cytori_8k05072009equity.htm
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of
Report (Date of
earliest event reported): May 7,
2009
CYTORI THERAPEUTICS,
INC.
(Exact
name of registrant as specified in its charter)
Delaware
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000-32501
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33-0827593
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File
Number)
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(I.R.S.
Employer Identification Number)
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3020 Callan Road, San Diego,
California 92121
(Address
of principal executive offices, with zip code)
(858) 458-0900
(Registrant's
telephone number, including area code)
n/a
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General
Instruction A.2. below):
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o |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01 Entry
Into a Material Definitive Agreement
On May 7,
2009, Cytori Therapeutics, Inc. (the “Company”)
entered into a Securities Purchase Agreement with certain institutional
investors (the “Institutional
Investors” or the “Purchasers”),
relating to the private offering and sale of a total of 1,864,783 unregistered
shares of the Company’s common stock (the “Shares”)
with 175% warrant coverage at a purchase price of $2.28 per unit (the “Private
Placement”). The warrants will be exercisable for up to a
total of 3,263,380 unregistered shares of the Company’s common stock at an
exercise price of $2.62 per share (the “Warrant
Shares”). The warrants will have a five year term after their date of
issuance. The closing is expected to take place on or about May 11,
2009, subject to the satisfaction of customary closing conditions.
In
connection with the Private Placement, the Company also entered into a
Registration Rights Agreement dated May 7, 2009, with the Purchasers (the “Registration
Rights Agreement”) pursuant to which it has agreed to file, within
30 days of the closing of the Private Placement, a registration statement
with the Securities and Exchange Commission (“SEC”) to
register the Shares and Warrant Shares for resale, which registration statement
is required to become effective within 90 days following the closing (or in
the event the SEC reviews and has written comments to the registration statement
or any document incorporated by reference therein, then within 120 days
following the closing). The Company will be required to pay certain cash as
liquidated damages if it does not meet its registration obligations under the
Registration Rights Agreement.
The
Securities Purchase Agreement, the form of Warrant and the Registration Rights
Agreement are attached hereto as Exhibits 10.63, 10.64 and 10.65
respectively, and incorporated herein by reference. The press release announcing
the Private Placement is attached hereto as Exhibit 99.1 and incorporated
herein by reference. The foregoing description of the Securities Purchase
Agreement, the form of Warrant and the Registration Rights Agreement does not
purport to be complete and is qualified in its entirety by reference to the full
text of the Securities Purchase Agreement, the form of Warrant and the
Registration Rights Agreement attached hereto.
Item
3.02 Unregistered
Sale of Equity Securities
The
information set forth in Item 1.01 of this Current Report on Form 8-K that
relates to the unregistered sale of equity securities is incorporated by
reference into this Item 3.02.
The
aggregate offering price of the units to be sold in the Private Placement is
approximately $4.25 million.
The sale
of the units has not been registered under the Securities Act of 1933, as
amended (the “Securities
Act”). These securities will be sold to accredited investors in reliance
upon exemptions from registration under Section 4(2) of the Securities Act
and Rule 506 of Regulation D promulgated thereunder. These securities
may not be offered or sold in the United States absent registration under or
exemption from the Securities Act and any applicable state securities
laws.
(d) Exhibits. The following
material is filed as an exhibit to this Current Report on Form 8-K:
10.63
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Securities
Purchase Agreement, dated May 7, 2009, by and among Cytori Therapeutics,
Inc. and the Purchasers identified on the signature pages
thereto.
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10.64
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Form
of Warrant to Purchase Common Stock to be issued on or about May 11,
2009
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10.65
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Registration
Rights Agreement, dated May 7, 2009, by and among Cytori Therapeutics,
Inc. and the Purchasers identified on the signature pages
thereto.
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99.1
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Cytori
Therapeutics, Inc. Press Release, dated May 7,
2009.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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CYTORI THERAPEUTICS,
INC. |
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Date: May 7, 2009 |
By: /s/ Mark E.
Saad |
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Mark E.
Saad |
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Chief Financial Officer |
exhibit1063_spa.htm
Exhibit
10.63
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”) is dated as of
May 7, 2009, by and among Cytori Therapeutics, Inc., a Delaware corporation (the
“Company”), and each
purchaser identified on the signature pages hereto (each, including its
successors and assigns, a “Purchaser” and collectively,
the “Purchasers”).
RECITALS
A. The
Company and each Purchaser is executing and delivering this Agreement in
reliance upon the exemption from securities registration afforded by
Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”), and
Rule 506 of Regulation D (“Regulation D”) as
promulgated by the United States Securities and Exchange Commission (the “Commission”) under the
Securities Act.
B. Each
Purchaser, severally and not jointly, wishes to purchase, and the Company wishes
to sell, upon the terms and conditions stated in this Agreement, that aggregate
number of (i) shares of common stock, par value $0.001 per share (the “Common Stock”), of the
Company, set forth below such Purchaser’s name on the signature page of this
Agreement (which aggregate amount for all Purchasers together shall be 1,859,783
shares of Common Stock and shall be collectively referred to herein as the
“Shares”) and (ii)
warrants, in substantially the form attached hereto as Exhibit A (the “Warrants”), to acquire up to
that number of additional shares of Common Stock equal to 175% of the number of
Shares purchased by such Purchaser (rounded up to the nearest whole share) (the
shares of Common Stock issuable upon exercise of or otherwise pursuant to the
Warrants collectively are referred to herein as the “Warrant
Shares”). The Shares, Warrants and Warrant Shares
collectively are referred to herein as the “Securities”.
C. Contemporaneously
with the execution and delivery of this Agreement, the parties hereto are
executing and delivering a Registration Rights Agreement, substantially in the
form attached hereto as Exhibit B (the
“Registration Rights
Agreement”), pursuant to which, among other things, the Company will
agree to provide certain registration rights with respect to the Shares and
Warrant Shares under the Securities Act and the rules and regulations
promulgated thereunder and applicable state securities laws.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Company and the Purchasers hereby agree as
follows:
ARTICLE
I.
DEFINITIONS
1.1 Definitions. In
addition to the terms defined elsewhere in this Agreement, for all purposes of
this Agreement, the following terms shall have the meanings indicated in this
Section 1.1:
“Action” means any action,
suit, inquiry, notice of violation, proceeding (including any partial proceeding
such as a deposition) or investigation pending or, to the Company’s Knowledge,
threatened in writing against the Company, any Subsidiary or any of their
respective properties or any officer, director or employee of the Company or any
Subsidiary acting in his or her capacity as an officer, director or employee
before or by any federal, state, county, local or foreign court, arbitrator,
governmental or administrative agency, regulatory authority, stock market, stock
exchange or trading facility.
“Agreement” shall have the
meaning ascribed to such term in the Preamble.
“Business Day” means a day,
other than a Saturday or Sunday, on which banks in New York City are open for
the general transaction of business.
“Buy-In” has the meaning set
forth in Section 4.1(f).
“Buy-In Price” has the meaning
set forth in Section 4.1(f).
“Closing” means the closing of
the purchase and sale of the Shares and Warrants pursuant to this
Agreement.
“Closing Bid Price” means,
for any security as of any date, the last closing price for such security on the
Principal Trading Market, as reported by Bloomberg, or, if the Principal Trading
Market begins to operate on an extended hours basis and does not designate the
closing bid price then the last bid price of such security prior to
4:00:00 p.m., New York City Time, as reported by Bloomberg, or, if the
Principal Trading Market is not the principal securities exchange or trading
market for such security, the last closing price of such security on the
principal securities exchange or trading market where such security is listed or
traded as reported by Bloomberg, or if the foregoing do not apply, the last
closing price of such security in the over-the-counter market on the electronic
bulletin board for such security as reported by Bloomberg, or, if no closing bid
price is reported for such security by Bloomberg, the average of the bid prices
of any market makers for such security as reported in the “pink sheets” by Pink
Sheets LLC (formerly the National Quotation Bureau, Inc.). If the Closing Bid
Price cannot be calculated for a security on a particular date on any of the
foregoing bases, the Closing Bid Price of such security on such date shall be
the fair market value as mutually determined by the Company and the holder. If
the Company and the holder are unable to agree upon the fair market value of
such security, then the Company shall, within two Business Days submit via
facsimile (a) the disputed determination to an independent, reputable
investment bank selected by the Company and approved by the holder or (b) the
disputed arithmetic calculation to the Company’s independent, outside
accountant. The Company shall cause at its expense the investment bank or the
accountant, as the case may be, to perform the determinations or calculations
and notify the Company and the holder of the results no later than ten Business
Days from the time it receives the disputed determinations or calculations. Such
investment bank’s or accountant’s determination or calculation, as the case may
be, shall be binding upon all parties absent demonstrable error. All such
determinations shall be appropriately adjusted for any stock dividend, stock
split, stock combination or other similar transaction during the applicable
calculation period.
“Closing Date” means the
Trading Day when all of the Transaction Documents have been executed and
delivered by the applicable parties thereto, and all of the conditions set forth
in Sections 2.1, 2.2, 5.1 and 5.2 hereof are satisfied, or such other date as
the parties may agree.
“Commission” has the meaning
set forth in the Recitals.
“Common Stock” has the meaning
set forth in the Recitals, and also includes any securities into which the
Common Stock may hereafter be reclassified or changed.
“Common Stock Equivalents”
means any securities of the Company or any Subsidiary which would entitle the
holder thereof to acquire at any time Common Stock, including, without
limitation, any debt, preferred stock, rights, options, warrants or other
instrument that is at any time convertible into or exchangeable for, or
otherwise entitles the holder thereof to receive, Common Stock or other
securities that entitle the holder to receive, directly or indirectly, Common
Stock.
“Company Counsel” means DLA
Piper LLP (US).
“Company Deliverables” has the
meaning set forth in Section 2.2(a).
“Company’s Knowledge” means
with respect to any statement made to the knowledge of the Company, that the
statement is based upon the actual knowledge of the executive officers of the
Company having responsibility for the matter or matters that are the subject of
the statement.
“Control” (including the terms
“controlling”, “controlled by” or “under common control with”) means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
“Disclosure Materials” has the
meaning set forth in Section 3.1(h).
“Effective Date” means the
date on which the initial Registration Statement required by Section 2(a) of the
Registration Rights Agreement is first declared effective by the
Commission.
“Effectiveness Deadline” means
the date on which the initial Registration Statement is required to be declared
effective by the Commission under the terms of the Registration Rights
Agreement.
“Environmental Laws” has the
meaning set forth in Section 3.1(l).
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, or any successor statute, and the
rules and regulations promulgated thereunder.
“GAAP” means U.S. generally
accepted accounting principles, as applied by the Company.
“Indemnified Person” has the
meaning set forth in Section 4.9(b).
“Intellectual Property” has
the meaning set forth in Section 3.1(r).
“Irrevocable Transfer Agent
Instructions” means, with respect to the Company, the Irrevocable
Transfer Agent Instructions, in the form of Exhibit E ,
executed by the Company and delivered to and acknowledged in writing by the
Transfer Agent.
“Lien” means any lien, charge,
claim, encumbrance, security interest, right of first refusal, preemptive right
or other restrictions of any kind.
