EXHIBIT 10.1
BRIDGE LOAN AGREEMENT
This
BRIDGE LOAN AGREEMENT (this “Agreement”) is made and entered
into on January 28, 2020, by and among the following
parties:
1.
Cellular
Biomedicine Group, Inc., a Delaware corporation (the
“Company” or
“Borrower”);
2.
Winsor Capital
Limited, a company incorporated under the laws of the British
Virgin Islands (the “Lender”).
The
Company and the Lender are collectively referred to below as the
“Parties” and
each a “Party”.
RECITALS
A.
The Company
requires an infusion of funds in order to conduct its business
activities.
B.
The Lender is
willing to make available the Loan (as defined below) to the
Company, on the terms set forth below.
NOW,
THEREFORE, in consideration of the premises set forth above, the
mutual promises and covenants set forth herein and other good and
valuable consideration, the parties agree as follows:
1.1.
Subject to the
terms and conditions hereunder, the Lender agrees to extend to the
Company, and the Company is willing to accept from the Lender, a
bridge loan (the “Loan”) in an aggregate amount of
US$16,000,000 (the “Principal
Amount”) in three tranches. The first tranche of the
Loan (in the amount of US$7,000,000) shall be provided on or before
February 1, 2020, the second tranche of the Loan (in the amount of
US$7,000,000) shall be provided on or before March 1, 2020 and the
third tranche of the Loan (in the amount of US$2,000,000) shall be
provided on or before April 1, 2020.
1.2.
Each tranche of the
Loan shall be evidenced by the issuance of the convertible
promissory note in the form of Exhibit A as attached hereto
(the “Note”).
Each Note shall be issued and dated as of the date on which the
relevant tranche of the Loan is drawn down and received by the
Company.
1.3.
Subject to Section
4 below, each tranche of the Loan shall
be repaid in accordance with the terms set out in the Note
applicable to such tranche of the Loan.
2.
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
In
connection with the transactions provided for herein, the Company
hereby represents and warrants to the Lender that:
2.1
Organization, Good Standing, and
Qualification. The Company is a corporation duly organized,
validly existing, and in good standing under the laws of the State
of Delaware and has all requisite corporate power and authority to
carry on its business as now conducted and as proposed to be
conducted. The Company is duly qualified to transact business and
is in good standing in each jurisdiction in which the failure so to
qualify would have a material adverse effect on its business or
properties.
2.2
Authorization. All corporate action on
the part of the Company, and its officers, directors, and/or
stockholders necessary for the authorization and execution of this
Agreement and the performance of all obligations of the Company
hereunder and thereunder has been taken.
2.3
Enforceability. This Agreement
constitutes valid and legally binding obligations of the Company,
enforceable in accordance with its respective terms, except (i) as
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting
enforcement of creditors’ rights generally and (ii) as
limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable
remedies.
2.4
Noncontravention. The execution and
performance by the Company of this Agreement will not cause a
default under, or otherwise breach, its certificate of
incorporation or bylaws, each as amended, or any other insurance,
document or agreement to which the Company is a party or by which
it is bound, or any law, rule or regulation applicable to the
Company or its assets which such default or breach would have a
material adverse effect on the ability of the Company to perform
its payment obligation under this Agreement.
2.5
Borrower Compliance with
Anti-Money Laundering Laws. The Borrower and its subsidiaries are and have
been at all times in compliance with applicable financial
recordkeeping and reporting requirements, the applicable money
laundering statutes of all jurisdictions where the Borrower or any
of its subsidiaries conducts business, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines issued, administered or enforced by any governmental or
regulatory agency (collectively, the “Anti-Money Laundering
Laws”), and no action
suit or proceeding by or before any governmental authority or any
arbitrator involving the Borrower or any of its subsidiaries with
respect to the Anti-Money Laundering Laws is pending or, to the
knowledge of the Borrower, threatened.
3.
REPRESENTATIONS
AND WARRANTIES OF THE LENDER
3.1
The Lender is duly
organized, validly existing and in good standing under the laws of
the place of its incorporation or establishment. The Principal
Amount that the Lender provides to the Company under this Agreement
is legitimate and free from any encumbrance.
3.2
All corporate
actions on the part of the Lender for the authorization, execution
and delivery of, and the performance of all obligations under this
Agreement have been taken. This Agreement is a valid and binding
obligation of the Lender.
