Ernexa Therapeutics Inc. 10-Q

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds. Set forth below is information regarding shares of common stock issued by us during the three months ended June 30, 2021 that were not registered under the Securities Act of 1933. Included is the consideration, if any, we received for such shares and information relating to the section of the Securities Act of 1933, or the rule of the SEC, under which exemption from registration was claimed. On April 26, 2021, we entered into a purchase agreement with Lincoln Park Capital Fund, LLC, or Lincoln Park, pursuant to which we issued to Lincoln Park an aggregate of 1,127,736 shares of common stock from April 26, 2021 through May 19, 2021, of which (a) 56,041 shares of common stock were issued as consideration for Lincoln Park’s commitment to purchase shares of common stock under our April 26, 2021 purchase agreement, and (b) 1,071,695 shares were issued to Lincoln Park pursuant to the purchase agreement for an aggregate purchase price of $20.0 million. We intend to us the net proceeds for general corporate purposes, including working capital. On May 26, 2021, we entered into a purchase agreement with Lincoln Park pursuant to which we issued to Lincoln Park an aggregate of 2,084,206 shares of common stock from May 26, 2021 through June 29, 2021, of which (a) 50,000 shares of common stock were issued as consideration for Lincoln Park’s commitment to purchase shares of common stock under our May 26, 2021 purchase agreement, and (b) 2,034,206 shares were issued to Lincoln Park pursuant to the purchase agreement for an aggregate purchase price of $30.5 million. Pursuant to our purchase agreement with Lincoln Park, we have the right to sell to Lincoln Park up to an additional $9.5 million in shares of common stock, subject to certain limitations, from time to time on or before June 4, 2024. We intend to us the net proceeds for general corporate purposes, including working capital. The securities described in this Item 2 were issued to investors in reliance upon the exemption from the registration requirements of the Securities Act of 1933, as set forth in Section 4(a)(2) under the Securities Act of 1933 and/or Regulation D promulgated thereunder relative to transactions by an issuer not involving any public offering, to the extent an exemption from such registration was required. The recipients of securities in the transactions described above represented that they were accredited investors and were acquiring the securities for their own account for investment purposes only and not with a view to, or for sale in connection with, any distribution thereof and that they could bear the risks of the investment and could hold the securities for an indefinite period of time and appropriate legends were affixed to the instruments representing such securities issued in such transactions. 34 Table of Contents Item 6. Exhibits. Exhibit Description Incorporated By Reference 10.1(a)†* Agreement and Plan of Acquisition, dated as of July 16, 2021, by and among Brooklyn ImmunoTherapeutics, Inc., Brooklyn Acquisition Sub, Inc., Novellus LLC, Novellus, Inc., and the Sellers’ Representative. Exhibit to Form 8-K filed on July 19, 2021 10.1 (b)† Registration Rights Agreement, dated as of July 16, 2021, by and among Brooklyn ImmunoTherapeutics, Inc. and the individuals and entities named therein. Exhibit to Form 8-K filed on July 19, 2021 10.2+§ Executive Employment Agreement, dated as of April 1, 2021 and effective as of April 16, 2021, between Brooklyn ImmunoTherapeutics, Inc. and Howard J. Federoff. Exhibit to Form 8-K filed on April 7, 2021 10.3(a)+ Form of Indemnification Agreement Exhibit to Form 8-K filed on April 16, 2021 10.3(b) Schedule identifying agreements substantially identical to the form of indemnification agreement filed as Exhibit 10.2(a) Exhibit to Form 8-K filed on June 21, 2021 10.4(a) Purchase Agreement, dates as of May 26, 2021, between Brooklyn ImmunoTherapeutics, Inc. and Lincoln Park Capital Fund, LLC Exhibit to Form 8-K filed on May 26, 2021 10.4(b) Registration Rights Agreement, dated as of May 26, 2021, between Brooklyn ImmunoTherapeutics, Inc. and Lincoln Park Capital Fund, LLC Exhibit to Form 8-K filed on May 26, 2021 10.5§* Exclusive License Agreement, dated as of April 26, 2021, between Factor Bioscience Limited, Novellus Therapeutics Limited and Brooklyn ImmunoTherapeutics LLC Exhibit to Form 8-K filed on April 30, 2021 10.6+ Brooklyn ImmunoTherapeutics, Inc. 2021 Inducement Stock Incentive Plan Exhibit to Form 8-K filed on May 26, 2021 10.7+ Executive Employment Agreement, dated as of June 5, 2021 and effective as of June 28, 2021, between Brooklyn ImmunoTherapeutics, Inc. and Kevin D’Amour. Exhibit to Form 8-K filed on June 10, 2021 10.8+ Executive Employment Agreement, dated as of June 16, 2021 and effective as of June 21, 2021, between Brooklyn ImmunoTherapeutics, Inc. and Sandra Gurrola. Exhibit to Form 8-K filed on June 21, 2021 10.9+ Executive Employment Agreement, dated as of July 6, 2021 and effective as of July 15, 2021, between Brooklyn ImmunoTherapeutics, Inc. and Jay Sial. Exhibit to Form 8-K filed on July 19, 2021 31.1 Certification of Principal Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 Filed herewith 31.2 Certification of Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 Filed herewith 32.1 Certification of Principal Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 Furnished herewith 32.2 Certification of Principal Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 Furnished herewith 101.INS Inline XBRL Instance Document (the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document). Filed herewith 101.SCH Inline XBRL Taxonomy Extension Schema Document Filed herewith 101.CAL Inline XBRL Taxonomy Extension Calculation Linkbase Document Filed herewith 101.DEF Inline XBRL Taxonomy Extension Definition Linkbase Document Filed herewith 101.LAB Inline XBRL Taxonomy Extension Label Linkbase Document Filed herewith 101.PRE Inline XBRL Taxonomy Extension Presentation Linkbase Document Filed herewith 104 Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101). * Certain information redacted and replaced with “[***]”. + Indicates management contract or compensatory plan. § Certain addenda have been omitted pursuant to Item 601(a)(5) of Regulation S-K. We hereby undertake to furnish copies of the omitted addenda upon request by the Securities and Exchange Commission, provided that we may request confidential treatment pursuant to Rule 24b‑2 of the Securities Exchange Act of 1934 for the addenda so furnished. † Schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Brooklyn ImmunoTherapeutics, Inc. hereby undertakes to furnish supplementally copies of any of the omitted schedules and exhibits upon request by the Securities and Exchange Commission 35 Table of Contents SIGNATURE 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. BROOKLYN IMMUNOTHERAPEUTICS, INC. Date: August 13, 2021 By: /s/ Howard J. Federoff Howard J. Federoff Chief Executive Officer and President 36