to or affect any subsequent Event of Default or Default or impair any right arising therefrom.

7C Notice of Acceleration or Rescission. Whenever any Note shall be declared immediately due and payable pursuant to paragraph 7A of the applicable Note or any such declaration shall be rescinded and annulled pursuant to paragraph 7B of the applicable Note, the Company shall forthwith give notice thereof to each Holder.

7D Other Remedies. If any Event of Default or Default shall occur and be continuing, the Holder may proceed to protect and enforce its rights hereunder this Note and under the other Transaction Documents by exercising such remedies as are available to the Holder thereunder and in respect thereof under applicable law, either by suit in equity or by action at law, or both, whether for specific performance of any covenant or other agreement contained in this Note or any other Transaction Document or in aid of the exercise of any power granted in this Note or any other Transaction Document. No remedy conferred in this Note or any other Transaction Document upon or for the benefit of the Holder is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy conferred herein, in any other Transaction Document or now or hereafter existing at law or in equity or by statute or otherwise. NO PARTY HEREUNDER SHALL BE LIABLE UNDER THIS NOTE OR ANY OTHER TRANSACTION DOCUMENT TO ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE OR SPECIAL DAMAGES (AS OPPOSED TO ACTUAL OR DIRECT DAMAGES) SUFFERED BY ANY OTHER PERSON (INCLUDING DAMAGES FOR HARM TO BUSINESS, LOST REVENUES, LOST SAVINGS OR LOST PROFITS SUFFERED BY SUCH PERSON), WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, TORT OR OTHERWISE, INCLUDING NEGLIGENCE OF ANY KIND, WHETHER ACTIVE OR PASSIVE, AND REGARDLESS OF WHETHER THE POSSIBILITY THAT SUCH DAMAGES COULD RESULT WAS KNOWN.

8 REPRESENTATIONS AND WARRANTIES. The Company represents and warrants, in each case, as of the date hereof as follows:

8A Organization; Subsidiaries. The Company and each of its Subsidiaries is duly organized and existing in good standing in every jurisdiction in which it is incorporated or organized and is licensed or qualified to do business and in good standing in every jurisdiction where the ownership of its properties or the nature of the business conducted by it makes such licensing or qualification necessary, except where the failure to be licensed or qualified could not reasonably be expected to have a Material Adverse Effect.

8B Power and Authority. Each of the Company and its Subsidiaries has all requisite organizational power to conduct its business as currently conducted and as currently proposed to be conducted. The Company has all requisite organizational power to execute and deliver the Transaction Documents and perform its obligations under such Transaction Documents. The execution, delivery and performance of the Transaction Documents and the transactions contemplated thereby have been duly authorized by all requisite action, and such Transaction Documents have been duly executed and delivered by Responsible Officers of the Company and are valid obligations of the Company, legally binding upon and enforceable against the Company in accordance with their terms, except as such

enforceability may be limited by (i) bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

8C Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other Governmental Authority or other Person in connection with the execution, delivery and performance by the Company of this Note, other than: (i) the filings required pursuant to paragraphs 10D and 10E of this Note, (ii) the notice and/or application(s) to the NASDAQ for the issuance of the Underlying Shares and the listing of the Underlying Shares for trading thereon in the time and manner required thereby and (iii) the filing of Form D with the SEC and such filings as are required to be made under applicable state securities laws.

8D SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the one (1) year preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “ SEC Reports ”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act.

8E Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by this Note or such information that will be publicly disclosed no later than 9:00 a.m. (New York City time) on the Trading Day immediately following the date hereof, the Company confirms that neither it nor any other Person acting on its behalf has provided the Holder or its agents or counsel with any information that it believes constitutes or might constitute material, non-public information. The Company understands and confirms that the Holder will rely on the foregoing representation in effecting transactions in securities of the Company. The Company acknowledges and agrees that the Holder is not making and has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in paragraph 9 hereof or in the Holder’s Accredited Investor Questionnaire.

8F Sanctions; Anti-Corruption Laws; etc.

(i) Neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any director, officer, employee, agent, or Affiliate of the Company or any of its Subsidiaries, is a Person that is, or is owned or controlled by Persons that are: (a) a Sanctions Target; or (b) located, organized or resident in a Sanctioned Jurisdiction.

(ii) The Company, its Subsidiaries and, to the knowledge of the Company, their respective directors, officers, employees, and agents, are in compliance with the Sanctions Laws.

(iii) The Company and its Subsidiaries have instituted and maintain policies and procedures designed to promote and achieve continued compliance with Sanctions Laws and Anti-Corruption Laws.

(iv) 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 taken any action, directly or indirectly, that would reasonably be expected to result in a violation by such Persons of Anti-Corruption Laws.

8G Capitalization. This Note and the Warrant, when issued, sold and delivered in accordance with the terms hereof for the consideration and on the terms and conditions set forth herein, will be duly authorized and validly

issued, fully paid and non-assessable and, based in part upon the representations of Holder in this Note, will be issued in compliance with all applicable federal and state securities laws, and such issuance ýdoes not require registration of the issuance or sale of the Notes and Warrants under Section 5 of the Securities Act or pursuant to the provisions of any securities or blue sky law of any applicable jurisdiction. No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act is applicable to the Company or, to the Company’s knowledge, any Company Covered Person, except for such disqualification event as to which Rule 506(d)(2)(ii-iv) or (d)(3) of the Securities Act is applicable. Sufficient shares of authorized but unissued Common Stock have been reserved by appropriate corporate action of the Company in connection with the prospective conversion of the Notes (including the Accrued Interest (as defined herein and therein) with respect thereto) and exercise of the Warrants. The issuance of the Underlying Shares (a) does not require any further corporate action by the stockholders of the Company, other than as has been obtained, or the board of directors of the Company, (b) is not subject to the pre-emptive rights or rights of first refusal of any present or future stockholders of the Company, and (c) does not conflict in any material respect with any provision of any agreement to which the Company is a party or by which it is bound except for any such conflicts that would not reasonably be expected to have a material effect on the rights and benefits of the Holder under the Transaction Documents. The Underlying Shares, when issued upon the conversion of this Note (including the Accrued Interest (as defined herein and therein) with respect thereto) or exercise of the Warrant, as applicable, in each case in accordance with their terms, against payment of the exercise price therefor in the case of the Warrant Shares, will be duly authorized, validly issued, fully paid and non-assessable.

8H Other Notes and Warrants . Notes in favor of each of the Other Holders as of the date hereof in an aggregate principal amount of $[________] have been executed and delivered to such Other Holders, and such Other Holders have funded such amount to the Company, as of the Funding Date. Warrants in favor of each of the Other Holders as of the date hereof representing the right to purchase initially up to an aggregate of [__________] shares of Common Stock of the Company have been executed and delivered to such Other Holders as of the Funding Date. The Notes and Warrants to be issued to each of the Other Holders will be identical to this Note and the Warrant, respectively, other than (i) the name of the applicable Holder, (ii) the principal amount of each such Note, (iii) the number of shares of Common Stock eligible for purchase under each such Warrant, (iv) the exclusion of the expense reimbursement provisions set forth herein, (v) the Applicable Conversion Price; provided that such Applicable Conversion Price will be calculated in accordance with the Purchase Agreement and (vi) the Exercise Price of the Warrant; provided that such Exercise Price will be calculated in accordance with the Purchase Agreement.

9 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE HOLDER.

9A Nature of Purchase. The Holder represents that it is purchasing the Securities for its own account or for one or more separate accounts maintained by the Holder or for the account of one or more pension or trust funds over which the Holder has investment discretion and not with a view to the distribution thereof, provided that the disposition of its property shall at all times be within its or their control. The Holder understands that this Note, the Warrant and the Underlying Shares have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and that the Company is not required to register this Note or the Warrant.

9B Accredited Investor. The Holder represents that it is an “accredited investor” (as defined in Rule 501(a) of Regulation D under the Securities Act acting for its own account (and not for the account of others) or as a fiduciary or agent for others (which others are also “accredited investors”). The Holder further represents that it has had the opportunity to ask questions of the Company and received answers concerning the terms and conditions of the sale of the Securities.

9C Plan or Intent to Sell. At the time of issuance of this Note and the Warrant, the Holder has no plan or intention to sell, exchange, distribute, dispose of or otherwise transfer this Note, the Warrant, or any equity issuable upon conversion of this Note, the conversion of Accrued Interest or exercise of the Warrants.

9D Treatment of Notes. The Holder shall treat this Note as indebtedness for all purposes, including U.S. federal income tax purposes.

10 COVENANTS RELATED TO THE NOTE SHARES

10A Reporting Status . The Company will promptly take such action as may be necessary to maintain status as a public reporting company, including filing timely all reports required to be filed with the SEC pursuant to the Exchange Act until such time as there ceases to be Registrable Shares.

10B NASDAQ Listing .

10B(1) The Company will comply in all material respects with the Company’s reporting, filing and other obligations under the rules of the Nasdaq Stock Market, LLC (together with its successors, the “ NASDAQ ”) or any other national securities exchange on which the Company’s Common Stock is listed until such time as there cease to be Registrable Shares.

10B(2) The Company shall promptly take any and all actions, including by submitting notifications of issuance, applications for listing of additional shares and change in the number of shares outstanding notifications, as may be necessary to ensure that the Common Stock issued upon conversion of all or any portion of the Principal Amount or Accrued Interest and Common Stock issued upon exercise of the Warrant are eligible to trade on the NASDAQ or any other national securities exchange on which the Common Stock is listed.

10C Rule 144. With a view to making available to the Holder the benefits of certain rules and regulations of the SEC that at any time permit the sale of the Registrable Shares to the public without registration, until such time as all Note Shares have been disposed of to the public pursuant to an effective registration statement or Rule 144 under the Securities Act or can be sold without restriction, including the availability of current public information, under Rule 144 under the Securities Act, the Company shall use its commercially reasonable efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act, at all times; and (ii) furnish to the Holder, upon the Holder’s reasonable request, a written statement by the Company as to its compliance with Rule 144 under the Securities Act, and of the Exchange Act and such other reports and documents of the Company as the Holder may reasonably request in availing itself of any rule or regulation of the SEC allowing a holder to sell any such securities without registration.

10D Notifications to NASDAQ . Prior to the Funding Date, the Company shall promptly take any and all actions, including by submitting any “Notification of Issuance,” “Application for Listing of Additional Shares” or “Notification: Change in the Number of Shares Outstanding”, and make all certifications as may be required by NASDAQ or any other national securities exchange on which the Company’s Common Stock is listed to ensure that the Underlying Shares issued upon conversion of all or any portion of the Principal Amount or Accrued Interest or exercise of the Warrant are eligible to trade on such exchange, and as of the Funding Date, NASDAQ shall have in effect approved such listing application by confirming that it does not have any additional comments to such application.

10E Press Releases; Current Report on Form 8-K . The Company shall issue a press release and file a current report on Form 8-K with the SEC, describing the transactions contemplated by this Note, in each case in form and substance reasonably satisfactory to the Required Noteholders, on or before 9:00 a.m., New York City time, on the first Business Day following the Funding Date.

10F Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company covenants and agrees that neither it, nor any other Person acting on its behalf, will provide the Holder, or the Holder’s agents or counsel, with any information that the Company believes constitutes material non-public information, unless prior thereto the Holder shall have entered into a written agreement with the Company regarding the confidentiality and use of such information. The Company understands and confirms that the Holder shall be relying on the foregoing covenant in effecting transactions in securities of the Company.

10G Form D; Blue Sky Filings. The Company agrees to timely file a Form D with respect to the Securities as required under Regulation D and to provide a copy thereof, promptly upon request of the Holder. The Company shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the Securities for, sale to the Holder on the Funding Date under applicable securities or “Blue Sky” laws of the states of the United States, and shall provide evidence of such actions promptly upon request of the Holder.

11 DEFINITIONS. For the purpose of this Note, the terms defined in paragraph 11 (or within the text of any other paragraph) shall have the respective meanings specified therein.

“ Accrued Interest ” shall have the meaning specified in paragraph 2B.

“ Accrued Interest Conversion Date ” shall have the meaning specified in paragraph 3B.

“ Accrued Interest Conversion Election Notice ” shall have the meaning specified in paragraph 2B.

“ Accrued Interest Conversion Price ” shall have the meaning specified in paragraph 3B.

“ Additional Notes ” shall mean any Notes issued after the date hereof and before December 31, 2016.

“ Affiliate ” shall mean any Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, the Company or another specified Person, except a Subsidiary of the Company. A Person shall be deemed to control another Person if such first Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise. Notwithstanding anything to the contrary in this definition, the Holder shall not be deemed to be an Affiliate of the Company or any of its Subsidiaries solely by virtue of this Note.

“ Affiliated Entity ” shall mean the Subsidiaries of the Company and any of their or the Company’s respective Affiliates.

“ Anti-Corruption Laws ” shall mean all laws, rules, regulations and requirements of any jurisdiction applicable to the Company and its Affiliates concerning or relating to bribery or corruption, including the Foreign Corrupt Practices Act of 1977, as amended.

“ Applicable Conversion Price ” shall mean $[__]*, as may be adjusted pursuant to the terms hereof.

* Calculated as the greater of (a) $1.01, plus $0.12625 or (b) the last closing bid price of a share of the Company’s Common Stock as reported on the NASDAQ on the date in which the Holder executed the counterpart to the Purchase Agreement, plus $0.12625.

“ Bankruptcy Law ” shall have the meaning specified in clause (viii) of paragraph 7A.

“ Business Day ” shall mean any day other than a Saturday, a Sunday or a day on which commercial banks in New York City are required or authorized to be closed.

“ Buy-In ” shall have the meaning specified in paragraph 3C(2).

“ Change of Control ” shall mean an event or series of events by which any of the following occurs:

(a) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act files a Schedule 13D or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect ultimate beneficial owner of common equity of the Company representing more than a majority (or, if such person or group is a Permitted Holder, 66.7%) of the voting power of the outstanding Common Stock;

(b) consummation of any consolidation or merger of the Company or similar transaction or any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any Person, in each case pursuant to which the Common Stock will be converted into cash, securities or other property, other than pursuant to a transaction in which the Persons that beneficially owned, directly or indirectly, voting shares of the Company immediately prior to such transaction beneficially own, directly or indirectly, voting shares representing more than a majority (or, if such Persons are Permitted Holders, 66.7%) of the total voting power of all outstanding classes of voting shares of the continuing or surviving Person immediately after the transaction; or

(c) the Company’s stockholders approve and adopt a plan of liquidation or dissolution of the Company or a sale of all or substantially all of the Company’s assets.

“ Change of Control Notice ” shall have the meaning specified in paragraph 5A(3).

“ Code ” shall mean the Internal Revenue Code of 1986, as amended.

