Page 18 of 67 SEC Filing
(c)
Upon receipt by the Company of the Initial Boyalife USA Purchase Price, in cash by wire transfer of immediately available
funds, on the Initial Closing Date, the Company shall deliver to Boyalife USA certificates representing the Debenture (reflecting
a principal amount of $8,000,000) and the Initial Boyalife USA Warrants.
(d)
Upon receipt by the Company of the Subsequent Boyalife USA Purchase Price, in cash by wire transfer of immediately available
funds, on the Subsequent Closing Date, the Company shall deliver to Boyalife USA certificates representing the Subsequent Boyalife
USA Warrants.
4. Representations
and Warranties of the Company. The Company hereby represents and warrants to the Investors that, except as set forth in the
SEC Filings or in that certain disclosure letter dated as of the date hereof and delivered to the Investors:
4.1 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
to own its properties. The Company is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property makes such qualification or leasing necessary unless
the failure to so qualify has not and could not reasonably be expected to have a Material Adverse Effect.
4.2 Authorization.
The Company has full power and authority and, except for the filing of such securities filings relating to the offer, sale and
issuance of the Securities with the relevant authorities, has taken all requisite action on the part of the Company, its officers,
directors and stockholders necessary for (i) the authorization, execution and delivery of the Transaction Documents, (ii) the authorization
of the performance of all obligations of the Company hereunder or thereunder, and (iii) the authorization, issuance (or reservation
for issuance) and delivery of the Securities. The Transaction Documents constitute the legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability, relating to or affecting creditors’ rights generally.
4.3 Capitalization. The
authorized capital stock of the Company consists of 350,000,000 shares of Common Stock and 2,000,000 shares of
preferred stock. As of December 31, 2015, 42,807,468 shares of Common Stock were issued and outstanding and no shares of
preferred stock were issued and outstanding. All of the issued and outstanding shares of the Company’s capital stock
have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights and were issued
in full compliance with applicable state and federal securities law and any rights of third parties. Except for the Sabby
Affiliates, no Person is entitled to pre-emptive or similar statutory or contractual rights with respect to any securities of
the Company. Except as described in the SEC Filings, there are no outstanding warrants, options, convertible securities or
other rights, agreements or arrangements of any character under which the Company is or may be obligated to issue any equity
securities of any kind and except as contemplated by this Agreement, the Company is not currently in negotiations for the
issuance of any equity securities of any kind. Except as described in the SEC Filings, there are no voting agreements,
buy-sell agreements, option or right of first purchase agreements or other agreements of any kind among the Company and any
of the security holders of the Company relating to the securities of the Company held by them. Except as described in the SEC
Filings, no Person has the right to require the Company to register any securities of the Company under the 1933 Act, whether
on a demand basis or in connection with the registration of Securities of the Company for its own account or for the account
of any other Person.
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