Filed
Pursuant to Rule 424(b)(5)
Registration
No. 333-157023
PROSPECTUS
SUPPLEMENT
(To
Prospectus Dated January 30, 2009)
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4,771,174 Units
CYTORI
THERAPEUTICS, INC.
Consisting
of Common Stock and Warrants
$2.10
per unit
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___________________________________________________________________________________________________________________________________________________________________________________________
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We
are offering for sale 4,771,174 units pursuant to this prospectus
supplement, with each unit consisting of one share of common stock, par
value $0.001 per share, and a warrant to buy 1.4 shares of common
stock. Each warrant has an exercise price of $2.59 per share,
is exercisable beginning on the day after the six-month anniversary of
their issuance, and expires five years after the date the warrant is first
exercisable. The shares of common stock and warrants comprising
the units are immediately separable and will be issued
separately.
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●
●
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The
last reported
sale price of our common stock on the NASDAQ Global Market on March 9,
2009
was $2.59 per
share.
Trading
symbol: NASDAQ Global Market – CYTX
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________________________________
This
investment involves a high degree of risk. You should review carefully the risks
and uncertainties described under the heading “Risk Factors” on page S-3 of
this prospectus supplement.
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Per Unit
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Total
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|||
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Offering
price
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$
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2.100
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$
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10,019,465
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Placement
agency fees
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$
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0.126
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$
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601,168
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Proceeds,
before expenses, to Cytori Therapeutics, Inc.
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$
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1.974
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$
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9,418,297
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Delivery
of the shares and warrants is expected to be made on or about March 13,
2009. Certain purchaser funds will be deposited into an escrow
account and held until jointly released by us and the placement agent on the
date the shares and warrants are to be delivered to the
purchasers. In the event that we reject any subscriptions to purchase
shares and warrants in this offering, any funds related to such rejected
subscriptions and received into escrow will be returned to the prospective
purchaser. All funds received will be held in a non-interest bearing
account.
Piper
Jaffray & Co. is acting as the placement agent in this offering. Because
there is no minimum offering amount required as a condition to closing in this
offering, the placement agency fees and net proceeds to us, if any, in this
offering may be less than the maximum offering amounts set forth
above.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus
supplement or the accompanying prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
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The
date of this prospectus supplement is March 9,
2009.
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TABLE
OF CONTENTS
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PROSPECTUS
SUPPLEMENT
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PROSPECTUS
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Page
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Page
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S-1
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S-3
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ii
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S-14
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1
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S-15
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1
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S-15
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3
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S-16
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3
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S-17
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5
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S-18
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5
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S-19
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6
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S-19
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6
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| Incorporation by Reference |
S-20
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Description of Debt Securities |
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21
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22
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24
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26
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________________________________
You
should rely only on the information contained in this prospectus supplement, the
accompanying prospectus and the documents incorporated or deemed incorporated by
reference herein or therein. We have not, and the placement agent has
not, authorized anyone to provide you with information different from and in
addition to that contained in this prospectus supplement, the accompanying
prospectus or the documents incorporated or deemed incorporated by reference
herein or therein. We are not, and the placement agent is not, making
an offer to sell or seeking an offer to buy these securities in any jurisdiction
where the offer or sale is not permitted.
The
information contained in this prospectus supplement, the accompanying prospectus
and the documents incorporated or deemed incorporated by reference herein or
therein is complete and accurate as of their respective dates, and may have
changed since those dates.
ABOUT
THIS PROSPECTUS SUPPLEMENT
This
prospectus supplement and the accompanying prospectus are part of a “shelf”
registration statement on Form S-3 that we filed with the Securities and
Exchange Commission, or the SEC. This prospectus supplement describes
the specific details regarding this offering, including the price, the amount of
units and underlying securities being offered and the risks of investing in our
securities. The accompanying prospectus provides general information
about us, some of which, such as the section entitled “Plan of Distribution,”
may not apply to this offering. If information in this prospectus
supplement is inconsistent with the accompanying prospectus, you should rely on
this prospectus supplement. You should read both this prospectus
supplement and the accompanying prospectus together with the additional
information about us described in the accompanying prospectus in the section
entitled “Where You Can Find Additional Information.” The information
incorporated by reference is considered part of this prospectus supplement, and
information we file later with the SEC may automatically update and supersede
this information.
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PROSPECTUS SUPPLEMENT SUMMARY
The
items in the following summary are described in more detail in this
prospectus supplement, the accompanying prospectus and in the documents
incorporated or deemed incorporated by reference herein or
therein. This summary provides an overview of selected
information and does not contain all of the information that you should
consider before investing in the units subject to this
offering. Therefore, you should also read this entire
prospectus supplement, the accompanying prospectus and the documents
incorporated by reference herein or therein. All references to
“Cytori,” “the Company,” “we,” “us,” “our,” and similar terms refer to
Cytori Therapeutics, Inc. and its subsidiaries on a consolidated
basis.
Overview
Cytori develops, manufactures,
and sells medical technologies to enable the practice of regenerative
medicine. Regenerative medicine describes the emerging field that aims to
repair or restore lost or damaged organ and cell function. Our commercial
activities are focused on reconstructive surgery in Europe and Asia,
translational research in Europe and Asia, and stem and regenerative cell
banking (cell preservation). In addition, we are seeking to
bring our products to market in the United States as well as other
countries. Our product pipeline includes the development of potential new
treatments for cardiovascular disease, spinal disc repair, renal failure,
among other conditions.
The
foundation of Cytori’s business is the Celution ®
System product platform. This family of products can process a
patient’s own cells at the bedside in real time. These cells are then
delivered back to the patient, where they’re needed, all during the same
surgical procedure. The Celution ®
System product platform consists of the Celution ®
device, related single-use consumables, reusable surgical
instruments, and a proprietary enzyme solution. The more therapeutic
applications we develop for the cellular output of the Celution ®
System product family, the more opportunities we may have to offer
our technology to hospitals, clinics, and physicians.
We
were initially formed as a California general partnership in July 1996,
and incorporated in the State of Delaware in May 1997. We were formerly
known as MacroPore Biosurgery, Inc., and before that as MacroPore,
Inc. Our corporate offices are located at 3020 Callan Road, San
Diego, CA 92121. Our telephone number is (858) 458-0900. Our website
address is www.cytoritx.com. We make available free of charge through our
Internet website our annual report on Form 10-K, quarterly reports on Form
10-Q, current reports on Form 8-K, and amendments to those reports filed
or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended, or the Exchange Act, as soon as reasonably
practicable after we electronically file such material with, or furnish it
to, the SEC. Information contained on our website does not constitute part
of this prospectus supplement or the accompanying prospectus.
S-1
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The
Offering
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Securities
offered by us:
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· Common
stock
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4,771,174 shares
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· Warrants
to purchase common stock
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Warrants
to purchase 6,679,644 shares
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Common
stock to be outstanding after this offering
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34,084,615 shares,
or 40,764,259 shares if the warrants sold in this offering are exercised
in full
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Use
of proceeds
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We
intend to use all of the net proceeds from this offering, together with
cash on hand, for general corporate purposes. General corporate
purposes may include sales and marketing activities, clinical studies,
research and development, capital expenditures, future acquisitions,
working capital and repayment of debt. See “Use of Proceeds” on
page S-15.
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Warrant
terms
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The
Warrants will be exercisable beginning on the day after the six-month
anniversary of their date of issuance, through and including the date that
is five years after the date the warrant is first exercisable at
a price of $2.59 per share of common stock. This prospectus
also relates to the offering of the shares of common stock issuable upon
exercise of the warrants.
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NASDAQ
Global Market symbol
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CYTX
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Risk
factors
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See
“Risk Factors” and other information included or incorporated into this
prospectus supplement and the accompanying prospectus for a discussion of
the factors you should carefully consider before deciding to invest in our
securities.
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| The total number of shares of common stock outstanding after this offering is based on 29,313,441 shares outstanding as of March 9, 2009. This number excludes the 4,771,174 shares of common stock and the 6,679,644 shares issuable upon the exercise of the warrants offered hereby and also excludes: | ||
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6,712,165 shares of common stock issuable upon exercise of outstanding stock options at a weighted average exercise price of $4.92 per share, under our stock plans; | |
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·
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3,464,867 additional shares of common stock reserved for issuance under various outstanding warrant agreements, at a weighted average exercise price of $7.06; and | |
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1,948,061 additional shares of common stock reserved for future issuance under our 2004 Equity Incentive Plan. | |
| Unless otherwise indicated, this prospectus supplement assumes the sale of the maximum number of units offered hereunder and does not assume that any of the warrants issued hereunder will be exercised. | ||
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S-2
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RISK FACTORS
Investing
in our securities involves a high degree of risk. You should consider
the following risk factors, as well as other information contained or
incorporated by reference in this prospectus supplement and the accompanying
prospectus, before deciding to purchase any securities offered
herein. The risks and uncertainties described are not the only ones
we face. Additional risks and uncertainties not presently known to us
or that we currently deem immaterial may also affect our business
operations. If any of these risks occur, our business, financial
condition or results of operations could suffer, the market price of our common
stock could decline and you could lose all or part of your investment in our
securities.
Risks
Related to Our Business
We need
to raise more cash in the very near term.
We
have almost always had negative cash flows from operations. Our business
will continue to result in a substantial requirement for research and
development expenses for several years, during which we may not be able to bring
in sufficient cash and/or revenues to offset these expenses.
We are required to raise capital from one or more
sources in the very near term to continue our operations at or close
to the levels previously conducted. We believe that without raising
additional capital soon from accessible sources of financing, as well
as an increase in capital from our operations, we will not otherwise have
adequate funding to complete the development, pre-clinical activities, clinical
trials and marketing efforts required to successfully bring our current and
future products to market. In addition, if we are not successful in
raising additional cash very soon we will be required to negotiate with
General Electric Capital Corporation (“GECC”) and Silicon Valley Bank (“SVB”) to
obtain an amendment to the cash liquidity requirements of the Loan and Security
Agreement dated October 14, 2008 (“Loan Agreement”). If we are not successful in
obtaining either the additional finding or cash liquidity relief then we will
likely very soon thereafter be in default under the Loan Agreement. If we are in
default or if our senior secured lenders otherwise assert that there has been an
event of default, they may seek to accelerate our senior secured loan and
exercise their rights and remedies under the Loan Agreement, including the sale
of our property and other assets. In such event, we may be forced to file
a bankruptcy case or have an involuntary bankruptcy case filed against us or
otherwise liquidate our assets. Any of these events would have a
substantial and material adverse effect on our business, financial condition,
results of operations, the value of our common stock and warrants and our
ability to raise capital. There is no guarantee that adequate funds will
be available when needed from additional debt or equity financing, arrangements
with distribution partners, increased results of operations, or from other
sources, or on terms attractive to us. Although we entered into a
$15,000,000 loan facility with GECC and SVB in October 2008, we could not
access the remaining $7,500,000 under that facility as we were not able satisfy
certain financial conditions on or before December 12, 2008. The inability
to obtain sufficient additional funds in the near term will at the least require
us to significantly delay, scale back, or eliminate some or all of our research
or product development, manufacturing operations, clinical or regulatory
activities having a substantial negative effect on our results of operations and
financial condition
Continued
turmoil in the economy could harm our business.
Negative
trends in the general economy, including trends resulting from an actual or
perceived recession, tightening credit markets, increased cost of commodities,
including oil, actual or threatened military action by the United States and
threats of terrorist attacks in the United States and abroad, could cause a
reduction of investment in and available funding for companies in certain
industries, including ours. Our ability to raise capital has been and
may continue to be adversely affected by current credit conditions and the
downturn in the financial markets and the global economy.
We
have never been profitable on an operational basis and expect significant
operating losses for the next few years.
S-3
We have
incurred net operating losses in each year since we started
business. As our focus on the Celution® System
platform and development of therapeutic applications for its cellular output has
increased, losses have resulted primarily from expenses associated with research
and development activities and general and administrative
expenses. While we are implementing cost reduction measures where
possible, we nonetheless expect to continue operating in a loss position on a
consolidated basis and that recurring operating expenses will be at high levels
for the next several years, in order to perform clinical trials, additional
pre-clinical research, product development, and marketing. As a
result of our historic losses, we have historically been, and continue to be,
reliant on raising outside capital to fund our operations as discussed in
the prior risk factor.
Our
business strategy is high-risk.
We are
focusing our resources and efforts primarily on development of the Celution® System
family of products and the therapeutic applications of its cellular output,
which requires extensive cash needs for research and development
activities. This is a high-risk strategy because there is no
assurance that our products will ever become commercially viable (commercial
risk), that we will prevent other companies from depriving us of market share
and profit margins by selling products based on our inventions and developments
(legal risk), that we will successfully manage a company in a new area of
business (regenerative medicine) and on a different scale than we have operated
in the past (operational risk), that we will be able to achieve the desired
therapeutic results using stem and regenerative cells (scientific risk), or that
our cash resources will be adequate to develop our products until we become
profitable, if ever (financial risk). We are using our cash in one of
the riskiest industries in the economy (strategic risk). This may
make our stock an unsuitable investment for many investors.
We
must keep our joint venture with Olympus operating smoothly.
Our
business cannot succeed on the currently anticipated timelines unless our Joint
Venture collaboration with Olympus goes well. We have given
Olympus-Cytori, Inc. an exclusive license to manufacture future generation
Celution® System
devices. If Olympus-Cytori, Inc. does not successfully develop and
manufacture these devices, we may not be able to commercialize any device or any
therapeutic products successfully into the market. In addition,
future disruption or breakup of our relationship would be extremely costly to
our reputation, in addition to causing many serious practical
problems.
We and
Olympus must overcome contractual and cultural barriers. Our
relationship is formally measured by a set of complex contracts, which have not
yet been tested in practice. In addition, many aspects of the
relationship will be non-contractual and must be worked out between the parties
and the responsible individuals. The Joint Venture is intended to
have a long life, and it is difficult to maintain cooperative relationships over
a long period of time in the face of various kinds of
change. Cultural differences, including language barrier to some
degree, may affect the efficiency of the relationship.
Olympus-Cytori,
Inc. is 50% owned by us and 50% owned by Olympus. By contract, each
side must consent before any of a wide variety of important business actions can
occur. This situation possesses a risk of potentially time-consuming
and difficult negotiations which could at some point delay the Joint Venture
from pursuing its business strategies.
Olympus
is entitled to designate the Joint Venture's chief executive officer and a
majority of its board of directors, which means that day-to-day decisions which
are not subject to a contractual veto will essentially be controlled by
Olympus. In addition, Olympus-Cytori, Inc. may require more money
than its current capitalization in order to complete development and production
of future generation devices. If we are unable to help provide future
financing for Olympus-Cytori, Inc., our relative equity interest in
Olympus-Cytori, Inc. may decrease.
Furthermore,
under a License/Joint Development Agreement among Olympus-Cytori, Inc., Olympus,
and us, Olympus will have a primary role in the development of Olympus-Cytori,
Inc.’s next generation
S-4
devices. Although
Olympus has extensive experience in developing medical devices, this arrangement
will result in a reduction of our control over the development and manufacturing
of the next generation devices.
We
have a limited operating history; operating results and stock price can be
volatile like many life science companies.
Our
prospects must be evaluated in light of the risks and difficulties frequently
encountered by emerging companies and particularly by such companies in rapidly
evolving and technologically advanced biotech and medical device
fields. Due to limited operating history and the transition from the
MacroPore biomaterials to the regenerative medicine business, comparisons of our
year-to-year operating results are not necessarily meaningful and the results
for any periods should not necessarily be relied upon as an indication of future
performance. All 2007 product revenues came from our spine and
orthopedics implant product line, which we sold in May 2007.