“ Common Stock ” shall mean (i) the Company’s Common Stock, $0.001 par value per share and (ii) any other securities into which or for which any of the securities described in clause (i) above have been converted or exchanged pursuant to a plan of recapitalization, reorganization, merger, sale of assets or otherwise.

“ Company ” shall have the meaning specified in the first introductory paragraph of this Note.

“ Company Covered Person ” shall mean, with respect to the Company as an “issuer” for purposes of Rule 506 promulgated under the Securities Act, any Person listed in the first paragraph of Rule 506(d)(1) of the Securities Act.

“ Conversion Date ” shall mean a Principal Conversion Date or an Accrued Interest Conversion Date, as applicable.

“ Conversion Notice ” shall have the meaning specified in paragraph 3A.

“ Conversion Shares ” shall have the meaning specified in paragraph 3C(1).

“ Debt ” shall mean, with respect to any Person, without duplication (i) indebtedness for borrowed money (including revolving credit line borrowings or indebtedness evidenced by notes payable, commercial paper, interest that has accrued and become payable and the payment of which has been satisfied by non-cash consideration, drafts accepted representing extensions of credit and unpaid reimbursement obligations in respect of letters of credit), (ii) rental obligations which, under GAAP, is or will be required to be capitalized on the books of such Person, taken at the amount thereof accounted for as indebtedness (net of interest expense) in accordance with such principles, (iii) indebtedness of a third party which is secured by any Lien on property owned by such Person, whether or not the obligation secured thereby shall have been assumed, (iv) the face amount of letters of credit, bankers’ acceptances and other extensions of credit (other than ordinary-course trade payables), (v) all Hedging Obligations, (vi) redemption or repurchase obligations with respect to mandatorily redeemable or repurchasable Equity Interests or Equity Interests which are subject to repurchase at the option of the holder thereof prior to ninety (90) days after the Maturity Date, (vii) all obligations for the deferred purchase price of property or services (other than trade or other accounts payable in the ordinary course of business), (viii) bank overdrafts (including, at any time, the excess of outstanding checks over bank account balances at such time), and (ix) all obligations of the sort described in the foregoing clauses with respect to which such Person has become liable by way of a Guaranty.

“ Default Rate ” shall mean 12.00%; provided that the Default Rate with respect to Accrued Interest shall be 4.00%.

“ Delivery Date ” shall have the meaning specified in paragraph 3C(1).

“ DOJ ” shall have the meaning specified in paragraph 3J(2).

“ DTC ” shall have the meaning specified in paragraph 3C(1).

“ Equity Interests ” shall mean and include capital stock, membership interests and other similar equity interests, and shall also include warrants or options to purchase capital stock, membership interests or other equity interests.

“ ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“ Event of Default ” shall mean any of the events specified in paragraph 7A, provided that there has been satisfied any requirement in connection with such event for the giving of notice, or the lapse of time, or the happening of any further condition, event or act, and “ Default ” shall mean any of such events, whether or not any such requirement has been satisfied.

“ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“ Executive Order ” shall mean the Executive Order No. 13224 of September 23, 2001, entitled Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism.

“ Fair Market Value ” shall mean, with respect to any security or other property, the fair market value of such security or other property as determined by the Company’s board of directors, acting in good faith.

“ First Interest Payment Date ” shall have the meaning specified in paragraph 2A.

“ FTC ” shall have the meaning specified in paragraph 3J(2).

“ Funding Date ” shall have the meaning specified in paragraph 4A(1).

“ GAAP ” shall mean generally accepted accounting principles as in existence in the United States of America from time to time.

“ Good Faith Contest ” shall mean an active challenge or contest initiated in good faith by appropriate proceedings diligently conducted for which adequate reserves have been established in accordance with GAAP.

“ Governmental Authority ” shall mean the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“ Guaranty ” shall mean, with respect to any Person, any direct or indirect liability, contingent or otherwise, of such Person with respect to any Debt, lease, dividend or other obligation of another, including any such obligation directly or indirectly guaranteed, endorsed (otherwise than for collection or deposit in the ordinary course of business) or discounted or sold with recourse by such Person, or in respect of which such Person is otherwise directly or indirectly liable, including any such obligation in effect guaranteed by such Person through any agreement (contingent or otherwise) to (i) maintain the solvency or any balance sheet or other financial condition of another Person or (ii) make payment for any products, materials or supplies or for any transportation or services regardless of the non-delivery or non-furnishing thereof, in any such case if the purpose or effect of such agreement is to provide assurance that such

obligation will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such obligation will be protected against loss in respect thereof. Guaranties shall include obligations of partnerships and joint ventures of which such Person is a general partner or co-venturer that are not expressly non-recourse to such Person.

“ Hedging Obligations ” of any Person shall mean such Person’s obligations under (i) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (ii) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.

“ Holder ” shall have the meaning specified in the introductory paragraph of this Note.

“ Holder Group ” shall mean the Holder plus any other Person with which the Holder is considered to be part of a group under Section 13 of the Exchange Act or with which the Holder otherwise files reports under Sections 13 and/or 16 of the Exchange Act. In determining the number of Equity Interests of a particular class outstanding at any point in time, the Holder may rely on the number of outstanding Equity Interests of such class as reflected in (i) the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q filed with the SEC, as the case may be, (ii) a more recent public announcement by the Company or (iii) a more recent notice by the Company or its transfer agent to the Holder setting forth the number of Equity Interests of such class then outstanding.

“ Holders ” shall have the meaning specified in paragraph 1A.

“ HSR Act ” shall have the meaning specified in paragraph 3J(2).

“ including ” shall mean, unless the context clearly requires otherwise, “including without limitation.”

“ Indemnitee ” shall have the meaning specified in paragraph 12A(2).

“ Interest Payment Date ” shall have the meaning specified in paragraph 2A.

“ Intrexon ” shall mean Intrexon Corporation and its Affiliates (other than the Company and its Subsidiaries).

“ Lien ” shall mean any mortgage, pledge, security interest, encumbrance, deposit agreement, lien (statutory or otherwise) or charge of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement), or any other type of preferential arrangement for the purpose, or having the effect, of protecting a creditor against loss or securing the payment or performance of an obligation.

“ Market Price ” shall mean, with respect to the Common Stock, on any given day, the closing sale price or, if no closing sale price is reported, the last reported sale price of the shares of the Common Stock on the NASDAQ on such date. If the Common Stock is not traded on the NASDAQ on any date of determination, the Market Price of the Common Stock on such date of determination shall mean the closing sale price as reported in the composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is so listed or quoted, or, if no closing sale price is reported, the last reported sale price on the principal U.S. national or regional securities exchange on which the Common Stock is so listed or quoted, or if the Common Stock is not so listed or quoted on a U.S. national or regional securities exchange, the last quoted bid price for the Common Stock in the over-

the-counter market as reported by the OTC Markets Group or similar organization, or, if that bid price is not available, the market price of the Common Stock on that date as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose.

“ Material Adverse Effect ” shall mean a material adverse effect on (i) the business, operations, property or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole, (ii) the ability of the Company to perform its obligations under the Transaction Documents, or (iii) the validity or enforceability of this Note or any of the other Transaction Documents, or the rights and remedies of the Holder under or in respect of any of the Transaction Documents.

“ Maturity Date ” shall have the meaning specified in the second introductory paragraph of this Note.

“ Maximum Percentage ” shall mean 4.99%; provided , that if at any time after the date hereof the Holder Group beneficially owns in excess of 4.99% of any class of Equity Interests in the Company that is registered under the Exchange Act (excluding any Equity Interests deemed beneficially owned by virtue of this Note or the Warrant), then the Maximum Percentage shall automatically increase to 9.99% so long as the Holder Group owns in excess of 4.99% of such class of Equity Interests (and shall, for the avoidance of doubt, automatically decrease to 4.99% upon the Holder Group ceasing to own in excess of 4.99% of such class of Equity Interests).

“ NASDAQ ” shall have the meaning specified in paragraph 10B(1).

“ Note ” shall mean this Convertible Promissory Note as amended, restated, supplemented or otherwise modified from time to time.

“ Notes ” shall have the meaning specified in paragraph 1A.

“ Note Shares ” shall mean collectively the shares of Common Stock of the Company issuable upon conversion of all or any portion of the Principal Amount and Accrued Interest in accordance with the terms hereof, as such number may be adjusted pursuant to the provisions hereof, and any other Securities to which the holder may become entitled pursuant to the terms hereof.

“ OFAC ” shall mean the Office of Foreign Assets Control of the U.S. Department of the Treasury.

“ Organizational Documents ” shall mean, (i) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (ii) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (iii) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

“ Other Holders ” shall have the meaning specified in paragraph 1A.

“ Permitted Holders ” shall mean Randal J. Kirk and his Affiliates (other than the Company and its Subsidiaries).

“ Permitted Lien ” shall have the meaning specified in paragraph 6B.

“ Person ” shall mean and include an individual, a partnership, a joint venture, a corporation, a limited liability company, a trust, an unincorporated organization and a government or any department or agency thereof.

“ Prepayment Date ” shall have the meaning specified in paragraph 5A(2).

“ Principal Amount ” shall have the meaning specified in the first introductory paragraph of this Note.

“ Principal Conversion Date ” shall have the meaning specified in paragraph 3A.

“ Purchase Agreement ” shall have the meaning specified in paragraph 1A.

“ Purchase Price ” shall have the meaning specified in paragraph 1C.

“ Put Effective Date ” shall have the meaning specified in paragraph 5A(2).

“ Registrable Shares ” shall have the meaning ascribed to such term in the Registration Rights Agreement.

“ Registration Rights Agreement ” shall mean that certain Registration Rights Agreement dated as of the Funding Date by and among the Company and the Holders.

“ Related Holder Party ” shall mean all Affiliates, officers, directors, agents, consultants and employees of the Holder.

“ Required Noteholders ” shall mean, at any time, the holders of at least 70% in principal amount of the Notes at the time outstanding (exclusive of Notes then owned by the Company or any of its Affiliates (other than Intrexon)).

“ Responsible Officer ” shall mean the chief executive officer, chief operating officer, chief administrative officer or chief financial officer of the Company or any other officer of the Company involved principally in its financial administration or its controllership function.

“ Restricted Payments ” shall mean any of the following:

(i) any dividend on any class of the Company’s or a Subsidiary’s Equity Interests;

(ii) any other distribution on account of any class of the Company’s or a Subsidiary’s Equity Interests; or

(iii) any redemption, purchase or other acquisition, direct or indirect, of any Equity Interests of the Company or a Subsidiary other than (A) the net or cashless exercise of any warrants or options or (B) the repurchase of common stock in connection with the net exercise of vested options, restricted stock or restricted stock awards.

“ Sanctioned Jurisdiction ” shall mean, at any time, a country, territory or geographical region which is itself the subject or target of any Sanctions (including Cuba, Iran, North Korea, Sudan, Crimea and Syria).

“ Sanctions ” shall mean economic or financial sanctions, requirements or trade embargoes imposed, administered or enforced from time to time by Governmental Authorities.

“ Sanctions Laws ” shall mean all laws, rules, regulations and requirements of any jurisdiction applicable to the Company and its Affiliates concerning or relating to Sanctions, terrorism or money laundering, including (i) the Executive Order; (ii) the USA Patriot Act; (iii) the U.S. International Emergency Economic Powers Act; (iv) the U.S. Trading with the Enemy Act; (v) the U.S. United Nations Participation Act; (vi) the U.S. Syria Accountability and Lebanese Sovereignty Act; (vii) the U.S. Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010; (viii) the Iran Sanctions Act, Section 1245 of the National Defense Authorization Act of 2012; and (ix) any similar laws, rules, regulations and requirements enacted, administered or enforced by the U.S.

“ Sanctions Target ” shall mean any Person: (i) that is the subject or target of any Sanctions; (ii) listed in the annex to, or otherwise subject to the provisions of, the Executive Order; (iii) named in any Sanctions-related list

maintained by OFAC, the U.S. Department of State, the U.S. Department of Commerce or the U.S. Department of the Treasury, including the “Specially Designated National and Blocked Person” list; (iv) located, organized or resident in a Sanctioned Jurisdiction that is, or whose government is, the subject or target of Sanctions; (v) which otherwise is the subject or target of any Sanction; (vi) with which any party to the Transaction Documents is prohibited from dealing or otherwise engaging in any transaction by any Sanctions Laws; or (vii) owned or controlled by any such Person or Persons described in the foregoing clauses (i)-(vi).

“ SEC ” shall mean the U.S. Securities and Exchange Commission.

“ SEC Report ” shall have the meaning specified in paragraph 8D.

“ Securities ” shall mean, collectively, this Note and the Warrant (and, unless the context clearly requires otherwise, the applicable Note Shares and Warrant Shares).

“ Securities Act ” shall mean the Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“ Subordinated Debt ” shall mean unsecured Debt of the Company or any of its Subsidiaries that is expressly subordinated and made junior to the payment and performance in full of the obligations under and in respect of the Note and the other Transaction Documents and evidenced as such by a written instrument containing subordination terms and provisions in form and substance approved by the Required Noteholders in writing.

“ Subsidiary ” shall mean, as of any time of determination and with respect to any Person, any United States corporation, partnership, limited liability company or limited liability partnership, all of the stock (or other equity interest) of every class of which, except directors’ qualifying shares (or any equivalent), shall, at such time, be owned by such Person either directly or through Subsidiaries and of which such Person or a Subsidiary shall have 100% control thereof, except directors’ qualifying shares. Unless the context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the Company.

“ Trading Day ” shall mean, at any time, a day on which the NASDAQ is open for the general trading or quotation of securities and the Common Stock is traded or quoted thereon without suspension or interruption.

“ Transaction Documents ” shall mean this Note, the Warrant, the Registration Rights Agreement, and any and all other agreements, documents, certificates and instruments from time to time executed and delivered by or on behalf of the Company related to any of the foregoing.

“ Transferee ” shall mean any direct or indirect transferee of all or any part of any Security purchased under this Note.

“ Underlying Shares ” shall mean the Note Shares and the Warrant Shares.

“ USA Patriot Act ” shall mean United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA) PATRIOT ACT) Act of 2001, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“ Warrant Shares ” shall mean collectively the shares of Common Stock of the Company issuable upon exercise of the Warrant in accordance with its terms, as such number may be adjusted pursuant to the provisions thereof, and any other Securities to which the Holder may become entitled pursuant to the terms of the Warrant.

“ Warrant ” and “ Warrants ” shall have the meaning specified in paragraph 1B.

12 MISCELLANEOUS .

12A Expenses; Indemnity.

12A(1) Indemnification.

