SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of
Report (Date of
earliest event reported): August 8,
2008
CYTORI THERAPEUTICS,
INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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000-32501
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33-0827593
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File
Number)
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(I.R.S.
Employer Identification Number)
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3020 Callan Road, San Diego,
California 92121
(Address
of principal executive offices, with zip code)
(858) 458-0900
(Registrant's
telephone number, including area code)
n/a
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General
Instruction A.2. below):
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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On August
7, 2008, Cytori Therapeutics, Inc. (the “Company”)
entered into a Common Stock Purchase Agreement with Olympus Corporation (the
“Olympus
Purchase Agreement”) and a Securities Purchase Agreement with certain
institutional investors identified on the signature pages thereto (the “Institutional
Investors”) for the private placement of a total of 2,825,517
unregistered shares of the Company’s common stock with 50% warrant coverage at a
purchase price of $6.00 per unit. The Olympus Purchase Agreement originally
provided for the purchase and sale of $6,000,000 of unregistered shares of the
Company’s common stock at a price of $6.50 per share. However, the agreement
also contained an adjustment provision such that in the event the Company agreed
to sell securities to the Institutional Investors on more investor favorable
financial terms, the terms of the purchase and sale of securities under the
Olympus Purchase Agreement would be adjusted to provide Olympus the same pricing
terms and warrant coverage as the Institutional Investors. Because
the agreement with the Institutional Investors provided for the private
placement of shares of common stock and warrants at a purchase price of $6.00
per unit, the adjustment provision in the Olympus Purchase Agreement became
applicable. On August 8, 2008, the Company and Olympus Corporation
entered into an amendment to the Olympus Purchase Agreement (the “Amendment”)
to set forth the adjusted terms of the private placement of securities with
Olympus. The Amendment provides for the purchase by and sale to
Olympus of 1,000,000 shares of the Company’s common stock and a warrant
exercisable for an additional 500,000 shares of the Company’s common stock for a
total purchase price of $6,000,000. The terms of the warrant issued to Olympus
in connection with this transaction are substantially identical to those of the
warrants issued to the Institutional Investors. The warrant has an exercise
price of $8.50 per share, a five year term and will not be exercisable until six
months after its date of issuance. Except as described above, the Olympus
Purchase Agreement was not modified. The closing of the private placement of
these securities with Olympus took place on August 8, 2008.
The
Amendment is attached hereto as Exhibit 10.32.1 and incorporated herein by
reference. The Common Stock Purchase Agreement, the Securities Purchase
Agreement, and the form of Warrant were previously filed with the Securities and
Exchange Commission as exhibits to the Company’s Current Report on Form 8-K
filed on August 8, 2008. The foregoing description of the Common Stock Purchase
Agreement, the Amendment, the Securities Purchase Agreement and the form of
Warrant does not purport to be complete and is qualified in its entirety by
reference to the full text of the Common Stock Purchase Agreement, the
Amendment, the Securities Purchase Agreement and the form of Warrant attached
hereto or to the Company’s Current Report on Form 8-K filed on August 8,
2008.
Item
9.01 Financial
Statements and Exhibits
(d) Exhibits The
following material is filed as an exhibit to this Current Report on Form
8-K:
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10.32.1
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Amendment
No. 1 to Common Stock Purchase Agreement, dated August 8, 2008, by and
between Cytori Therapeutics, Inc. and Olympus
Corporation.
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SIGNATURES
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.
| CYTORI THERAPEUTICS, INC. | |
| Date: August 14, 2008 | By: /s/ Mark E. Saad |
| Mark E. Saad | |
| Chief Financial Officer |
Exhibit
10.32.1
AMENDMENT NO.
1
TO
COMMON STOCK PURCHASE
AGREEMENT
This
Amendment No. 1 to Common Stock Purchase Agreement (the “Amendment”) is made as
of August 8, 2008, by and between Cytori Therapeutics, Inc., a Delaware
corporation with its principal executive office located at 3020 Callan Road, San
Diego, CA 92121 (the “Company”), and Olympus Corporation, a Japan corporation
with its principal executive office located at 43-2 Hatagaya
2-chome, Shibuya-ku, Tokyo, Japan (“Purchaser”) (the
Company and Purchaser are referred to collectively as the “Parties”).
WHEREAS,
the Parties entered into that certain Common Stock Purchase Agreement executed
as of August 7, 2008 (the “Agreement”) (capitalized terms used in this Amendment
but not defined herein shall have the meaning assigned to them in the
Agreement); and
WHEREAS,
Section 13 of the Agreement provides that in the event the final terms of the
Offering to third parties were more favorable than the terms offered to Olympus
in the Agreement, that Olympus would be entitled to adjust the terms of the
Agreement to reflect such more favorable terms; and
WHEREAS,
The terms of the Offering were in fact more favorable to the third parties, and
the Parties hereto now agree to amend the terms of the Agreement to match the
more favorable terms provided to such third parties and effectuate the
provisions of Section 13 of the Agreement; and
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual
covenants and conditions set forth below, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties to this
Amendment hereby agree as follows:
1. Amendments.
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a.
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Section
1 (Sale of Stock) of the Agreement shall be deleted in its entirety and
the following inserted in its
place:
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“1. Sale of
Stock. Subject to the
terms and conditions of this Agreement, the Company will issue and sell to
Purchaser, and Purchaser agrees to purchase from the Company 1,000,000
unregistered shares of the Company’s Common Stock (the “Shares”) at a
purchase price of US$6.00 per Share for a total of US $6,000,000 (the “Purchase Price”). The
Purchase Price per share reflects the adjustment to more favorable terms for the
Purchaser in accordance with the terms of Section 13 of this
Agreement.
(i) Warrants. For
each Share purchased above, Olympus shall be issued a five year Warrant to
purchase one half of a Share (a “Warrant Share”) at an
exercise price of $8.50 per Warrant Share, for a aggregate of 500,000 additional
Warrant Shares that may be acquired pursuant to the Warrant. The terms of the
Warrant shall be as contained in the form attached as hereto as Exhibit
A.
2. Effect of
Amendment. Except as and to the extent expressly modified by
this Amendment, the Agreement shall remain in full force and effect in all
respects. In the event of a conflict or inconsistency between this
Amendment and the Agreement, the provisions of this Amendment shall
govern.
3. Counterparts. This
Amendment may be executed in several counterparts, each of which shall
constitute an original and all of which, when taken together, shall constitute
one instrument. Delivery of
-1-
an
executed counterpart of a signature page of this Amendment by facsimile or other
electronic means shall constitute effective delivery.
The
parties have executed this Amendment No. 1 to Common Stock Purchase Agreement as
of the date first set forth above.
COMPANY:
CYTORI
THERAPEUTICS, INC.
/s/
Christopher J. Calhoun
By:
Christopher J. Calhoun
Title:
CEO
Address:
3020
Callan Road
San
Diego, CA 92121
Fax: US
858-458-0994
PURCHASER:
OLYMPUS
CORPORATION
/s/
Yasunobu Toyoshima
By:
Yasunobu Toyoshima
Title:
General Manager
Address:
43-2
Hatagaya 2-chome
Shibuya-ku,
Tokyo
Japan
Fax:
Japan 03-3340-2062
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EXHIBIT
A
Warrant
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