“Material Adverse Effect”
means any of (i) a material and adverse effect on the legality, validity or
enforceability of any Transaction Document, (ii) a material and adverse effect
on the results of operations, assets, business or financial condition of the
Company and the Subsidiaries, taken as a whole, or (iii) any adverse impairment
to the Company's ability to perform in any material respect on a timely basis
its obligations under any Transaction Document, except that any of the
following, either alone or in combination, shall not be deemed a Material
Adverse Effect: (A) effects caused by changes or circumstances affecting general
market conditions in the U.S. economy or which are generally applicable to the
industry in which the Company operates, (B) effects resulting from or relating
to the announcement or disclosure of the sale of the Securities or other
transactions contemplated by this Agreement, or (C) effects caused by any event,
occurrence or condition resulting from or relating to the taking of any action
in accordance with this Agreement.
“Material Contract” means any
contract of the Company that was filed (or should have been filed) as an exhibit
to the SEC Reports pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation
S-K.
“Material Permits” has the
meaning set forth in Section 3.1(p).
“New York Courts” means the
state and federal courts sitting in the City of New York, Borough of
Manhattan.
“Outside Date” means the
thirtieth day following the date of this Agreement; provided that if such day is
not a Business Day, the first day following such day that is a Business
Day.
“Person” means an individual,
corporation, partnership, limited liability company, trust, business trust,
association, joint stock company, joint venture, sole proprietorship,
unincorporated organization, governmental authority or any other form of entity
not specifically listed herein.
“Principal Trading Market”
means the Trading Market on which the Common Stock is primarily listed on and
quoted for trading, which, as of the date of this Agreement and the Closing
Date, shall be the NASDAQ Global Market.
“Proceeding” means an action,
claim, suit, investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition), whether commenced or
threatened.
“Purchase Price” means $2.28
per unit.
“Purchaser Deliverables” has
the meaning set forth in Section 2.2(b).
“Purchaser Party” has the
meaning set forth in Section 4.9(a).
“Registration Rights
Agreement” has the meaning set forth in the Recitals.
“Registration Statement” means
a registration statement meeting the requirements set forth in the Registration
Rights Agreement and covering the resale by the Purchasers of the Registrable
Securities (as defined in the Registration Rights Agreement).
“Required Approvals” has the
meaning set forth in Section 3.1(e).
“Rule 144” means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as such
Rule.
“SEC Reports” has the meaning
set forth in Section 3.1(h).
“Secretary’s Certificate” has
the meaning set forth in Section 2.2(a)(vi).
“Securities Act” means the
Securities Act of 1933, as amended.
“Short Sales” include, without
limitation, all “short sales” as defined in Rule 200 promulgated under
Regulation SHO under the Exchange Act, whether or not against the box, and
all types of direct and indirect stock pledges, forward sale contracts, options,
puts, calls, short sales, swaps, “put equivalent positions” (as defined in
Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other
transactions through non-U.S. broker dealers or foreign regulated
brokers.
“Subscription Amount” means
with respect to each Purchaser, the aggregate amount to be paid for the Shares
and Warrants purchased hereunder as indicated on such Purchaser’s signature page
to this Agreement next to the heading “Aggregate Purchase Price (Subscription
Amount).”
“Subsidiary” means any entity
in which the Company, directly or indirectly, owns sufficient capital stock or
holds a sufficient equity or similar interest such that it is consolidated with
the Company in the financial statements of the Company.
“Trading Affiliate” has the
meaning set forth in Section 3.2(h).
“Trading Day” means (i) a
day on which the Common Stock is listed or quoted and traded on its Principal
Trading Market (other than the OTC Bulletin Board), or (ii) if the Common
Stock is not listed on a Trading Market (other than the OTC Bulletin Board), a
day on which the Common Stock is traded in the over-the-counter market, as
reported by the OTC Bulletin Board, or (iii) if the Common Stock is not
quoted on any Trading Market, a day on which the Common Stock is quoted in the
over-the-counter market as reported in the “pink sheets” by Pink Sheets LLC (or
any similar organization or agency succeeding to its functions of reporting
prices); provided, that
in the event that the Common Stock is not listed or quoted as set forth in (i),
(ii) and (iii) hereof, then Trading Day shall mean a Business
Day.
“Trading Market” means
whichever of the New York Stock Exchange, the American Stock Exchange, the
NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market
or the OTC Bulletin Board on which the Common Stock is listed or quoted for
trading on the date in question.
“Transaction Documents” means
this Agreement, the schedules and exhibits attached hereto, the Warrants, the
Registration Rights Agreement, the Irrevocable Transfer Agent Instructions and
any other documents or agreements executed in connection with the transactions
contemplated hereunder.
“Transfer Agent” means
Computershare Investor Services, or any successor transfer agent for the
Company.
“Warrants” has the meaning set
forth in the Recitals to this Agreement.
“Warrant Shares” has the
meaning set forth in the Recitals to this Agreement.
ARTICLE
II.
PURCHASE
AND SALE
2.1 Closing.
(a) Amount. Subject
to the terms and conditions set forth in this Agreement, at the Closing the
Company shall issue and sell to each Purchaser, and each Purchaser shall,
severally and not jointly, purchase from the Company, such number of Shares
equal to the quotient resulting from dividing (i) the Subscription Amount for
such Purchaser by (ii) the Purchase Price, rounded down to the nearest whole
Share. In addition, each Purchaser shall receive a Warrant to
purchase that number of Warrant Shares equal to 175% of the number of Shares
purchased by such Purchaser, as indicated below such Purchaser’s name on the
signature page to this Agreement. The Warrants shall have an exercise
price equal to $2.62 per Warrant Share.
(b) Closing. The
Closing of the purchase and sale of the Shares and Warrants shall take place at
the offices of DLA Piper LLP (US), 4365 Executive Drive, Suite 1100, San Diego,
California, 92121, on the Closing Date or at such other locations or remotely by
facsimile transmission or other electronic means as the parties may mutually
agree.
(c) Form of
Payment. On the Closing Date, each Purchaser shall wire its
Subscription Amount, in United States dollars and in immediately available
funds, to an account designated by the Company as set forth on Exhibit G
hereto. On the Closing Date, (a) the Company shall irrevocably
instruct the Transfer Agent to deliver to each Purchaser one or more stock
certificates, free and clear of all restrictive and other legends (except as
expressly provided in Section 4.1(b) hereof), evidencing the number of Shares
such Purchaser is purchasing as is set forth on such Purchaser’s signature page
to this Agreement next to the heading “Number of Shares to be Acquired”, within
three (3) Business Days after the Closing and (b) the Company shall issue to
each Purchaser a Warrant pursuant to which such Purchaser shall have the right
to acquire such number of Warrant Shares as is set forth on such Purchaser’s
signature page to this Agreement next to the heading “Underlying Shares Subject
to Warrant”, in each case duly executed on behalf of the Company and registered
in the name of such Purchaser.
2.2 Closing Deliveries.
(a) On
or prior to the Closing, the Company shall issue, deliver or cause to be
delivered to each Purchaser the following (the “Company
Deliverables”):
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(i)
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this
Agreement, duly executed by the
Company;
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(ii)
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facsimile
copies of one or more stock certificates, free and clear of all
restrictive and other legends (except as provided in Section 4.1(b)
hereof), evidencing the Shares subscribed for by Purchaser hereunder,
registered in the name of such Purchaser as set forth on the Stock
Certificate and Warrant Questionnaire included as Exhibit C-2
hereto (the “ Stock
Certificates”), with the original Stock Certificates sent within
three (3) Business Days of
Closing;
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(iii)
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the
Registration Rights Agreement, duly executed by the
Company;
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(iv)
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duly
executed Irrevocable Transfer Agent Instructions acknowledged in writing
by the Transfer Agent;
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(v)
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a
certificate of the Secretary of the Company (the “Secretary’s
Certificate”), dated as of the Closing Date, (a) certifying
the resolutions adopted by the Board of Directors of the Company or a duly
authorized committee thereof approving the transactions contemplated by
this
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Agreement
and the other Transaction Documents and the issuance of the Securities,
(b) certifying the current versions of the certificate or articles of
incorporation, as amended, and by-laws of the Company and
(c) certifying as to the signatures and authority of persons signing
the Transaction Documents and related documents on behalf of the Company,
in the form attached hereto as Exhibit E
;
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(vi)
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the
Compliance Certificate referred to in
Section 5.1(g);
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(vii)
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a
Warrant, executed by the Company and registered in the name of such
Purchaser as set forth on the Stock Certificate and Warrant Questionnaire
included as Exhibit C-2
hereto, pursuant to which such Purchaser shall have the right to acquire
such number of Warrant Shares equal to 175% of the number of Shares
issuable to such Purchaser pursuant to this Agreement, rounded up to the
nearest whole share, on the terms set forth
therein;
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(b) On
or prior to the Closing, each Purchaser shall deliver or cause to be delivered
to the Company the following (the “Purchaser
Deliverables”):
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(i)
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this
Agreement, duly executed by such
Purchaser;
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(ii)
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its
Subscription Amount, in United States dollars and in immediately available
funds, in the amount set forth as the “Purchase Price” indicated below
such Purchaser’s name on the applicable signature page hereto under the
heading “Aggregate Purchase Price (Subscription Amount)” by wire transfer
to the escrow account set forth on Exhibit G
attached hereto;
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(iii)
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the
Registration Rights Agreement, duly executed by such
Purchaser;
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(iv)
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a
fully completed and duly executed Selling Stockholder Questionnaire in the
form attached as Annex B to the Registration Rights Agreement;
and
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(v)
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a
fully completed and duly executed Accredited Investor Questionnaire,
reasonably satisfactory to the Company, and Stock Certificate and Warrant
Questionnaire in the forms attached hereto as Exhibits C-1 and C-2 ,
respectively.
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ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1 Representations and
Warranties of the Company. The Company hereby represents and warrants as
of the date hereof and the Closing Date (except for the representations and
warranties that speak as of a specific date, which shall be made as of such
date), to each of the Purchasers that, except as set forth in the Schedules
delivered herewith or disclosed in the SEC Reports:
(a) Subsidiaries. The
Company has no direct or indirect Subsidiaries other than those listed in Schedule 3.1(a)
hereto. Except as disclosed in Schedule 3.1(a)
hereto, the Company owns, directly or indirectly, all of the capital stock or
comparable equity interests of each Subsidiary free and clear of any and all
Liens which could reasonably be expected to have a Material Adverse Effect, and
all the issued and outstanding shares of capital stock or comparable equity
interest of each Subsidiary are validly issued and are fully paid,
non-assessable and free of preemptive and similar rights to subscribe for or
purchase securities.
(b) Organization and
Qualification. The Company and each of its Subsidiaries is an entity duly
incorporated or otherwise organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization (as
applicable), with the requisite corporate power and authority to own or lease
and use its properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation of any of the
provisions of its respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. The Company and each of its
Subsidiaries is duly qualified to conduct business and is in good standing as a
foreign corporation or other entity in each jurisdiction in which the nature of
the business conducted or property owned by it makes such
qualification
necessary, except where the failure to be so qualified or in good standing, as
the case may be, would not have a Material Adverse Effect.