3.3
The
Lender and its subsidiaries are and have been at all times in
compliance with applicable financial recordkeeping and reporting
requirements, and the applicable Anti-Money Launder Laws, and no
action suit or proceeding by or before any governmental authority
or any arbitrator involving the Lender or any of its subsidiaries
with respect to the Anti-Money Laundering Laws is pending or, to
the knowledge of the Lender, threatened.
Notwithstanding
Section 3 (Repayment) of the Notes, if a consortium of investors
acquires 100% of the shares of the Borrower or takes the Borrower
private by way of merger or otherwise (the “Acquisition”), at the election of
the Lender, all unpaid principal amount together with the unpaid
and accrued interest payable under all tranches of the outstanding
Loan may be converted into the common stock of the Borrower at a
conversion price equal to the price per share payable in the
Acquisition and issued to the Lender and Section 3 (Repayment) of
the Notes shall not apply. For the avoidance of doubt, the Company
shall not be obligated to procure the shares of the Lender
converted therefrom to be rolled over and converted into the equity
of the acquiring entity in the Acquisition.
5.1
Governing Law. (a) This Agreement, and
all claims or causes of action (whether in contract, tort or
statute) that may be based upon, arise out of or relate to this
Agreement, or the negotiation, execution or performance of this
Agreement (including any claim or cause of action based upon,
arising out of or related to any representation or warranty made in
or in connection with this Agreement or as an inducement to enter
into this Agreement), is to be construed and enforced in accordance
with and governed by the laws of Hong Kong, without regard to any
conflict of law principles.
(b) All
disputes and controversies arising out of or in connection with
this Agreement shall be referred to and finally settled by
arbitration in Hong Kong under the Hong Kong International
Arbitration Center Administered Arbitration Rules (the
“Rules”) in force when the Notice of Arbitration (as
defined by the Rules) is submitted in accordance with the Rules.
The arbitration tribunal shall consist of one (1) arbitrator to be
appointed according to the Rules. The language of the arbitration
shall be English.
5.2
Entire Agreement. This Agreement
constitutes the full and entire understanding and agreement between
the Parties with regard to the subject matter hereof.
5.3
Severability. The terms and provisions
of this Agreement are severable, and if any term or provision shall
be determined to be in any way unenforceable in whole or in part
pursuant to applicable law, such determination shall not impair or
otherwise affect the validity, legality or enforceability of that
term or provision in any other jurisdiction or any of the remaining
terms and provisions of this Agreement in any jurisdiction, and any
such provision shall be given effect to the extent legally
possible.
5.4
Recitals. The recitals hereto
constitute an integral part hereof.
5.5
Headings. The titles of the sections
and subsections of this Agreement are for convenience of reference
only, and are not to be considered in construing this
Agreement.
5.6
Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be
deemed an original, and all of which together shall constitute one
instrument.
5.7
Amendment. Any term of this Agreement
may be amended and the observance of any term hereof may be waived
only with the prior written consent of the Company and the
Lender.
5.8
Notices. All notices, requests,
demands, consents, instructions or other communications required or
permitted hereunder shall be in writing and faxed, emailed, mailed
or delivered to each party as follows: (i) if to the Lender, at the
Lender’s address, email address or facsimile number set forth
in the Exhibit B
hereto, or at such other address, email address or facsimile number
as the Holder shall have furnished the Company in writing, or (ii)
if to the Company, at the Company’s address, email address or
facsimile number set forth in the Exhibit B hereto, or at such
other address, email address or facsimile number as the Company
shall have furnished to the Holder in writing. All such notices and
communications will be deemed effectively given the earliest of (a)
when received, (b) when delivered personally, (c) one business day
after being delivered by facsimile or email (with receipt of
appropriate confirmation), (d) one business day after being
deposited with an overnight courier service of recognized standing
or (e) three days after being deposited in the U.S. mail, first
class with postage prepaid.
[Signature page follows]
IN
WITNESS WHEREOF, the parties hereto execute this Bridge Loan
Agreement as of the date first set forth above.
CELLULAR BIOMEDICINE GROUP INC.
By:
________________________
Name:
Title:
[Signature
Page to Bridge Loan Agreement]
IN
WITNESS WHEREOF, the parties hereto execute this Bridge Loan
Agreement as of the date first set forth above.