From time
to time, we have tried to update our investors’ expectations as to our operating
results by periodically announcing financial guidance. However, we
have in the past been forced to revise or withdraw such guidance due to lack of
visibility and predictability of product demand.
We
are vulnerable to competition and technological change, and also to physicians’
inertia.
We
compete with many domestic and foreign companies in developing our technology
and products, including biotechnology, medical device, and pharmaceutical
companies. Many current and potential competitors have substantially
greater financial, technological, research and development, marketing, and
personnel resources. There is no assurance that our competitors will
not succeed in developing alternative products that are more effective, easier
to use, or more economical than those which we have developed or are in the
process of developing, or that would render our products obsolete and
non-competitive. In general, we may not be able to prevent others
from developing and marketing competitive products similar to ours or which
perform similar functions.
Competitors
may have greater experience in developing therapies or devices, conducting
clinical trials, obtaining regulatory clearances or approvals, manufacturing and
commercialization. It is possible that competitors may obtain patent
protection, approval, or clearance from the FDA or achieve commercialization
earlier than we can, any of which could have a substantial negative effect on
our business. Finally, Olympus and our other partners might pursue
parallel development of other technologies or products, which may result in a
partner developing additional products competitive with ours.
We
compete against cell-based therapies derived from alternate sources, such as
bone marrow, umbilical cord blood and potentially embryos. Doctors
historically are slow to adopt new technologies like ours, whatever the merits,
when older technologies continue to be supported by established
providers. Overcoming such inertia often requires very significant
marketing expenditures or definitive product performance and/or pricing
superiority.
We expect
physicians’ inertia and skepticism to also be a significant barrier as we
attempt to gain market penetration with our future products. We believe we will
need to finance lengthy time-consuming clinical studies (so as to provide
convincing evidence of the medical benefit) in order to overcome this inertia
and skepticism particularly in reconstructive surgery, cell preservation, the
cardiovascular area and many other indications.
Most
products are pre-commercialization, which subjects us to development and
marketing risks.
We are in
a relatively early stage of the path to commercialization with many of our
products. We believe that our long-term viability and growth will
depend in large part on our ability to develop commercial quality cell
processing devices and useful procedure-specific consumables, and to establish
S-5
the
safety and efficacy of our therapies through clinical trials and
studies. With our Celution®
platform, we are pursuing new approaches for reconstructive surgery,
preservation of stem and regenerative cells for potential future use, therapies
for cardiovascular disease, gastrointestinal disorders and spine and orthopedic
conditions. There is no assurance that our development programs will
be successfully completed or that required regulatory clearances or approvals
will be obtained on a timely basis, if at all.
There is
no proven path for commercializing the Celution® System
platform in a way to earn a durable profit commensurate with the medical
benefit. Although we began to commercialize our reconstructive
surgery products in Europe and certain Asian markets, and our cell banking
products in Japan, Europe, and certain Asian markets in 2008, additional market
opportunities for our products and/or services are likely to be another two to
five years away.
Successful
development and market acceptance of our products is subject to developmental
risks, including failure of inventive imagination, ineffectiveness, lack of
safety, unreliability, failure to receive necessary regulatory clearances or
approvals, high commercial cost, preclusion or obsolescence resulting from third
parties’ proprietary rights or superior or equivalent products, competition from
copycat products, and general economic conditions affecting purchasing
patterns. There is no assurance that we or our partners will
successfully develop and commercialize our products, or that our competitors
will not develop competing technologies that are less expensive or
superior. Failure to successfully develop and market our products
would have a substantial negative effect on our results of operations and
financial condition.
The
timing and amount of Thin Film revenues from Senko are uncertain.
The sole
remaining product line in our MacroPore Biosurgery segment is our Japan Thin
Film business. Our right to receive royalties from Senko, and to
recognize certain deferred revenues, depends on the timing of MHLW approval for
commercialization of the product in Japan. We have no control over
this timing and our previous expectations have not been met. Also,
even after commercialization, we will be dependent on Senko, our exclusive
distributor, to drive product sales in Japan.
There is
a risk that we could experience with Senko some of the same problems we
experienced in our previous relationship with Medtronic, which was the exclusive
distributor for our former bioresorbable spine and orthopedic implant product
line.
We
have limited manufacturing experience.
We have
limited experience in manufacturing the Celution® System
platform or its consumables at a commercial level. With respect to
our Joint Venture, although Olympus is a highly capable and experienced
manufacturer of medical devices, there can be no guarantee that the
Olympus-Cytori Joint Venture will be able to successfully develop and
manufacture the next generation Celution® device
in a manner that is cost-effective or commercially viable, or that development
and manufacturing capabilities might not take much longer than currently
anticipated to be ready for the market.
Although
we have begun introduction of the Celution® 800 and
Celution®
900-based StemSource® Cell
Bank in 2008, we cannot assure that we will be able to manufacture sufficient
numbers of such products to meet the demand, or that we will be able to overcome
unforeseen manufacturing difficulties for these sophisticated medical devices,
as we await the availability of the Joint Venture next generation Celution®
device.
In the
event that the Olympus-Cytori Joint Venture is not successful, Cytori may not
have the resources or ability to self-manufacture sufficient numbers of devices
and consumables to meet market demand, and this failure may substantially extend
the time it would take for us to bring a more advanced commercial device to
market. This makes us significantly dependant on the continued dedication and
skill of Olympus for the successful development of the next generation
Celution®
device.
S-6
We
may not be able to protect our proprietary rights.
Our
success depends in part on whether we can maintain our existing patents, obtain
additional patents, maintain trade secret protection, and operate without
infringing on the proprietary rights of third parties.
Our
amended regenerative cell technology license agreement with the Regents of the
University of California, or the UC, contains certain developmental milestones,
which if not achieved could result in the loss of exclusivity or loss of the
license rights. The loss of such rights could impact our ability to develop
certain regenerative cell technology products. Also, our power as
licensee to successfully use these rights to exclude competitors from the market
is untested. In addition, further legal risk arises from a lawsuit
filed by the University of Pittsburgh in the United States District Court, or
the Court, naming all of the inventors who had not assigned their ownership
interest in Patent 6,777,231, which we refer to as the ‘231 Patent, to the
University of Pittsburgh, seeking a determination that its assignors, rather
than UC’s assignors, are the true inventors of ‘231 Patent. On June
12, 2008, we received the Court’s final order concluding that the University of
Pittsburgh’s assignors were the sole inventors of the ‘231 Patent, which
terminates UC’s rights to this patent unless the decision of the Court is
overturned. The UC assignors are appealing the Court’s decision and a
Notice of Appeal was filed on July 9, 2008. We are the exclusive,
worldwide licensee of the UC’s rights under this patent in humans, which relates
to adult stem cells isolated from adipose tissue that can differentiate into two
or more of a variety of cell types. If the UC assignors do not prevail on
appeal, our license rights to this patent will be permanently lost.
There can
be no assurance that any of our pending patent applications will be approved or
that we will develop additional proprietary products that are patentable. There
is also no assurance that any patents issued to us will provide us with
competitive advantages, will not be challenged by any third parties, or that the
patents of others will not prevent the commercialization of products
incorporating our technology. Furthermore, there can be no guarantee
that others will not independently develop similar products, duplicate any of
our products, or design around our patents.
Our
commercial success will also depend, in part, on our ability to avoid infringing
on patents issued to others. If we were judicially determined to be
infringing on any third-party patent, we could be required to pay damages, alter
our products or processes, obtain licenses, or cease certain
activities. If we are required in the future to obtain any licenses
from third parties for some of our products, there can be no guarantee that we
would be able to do so on commercially favorable terms, if at
all. U.S. patent applications are not immediately made public, so we
might be surprised by the grant to someone else of a patent on a technology we
are actively using. As noted above as to the University of Pittsburgh
lawsuit, even patents issued to us or our licensors might be judicially
determined to belong in full or in part to third parties.
Litigation,
which would result in substantial costs to us and diversion of effort on our
part, may be necessary to enforce or confirm the ownership of any patents issued
or licensed to us, or to determine the scope and validity of third-party
proprietary rights. If our competitors claim technology also claimed
by us and prepare and file patent applications in the United States of America,
we may have to participate in interference proceedings declared by the U.S.
Patent and Trademark Office or a foreign patent office to determine priority of
invention, which could result in substantial costs to and diversion of effort,
even if the eventual outcome is favorable to us. Any such litigation or
interference proceeding, regardless of outcome, could be expensive and
time-consuming.
In
addition to patents, which alone may not be able to protect the fundamentals of
our regenerative cell business, we also rely on unpatented trade secrets and
proprietary technological expertise. Our intended future cell-related
therapeutic products, such as consumables, are likely to fall largely into this
category. We rely, in part, on confidentiality agreements with our
partners, employees, advisors, vendors, and consultants to protect our trade
secrets and proprietary technological expertise. There can be no guarantee that
these agreements will not be breached, or that we will have adequate remedies
for any
S-7
breach,
or that our unpatented trade secrets and proprietary technological expertise
will not otherwise become known or be independently discovered by
competitors.
Failure
to obtain or maintain patent protection, or protect trade secrets, for any
reason (or third-party claims against our patents, trade secrets, or proprietary
rights, or our involvement in disputes over our patents, trade secrets, or
proprietary rights, including involvement in litigation), could have a
substantial negative effect on our results of operations and financial
condition.
We
may not be able to protect our intellectual property in countries outside the
United States.
Intellectual
property law outside the United States is uncertain and in many countries is
currently undergoing review and revisions. The laws of some countries
do not protect our patent and other intellectual property rights to the same
extent as United States laws. This is particularly relevant to us as
we currently conduct most of our clinical trials outside of the United
States. Third parties may attempt to oppose the issuance of patents
to us in foreign countries by initiating opposition proceedings. Opposition
proceedings against any of our patent filings in a foreign country could have an
adverse effect on our corresponding patents that are issued or pending in the
U.S. It may be necessary or useful for us to participate in proceedings to
determine the validity of our patents or our competitors’ patents that have been
issued in countries other than the U.S. This could result in substantial costs,
divert our efforts and attention from other aspects of our business, and could
have a material adverse effect on our results of operations and financial
condition. We currently have pending patent applications in Europe, Australia,
Japan, Canada, China, Korea, and Singapore, among others.
We
and Olympus-Cytori, Inc. are subject to intensive FDA regulation.
As newly
developed medical devices, Celution® System
family of products must receive regulatory clearances or approvals from the FDA
and, in many instances, from non-U.S. and state governments prior to their
sale. The Celution® System
family of products is subject to stringent government regulation in the United
States by the FDA under the Federal Food, Drug and Cosmetic Act. The
FDA regulates the design/development process, clinical testing, manufacture,
safety, labeling, sale, distribution, and promotion of medical devices and
drugs. Included among these regulations are pre-market clearance and
pre-market approval requirements, design control requirements, and the Quality
System Regulations/Good Manufacturing Practices. Other statutory and
regulatory requirements govern, among other things, establishment registration
and inspection, medical device listing, prohibitions against misbranding and
adulteration, labeling and post-market reporting.
The
regulatory process can be lengthy, expensive, and uncertain. Before
any new medical device may be introduced to the United States of America market,
the manufacturer generally must obtain FDA clearance or approval through either
the 510(k) pre-market notification process or the lengthier pre-market approval
application, or PMA, process. It generally takes from three to 12
months from submission to obtain 510(k) pre-market clearance, although it may
take longer. Approval of a PMA could take four or more years from the
time the process is initiated. The 510(k) and PMA processes can be
expensive, uncertain, and lengthy, and there is no guarantee of ultimate
clearance or approval. We expect that some of our future products
under development as well as Olympus-Cytori’s will be subject to the lengthier
PMA process. Securing FDA clearances and approvals may require the
submission of extensive clinical data and supporting information to the FDA, and
there can be no guarantee of ultimate clearance or approval. Failure
to comply with applicable requirements can result in application integrity
proceedings, fines, recalls or seizures of products, injunctions, civil
penalties, total or partial suspensions of production, withdrawals of existing
product approvals or clearances, refusals to approve or clear new applications
or notifications, and criminal prosecution.
Medical
devices are also subject to post-market reporting requirements for deaths or
serious injuries when the device may have caused or contributed to the death or
serious injury, and for certain device malfunctions that would be likely to
cause or contribute to a death or serious injury if the malfunction were to
recur. If safety or effectiveness problems occur after the product
reaches the market, the FDA
S-8
may take
steps to prevent or limit further marketing of the
product. Additionally, the FDA actively enforces regulations
prohibiting marketing and promotion of devices for indications or uses that have
not been cleared or approved by the FDA.
There can
be no guarantee that we will be able to obtain the necessary 510(k) clearances
or PMA approvals to market and manufacture our other products in the United
States of America for their intended use on a timely basis, if at
all. Delays in receipt of or failure to receive such clearances or
approvals, the loss of previously received clearances or approvals, or failure
to comply with existing or future regulatory requirements could have a
substantial negative effect on our results of operations and financial
condition.
To
sell in international markets, we will be subject to intensive regulation in
foreign countries.
In
cooperation with our distribution partners, we intend to market our current and
future products both domestically and in many foreign markets. A number of risks
are inherent in international transactions. In order for us to market
our products in Europe, Canada, Japan and certain other non-U.S. jurisdictions,
we need to obtain and maintain required regulatory approvals or clearances and
must comply with extensive regulations regarding safety, manufacturing processes
and quality. For example, we still have not obtained regulatory
approval for our Thin Film products in Japan. These regulations,
including the requirements for approvals or clearances to market, may differ
from the FDA regulatory scheme. International sales also may be
limited or disrupted by political instability, price controls, trade
restrictions and changes in tariffs. Additionally, fluctuations in
currency exchange rates may adversely affect demand for our products by
increasing the price of our products in the currency of the countries in which
the products are sold.
There can
be no assurance that we will obtain regulatory approvals or clearances in all of
the countries where we intend to market our products, or that we will not incur
significant costs in obtaining or maintaining foreign regulatory approvals or
clearances, or that we will be able to successfully commercialize current or
future products in various foreign markets. Delays in receipt of
approvals or clearances to market our products in foreign countries, failure to
receive such approvals or clearances or the future loss of previously received
approvals or clearances could have a substantial negative effect on our results
of operations and financial condition.
Changing,
New and/or Emerging Government Regulations.
Government
regulations can change without notice. Given that fact that Cytori operates in
various international markets, our access to such markets could change with
little to no warning due to a change in government regulations that suddenly
up-regulate our product(s) and create greater regulatory burden for our cell
therapy and cell banking technology products.
Due to
the fact that there are new and emerging cell therapy and cell banking
regulations that have recently been drafted and/or implemented in various
countries around the world, the application and subsequent implementation of
these new and emerging regulations have little to no precedence. Therefore, the
level of complexity and stringency is not known and may vary from country to
country, creating greater uncertainty for the international regulatory
process.
Health
Insurance Reimbursement Risks.
New and
emerging cell therapy and cell banking technologies, such as those provided by
the Celution® System
family of products, may have difficulty or encounter significant delays in
obtaining health care reimbursement in some or all countries around the world
due to the novelty of our cell therapy and cell banking technology
and subsequent lack of existing reimbursement schemes / pathways. Therefore, the
creation of new reimbursement pathways may be complex and lengthy with no
assurances that such reimbursements will be successful. The lack of health
insurance reimbursement or reduced or minimal reimbursement pricing may have a
significant impact on our ability to successfully sell our cell therapy and cell
banking technology product(s) into a county or region.
S-9
Market
Acceptance of New Technology.