(c) Authorization; Enforcement;
Validity. The Company has the requisite corporate power and authority to
enter into and to consummate the transactions contemplated by each of the
Transaction Documents to which it is a party and otherwise to carry out its
obligations hereunder and thereunder. The Company’s execution and delivery of
each of the Transaction Documents to which it is a party and the consummation by
it of the transactions contemplated hereby and thereby (including, but not
limited to, the sale and delivery of the Securities and the reservation for
issuance and the subsequent issuance of the Warrant Shares upon exercise of the
Warrants) have been duly authorized by all necessary corporate action on the
part of the Company, and no further corporate action is required by the Company,
its Board of Directors or its stockholders in connection therewith other than in
connection with the Required Approvals. Each of the Transaction Documents to
which it is a party has been (or upon delivery will have been) duly executed by
the Company and is, or when delivered in accordance with the terms hereof, will
constitute the legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except (i) as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors’ rights and remedies or by
other equitable principles of general, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions
may be limited by applicable law. Except for Material Contracts, there are no
stockholder agreements, voting agreements, or other similar arrangements with
respect to the Company’s capital stock to which the Company is a party or, to
the Company’s Knowledge, between or among any of the Company’s
stockholders.
(d) No Conflicts. The
execution, delivery and performance by the Company of the Transaction Documents
to which it is a party and the consummation by the Company of the transactions
contemplated hereby or thereby (including, without limitation, the issuance of
the Securities and the reservation for issuance and issuance of the Warrant
Shares) do not and will not (i) conflict with or violate any provisions of
the Company’s or any Subsidiary’s certificate or articles of incorporation,
bylaws or otherwise result in a violation of the organizational documents of the
Company, (ii) conflict with, or constitute a default (or an
event that with notice or lapse of time or both would result in a default)
under, result in the creation of any Lien upon any of the properties or assets
of the Company or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of,
any Material Contract, or (iii) subject to the Required Approvals, conflict with
or result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Company is subject (including federal and state securities laws and
regulations and the rules and regulations, assuming the correctness of the
representations and warranties made by the Purchasers herein, of any
self-regulatory organization to which the Company or its securities are subject,
including all applicable Trading Markets), or by which any property or asset of
the Company is bound or affected, except in the case of clauses (ii) and
(iii) such as would not, individually or in the aggregate, have a Material
Adverse Effect.
(e) Filings, Consents and
Approvals. Neither the Company nor any of its Subsidiaries is required to
obtain any consent, waiver, authorization or order of, give any notice to, or
make any filing or registration with, any court or other federal, state, local
or other governmental authority or other Person in connection with the
execution, delivery and performance by the Company of the Transaction Documents
(including, without limitation, the issuance of the Securities and the
reservation for issuance and issuance of the Warrant Shares), other than
(i) the filing with the Commission of one or more Registration Statements
in accordance with the requirements of the Registration Rights Agreement,
(ii) filings required by applicable state securities laws, (iii) the
filing of a Notice of Sale of Securities on Form D with the Commission
under Regulation D of the Securities Act, (iv) the filing of any
requisite notices and/or application(s) to the Principal Trading Market for the
issuance and sale of the Common Stock and the listing of the Common Stock for
trading or quotation, as the case may be, thereon in the time and manner
required thereby, (v) the
filings
required in accordance with Section 4.6 of this Agreement and
(vi) those that have been made or obtained prior to the date of this
Agreement (collectively, the “Required
Approvals”).
(f) Issuance of the
Securities. The Shares have been duly authorized and, when issued and
paid for in accordance with the terms of the Transaction Documents, will be duly
and validly issued, fully paid and nonassessable and free and clear of all
Liens, other than restrictions on transfer provided for in the Transaction
Documents or imposed by applicable securities laws, and shall not be subject to
preemptive or similar rights. The Warrants have been duly authorized
and, when issued and paid for in accordance with the terms of the Transaction
Documents, will be duly and validly issued, free and clear of all Liens, other
than restrictions on transfer provided for in the Transaction Documents or
imposed by applicable securities laws, and shall not be subject to preemptive or
similar rights of stockholders. The Warrant Shares issuable upon exercise of the
Warrants have been duly authorized and, when issued and paid for in accordance
with the terms of the Transaction Documents and the Warrants, will be duly and
validly issued, fully paid and nonassessable, free and clear of all Liens, other
than restrictions on transfer provided for in the Transaction Documents or
imposed by applicable securities laws, and shall not be subject to preemptive or
similar rights of stockholders. Assuming the accuracy of the
representations and warranties of the Purchasers in this Agreement, the
Securities will be issued in compliance with all applicable federal and state
securities laws. As of the Closing Date, the Company shall have
reserved from its duly authorized capital stock the number of shares of Common
Stock issuable upon exercise of the Warrants (without taking into account any
limitations on the exercise of the Warrants set forth in the
Warrants). The Company shall, so long as any of the Warrants are
outstanding, take all action necessary to reserve and keep available out of its
authorized and unissued capital stock, solely for the purpose of effecting the
exercise of the Warrants, 100% of the number of shares of Common Stock issuable
upon exercise of the outstanding Warrants (without taking into account any
limitations on the exercise of the outstanding Warrants set forth in the
Warrants).
(g) Capitalization. The
number of shares and type of all authorized, issued and outstanding capital
stock, options and other securities of the Company (whether or not presently
convertible into or exercisable or exchangeable for shares of capital stock of
the Company) has been set forth in the SEC Reports and has changed since the
date of such SEC Reports only due to stock grants or other equity awards or
stock option and warrant exercises that do not, individually or in the
aggregate, have a material effect on the issued and outstanding capital stock,
options and other securities. All of the outstanding shares of capital stock of
the Company are duly authorized, validly issued, fully paid and non-assessable,
have been issued in compliance in all material respects with all applicable
federal and state securities laws, and none of such outstanding shares was
issued in violation of any preemptive rights or similar rights to subscribe for
or purchase any capital stock of the Company. Except as specified in the SEC
Reports: (i) no shares of the Company’s outstanding capital stock are
subject to preemptive rights or any other similar rights; (ii) there are no
outstanding options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into, or exercisable or exchangeable for, any shares of capital
stock of the Company, or contracts, commitments, understandings or arrangements
by which the Company is or may become bound to issue additional shares of
capital stock of the Company or options, warrants, scrip, rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities
or rights convertible into, or exercisable or exchangeable for, any shares of
capital stock of the Company, other than those issued or granted pursuant to
Material Contracts or equity or incentive plans or arrangements described in the
SEC Reports; (iii) there are no material outstanding debt securities,
notes, credit agreements, credit facilities or other
agreements, documents or instruments evidencing indebtedness of the Company or
by which the Company is bound; (iv) to the Company’s Knowledge, there are
no financing statements securing obligations in any material amounts, either
singly or in the aggregate, filed in connection with the Company;
(v) except as identified in the Registration Rights Agreement, there are no
agreements or arrangements under which the Company is obligated to register the
sale of any of their securities under the Securities Act; (vi) there are no
outstanding securities or instruments of the Company or which contain any
redemption or similar provisions, and there are no contracts, commitments,
understandings or arrangements by which the Company is or may become bound to
redeem a security of the Company; (vii) there are no securities or
instruments containing anti-dilution or similar provisions that will be
triggered by the issuance of the Securities; (viii) the Company does not have
any stock appreciation rights or “phantom stock” plans or
agreements
or any similar plan or agreement; and (ix) the Company has no liabilities
or obligations required to be disclosed in the SEC Reports but not so disclosed
in the SEC Reports, other than those incurred in the ordinary course of the
Company’s businesses and which, individually or in the aggregate, do not or
would not have a Material Adverse Effect.
(h) SEC Reports; Disclosure
Materials. The Company has filed all reports, schedules, forms,
statements and other documents required to be filed by it under the Exchange
Act, including pursuant to Section 13(a) or 15(d) thereof, for the twelve months
preceding the date hereof (or such shorter period as the Company was required by
law or regulation to file such material) (the foregoing materials, including the
exhibits thereto and documents incorporated by reference therein, being
collectively referred to herein as the “SEC Reports” and together
with this Agreement and the Schedules to this Agreement, and including the items
set forth in Schedule
3.1(h)-2 and Schedule 3.1(h)-3
hereto the “Disclosure
Materials”), on a timely basis or has received a valid extension of such
time of filing and has filed any such SEC Reports prior to the expiration of any
such extension. As of their respective filing dates, or to the extent corrected
by a subsequent restatement or subsequent filings, the SEC Reports complied in
all material respects with the requirements of the Securities Act and the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder, and, except as corrected by subsequent filings, none of the SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The Company has never been an issuer
subject to Rule 144(i) under the Securities Act.
(i) Financial Statements.
The financial statements of the Company included in the SEC Reports comply in
all material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of
filing (or to the extent corrected by a subsequent restatement). Such financial
statements have been prepared in accordance with GAAP applied on a consistent
basis during the periods involved, except as may be otherwise specified in such
financial statements or the notes thereto and except that unaudited financial
statements may not contain all footnotes required by GAAP, and fairly present in
all material respects the financial position of the Company and its consolidated
subsidiaries taken as a whole as of and for the dates thereof and the results of
operations and cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal, year-end audit adjustments.
(j) Tax Matters. The
Company (i) has prepared and filed all foreign, federal and state income
and all other tax returns, reports and declarations required by any jurisdiction
to which it is subject, (ii) has paid all taxes and other governmental
assessments and charges that are material in amount, shown or determined to be
due on such returns, reports and declarations, except those being contested in
good faith, with respect to which adequate reserves have been set aside on the
books of the Company and (iii) has set aside on its books provisions
reasonably adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply, except, in the
case of clauses (i) and (ii) above, where the failure to so pay or
file any such tax, assessment, charge or return would not have a Material
Adverse Effect.
(k) Material Changes.
Since the date of the latest financial statements included within the SEC
Reports, except as specifically disclosed in the SEC Reports or in the items
identified in Schedule
3.1(h)-2 hereto, (i) there have been no events, occurrences or
developments that have had or would reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect, (ii) the
Company has not incurred any material liabilities (contingent or otherwise)
other than (A) trade payables, accrued expenses and other liabilities
incurred in the ordinary course of business consistent with past practice and
(B) liabilities not required to be reflected in the Company’s financial
statements pursuant to GAAP or required to be disclosed in filings made with the
Commission, (iii) the Company has not altered materially its method of
accounting or the manner in which it keeps its accounting books and records,
(iv) the Company has not declared or made any dividend or distribution of
cash or other property to its stockholders or purchased, redeemed or made any
agreements to purchase or redeem any shares of its capital stock (other
than in
connection with repurchases of unvested stock issued to employees of the
Company), (v) the Company has not issued any equity securities to any
officer, director or Affiliate, except Common Stock (A) issued in the ordinary
course as dividends on outstanding preferred stock or (B) issued pursuant to
existing Company stock option or stock purchase plans or executive and director
corporate arrangements disclosed in the SEC Reports or (C) issued pursuant to
other existing agreements disclosed in the SEC Reports and (vi) there has
not been any material change or amendment to, or any waiver of any material
right by the Company under, any Material Contract under which the Company or any
of its Subsidiaries is bound or subject. Except for the transactions
contemplated by this Agreement, no event, liability or development has occurred
or exists with respect to the Company or its Subsidiaries or their respective
business, properties, operations or financial condition that would be required
to be disclosed by the Company under applicable securities laws at the time this
representation is made that has not been publicly disclosed at least one Trading
Day prior to the date that this representation is made.