(i) The Company shall indemnify the Holder and each Related Holder Party (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges and disbursements of one (1) counsel for such Indemnitees), incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Company) other than such Indemnitee and its Related Holder Parties arising out of, in connection with, or as a result of the execution or delivery of this Note, any other Transaction Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the Company against an Indemnitee for breach of such Indemnitee’s obligations hereunder or under any other Transaction Document, if the Company has obtained a final and non-appealable judgment in its favor on such claim as determined by a court of competent jurisdiction. This paragraph 12A(1)(i) shall not apply with respect to any taxes, other than any taxes that represent losses, claims, damages, etc. arising from any non-tax claim.

(ii) Each Indemnitee entitled to indemnification under paragraph 12A(1)(i) shall give notice to the Company promptly after such Indemnitee has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Company (at its expense) to assume the defense of any such claim or any litigation resulting therefrom, provided , however , that the Indemnitee may participate in such defense provided that all legal and other expenses incurred by the Indemnitee in connection therewith shall be at such Indemnitee’s expense, and, provided further , that the failure of any Indemnitee to give notice as provided herein shall not relieve the Company of its obligations under this Note, unless such failure is materially prejudicial to the Company in defending such claim or litigation. The Company shall not be liable for any settlement of an action or claim effected without its written consent (which consent will not be unreasonably withheld).

12A(2) Survival. The obligations of the Company under paragraphs 12A(1) shall survive the transfer of this Note or portion hereof or interest herein by the Holder or any Transferee and the payment of this Note.

12B Consent to Amendments. Any term of this Note or the Securities may be amended, and the Company may take any action herein prohibited, or compliance therewith may be waived, only if the Company shall have obtained the written consent (and not without such written consent) to such amendment, action or waiver from the Holder; provided , that (i) in addition to the consent of the Holder, no consent, amendment or waiver to paragraph 6 or clauses (iii), (iv), (v), (vi), (xii) or (xiii) of paragraph 7A shall be made without the written consent of the Required Noteholders, (ii) in addition to the consent of the Holder, no consent, amendment or waiver to this paragraph 12B shall be made without the written consent of each Other Holder, (iii) if any Other Holder receives any remuneration or compensation as consideration for any consent, amendment or waiver to its Note, then such remuneration or compensation shall be concurrently delivered ratably to all Holders of then outstanding Notes, on the same equivalent terms, and (iv) with respect to any other consent, amendment or waiver to this Note, the Company shall offer to each Other Holder the ability to make a corresponding consent, amendment or waiver to such Other Holder’s Note. No course of dealing between the Company and the Holder nor any delay in exercising any rights hereunder shall operate as a waiver of any rights of the Holder.

12C Survival of Representations and Warranties. All representations and warranties contained herein or in any other Transaction Document for the benefit of the Holders or made in writing by or on behalf of the Company to the Holders in connection herewith or any other Transaction Document shall survive the execution and delivery of

this Note and the other Transaction Documents and the payment of any Note; provided , however , that such representations and warranties may not be relied upon by any Transferee.

12D Registration of Note . The Company shall register and record transfers, exchanges, reissuances and cancellations of this Note and the Principal Amount and Accrued Interest outstanding thereunder, upon the records to be maintained by the Company for that purpose, in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Note as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary. The Company shall be entitled to rely, and held harmless in acting or refraining from acting in reliance upon, any notices, instructions or documents it believes in good faith to be from an authorized representative of the Holder.

12E Successors and Assigns. Subject to paragraphs 12A(2) and 12C, all covenants and other agreements by or on behalf of any of the parties hereto contained in this Note and the other Transaction Documents shall bind and inure to the benefit of the respective successors and assigns of the parties hereto (including any Transferee) whether so expressed or not; provided that the Company may not assign its rights or obligations hereunder to any Person.

12F Notices. All notices, requests, demands and other communications that are required or may be given pursuant to the terms of this Note shall be in writing and shall be deemed delivered (i) on the date of delivery when delivered by hand on a Business Day during normal business hours or, if delivered on a day that is not a Business Day or after normal business hours, then on the next Business Day, (ii) on the date of transmission when sent by facsimile transmission or email during normal business hours on a Business Day with telephone confirmation of receipt or, if transmitted on a day that is not a Business Day or after normal business hours, then on the next Business Day, or (iii) on the second Business Day after the date of dispatch when sent by a reputable courier service that maintains records of receipt; provided , however , that, in any such case, such communication is addressed, if to the Holder, as specified for such communications on Exhibit A , and if to the Company, as follows, or, in each case, to such other address as the Company or the Holder may designate in a written notice to the other pursuant to this paragraph 12F:

if to the Company, to:

Fibrocell Science, Inc.

405 Eagleview Blvd

Exton, PA 19341

Attn: General Counsel

Facsimile: 484.713.6000

Email: mmarino@fibrocell.com

12G Payments Due on Non-Business Days. Anything in this Note to the contrary notwithstanding, any payment of principal of or interest on, or any fees payable with respect to, this Note that is due on a date other than a Business Day shall be made on the next succeeding Business Day. If the date for any payment is extended to the next succeeding Business Day by reason of the preceding sentence, the period of such extension shall not be included in the computation of the interest payable on such Business Day.

12H Governing Law . THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE INTERNAL LAW OF THE STATE OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD PERMIT THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

12I Counterparts. This Note may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one instrument, and it shall not be necessary in making proof of this Note to produce or account for more than one such counterpart. Delivery of an executed counterpart of a signature page to this Note by telecopier or pdf shall be effective as delivery of a manually executed counterpart of this Note.

12J WAIVER OF JURY TRIAL. THE COMPANY, AND THE HOLDER BY ITS ACCEPTANCE HEREOF, EACH IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS NOTE, THE SECURITIES, ANY OTHER TRANSACTION DOCUMENT OR ANY OTHER AGREEMENT, DOCUMENT OR INSTRUMENT DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR THE ACTIONS OF THE HOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF.

12K Personal Jurisdiction. Each of the Company and the Holder irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, the City of New York, over any suit, action or proceeding arising out of or relating to this Note, the Securities, the other Transaction Documents or any of the agreements, documents or instruments delivered in connection herewith or therewith. To the fullest extent permitted by applicable law, each of the Company and the Holder irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

12L Usury Not Intended . In the event any interest paid on this Note is deemed to be in excess of the then legal maximum rate, then that portion of the interest payment representing an amount in excess of the then legal maximum rate shall be deemed a payment of the Principal Amount and applied against the Principal Amount of this Note.

12M Entire Agreement . THIS NOTE AND THE TRANSACTION DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES HERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES. In the event of any conflict between the terms of the Purchase Agreement and this Note, the terms of this Note shall govern and control.

[Remainder of page intentionally left blank. Next page is signature page.]



Very truly yours,

FIBROCELL SCIENCE, INC.,
a Delaware Corporation


By:

Name:

Title:



Acknowledged and accepted
as of the date first written above:

[INVESTOR]


By:

Name:

Title:

EXHIBIT A



	NAME AND ADDRESS OF HOLDER	PRINCIPAL AMOUNT	AMOUNT OF COMMON STOCK UNDER WARRANT


(1)	All payments by wire transfer of
	immediately available funds to:


(2)	All notices of payments and written
	confirmations of such wire
	transfers:


(3)	E-mail address for Electronic Delivery:


(4)	All other communications:

EXHIBIT B

FORM OF COMMON STOCK PURCHASE WARRANT

EXHIBIT C

COMPANY WIRE INFORMATION

EXHIBIT D

FORM OF CONVERSION NOTICE

(To be signed only on conversion

of Convertible Promissory Note)

TO: Fibrocell Science, Inc. (the “ Company ”)

1. The undersigned Holder of this Note hereby elects to exercise its rights under the attached Note as follows (check one or more, as applicable):


o	to convert $_________ of unpaid Principal Amount outstanding under the Note into shares of Common Stock of the Company at the Applicable Conversion Price pursuant to paragraph 3A of the attached Note;

and/or


o	to convert the $_________ of Accrued Interest outstanding under the Note into shares of Common Stock of the Company at the Accrued Interest Conversion Price pursuant to paragraph 3B of the attached Note.

2. In converting the amounts outstanding under this Note selected pursuant to Section 1 (above), the undersigned Holder hereby confirms and acknowledges that the shares of Common Stock are being acquired solely for the account of the undersigned and not as a nominee for any other party, and for investment, and that the undersigned shall not offer, sell or otherwise dispose of any such shares of Common Stock except under circumstances that will not result in a violation of the Securities Act or any state securities laws. The undersigned hereby further confirms and acknowledges that it is an “accredited investor,” as that term is defined under the Securities Act.

3. Please issue a stock certificate or certificates representing the appropriate number of shares of Common Stock in the name of the undersigned or in such other name(s) as is specified below:



Name:
Address:


TIN:



		Dated:
(Signature must conform exactly to name of
Holder as specified on the face of the Note)

Exhibit 4.2

THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT AND ANY APPLICABLE STATE SECURITIES LAWS.

The number of shares of common stock issuable upon exercise of this warrant may be less than the amounts set forth on the face hereof.

This Warrant is 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 (the “ Purchase Agreement ”) and is one of a series of similar warrants issued pursuant to that Purchase Agreement (all such warrants are referred to herein collectively as, the “ Warrants ”). Receipt of this Warrant by the Holder shall constitute acceptance and agreement to all of the terms contained herein.

No. [_]

FIBROCELL SCIENCE, INC.

COMMON STOCK PURCHASE WARRANT

Fibrocell Science, Inc., a Delaware corporation (together with any corporation which shall succeed to or assume the obligations of Fibrocell Science, Inc. hereunder, the “ Company ”), hereby certifies that, for value received, [___________________] (the “ Holder ”), or its assigns, is entitled, subject to the terms set forth below, to purchase from the Company at any time during the Exercise Period (as defined in Section 12 hereof) up to [______________] fully paid and non-assessable shares of Common Stock (as defined in Section 12 hereof), at a purchase price per share equal to the Exercise Price (as defined in Section 12 hereof). The number of shares of Common Stock for which this Common Stock Purchase Warrant (this “ Warrant ”) is exercisable and the Exercise Price are subject to adjustment as provided herein.

1. DEFINITIONS . Certain terms are used in this Warrant as specifically defined in Section 12 hereof.

2. EXERCISE OF WARRANT .

2.1. Exercise . This Warrant may be exercised prior to its expiration pursuant to Section 2.5 hereof by the Holder at any time or from time to time during the Exercise Period, by submitting the form of subscription attached hereto (the “ Exercise Notice ”) duly executed by the Holder, to the Company at its principal office, indicating whether the Holder is electing to purchase a specified number of shares by paying the Aggregate Exercise Price as provided in Section 2.2 or is electing to exercise this Warrant as to a specified number of shares pursuant to the net exercise provisions of Section 2.3. On or before the first Trading Day following the date on which the Company has received the Exercise Notice, the Company shall transmit by facsimile or electronic mail an acknowledgement of confirmation of receipt of the Exercise Notice. Subject to Section 2.4, this Warrant shall be deemed exercised for all purposes as of the close of business on the day on which the Holder has delivered the Exercise Notice to the Company. The Aggregate Exercise Price, if any, shall be paid by wire transfer to the Company within two (2) Business Days of the date of exercise and prior to the time the Company issues the certificates evidencing the shares issuable upon such exercise. In the event this Warrant is not exercised in full, the Company may, at its expense, require the Holder, after such partial exercise, to promptly return this Warrant to the Company and the Company will forthwith issue and deliver to or upon the order of the Holder a new Warrant or Warrants of like tenor, in the name of the Holder or as the Holder (upon payment by the Holder of any applicable transfer taxes) may request, calling in the aggregate on the face or faces thereof for the number of shares of Common Stock equal (without giving effect to any adjustment therein) to the number of such shares called for on the face of this Warrant minus the number of such shares (without giving effect to any adjustment therein) for which this Warrant shall have been exercised.

2.2. Payment of Exercise Price by Wire Transfer . If the Holder elects to purchase a specified number of shares by paying the Aggregate Exercise Price, the Holder shall pay such amount by wire transfer of immediately available funds to the account designated by the Company in its acknowledgement of receipt of such Exercise Notice pursuant to Section 2.1 hereof.

2.3. Net Exercise . The Holder may also elect to exercise this Warrant at any time or from time to time, by receiving shares of Common Stock equal to the number of shares determined pursuant to the following formula:

X = Y (A - B)

where,


X =	the number of shares of Common Stock to be issued to Holder;


Y =	the number of shares of Common Stock as to which this Warrant is to be exercised (as indicated on the Exercise Notice);


A =	the volume weighted average price of the Common Stock quoted on the Nasdaq Capital Market or any other U.S. exchange on which the Common Stock is listed, whichever is applicable, as posted by Bloomberg L.P. (or such other reference reasonably relied upon by the Company if not so published) for the Trading Day immediately preceding the date of exercise; and


B =	the Exercise Price.

2.4. Antitrust Notification . If the Holder determines, in its sole judgment upon the advice of counsel, that an exercise of this Warrant pursuant to the terms hereof would be subject to the provisions of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “ HSR Act ”), the Company shall file as soon as practicable after the date on which the Company receives notice from the Holder of the applicability of the HSR Act and a request to so file with the United States Federal Trade Commission (the “ FTC ”) and the United States Department of Justice (the “ DOJ ”) the notification and report form required to be filed by it pursuant to the HSR Act in connection with the exercise of this Warrant (and in any event the Company shall make such filing no later than seven (7) Business Days after the date on which the Holder filed with the FTC and DOJ the notification and report form required to be filed by the Holder pursuant to the HSR Act in connection with the exercise of this Warrant). Any such notification and report form will be in full compliance with the requirements of the HSR Act. The Company will furnish to the Holder and the Holder shall furnish to the Company promptly (but in no event more than five (5) Business Days after receipt of a reasonable request therefore) such information and assistance as the other party may reasonably request in connection with the preparation of any filing or submission required to be filed by the Holder or the Company under the HSR Act. The Company and the Holder shall respond promptly after receiving any inquiries or requests for additional information from the FTC or the DOJ during the HSR waiting period. Each party shall keep the other apprised periodically and at the other party’s request of the status of any communications with, and any inquiries or requests for additional information from, the FTC or the DOJ. The Holder shall bear all filing or other fees required to be paid by the Company and the Holder (or the “ultimate parent entity” of the Holder, if any) under the HSR Act or any other applicable law in connection with such filings and all costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) incurred by the Company and the Holder in connection with the preparation of such filings and responses to inquiries or requests. In the event that this Section 2.4 is applicable to any exercise of this Warrant, the purchase by the Holder of the Exercise Shares subject to such exercise, and the payment by the Holder of the Exercise Price therefor, shall be subject to the expiration or earlier termination of the waiting period under the HSR Act (with the exercise date of this Warrant being deemed to be the date immediately following the date of such expiration or early termination).