New and
emerging cell therapy and cell banking technologies, such as those provided by
the Celution® System
family of products, may have difficulty or encounter significant delays in
obtaining market acceptance in some or all countries around the world due to the
novelty of our cell therapy and cell banking technologies. Therefore, the market
adoption of our cell therapy and cell banking technologies may be slow and
lengthy with no assurances that significant market adoption will be successful.
The lack of market adoption or reduced or minimal market adoption of our cell
therapy and cell banking technologies may have a significant impact on our
ability to successfully sell our product(s) into a country or
region.
We
and/or the Joint Venture have to maintain quality assurance certification and
manufacturing approvals.
The
manufacture of our Celution® System
will be, and the manufacture of any future cell-related therapeutic products
would be, subject to periodic inspection by regulatory authorities and
distribution partners. The manufacture of devices and products for
human use is subject to regulation and inspection from time to time by the FDA
for compliance with the FDA’s Quality System Regulation, or QSR, requirements,
as well as equivalent requirements and inspections by state and non-U.S.
regulatory authorities. There can be no guarantee that the FDA or
other authorities will not, during the course of an inspection of existing or
new facilities, identify what they consider to be deficiencies in our compliance
with QSRs or other requirements and request, or seek remedial
action.
Failure
to comply with such regulations or a potential delay in attaining compliance may
adversely affect our manufacturing activities and could result in, among other
things, injunctions, civil penalties, FDA refusal to grant pre-market approvals
or clearances of future or pending product submissions, fines, recalls or
seizures of products, total or partial suspensions of production, and criminal
prosecution. There can be no assurance after such occurrences that we
will be able to obtain additional necessary regulatory approvals or clearances
on a timely basis, if at all. Delays in receipt of or failure to
receive such approvals or clearances, or the loss of previously received
approvals or clearances could have a substantial negative effect on our results
of operations and financial condition.
We
depend on a few key officers.
Our
performance is substantially dependent on the performance of our executive
officers and other key scientific staff, including Christopher J. Calhoun, our
Chief Executive Officer, and Marc Hedrick, MD, our President. We rely
upon them for strategic business decisions and guidance. We believe that our
future success in developing marketable products and achieving a competitive
position will depend in large part upon whether we can attract and retain
additional qualified management and scientific personnel. Competition
for such personnel is intense, and there can be no assurance that we will be
able to continue to attract and retain such personnel. The loss of
the services of one or more of our executive officers or key scientific staff or
the inability to attract and retain additional personnel and develop expertise
as needed could have a substantial negative effect on our results of operations
and financial condition.
We
may not have enough product liability insurance.
The
testing, manufacturing, marketing, and sale of our regenerative cell products
involve an inherent risk that product liability claims will be asserted against
us, our distribution partners, or licensees. There can be no
guarantee that our clinical trial and commercial product liability insurance is
adequate or will continue to be available in sufficient amounts or at an
acceptable cost, if at all. A product liability claim, product
recall, or other claim, as well as any claims for uninsured liabilities or in
excess of insured liabilities, could have a substantial negative effect on our
results of operations and financial condition. Also, well-publicized
claims could cause our stock to fall sharply, even before the merits of the
claims are
S-10
decided
by a court.
Our
charter documents contain anti-takeover provisions and we have adopted a
Stockholder Rights Plan to prevent hostile takeovers.
Our
Amended and Restated Certificate of Incorporation and Bylaws contain certain
provisions that could prevent or delay the acquisition of the Company
by means of a tender offer, proxy contest, or otherwise. They could
discourage a third party from attempting to acquire control of Cytori, even if
such events would be beneficial to the interests of our
stockholders. Such provisions may have the effect of delaying,
deferring, or preventing a change of control of Cytori and consequently could
adversely affect the market price of our shares. Also, in 2003 we adopted a
Stockholder Rights Plan of the kind often referred to as a poison pill. The
purpose of the Stockholder Rights Plan is to prevent coercive takeover tactics
that may otherwise be utilized in takeover attempts. The existence of such a
rights plan may also prevent or delay a change in control of Cytori, and this
prevention or delay adversely affect the market price of our
shares.
We
pay no dividends.
We have
never paid in the past, and currently do not intend to pay any cash dividends in
the foreseeable future.
Risks
Related to This Offering
Our
management team will have broad discretion over the use of the net proceeds from
this offering.
Our
management will use their discretion to direct the net proceeds from this
offering. We intend to use all of the net proceeds, together with
cash on hand, for general corporate purposes. General corporate
purposes may include sales and marketing activities, clinical studies, research
and development, capital expenditures, future acquisitions, working capital and
repayment of debt. Our management’s judgments may not result in
positive returns on your investment and you will not have an opportunity to
evaluate the economic, financial or other information upon which our management
bases its decisions.
Investors
in this offering will experience immediate and substantial dilution
The
public offering price of the securities offered pursuant to this prospectus
supplement is substantially higher than the net tangible book value per share of
our common stock. Therefore, if you purchase units in this offering,
you will incur immediate and substantial dilution in the pro forma net tangible
book value per share of common stock from the price per share that you pay for
the common stock. If the holders of outstanding options or warrants
exercise those options or warrants at prices below the public offering price,
you will incur further dilution.
There
is no established public market for the warrants to purchase common stock in
this offering.
There is
no established public trading market for the warrants being offered in this
offering. Without an active market, the liquidity of the warrants will be
limited.
Our
stock price is volatile, and you may not be able to resell your shares at or
above the offering price.
The
market price of our common stock has been, and we expect will continue to be,
subject to significant volatility. The value of our common stock may
decline regardless of our operating performance or prospects. Factors
affecting our market price include:
|
·
|
our
perceived prospects;
|
|
·
|
variations
in our operating results and whether we have achieved key business
targets;
|
S-11
|
·
|
changes
in, or our failure to meet, revenue
estimates;
|
|
·
|
changes
in securities analysts’ buy/sell
recommendations;
|
|
·
|
differences
between our reported results and those expected by investors and
securities analysts;
|
|
·
|
announcements
of new contracts by us or our
competitors;
|
|
·
|
reaction
to any acquisitions, joint ventures or strategic investments announced by
us or our competitors; and
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|
·
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general
economic, political or stock market
conditions.
|
If
the trading price of our common stock falls, our common stock could be delisted
from the NASDAQ Global Market.
We must
meet NASDAQ’s continuing listing requirements in order for our common stock to
remain listed on the NASDAQ Global Market. Failure to meet NASDAQ’s continued
listing criteria may result in the delisting of our common stock from the NASDAQ
Global Market. A delisting from the NASDAQ Global Market will make
the trading market for our common stock less liquid, and may also make us
ineligible to use Form S-3 to register the sale of shares of our common stock or
to register the resale of our securities held by certain of our security holders
with the SEC, thereby making it more difficult and expensive for us to register
our common stock or other securities and raise additional capital.
Our
stockholders may be diluted by the exercise of outstanding warrants to purchase
common stock and this offering will result in a significant increase in the
number of shares issuable upon the exercise of such warrants.
As of March 9, 2009, we have certain
outstanding warrants to purchase 3,464,867 shares of our common stock at
exercise prices ranging from $4.21 per share to $8.49 per share (with a weighted
average exercise price of $7.06) that were issued in connection with previous
equity financing transactions in 2007 and 2008. The number of shares
of our common stock issuable upon exercise of those warrants, and therefore the
dilution of existing common stockholders, is subject to increase as a result of
certain sales of our securities that trigger the antidilution provisions of
those warrants, including the offering of shares of the securities underlying
the units subject to this offering at a price below the applicable exercise
price of those warrants.
Future
sales of common stock by our existing stockholders may cause our stock price to
fall.
The
market price of our common stock could decline as a result of sales by our
existing stockholders of shares of common stock in the market, or the perception
that these sales could occur. These sales might also make it more difficult for
us to sell equity securities at a time and price that we deem appropriate. As of
March 9, 2009, we have approximately 29,313,441 shares of common stock
outstanding, and we have warrants to purchase 3,464,867 shares of common stock
(of which warrants to purchase 1,592,044 shares are subject to adjustment as
described above) and options to purchase 6,712,165 shares of common stock
outstanding. All of the shares of common stock issuable upon exercise
of our outstanding warrants and any vested options will be freely tradable
without restriction under the federal securities laws unless purchased by our
affiliates. In addition, all of the shares offered under this
prospectus supplement and the accompanying prospectus, including the shares
issuable upon exercise of the warrants offered hereby, will be freely tradeable
without restriction or further registration upon issuance unless purchased by
our affiliates.
We
do not anticipate declaring any cash dividends on our common stock.
We have
never declared or paid cash dividends on our common stock and do not plan to pay
any cash dividends in the near future. Our current policy is to
retain all funds and earnings for use in the
S-12
operation
and expansion of our business. In addition, our debt agreement
prohibits the payment of cash dividends or other distributions on any of our
capital stock except dividends payable in additional shares of capital
stock.
S-13
SPECIAL NOTE REGARDING FORWARD-LOOKING
INFORMATION
This
prospectus supplement, including the documents that we incorporate by reference
herein, contains forward-looking statements within the meaning of Section 27A of
the Securities Act of 1933, as amended, or the Securities Act, and Section 21E
of the Exchange Act. These statements include, but are not limited to,
statements about our anticipated expenditures, including those related to
clinical research studies and general and administrative expenses, the potential
size of the market for our products, future development and/or expansion of our
products and therapies in our markets, our ability to generate product revenues
or effectively manage our gross profit margins, our ability to obtain regulatory
approvals and clearances to sell our products, expectations as to our future
performance, the future impact and ongoing appeal with respect to our 231 patent
litigation, our need for additional financing and the availability thereof, and
the potential enhancement of our cash position through development, marketing,
and licensing arrangements. Any statements about our expectations, beliefs,
plans, objectives, assumptions or future events or performance are not
historical facts and may be forward-looking. These statements are often, but not
always, made through the use of terminology such as “anticipates,” “believes,”
“continue” “estimates,” “expects,” “intends,” “may,” “plans,” “potential,”
“predicts,” “should,” “will,” or the negative of these terms or other comparable
terminology. These forward-looking statements may also use different phrases.
Accordingly, these statements involve estimates, assumptions and uncertainties
that could cause actual results to differ materially from those expressed in
them. Any forward-looking statement is qualified in its entirety by reference to
the factors discussed in this prospectus supplement, including in the documents
incorporated by reference herein.
Because
the factors discussed in this prospectus supplement, including in the documents
incorporated by reference herein, and even factors of which we are not yet
aware, could cause actual results or outcomes to differ materially from those
expressed in any forward-looking statement made by or on behalf of us, you
should not place undue reliance on any such forward-looking statement. These
statements are subject to risks and uncertainties, known and unknown, which
could cause actual results, performance and achievements to differ materially
from those expressed or implied in such statements. We have included
important factors in the cautionary statements included in this prospectus
supplement, particularly under the heading “Risk Factors,” and in our SEC
filings that we believe could cause actual results or events to differ
materially from the forward-looking statements that we make. These and other
risks are also detailed in our reports filed from time to time under the
Securities Act and/or the Exchange Act. You are encouraged to read these filings
as they are made.
Further,
any forward-looking statement speaks only as of the date on which it is made,
and we undertake no obligation to update any forward-looking statement to
reflect events or circumstances after the date on which such statement is made
or to reflect the occurrence of unanticipated events. New risk factors emerge
from time to time, and it is not possible for us to predict which factors will
arise. In addition, we cannot assess the impact of each factor on our business
or the extent to which any factor, or combination of factors, may cause actual
results to differ materially from those contained in any forward-looking
statements.
S-14
USE OF PROCEEDS
We
estimate that the net proceeds to us from the sale of securities to be offered
by this prospectus supplement will be approximately $9.3 million, after
deducting the placement agency fees and estimated expenses of this
offering. In addition, if all of the warrants offered by this
prospectus supplement are fully exercised for cash, we will receive additional
proceeds of approximately $17.3 million.
We intend
to use all of the net proceeds, together with cash on hand, for general
corporate purposes, including the continued development, manufacture, marketing
and sale of our Celution® System
family of products, including related research and clinical trials, and other
related research and development, sales and marketing, and general
administrative expenses, working capital, capital expenditures, future
acquisitions and repayment of debt. We may invest the net proceeds
temporarily until we use them for their stated purpose.
DIVIDEND POLICY
To date,
we have paid no cash dividends to our shareholders and we do not intend to pay
cash dividends in the foreseeable future.
S-15
If you
invest in our units, your ownership interest will be diluted by the difference
between the price per share you pay and the net tangible book value per share of
our common stock immediately after this offering. Our net tangible
book value as of December 31, 2008 was approximately $(12,496,000) or $(0.43)
per share of our common stock. Our net tangible book value per share
represents our total tangible assets less total liabilities, divided by the
number of shares of our common stock outstanding as of December 31,
2008. After giving effect to the sale of units we are offering at the
public offering price of $2.10 per unit (and excluding shares of common stock
issued and any proceeds that we may receive upon exercise of the warrants), and
after deducting the placement agent's fees and estimated offering expenses
payable by us, our net tangible book value as of December 31, 2008 would have
been approximately $(3,177,703), or $(0.09) per share of our common
stock. This amount represents an immediate increase in net tangible
book value of $0.34 per share to our existing stockholders and an immediate
dilution in net tangible book value of $2.19 per share to new investors
purchasing securities in this offering. We determine dilution by
subtracting the adjusted net tangible book value per share after this offering
from the assumed public offering price per unit. The following table
illustrates the dilution in net tangible book value per share to new
investors.
|
Public
offering price per unit
|
$
|
2.10
|
|||
|
Net
tangible book value per share as of December 31, 2008
|
$
|
(0.43
|
) | ||
|
Increase
in net tangible book value per share attributable to this
offering
|
$
|
0.34
|
|||
|
Adjusted
net tangible book value per share as of December 31, 2008 after giving
effect to this offering
|
$
|
(0.09
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) | ||
|
Dilution
in net tangible book value per share to new investors
|
$
|
2.19
|
The
foregoing table is based on 29,303,441 shares of common stock outstanding as of
December 31, 2008 and excludes the 6,679,644 shares of common stock
issuable upon the exercise of the warrants offered hereby and does not take into
effect further dilution to new investors that could occur as
follows:
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·
|
5,928,707 shares
of common stock issuable upon exercise of stock options outstanding under
our stock option plans at a weighted average exercise price of $5.02 per
share;
|
|
·
|
3,464,867
additional shares of common stock reserved for issuance under various
outstanding warrant agreements, at a weighted average exercise price of
$7.06; and
|
|
·
|
2,190,450
additional shares of common stock reserved for future issuance under our
2004 Equity Incentive Plan.
|
To the
extent options or warrants outstanding as of December 31, 2008 have
been or may be exercised or other shares are issued, there may be further
dilution to new investors.
Assuming
the exercise of all warrants offered hereby, the net tangible book value as of
December 31, 2008 will increase to $0.35 per share, representing an increase to
our existing stockholders of $0.78 per share, and there will be an immediate
dilution of $2.04 per share to the new investors.
S-16
DESCRIPTION OF WARRANTS
The
warrants in this offering will be issued pursuant to a subscription agreement
between each of the investors and us. You should review a copy of the
subscription agreement and the form of warrant, which will be filed as exhibits
to a Current Report on Form 8-K filed with the Securities and Exchange
Commission in connection with this offering, for a complete description of the
terms and conditions applicable to the warrants. The following is a brief
summary of the warrants and is subject in all respects to the provisions
contained in the warrants.
Warrants.
Each
warrant represents the right to purchase up to one and four-tenth shares of
common stock at an exercise price of $2.59 per share. Each warrant
may be exercised after the date that is six months from the date of issuance
through and including the date that is five years after the date of the warrant
is first exercisable.