(l) Environmental
Matters. To the Company’s Knowledge, neither the Company nor any of its
Subsidiaries (i) is in violation of any statute, rule, regulation, decision
or order of any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or human exposure
to hazardous or toxic substances (collectively, “Environmental Laws”),
(ii) owns or operates any real property contaminated with any substance
that is in violation of any Environmental Laws, (iii) is liable for any
off-site disposal or contamination pursuant to any Environmental Laws, or
(iv) is subject to any claim relating to any Environmental Laws; which
violation, contamination, liability or claim has had or would have, individually
or in the aggregate, a Material Adverse Effect; and, to the Company’s Knowledge,
there is no pending or threatened investigation that might lead to such a
claim.
(m) Litigation. To the
Company’s Knowledge, there is no Action which (i) adversely affects or
challenges the legality, validity or enforceability of any of the Transaction
Documents or the Securities or (ii) except as specifically disclosed in the
SEC Reports, is reasonably likely to have a Material Adverse Effect,
individually or in the aggregate, if there were an unfavorable decision. The
Commission has not issued any stop order or other order suspending the
effectiveness of any registration statement filed by the Company or any of its
Subsidiaries under the Exchange Act or the Securities Act.
(n) Employment Matters.
No material labor dispute exists or, to the Company’s Knowledge, is imminent
with respect to any of the employees of the Company which would have a Material
Adverse Effect. None of the Company’s employees is a member of a union that
relates to such employee’s relationship with the Company, and neither the
Company nor any of its Subsidiaries is a party to a collective bargaining
agreement, and the Company and each Subsidiary believes that its relationship
with its employees is good. No executive officer of the Company (as defined in
Rule 501(f) of the 1933 Act) has notified the Company that such officer intends
to leave the Company or otherwise terminate such officer’s employment with the
Company. To the Company’s Knowledge, it is in compliance with all U.S. federal,
state, local and foreign laws and regulations relating to employment and
employment practices, terms and conditions of employment and
wages and hours, except where the failure to be in compliance would not,
individually or in the aggregate, have a Material Adverse
Effect.
(o) Compliance. Neither
the Company nor any of its Subsidiaries (i) is in default under or in
violation of (and no event has occurred that has not been waived that, with
notice or lapse of time or both, would result in a default by the Company or any
of its Subsidiaries under), nor has the Company or any of its Subsidiaries
received written notice of a claim that it is in default under or that it is in
violation of, any Material Contract (whether or not such default or violation
has been waived), (ii) is in violation of any order of which the Company
has been made aware in writing of any court, arbitrator or governmental body
having jurisdiction over the Company or its properties or assets, or
(iii) is in violation of, or in receipt of written notice that it is in
violation of, any statute, rule or regulation of any governmental authority
applicable to the Company, except in each case as would not, individually or in
the aggregate, have a Material Adverse Effect.
(p) Regulatory Permits.
The Company possesses or has applied for all certificates, authorizations and
permits issued by the appropriate federal, state, local or foreign regulatory
authorities
necessary
to conduct its business as currently conducted and as described in the SEC
Reports, except where the failure to possess such permits, individually or in
the aggregate, has not and would not have, individually or in the aggregate, a
Material Adverse Effect (“Material Permits”), and
(i) neither the Company nor any of its Subsidiaries has received any notice
in writing of proceedings relating to the revocation or material adverse
modification of any such Material Permits and (ii) the Company is unaware
of any facts or circumstances that would give rise to the revocation or material
adverse modification of any Material Permits.
(q) Title to Assets. The
Company and its Subsidiaries do not own any real property. The Company and its
Subsidiaries have good and marketable title to all tangible personal property
owned by them which is material to the business of the Company and its
Subsidiaries, taken as whole, in each case free and clear of all Liens except
such as do not materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the Company and
any of its Subsidiaries. Any real property and facilities held under lease by
the Company and any of its Subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and its Subsidiaries.
(r) Patents and
Trademarks. To the Company’s Knowledge, the Company and its Subsidiaries
own, possess, license or have other rights to use all foreign and domestic
patents, patent applications, trade and service marks, trade and service mark
registrations, trade names, copyrights, inventions, trade secrets, technology,
Internet domain names, know-how and other intellectual property (collectively,
the “Intellectual
Property”) necessary for the conduct of their respective businesses as
now conducted or as proposed to be conducted in the SEC Reports. Except as set
forth in the SEC Reports and except where such violations or infringements would
not have, either individually or in the aggregate, a Material Adverse Effect,
(a) to the Company’s Knowledge, there are no rights of third parties to any
such Intellectual Property; (b) to the Company’s Knowledge, there is no
infringement by third parties of any such Intellectual Property; (c) to the
Company’s Knowledge, there is no pending or threatened action, suit, proceeding
or claim by others challenging the Company’s and its Subsidiaries’ rights in or
to any such Intellectual Property; (d) to the Company’s Knowledge, there is no
pending or threatened action, suit, proceeding or claim by others challenging
the validity or scope of any such Intellectual Property; and (e) to the
Company’s Knowledge, there is no pending or threatened action, suit, proceeding
or claim by others that the Company and/or any Subsidiary infringes or otherwise
violates any patent, trademark, copyright, trade secret or other proprietary
rights of others.
(s) Insurance. The
Company and each of the Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
the Company believes to be prudent and customary in the businesses and locations
in which the Company and the Subsidiaries are engaged. Neither the Company nor
any of its Subsidiaries has received any notice of cancellation of any such
insurance, nor, to the Company’s Knowledge, will it or any Subsidiary be unable
to renew their respective existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business.
(t) Transactions With Affiliates
and Employees. Except as set forth in the SEC Reports and other than the
grant of stock options or other equity awards that are not individually or in
the aggregate material in amount, none of the officers or directors of the
Company and, to the Company’s Knowledge, none of the employees of the Company,
is presently a party to any transaction with the Company (other than in
connection to the presently contemplated transaction, or other than for services
as employees, officers and directors) that would be required to be disclosed
pursuant to Item 404 of Regulation S-K promulgated under the
Securities Act.
(u) Internal Accounting
Controls. The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain asset and liability
accountability,
(iii) access to assets or incurrence of liabilities is permitted only in
accordance with management’s general or specific authorization, and
(iv) the recorded accountability for assets and liabilities is compared
with the existing assets and liabilities at reasonable intervals and in the
Company’s good faith judgment appropriate action is taken with respect to any
differences.
(v) Sarbanes-Oxley; Disclosure
Controls. To the Company’s Knowledge, the Company is in compliance in all
material respects with all of the provisions of the Sarbanes-Oxley Act of 2002
which are applicable to it, except where such noncompliance would not have,
individually or in the aggregate, a Material Adverse Effect. The Company
maintains disclosure controls and procedures (as such term is defined in
Rule 13a-15(e) and 15d-15(e) under the Exchange Act).
(w) Certain Fees. To the
Company’s Knowledge, no person or entity will have, as a result of the
transactions contemplated by this Agreement, any valid right, interest or claim
against or upon the Company or a Purchaser for any commission, fee or other
compensation pursuant to any agreement, arrangement or understanding entered
into by or on behalf of the Company. The Company shall indemnify, pay, and hold
each Purchaser harmless against, any liability, loss or expense (including,
without limitation, attorneys’ fees and out-of-pocket expenses) arising in
connection with any such right, interest or claim.
(x) Private Placement.
Assuming the accuracy of the Purchasers’ representations and warranties set
forth in Section 3.2 of this Agreement and the accuracy of the information
disclosed in the Accredited Investor Questionnaires, no registration under the
Securities Act is required for the offer and sale of the Securities by the
Company to the Purchasers under the Transaction Documents.
(y) Registration Rights.
Other than as set forth in the SEC Reports, no Person has any right to cause the
Company to effect the registration under the Securities Act of any securities of
the Company other than those securities which are currently registered on an
effective registration statement on file with the Commission.
(z) No Integrated
Offering. Assuming the accuracy of the Purchasers’ representations and
warranties set forth in Section 3.2, none of the Company, its Subsidiaries
nor, to the Company’s Knowledge, any of its Affiliates or any
Person acting on its behalf has, directly or indirectly, at any time within the
past six months, made any offers or sales of any Company security or solicited
any offers to buy any security under circumstances that would (i) eliminate
the availability of the exemption from registration under Regulation D
under the Securities Act in connection with the offer and sale by the Company of
the Shares and Warrants as contemplated hereby or (ii) cause the offering of the
Shares and Warrants pursuant to the Transaction Documents to be integrated with
prior offerings by the Company for purposes of any applicable law, regulation or
stockholder approval provisions, including, without limitation, under the rules
and regulations of any Trading Market on which any of the securities of the
Company are listed or designated.
(aa) Listing and Maintenance
Requirements. The Company’s Common Stock is registered pursuant to
Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action
designed to terminate the registration of the Common Stock under the Exchange
Act nor has the Company received any notification that the Commission is
contemplating terminating such registration. The Company has not, in the
12 months preceding the date hereof, received written notice from any
Trading Market on which the Common Stock is listed or quoted to the effect that
the Company is not in compliance with the listing or maintenance requirements of
such Trading Market. The Company is in compliance in all material respects with
the listing and maintenance requirements for continued trading of the Common
Stock on the Principal Trading Market.
(bb) Investment Company.
Neither the Company nor any of its Subsidiaries is required to be registered as,
and is not an Affiliate of, and immediately following the Closing will not be
required to register as, an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.
(cc) Questionable
Payments. To the Company’s Knowledge, neither the Company nor any of its
Subsidiaries, nor any directors, officers, employees, agents or other Persons
acting at the direction
of the
Company has, in the course of its actions for, or on behalf of, the Company: (a)
directly or indirectly, used any material corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
foreign or domestic political activity; (b) made any material direct or indirect
unlawful payments to any foreign or domestic governmental officials or employees
or to any foreign or domestic political parties or campaigns from corporate
funds; (c) violated in any material respect any provision of the Foreign
Corrupt Practices Act of 1977, as amended, or (d) made any other material
unlawful bribe, rebate, payoff, influence payment, kickback or other material
unlawful payment to any foreign or domestic government official or
employee.
(dd) Application of Takeover
Protections; Rights Agreements. The Company and its board of directors
have taken all necessary action, if any, in order to render inapplicable any
control share acquisition, business combination, poison pill (including any
distribution under a rights agreement) or other similar anti-takeover provision
under the Company’s charter documents or the laws of its state of incorporation
that is applicable to any of the Purchasers as a result of the Purchasers and
the Company fulfilling their obligations or exercising their rights under the
Transaction Documents, including, without limitation, the Company’s issuance of
the Shares and Warrant Shares and the Purchasers’ ownership of the Shares and
Warrant Shares. Except as disclosed in the SEC Reports, the Company has not
adopted any other stockholder rights plan or similar arrangement relating to
accumulations of beneficial ownership of Common Stock or a change in control of
the Company.