2.5. Termination . This Warrant shall terminate upon the earlier to occur of (i) exercise in full or (ii) the expiration of the Exercise Period.

3. REGISTRATION RIGHTS . The Holder of this Warrant has certain rights to require the Company to register its resale of the Warrant Shares under the Securities Act and any blue sky or securities laws of any jurisdictions within the United States at the time and in the manner specified in the Registration Rights Agreement, dated as of September 7, 2016, as amended and in effect from time to time.

4. DELIVERY OF STOCK CERTIFICATES ON EXERCISE .

4.1. Delivery of Exercise Shares . As soon as practicable after any exercise of this Warrant and in any event within three (3) Trading Days thereafter (such date, the “ Exercise Share Delivery Date ”), the Company shall, at its expense (including the payment by it of any applicable issue or stamp taxes), cause to be issued in the name of and delivered to the Holder, or as the Holder may direct, a certificate or certificates evidencing the number of fully paid and nonassessable shares of Common Stock (which number shall be rounded down to the nearest whole share in the event any fractional share may otherwise be issuable upon such exercise and the Company shall pay a cash adjustment to the Holder in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price) to which the Holder shall be entitled on such exercise, in such denominations as may be requested by the Holder, which certificate or certificates shall be free of restrictive and trading legends (except for any such legends as may be required under the Securities Act). In lieu of delivering physical certificates for the shares of Common Stock issuable upon any exercise of this Warrant, provided the Company’s transfer agent is participating in the Depository Trust Company (“ DTC ”) Fast Automated Securities Transfer program or a similar program, upon request of the Holder, the Company shall cause its transfer agent to electronically transmit such shares of Common Stock issuable upon exercise of this Warrant to the Holder (or its designee), by crediting the account of the Holder’s (or such designee’s) broker with DTC through its Deposit Withdrawal Agent Commission system (provided that the same time periods herein as for stock certificates shall apply) as instructed by the Holder (or its designee).

4.2. Compensation for Buy-In on Failure to Timely Deliver Exercise Shares . In addition to any other rights available to the Holder, if the Company fails to cause its transfer agent to transmit to the Holder Exercise Shares pursuant to an exercise on or before the Exercise Share Delivery Date, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Exercise Shares which the Holder anticipated receiving upon such exercise (a “ Buy-In ”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of Exercise Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Exercise Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.

4.3. Charges, Taxes and Expenses . Issuance of Exercise Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such Exercise Shares, all of which taxes and expenses shall be paid by the Company, and such Exercise Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided , however , that in the event Exercise Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto.

5. ADJUSTMENT FOR DIVIDENDS, DISTRIBUTIONS AND RECLASSIFICATIONS .

5.1. Distribution of Assets; Spin-Off . If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a Spin-Off, dividend, reclassification, corporate rearrangement or other similar transaction, but excluding stock

dividends or stock split adjustments in respect of which are provided for in Section 7 hereof) (a “ Distribution ”), at any time after the issuance of this Warrant, then, in each such case:

(a) (i) the Exercise Price in effect immediately prior to the close of business on the record date fixed for the determination of holders of Common Stock entitled to receive the Distribution shall be reduced, effective as of the close of business on such record date, to a price determined by multiplying such Exercise Price by a fraction of which:

(A) the numerator shall be the Market Price of the Common Stock on the Trading Day immediately preceding such record date minus the Fair Market Value of the Distribution applicable to one share of Common Stock, and

(B) the denominator shall be the Market Price of the Common Stock on the Trading Day immediately preceding such record date; and

(b) In the event of a Spin-Off in which the Distribution is of common stock of a subsidiary of the Company, then (i) the Exercise Price in effect immediately prior to the close of business on the record date fixed for the determination of holders of Common Stock entitled to receive such Distribution shall be reduced, effective as of the close of business on such record date, to a price determined by multiplying such Exercise Price by a fraction of which:

(B) the denominator shall be the Market Price of the Common Stock on the Trading Day immediately preceding such record date;

and (ii) the Holder shall receive an additional warrant to purchase common stock of such company, the terms of which shall be identical to those of this Warrant (and expiring the same date), except that such warrant shall be exercisable into the number of shares of common stock of such company that would have been issuable or distributed to the Holder of this Warrant pursuant to the Distribution had the Holder exercised this Warrant for cash for the full number of shares of Common Stock remaining available under this Warrant immediately prior to such record date and with an aggregate exercise price equal to the aggregate amount by which the Exercise Price of this Warrant was decreased with respect to the Distribution pursuant to the terms of the preceding clause (i) of this Section 5.1(b).

5.2. Other Events . If any event occurs of the type contemplated by the provisions of this Section 5 but not expressly provided for by such provisions, then the Company’s board of directors (the “ Board of Directors ”), acting in good faith and consistent with their fiduciary duties, shall make an appropriate adjustment in the Exercise Price and the number of shares of Common Stock obtainable upon exercise of this Warrant so as to protect the rights of the Holder.


6.	ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC .

6.1. Certain Adjustments . In case at any time or from time to time, the Company shall (i) effect a capital reorganization, reclassification or recapitalization, (ii) consolidate or merge with or into any other person, or (iii) transfer all or substantially all of its properties or assets to any other person under any plan or arrangement contemplating the dissolution of the Company, then in each such case, this Warrant shall thereafter be exercisable for the same kind and amounts of securities (including shares of stock) or other assets, or both, which were issuable or distributable to the holders of outstanding Common Stock upon such reorganization, reclassification, recapitalization, consolidation, merger or transfer, in respect of that number of shares of Common Stock for which this Warrant could have been exercised immediately prior to such reorganization, reclassification, recapitalization, consolidation, merger or transfer; and, in any such case, appropriate adjustments (as determined in good faith by the Board of Directors) shall be made

to assure that the provisions set forth herein shall thereafter be applicable, as nearly as reasonably may be practicable, in relation to any securities or other assets thereafter deliverable upon the exercise of this Warrant.

6.2. Continuation of Terms . Upon any reorganization, consolidation, merger or transfer (and any dissolution following any transfer) referred to in this Section 6, this Warrant shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable on the exercise of this Warrant after the consummation of such reorganization, consolidation or merger or the effective date of dissolution following any such transfer, as the case may be, and shall be binding upon the issuer of any such stock or other securities, including, in the case of any such transfer, the person acquiring all or substantially all of the properties or assets of the Company, whether or not such person shall have expressly assumed the terms of this Warrant.

7. ADJUSTMENTS FOR STOCK EVENTS AND Subsequent Rights Offerings .

7.1. General . If at any time there shall occur any stock split, stock dividend, reverse stock split or other subdivision of the Company’s Common Stock (“ Stock Event ”), then the number of shares of Common Stock remaining issuable upon exercise of this Warrant shall be appropriately adjusted such that the proportion of the number of shares issuable hereunder to the total number of shares of the Company prior to such Stock Event is equal to the proportion of the number of shares issuable hereunder after such Stock Event to the total number of shares of the Company after such Stock Event. The Exercise Price shall be proportionately decreased or increased upon the occurrence of any Stock Event; provided that in no event will the Exercise Price be less than the par value of the Common Stock.

7.2. Subsequent Rights Offerings . If at any time the Company grants any rights to purchase stock warrants or other securities pro rata to the holders of shares of Common Stock (“ Purchase Rights ”), then in each such event provision shall be made so that the Holder shall receive upon exercise hereof and upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder would have been entitled to receive had this Warrant been exercised on the date of such event and, in any such case, appropriate adjustments (as determined in good faith by the Board of Directors) shall be made to assure that the provisions set forth herein shall thereafter be applicable, as nearly as reasonably may be practicable, in relation to any securities or other assets thereafter deliverable upon the exercise of this Warrant.

8. NO IMPAIRMENT . The Company will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in taking all such action as may be necessary or appropriate in order to protect the rights of the Holder against impairment. Without limiting the generality of the foregoing, the Company (i) will not increase the par value of any shares of Common Stock receivable on the exercise of this Warrant above the amount payable therefor on such exercise and (ii) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and non-assessable shares of stock on the exercise of this Warrant from time to time outstanding.

9. CERTIFICATE AS TO ADJUSTMENTS . In each case of any event that requires any adjustment pursuant to Sections 5, 6, or 7 hereof, the Company at its expense will promptly prepare a certificate setting forth such adjustment, and showing, in detail, the facts upon which any such adjustment is based, including a statement of (i) the number of shares of Common Stock then issued and outstanding, and (ii) the number of shares of Common Stock to be received upon exercise of this Warrant, in effect immediately prior to such adjustment and as adjusted on account thereof. The Company will forthwith mail a copy of each such certificate to the Holder, and will, on the written request at any time of the Holder, furnish to the Holder a like certificate setting forth the calculations used to determine such adjustment.

10. NOTICES OF RECORD DATE . In the event of:

(a) any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, or any right to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other securities or property, or to receive any other right; or

(b) any capital reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company or any transfer of all or substantially all the assets of the Company to or any consolidation or merger of the Company with or into any other Person or any other Change of Control; or

then, and in each such event, the Company will mail or cause to be mailed to the Holder a notice specifying (i) the date on which any such record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (ii) the date on which any such reorganization, reclassification, recapitalization, transfer, consolidation, merger, dissolution, liquidation or winding-up is anticipated to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock shall be entitled to exchange their shares of Common Stock for securities or other property deliverable on such reorganization, reclassification, recapitalization, transfer, consolidation, merger, dissolution, liquidation or winding-up. Such notice shall be mailed at least fifteen (15) days prior to the date specified in such notice on which any such action is to be taken.

11. RESERVATION OF STOCK ISSUABLE ON EXERCISE OF WARRANT; REGULATORY COMPLIANCE .

11.1. Reservation of Stock Issuable on Exercise of Warrant . The Company shall at all times while this Warrant shall be outstanding, reserve and keep available out of its authorized but unissued Common Stock, such number of shares of Common Stock as shall from time to time be sufficient to effect the exercise of all or any portion of the Warrant Shares (disregarding for this purpose any and all limitations of any kind on such exercise). The Company shall, from time to time in accordance with the Delaware General Corporation Law, increase the authorized number of shares of Common Stock or take other effective action if at any time the unissued number of authorized shares shall not be sufficient to satisfy the Company’s obligations under this Section 11.

11.2. Regulatory Compliance . If any shares of Common Stock to be reserved for the purpose of exercise of the Warrant Shares require registration or listing with or approval of any Governmental Authority, stock exchange or other regulatory body under any federal or state law or regulation or otherwise before such shares may be validly issued or delivered upon exercise, the Company shall, at its sole cost and expense, in good faith and as expeditiously as possible, secure such registration, listing or approval, as the case may be.

12. DEFINITIONS . As used herein the following terms, unless the context otherwise requires, have the following respective meanings:

Affiliate means any Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, the Company or another specified Person, except a Subsidiary of the Company. A Person shall be deemed to control another Person if such first Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise. Notwithstanding anything to the contrary in this definition, the Holder shall not be deemed to be an Affiliate of the Company or any of its Subsidiaries solely by virtue of this Warrant.

Aggregate Exercise Price means, in connection with the exercise of this Warrant at any time, an amount equal to the product obtained by multiplying (i) the Exercise Price times (ii) the number of shares of Common Stock for which this Warrant is being exercised at such time.

Business Day means any day other than a Saturday, a Sunday or a day on which commercial banks in New York City are required or authorized to be closed.

Certificate of Incorporation means the Restated Certificate of Incorporation of the Company with amendments thereto.

Change of Control means an event or series of events by which any of the following occurs:

(c) the Company’s stockholders approve and adopt a plan of liquidation or dissolution of the Company or a sale of all or substantially all of the Company’s assets.

Common Stock means (i) the Company’s Common Stock, $0.001 par value per share, and (ii) any other securities into which or for which any of the securities described in clause (i) above have been converted or exchanged pursuant to a plan of recapitalization, reorganization, merger, sale of assets or otherwise.

Exchange Act means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

Exercise Period means the period commencing at 12:01 A.M. (New York City time) on the day following the six month anniversary of the Issue Date and ending 11:59 P.M. (New York City time) on the fifth anniversary of the Issue Date.

Exercise Price means $[__]* per share, as may be adjusted pursuant to the terms hereof.

* Equal to the greater of (x) $1.50 and (y) the last closing bid price of a share of Company common stock as reported on the NASDAQ Capital Market at the time of the Investor’s execution of a counterpart to the Purchase Agreement (the “Applicable Warrant Exercise Price”).

Exercise Shares means the shares of Common Stock for which this Warrant is then being exercised.

Fair Market Value means, with respect to any security or other property, the fair market value of such security or other property as determined by the Board of Directors, acting in good faith.

Governmental Authority means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

Issue Date means September 7, 2016.

Market Price means, with respect to the Common Stock, on any given day, the closing sale price or, if no closing sale price is reported, the last reported sale price of the shares of the Common Stock on the Nasdaq Capital Market on such date. If the Common Stock is not traded on the Nasdaq Capital Market on any date of determination, the Market Price of the Common Stock on such date of determination means the closing sale price as reported in the composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is so listed or quoted, or, if no closing sale price is reported, the last reported sale price on the principal U.S. national or regional securities exchange on which the Common Stock is so listed or quoted, or if the Common Stock is not so listed or quoted on a U.S. national or regional securities exchange, the last quoted bid price for the Common Stock in the over-the-counter market as reported by the OTC Markets Group or similar organization, or, if that bid price is not

available, the market price of the Common Stock on that date as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose.

Note means any one of a series of convertible promissory notes issued as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time) by the Company to investors pursuant to the Purchase Agreement.

Permitted Holders means Randal J. Kirk and his Affiliates (other than the Company and its subsidiaries).

Person means and includes an individual, a partnership, a joint venture, a corporation, a limited liability company, a trust, an unincorporated organization and a government or any department or agency thereof.

Preliminary Change of Control means, with respect to the Company, the earlier of (i) the public disclosure of a Change of Control and (ii) (A) the execution of a definitive agreement for a transaction or (B) the recommendation that the Company’s stockholders tender in response to a tender or exchange offer, in the case of both (A) and (B), that would reasonably be expected to result in a Change of Control.

Principal Market means, at any time, the securities exchange, quotation system or over-the-counter trading facility on which the Common Stock is then principally traded or quoted at such time.

Spin-Off means a transaction in which the Company spins off or otherwise divests itself of a part of its business or operations or disposes all or a part of its assets in a transaction in which the Company does not receive compensation for such business, operations or assets, but causes securities of a subsidiary of the Company or another entity to be distributed or otherwise issued to all holders of Common Stock.