WINSOR CAPITAL LIMITED
By:
________________________
Name:
Title:
[Signature
Page to Bridge Loan Agreement]
EXHIBIT A
CONVERTIBLE PROMISSORY NOTE
US$7,000,000
January
29, 2020
No.:
Tranche No. 1
FOR
VALUE RECEIVED, Cellular Biomedicine Group Inc., a Delaware
corporation (the “Company” or “Borrower”), promises to pay to
Winsor Capital Limited or its assigns (the “Holder”) the aggregate principal
sum of seven million U.S. dollars (US$7,000,000) together with
accrued and unpaid interest thereon, each due and payable on the
date and in the manner set forth below.
This
convertible promissory note (this “Note”) is issued pursuant to the
terms of that certain Bridge Loan Agreement dated as of January 28,
2020, by and among the Company and the Holder, as the same may be
amended from time to time (the “Agreement”). Capitalized terms
used but not otherwise defined herein shall have the meanings
ascribed to them in the Agreement. This Note is an unsecured
obligation of the Company.
1. Advances. Upon the execution
and delivery of this Note, the Holder shall disburse to the Company
the sum of US$7,000,000. The amount actually received by the
Company shall be the principal amount.
2. Interest Rate. The Company
promises to pay simple interest on the outstanding principal amount
hereof from the date hereof until payment in full, which interest
shall be payable at the rate of 6% per annum. Interest shall be due
and payable on the Maturity Date and shall be calculated on the
basis of a 365-day year for the actual number of days
elapsed.
3. Repayment. The Borrower shall
repay all unpaid principal amount together with the unpaid and
accrued interest payable hereunder (the “Outstanding Amount”) on the
earliest of (i) the date falling nine (9) months from the date of
this Note, or (ii) the occurrence of an Event of Default (as
described in Section 6 below) for so
long as such Event of Default has not been remedied by the end of
the applicable grace period as set out in Section 6 (the earlier
date of which being the “Maturity Date”), in each case of
(i) and (ii), by converting and issuing to the Holder all (but not
part) of the Outstanding Amount into the common stock of the
Company at a conversion price equal to the lower of (A) US$19.50
per share and (B) an amount representing a 15% discount to the
volume weighted average price over the preceding 30 trading days
prior to and including the Maturity Date, in each case subject to
ratable adjustment for any stock split, stock dividend, stock
combination or other recapitalization occurring subsequent to the
date of this Note (the “Tranche One Conversion”); provided
that, in the case that an Acquisition (as defined in the Agreement)
has occurred on or prior to the Maturity Date, such Tranche One
Conversion shall be subject to the consent of the Holder, and in
the event that the Holder elects not to effect the Tranche One
Conversion, the Outstanding Amount shall be repaid by the Borrower
by wire transfer of U.S. dollars in immediately available funds to
the designated account of the Holder. For the avoidance of
doubt, the Company shall not be obligated to procure the shares of
the Holder converted therefrom to be rolled over and converted into
the equity of the acquiring entity in the Acquisition. No
fractional units will be issued on conversion of this Note. If the
Holder would otherwise be entitled to a fractional unit, the Holder
shall receive in lieu thereof a cash payment equal to the
applicable per share price of the common stock into which the
Outstanding Amount is proposed to be converted, multiplied by the
fraction of the common stock the Holder would otherwise be entitled
to receive.
4. Expenses. In the event of any
default hereunder, the Company shall pay all reasonable
attorneys’ fees and court costs incurred by the Holder in
enforcing and collecting this Note.
5. Prepayment. The Company may
prepay this Note (including accrued interest), in whole or in part,
prior to the Maturity Date in cash, provided that prior written
notice of not less than seven (7) calendar days is delivered to the
Holder.
6. Default. If there shall be any Event of
Default (as defined below) hereunder, this Note shall accelerate
and all principal and unpaid accrued interest shall become due and
payable. The occurrence of any one or more of the following shall
constitute an “Event of
Default”:
(a) The
Company fails to pay timely any of the principal amount due under
this Note on the date the same becomes due and payable or any
accrued interest or other amounts due under this Note on the date
the same becomes due and payable, unless such failure is caused by
technical or administrative error and payment is made within five
(5) calendar days of the original due date;
(b) The
Company files any petition or action for relief under any
bankruptcy, reorganization, insolvency or moratorium law or any
other law for the relief of, or relating to, debtors, now or
hereafter in effect, or makes any assignment for the benefit of
creditors or takes any corporate action in furtherance of any of
the foregoing;
(c) An
involuntary petition is filed against the Company (unless (A) such
petition is dismissed or discharged within 60 days or (B) such
petition is frivolous or vexatious) under any bankruptcy statute
now or hereafter in effect, or a custodian, receiver, trustee,
assignee for the benefit of creditors (or other similar official)
is appointed to take possession, custody or control of any property
of the Company;
(d) A
liquidation, termination of existence or dissolution of the
Company; or
(e) Any
representation, warranty or statement of fact made by the Company
in the Agreement, or any other agreement, schedule, confirmatory
assignment or otherwise in connection with the transactions
contemplated hereby or thereby, shall when made or deemed made be
false or misleading in any material respect; provided, however,
that such failure shall not result in an Event of Default to the
extent it is corrected by the Company within a period of 30
calendar days after the Company’s receipt of written notice
from the Holder specifying such failure.
