BRIDGE LOAN AGREEMENT
Exhibit 10.1
Execution Version
This
BRIDGE LOAN AGREEMENT (this
“Agreement”) is
made and entered into on October 23, 2020 (the “Effective Date”), by and among the
following parties:
1.
Cellular Biomedicine Group, Inc., a
Delaware corporation (the “Company” or “Borrower”);
2.
TF I Ltd. (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.
THE
LOAN
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$10,000,000 (the “Principal
Amount”). Lender will fund the Loan as promptly as
reasonably practicable (and in any event no later than five (5)
Business Days) following the Effective Date. For purposes of this
Agreement, “Business
Day” means any day other than a Saturday or Sunday or
other day on which banks are required or authorized to close in the
Republic of Singapore, Beijing, China or the State of
California.
1.2 The Loan shall be
evidenced by the issuance of the convertible promissory note in the
form of Exhibit A as attached hereto (the “Note”). The Note shall be issued
and dated as of the date on which the Loan is drawn down and
received by the Company.
1.3
The Loan shall be
repaid in accordance with the terms set out in the
Note.
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.
4.
MISCELLANEOUS
4.1 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.
4.2 Entire Agreement. This Agreement
constitutes the full and entire understanding and agreement between
the Parties with regard to the subject matter hereof.
4.3 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.
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4.4
Recitals. The recitals hereto
constitute an integral part hereof.
4.5 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.
4.6 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.
4.7 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.
4.8 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]
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IN
WITNESS WHEREOF, the parties hereto execute this Bridge Loan
Agreement as of the date first set forth above.
CELLULAR BIOMEDICINE GROUP INC.
By:
/s/ Xxxxxx
Xxxx
Name:
Xxxxxx Xxxx
Title:
Chief Legal Officer
IN
WITNESS WHEREOF, the parties hereto execute this Bridge Loan
Agreement as of the date first set forth above.
TF I LTD.
By:
/s/ CHIANG
XXXX,
XXXX-LIEN
Name: CHIANG XXXX,
XXXX-LIEN
Title:
Director
EXHIBIT
A
CONVERTIBLE PROMISSORY
NOTE
US$10,000,000
[date Loan is funded],
2020
FOR
VALUE RECEIVED, Cellular Biomedicine Group Inc., a Delaware
corporation (the “Company” or “Borrower”), promises to pay to TF
I Ltd. or its assigns (the “Holder”) the aggregate principal
sum of ten million U.S. dollars (US$10,000,000) 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 October 23,
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$10,000,000. 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. Maturity Date. All unpaid
principal amount together with the unpaid and accrued interest
payable hereunder (to the extent not converted in accordance with
the terms of this Note) (the “Outstanding Amount”) shall be due
and payable and shall be repaid by the Borrower by wire transfer of
U.S. dollars in immediately available funds to the designated
account of the Holder on the earlier of (i) August 7, 2021, and
(ii) the occurrence of an Event of Default (as described in Section
7 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 7
(the earlier date of which being the “Maturity Date”).
4.
Conversion.
Conversion Right. Subject to and upon
compliance with the provisions of this Note, for as long as this
Note is outstanding, the Holder shall have the right, at its option
to convert all (but not part) of the Outstanding Amount (the
“Conversion
Amount”) (i) on the close of business on the Maturity
Date into the common stock, par value $0.001 per share, of the
Borrower (the “Common
Stock”), 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, subject to
ratable adjustment for any stock split, stock dividend, stock
combination or other recapitalization occurring subsequent to the
date of this Note or (ii) immediately prior to (but subject to) the
closing of an Acquisition (as defined below) prior to the Maturity
Date, at a conversion price equal to the price per share of Common
Stock payable (or deemed payable) in the Acquisition. For purposes
of this Note, an “Acquisition” means (a) the merger
contemplated under the Agreement and Plan of Merger, dated August
11, 2020, by and among CBMG Holdings, CBMG Merger Sub, Inc. and the
Company (as may be amended from time to time, the
“Merger
Agreement”); (b) any direct or indirect acquisition or
purchase, in a single transaction or a series of related
transactions, of (i) fifty percent (50%) or more of the assets
(including capital stock of the subsidiaries of the Company) of the
Company and its subsidiaries, taken as a whole, or (ii) shares of
Common Stock or other equity securities of the Company which
together with any other shares of Common Stock or other equity
securities of the Company beneficially owned by such Person or
group, would equal fifty percent (50%) or more of the aggregate
voting power of the Company or any of its subsidiaries, the
business of which constitutes fifty percent (50%) or more of the
net revenues, net income or assets of the Company and
A-1
its
subsidiaries, taken as a whole, (c) any tender offer or exchange
offer that, if consummated, would result in any person or group
owning, directly or indirectly, fifty percent (50%) or more of the
aggregate voting power of the Company or any of its subsidiaries,
the business of which constitutes fifty percent (50%) or more of
the net revenues, net income or assets of the Company and its
subsidiaries, taken as a whole, or (d) any merger, consolidation,
business combination, binding share exchange or similar transaction
involving the Company pursuant to which any person or group (or the
stockholders of any person) would own, directly or indirectly,
fifty percent (50%) or more of the aggregate voting power of the
Company or of the surviving entity in a merger or the resulting
direct or indirect parent of the Company or such surviving entity,
or (e) any recapitalization, liquidation, dissolution or any other
similar transaction involving the Company or any of its
subsidiaries, the business of which constitutes fifty percent (50%)
or more of the net revenues, net income or assets of the Company
and its subsidiaries, taken as a whole, other than, in the case of
(b) - (e), the transactions contemplated by the Merger
Agreement.
A-2
(a) Conversion Notice. To convert the
Conversion Amount into Common Stock (the “Converted Shares”), the Holder
shall give written notice and surrender the Note to the Company at
the latest within ten (10) Business Days before the Conversion Date
(defined below). The person or entity entitled to receive the
Converted Shares issuable upon a conversion of this Note shall be
treated for all purposes as the record holder or holders of such
Converted Shares (i) on the Maturity Date, in the case of
conversion pursuant to Section 4(a)(i), and (ii) on the date of
closing of the Acquisition, in the case of conversion pursuant to
section 4(a)(ii) (each, a “Conversion Date”) and the
conversion shall be deemed to have been made immediately prior to
the close of business on the Conversion Date. For purposes of this
Note, “Business
Day” means any day other than a Saturday or Sunday or
other day on which banks are required or authorized to close in the
City of New York, Hong Kong or Beijing.
(b) No Fractional Shares. 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.
5. 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.
6. 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.
7. 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.
A-3
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 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.
9.
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.
10. Modification; Waiver. Any term
of this Note may be amended or waived with the written consent of
the Company and the Holder.
11. 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.
12. 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]
A-4
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:
A-5
EXHIBIT
B NOTICES
If to
the Company:
Attn:
Xxxxxx
Xxxx
Address:
000 Xxxxx Xxxxxxx,
Xxxxx 00 Xxxxxxxxxxxx, XX 00000
Email:
xxxx.xxxx@xxxxxxxxxxxxxxx.xxx
Facsimile:
(000) 000
0000
Telephone:
(000) 000
0000
If to
the Lender:
Attn:
Xxxxxxxx
Xxxxx
Address:
Xxxx 000, Xxxxx 0,
00 Xxxxxx Xxxx, Xxxxxx Center
Xxxxxx Xxx
Xxxxxxxx, Xxxxxxxx 000000, Xxxxx
Email:
xxxxxxxx.xxxxx@xxxxxxxxx.xxx
Facsimile:
x00 00 0000
0000
Telephone:
x00 00 0000
0000
B-1