Securities Act means the Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

Subsidiary means, as of any time of determination and with respect to any Person, any United States corporation, partnership, limited liability company or limited liability partnership, all of the stock (or other equity interest) of every class of which, except directors’ qualifying shares (or any equivalent), shall, at such time, be owned by such Person either directly or through Subsidiaries and of which such Person or a Subsidiary shall have 100% control thereof, except directors’ qualifying shares. Unless the context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the Company.

Trading Day means, at any time, a day on which the Principal Market is open for the general trading or quotation of securities and the Common Stock is traded or quoted thereon without suspension or interruption.

Warrant Shares means collectively the shares of Common Stock of the Company issuable upon exercise of the Warrant in accordance with its terms, as such number may be adjusted pursuant to the provisions thereof.

13. LIMITATION ON BENEFICIAL OWNERSHIP . Notwithstanding anything to the contrary contained herein, the Holder shall not be entitled to receive shares of Common Stock or other securities (together with Common Stock, “ Equity Interests ”) upon exercise of this Warrant to the extent (but only to the extent) that such exercise or receipt would cause the Holder Group to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of a number of Equity Interests of a class that is registered under the Exchange Act which exceeds the Maximum Percentage (as defined below) of the Equity Interests of such class that are outstanding at such time. This limitation on beneficial ownership (a) may be increased, decreased or terminated, in the Holder’s sole discretion, upon 61 days’ written notice to the Company by the Holder and (b) shall terminate automatically on the date that is 15 days prior to expiration of the Exercise Period. Any purported delivery of Equity Interests in connection with the exercise of the Warrant prior to the termination of this restriction in accordance herewith shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the Holder Group becoming the beneficial owner of more than the Maximum Percentage of

the Equity Interests of a class that is registered under the Exchange Act that is outstanding at such time. If any delivery of Equity Interests owed to the Holder following exercise of this Warrant is not made, in whole or in part, as a result of this limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such Equity Interests as promptly as practicable after the Holder gives notice to the Company that such delivery would not result in such limitation being triggered or upon termination of the restriction in accordance with the terms hereof. To the extent limitations contained in this Section 13 apply, the determination of whether this Warrant is exercisable and of which portion of this Warrant is exercisable shall be the sole responsibility and in the sole determination of the Holder, and the submission of an Exercise Notice shall be deemed to constitute the Holder’s determination that the issuance of the full number of Warrant Shares requested in the Exercise Notice is permitted hereunder, and neither the Company nor any Warrant agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of this Section 13, (i) the term “ Maximum Percentage ” shall mean 4.99%; provided, that if at any time after the date hereof the Holder Group beneficially owns in excess of 4.99% of any class of Equity Interests in the Company that is registered under the Exchange Act (excluding any Equity Interests deemed beneficially owned by virtue of this Warrant and the Note), then the Maximum Percentage shall automatically increase to 9.99% so long as the Holder Group owns in excess of 4.99% of such class of Equity Interests (and shall, for the avoidance of doubt, automatically decrease to 4.99% upon the Holder Group ceasing to own in excess of 4.99% of such class of Equity Interests); and (ii) the term “ Holder Group ” shall mean the Holder plus any other Person with which the Holder is considered to be part of a group under Section 13 of the Exchange Act or with which the Holder otherwise files reports under Sections 13 and/or 16 of the Exchange Act. In determining the number of Equity Interests of a particular class outstanding at any point in time, the Holder may rely on the number of outstanding Equity Interests of such class as reflected in (x) the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission, as the case may be, (y) a more recent public announcement by the Company or (z) a more recent notice by the Company or its transfer agent to the Holder setting forth the number of Equity Interests of such class then outstanding. For any reason at any time, upon written or oral request of the Holder, the Company shall, within one (1) Trading Day of such request, confirm orally and in writing to the Holder the number of Equity Interests of any class then outstanding. The provisions of this Section 13 shall be construed, corrected and implemented in a manner so as to effectuate the intended beneficial ownership limitation herein contained. The limitations in this Section 13 shall not have an effect on any calculation or payment due to the Holder of this Warrant pursuant to Section 14 hereof.

14. CHANGE OF CONTROL . Within three (3) Business Days of the occurrence of a Change of Control, the Company shall provide written notice to the Holder indicating that a Change of Control occurred (the “ Change of Control Notice ”). During the period of thirty (30) days following the receipt of the Change of Control Notice, the Holder may, by giving written notice to the Company, require the Company to repurchase all of this Warrant at the option value of this Warrant using Black-Scholes calculation methods and making the assumptions described in the Black-Scholes methodology described in Exhibit A . The fact that this Warrant may be exercised on a cashless net exercise basis as provided in Section 2.3 shall not have any effect on any calculation or payment due to the Holder of this Warrant pursuant to this Section 14. The limitations in Section 13 hereof shall not have an effect on any calculation or payment due to the Holder of this Warrant pursuant to this Section 14.

15. REGISTRATION AND TRANSFER OF WARRANT .

15.1. Registration of Warrant . The Company shall register and record transfers, exchanges, reissuances and cancellations of this Warrant, upon the records to be maintained by the Company for that purpose, in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary. The Company shall be entitled to rely, and held harmless in acting or refraining from acting in reliance upon, any notices, instructions or documents it believes in good faith to be from an authorized representative of the Holder.

15.2 Transferability . This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form of assignment (the “ Assignment Notice ”) attached hereto duly executed by the Holder or its agent or attorney. Upon such surrender, the

Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such Assignment Notice, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. This Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Exercise Shares without having a new Warrant issued.

15.3. New Warrants . This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 15.2, as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for this Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the original Issue Date and shall be identical with this Warrant except as to the number of Exercise Shares issuable pursuant thereto.

16. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT . The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Exercise Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of this Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.

17. REMEDIES . The Company stipulates that the remedies at law of the Holder in the event of any default or threatened default by the Company in the performance of or compliance with any of the terms of this Warrant are not and will not be adequate, and that such terms may be specifically enforced by a decree for the specific performance of any agreement contained herein or by an injunction against a violation of any of the terms hereof or otherwise. NO PARTY HEREUNDER SHALL BE LIABLE UNDER THIS WARRANT, THE NOTE OR THE REGISTRATION RIGHTS AGREEMENT TO ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE OR SPECIAL DAMAGES (AS OPPOSED TO ACTUAL OR DIRECT DAMAGES) SUFFERED BY ANY OTHER PERSON (INCLUDING DAMAGES FOR HARM TO BUSINESS, LOST REVENUES, LOST SAVINGS OR LOST PROFITS SUFFERED BY SUCH PERSON), WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, TORT OR OTHERWISE, INCLUDING NEGLIGENCE OF ANY KIND, WHETHER ACTIVE OR PASSIVE, AND REGARDLESS OF WHETHER THE POSSIBILITY THAT SUCH DAMAGES COULD RESULT WAS KNOWN.

18. NO RIGHTS AS A STOCKHOLDER . Except as otherwise specifically provided herein, the Holder, solely in such Person’s capacity as a holder of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in such Person’s capacity as the Holder of this Warrant, any of the rights of a stockholder of the Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the Holder of the Exercise Shares.

19. NOTICES . All notices, requests, demands and other communications that are required or may be given pursuant to the terms of this Warrant shall be in writing and shall be deemed delivered (i) on the date of delivery when delivered by hand on a Business Day during normal business hours or, if delivered on a day that is not a Business Day or after normal business hours, then on the next Business Day, (ii) on the date of transmission when sent by facsimile transmission or email during normal business hours on a Business Day with telephone confirmation of receipt or, if transmitted on a day that is not a Business Day or after normal business hours, then on the next Business Day, or (iii) on the second Business Day after the date of dispatch when sent by a reputable courier service that maintains records of receipt; provided, however, that, in any such case, such communication is addressed, if to the Holder, as specified for such communications on Exhibit A to the Note, and if to the Company, as follows, or, in each case, to such other address as the Company or the Holder may designate in a written notice to the other pursuant to this Section 19:

if to the Company, to:

Fibrocell Science, Inc.

405 Eagleview Blvd

Exton, PA 19341

Attn: General Counsel

Facsimile: 484.713.6000

Email: mmarino@fibrocell.com

20. CONSENT TO AMENDMENTS . Any term of this Warrant may be amended, and the Company may take any action herein prohibited, or compliance therewith may be waived, only if the Company shall have obtained the written consent (and not without such written consent) to such amendment, action or waiver from the Holder; provided, that if any other holder of the Warrants receives any remuneration or compensation as consideration for any such amendment, consent or waiver, then such remuneration or compensation shall be concurrently delivered ratably to all Holders of then outstanding Warrants, on the same equivalent terms. No course of dealing between the Company and the Holder nor any delay in exercising any rights hereunder shall operate as a waiver of any rights of the Holder.

21. MISCELLANEOUS . In case any provision of this Warrant shall be invalid, illegal or unenforceable, or partially invalid, illegal or unenforceable, the provision shall be enforced to the extent, if any, that it may legally be enforced and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. If any provision of this Warrant is found to conflict with the Purchase Agreement, the provisions of this Warrant shall prevail. If any provision of this Warrant is found to conflict with the Note, the provisions of the Note shall prevail. THIS WARRANT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE INTERNAL LAW OF THE STATE OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD PERMIT THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE. The headings in this Warrant are for purposes of reference only, and shall not limit or otherwise affect any of the terms hereof.

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly authorized officer.

Dated as of September 7, 2016



FIBROCELL SCIENCE, INC.

By:

Title:

FORM OF SUBSCRIPTION

(To be signed only on exercise

of Common Stock Purchase Warrant)

TO: Fibrocell Science, Inc.

1. The undersigned Holder of the attached Warrant hereby elects to exercise its purchase right under such Warrant to purchase shares of Common Stock of Fibrocell Science, Inc., a Delaware corporation (the “ Company ”), as follows (check one or more, as applicable):


o	to exercise the Warrant to purchase __________ shares of Common Stock and to pay the Aggregate Exercise Price therefor by wire transfer of United States funds to the account of the Company, which transfer has been made prior to or as of the date of delivery of this Form of Subscription pursuant to the instructions of the Company;

and/or


o	to exercise the Warrant with respect to ____________ shares of Common Stock pursuant to the net exercise provisions specified in Section 2.3 of the Warrant.

2. In exercising this Warrant, the undersigned Holder hereby confirms and acknowledges that the shares of Common Stock are being acquired solely for the account of the undersigned and not as a nominee for any other party, and for investment, and that the undersigned shall not offer, sell or otherwise dispose of any such shares of Common Stock except under circumstances that will not result in a violation of the Securities Act or any state securities laws. The undersigned hereby further confirms and acknowledges that it is an “accredited investor”, as that term is defined under the Securities Act.

3. Please issue a stock certificate or certificates representing the appropriate number of shares of Common Stock in the name of the undersigned or in such other name(s) as is specified below:



Name:
Address:


TIN:



		Dated:
(Signature must conform exactly to name of
Holder as specified on the face of the Note)

FORM OF ASSIGNMENT

(To be signed only on transfer of Warrant)

For value received, the undersigned hereby sells, assigns, and transfers unto ____________ the right represented by the within Warrant to purchase shares of Common Stock of Fibrocell Science, Inc., a Delaware corporation, to which the within Warrant relates, and appoints _______________ attorney to transfer such right on the books of Fibrocell Science, Inc., with full power of substitution in the premises.



	[insert name of Holder]


Dated:	By:

	Title:

		[insert address of Holder]

Signed in the presence of:

EXHIBIT A

Black-Scholes Assumptions



Underlying Security Price:	The volume weighted average price of the Common Stock quoted on the Nasdaq Capital Market or any other U.S. exchange on which the Common Stock is listed, whichever is applicable, as posted by Bloomberg L.P. (or such other reference reasonably relied upon by the Company if not so published) for the thirty (30) Trading Days ending on the Trading Day immediately preceding the date of the Preliminary Change of Control (the “ Reference Date ”).
Exercise Price:	The Exercise Price as adjusted and then in effect for the Warrant.
Dividend Rate:	The Company’s annualized dividend yield as of the Reference Date.
Interest Rate:	The applicable U.S. treasury note risk free rate as of the Reference Date and for a term equal to the remaining term of the Warrant.
Model Type:	Black-Scholes
Exercise Type:	American
Put or Call:	Call
Trade Date:	The Reference Date
Expiration Date:	The expiration of the Exercise Period
Settle Date:	The Reference Date plus one Trading Day
Exercise Delay:	0
Volatility:	The 30-day average of the daily volatility (annualized) over the period beginning on and including the Reference Date and ending on the date that is the thirtieth (30) Trading Day prior to the Reference Date, for the Common Stock as obtained from the HVT function on Bloomberg.

Such valuation of the Warrant based on the Black-Scholes methodology shall not be discounted in any way. If the Holder disputes such Black-Scholes valuation pursuant to this Exhibit A as calculated by the Company, the Company and the Holder will choose a mutually-agreeable firm to compute the valuation of the Warrant using the guidelines above, and such valuation shall be final. The fees and expenses of such firm shall be borne by the party whose calculation of the Black-Scholes value is the greatest variance to the mutually-agreed firm’s calculation. In the event that a new warrant is issued by a company in a Spin-Off from the Company pursuant to Section 5.1(b) of the Warrant, references in this Exhibit A to such spun-off company’s “Dividend Rate” and “Volatility” shall refer those of the Company unless at the time of such measurement, such spun-off company has been trading in the public markets for at least 6 months.

Exhibit 10.1

REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement (the “ Agreement ”) is made and entered into as of this 7th day of September, 2016 by and among Fibrocell Science, Inc., a Delaware corporation (the “ Company ”), and each of the several holders of Registrable Shares (as defined below) signatory hereto (each such holder, a “ Holder ” and, collectively, the “ Holders ”).

R E C I T A L S

WHEREAS, 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 “ Purchase Agreement ”), the Company has issued a Convertible Promissory Note (collectively, the “ Notes ”) and a Common Stock Purchase Warrant (collectively, the “ Warrants ”) in favor of each Holder, each dated as of the date hereof and acknowledged by such Holder, as such may be amended and supplemented from time to time; and

WHEREAS, in connection with the consummation of the transactions contemplated by the Purchase Agreement, the parties desire to enter into this Agreement in order to grant certain registration rights to the Holders as set forth below.

NOW, THEREFORE, in consideration of the promises, covenants and conditions set forth herein, the parties hereto hereby agree as follows:

1. Certain Definitions . As used in this Agreement, the following terms shall have the following meanings:

“ Affiliate ” means any Person directly, or indirectly through one or more intermediaries, controls, or is controlled by, the Company or another specified Person.

“ Business Day ” means any day other than a Saturday, a Sunday or a day on which commercial banks in New York City are required or authorized to be closed.

“ Commission ” means the U.S. Securities and Exchange Commission.

“ Common Stock ” means the Company’s common stock, par value $0.001 per share, and any securities into which such shares may hereinafter be reclassified.