The
exercise price and the number of shares underlying the warrants are subject to
appropriate adjustment in the event of stock splits, stock dividends on our
common stock, stock combinations or similar events affecting our common stock.
In addition, in the event we consummate any merger, consolidation, sale or other
reorganization event in which our common stock is converted into or exchanged
for securities, cash or other property or another person acquires fifty percent
of the shares of our outstanding common stock or becomes the beneficial owner of
fifty percent of the aggregate ordinary voting power represented by our
outstanding common stock , then following such event, the holders of the
warrants will be entitled to receive upon exercise of such warrants the kind and
amount of securities, cash or other property which the holders would have
received had they exercised such warrants immediately prior to such
reorganization event.
No
fractional shares of common stock will be issued in connection with the exercise
of a warrant. In lieu of fractional shares, we will pay the holder an amount in
cash equal to the fractional amount multiplied by the market value of a share of
common stock.
A warrant
may be transferred by a holder without our consent, upon surrender of the
warrant to us, properly endorsed (by the holder executing an assignment in the
form attached to the warrant) and upon payment of any necessary tax or other
governmental charge imposed upon such transfer.
The
warrants initially will not be listed on any securities exchange or automated
quotation system; however, we have agreed to use commercially reasonably efforts
to cause the warrants to be listed for quotation on the NASDAQ Global Market as
soon as practicable and to maintain such listing until the earlier to occur of
(i) the expiration date of the warrants or (ii) such time as all of the warrants
have been exercised in full.
If at any time we grant, issue or sell any options,
convertible securities or rights to purchase stock, warrants, securities or
other property pro rata to our record holders, other than those rights issued pursuant to our
Rights Agreement, dated May 19, 2003 as amended on May 12, 2005 and August 28,
2007, between the Company and Computershare Trust Company, Inc. (the
“Purchase Rights”), then the
holders will be entitled to acquire, upon
the terms applicable to such Purchase Rights, the aggregate Purchase Rights
which the holders could have acquired if they had held the number of shares of
common stock acquirable upon complete exercise of the warrants immediately
before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of
which the record holders are to be determined for the grant, issue or sale of
such Purchase Rights.
S-17
PLAN
OF DISTRIBUTION
We have
entered into a placement agency agreement, dated as of March 9, 2009, with Piper
Jaffray & Co., or Piper Jaffray. Subject to the terms and conditions
contained in the placement agency agreement, Piper Jaffray has agreed to act as
the placement agent in connection with the sale of up to 4,771,174 units,
with each unit consisting of one share of common stock and a warrant to purchase
1.4 shares of common stock. The placement agent is not purchasing or
selling any units by this prospectus supplement and the accompanying prospectus,
nor is it required to arrange the purchase or sale of any specific number or
dollar amount of the units, but it has agreed to use its best efforts to arrange
for the sale of all of the units in this offering. There is no required minimum
number of units that must be sold as a condition to completion of the
offering.
The
placement agency agreement provides that the obligations of the placement agent
and the purchasers are subject to certain conditions precedent, including, among
other things, the absence of any material adverse change in our business and the
receipt of certain opinions, letters and certificates from our counsel, our
independent auditors and us.
We will
enter into purchase agreements directly with purchasers in connection with this
offering, and we will only sell to purchasers who have entered into purchase
agreements.
We
currently anticipate that the closing of the sale of the units offered hereby
will take place on or about March 13, 2009.
In order
to facilitate the closing, certain purchaser funds will be deposited into
an escrow account and held until jointly released by us and the placement agent
on the date the units are delivered to the purchasers. The escrow agent will
invest all funds it receives in a non-interest bearing account in accordance
with Rule 15c2-4 under the Exchange Act. The escrow agent will not accept any
purchaser funds prior to the date of this prospectus supplement. In
the event that we reject any subscriptions to purchase units in this offering,
any funds related to such rejected subscriptions and received into escrow will
be returned to the prospective purchaser. Upon closing, we will deliver to each
purchaser delivering funds into escrow the number of shares purchased by such
purchaser through the facilities of The Depository Trust Company and the number
of warrants purchased by such purchaser in physical certificated
form.
We have
agreed to pay the placement agent an aggregate fee equal to 6% of the gross
proceeds from the sale of the units in this offering. We have also
agreed to reimburse the placement agent for its fees and expenses in connection
with the offering, including the fees, disbursements and other charges of
counsel to the placement agent. In compliance with guidelines of the
Financial Industry Regulatory Authority, or FINRA, the maximum consideration or
discount to be received by any FINRA member or independent broker dealer may not
exceed 8.0% of the aggregate amount of the securities offered pursuant to this
prospectus supplement.
The
following table shows the per unit and total fees we will pay to the placement
agent in connection with the sale of the units offered pursuant to this
prospectus supplement and the accompanying prospectus, assuming the sale of all
of the units offered hereby.
|
Per
unit placement agency fees
|
$ | 0.126 | ||
|
Maximum
offering total
|
$ | 601,168 |
Because
there is no minimum offering amount required as a condition to closing this
offering, the actual total offering fees, if any, are not presently determinable
and may be substantially less than the maximum amount set forth
above.
S-18
We have
agreed to indemnify the placement agent against certain liabilities, including
civil liabilities under the Securities Act and the Exchange Act, and to
contribute to payments that the placement agent may be required to make in
respect of those liabilities.
The
placement agent has informed us that it will not engage in over-allotment,
stabilizing transactions or syndicate covering transactions in connection with
this offering.
We and
each of our directors and executive officers have agreed to certain restrictions
on the ability to sell shares of our common stock and other securities that they
beneficially own, including securities convertible into or exercisable or
exchangeable for our common stock, for a period of 90 days following the date of
this prospectus supplement. This means that, subject to certain exceptions, for
a period of 90 days following the date of this prospectus supplement, we and
such persons may not, directly or indirectly, offer, pledge, announce the
intention to sell, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, or otherwise transfer or dispose of any shares of our
common stock or any, without the prior written consent of Piper Jaffray.
Notwithstanding the foregoing, if (x) during the last 17 days of such 90 day
period, we announce that we will release earnings results or publicly announce
other material news or a material event relating to us occurs or (y) prior to
the expiration of the 90 day period, we announce that we will release earnings
results during the 16 day period beginning on the last day of the 90 day period,
then in each case the 90 day period will be extended until the expiration of the
18 day period beginning on the date of release of the earnings results or the
public announcement regarding the material news or the occurrence of the
material event, as applicable, unless Piper Jaffray waives, in writing, such
extension. At any time and without public notice, Piper Jaffray may in its sole
discretion release all or some of the securities from these lock-up
agreements.
The
placement agency agreement is included as an exhibit to our Current Report on
Form 8-K that will be filed with the Securities and Exchange Commission in
connection with the execution of that agreement and commencement of this
offering and that will be incorporated by reference into the registration
statement of which this prospectus supplement forms a part.
The
transfer agent for our common stock is ComputerShare Investor Services,
LLC.
Our
common stock is quoted on the NASDAQ Global Market under the symbol
“CYTX.”
The
placement agent may distribute this prospectus supplement and the accompanying
prospectus electronically.
From time
to time in the ordinary course of its business, the placement agent or its
affiliates have in the past or may in the future engage in investment banking
and/or other services with us and our affiliates for which they have or may in
the future receive customary fees and expenses.
LEGAL MATTERS
Certain
legal matters relating to the validity of the common stock and warrants offered
by this prospectus supplement and the accompanying prospectus will be passed
upon for us by DLA Piper LLP (US), San Diego, California. Goodwin
Procter LLP, New York, New York, is acting as counsel for the placement agent in
connection with certain legal matters related to this offering.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We have
filed with the SEC a registration statement on Form S-3, of which this
prospectus supplement and the accompanying prospectus are a part, under the
Securities Act of 1933, as amended, to register the securities offered by this
prospectus supplement. However, this prospectus supplement and the
accompanying prospectus do not contain all of the information contained in the
registration statement
S-19
and the
exhibits and schedules to the registration statement. We encourage
you to carefully read the registration statement and the exhibits and schedules
to the registration statement.
As a
public company, we are required to file annual, quarterly and special reports,
proxy statements and other information with the SEC. You may read and
copy any of our materials on file with the SEC at the SEC’s Public Reference
Room at 100 F Street, N.E., Washington, D.C. 20549, as well as at the SEC’s
regional office at 5757 Wilshire Boulevard, Suite 500, Los Angeles,
California 90036. Our filings are available to the public
over the Internet at the SEC’s website at http://www.sec.gov. Please
call the SEC at 1-800-SEC-0330 for further information on the Public Reference
Room.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
We are allowed to incorporate by
reference information contained in documents that we file with the SEC. This
means that we can disclose important information to you by referring you to
those documents and that the information in this prospectus supplement is not
complete. You should read the information incorporated by reference for more
detail. We incorporate by reference in two ways. First, we list below certain
documents that we have already filed with the SEC. The information in these
documents is considered part of this prospectus supplement. Second, the
information in documents that we file in the future will update and supersede
the current information in, and be incorporated by reference in, this prospectus
supplement.
We incorporate by reference into this
prospectus supplement the documents listed below, any filings we make with the
SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date of the initial registration statement of which this prospectus supplement
is a part until the termination of this offering (in each case, except for the
information furnished under Item 2.02 or Item 7.01 in any current report on Form
8-K and Form 8-K/A):
|
·
|
our
annual report on Form 10-K for the year ended December 31, 2008 filed
with the SEC on March 6, 2009 (File No.
000-32501-09663762);
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|
·
|
our
current report on Form 8-K filed with the SEC on February 2, 2009 (File
No. 000-32501- 09562083);
|
|
·
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the
description of our common stock contained in our registration statement on
Form 10/A filed with the SEC on July 16, 2001 (File No.
000-32501-1682501); and
|
|
·
|
the
description of our Series RP Preferred Stock Purchase Rights contained in
our registration statement on Form 8-A filed with the SEC on May 30, 2003
(File No. . 000-32501-03725608), including any amendments or reports filed
for the purpose of updating the
description.
|
We will provide each person, including
any beneficial owner, to whom this prospectus supplement and the accompanying
prospectus is delivered, a copy of any or all of the information that has been
incorporated by reference into this prospectus supplement but not delivered with
this prospectus supplement upon written or oral request at no cost to the
requester. Requests should be directed to: Cytori Therapeutics, Inc., 3020
Callan Road, San Diego, CA 92121, Attn: Investor Relations, telephone: (858)
458-0900.
This prospectus supplement is part of a
registration statement that we filed with the SEC. The registration statement
contains more information than this prospectus supplement regarding us and our
common stock, including certain exhibits and schedules. You can obtain a copy of
the registration statement from the SEC at the address listed above or from the
SEC’s Internet website.
S-20
You should rely only on the information
provided in and incorporated by reference into this prospectus supplement and
the accompanying prospectus. We have not authorized anyone else to provide you
with different information. You should not assume that the information in this
prospectus supplement or the accompanying prospectus is accurate as of any date
other than the date on the front cover of these documents.
S-21
PROSPECTUS
$75,000,000
CYTORI
THERAPEUTICS, INC.
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
to Purchase Common Stock, Preferred Stock or Debt Securities
and
Units
We may
from time to time in one or more offerings offer and sell up to $75,000,000
aggregate dollar amount of common stock, preferred stock, debt securities,
warrants to purchase common stock, preferred stock or debt securities, or any
combination of the foregoing, either individually or as units comprised of one
or more of the other securities. We will provide the specific terms
for each of these securities in supplements to this prospectus. We
may sell these securities to or through underwriters or dealers and also to
other purchasers or through agents. We will set forth the names of
any underwriters, dealers or agents in the accompanying prospectus supplement
applicable to the sale of such securities. You should read carefully
this prospectus and any supplement before you invest.
Where
necessary, the applicable prospectus supplement will contain information about
certain United States Federal income tax considerations relating to, and any
listing on a securities exchange of, the securities covered by such prospectus
supplement.
Our
common stock is listed on The NASDAQ Global Market under the symbol “CYTX.” On
January 29, 2009, the last reported sale price of our common stock on The
NASDAQ Global Market was $4.80 per share.
_______________________
Investing in our securities involves
risk. See “Risk Factors” beginning on page 3.
This
prospectus may not be used to offer or sell any securities unless it is
accompanied by the applicable prospectus supplement.
_______________________
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a
criminal offense.
The date
of this prospectus is January 30, 2009.
TABLE
OF CONTENTS
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i
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission, or the SEC, using a “shelf” registration
process. Under this shelf registration process, we may from time to
time in one or more offerings sell common stock, preferred stock, debt
securities or warrants to purchase common stock, preferred stock or debt
securities, or any combination of the foregoing, either individually or as units
comprised of one or more of the other securities, in one or more offerings up to
a total dollar amount of $75,000,000. We have provided to you in this
prospectus a general description of the securities we may offer. Each
time we sell securities, we will, to the extent required by law, provide a
prospectus supplement that will contain specific information about the terms of
the offering. We may also add, update or change in any accompanying
prospectus supplement or any related free writing prospectus we may authorize to
be delivered to you any of the information contained in this
prospectus. To the extent there is a conflict between the information
contained in this prospectus and the prospectus supplement or any related free
writing prospectus, you should rely on the information in the prospectus
supplement or the related free writing prospectus, provided that if any
statement in one of these documents is inconsistent with a statement in another
document having a later date — for example, a document incorporated by
reference in this prospectus or any prospectus supplement or any related free
writing prospectus — the statement in the document having the later date
modifies or supersedes the earlier statement.
We have
not authorized any dealer, agent or other person to give any information or to
make any representation other than those contained or incorporated by reference
in this prospectus and any accompanying prospectus supplement. You
must not rely upon any information or representation not contained or
incorporated by reference in this prospectus or an accompanying prospectus
supplement. This prospectus and the accompanying prospectus
supplement, if any, do not constitute an offer to sell or the solicitation of an
offer to buy any securities other than the registered securities to which they
relate, nor do this prospectus and the accompanying prospectus supplement
constitute an offer to sell or the solicitation of an offer to buy securities in
any jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. You should not assume that the
information contained in this prospectus and the accompanying prospectus
supplement, if any, is accurate on any date subsequent to the date set forth on
the front of the document or that any information we have incorporated by
reference is correct on any date subsequent to the date of the document
incorporated by reference (as our business, financial condition, results of
operations and prospects may have changed since that date), even though this
prospectus and any accompanying prospectus supplement is delivered or securities
are sold on a later date.
_____________________
As
permitted by the rules and regulations of the SEC, the registration statement,
of which this prospectus forms a part, includes additional information not
contained in this prospectus. You may read the registration statement
and the other reports we file with the SEC at the SEC’s web site or at the SEC’s
offices described below under the heading “Where You Can Find Additional
Information.”
ii
|
SUMMARY
This summary highlights selected
information from this prospectus and does not contain all of the
information that you need to consider in making your investment
decision. You should carefully read the entire prospectus,
including the risks of investing discussed under “Risk Factors”
described on page 3, the information incorporated by reference,
including our financial statements, and the exhibits to the registration
statement of which this prospectus is a part. When used in this
prospectus, the terms “CYTX”, “we”, “our”, “us” or the “Company” refer to
Cytori Therapeutics, Inc. and its consolidated subsidiaries, unless
otherwise indicated or as the context otherwise requires.
About
Cytori Therapeutics, Inc.
Cytori
develops, manufactures, and sells medical technologies to enable the
practice of regenerative medicine. Regenerative medicine describes the
emerging field that aims to repair or restore lost or damaged organ and
cell function. Our commercial activities are focused on reconstructive
surgery in Europe and Asia, translational research in Europe and Asia, and
stem and regenerative cell banking (cell preservation). In
addition, we are seeking to bring our products to market in the United
States as well as other countries. Our product pipeline includes the
development of potential new treatments for cardiovascular disease, spinal
disc repair, renal failure, among other conditions.