(ee) Disclosure. To the
Company’s Knowledge, no event or circumstance has occurred or information exists
with respect to the Company or any of its Subsidiaries or its or their business,
properties, operations or financial conditions, which, under applicable law,
rule or regulation, requires public disclosure or announcement by the Company
but which has not been so publicly announced or disclosed (assuming for this
purpose that the Company’s reports filed under the Exchange Act are being
incorporated into an effective registration statement filed by the Company under
the Securities Act), except for the announcement of this
Agreement and related transactions and as may be disclosed on the Form 8-K filed
pursuant to Section 4.6.
(ff) Off Balance Sheet
Arrangements. There is no transaction, arrangement, or other relationship
between the Company (or any Subsidiary) and an unconsolidated or other off
balance sheet entity that is required to be disclosed by the Company in its
Exchange Act filings and is not so disclosed and would have a Material Adverse
Effect.
(gg) Acknowledgment Regarding
Purchasers’ Purchase of Shares and Warrants. The Company
acknowledges and agrees that each of the Purchasers is acting solely in the
capacity of an arm’s length purchaser with respect to the Transaction Documents
and the transactions contemplated hereby and thereby. The Company further
acknowledges that no Purchaser is acting as a financial advisor or fiduciary of
the Company (or in any similar capacity) with respect to the Transaction
Documents and the transactions contemplated thereby and any advice given by any
Purchaser or any of their respective representatives or agents in connection
with the Transaction Documents and the transactions contemplated thereby is
merely incidental to the Purchasers’ purchase of the Shares and
Warrants.
(hh) Regulation M
Compliance. In the last thirty days, the Company has not, and to
the Company’s Knowledge no one acting on its behalf has, (i) taken,
directly or indirectly, any action designed to cause or to result in the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of any of the Securities, (ii) sold, bid for,
purchased, or paid any compensation for soliciting purchases of, any of the
securities of the Company or (iii) paid or agreed to pay to any Person any
compensation for soliciting another to purchase any other securities of the
Company.
(ii) OFAC. Neither the
Company nor any Subsidiary nor, to the Company’s Knowledge, any director,
officer, agent, employee, Affiliate or Person acting on behalf of the Company or
any Subsidiary is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will
not knowingly directly or indirectly use the proceeds of the sale of the
Securities, or lend, contribute or otherwise make available such proceeds to any
Subsidiary, joint venture partner or other Person or entity, towards any sales
or operations in Cuba, Iran, Syria, Sudan,
Myanmar
or any other country sanctioned by OFAC or for the purpose of financing the
activities of any Person currently subject to any U.S. sanctions administered by
OFAC.
(jj) Money Laundering
Laws. To the Company’s Knowledge, the operations of each of the Company
and any Subsidiary are and have been conducted at all times in compliance with
the money laundering statutes of applicable jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any applicable governmental
agency (collectively, the “Money Laundering Laws”) and
to the Company’s Knowledge, no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator involving the
Company and/or any Subsidiary with respect to the Money Laundering Laws is
pending or threatened.
(kk) FDA. To
the Company’s Knowledge, there is no pending, completed or threatened, action
(including any lawsuit, arbitration, or legal or administrative or regulatory
proceeding, charge, complaint, or investigation) against the Company or any of
its Subsidiaries, and none of the Company or any of its Subsidiaries has
received any notice, warning letter or other communication from the U.S. Food
and Drug Administration Office of Compliance (“FDA”), which
(i) contests the premarket clearance, licensure, registration, or approval
of, the uses of, the distribution of, the manufacturing or packaging of, the
testing of, the sale of, or the labeling and promotion of any product subject to
the jurisdiction of the FDA under the Federal Food, Drug and Cosmetic Act, as
amended, and the regulations thereunder that is manufactured,
packaged, labeled, tested, distributed, sold, and/or marketed by the Company or
any of its Subsidiaries (each such product, a “Pharmaceutical Product”),
(ii) imposes a clinical hold on any clinical investigation by the Company or any
of its Subsidiaries, (iii) enjoins production at any facility of the
Company or any of its Subsidiaries, (iv) enters or proposes to enter into a
consent decree of permanent injunction with the Company or any of its
Subsidiaries, or (v) otherwise alleges any violation of any laws, rules or
regulations by the Company or any of its Subsidiaries, and which, either
individually or in the aggregate, would have a Material Adverse Effect.
The Company has not been informed in writing by the FDA that the FDA will
prohibit the marketing, sale, license or use in the United States of any product
proposed to be developed, produced or marketed by the Company.
(ll) No Additional
Agreements. The Company does not have any agreement or understanding with
any Purchaser with respect to the transactions contemplated by the Transaction
Documents other than as specified in the Transaction Documents.
3.2 Representations and
Warranties of the Purchasers. Each Purchaser hereby, for itself and for
no other Purchaser, represents and warrants as of the date hereof and as of the
Closing Date to the Company as follows:
(a) Organization;
Authority. Such Purchaser is an entity duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization with
the requisite corporate or partnership power and authority to enter into and to
consummate the transactions contemplated by the applicable Transaction Documents
and otherwise to carry out its obligations hereunder and thereunder. The
execution, delivery and performance by such Purchaser of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate or, if such Purchaser is not a corporation, such partnership, limited
liability company or other applicable like action, on the part of such
Purchaser. Each of this Agreement and the Registration Rights Agreement has been
duly executed by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of such Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating to,
or affecting generally the enforcement of, creditors’ rights and remedies or by
other equitable principles of general application.
(b) No Conflicts. The
execution, delivery and performance by such Purchaser of this Agreement and the
Registration Rights Agreement and the consummation by such Purchaser of the
transactions contemplated hereby and thereby will not (i) result in a
violation of the organizational documents of such Purchaser, (ii) conflict
with, or constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any rights of termination,
amendment,
acceleration
or cancellation of, any agreement, indenture or instrument to which such
Purchaser is a party, or (iii) result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state securities
laws) applicable to such Purchaser, except in the case of clauses (ii) and
(iii) above, for such conflicts, defaults, rights or violations which would
not, individually or in the aggregate, reasonably be expected to have a material
adverse effect on the ability of such Purchaser to perform its obligations
hereunder.
(c) Investment Intent.
Such Purchaser understands that the Shares and Warrants are “restricted
securities” and have not been registered under the Securities Act or any
applicable state securities law and is acquiring the Shares and Warrants as
principal for its own account and not with a view to, or for distributing or
reselling such Shares or Warrants or any part thereof in violation of the
Securities Act or any applicable state securities laws, provided, however, that by
making the representations herein, such Purchaser does not agree to hold any of
the Shares or Warrants for any minimum period of time and reserves the right,
subject to the provisions of this Agreement and the Registration Rights
Agreement, at all times to sell or otherwise dispose of all or any part of
such Shares or Warrants pursuant to an effective registration
statement under the Securities Act or under an exemption from such registration
and in compliance with applicable federal and state securities laws. Such
Purchaser is acquiring the Shares and Warrants hereunder in the ordinary course
of its business. Such Purchaser does not presently have any agreement, plan or
understanding, directly or indirectly, with any Person to distribute or effect
any distribution of any of the Shares or Warrants (or any securities which are
derivatives thereof) to or through any person or entity. Such Purchaser is not a
registered broker-dealer under Section 15 of the Exchange Act or an entity
engaged in a business that would require it to be so registered as a
broker-dealer.
(d) Purchaser Status. At
the time such Purchaser was offered the Shares and Warrants, it was, and at the
date hereof it is, an “accredited investor” as defined in Rule 501(a) under the
Securities Act.
(e) General Solicitation.
Such Purchaser is not purchasing the Shares and Warrants as a result of any
advertisement, article, notice or other communication regarding the Shares and
Warrants published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or any other general
advertisement.
(f) Experience of Such
Purchaser. Such Purchaser, either alone or together with its
representatives, has such knowledge, sophistication and experience in business
and financial matters so as to be capable of evaluating the merits and risks of
the prospective investment in the Shares and Warrants, and has so evaluated the
merits and risks of such investment. Such Purchaser is able to bear the economic
risk of an investment in the Shares and Warrants and, at the present time, is
able to afford a complete loss of such investment.
(g) Access to
Information. Such Purchaser acknowledges that it has had the opportunity
to review any Company Information and business updates requested by Purchaser
and has been afforded (i) the opportunity to ask such questions as it has
deemed necessary of, and to receive answers from, representatives of the Company
concerning the terms and conditions of the offering of the Shares and Warrants
and the merits and risks of investing in the Shares and Warrants;
(ii) access to information about the Company and the Subsidiaries and their
respective financial condition, results of operations, business, properties,
management and prospects sufficient to enable it to evaluate its investment; and
(iii) the opportunity to obtain such additional information that the
Company possesses or can acquire without unreasonable effort or expense that is
necessary to make an informed investment decision with respect to the
investment. Neither such inquiries nor any other investigation conducted by or
on behalf of such Purchaser or its representatives or counsel shall modify,
amend or affect such Purchaser’s right to rely on the truth, accuracy and
completeness of the Company’s representations and warranties contained in the
Transaction Documents. Such Purchaser has sought such accounting, legal and tax
advice as it has considered necessary to make an informed decision with respect
to its acquisition of the Shares and Warrants.
(h) Certain Trading
Activities. Other than with respect to the transactions contemplated
herein, since the time that such Purchaser was first contacted by the Company or
any other Person regarding the transactions contemplated hereby, neither the
Purchaser nor any Affiliate of such Purchaser which
(x) had
knowledge of the transactions contemplated hereby, (y) has or shares
discretion relating to such Purchaser’s investments or trading or information
concerning such Purchaser’s investments, including in respect of the Shares and
Warrants, and (z) is subject to such Purchaser’s review or input concerning
such Affiliate’s investments or trading (collectively, “ Trading Affiliates”) has
directly or indirectly, nor has any Person acting on behalf of or pursuant to
any understanding with such Purchaser or Trading Affiliate, effected or agreed
to effect any purchases or sales of the securities of the Company (including,
without limitation, any Short Sales involving the Company’s securities).
Notwithstanding the foregoing, in the case of a Purchaser and/or Trading
Affiliate that is, individually or collectively, a multi-managed investment bank
or vehicle whereby separate portfolio managers manage separate portions of such
Purchaser’s or Trading Affiliate’s assets and the portfolio managers have no
direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser’s or Trading Affiliate’s assets, the representation set forth above shall apply only with respect to
the portion of assets managed by the portfolio manager that have knowledge about
the financing transaction contemplated by this Agreement. Other than to other
Persons party to this Agreement, such Purchaser has maintained the
confidentiality of all disclosures made to it in connection with this
transaction (including the existence and terms of this
transaction).
(i) Brokers and Finders.
No Person will have, as a result of the transactions contemplated by this
Agreement, any valid right, interest or claim against or upon the Company or any
Purchaser for any commission, fee or other compensation pursuant to any
agreement, arrangement or understanding entered into by or on behalf of the
Purchaser.