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

“ Initiating Holder ” means any Holder who properly initiates a registration request under this Agreement.

“ Note Shares ” means collectively the shares of Common Stock of the Company issuable upon conversion of the Principal Amount and Accrued Interest of the Notes in accordance with its terms, as such number may be adjusted pursuant to the provisions thereof, and any other securities to which the holder may become entitled pursuant to the terms of the Notes; provided, that such other securities are a class of securities of an issuer that has a class of securities registered under the Exchange Act.

“ Person ” means and includes an individual, a partnership, a joint venture, a corporation, a limited liability company, a trust, an unincorporated organization and a government or any department or agency thereof.

“ Prospectus ” means (i) the prospectus included in any Registration Statement, as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Shares covered by such Registration Statement and by all other amendments and supplements to the prospectus, including post-effective

amendments and all material incorporated by reference in such prospectus, and (ii) any “free writing prospectus” as defined in Rule 405 under the Securities Act.

“ Qualifying Holder ” means any Holder that (a) is deemed to be an “affiliate” (as such term is defined in Rule 144(a)) of the Company or (b) beneficially owns (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) at least ten percent (10%) of the Company’s Common Stock then outstanding (disregarding for this purpose any and all limitations of any kind on conversion or exercise of any convertible securities owned by such Holder).

“ Register ,” “ registered ” and “ registration ” refer to a registration made by preparing and filing a Registration Statement or similar document in compliance with the Securities Act, and the declaration or ordering of effectiveness of such Registration Statement or document.

“ Registrable Shares ” means (i) any shares of Common Stock owned by the Holders, (ii) the Note Shares, and (iii) the Warrant Shares; provided, that, any such security shall not be a Registrable Share (A) upon sale pursuant to a Registration Statement or Rule 144, or (B) with respect to any Holder that is not deemed to be a Qualifying Holder immediately after the issuance of the Notes and Warrants pursuant to the Purchase Agreement, upon such security first becoming eligible for sale without restriction by a Holder pursuant to Rule 144, assuming cashless exercise or conversion thereof and, for purposes of such determination with respect to such Holder, the full conversion or exercise by such Holder of all convertible securities held by such Holder (disregarding for this purpose any and all limitations of any kind on conversion or exercise of any convertible securities owned by such Holder), or (C) with respect to any Holder that is deemed to be a Qualifying Holder immediately after the issuance of the Notes and Warrants pursuant to the Purchase Agreement, upon such security first becoming eligible for sale without restriction by a Holder pursuant to Rule 144, at the time of exercise or conversion thereof and, for purposes of such determination with respect to such Holder, the full conversion or exercise by such Holder of all convertible securities held by such Holder (disregarding for this purpose any and all limitations of any kind on conversion or exercise of any convertible securities owned by such Holder). For purposes of clarity, the Company’s registration obligations hereunder shall terminate on a Holder-by-Holder basis upon the first instance in which such Holder does not own any Registrable Shares.

“ Registration Statement ” means any registration statement of the Company filed under the Securities Act that covers the resale of any of the Registrable Shares pursuant to the provisions of this Agreement, amendments and supplements to such Registration Statement, including post-effective amendments, all exhibits and all material incorporated by reference in such Registration Statement.

“ Required Holders ” means the Holders holding at least seventy percent (70%) of the Note Shares and Warrant Shares, considered collectively, then outstanding (disregarding for this purpose any and all limitations of any kind on conversion or exercise of any convertible securities owned by such Holder).

“ Rule 144 ” means Rule 144 promulgated under the Securities Act or any successor rule thereto.

“ Rule 430B ” means Rule 430B promulgated under the Securities Act or any successor rule thereto.

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

“ Subsidiary ” means, as of any time of determination and with respect to any Person, any United States corporation, partnership, limited liability company or limited liability partnership, all of the stock (or other equity interest) of every class of which, except directors’ qualifying shares (or any equivalent), shall, at such time, be owned by such Person either directly or through Subsidiaries and of which such Person or a Subsidiary shall have 100% control thereof, except directors’ qualifying shares. Unless the context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the Company.

“ Warrant Shares ” means collectively the shares of Common Stock of the Company issuable upon exercise of the Warrants in accordance with their terms, as such number may be adjusted pursuant to the provisions thereof, and any other securities to which the holder may become entitled pursuant to the terms of the Warrants; provided, that such other securities are a class of securities of an issuer that has a class of securities registered under the Exchange Act.

2. Registration .

(a) Filing of the Registration Statement . At any time after the date hereof, any Holder may request registration under the Securities Act of such Holder’s Registrable Shares; provided, that the Company shall not be required to file more than one registration statement during any twelve (12) month period pursuant to this Section 2 other than for a Qualifying Holder who may request registration of all (but not less than all) of its Registrable Shares at any time. Upon receipt of such request, the Company shall (i) within three (3) Business Days after the date such request is given, advise the Initiating Holder whether the Company is permitted to rely upon Rule 430B to omit certain information from the Prospectus, (ii) within ten (10) days after the date such request is given, give notice thereof (the “ Demand Notice ”) to all Holders other than the Initiating Holder and advise such Holders whether the Company is permitted to rely upon Rule 430B to omit certain information from the Prospectus, (iii) cause to be prepared and filed with the Commission a Registration Statement on Form S-3 (or, if the Company is not eligible to use Form S-3, on Form S-1) within thirty (30) days of such request, in the case of a Registration Statement on Form S-3 or forty-five (45) days of such request, in the case of a Registration Statement on Form S-1 (in each case, the “ Filing Deadline ”) for purposes of registering for sale to the public the Registrable Shares, and (iv) use its best efforts to cause such Registration Statement to be declared effective under the Securities Act by the Commission as soon as practicable thereafter and in any event no later than ninety (90) days after the date of such request. Any Holder may provide notice to the Company within fifteen (15) days of receipt of the Demand Notice that such Holder wishes to be excluded from the selling stockholder table of such Registration Statement (the “ Excluded Shares ”). The Company shall include all outstanding Registrable Shares on such Registration Statement, including the Excluded Shares, to the extent the Company is permitted to rely upon Rule 430B to omit certain information from the Prospectus (including the names of those Holders of Excluded Shares); provided, however, that the Company will not include the Excluded Shares on such Registration Statement if the Company is not permitted to rely upon Rule 430B. If the Company files the Registration Statement on Form S-1 and subsequently becomes eligible to use Form S-3, the Company shall file a post-effective amendment to such Form S-1 on Form S-3 and use its best efforts to cause the Registration Statement, as so amended, to become effective within thirty (30) days of the filing thereof. Subject to any Commission comments, the foregoing Registration Statement shall include the plan of distribution attached hereto as Exhibit A ; provided, however, that no Holder shall be named as an “underwriter” in such Registration Statement without such Holder’s prior written consent. If the Registration Statement covering the Registrable Shares is not filed with the Commission on or prior to its Filing Deadline, the Company will make pro rata payments to each Holder that requested that its Registrable Shares be included on such Registration Statement, as liquidated damages and not as a penalty, in an amount equal to 1.0% of the aggregate amount invested by such Holder pursuant to the Notes then owned by the Holder for each 30-day period or pro rata for any portion thereof following the Filing Deadline for which no Registration Statement is filed with respect to the Registrable Shares. Such payments shall be made to each such Holder in cash no later than three (3) Business Days after the end of each 30-day period.

(b) Effectiveness .

(i) Following the declaration of effectiveness by the Commission of a Registration Statement filed pursuant to Section 2(a), the Company shall (i) use commercially reasonable efforts to cause such Registration Statement to remain effective and provide all requisite financial statements until such time as there cease to be Registrable Shares , (ii) use commercially reasonable efforts to prepare and file with the Commission such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective until such time as there cease to be Registrable Shares, (iii) furnish to each Holder offering Registrable Shares under such Registration Statement such number of copies of a summary Prospectus or other Prospectus, including a preliminary Prospectus complying with the requirements of the Securities Act, as such Holder may reasonably request, (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Shares covered by the Registration Statement during

such period in accordance with the intended methods of distribution by the selling holders thereof set forth in the Registration Statement, and (v) prior to any public offering of Registrable Shares, cooperate with the selling holders and the underwriter(s), if any, in connection with the registration and qualification of the Registrable Shares under the state securities or “blue sky” laws of such jurisdictions within the United States of America as the selling holders or underwriter(s), if any, may reasonably request and to use commercially reasonable efforts to do any and all other acts or things necessary or advisable to permit the disposition in such jurisdictions of the Registrable Shares covered by the Registration Statement in a manner that is in compliance with the applicable laws of such jurisdiction or, in the event that the registration does not involve an underwritten public offering, as each such selling holder shall reasonably request. The Company will promptly, and in any event within three (3) Business Days of having received notice of the following, notify each Holder of (1) any stop order issued or, to the knowledge of the Company, threatened by the Commission with respect to a Registration Statement and take all commercially reasonable actions to obtain the withdrawal or lifting of such order if it has been issued or prevent the entry of such stop order if it has not yet been issued; (2) when a Registration Statement or any post-effective amendment thereto has been filed with the Commission and when such Registration Statement or any post-effective amendment thereto has become effective; (3) any request by the Commission for amendments or supplements to a Registration Statement or the Prospectus included therein or for additional information; and (4) any notification with respect to the suspension of the qualification of the Registrable Shares included in a Registration Statement for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

(ii) If after a Registration Statement has been declared effective by the Commission sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding the inability of any Holder to sell the Registrable Shares covered thereby due to market conditions or during any Suspension Event pursuant to Section 4 herein, then the Company will make pro rata payments to each Holder that requested that its Registrable Shares be included on such Registration Statement, as liquidated damages and not as a penalty, in an amount equal to 1.0% of the aggregate amount invested by such Holder pursuant to the Notes then owned by the Holder, for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “ Blackout Period ”). The amounts payable as liquidated damages pursuant to this Section 2(b)(ii) shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each such Holder in cash. Notwithstanding the foregoing, the liquidated damages provision in this Section 2(b)(ii) shall toll and not be applicable during the period of time in which the Holder was eligible to sell such Registrable Shares without restriction by a Holder pursuant to Rule 144, assuming cashless exercise or conversion thereof and, for purposes of such determination with respect to such Holder, the full conversion or exercise by such Holder of all convertible securities held by such Holder (disregarding for this purpose any and all limitations of any kind on conversion or exercise of any convertible securities owned by such Holder).

(iii) Any Holder of Excluded Shares may request to be added as a selling stockholder to such effective Registration Statement to the extent permitted under Rule 430B. To the extent not permitted under Rule 430B, a Qualifying Holder may request registration of such Holder’s Registrable Shares pursuant to Section 2(a) above.

(i) If at any time following the date of this Agreement that any Registrable Shares remain outstanding the Company proposes for any reason to register any shares of Common Stock under the Securities Act (other than pursuant to a registration statement on Form S-4 or Form S-8 (or a similar or successor form)) with respect to an offering of Common Stock by the Company for its own account or for the account of any of its stockholders, it shall at each such time promptly give written notice to the Holders, in accordance with the provisions of Section 5(b) below, of its intention to do so (but in no event less than thirty (30) days before the anticipated filing date) and, to the extent permitted under the provisions of Rule 415 under the Securities Act, include in such registration all Registrable Shares with respect to which the Company has received written requests for inclusion therein within fifteen (15) days after receipt of the Company’s notice (a “ Piggyback Registration ”); provided, that no Holder shall be entitled to a Piggyback Registration if the Company offers Common Stock, in an underwritten offering or otherwise, pursuant to

a registration statement that has been declared effective by the Commission prior to the date hereof. Such notice shall offer the Holders the opportunity to register such number of shares of Registrable Shares as each such Holder may request and shall indicate the intended method of distribution of such Registrable Shares. By written notice delivered to the Company, any Holder (an “ Opting-Out Holder ”) may elect to waive its right to participate in Piggyback Registrations (“ Registration Opt-Out ”), until such time as such written notice is rescinded in writing. During such time as a Registration Opt-Out is in effect: (x) the Opting-Out Holder shall not receive notices of any proposed Piggyback Registration and (y) shall not be entitled to participate in any such Piggyback Registration pursuant to this Section 2(c). If at any time following the date of this Agreement that any Registrable Shares remain outstanding the Company proposes to file a Registration Statement on Form S-3 for the sale of securities from time to time in accordance with Rule 415 under the Securities Act, the Holders shall be entitled to Piggyback Registration, but shall not be entitled to participate in any offering the Company completes pursuant thereto (i.e., a shelf “take-down”).

(ii) Notwithstanding the foregoing, (A) if such registration involves an underwritten public offering, the Holders must sell their Registrable Shares to, if applicable, the underwriter(s) at the same price and subject to the same underwriting discounts and commissions that apply to the other securities sold in such offering (it being acknowledged that the Company shall be responsible for other expenses as set forth in Section 3(b)) and subject to the Holders entering into customary underwriting documentation for selling stockholders in an underwritten public offering, and (B) if, at any time after giving written notice of its intention to register any Registrable Shares pursuant to Section 2(c)(i) and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to cause such registration statement to become effective under the Securities Act, the Company shall deliver written notice to the Holders and, thereupon, shall be relieved of its obligation to register any Registrable Shares in connection with such registration; provided, however, that nothing contained in this Section 2(c)(ii) shall limit the Company’s liabilities and/or obligations under this Agreement, including, without limitation, the obligation to pay liquidated damages under this Section 2.

(d) Underwriting Requirements .

(i) If, pursuant to Section 2(a), the Initiating Holder requests registration of at least $15 million of Registrable Shares (including Registrable Shares held by other Holders), and such Holders intend to distribute the Registrable Shares covered by their request by means of an underwriting, the Initiating Holder shall so advise the Company as a part of its request made pursuant to Section 2(a). The underwriter(s) will be selected by the Initiating Holder, subject only to the reasonable approval of the Company. In such event, the right of any Holder to include such Holder’s Registrable Shares in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Shares in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 2(d)(iii)) enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting; provided, however, that in no event shall the Holders be required to sign a lock-up agreement restricting such Holders for a period longer than (i) imposed upon the Company or its officers and directors or (ii) six (6) months following the effective date of the Registration Statement. Any discretionary waiver or termination of the lock-up restrictions described above by the Company or the underwriter(s) shall apply pro rata to all Holders subject to such lock-up restrictions, based on the number of Registrable Shares included in such underwriting. Notwithstanding any other provision of this Section 2(d)(i), if the managing underwriter(s) advise(s) the Initiating Holder in writing that marketing factors require a limitation on the number of shares to be underwritten, then the Initiating Holder shall so advise all Holders that otherwise would be underwritten pursuant hereto, and the number of Registrable Shares that may be included in the underwriting shall be allocated among such Holders, including the Initiating Holder, in proportion (as nearly as practicable) to the number of Registrable Shares owned by each Holder or in such other proportion as shall mutually be agreed to by all such selling Holders; provided, however, that the number of Registrable Shares held by the Holders to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting.