The
foundation of Cytori’s business is the Celution ®
System product platform. This family of products can process a
patient’s own cells at the bedside in real time. These cells are then
delivered back to the patient, where they’re needed, all during the same
surgical procedure. The Celution ®
System product platform consists of the Celution ®
device, related single-use consumables, reusable surgical
instruments, and a proprietary enzyme solution. The more therapeutic
applications we develop for the cellular output of the Celution ®
System product family, the more opportunities we may have to offer
our technology to hospitals, clinics, and physicians.
We
were initially formed as a California general partnership in July 1996,
and incorporated in the State of Delaware in May 1997. We were formerly
known as MacroPore Biosurgery, Inc., and before that as MacroPore,
Inc. Our corporate offices are located at 3020 Callan Road, San
Diego, CA 92121. Our telephone number is (858) 458-0900. Our website
address is www.cytoritx.com. We make available free of
charge through our Internet website our annual report on Form 10-K,
quarterly reports on Form 10-Q, current reports on Form 8-K, and
amendments to those reports filed or furnished pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended, or the
Exchange Act, as soon as reasonably practicable after we electronically
file such material with, or furnish it to, the SEC. Information contained
on our website does not constitute part of this prospectus or any
prospectus supplement.
SECURITIES
WE MAY OFFER
With this prospectus, we may
offer common stock, preferred stock, debt securities and warrants, or any
combination of the foregoing, either individually or as units comprised of
one or more of the other securities. The aggregate initial
offering price of all securities we sell in the primary offering under
this prospectus will not exceed $75,000,000. If we issue debt
securities at a discount from their original stated principal amount,
then, for purposes of calculating the total dollar amount of all
securities issued under this prospectus, we will treat the initial
offering price of the debt securities as the total original principal
amount of the debt securities. Each time we offer securities
with this prospectus, we will provide offerees with a prospectus
supplement that will contain the specific terms of the securities being
offered. The following is a summary of the securities we may
offer with this prospectus.
We may sell the
securities to or through underwriters, dealers or agents or directly to
purchasers.
1
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|
We,
as well as any agents acting on our behalf, reserve the sole right to
accept and to reject in whole or in part any proposed purchase of
securities. Each prospectus supplement will set forth the names
of any underwriters, dealers or agents involved in the sale of securities
described in that prospectus supplement and any applicable fee, commission
or discount arrangements with them.
Common
Stock
We may offer shares of our common
stock, par value $0.001 per share, either alone or underlying other
registered securities convertible into or exercisable for our common
stock. Holders of our common stock are entitled to such
dividends as our board of directors may declare from time to time out of
legally available funds, subject to the preferential rights of the holders
of any shares of our preferred stock that are outstanding or that we may
issue in the future. Currently, we do not pay any
dividends. Each holder of our common stock is entitled to one
vote per share. In this prospectus, we provide a general
description of, among other things, our dividend policy and the rights and
restrictions that apply to holders of our common stock.
Preferred
Stock
We may issue shares of preferred
stock in one or more classes or series. Our board of directors
or a committee designated by our board of directors will determine the
dividend, voting and conversion rights and other provisions at the time of
sale. The particular terms of each class or series of preferred
stock, including redemption privileges, liquidation preferences, voting
rights, dividend rights and/or conversion rights, will be more fully
described in the applicable prospectus supplement relating to the
preferred stock offered thereby.
Debt
Securities
We may offer general debt
obligations, which may be secured or unsecured, senior or subordinated and
convertible into shares of our common stock. In this
prospectus, we refer to the senior debt securities and the subordinated
debt securities together as the “debt securities.” We may issue
debt securities under a note purchase agreement or under an indenture to
be entered between us and a trustee; a form of the indenture is included
as an exhibit to the registration statement of which this prospectus is a
part. The
indenture does not limit the amount of securities that may be issued under
it and provides that debt securities may be issued in one or more
series. The senior debt securities will have the same rank as
all of our other indebtedness that is not subordinated. The
subordinated debt securities will be subordinated to our senior debt on
terms set forth in the applicable prospectus supplement. In
addition, the subordinated debt securities will be effectively
subordinated to creditors and preferred stockholders of our
subsidiaries. Our board of directors will determine the terms
of each series of debt securities being offered. This prospectus contains
only general terms and provisions of the debt securities. The
applicable prospectus supplement will describe the particular terms of the
debt securities offered thereby.
Warrants
We may offer
warrants for the purchase of debt securities, shares of preferred stock or
shares of common stock. We may issue the warrants by themselves
or together with debt securities, preferred stock or common stock and the
warrants may be attached to or separate from any offered
securities. Each series of securities warrants will be issued
under a separate warrant agreement to be entered into between us and the
investors or a warrant agent. Our board of directors will
determine the terms of the warrants. This prospectus contains
only general terms and provisions of the warrants. The
applicable prospectus supplement will describe the particular terms of the
warrants being offered thereby.
2
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RISK
FACTORS
Investment
in our securities involves risks. Prior to making a decision about
investing in our securities, you should consider carefully the risk factors,
together with all of the other information contained or incorporated by
reference in this prospectus and any prospectus supplement, including any
additional specific risks described in the section entitled “Risk Factors”
contained in any supplements to this prospectus and in our Annual Report on Form
10-K for the fiscal year ended December 31, 2008 filed with the SEC, as well as
any amendments thereto reflected in subsequent filings with the SEC, which are
incorporated herein by reference in their entirety. Each of these
risk factors could have a material adverse affect on our business, results of
operations, financial position or cash flows, which may result in the loss of
all or part of your investment.
SPECIAL
NOTE REGARDING FORWARD-LOOKING
INFORMATION
This
prospectus, including the documents that we incorporate by reference herein,
contains forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended, or the Securities Act, and Section 21E of
the Exchange Act. These statements include, but are not limited to, statements
about our anticipated expenditures, including those related to clinical research
studies and general and administrative expenses, the potential size of the
market for our products, future development and/or expansion of our products and
therapies in our markets, our ability to generate product revenues or
effectively manage our gross profit margins, our ability to obtain regulatory
approvals and clearances to sell our products, expectations as to our future
performance, the future impact and ongoing appeal with respect to our 231 patent
litigation, our need for additional financing and the availability thereof, and
the potential enhancement of our cash position through development, marketing,
and licensing arrangements. Any statements about our expectations, beliefs,
plans, objectives, assumptions or future events or performance are not
historical facts and may be forward-looking. These statements are often, but not
always, made through the use of terminology such as “anticipates,” “believes,”
“continue” “estimates,” “expects,” “intends,” “may,” “plans,” “potential,”
“predicts,” “should,” “will,” or the negative of these terms or other comparable
terminology. These forward-looking statements may also use different phrases.
Accordingly, these statements involve estimates, assumptions and uncertainties
that could cause actual results to differ materially from those expressed in
them. Any forward-looking statement is qualified in its entirety by reference to
the factors discussed in this prospectus, including in the documents
incorporated by reference herein.
Because
the factors discussed in this prospectus, including in the documents
incorporated by reference herein, and even factors of which we are not yet
aware, could cause actual results or outcomes to differ materially from those
expressed in any forward-looking statement made by or on behalf of us, you
should not place undue reliance on any such forward-looking statement. These
statements are subject to risks and uncertainties, known and unknown, which
could cause actual results, performance and achievements to differ materially
from those expressed or implied in such statements. We have included
important factors in the cautionary statements included in this prospectus,
particularly under the heading “Risk Factors,” and in our SEC filings that we
believe could cause actual results or events to differ materially from the
forward-looking statements that we make. These and other risks are also detailed
in our reports filed from time to time under the Securities Act and/or the
Exchange Act. You are encouraged to read these filings as they are
made.
Further,
any forward-looking statement speaks only as of the date on which it is made,
and we undertake no obligation to update any forward-looking statement to
reflect events or circumstances after the date on which such statement is made
or to reflect the occurrence of unanticipated events. New risk factors emerge
from time to time, and it is not possible for us to predict which factors will
arise. In addition, we cannot assess the impact of each factor on our business
or the extent to which any factor, or
3
combination
of factors, may cause actual results to differ materially from those contained
in any forward-looking statements.
4
RATIO
OF EARNINGS TO FIXED CHARGES
We
present below our ratio of earnings to fixed charges. Earnings
available to cover fixed charges consist of (loss) income from continuing
operations before income taxes and minority interest plus fixed
charges. Fixed charges consist of interest expense, including
amortization of debt issuance costs, and the portion of rental expense we
believe to be representative of interest.
|
Nine
Months Ended
September
30,
|
||||||||||||||||||||||||
|
Year
Ended December 31,
|
||||||||||||||||||||||||
|
(Dollars
in thousands)
|
||||||||||||||||||||||||
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2008
|
2007
|
2006
|
2005
|
2004
|
2003
|
|||||||||||||||||||
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Earnings
available to cover fixed charges:
|
$ | (23,212 | ) | $ | (28,190 | ) | $ | (24,772 | ) | $ | (21,914 | ) | $ | (1,756 | ) | $ | (9,003 | ) | ||||||
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Fixed
charges:
|
266 | 475 | 601 | 452 | 334 | 280 | ||||||||||||||||||
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Ratio
of earnings to fixed charges:
|
$ | - | $ | - | $ | - | $ | - | $ | - | $ | - | ||||||||||||
|
For
all periods presented, earnings are insufficient to cover fixed
charges. Coverage is deficient by the following
amounts:
|
||||||||||||||||||||||||
| $ | (23,478 | ) | $ | (28,665 | ) | $ | (25,373 | ) | $ | (22,366 | ) | $ | (2,090 | ) | $ | (9,283 | ) | |||||||
USE
OF PROCEEDS
Except as
described in any prospectus supplement, we currently intend to use the net
proceeds from the sale of the securities for general corporate purposes,
including the continued development, manufacture, marketing and sale of our
Celution™ System family of products, including related research and clinical
trials, and other related research and development, sales and marketing, and
general administrative expenses, working capital and capital
expenditures. In addition our use of proceeds may include the
repayment of debt or refinancing of indebtedness or the acquisition of
complementary products or companies. We have not determined the
amount of net proceeds to be used specifically for the foregoing purposes. As a
result, our management will have broad discretion in the allocation of the net
proceeds and investors will be relying on the judgment of our management
regarding the application of the proceeds of any sale of the
securities. Pending use of the net proceeds, we intend to invest the
proceeds in a variety of capital preservation instruments, including short-term,
investment-grade, interest-bearing instruments.
When we
offer a particular series of securities, we will describe the intended use of
the net proceeds from that offering in a prospectus supplement. The
actual amount of net proceeds we spend on a particular use will depend on many
factors, including, our future revenue growth, if any, our future capital
expenditures and the amount of cash required by our operations. Many
of these factors are beyond our control. Therefore, we will retain
broad discretion in the use of the net proceeds.
5
SECURITIES
WE MAY OFFER
We may
offer shares of common stock, shares of preferred stock, debt securities or
warrants to purchase common stock, preferred stock or debt securities, or any
combination of the foregoing, either individually or as units comprised of one
or more of the other securities. We may offer up to $75,000,000 of
securities under this prospectus. If securities are offered as units,
we will describe the terms of the units in a prospectus supplement.
DESCRIPTION
OF COMMON STOCK AND PREFERRED STOCK
The
following description of our common stock and preferred stock, together with any
additional information we include in any applicable prospectus supplements,
summarizes the material terms and provisions of our common stock and the
preferred stock that we may offer in offerings under this
prospectus. While the terms we have summarized below will apply
generally to any future common stock or preferred stock that we may offer, we
will describe the particular terms of any class or series of these securities in
more detail in the applicable prospectus supplement. For the complete
terms of our common stock and preferred stock, please refer to our amended and
restated certificate of incorporation and our amended and restated by-laws that
are incorporated by reference into the registration statement of which this
prospectus is a part or may be incorporated by reference in this prospectus or
any prospectus supplement. The terms of these securities may
also be affected by Delaware General Corporation Law. The summary
below and that contained in any prospectus supplement are qualified in their
entirety by reference to our amended and restated certificate of incorporation
and our amended and restated amended and restated by-laws.
Common
Stock
We are
authorized to issue 95,000,000 shares of common stock, of which 29,308,441
shares were issued and outstanding as of January 27, 2009. The
holders of Common Stock possess exclusive voting rights in us, except to the
extent our board of directors specifies voting power with respect to any other
class of securities issued in the future. Each holder of our common
stock is entitled to one vote for each share held of record on each matter
submitted to a vote of stockholders, including the election of
directors. Stockholders do not have any right to cumulate votes in
the election of directors.
Subject
to preferences that may be granted to the holders of preferred stock, each
holder of our common stock is entitled to share ratably in distributions to
stockholders and to receive ratably such dividends as may be declared by our
board of directors out of funds legally available therefor. In the
event of our liquidation, dissolution or winding up, the holders of our common
stock will be entitled to receive, after payment of all of our debts and
liabilities and of all sums to which holders of any preferred stock may be
entitled, the distribution of any of our remaining assets. Holders of
our common stock have no conversion, exchange, sinking fund, redemption or
appraisal rights (other than such as may be determined by our board of directors
in its sole discretion) and have no preemptive rights to subscribe for any of
our securities.
All of
the outstanding shares of our common stock are, and the shares of common stock
issued upon the conversion of any securities convertible into our common stock
will be, fully paid and non-assessable. The shares of common stock
offered by this prospectus or upon the conversion of any preferred stock or debt
securities or exercise of any warrants offered pursuant to this prospectus, when
issued and paid for, will also be, fully paid and non-assessable.
Our
common stock is listed on the NASDAQ Global Market under the symbol
“CYTX.”
6
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is ComputerShare Investor
Services, LLC.
Rights
Plan
On May 28, 2003, we adopted a
stockholder rights plan, or Rights Plan. The description and terms of the rights
issuable under the Rights Plan are set forth in a Rights Agreement between us
and Computershare Trust Company, Inc., as rights agent, dated as of
May 29, 2003. Under the Rights Plan, we distributed one Series RP
preferred stock purchase right for each share of common stock outstanding at the
close of business on June 10, 2003.
If a person or group of affiliated or
associated persons acquires 15% or more of our common stock in a transaction not
pre-approved by our Board of Directors, each right will entitle its holder,
other than the acquirer, to receive upon exercise the number of shares of our
common stock (or, in certain circumstances, of one one-thousandths of a share of
preferred stock or other of our securities) having a value equal to two times
the right’s then-applicable purchase price (initially $25.00 per one-thousandth
of a share of Series RP preferred stock). In addition, if an unapproved
party acquires 15% or more of our common stock, and we are later acquired by the
unapproved party or in a transaction in which all of our stockholders are not
treated alike, stockholders with unexercised rights, other than the unapproved
party, will be entitled to purchase common stock of the merger party or asset
buyer with a value of twice the exercise price of the rights. Each right also
becomes exercisable for one one-thousandth of a share of our Series RP
preferred stock at the right’s then current exercise price 10 days after an
unapproved person or group of affiliated or associated persons commences, or
announces an intention to make, a tender offer or exchange offer that, if
completed, would result in the unapproved party acquiring 15% or more of our
common stock. We may redeem the rights for a nominal amount before an event that
causes the rights to become exercisable.
Until a right is exercised, the holder
thereof, as such, will have no rights as a stockholder of us, including, without
limitation, the right to vote or to receive dividends. While the distribution of
the rights will not be taxable to our stockholders, stockholders may, depending
upon the circumstances, recognize taxable income should the rights become
exercisable or upon the occurrence of certain events thereafter. As long as the
rights are attached to the shares of common stock, we will issue one right with
each new share of common stock so that all shares of our common stock will have
attached rights. The rights will expire on May 29, 2013, unless earlier
redeemed by us.