(j) Independent Investment
Decision. Such Purchaser has independently evaluated the merits of its
decision to purchase Shares and Warrants pursuant to the Transaction Documents,
and such Purchaser confirms that it has not relied on the advice of any other
Purchaser’s business and/or legal counsel in making such decision. Such
Purchaser understands that nothing in this Agreement or any other materials
presented by or on behalf of the Company to the Purchaser in connection with the
purchase of the Shares and Warrants constitutes legal, tax or investment advice.
Such Purchaser has consulted such legal, tax and investment advisors as it, in
its sole discretion, has deemed necessary or appropriate in connection with its
purchase of the Shares and Warrants.
(k) Reliance on
Exemptions. Such Purchaser understands that the Shares and Warrants being
offered and sold to it in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws and that the
Company is relying in part upon the truth and accuracy of, and such Purchaser’s
compliance with, the representations, warranties, agreements, acknowledgements
and understandings of such Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of such Purchaser to acquire
the Shares and Warrants.
(l) No Governmental
Review. Such Purchaser understands that no United States federal or state
agency or any other government or governmental agency has passed on or made any
recommendation or endorsement of the Shares and Warrants or the fairness or
suitability of the investment in the Shares and Warrants nor have such
authorities passed upon or endorsed the merits of the offering of the Shares and
Warrants.
(m) Regulation M.
Such Purchaser is aware that the anti-manipulation rules of Regulation M
under the Exchange Act may apply to sales of Common Stock and other activities
with respect to the Common Stock by the Purchasers.
(n) Residency. Such
Purchaser’s residence (if an individual) or office in which its investment
decision with respect to the Shares and Warrants was made (if an entity) are
located at the address immediately below such Purchaser’s name on its signature
page hereto.
The
Company and each of the Purchasers acknowledge and agree that no party to this
Agreement has made or makes any representations or warranties with respect to
the transactions contemplated hereby other than those specifically set forth in
this Article III and the Transaction Documents.
ARTICLE
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) Compliance with Laws.
Notwithstanding any other provision of this Article IV, each Purchaser covenants
that the Securities may be disposed of only pursuant to an effective
registration statement under, and in compliance with the requirements of, the
Securities Act, or pursuant to an available exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act, and in
compliance with any applicable state, federal or foreign securities
laws. In connection with any transfer of the Securities other than
(i) pursuant to an effective registration statement, (ii) to the Company, (iii)
pursuant to Rule 144 (provided that the Purchaser provides the Company with
reasonable assurances (in the form of seller and broker representation letters)
that the securities may be sold pursuant to such rule) or Rule 144A or (iv) in
connection with a bona fide pledge as contemplated in Section 4.1(b), the
Company may require the transferor thereof to provide to the Company and the
Transfer Agent, at the transferor’s expense, an opinion of counsel selected by
the transferor and reasonably acceptable to the Company and the Transfer Agent,
the form and substance of which opinion shall be reasonably satisfactory to the
Company and the Transfer Agent, to the effect that such transfer does not
require registration of such transferred Securities under the Securities
Act. As a condition of transfer (other than pursuant to clauses (i),
(ii) or (iii) of the preceding sentence), any such transferee shall agree in
writing to be bound by the terms of this Agreement and shall have the rights of
a Purchaser under this Agreement and the Registration Rights Agreement with
respect to such transferred Securities.
(b) Legends. Certificates
evidencing the Shares, the Warrants and the Warrant Shares shall bear any legend
as required by the California Corporations Code (including the legend set forth
in Schedule
4.1(b) hereto), the “blue sky” laws of any state and a restrictive legend
in substantially the following form, until such time as they are not required
under Section 4.1(c) or applicable law:
[NEITHER
THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES
HAVE BEEN REGISTERED] [THESE SECURITIES HAVE NOT BEEN REGISTERED] UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OR (B) AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS OR BLUE SKY LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY AND ITS TRANSFER AGENT OR (II) UNLESS
SOLD PURSUANT TO RULE 144 UNDER SAID ACT. NOTWITHSTANDING THE
FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE
SECURITIES. NO REPRESENTATION IS MADE BY THE ISSUER AS TO THE
AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT FOR
RESALES OF THESE SECURITIES.
The
Company acknowledges and agrees that a Purchaser may from time to time pledge,
and/or grant a security interest in, some or all of the legended Securities in
connection with applicable securities laws, pursuant to a bona fide margin
agreement in compliance with a bona fide margin loan. Such a pledge
would not be subject to approval or consent of the Company and no legal opinion
of legal counsel
to the
pledgee, secured party or pledgor shall be required in connection with the
pledge, but such legal opinion shall be required in connection with a subsequent
transfer or foreclosure following default by the Purchaser transferee of the
pledge. No notice shall be required of such pledge, but Purchaser’s
transferee shall promptly notify the Company of any such subsequent transfer or
foreclosure. Each Purchaser acknowledges that the Company shall not
be responsible for any pledges relating to, or the grant of any security
interest in, any of the Securities or for any agreement, understanding or
arrangement between any Purchaser and its pledgee or secured
party. At the appropriate Purchaser’s expense, the Company will
execute and deliver such reasonable documentation as a pledgee or secured party
of Shares may reasonably request in connection with a pledge or a permissible
transfer of the Shares, including the preparation and filing of any required
prospectus supplement under Rule 424(b)(ii) of the Securities Act or other
applicable provision of the Securities Act to appropriately amend the list of
“Selling Stockholders” thereunder. Each Purchaser acknowledges and agrees that,
except as otherwise provided in Section 4.1(c), any Securities subject to a
pledge or security interest as contemplated by this Section 4.1(b) shall
continue to bear the legend set forth in this Section 4.1(b) and be subject to
the restrictions on transfer set forth in Section 4.1(a).
(c) Removal of Legends.
The restrictive legend set forth in Section 4.1(b) above shall be removed and
the Company shall issue a certificate without such restrictive legend or any
other restrictive legend to the holder of the applicable Securities upon which
it is stamped or issue to such holder by electronic delivery at the applicable
balance account at the Depository Trust Company (“DTC”), if (i) such Securities
are registered for resale under the Securities Act (provided that, if the
Purchaser is selling pursuant to the effective registration statement
registering the Securities for resale, the Purchaser agrees to only sell such
Securities during such time that such registration statement is effective and
not withdrawn or suspended, and only as permitted by such registration
statement), (ii) such Securities are sold or transferred pursuant to Rule 144
(if the transferor is not an Affiliate of the Company), or (iii) such Securities
are eligible for sale under Rule 144, without the requirement for the Company to
be in compliance with the current public information required under Rule 144 as
to such securities and without volume or manner-of-sale
restrictions. Following the earlier of (i) the Effective Date or (ii)
Rule 144 becoming available for the resale of Securities, without the
requirement for the Company to be in compliance with the current public
information required under Rule 144 as to such securities and without volume or
manner-of-sale restrictions, the Company shall cause Company Counsel to issue to
the Transfer Agent the legal opinion referred to in the Irrevocable Transfer
Agent Instructions. Any fees (with respect to the Transfer Agent,
Company Counsel or otherwise) associated with the issuance of such opinion or
the removal of such legend shall be borne by the Company. Following
the Effective Date, or at such earlier time as a restrictive legend is no longer
required for certain Securities, the Company will no later than three (3)
Trading Days following the delivery by a Purchaser to the Company or the
Transfer Agent (with notice to the Company) of a legended certificate
representing such Securities (endorsed or with stock powers attached, signatures
guaranteed, and otherwise in form necessary to affect the reissuance and/or
transfer) and an opinion of counsel to the extent required by Section 4.1(a),
(such third Trading Day, the “Legend Removal Date”) deliver
or cause to be delivered to such Purchaser a certificate representing such
Securities that is free from all restrictive legends. The Company may
not make any notation on its records or give instructions to the Transfer Agent
that enlarge the restrictions on transfer set forth in this Section
4.1(c). Certificates for Securities subject to legend removal
hereunder may be transmitted by the Transfer Agent to the Purchasers by
crediting the account of the Purchaser’s prime broker with DTC as directed by
such Purchaser.
(d) Irrevocable Transfer Agent
Instructions. The Company shall issue irrevocable instructions to its
Transfer Agent, and any subsequent transfer agent in the form of Exhibit D attached
hereto (the “Irrevocable
Transfer Agent Instructions”). The Company represents and warrants that
no instruction other than the Irrevocable Transfer Agent Instructions referred
to in this Section 4.1(d) or instructions that are not contradictory
therewith will be given by the Company to its transfer agent in connection with
this Agreement, and that the Securities shall otherwise be freely transferable
on the books and records of the Company as and to the extent provided in this
Agreement and the other Transaction Documents and applicable law. The Company
acknowledges that a breach by it of its obligations under this
Section 4.1(d) will cause irreparable harm to a Purchaser. Accordingly, the
Company acknowledges that the remedy at law
for a
breach of its obligations under this Section 4.1(d) will be inadequate and
agrees, in the event of a breach or threatened breach by the Company of the
provisions of this Section 4.1(d), that a Purchaser shall be entitled, in
addition to all other available remedies, to an order and/or injunction
restraining any breach and requiring immediate issuance and transfer, without
the necessity of showing economic loss and without any bond or other security
being required.
(e) Acknowledgement. Each
Purchaser hereunder acknowledges its primary responsibilities under the
Securities Act and accordingly will not sell or otherwise transfer the
Securities or any interest therein without complying with the requirements of
the Securities Act. Except as otherwise provided below, while the
above-referenced registration statement remains effective, each Purchaser
hereunder may sell the Shares and Warrant Shares in accordance with the plan of
distribution contained in the registration statement and if it does so it will
comply therewith and with the related prospectus delivery requirements unless an
exemption therefrom is available. Each Purchaser, severally and not
jointly with the other Purchasers, agrees that if it is notified by the Company
in writing at any time that the registration statement registering the resale of
the Shares and Warrant Shares is not effective or that the prospectus included
in such registration statement no longer complies with the requirements of
Section 10 of the Securities Act, the Purchaser will refrain from selling
such Shares and Warrant Shares until such time as the Purchaser is notified by
the Company that such registration statement is effective or such prospectus is
compliant with Section 10 of the Exchange Act, unless such Purchaser is
able to, and does, sell such Shares and Warrant Shares pursuant to an available
exemption from the registration requirements of Section 5 of the Securities
Act. Both the Company and its Transfer Agent, and their respective directors,
officers, employees and agents, may rely on this subsection (e) and each
Purchaser hereunder will indemnify and hold harmless each of such persons from
any breaches or violations of this paragraph.
(f) Buy-In. If the
Company shall fail for any reason or for no reason to issue to a Purchaser
unlegended certificates within three (3) Business Days of receipt of all
documents necessary for the removal of the legend set forth above (the “Deadline Date”), then, in
addition to all other remedies available to such Purchaser, if on or after the
Business Day immediately following such three (3) Business Day period, such
Purchaser purchases (in an open market transaction or otherwise) shares of
Common Stock to deliver in satisfaction of a sale by the holder of shares of
Common Stock that such Purchaser anticipated receiving from the Company without
any restrictive legend (a “Buy-In”), then the Company
shall, within three (3) Business Days after such Purchaser’s request and in
such Purchaser’s sole discretion, either (i) pay cash to the Purchaser in
an amount equal to such Purchaser’s total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased (the “Buy-In Price”), at which
point the Company’s obligation to deliver such certificate (and to issue such
shares of Common Stock) shall terminate, or (ii) promptly honor its
obligation to deliver to such Purchaser a certificate or certificates
representing such shares of Common Stock and pay cash to the Purchaser in an
amount equal to the excess (if any) of the Buy-In Price over the product of
(a) such number of shares of Common Stock, times (b) the Closing Bid
Price on the Deadline Date.
