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 September 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. Under the Second Purchase Agreement with Lincoln Park pursuant to which we issued to Lincoln Park an aggregate of 340,048 shares of common stock from September 19, 2021 through September 20, 2021 for an aggregate purchase price of $3.6 million. We intend to us the net proceeds from these transactions for general corporate purposes, including working capital. On July 16, 2021, we entered into the Acquisition Agreement to acquire all of the outstanding equity interests of Novellus, Inc., which became our wholly owned subsidiary, and Novellus, Ltd. became our indirectly owned subsidiary. We also acquired 25% of the total outstanding equity interests of NoveCite. We delivered consideration that included 7,022,230 shares of common stock, which under the terms of the Acquisition Agreement were valued at a total of $102,000,000, based on a price of $14.5253 per share. The closing of the transaction, including the issuance of the common stock, was held contemporaneously with the execution and delivery of the Acquisition Agreement. 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. 36 Table of Contents Item 6. Exhibits. Exhibit Description Incorporated By Reference 3.1 Restated Certificate of Incorporation Exhibit to Form 10-Q filed on August 14, 2013 3.1(a) Certificate of Amendment to the Restated Certificate of Incorporation (reverse/forward split) Exhibit to Form 8-K filed on June 17, 2016 3.1(b) Certificate of Decrease of the Series A Convertible Preferred Stock Exhibit to Form 8-K filed on April 12, 2017 3.1(c) Certificate of Amendment to the Restated Certificate of Incorporation (decrease in authorized capital stock) Exhibit to Form 8-K filed on June 9, 2017 3.1(d) Certificate of Amendment to Restated Certificate of Amendment, dated March 25, 2021 (Reverse Stock Split) Exhibit to Form 8-K filed on March 31, 2021 3.1(e) Certificate of Amendment to Restated Certificate of Amendment, dated March 25, 2021 (Authorized Share Increase) Exhibit to Form 8-K filed on March 31, 2021 3.1(f) Certificate of Amendment to Restated Certificate of Amendment, dated March 25, 2021 (Name Change) Exhibit to Form 8-K filed on March 31, 2021 3.1(g) (q) Certificate of Validation of Brooklyn ImmunoTherapeutics, Inc., as filed with the Secretary of State of the State of Delaware on September 3, 2021 Exhibit to Form 8-K filed on September 13, 2021 3.2 Amended and Restated Bylaws of Brooklyn ImmunoTherapeutics, Inc. Exhibit to Form 8-K filed on September 23, 2021 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 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 10.3+ Executive Employment Agreement, effective as of September 20, 2021, between Brooklyn ImmunoTherapeutics, Inc. and Roger Sidhu Exhibit to Form 8-K filed on September 23, 2021 10.4(a)+ Form of Indemnification Agreement Exhibit to Form 8-K filed on April 16, 2021 10.4(b) Schedule identifying agreements substantially identical to the form of indemnification agreement filed as Exhibit 10.4(a) Filed herewith 10.5 Brooklyn ImmunoTherapeutics, Inc. Restated 2020 Stock Incentive Plan Exhibit to Form 8-K filed on September 13, 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. † 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. 37 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: November 12, 2021 By: /s/ Howard J. Federoff Howard J. Federoff Chief Executive Officer and President 38