On May 12, 2005, we amended the
Rights Plan to change the threshold at which the rights separate from the common
stock, from 15% to 20%, in the case of one of our stockholders, Neil Gagnon,
either individually or together with his affiliates, including without
limitation Gagnon Securities LLC and its affiliates (all together “Gagnon”). The
effect of this amendment is to enable Gagnon to safely increase his beneficial
ownership to above 15% (although not to above 20%) without thereby triggering
distribution of the rights.
On August
28, 2007, we amended the Rights Plan to change the threshold at which the rights
separate from the common stock, from 15% to 20%, in the case of one of our
stockholders, Olympus Corporation. The effect of this amendment is to
enable Olympus Corporation to safely increase its beneficial ownership to above
15% (although not to above 20%) without thereby triggering distribution of the
rights.
7
The Rights Agreement, specifying the
terms of the rights, including the form of Certificate of Designation,
Preferences and Rights of our Series RP preferred stock as an exhibit
thereto, is attached as an exhibit to our registration statement on
Form 8-A filed with the SEC on May 30, 2003 and is incorporated herein
by reference. Amendment No. 1 to Rights Agreement, dated as of May 12,
2005, between us and Computershare Trust Company, Inc., as rights agent, is
attached as an exhibit to our current report on Form 8-K filed with the SEC
on May 18, 2005, and Amendment No. 2 to Rights Agreement, dated as of
August 28, 2007, between us and Computershare Trust Company, Inc., as
rights agent, is attached as an exhibit to our current report on Form 8-K
filed with the SEC on August 28, 2007. The foregoing description of the rights
is qualified in its entirety by reference to the Rights Agreement, as amended,
and the exhibits thereto.
Preferred
Stock
We are
authorized to issue 5,000,000 shares of preferred stock, none of which were
issued and outstanding as of January 27, 2009. Our board is
authorized to classify or reclassify any unissued portion of our authorized
shares of preferred stock to provide for the issuance of shares of other
classes or series, including preferred stock in one or more
series. We may issue preferred stock from time to time in one or more
classes or series, with the exact terms of each class or series established by
our board. Without seeking stockholder approval, our board may issue
preferred stock with voting and other rights that could adversely affect the
voting power of the holders of our common stock. Additionally, the
issuance of preferred stock may have the effect of decreasing the market price
of the common stock.
The
rights, preferences, privileges and restrictions of the preferred stock of each
series will be fixed by the certificate of designation relating to each
series. A prospectus supplement relating to each series will specify
the terms of the preferred stock, including, but not limited to:
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the
distinctive designation and the maximum number of shares in the
series;
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the
terms on which dividends, if any, will be
paid;
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the
voting rights, if any, on the shares of the
series;
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the
terms and conditions, if any, on which the shares of the series shall be
convertible into, or exchangeable for, shares of any other class or
classes of capital stock;
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the
terms on which the shares may be redeemed, if at
all;
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the
liquidation preference, if any; and
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any
or all other preferences, rights, restrictions, including restrictions on
transferability, and qualifications of shares of the
series.
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The
issuance of preferred stock may delay, deter or prevent a change in
control.
We will
describe the specific terms of a particular series of preferred stock in the
prospectus supplement relating to that series. The description of
preferred stock above and the description of the terms of a particular series of
preferred stock in the prospectus supplement are not complete. You
should refer to the applicable certificate of designation for complete
information. The prospectus supplement will contain a description of
U.S. federal income tax consequences relating to the preferred
stock.
8
Possible
Anti-Takeover Effects of Delaware Law and our Certificate of Incorporation and
Bylaws
The
following is a summary of certain provisions of Delaware law, our amended and
restated certificate of incorporation and our amended and restated
by-laws. This summary does not purport to be complete and is
qualified in its entirety by reference to the corporate law of Delaware and our
amended and restated certificate of incorporation and amended and restated
by-laws.
Effect of Delaware Anti-Takeover
Statute. We are subject to Section 203 of the Delaware General
Corporation Law, an anti-takeover law. In general, Section 203
prohibits a Delaware corporation from engaging in any business combination with
any interested stockholder for a period of three years following the date that
the stockholder became an interested stockholder, unless:
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prior
to that date, the board of directors of the corporation approved either
the business combination or the transaction that resulted in the
stockholder becoming an interested
stockholder;
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upon
consummation of the transaction that resulted in the stockholder becoming
an interested stockholder, the interested stockholder owned at least 85%
of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding for purposes of determining the number of
shares of voting stock outstanding (but not the voting stock owned by the
interested stockholder) those shares owned by persons who are directors
and officers and by excluding employee stock plans in which employee
participants do not have the right to determine whether shares held
subject to the plan will be tendered in a tender or exchange offer;
or
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on
or subsequent to that date, the business combination is approved by the
board of directors of the corporation and authorized at an annual or
special meeting of stockholders, and not by written consent, by the
affirmative vote of at least 66-2⁄3% of the outstanding voting stock that
is not owned by the interested
stockholder.
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Section
203 defines “business combination” to include the following:
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any
merger or consolidation involving the corporation and the interested
stockholder;
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any
sale, transfer, pledge or other disposition of 10% or more of the assets
of the corporation involving the interested
stockholder;
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subject
to certain exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the
interested stockholder;
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any
transaction involving the corporation that has the effect of increasing
the proportionate share of the stock of any class or series of the
corporation beneficially owned by the interested stockholder;
or
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the
receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided by or
through the corporation.
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In
general, Section 203 defines an interested stockholder as any entity or person
beneficially owning 15% or more of the outstanding voting stock of the
corporation, or who beneficially owns 15% or more of the outstanding voting
stock of the corporation at anytime within a three year period immediately
9
prior to
the date of determining whether such person is an interested stockholder, and
any entity or person affiliated with or controlling or controlled by any of
these entities or persons.
Certificate
of Incorporation and Bylaws
Preferred Stock.
Under our amended and restated certificate of incorporation, our Board of
Directors has the power to authorize the issuance of up to 5,000,000 shares of
preferred stock, all of which remain undesignated, and to determine the
price, rights, preferences, privileges and restrictions, including voting
rights, of those shares without further vote or action by our stockholders. The
issuance of preferred stock may:
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delay,
defer or prevent a change in
control;
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discourage
bids for our common stock at a premium over the market price of our common
stock;
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adversely
affect the voting and other rights of the holders of our common stock;
and
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discourage
acquisition proposals or tender offers for our shares and, as a
consequence, inhibit
fluctuations in the market price of our shares that could result from
actual or rumored
takeover
attempts.
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Special Meeting
Requirements. Our amended and restated bylaws provide that
special meetings of our stockholders may only be called at the request of our
president, chief executive officer or chairman of the board or by a majority of
our Board of Directors.
Advance Notice
Requirement. Stockholder proposals to be brought before an
annual meeting of our stockholders must comply with advance notice procedures.
These advance notice procedures require timely notice and apply in several
situations, including stockholder proposals relating to the nominations of
persons for election to our Board of Directors. Generally, to be timely, notice
must be received at our principal executive offices no later than the date
specified in our proxy statement released to stockholders in connection with the
previous year’s annual meeting of stockholders, which date shall be not less
than 120 calendar days in advance of the date of such proxy
statement.
Indemnification.
Our amended and restated certificate of incorporation and our bylaws, as
amended, provide that we will indemnify our officers and directors against
losses as they incur in investigations and legal proceedings resulting from
their services to us, which may include service in connection with takeover
defense measures.
The above
provisions may deter a hostile takeover or delay a change in control or
management of us.
Rights
Agreement
The
rights described above under the heading “Description of Common Stock and
Preferred Stock—Rights Plan” above have certain anti-takeover effects. The
rights will cause substantial dilution to a person or group that attempts to
acquire a significant interest in us on terms not approved by our Board of
Directors.
10
DESCRIPTION
OF DEBT SECURITIES
General
The debt
securities that we may issue may constitute debentures, notes, bonds or other
evidences of indebtedness of Cytori Therapeutics, Inc., to be issued in one or
more series, which may include senior debt securities, subordinated debt
securities and senior subordinated debt securities. The particular
terms of any series of debt securities we offer, including the extent to which
the general terms set forth below may be applicable to a particular series, will
be described in a prospectus supplement relating to such series.
Debt
securities that we may issue may be issued under a senior indenture between us
and a trustee, or a subordinated indenture between us and a trustee
(collectively, the “indenture”). We have filed forms of the indentures as
exhibits to the registration statement of which this prospectus is a part. If we
enter into any revised indenture or indenture supplement, we will file a copy of
that supplement with the SEC.
THE
FOLLOWING DESCRIPTION IS A SUMMARY OF THE MATERIAL PROVISIONS OF THE
INDENTURE. IT DOES NOT RESTATE THE INDENTURE IN ITS
ENTIRETY. THE INDENTURE IS GOVERNED BY THE TRUST INDENTURE ACT OF
1939. THE TERMS OF THE DEBT SECURITIES INCLUDE THOSE STATED IN THE
INDENTURE AND THOSE MADE PART OF THE INDENTURE BY REFERENCE TO THE TRUST
INDENTURE ACT. WE URGE YOU TO READ THE INDENTURE BECAUSE IT, AND NOT THIS
DESCRIPTION, DEFINES YOUR RIGHTS AS A HOLDER OF THE DEBT
SECURITIES.
The
indenture contains no covenant or provision which affords debt holders
protection in the event of a highly leveraged transaction.
Information
You Will Find in the Prospectus Supplement
The
indenture provides that we may issue debt securities from time to time in one or
more series by resolution of our board of directors or by means of a
supplemental indenture, and that we may denominate the debt securities and make
them payable in foreign currencies. The indenture does not limit the
aggregate principal amount of debt securities that can be issued
thereunder. The prospectus supplement for a series of debt securities
will provide information relating to the terms of the series of debt securities
being offered, which may include:
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the
title and denominations of the debt securities of the
series;
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any
limit on the aggregate principal amount of the debt securities of the
series;
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the
date or dates on which the principal and premium, if any, with respect to
the debt securities of the series are payable or the method of
determination thereof;
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the
rate or rates, which may be fixed or variable, at which the debt
securities of the series shall bear interest, if any, or the method of
calculating and/or resetting such rate or rates of
interest;
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the
dates from which such interest shall accrue or the method by which such
dates shall be determined and the basis upon which interest shall be
calculated;
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the
interest payment dates for the series of debt securities or the method by
which such dates will be determined, the terms of any deferral of interest
and any right of ours to extend the interest payments
periods;
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the
place or places where the principal and interest on the series of debt
securities will be payable;
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the
terms and conditions upon which debt securities of the series may be
redeemed, in whole or in part, at our option or
otherwise;
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our
obligation, if any, to redeem, purchase, or repay debt securities of the
series pursuant to any sinking fund or other specified event or at the
option of the holders and the terms of any such redemption, purchase, or
repayment;
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the
terms, if any, upon which the debt securities of the series may be
convertible into or exchanged for other securities, including, among other
things, the initial conversion or exchange price or rate and the
conversion or exchange period;
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if
the amount of principal, premium, if any, or interest with respect to the
debt securities of the series may be determined with reference to an index
or formula, the manner in which such amounts will be
determined;
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if
any payments on the debt securities of the series are to be made in a
currency or currencies (or by reference to an index or formula) other than
that in which such securities are denominated or designated to be payable,
the currency or currencies (or index or formula) in which such payments
are to be made and the terms and conditions of such
payments;
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any
changes or additions to the provisions of the indenture dealing with
defeasance, including any additional covenants that may be subject to our
covenant defeasance option;
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the
currency or currencies in which payment of the principal and premium, if
any, and interest with respect to debt securities of the series will be
payable, or in which the debt securities of the series shall be
denominated, and the particular provisions applicable thereto in
accordance with the indenture;
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the
portion of the principal amount of debt securities of the series which
will be payable upon declaration of acceleration or provable in bankruptcy
or the method by which such portion or amount shall be
determined;
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whether
the debt securities of the series will be secured or guaranteed and, if
so, on what terms;
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any
addition to or change in the events of default with respect to the debt
securities of the series;
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the
identity of any trustees, authenticating or paying agents, transfer agents
or registrars;
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the
applicability of, and any addition to or change in, the covenants
currently set forth in the
indenture;
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the
subordination, if any, of the debt securities of the series and terms of
the subordination;
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any
other terms of the debt securities of the series;
and
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whether
securities of the series shall be issuable as registered securities or
bearer securities (with or without interest coupons), and any restrictions
applicable to the offering, sale or delivery of such bearer securities and
the terms upon which such bearer securities of a series may be exchanged
for registered securities, and vice
versa.
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Holders
of debt securities may present debt securities for exchange in the manner, at
the places, and subject to the restrictions set forth in the debt securities,
the indenture, and the prospectus supplement. We will provide these services
without charge, other than any tax or other governmental charge payable in
connection therewith, but subject to the limitations provided in the indenture,
any board resolution establishing such debt securities and any applicable
indenture supplement. Debt securities in bearer form and the coupons, if any,
appertaining thereto will be transferable by delivery.
Senior
Debt
We may
issue senior debt securities under the indenture and any coupons that will
constitute part of our senior debt. Unless otherwise set forth in the
applicable indenture supplement or in any board resolution establishing such
debt securities and described in a prospectus supplement, the senior debt
securities will be senior unsecured obligations, ranking equally with all of our
existing and future senior unsecured debt. The senior debt securities
will be senior to all of our subordinated debt and junior to any secured debt we
may incur as to the assets securing such debt.
Subordinated
Debt
We may
issue subordinated debt securities under the indenture and any coupons that will
constitute part of such subordinated debt. These subordinated debt
securities will be subordinate and junior in right of payment, to the extent and
in the manner set forth in the indenture and any applicable indenture
supplement, to all of our senior indebtedness.
If this
prospectus is being delivered in connection with a series of subordinated debt
securities, the accompanying prospectus supplement or the information
incorporated by reference will set forth the approximate amount of senior
indebtedness, if any, outstanding as of the end of our most recent fiscal
quarter.
Senior
Subordinated Debt
We may
issue senior subordinated debt securities under the indenture and any coupons
that will constitute part of our senior subordinated debt. These senior
subordinated debt securities will be, to the extent and in the manner set forth
in the indenture, subordinate and junior in right of payment to all of our
“senior indebtedness” and senior to our other subordinated debt. See the
discussions above under “—Senior Debt” and “—Subordinated Debt” for a more
detailed explanation of our senior and subordinated indebtedness.
Interest
Rate
Debt
securities that bear interest will do so at a fixed rate or a floating
rate. We may sell, at a discount below the stated principal amount,
any debt securities which bear no interest or which bear interest at a rate that
at the time of issuance is below the prevailing market rate. The
relevant prospectus supplement will describe the special United States federal
income tax considerations applicable to:
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any
discounted debt securities; and
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any
debt securities issued at par which are treated as having been issued at a
discount for United States federal income tax
purposes.
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Registered
Global Securities
We may
issue registered debt securities of a series in the form of one or more fully
registered global securities. We will deposit the registered global
security with a depositary or with a nominee for a depositary identified in the
prospectus supplement relating to such series. The global security or
global securities will represent and will be in a denomination or aggregate
denominations equal to the portion of the aggregate principal amount of
outstanding registered debt securities of the series to be represented by the
registered global security or securities. Unless it is exchanged in
whole or in part for debt securities in definitive registered form, a registered
global security may not be transferred, except as a whole in three
cases:
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by
the depositary for the registered global security to a nominee of the
depositary;
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by
a nominee of the depositary to the depositary or another nominee of the
depositary; and
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by
the depositary or any nominee to a successor of the depositary or a
nominee of the successor.