7. Notices. All notices,
requests, demands, consents, instructions or other communications
required or permitted hereunder shall be in writing and faxed,
emailed, mailed or delivered to each party as follows: (i) if to
the Holder, at the Holder’s address, email address or
facsimile number set forth in the Agreement, or at such other
address, email address or facsimile number as the Holder shall have
furnished the Company in writing, or (ii) if to the Company, at the
Company’s address, email address or facsimile number set
forth in the Agreement, or at such other address, email address or
facsimile number as the Company shall have furnished to the Holder
in writing. All such notices and communications will be deemed
effectively given the earliest of (a) when received, (b) when
delivered personally, (c) one business day after being delivered by
facsimile or email (with receipt of appropriate confirmation), (d)
one business day after being deposited with an overnight courier
service of recognized standing or (e) three days after being
deposited in the U.S. mail, first class with postage
prepaid.
8. Governing Law.
(a) This
Agreement, and all claims or causes of action (whether in contract,
tort or statute) that may be based upon, arise out of or relate to
this Agreement, or the negotiation, execution or performance of
this Agreement (including any claim or cause of action based upon,
arising out of or related to any representation or warranty made in
or in connection with this Agreement or as an inducement to enter
into this Agreement), is to be construed and enforced in accordance
with and governed by the laws of Hong Kong, without regard to any
conflict of law principles.
(b) All
disputes and controversies arising out of or in connection with
this Agreement shall be referred to and finally settled by
arbitration in Hong Kong under the Hong Kong International
Arbitration Center Administered Arbitration Rules (the
“Rules”) in force when the Notice of Arbitration (as
defined by the Rules) is submitted in accordance with the Rules.
The arbitration tribunal shall consist of one (1) arbitrator to be
appointed according to the Rules. The language of the arbitration
shall be English.
9. Modification; Waiver. Any
term of this Note may be amended or waived with the written consent
of the Company and the Holder.
10. Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default. No right or remedy herein
conferred upon or reserved to the Holder is intended to be
exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy. No delay or omission of the Holder to
exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right
or power or shall be construed to be a waiver of any such Event of
Default or an acquiescence therein; and every power and remedy
given by this Note or by law may be exercised from time to time,
and as often as shall be deemed expedient, by the
Holder.
11. Transfer and Assignment.
The Holder shall be free to transfer or assign any of its rights
and obligations under this Note to its affiliates as long as notice
is given to the Company within five (5) calendar days after such
transfer or assignment. Neither this Note nor any of the rights,
interests or obligations hereunder may be assigned, in whole or in
part, by the Company, without the prior written consent of the
Holder. Subject to the restrictions on transfer provided herein,
the rights and obligations of the Company and the Holder shall be
binding upon and benefit the respective successors, assigns, heirs,
administrators and transferees of the Company or the Holder, as
applicable.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the Company has caused this Note to be duly
executed by its officers, thereunto duly authorized as of the date
first above written.
CELLULAR BIOMEDICINE GROUP INC.
By:
________________________
Name:
Title:
EXHIBIT B
NOTICES
If to
the Company:
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Attn:
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Andrew
Chan
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Address:
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1345 Avenue of the
Americas, Fl15, New York, NY
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Email:
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andy.chan@cellbiomedgroup.com
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Facsimile:
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(347) 679
8203
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Telephone:
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(347) 905
5663
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If to
the Lender:
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Attn:
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Tingting
Zhang
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Address:
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Unit 705, Tower 1,
88 Keyuan Road, German Center, Pudong New District, Shanghai
201203, China
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Email:
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tingting.zhang@tfcapital.net
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Facsimile:
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86 21 5019
8837
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Telephone:
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86 21 5019
8835
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