4.2 Acknowledgment of
Dilution. The Company acknowledges that the issuance of the
Securities may result in dilution of the outstanding shares of Common
Stock. The Company further acknowledges that its obligations under the
Transaction Documents, including without limitation its obligation to issue the
Securities pursuant to the Transaction Documents, are unconditional and absolute
and not subject to any right of set off, counterclaim, delay or reduction,
regardless of the effect of any such dilution or any claim the Company may have
against any Purchaser and regardless of the dilutive effect that such issuance
may have on the ownership of the other stockholders of the Company.
4.3 Furnishing of
Information. In order to enable the Purchasers to sell the Securities
under Rule 144 of the Securities Act, for a period of one year from the Closing,
the Company shall use its commercially reasonably efforts to maintain the
registration of the Securities under Section 12(b) or 12(g) of the Exchange Act
and to timely file (or obtain extensions in respect thereof and file within the
applicable grace period) all reports required to be filed by the Company after
the date hereof pursuant to the Exchange Act. During such one year
period, if the Company is not required to file reports pursuant to such laws, it
will prepare and
furnish
to the Purchasers and make publicly available in accordance with Rule 144(c)
such information as is required for the Purchasers to sell the Securities under
Rule 144.
4.4 Form D and Blue
Sky. The Company agrees to timely file a Form D with respect to the
Shares and Warrants as required under Regulation D. The Company,
on or before the Closing Date, shall take such action as the Company shall
reasonably determine is necessary in order to obtain an exemption for or to
qualify the Shares and Warrants for sale to the Purchasers at the Closing
pursuant to this Agreement under applicable securities or “Blue Sky” laws of the
states of the United States (or to obtain an exemption from such qualification).
The Company shall make all filings and reports relating to the offer and sale of
the Shares and Warrants required under applicable securities or “Blue Sky” laws
of the states of the United States following the Closing Date.
4.5 No Integration. The
Company shall not, and shall use its commercially reasonable efforts to ensure
that no Affiliate of the Company shall, sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that will be integrated with the offer or
sale of the Shares and Warrants in a manner that would require the registration
under the Securities Act of the sale of the Shares and Warrants to the
Purchasers, or that will be integrated with the offer or sale of the Shares and
Warrants for purposes of the rules and regulations of any Trading Market such
that it would require stockholder approval prior to the closing of such other
transaction unless stockholder approval is obtained before the closing of such
subsequent transaction.
4.6 Securities Laws Disclosure;
Publicity. By 9:00 a.m., New York City time, on the Trading Day
immediately following the execution of this Agreement, the Company shall issue
one or more press releases (each, a “Press Release”) disclosing
all material terms of the transactions contemplated hereby and the items
identified on Schedule
3.1(h)-2. On or before 9:00 a.m., New York City time, on the
Trading Day immediately following the execution of this Agreement, the Company
will file a Current Report on Form 8-K with the Commission describing the terms
of the Transaction Documents (and including as exhibits to such Current Report
on Form 8-K the material Transaction Documents (including, without limitation,
this Agreement and the Registration Rights Agreement)). Notwithstanding the
foregoing, the Company shall not publicly disclose the name of any Purchaser or
an Affiliate of any Purchaser, or include the name of any Purchaser or an
Affiliate of any Purchaser in any press release or filing with the Commission
(other than the Registration Statement) or any regulatory agency or Trading
Market, without the prior written consent of such Purchaser, except (i) as
required by federal securities law in connection with (A) any registration
statement contemplated by the Registration Rights Agreement and (B) the
filing of final Transaction Documents (including signature pages thereto) with
the Commission and (ii) to the extent such disclosure is required by law,
request of the Staff of the Commission or Trading Market regulations, in which
case the Company shall provide the Purchasers with prior written notice of such
disclosure permitted under this subclause (ii). From and after the
issuance of the Press Release(s) (which shall include the items identified in
Schedule 3.1(h)-2
hereto), no Purchaser shall be in possession of any material, non-public
information received from the Company, any Subsidiary or any of their respective
officers, directors, employees or agents, that is not disclosed in the Press
Release(s) (which shall include the items identified in Schedule 3.1(h)-2
hereto) unless a Purchaser shall have executed a written agreement regarding the
confidentiality and use of such information. Each Purchaser,
severally and not jointly with the other Purchasers, covenants that until such
time as the transactions contemplated by this Agreement are publicly disclosed
by the Company as described in this Section 4.6 (which shall include the
items identified in Schedule 3.1(h)-2
hereto), such Purchaser will maintain the confidentiality of all disclosures
made to it in connection with this transaction (including the existence and
terms of this transaction).
4.7 Non-Public
Information. Except with respect to the material terms and conditions of
the transactions contemplated by the Transaction Documents, and except with the
express written consent of such Purchaser and unless prior thereto such
Purchaser shall have executed a written agreement regarding the confidentiality
and use of such information, the Company shall not, and shall cause each
Subsidiary and each of their respective officers, directors, employees and
agents, not to, and each Purchaser shall not directly solicit the Company, any
of its Subsidiaries or any of their respective officers, directors, employees or
agents to provide any Purchaser with any material, non-public information
regarding the Company or any of its
Subsidiaries
from and after the filing of the Press Release(s) (which shall include the items
identified in Schedule 3.1(h)-2
hereto).
4.8 Indemnification.
(a) Indemnification of
Purchasers. In addition to the indemnity provided in the Registration
Rights Agreement, the Company will indemnify and hold each Purchaser and its
directors, officers, stockholders, members, partners, employees and agents (and
any other Persons with a functionally equivalent role of a Person holding such
titles notwithstanding a lack of such title or any other title), each Person who
controls such Purchaser (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act), and the directors, officers,
stockholders, agents, members, partners or employees (and any other Persons with
a functionally equivalent role of a Person holding such titles notwithstanding a
lack of such title or any other title) of such controlling person (each, a
“Purchaser Party”)
harmless from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all judgments, amounts
paid in settlements, court costs and reasonable attorneys’ fees and costs of
investigation that any such Purchaser Party may suffer or incur as a result of
any breach of any of the representations, warranties, covenants or agreements
made by the Company in this Agreement or in the other Transaction
Documents. The Company will not be liable to any Purchaser Party under
this Agreement to the extent, but only to the extent that a loss, claim, damage
or liability is attributable to any Purchaser Party’s breach of any of the
representations, warranties, covenants or agreements made by such Purchaser
Party in this Agreement or in the other Transaction Documents; provided that
such a claim for indemnification relating to any breach of any of the
representations or warranties made by the Company in this Agreement is made
within one year from the Closing.
(b) Conduct of Indemnification
Proceedings.
Promptly after receipt by any Person (the "Indemnified Person”) of
notice of any demand, claim or circumstances which would or might give rise to a
claim or the commencement of any action, proceeding or investigation in respect
of which indemnity may be sought pursuant to Section 4.8(a), such
Indemnified Person shall promptly notify the Company in writing and the Company
shall assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Person, and shall assume the payment of all
fees and expenses; provided,
however, that the failure of any Indemnified Person so to notify the
Company shall not relieve the Company of its obligations hereunder except to the
extent that the Company is actually and materially and adversely prejudiced by
such failure to notify. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless: (i) the
Company and the Indemnified Person shall have mutually agreed to the retention
of such counsel; (ii) the Company shall have failed promptly
to assume the defense of such proceeding and to employ counsel reasonably
satisfactory to such Indemnified Person in such proceeding; or (iii) in the
reasonable judgment of counsel to such Indemnified Person, representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. The Company shall not be liable for
any settlement of any proceeding effected without its written consent, which
consent shall not be unreasonably withheld, delayed or conditioned. Without the
prior written consent of the Indemnified Person, which consent shall not be
unreasonably withheld, delayed or conditioned, the Company shall not effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Person from all liability arising out
of such proceeding.
4.9 Listing of Common
Stock. In the time and manner required by the Principal Trading Market,
the Company shall prepare and file with such Trading Market an additional shares
listing application covering all of the Shares and Warrant Shares and shall use
its commercially reasonable efforts to take all steps necessary to cause the
Shares and Warrant Shares to be approved for listing on the Principal Trading
Market as soon as possible thereafter.
4.10 Use of Proceeds. The
Company intends to use the net proceeds from the sale of the Shares and Warrants
hereunder for working capital and general corporate purposes.
4.11 Short Sales After The Date
Hereof. Such Purchaser shall not, and shall cause its Trading
Affiliates not to, engage, directly or indirectly, in any transactions in the
Company’s securities (including, without limitation, any Short Sales involving
the Company’s securities) during the period from the date hereof until the
earlier of such time as (i) the transactions contemplated by this Agreement are
first required to be publicly announced as described in Section 4.6 (which
public announcement shall include the items identified in Schedule 3.1(h)-2
hereto) or (ii) this Agreement is terminated in full pursuant to Section 6.17
and the items identified in Schedule 3.1(h)-2
hereto have been publicly announced as described in Section 4.6. Each
Purchaser severally and not jointly with the other Purchasers covenants that
until such time as the transactions contemplated by this Agreement are publicly
disclosed by the Company as described in Section 4.6 (which public announcement
shall include the items identified in Schedule 3.1(h)-2
hereto), such Purchaser will maintain the confidentiality of the existence and
terms of this Agreement and the transactions contemplated hereby and the
non-public information contained in the items identified in Schedule 3.1(h)-2
hereto. Notwithstanding the foregoing, no Purchaser makes any
representation, warranty or covenant hereby that it will not engage in Short
Sales in the securities of the Company after the time that the transactions
contemplated by this Agreement are publicly disclosed by the Company as
described in Section 4.6 (which public announcement shall include the items
identified in Schedule 3.1(h)-2
hereto). Notwithstanding the foregoing, in the event that a Purchaser
is a multi-managed investment vehicle whereby separate portfolio managers manage
separate portions of such Purchaser's assets and the portfolio managers have no
direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser's assets, the representation set forth
above shall apply only with respect to the portion of assets managed by the
portfolio manager that have knowledge about the financing transaction
contemplated by this Agreement. Each Purchaser understands and
acknowledges, severally and not jointly with any other Purchaser, that the
Commission currently takes the position that covering a short position
established prior to effectiveness of a resale registration statement with
shares included in such registration statement would be a violation of Section 5
of the Securities Act, as set forth in Item 65, Section 5 under Section A, of
the Manual of Publicly Available Telephone Interpretations, dated July 1997,
compiled by the Office of Chief Counsel, Division of Corporation
Finance.
4.12 Reservation of Shares of
Common Stock. The Company shall take all action necessary to
at all times have authorized, and reserved for the purpose of issuance from and
after the Closing Date, the number of shares of Common Stock issuable upon
exercise of the Warrants issued at the Closing (without taking into account any
limitations on exercise of the Warrants set forth in the Warrants).