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The
prospectus supplement relating to a series of debt securities will describe the
specific terms of the depositary arrangement concerning any portion of that
series of debt securities to be represented by a registered global
security. We anticipate that the following provisions will generally
apply to all depositary arrangements.
Upon the
issuance of a registered global security, the depositary will credit, on its
book-entry registration and transfer system, the principal amounts of the debt
securities represented by the registered global security to the accounts of
persons that have accounts with the depositary. These persons are referred to as
“participants.” Any underwriters, agents or debtors participating in the
distribution of debt securities represented by the registered global security
will designate the accounts to be credited. Only participants or persons that
hold interests through participants will be able to beneficially own interests
in a registered global security. The depositary for a global security will
maintain records of beneficial ownership interests in a registered global
security for participants. Participants or persons that hold through
participants will maintain records of beneficial ownership interests in a global
security for persons other than participants. These records will be the only
means to transfer beneficial ownership in a registered global
security.
The
laws of some states may require that specified purchasers of securities take
physical delivery of the securities in definitive form. These laws may limit the
ability of those persons to own, transfer or pledge beneficial interests in
global securities.
So long
as the depositary, or its nominee, is the registered owner of a registered
global security, the depositary or its nominee will be considered the sole owner
or holder of the debt securities represented by the registered global security
for all purposes under the indenture. Except as set forth below, owners of
beneficial interests in a registered global security:
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may
not have the debt securities represented by a registered global security
registered in their names;
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will
not receive or be entitled to receive physical delivery of debt securities
represented by a registered global security in definitive form;
and
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will
not be considered the owners or holders of debt securities represented by
a registered global security under the
indenture.
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Accordingly,
each person owning a beneficial interest in a registered global security must
rely on the procedures of the depositary for the registered global security and,
if the person is not a participant, on the procedures of the participant through
which the person owns its interests, to exercise any rights of a holder under
the indenture applicable to the registered global security.
We
understand that, under existing industry practices, if we request any action of
holders, or if an owner of a beneficial interest in a registered global security
desires to give or take any action which a holder is entitled to give or take
under the indenture, the depositary for the registered global security would
authorize the participants holding the relevant beneficial interests to give or
take the action, and the participants would authorize beneficial owners owning
through the participants to give or take the action or would otherwise act upon
the instructions of beneficial owners holding through them.
Payment
of Interest on and Principal of Registered Global Securities
We will
make principal, premium, if any, and interest payments on debt securities
represented by a registered global security registered in the name of a
depositary or its nominee to the depositary or its nominee as the registered
owner of the registered global security. None of Cytori, the trustee,
or any paying agent for debt securities represented by a registered global
security will have any responsibility or liability for:
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any
aspect of the records relating to, or payments made on account of,
beneficial ownership interests in such registered global
security;
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maintaining,
supervising, or reviewing any records relating to beneficial ownership
interests;
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the
payments to beneficial owners of the global security of amounts paid to
the depositary or its nominee; or
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any
other matter relating to the actions and practices of the depositary, its
nominee or any of its participants.
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We expect
that the depositary, upon receipt of any payment of principal, premium or
interest in respect of the global security, will immediately credit
participants’ accounts with payments in amounts proportionate to their
beneficial interests in the principal amount of a registered global security as
shown on the depositary’s records. We also expect that payments by
participants to owners of beneficial interests in a registered global security
held through participants will be governed by standing instructions and
customary practices. This is currently the case with the securities
held for the accounts of customers registered in “street name.” Such
payments will be the responsibility of participants.
15
Exchange
of Registered Global Securities
We may
issue debt securities in definitive form in exchange for the registered global
security if both of the following occur:
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the
depositary for any debt securities represented by a registered global
security is at any time unwilling or unable to continue as depositary or
ceases to be a clearing agency registered under the Exchange Act;
and
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we
do not appoint a successor depositary within 90
days.
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In
addition, we may, at any time, determine not to have any of the debt securities
of a series represented by one or more registered global securities. In this
event, we will issue debt securities of that series in definitive form in
exchange for all of the registered global security or securities representing
those debt securities.
Our
Covenants
The
indenture includes covenants by us, including among other things that we will
make all payments of principal and interest at the times and places
required. The board resolution or supplemental indenture establishing
each series of debt securities may contain additional covenants, including
covenants which could restrict our right to incur additional indebtedness or
liens and to take certain actions with respect to our businesses and
assets.
Events
of Default
Unless
otherwise indicated in the applicable prospectus supplement, the following will
be events of default under the indenture with respect to each series of debt
securities issued under the indenture:
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failure
to pay when due any interest on any debt security of that series that
continues for 30 days;
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failure
to pay when due the principal of, or premium, if any, on, any debt
security of that series;
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default
in the payment of any sinking fund installment with respect to any debt
security of that series when due and
payable;
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failure
to perform any other covenant or agreement of ours under the indenture or
the supplemental indenture with respect to that series or the debt
securities of that series, continued for 90 days after written notice to
us by the trustee or holders of at least 25% in aggregate principal amount
of the outstanding debt securities of the series to which the covenant or
agreement relates;
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certain
events of bankruptcy, insolvency or similar proceedings affecting us and
our subsidiaries; and
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any
other event of default specified in any supplemental indenture under which
such series of debt securities is
issued.
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Except as
to certain events of bankruptcy, insolvency or similar proceedings affecting us
and except as provided in the applicable prospectus supplement, if any event of
default shall occur and be continuing with respect to any series of debt
securities under the indenture, either the trustee or the holders of at least
25% in aggregate principal amount of outstanding debt securities of such series
may accelerate the maturity of all debt securities of such
series. Upon certain events of bankruptcy, insolvency or similar
proceedings affecting us, the principal, premium, if any, and interest on all
debt securities of each series shall be immediately due and
payable.
After any
such acceleration, but before a judgment or decree based on acceleration has
been obtained by the trustee, the holders of a majority in aggregate principal
amount of each affected series of debt securities may waive all defaults with
respect to such series and rescind and annul such acceleration if all events of
default, other than the non-payment of accelerated principal, have been cured,
waived or otherwise remedied.
No holder
of any debt securities will have any right to institute any proceeding with
respect to the indenture or for any remedy under the indenture, unless such
holder shall have previously given to the trustee written notice of a continuing
event of default and the holders of at least 25% in aggregate principal amount
of the outstanding debt securities of the relevant series shall have made
written request and offered indemnity satisfactory to the trustee to institute
such proceeding as trustee, and the trustee shall not have received from the
holders of a majority in aggregate principal amount of the outstanding debt
securities of such series a direction inconsistent with such request and shall
have failed to institute such proceeding within 60 days. However, such
limitations do not apply to a suit instituted by a holder of a debt security for
enforcement of payment of the principal of and premium, if any, or interest on
such debt security on or after the respective due dates expressed in such debt
security.
Supplemental
Indentures
We and
the trustee may, at any time and from time to time, without prior notice to or
consent of any holders of debt securities after issuance of such debt
securities, enter into one or more supplemental indentures to, among other
things:
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add
guarantees to or secure any series of debt
securities;
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add
any additional Events of
Default;
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provide
for the succession of another person pursuant to the provisions of the
indenture relating to consolidations, mergers and sales of assets and the
assumption by such successor of our covenants, agreements, and
obligations, or to otherwise comply with the provisions of the indenture
relating to consolidations, mergers, and sales of
assets;
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surrender
any right or power conferred upon us under the indenture or to add to our
covenants further covenants, restrictions, conditions or provisions for
the protection of the holders of all or any series of debt
securities;
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cure
any ambiguity or to correct or supplement any provision contained in the
indenture, in any supplemental indenture or in any debt securities that
may be defective or inconsistent with any other provision contained
therein, , so long as any such action does not adversely affect the
interests of the holders of debt securities of any series in any material
respect;
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add
or change or eliminate any of the provisions of the indenture to extent as
shall be necessary to permit or facilitate the issuance of debt securities
in bear form, registrable or not registrable as to principal, and with or
without interest coupons;
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add
to or change any of the provisions of the indenture to permit the
defeasance and discharge of any series of debt securities pursuant to the
indenture;
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change,
or eliminate any of the provisions of the indenture provided that any such
change or elimination shall become effective only when there are no debt
securities outstanding of any series created prior to the execution of
such supplemental indenture;
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evidence
and provide for the acceptance of appointment by a successor or separate
trustee; and
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establish
the form or terms of debt securities of any series and to make any change
that does not adversely affect the interests of the holders of debt
securities.
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With the
consent of the holders of at least a majority in principal amount of debt
securities of each series affected by such supplemental indenture (each series
voting as one class), we and the trustee may enter into one or more supplemental
indentures for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the indenture or modifying in any manner
the rights of the holders of debt securities of each such series.
Notwithstanding
our rights and the rights of the trustee to enter into one or more supplemental
indentures with the consent of the holders of debt securities of the affected
series as described above, no such supplemental indenture to be entered into
after issuance of the debt securities shall, without the consent of the holder
of each outstanding debt security of the affected series, among other
things:
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change
the final maturity of the principal of, or any installment of interest on,
any debt securities;
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reduce
the principal amount of any debt securities or the rate of interest on any
debt securities;
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change
the currency in which any debt securities are
payable;
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release
any security interest that may have been granted with respect to such debt
securities;
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impair
the right of the holders to conduct a proceeding for any remedy available
to the trustee;
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reduce
the percentage in principal amount of any series of debt securities whose
holders must consent to an amendment or supplemental
indenture;
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modify
the ranking or priority of the
securities;
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reduce
any premium payable upon the redemption of any debt securities or change
the time at which any debt security may be redeemed;
or
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make
any change that adversely affects the relative rights of holders of
subordinated debt securities with respect to senior debt
securities.
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Satisfaction
and Discharge of the Indenture; Defeasance
Except to
the extent set forth in a supplemental indenture with respect to any series of
debt securities, we, at our election, may discharge the indenture and the
indenture shall generally cease to be of
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any
further effect with respect to that series of debt securities if (a) we have
delivered to the trustee for cancellation all debt securities of that series
(with certain limited exceptions) or (b) all debt securities of that series not
previously delivered to the trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year, and we have deposited with the
trustee the entire amount sufficient to pay at maturity or upon redemption all
such debt securities.
In
addition, we have a “legal defeasance option” (pursuant to which we may
terminate, with respect to the debt securities of a particular series, all of
our obligations under such debt securities and the indenture with respect to
such debt securities) and a “covenant defeasance option” (pursuant to which we
may terminate, with respect to the debt securities of a particular series, our
obligations with respect to such debt securities under certain specified
covenants contained in the indenture). If we exercise our legal
defeasance option with respect to a series of debt securities, payment of such
debt securities may not be accelerated because of an event of
default. If we exercise our covenant defeasance option with respect
to a series of debt securities, payment of such debt securities may not be
accelerated because of an event of default related to the specified
covenants.
We may
exercise our legal defeasance option or our covenant defeasance option with
respect to the debt securities of a series only if we irrevocably deposit in
trust with the trustee cash or U.S. government obligations (as defined in the
indenture) for the payment of principal, premium, if any, and interest with
respect to such debt securities to maturity or redemption, as the case may
be. In addition, to exercise either of our defeasance options, we
must comply with certain other conditions, including the delivery to the trustee
of an opinion of counsel to the effect that the holders of debt securities of
such series will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred (and, in the case of legal
defeasance only, such opinion of counsel must be based on a ruling from the
Internal Revenue Service or other change in applicable Federal income tax
law).
The
trustee will hold in trust the cash or U.S. government obligations deposited
with it as described above and will apply the deposited cash and the proceeds
from deposited U.S. government obligations to the payment of principal, premium,
if any, and interest with respect to the debt securities of the defeased
series. In the case of subordinated debt securities, the money and
U.S. government obligations held in trust will not be subject to the
subordination provisions of the indenture.
Mergers,
Consolidations and Certain Sales of Assets
Under the
proposed form of indenture, we may not (1) consolidate with or merge into any
other person or entity or permit any other person or entity to consolidate with
or merge into us in a transaction in which we are not the surviving entity, or
(2) transfer, lease or dispose of all or substantially all of our assets to any
other person or entity unless:
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the
resulting, surviving or transferee entity shall be a corporation organized
and existing under the laws of the United States or any state thereof and
such resulting, surviving or transferee entity shall expressly assume, by
supplemental indenture, all of our obligations under the debt securities
and the indenture;
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immediately
after giving effect to such transaction (and treating any indebtedness
which becomes an obligation of the resulting, surviving or transferee
entity as a result of such transaction as having been incurred by such
entity at the time of such transaction), no default or event of default
would occur or be continuing;
and
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we
shall have delivered to the trustee an officers’ certificate and an
opinion of counsel, each stating that such consolidation, merger or
transfer and such supplemental indenture (if any) comply with the
indenture.
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Governing
Law
The
indenture and the debt securities will be governed by the laws of the State of
New York.
No
Personal Liability of Directors, Officers, Employees and
Stockholders
No
director, officer, incorporator or stockholder of Cytori , as such, shall have
any liability for any obligations of Cytori under the debt securities or the
indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation, solely by reason of his, her, or its status as
director, officer, incorporator or stockholder of Cytori. By accepting a debt
security, each holder waives and releases all such liability, but only such
liability. The waiver and release are part of the consideration for issuance of
the debt securities. Nevertheless, such waiver may not be effective to waive
liabilities under the federal securities laws and it has been the view of the
SEC that such a waiver is against public policy.
Conversion
or Exchange Rights
Any debt
securities issued under the indenture may be convertible into or exchangeable
for shares of our equity securities. The terms and conditions of such conversion
or exchange will be set forth in the applicable prospectus supplement. Such
terms may include, among others, the following:
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the
conversion or exchange price;
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the
conversion or exchange period;
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provisions
regarding our ability or that of the holder to convert or exchange the
debt securities;
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events
requiring adjustment to the conversion or exchange price;
and
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provisions
affecting conversion or exchange in the event of our redemption of such
debt securities.
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Concerning
the Trustee
The
indenture provides that there may be more than one trustee with respect to one
or more series of debt securities. If there are different trustees
for different series of debt securities, each trustee will be a trustee of a
trust under a supplemental indenture separate and apart from the trust
administered by any other trustee under such indenture. Except as
otherwise indicated in this prospectus or any prospectus supplement, any action
permitted to be taken by a trustee may be taken by the trustee only with respect
to the one or more series of debt securities for which it is the trustee under
an indenture. Any trustee under the indenture or a supplemental
indenture may resign or be removed with respect to one or more series of debt
securities. All payments of principal of, premium, if any, and
interest on, and all registration, transfer, exchange, authentication and
delivery of (including authentication and delivery on original issuance of the
debt securities), the debt securities of a series will be effected by the
trustee with respect to such series at an office designated by the
trustee.
20
The
indenture contains limitations on the right of the trustee, should it become a
creditor of Cytori, to obtain payment of claims in certain cases or to realize
on certain property received in respect of any such claim as security or
otherwise. If the trustee acquires an interest that conflicts with
any duties with respect to the debt securities, the trustee is required to
either resign or eliminate such conflicting interest to the extent and in the
manner provided by the indenture.
Limitations
on Issuance of Bearer Debt Securities
Debt
securities in bearer form are subject to special U.S. tax requirements and may
not be offered, sold, or delivered within the United States or its possessions
or to a U.S. person, except in certain transactions permitted by U.S. tax
regulations. Investors should consult the relevant prospectus
supplement, in the event that bearer debt securities are issued for special
procedures and restrictions that will apply to such an offering.