(ii) In connection with any offering involving an underwriting of shares of the Company’s capital stock pursuant to Section 2(c), the Company shall not be required to include any of the Holders’ Registrable Shares in such underwriting unless the Holders accept the terms of the underwriting as agreed upon between the

Company and its underwriters, and then only in such quantity as the underwriters in their sole discretion determine will not jeopardize the success of the offering by the Company; provided, however, that in no event shall the Holders be required to sign a lock-up agreement restricting such Holders for a period longer than (i) imposed upon the Company or its officers and directors or (ii) six (6) months following the effective date of the Registration Statement. Any discretionary waiver or termination of the lock-up restrictions described above by the Company or the underwriters shall apply pro rata to all Holders subject to such lock-up restrictions, based on the number of Registrable Shares included in such underwriting. If the total number of securities, including Registrable Shares, requested by stockholders to be included in such offering exceeds the number of securities to be sold (other than by the Company) that the underwriters in their reasonable discretion determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Shares, which the underwriters and the Company in their sole discretion determine will not jeopardize the success of the offering. If the underwriters determine that less than all of the Registrable Shares requested to be registered can be included in such offering, then the Registrable Shares that are included in such offering shall be allocated among the selling Holders in proportion (as nearly as practicable) to the number of Registrable Shares owned by each selling Holder or in such other proportions as shall mutually be agreed to by all such selling Holders. Notwithstanding the foregoing, in no event shall the number of Registrable Shares included in the offering be reduced unless all other securities (other than securities to be sold by the Company) are first entirely excluded from the offering. For purposes of the provision in this Section 2(d)(ii) concerning apportionment, for any selling Holder that is a partnership, limited liability company, or corporation, the partners, members, retired partners, retired members, stockholders, and Affiliates of such Holder, or the estates and immediate family members of any such partners, retired partners, members, and retired members and any trusts for the benefit of any of the foregoing Persons, shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate number of Registrable Shares owned by all Persons included in such “selling Holder,” as defined in this sentence.

(iii) In connection with any offering involving an underwriting of shares of the Company’s capital stock pursuant to Section 2(c), the Company shall enter into and perform its obligations under an underwriting agreement, in customary form, with the underwriter(s) of such offering and the Company shall comply with all customary requests by such underwriter(s), including, but not limited to, the delivery of a legal opinion, negative assurance letter and comfort letter, providing due diligence materials as reasonably requested by the underwriter(s) and participating in a road show if requested by the underwriter(s).

3. Qualifications; Obligations; Restrictions . The obligations of the Company under Section 2 are subject to the following qualifications:

(a) the Company shall not include in any registration, qualification or compliance requested pursuant to Section 2(a) any other securities (including, without limitation, those to be issued and sold by the Company) without the prior written consent of the Required Holders;

(b) the Company shall pay (i) all expenses incurred by it in complying with Section 2, including, all registration and filing fees, printing expenses, fees and disbursements of counsel for the Company; (ii) reasonable and documented fees and disbursements of one counsel for one registration for each Qualifying Holder; provided that in no event shall the Company be required to (A) pay for more than one counsel per registration and (B) pay for counsel for more than two registrations; (iii) expenses of any special audits incident to or required by any such registration and (iv) expenses of complying with the securities or “blue sky” laws of any jurisdictions pursuant to Section 2(b). For the avoidance of doubt, the Company shall not be required to pay any discounts, concessions, commissions and similar selling expenses, if any, attributable to the sale of the Registrable Shares;

(c) the Company shall not grant any right relating to the registration of its securities if the exercise thereof conflicts with or restricts the exercise and enjoyment of any of the rights granted under this Agreement, without the written consent of the Required Holders, which consent may be given or withheld in the sole discretion of such Holders;

(d) the Company shall use its best efforts to cause all Registrable Shares covered by a Registration Statement to be listed on each securities exchange, interdealer quotation system or other market on which similar securities issued by the Company are then listed;

(e) if, in connection with any registration of Registrable Shares pursuant to Section 2(a), the Qualifying Holders requesting registration are unable for any reason to include in such registration all of the Registrable Shares for which registration has been requested, then such Qualifying Holders’ shall not be deemed to have made a registration request pursuant to Section 2(a) and therefore shall be permitted to make an additional registration request pursuant to Section 2(a) during the six (6) month period thereafter; and

(f) the Company shall, with a view to making available to the Holders the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the Commission that may at any time permit the Holders to sell shares of Common Stock to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) six months after such date as all of the Registrable Shares may be sold without restriction by the holders thereof pursuant to Rule 144 or any other rule of similar effect or (B) such date as all of the Registrable Shares shall have been resold; (ii) file with the Commission in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to each Holder upon request, as long as such Holder owns any Registrable Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act and (B) such other information as may be reasonably requested in order to avail such Holder of any rule or regulation of the Commission that permits the selling of any such Registrable Shares without registration.

4. Obligations of Holders of Registrable Shares .

(a) Subject to the provisions of this Section 4, following the effectiveness of a Registration Statement, the Company may direct the Holders, in accordance with Section 4(b), to suspend sales of Registrable Shares pursuant to such Registration Statement and the use of any Prospectus or preliminary Prospectus contained therein for the shortest amount of time as the Company reasonably determines is necessary and advisable (but in no event for more than an aggregate of 90 days in any consecutive 12-month period commencing on the date hereof or more than an aggregate of 60 days in any consecutive 180-day period, provided, however, that the Company shall be entitled to toll the running of such time periods for up to 45 days as a result of a review of any post-effective amendment to the Registration Statement by the Commission prior to being declared effective, so long as the Company is using its commercially reasonable efforts to cause such post-effective amendment to be declared effective (a “ Suspension Period ”)), if any of the following events shall occur: (1) the Company’s board of directors (the “ Board of Directors ”) determines in good faith, upon the advice of counsel, that an event has occurred or is continuing as a result of which the Registration Statement or Prospectus contained therein contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading causing such Registration Statement or the Prospectus contained therein not to be usable for resale of the Registrable Shares during the period required by this Agreement; (2) the Board of Directors determines in good faith that (a) the offer or sale of any Registrable Shares would materially impede, delay or interfere with a pending material financing, acquisition, merger, consolidation, business combination, disposition, tender offer, corporate reorganization or other material transaction involving the Company; or (b) upon the advice of counsel, the sale of Registrable Shares pursuant to such Registration Statement would require disclosure of material non-public information not otherwise required to be disclosed under applicable laws and the Company has a bona fide business purpose for preserving the confidentiality of such information or disclosure of such information would have a material adverse effect on the Company or the Company’s ability to consummate such transaction, in each case under circumstances that would make it impractical or inadvisable to cause the Registration Statement to become effective or to promptly amend or supplement the Registration Statement on a post-effective basis, as applicable; or (3) the Board of Directors determines in good faith, upon the advice of counsel, that it is required by law, rule or regulation or Commission-published release or interpretation to supplement the Registration Statement or file a post-effective amendment to the Registration Statement in order to incorporate information into the Registration Statement, including for the purpose of (a) including in the Registration Statement any Prospectus required under Section 10(a)(3) of the Securities Act, (b) reflecting in the Prospectus any facts or events arising after the effective date of the Registration Statement (or of the most recent post-effective amendment) that, individually or in the aggregate, represents

a fundamental change in the information set forth therein, or (c) including in the Prospectus any material information with respect to the plan of distribution not disclosed in the Registration Statement or any material change to such information (each of the events in clause (1), (2) and (3), a “ Suspension Event ”). Upon the occurrence of any such Suspension Event, the Company shall use commercially reasonable efforts to cause the Registration Statement to become effective or to promptly amend or supplement the Registration Statement on a post-effective basis or to take such action as is necessary to permit the Holders to resume sales of such securities as soon as possible and to promptly make available to each selling Holder any such supplement or amendment.

(b) Upon the occurrence of a Suspension Event, the Company shall provide to each Holder a notice (a “ Suspension Notice ”), which notice shall not include any material non-public information, that a Suspension Event has occurred or is occurring, and each Holder agrees that upon receipt of a Suspension Notice, such Holder will forthwith discontinue disposition of Registrable Shares pursuant to the Registration Statement until (A) such Holder’s receipt of the copies of the supplemented or amended Prospectus that addresses the reasons for providing the Suspension Notice, or (B) it is advised in writing by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus. Each Holder receiving a Suspension Notice hereby agrees that it will, at such Holder’s election, either (1) destroy any Prospectuses, other than permanent file copies, then in such Holder’s possession that have been replaced by the Company with more recently dated Prospectuses, or (2) deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in such Holder’s possession, of the Prospectus covering such Registrable Shares that was current at the time of receipt of such notice. Notwithstanding anything herein to the contrary, (A) a Holder shall be entitled to inquire of the Company further details regarding the nature of a Suspension Event for which it has been served a Suspension Notice, and the Company shall use its commercially reasonable efforts to provide any non-confidential information requested about the Suspension Event to such Holder and (B) the Company shall not serve a Suspension Notice to the Holders, unless, concurrently therewith, it has suspended sales under all other effective registration statements relating to the resale of the Company’s securities.

(c) Each Holder, by its acceptance of the Registrable Shares, agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of a Registration Statement hereunder, unless such Holder has notified the Company in writing of its election to exclude all of its Registrable Shares from such Registration Statement.

5. Due Diligence Review; Information .

(a) The Company shall make available, during normal business hours, for inspection and review by the Holders, advisors to and representatives of the Holders (who may or may not be affiliated with the Holders and who are reasonably acceptable to the Company), and any underwriter(s), all financial and other records, all filings with the Commission, and all other corporate documents and properties of the Company as may be reasonably necessary for the purpose of such review, and cause the Company’s officers, directors and employees, within a reasonable time period, to supply all such information reasonably requested by the Holders or any such representative, advisor or underwriter in connection with the Registration Statement (including, without limitation, in response to all questions and other inquiries reasonably made or submitted by any of them), prior to and from time to time after the filing and effectiveness of each Registration Statement for the sole purpose of enabling the Holders and such representatives, advisors and underwriters and their respective accountants and attorneys to conduct initial and ongoing due diligence with respect to the the accuracy of the Registration Statement.

(b) Notwithstanding anything contained herein to the contrary, the Company shall not disclose material nonpublic information to the Holders, or to advisors to or representatives of the Holders, unless prior to disclosure of such information the Company identifies such information as being material nonpublic information and provides the Holders, such advisors and representatives with the opportunity to accept or refuse to accept such material nonpublic information for review and any Holder wishing to obtain such information enters into a confidentiality agreement with the Company with respect thereto in a form reasonably satisfactory to the Company.

6. Indemnification .

(a) To the extent permitted by law, the Company shall indemnify each Holder, and each person controlling such Holder within the meaning of Section 15 of the Securities Act, with respect to which any registration that has been effected pursuant to this Agreement, against all claims, losses, damages and liabilities (or action in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened (subject to Section 6(d) below), arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in the Registration Statement, Prospectus, any amendment or supplement thereof or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances in which they were made, or any violation by the Company of any rule or regulation promulgated by the Securities Act applicable to the Company and relating to any action or inaction required of the Company in connection with any such registration and will reimburse each Holder and each person controlling such Holder for reasonable legal and other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action as incurred; provided, however, that the Company will not be liable in any such case to the extent that any untrue statement or omission or allegation thereof is made in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for use in preparation of such Registration Statement, Prospectus, or any amendment or supplement thereof; provided further, however, that the Company will not be liable in any such case where the claim, loss, damage or liability arises out of or is related to the failure of the Holder to comply with the covenants and agreements contained in this Agreement respecting sales of Registrable Shares, and except that the foregoing indemnity agreement is subject to the condition that, insofar as it relates to any such untrue statement or alleged untrue statement or omission or alleged omission made in the preliminary Prospectus but eliminated or remedied in the amended Prospectus on file with the Commission at the time the Registration Statement becomes effective or in the amended Prospectus filed with the Commission pursuant to Rule 424(b) or in the Prospectus subject to completion under Rule 430B of the Securities Act, which together meet the requirements of Section 10(a) of the Securities Act (the “ Final Prospectus ”), such indemnity shall not inure to the benefit of any such Holder or any such controlling person, if a copy of the Final Prospectus furnished by the Company to the Holder for delivery was not furnished to the person or entity asserting the loss, liability, claim or damage at or prior to the time such furnishing is required by the Securities Act and the Final Prospectus would have cured the defect giving rise to such loss, liability, claim or damage.

(b) The Holders, severally and not jointly, shall indemnify and hold harmless the Company, and each person controlling the Company within the meaning of Section 15 of the Securities Act, with respect to which any registration that has been effected pursuant to this Agreement, against all claims, losses, damages and liabilities (or action in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened (subject to Section 6(d) below), arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in the Registration Statement, Prospectus, any amendment or supplement thereof or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances in which they were made, that was made in reliance upon and in conformity with written information concerning such Holder furnished to the Company in writing expressly for inclusion therein, and will reimburse the Company and each person controlling the Company for reasonable legal and other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action as incurred; provided that the indemnity shall not apply to the extent that such claim, loss, damage or liability results from the fact that the Final Prospectus was not made available to the person or entity asserting the loss, liability, claim or damage at or prior to the time such furnishing is required by the Securities Act and the Final Prospectus would have cured the defect giving rise to such loss, claim, damage or liability. Notwithstanding the foregoing, a Holder’s aggregate liability pursuant to this Section 6 shall be limited to the net amount received by the Holder from the sale of the Registrable Shares pursuant to such registration.

(c) Each party entitled to indemnification under this Section 6 (the “ Indemnified Party ”) shall give notice to the party required to provide indemnification (the “ Indemnifying Party ”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party (at its expense) to assume the defense of any such claim or any litigation resulting therefrom, provided, however, that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be reasonably

acceptable to the Indemnified Party, and the Indemnified Party may participate in such defense provided that all legal and other expenses incurred by the Indemnified Party in connection therewith shall be at such Indemnified Party’s expense, and, provided further, that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Agreement, unless such failure is materially prejudicial to the Indemnifying Party in defending such claim or litigation. An Indemnifying Party shall not be liable for any settlement of an action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party, in its defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. Notwithstanding the foregoing, the Company shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for indemnified Holders as a group, which firm shall be designated by such Holders.