DESCRIPTION
OF WARRANTS
We may issue securities warrants for
the purchase of debt securities, preferred stock or common
stock. Securities warrants may be issued independently or together
with debt securities, preferred stock or common stock and may be attached to or
separate from any offered securities. Each series of securities
warrants will be issued under a separate warrant agreement to be entered into
between us and a securities warrant agent. The securities warrant
agent will act solely as our agent in connection with the securities warrants
and will not assume any obligation or relationship of agency or trust for or
with any registered holders of securities warrants or beneficial owners of
securities warrants. This summary of some provisions of the
securities warrants is not complete. You should refer to the
securities warrant agreement, including the forms of securities warrant
certificate representing the securities warrants, relating to the specific
securities warrants being offered for the complete terms of the securities
warrant agreement and the securities warrants. The securities warrant
agreement, together with the terms of securities warrant certificate and
securities warrants, will be filed with the SEC in connection with the offering
of the specific securities warrants.
The particular terms of any issue of
securities warrants will be described in the prospectus supplement relating to
the issue. Those terms may include:
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the
title of such warrants;
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the
aggregate number of such warrants;
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the
price or prices at which such warrants will be
issued;
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the
currency or currencies (including composite currencies) in which the price
of such warrants may be payable;
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the
terms of the securities purchasable upon exercise of such warrants and the
procedures and conditions relating to the exercise of such
warrants;
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the
price at which the securities purchasable upon exercise of such warrants
may be purchased;
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the
date on which the right to exercise such warrants will commence and the
date on which such right shall
expire;
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any
provisions for adjustment of the number or amount of securities receivable
upon exercise of the warrants or the exercise price of the
warrants;
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if
applicable, the minimum or maximum amount of such warrants that may be
exercised at any one time;
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if
applicable, the designation and terms of the securities with which such
warrants are issued and the number of such warrants issued with each such
security;
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if
applicable, the date on and after which such warrants and the related
securities will be separately
transferable;
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information
with respect to book-entry procedures, if any;
and
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any
other terms of such warrants, including terms, procedures and limitations
relating to the exchange or exercise of such
warrants.
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The prospectus supplement relating to
any warrants to purchase equity securities may also include, if applicable, a
discussion of certain U.S. federal income tax and ERISA
considerations.
Securities warrants for the purchase of
preferred stock and common stock will be offered and exercisable for U.S.
dollars only. Securities warrants will be issued in registered form
only.
Each securities warrant will entitle
its holder to purchase the principal amount of debt securities or the number of
shares of preferred stock or common stock at the exercise price set forth in, or
calculable as set forth in, the applicable prospectus supplement.
After the close of business on the
expiration date, unexercised securities warrants will become void. We
will specify the place or places where, and the manner in which, securities
warrants may be exercised in the applicable prospectus supplement.
Upon receipt of payment and the warrant
certificate properly completed and duly executed at the corporate trust office
of the warrant agent or any other office indicated in the applicable prospectus
supplement, we will, as soon as practicable, forward the purchased
securities. If less than all of the warrants represented by the
warrant certificate are exercised, a new warrant certificate will be issued for
the remaining warrants.
Prior to the exercise of any securities
warrants to purchase debt securities, preferred stock or common stock, holders
of the securities warrants will not have any of the rights of holders of the
debt securities, preferred stock or common stock purchasable upon exercise,
including (i) in the case of securities warrants for the purchase of debt
securities, the right to receive payments of principal of, any premium or
interest on the debt securities purchasable upon exercise or to enforce
covenants in the applicable indenture, or (ii) in the case of securities
warrants for the purchase of preferred stock or common stock, the right to vote
or to receive any payments of dividends on the preferred stock or common stock
purchasable upon exercise.
DESCRIPTION
OF UNITS
The
following summarizes the terms of common stock warrants and preferred stock
warrants we may issue. We urge you to read the detailed provisions of
the stock warrant agreement that we will enter into with a stock warrant agent
we select at the time of issue.
General
We may
issue units comprised of one or more debt securities, shares of common stock,
shares of preferred stock and warrants in any combination. Each unit
will be issued so that the holder of the unit is also the holder of each
security included in the unit. Thus, the holder of a unit will have
the rights and
22
obligations
of a holder of each included security. The unit agreement under which
a unit is issued may provide that the securities included in the unit may not be
held or transferred separately, at any time or at any time before a specified
date.
We will
describe in the applicable prospectus supplement the terms of the series of
units, including, but not limited to:
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the
designation and terms of the units and of the securities comprising the
units, including whether and under what circumstances those securities may
be held or transferred separately;
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any
provisions of the governing unit agreement that differ from those
described below; and
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any
provisions for the issuance, payment, settlement, transfer or exchange of
the units or of the securities comprising the
units.
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The
provisions described in this section, as well as those described under
“Description of Common Stock and Preferred Stock,” “Description of Debt
Securities” and “Description of Warrants” will apply to each unit and to any
common stock, preferred stock, debt security or warrant included in each unit,
respectively.
Issuance
in Series
We may
issue units in such amounts and in numerous distinct series as we
determine.
Enforceability
of Rights by Holders of Units
Each unit
agent will act solely as our agent under the applicable unit agreement and will
not assume any obligation or relationship of agency or trust with any holder of
any unit. A single bank or trust company may act as unit agent for
more than one series of units. A unit agent will have no duty or
responsibility in case of any default by us under the applicable unit agreement
or unit, including any duty or responsibility to initiate any proceedings at law
or otherwise, or to make any demand upon us. Any holder of a unit
may, without the consent of the related unit agent or the holder of any other
unit, enforce by appropriate legal action its rights as holder under any
security included in the unit.
We, the
unit agents and any of their agents may treat the registered holder of any unit
certificate as an absolute owner of the units evidenced by that certificate for
any purpose and as the person entitled to exercise the rights attaching to the
units so requested, despite any notice to the contrary.
23
PLAN
OF DISTRIBUTION
We may
sell the securities being offered hereby in one or more of the following ways
from time to time:
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through
agents to the public or to
investors;
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to
underwriters for resale to the public or to
investors;
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directly
to investors; or
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through
a combination of any of these methods of
sale.
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We will set forth in a prospectus
supplement the terms of that particular offering of securities,
including:
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the
name or names of any agents or
underwriters;
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the
purchase price of the securities being offered and the proceeds we will
receive from the sale;
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any
over-allotment options under which underwriters may purchase additional
securities from us;
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any
agency fees or underwriting discounts and other items constituting agents’
or underwriters’ compensation;
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any
initial public offering price;
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any
discounts or concessions allowed or reallowed or paid to dealers;
and
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any
securities exchanges or markets on which such securities may be
listed.
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Agents
We may designate agents who agree to
use their reasonable efforts to solicit purchases of our securities for the
period of their appointment or to sell our securities on a continuing
basis.
Underwriters
If we use underwriters for a sale of
securities, the underwriters will acquire the securities for their own
account. The underwriters may resell the securities in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the securities will be subject to
the conditions set forth in the applicable underwriting
agreement. The underwriters will be obligated to purchase all the
securities of the series offered if they purchase any of the securities of that
series. We may change from time to time any initial public offering
price and any discounts or concessions the underwriters allow or reallow or pay
to dealers. We may use underwriters with whom we have a material
relationship. We will describe the nature of any such relationship in
any prospectus supplement naming any such underwriter. Only
underwriters we name in the prospectus supplement are underwriters of the
securities offered by the prospectus supplement.
Direct
Sales
We may also sell securities directly to
one or more purchasers without using underwriters or
agents. Underwriters, dealers and agents that participate in the
distribution of the securities may be
24
underwriters
as defined in the Securities Act, and any discounts or commissions they receive
from us and any profit on their resale of the securities may be treated as
underwriting discounts and commissions under the Securities Act. We
will identify in the applicable prospectus supplement any underwriters, dealers
or agents and will describe their compensation. We may have
agreements with the underwriters, dealers and agents to indemnify them against
specified civil liabilities, including liabilities under the Securities
Act. Underwriters, dealers and agents may engage in transactions with
or perform services for us in the ordinary course of their
businesses.
Trading
Markets and Listing of Securities
Unless otherwise specified in the
applicable prospectus supplement, each class or series of securities will be a
new issue with no established trading market, other than our common stock, which
is listed on the NASDAQ Global Market. We may elect to list any other
class or series of securities on any exchange or market, but we are not
obligated to do so. It is possible that one or more underwriters may
make a market in a class or series of securities, but the underwriters will not
be obligated to do so and may discontinue any market making at any time without
notice. We cannot give any assurance as to the liquidity of the
trading market for any of the securities.
Stabilization
Activities
Any underwriter may engage in
overallotment, stabilizing transactions, short covering transactions and penalty
bids in accordance with Regulation M under the Exchange
Act. Overallotment involves sales in excess of the offering size,
which create a short position. Stabilizing transactions permit bids
to purchase the underlying security so long as the stabilizing bids do not
exceed a specified maximum. Short covering transactions involve
purchases of the securities in the open market after the distribution is
completed to cover short positions. Penalty bids permit the
underwriters to reclaim a selling concession from a dealer when the securities
originally sold by the dealer are purchased in a covering transaction to cover
short positions. Those activities may cause the price of the
securities to be higher than it would otherwise be. If commenced, the
underwriters may discontinue any of these activities at any time.
Passive
Market Making
Any underwriters who are qualified
market makers on the NASDAQ Global Market may engage in passive market making
transactions in the securities on the NASDAQ Global Market in accordance with
Rule 103 of Regulation M, during the business day prior to the pricing of the
offering, before the commencement of offers or sales of the
securities. Passive market makers must comply with applicable volume
and price limitations and must be identified as passive market
makers. In general, a passive market maker must display its bid at a
price not in excess of the highest independent bid for such
security. If all independent bids are lowered below the passive
market maker’s bid, however, the passive market maker’s bid must then be lowered
when certain purchase limits are exceeded.
25
LEGAL
MATTERS
The validity of the issuance of the
securities offered by this prospectus will be passed upon for us by DLA Piper
LLP (US), San Diego, California. If the validity of any securities is
also passed upon by counsel for the underwriters of an offering of those
securities, that counsel will be named in the prospectus supplement relating to
that offering.
EXPERTS
The consolidated financial statements
and schedule of Cytori Therapeutics, Inc. as of December 31, 2007 and 2006, and
for each of the years in the three-year period ended December 31, 2007, and
management’s assessment of the effectiveness of internal control over financial
reporting as of December 31, 2007, have been incorporated by reference herein
and in the registration statement in reliance upon the reports of KPMG LLP,
independent registered public accounting firm, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and
auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current
reports, proxy statements and other information electronically with the SEC. You
may read and copy these reports, proxy statements and other information at the
SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549 or at
the SEC’s other public reference facilities. Please call the SEC at
1-800-SEC-0330 for more information about the operation of the public reference
room. You can request copies of these documents by writing to the SEC and paying
a fee for the copying costs. The SEC also maintains an Internet site that
contains reports, proxy and information statements, and other information
regarding issuers that file electronically with the SEC, including us. The SEC’s
Internet site can be found at http://www.sec.gov. In
addition, we make available on or through our Internet site copies of these
reports as soon as reasonably practicable after we electronically file or
furnish them to the SEC. Our Internet site can be found at http://www.cytoritx.com.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
We are allowed to incorporate by
reference information contained in documents that we file with the SEC. This
means that we can disclose important information to you by referring you to
those documents and that the information in this prospectus is not complete. You
should read the information incorporated by reference for more detail. We
incorporate by reference in two ways. First, we list below certain documents
that we have already filed with the SEC. The information in these documents is
considered part of this prospectus. Second, the information in documents that we
file in the future will update and supersede the current information in, and be
incorporated by reference in, this prospectus.
We incorporate by reference into this
prospectus the documents listed below, any filings we make with the SEC pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the
initial registration statement of which this prospectus is a part and prior to
the effectiveness of the registration statement, and any filings we make with
the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act from
the date of this prospectus until the termination of this offering (in each
case, except for the information furnished under Item 2.02 or Item 7.01 in any
current report on Form 8-K and Form 8-K/A):
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our
annual report on Form 10-K for the year ended December 31, 2007 filed
with the SEC on March 14, 2008, as amended on December 17, 2008 (File No.
000-32501-08688858);
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the
information specifically incorporated by reference into our annual report
on Form 10-K for the year ended December 31, 2007 from our definitive
proxy statement on Schedule 14A filed with the SEC on April 29, 2008 (File
No. 000-32501-08785770);
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our
quarterly report on Form 10-Q for the quarterly period ended March
31, 2008 filed with the SEC on May 9, 2008, as amended on December 17,
2008 (File No. 000-32501-08817088);
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our
quarterly report on Form 10-Q for the quarterly period ended June 30,
2008 filed with the SEC on August 11, 2008, as amended on December 17,
2008 (File No.
000-32501-081006313);
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our
quarterly report on Form 10-Q for the quarterly period ended
September 30, 2008 filed with the SEC on November 10, 2008, as amended on
December 17, 2008 (File No.
000-32501-081176037);
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·
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our
current report on Form 8-K filed with the SEC on February 6, 2008 (File
No. 000-32501-08581751);
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·
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our
current report on Form 8-K filed with the SEC on February 19, 2008 (File
No. 000-32501-08624415);
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·
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our
current report on Form 8-K filed with the SEC on February 29, 2008 (File
No. 000-32501-08656338);
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·
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our
current report on Form 8-K filed with the SEC on May 5, 2008 (File No.
000-32501-08800453);
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·
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our
current report on Form 8-K filed with the SEC on June 10, 2008 (File No.
000-32501-08890725);
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·
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our
current report on Form 8-K filed with the SEC on August 8, 2008 (File No.
000-32501-081000507);
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·
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our
current report on Form 8-K filed with the SEC on August 14, 2008 (File No.
000-32501-081020005);
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·
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our
current report on Form 8-K filed with the SEC on October 15, 2008 (File
No. 000-32501-081124493);
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·
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the
description of our common stock contained in our registration statement on
Form 10/A filed with the SEC on July 16, 2001 (File No.
000-32501-1682501); and
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·
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the
description of our Series RP Preferred Stock Purchase Rights contained in
our registration statement on Form 8-A filed with the SEC on May 30, 2003
(File No. . 000-32501-03725608), including any amendments or reports filed
for the purpose of updating the
description.
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We will provide each person, including
any beneficial owner, to whom a prospectus is delivered, a copy of any or all of
the information that has been incorporated by reference into this prospectus but
not delivered with this prospectus upon written or oral request at no cost to
the requester. Requests should be directed to: Cytori Therapeutics, Inc., 3020
Callan Road, San Diego, CA 92121, Attn: Investor Relations,
27
telephone:
(858) 458-0900.
This prospectus is part of a
registration statement that we filed with the SEC. The registration statement
contains more information than this prospectus regarding us and our common
stock, including certain exhibits and schedules. You can obtain a copy of the
registration statement from the SEC at the address listed above or from the
SEC’s Internet website.
You should rely only on the information
provided in and incorporated by reference into this prospectus or any prospectus
supplement. We have not authorized anyone else to provide you with different
information. You should not assume that the information in this prospectus or
any prospectus supplement is accurate as of any date other than the date on the
front cover of these documents.
Cytori
Therapeutics, Inc.
COMMON
STOCK
PREFERRED
STOCK
DEBT
SECURITIES
WARRANTS
AND
UNITS
PROSPECTUS
January
30, 2009
4,771,174 Units
CYTORI
THERAPEUTICS, INC.
Consisting
of Common Stock and Warrants
______________________________________
PROSPECTUS
SUPPLEMENT
______________________________________
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March
9, 2009
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