(d) If the indemnification provided for in this Section 6 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any loss, liability, claim, damage or expense referred to therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party thereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, liability, claim, damage or expense in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in connection with the statements or omissions which resulted in such loss, liability, claim, damage or expense as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

7. Miscellaneous .

(a) Amendments and Waivers . This Agreement may be amended only by a writing signed by the Company and the Required Holders. The Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company shall have obtained the written consent to such amendment, action or omission to act, of the Required Holders. Notwithstanding the foregoing, this Agreement may not be amended or terminated and the observance of any term hereof may not be waived with respect to any Holder without the written consent of such Holder, unless such amendment, termination, or waiver applies to all Holders in the same fashion.

(b) Notices . All notices, requests, demands and other communications that are required or may be given pursuant to the terms of this Agreement shall be in writing and shall be deemed delivered (i) on the date of delivery when delivered by hand on a Business Day during normal business hours or, if delivered on a day that is not a Business Day or after normal business hours, then on the next Business Day, (ii) on the date of transmission when sent by facsimile transmission or email during normal business hours on a Business Day with telephone confirmation of receipt or, if transmitted on a day that is not a Business Day or after normal business hours, then on the next Business Day, and (iii) on the second Business Day after the date of dispatch when sent by a reputable courier service that maintains records of receipt; provided, however, that, in any such case, such communication is addressed, if to the Holder, as specified for such communications on Exhibit A to the Note, and if to the Company, as follows, or, in each case, to such other address as the Company or the Holder may designate in a written notice to the other pursuant to this Section 7(b):

if to the Company, to:

Fibrocell Science, Inc.

405 Eagleview Blvd

Exton, PA 19341

Attn: General Counsel

Facsimile: 484.713.6000

Email: mmarino@fibrocell.com

(c) Assignments and Transfers by Holders . The provisions of this Agreement shall be binding upon and inure to the benefit of the Holders and their respective successors and assigns. A Holder may transfer or assign, in whole or from time to time in part, to one or more persons its rights hereunder in connection with the transfer of any Note, Warrant or Registrable Shares by such Holder to such person, provided that such Holder complies with all laws applicable thereto and provides written notice of assignment to the Company promptly after such assignment is effected. Following any such transfer or assignment, such transferee or assignee shall be considered a “Holder” under this Agreement.

(d) Assignments and Transfers by the Company . This Agreement may not be assigned by the Company (whether by operation of law or otherwise) without the prior written consent of the Required Holders, provided, however, that no consent shall be required in the event of a merger, consolidation, share exchange or similar business combination transaction in which the Common Stock is converted into the equity securities of another Person, in which case, from and after the effective time of such transaction, such Person shall, by virtue of such transaction, be deemed to have assumed the obligations of the Company hereunder, the term “Company” shall be deemed to refer to such Person and the term “Registrable Shares” shall be deemed to include the securities received by the Holders in connection with such transaction unless such securities are otherwise freely tradable by the Holders after giving effect to such transaction.

(e) Benefits of the Agreement . The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

(f) Counterparts; Electronic Transmission . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may also be executed via facsimile or other electronic transmission, which shall be deemed an original.

(g) Titles and Subtitles . The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

(h) Severability . Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof but shall be interpreted as if it were written so as to be enforceable to the maximum extent permitted by applicable law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereby waive any provision of law which renders any provisions hereof prohibited or unenforceable in any respect.

(i) Further Assurances . The parties shall execute and deliver all such further instruments and documents and take all such other actions as may reasonably be required to carry out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein contained.

(j) Entire Agreement . This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. If any provision of this Agreement is found to conflict with the Purchase Agreement, the provisions of this Agreement shall prevail.

(k) Governing Law . THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE INTERNAL LAW OF THE STATE OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD PERMIT THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

(l) Personal Jurisdiction . The Company and each Holder irrevocably submit to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, the City of New York, over any suit, action or proceeding arising out of or relating to this Agreement or any of the agreements, documents or instruments delivered in connection herewith or therewith. To the fullest extent permitted by applicable law, the Company and each Holder irrevocably waive and agree not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

(m) WAIVER OF JURY TRIAL . THE COMPANY AND EACH OF THE HOLDERS EACH IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER AGREEMENT, DOCUMENT OR INSTRUMENT DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR THE ACTIONS OF THE PURCHASERS IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF.

(n) Limitation of Liabilities . NO PARTY HEREUNDER SHALL BE LIABLE UNDER THIS AGREEMENT, THE NOTE OR THE WARRANT TO ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE OR SPECIAL DAMAGES (AS OPPOSED TO ACTUAL OR DIRECT DAMAGES) SUFFERED BY ANY OTHER PERSON (INCLUDING DAMAGES FOR HARM TO BUSINESS, LOST REVENUES, LOST SAVINGS OR LOST PROFITS SUFFERED BY SUCH PERSON), WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, TORT OR OTHERWISE, INCLUDING NEGLIGENCE OF ANY KIND, WHETHER ACTIVE OR PASSIVE, AND REGARDLESS OF WHETHER THE POSSIBILITY THAT SUCH DAMAGES COULD RESULT WAS KNOWN.

(o) No Inconsistent Agreements . Neither the Company nor any of its subsidiaries has entered, as of the date hereof, nor shall the Company or any of its subsidiaries, on or after the date of this Agreement, enter into any agreement with respect to its securities, that would have the effect of impairing the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. Neither the Company nor any of its subsidiaries has any current obligations regarding any registration rights with respect to any of its securities to any Person.

(p) Independent Nature of Holders’ Obligations and Rights . The obligations of each Holder hereunder are several and not joint with the obligations of any other Holder hereunder, and no Holder shall be responsible in any way for the performance of the obligations of any other Holder hereunder. Nothing contained herein or in any other agreement or document delivered at any closing, and no action taken by any Holder pursuant hereto or thereto, shall be deemed to constitute the Holders as a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that the Holders are in any way acting in concert or as a group or entity with respect to such obligations or the transactions contemplated by this Agreement or any other matters, and the Company acknowledges that the Holders are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or transactions. Each Holder shall be entitled to protect and enforce its rights, including without limitation the rights arising out of this Agreement, and it shall not be necessary for any other Holder to be

joined as an additional party in any proceeding for such purpose. The use of a single agreement with respect to the obligations of the Company contained was solely in the control of the Company, not the action or decision of any Holder, and was done solely for the convenience of the Company and not because it was required or requested to do so by any Holder. It is expressly understood and agreed that each provision contained in this Agreement is between the Company and a Holder, solely, and not between the Company and the Holders collectively and not between and among Holders.

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.



The Company:		FIBROCELL SCIENCE, INC.


		By:

		Name:

		Title:

[Company signature page to Registration Rights Agreement]



The Holders:


			By:

			Name:

			Title:


			[other Holders]

[Holder signature page to Registration Rights Agreement]

Exhibit A

Plan of Distribution

The selling stockholders, which as used herein includes donees, pledgees, transferees or other successors-in-interest selling shares of common stock or interests in shares of common stock received after the date of this prospectus from a selling stockholder as a gift, pledge, partnership distribution or other transfer, may, from time to time, sell, transfer or otherwise dispose of any or all of their shares of common stock or interests in shares of common stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices.

The selling stockholders may use any one or more of the following methods when disposing of shares or interests therein:


•	ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;


•	block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction;


•	purchases by a broker-dealer as principal and resale by the broker-dealer for its account;


•	an exchange distribution in accordance with the rules of the applicable exchange;


•	privately negotiated transactions;


•	short sales effected after the date the registration statement of which this Prospectus is a part is declared effective by the Commission;


•	through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;


•	broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share;


•	a combination of any such methods of sale; and


•	any other method permitted by applicable law.

The selling stockholders may, from time to time, pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock, from time to time, under this prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.

In connection with the sale of our common stock or interests therein, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The selling stockholders may also sell shares of our common stock short and deliver these securities to close out their short positions, or loan or pledge the common stock to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).

The aggregate proceeds to the selling stockholders from the sale of the common stock offered by them will be the purchase price of the common stock less discounts or commissions, if any. Each of the selling stockholders reserves the right to accept and, together with their agents from time to time, to reject, in whole or in part, any proposed purchase of common stock to be made directly or through agents. We will not receive any of the proceeds from this offering. Upon any exercise of the warrants by payment of cash, however, we will receive the exercise price of the warrants.

The selling stockholders also may resell all or a portion of the shares in open market transactions in reliance upon Rule 144, provided that they meet the criteria and conform to the requirements of that rule.

The selling stockholders and any underwriters, broker-dealers or agents that participate in the sale of the common stock or interests therein may be “underwriters” within the meaning of Section 2(11) of the Securities Act. Any discounts, commissions, concessions or profit they earn on any resale of the shares may be underwriting discounts and commissions under the Securities Act. If the selling stockholders use this prospectus supplement and accompanying prospectus for any sale of the shares of common stock, they will be subject to the prospectus delivery requirements of the Securities Act.

To the extent required, the shares of our common stock to be sold, the names of the selling stockholders, the respective purchase prices and public offering prices, the names of any agents, dealer or underwriter, any applicable commissions or discounts with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement that includes this prospectus.

In order to comply with the securities laws of some states, if applicable, the common stock may be sold in these jurisdictions only through registered or licensed brokers or dealers. In addition, in some states the common stock may not be sold unless it has been registered or qualified for sale or an exemption from registration or qualification requirements is available and is complied with.

We have advised the selling stockholders that the anti-manipulation rules of Regulation M under the Exchange Act may apply to sales of shares in the market and to the activities of the selling stockholders and their affiliates. In addition, to the extent applicable we will make copies of this prospectus (as it may be supplemented or amended from time to time) available to the selling stockholders for the purpose of satisfying the prospectus delivery requirements of the Securities Act. The selling stockholders may indemnify any broker-dealer that participates in transactions involving the sale of the shares against certain liabilities, including liabilities arising under the Securities Act.

We have agreed to indemnify the selling stockholders against liabilities, including certain liabilities under the Securities Act and state securities laws, relating to the registration of the shares offered by this prospectus.

We have agreed with the selling stockholders to keep the registration statement of which this prospectus constitutes a part effective until the earlier of (1) such time as all of the shares covered by this prospectus have been disposed of pursuant to and in accordance with the registration statement or (2) the date on which all of the shares may be sold without restriction pursuant to Rule 144 of the Securities Act.

Exhibit 99.1

Fibrocell Announces Closing of $18 Million Private Placement

EXTON, PA - September 8, 2016 - Fibrocell Science, Inc. (NASDAQ: FCSC) today reported the receipt of $18.1 million of gross proceeds from the sale of convertible promissory notes and warrants in its previously announced private placement financing. Fibrocell intends to use the proceeds of the financing for the continued pre-clinical and clinical development of its product candidates and for other general corporate purposes.

“We would like to thank the investors that participated in this financing. With the proceeds intended for the continued clinical development of FCX-007 and pre-clinical development of FCX-013, we look to create significant value for all of our stakeholders, including patients, physicians and shareholders,” said David Pernock, Chairman and Chief Executive Officer of Fibrocell. “Meaningful human clinical data is expected for FCX-007 in the second half of next year and we are excited by what the future holds.”

At the closing, Fibrocell issued convertible promissory notes having an aggregate principal amount of $18.1 million and warrants to purchase an aggregate of 18.1 million shares of Fibrocell common stock. The notes bear interest at a rate of 4% per annum which the Company may elect to accrue or pay in cash, and the investors may elect to have paid in shares of Company common stock having a value equal to such accrued interest based on the last closing bid price of the Company’s common stock on the date of such election. Each investor has the option to convert unpaid principal into shares of Company common stock at any time at conversion prices ranging from $1.13625 to $1.22625 per share (the range in conversion prices is based on the date of the investor’s purchase agreement) which would result in the issuance of 15.9 million shares of Company common stock. The maturity date of the notes is the earlier of September 7, 2026 or 180 days after the Company’s product candidate, FCX-007, is approved by the U.S. Food and Drug Administration for the treatment of recessive dystrophic epidermolysis bullosa. Each investor has the right to require the Company to repay all or any portion of the unpaid principal and accrued and unpaid interest at any time after September 7, 2021. The warrants issued in the financing have a five-year term and an exercise price equal to $1.50 per share.

Fibrocell believes the proceeds from this financing, together with its existing cash and cash equivalents, will be sufficient to fund its operations into the fourth quarter of 2017.

Cantor Fitzgerald & Co. acted as a financial advisor to the Company for the financing.

About Fibrocell

Fibrocell is an autologous cell and gene therapy company translating personalized biologics into medical breakthroughs for diseases affecting the skin and connective tissue. Fibrocell’s most advanced gene-therapy product candidate, FCX-007, has begun a Phase I/II trial for the treatment of recessive dystrophic epidermolysis bullosa (RDEB). Fibrocell is in pre-clinical development of FCX-013, its gene-therapy product candidate for the treatment of linear scleroderma. In addition, Fibrocell has a third gene-therapy program in the research phase for the treatment of arthritis and related conditions. Fibrocell’s gene-therapy portfolio is being developed in collaboration with Intrexon Corporation, a leader in synthetic biology. For more information, visit www.fibrocell.com or follow us on Twitter at @Fibrocell .

Forward-Looking Statements

This press release contains, and Fibrocell’s officers and representatives may from time to time make, statements that are “forward-looking statements” within the meaning of the safe harbor provisions of the U.S. Private Securities Litigation Reform Act of 1995. All statements that are not historical facts are hereby identified as forward-looking statements for this purpose and include, among others, statements relating to: Fibrocell’s expectations regarding its use of the proceeds from the financing; the sufficiency of the proceeds from the financing and Fibrocell’s existing cash and cash equivalents to funds its operations into the fourth quarter of 2017; Fibrocell’s expectations regarding the timing of the availability of human clinical data for FCX-007; and other statements regarding Fibrocell’s future operations, financial performance and financial position, prospects, strategies, objectives and other future events.

Forward-looking statements are based upon management’s current expectations and assumptions and are subject to a number of risks, uncertainties and other factors that could cause actual results and events to differ materially and adversely from those indicated herein including, among others: uncertainties and delays relating to the initiation, enrollment and completion of pre-clinical and clinical trials; whether pre-clinical and clinical trial results will validate and support the safety and efficacy of Fibrocell’s product candidates; unanticipated or excess costs relating to the wind-down of azficel-T (including LAVIV ^® ) operations and the development of Fibrocell’s gene-therapy product candidates; Fibrocell’s ability to obtain additional capital to fund its operations; Fibrocell’s ability to maintain its collaboration with Intrexon Corporation; and the risks, uncertainties and other factors discussed under the caption “Item 1A. Risk Factors” in Fibrocell’s most recent Form 10-K filing and Form 10-Q filings. As a result, you are cautioned not to place undue reliance on any forward-looking statements. While Fibrocell may update certain forward-looking statements from time to time, Fibrocell specifically disclaims any obligation to do so, whether as a result of new information, future developments or otherwise.

# # #

Investor Relations Contact:

Karen Casey

484.713.6133

kcasey@fibrocell.com