ARTICLE
V.
CONDITIONS
PRECEDENT TO CLOSING
5.1 Conditions Precedent to the
Obligations of the Purchasers to Purchase Shares and Warrants. The
obligation of each Purchaser to acquire Shares and Warrants at the Closing is
subject to the fulfillment to such Purchaser’s satisfaction, on or prior to the
Closing Date, of each of the following conditions, any of which may be waived by
such Purchaser (as to itself only):
(a) Representations and
Warranties. The representations and warranties of the Company contained
herein shall be true and correct in all material respects (except for those
representations and warranties which are qualified as to materiality, in which
case such representations and warranties shall be true and correct in all
respects) as of the date when made and as of the Closing Date, as though made on
and as of such date, except for such representations and warranties that speak
as of a specific date.
(b) Performance. The
Company shall have performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by it at or prior to the
Closing.
(c) No Injunction. No
statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction that prohibits the consummation of any of
the transactions contemplated by the Transaction Documents.
(d) Consents. The Company
shall have obtained in a timely fashion any and all consents, permits,
approvals, registrations and waivers necessary for consummation of the purchase
and sale of the Shares and Warrants at the Closing (including all Required
Approvals), all of which shall be and remain so long as necessary in full force
and effect.
(e) No Suspensions of Trading in
Common Stock; Listing . The Common Stock (i) shall be designated for
quotation or listed on the Principal Trading Market and (ii) shall not have
been suspended, as of the Closing Date, by the Commission or the Principal
Trading Market from trading on the Principal Trading Market nor shall suspension
by the Commission or the Principal Trading Market have been threatened, as of
the Closing Date, either (A) in writing by the Commission or the Principal
Trading Market or (B) by falling below the minimum listing maintenance
requirements of the Principal Trading Market.
(f) Company Deliverables
.. The Company shall have delivered the Company Deliverables in accordance with
Section 2.2(a).
(g) Compliance
Certificate . The Company shall have delivered to each Purchaser a
certificate, dated as of the Closing Date and signed by its Chief Executive
Officer or its Chief Financial Officer, dated as of the Closing Date, certifying
to the fulfillment of the conditions specified in Sections 5.1(a) and
(b) in the form attached hereto as Exhibit F.
(h) Adverse Changes.
Since the date of execution of this Agreement, no event or series of events
shall have occurred that has had or would reasonably be expected to have a
Material Adverse Effect.
(i) Termination . This
Agreement shall not have been terminated as to such Purchaser in accordance with
Section 6.17 herein.
5.2 Conditions Precedent to the
Obligations of the Company to sell Shares and Warrants. The Company’s
obligation to sell and issue the Shares and Warrants at the Closing is subject
to the fulfillment to the satisfaction of the Company on or prior to the Closing
Date of the following conditions, any of which may be waived by the Company:
(a) Representations and
Warranties. The representations and warranties made by the Purchaser in
Section 3.2 hereof shall be true and correct in all material respects as of
the date when made, and as of the Closing Date as though made on and as of such
date, except for representations and warranties that speak as of a specific
date.
(b) Performance. Such
Purchaser shall have performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by such Purchaser at or
prior to the Closing Date.
(c) No Injunction. No
statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction that prohibits the consummation of any of
the transactions contemplated by the Transaction Documents.
(d) Consents. The Company
shall have obtained in a timely fashion any and all consents, permits,
approvals, registrations and waivers necessary for consummation of the purchase
and sale of the Shares and Warrants, all of which shall be and remain so long as
necessary in full force and effect.
(e) Purchasers
Deliverables. Such Purchaser shall have delivered its Purchaser
Deliverables in accordance with Section 2.2(b).
(f) Termination. This
Agreement shall not have been terminated as to such Purchaser in accordance with
Section 6.17 herein.
ARTICLE
VI.
MISCELLANEOUS
6.1 Fees and
Expenses. The Company and the Purchasers shall each pay the
fees and expenses of their respective advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party in connection
with the negotiation, preparation, execution, delivery and performance of this
Agreement. The Company shall pay all Transfer Agent fees, stamp taxes
and other taxes and duties levied in connection with the sale and issuance of
the Shares and Warrants to the Purchasers.
6.2 Entire Agreement. The
Transaction Documents, together with the Exhibits and Schedules thereto, contain
the entire understanding of the parties with respect to the subject matter
hereof and supersede all prior agreements, understandings, discussions and
representations, oral or written, with respect to such matters, which the
parties acknowledge have been merged into such documents, exhibits and
schedules. At or after the Closing, and without further consideration, the
Company and the Purchasers will execute and deliver to the other such further
documents as may be reasonably requested in order to give practical effect to
the intention of the parties under the Transaction Documents.
6.3 Notices. Any and all
notices or other communications or deliveries required or permitted to be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (a) the date of transmission, if such notice or
communication is delivered via facsimile (provided the sender receives a
machine-generated confirmation of successful transmission) at the facsimile
number specified in this Section prior to 5:00 p.m., New York City time, on a
Trading Day, (b) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section on a day that is not a Trading Day or
later than 5:00 p.m., New York City time, on any Trading Day, (c) the
Trading Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service with next day delivery specified, or (d) upon
actual receipt by the party to whom such notice is required to be given. The
address for such notices and communications shall be as follows:
If to the
Company: Cytori
Therapeutics, Inc.
3020
Callan Road
San
Diego, California 92121
Telephone
No.: (858) 458-0900
Facsimile
No.: (858) 450-4331
Attention: Chief
Executive Officer
|
With
a copy to:
|
DLA
Piper LLP (US)
|
|
4365
Executive Drive, Suite 1100
|
|
San
Diego, California 92121-2133
|
|
Telephone
No.: (858) 677-1400
|
|
Facsimile
No.: (858) 677-1401
|
|
Attention: Jeff
Baglio, Esq.
|
If
to a Purchaser:
|
To
the address set forth under such Purchaser’s name on the signature page
hereof;
|
or such
other address as may be designated in writing hereafter, in the same manner, by
such Person.
6.4 Amendments; Waivers; No
Additional Consideration. No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
the Company and each of the Purchasers holding or having the right to acquire a
majority of the Securities on a fully-diluted basis at the time of such
amendment or, in the case of a waiver, by the party against whom enforcement of
any such waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any
subsequent
default or a waiver of any other provision, condition or requirement hereof, nor
shall any delay or omission of either party to exercise any right hereunder in
any manner impair the exercise of any such right. No consideration shall be
offered or paid to any Purchaser to amend or consent to a waiver or modification
of any provision of any Transaction Document unless the same consideration is
also offered to all Purchasers who then hold Securities.
6.5 Construction. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party. This Agreement shall be
construed as if drafted jointly by the parties, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement or any of the Transaction
Documents.
6.7 No Third-Party
Beneficiaries. This Agreement is intended for the benefit of the parties
hereto and their respective successors and permitted assigns and is not for the
benefit of, nor may any provision hereof be enforced by, any other
Person.
6.8 Governing Law. All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all Proceedings
concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether
brought against a party hereto or its respective Affiliates, employees or
agents) shall be commenced exclusively in the New York Courts. Each party hereto
hereby irrevocably submits to the exclusive jurisdiction of the New York Courts
for the adjudication of any dispute hereunder or in connection herewith or with
any transaction contemplated hereby or discussed herein (including with respect
to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any Proceeding, any claim that it is not
personally subject to the jurisdiction of any such New York Court, or that such
Proceeding has been commenced in an improper or inconvenient forum. Each party
hereto hereby irrevocably waives personal service of process and consents to
process being served in any such Proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed to limit in
any way any right to serve process in any manner permitted by law. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
6.9 Survival. Subject to
applicable statute of limitations, the representations, warranties, agreements
and covenants contained herein shall survive the Closing and the delivery of the
Shares and Warrants, except that the representations and warranties contained
herein shall terminate upon the one-year anniversary of the Closing
Date.
6.10 Execution. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission, or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the
party
executing (or on whose behalf such signature is executed) with the same force
and effect as if such facsimile signature page were an original
thereof.
6.11 Severability. If any
provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the
parties will attempt to agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
6.12 Replacement of
Securities. If any certificate or instrument evidencing any
Securities is mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation
thereof, or in lieu of and substitution therefor, a new certificate or
instrument, but only upon receipt of evidence reasonably satisfactory to the
Company and the Transfer Agent of such loss, theft or destruction and the
execution by the holder thereof of a customary lost certificate affidavit of
that fact and an agreement to indemnify and hold harmless the Company and the
Transfer Agent for any losses in connection therewith or, if required by the
Transfer Agent, a bond in such form and amount as is required by the Transfer
Agent. The applicants for a new certificate or instrument under such
circumstances shall also pay any reasonable third-party costs associated with
the issuance of such replacement Securities. If a replacement certificate or
instrument evidencing any Securities is requested due to a mutilation thereof,
the Company may require delivery of such mutilated certificate or instrument as
a condition precedent to any issuance of a replacement.
6.13 Remedies. In addition
to being entitled to exercise all rights provided herein or granted by law,
including recovery of damages, each of the Purchasers and the Company will be
entitled to specific performance under the Transaction Documents. The parties
agree that monetary damages may not be adequate compensation for any loss
incurred by reason of any breach of obligations described in the foregoing
sentence and hereby agree to waive in any action for specific performance of any
such obligation (other than in connection with any action for a temporary
restraining order) the defense that a remedy at law would be
adequate.
6.14 Payment Set Aside. To
the extent that the Company makes a payment or payments to any Purchaser
pursuant to any Transaction Document or a Purchaser enforces or exercises its
rights thereunder, and such payment or payments or the proceeds of such
enforcement or exercise or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside, recovered from, disgorged
by or are required to be refunded, repaid or otherwise restored to the Company,
a trustee, receiver or any other person under any law (including, without
limitation, any bankruptcy law, state or federal law, common law or equitable
cause of action), then to the extent of any such restoration the obligation or
part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.
6.15 Adjustments in Common Stock
Numbers and Prices . In the event of any stock split, subdivision,
dividend or distribution payable in shares of Common Stock (or other securities
or rights convertible into, or entitling the holder thereof to receive directly
or indirectly shares of Common Stock), combination or other similar
recapitalization or event occurring after the date hereof and prior to the
Closing, each reference in any Transaction Document to a number of shares or a
price per share shall be deemed to be amended to appropriately account for such
event.
6.16 Independent Nature of
Purchasers’ Obligations and Rights. The obligations of each Purchaser
under any Transaction Document are several and not joint with the obligations of
any other Purchaser, and no Purchaser shall be responsible in any way for the
performance of the obligations of any other Purchaser under any Transaction
Document. The decision of each Purchaser to purchase Securities
pursuant to the Transaction Documents has been made by such Purchaser
independently of any other Purchaser and independently of any information,
materials, statements or opinions as to the business, affairs, operations,
assets, properties, liabilities, results of operations, condition (financial or
otherwise) or prospects of the Company or any Subsidiary which may have been
made or given by any other Purchaser or by any agent or employee of any other
Purchaser, and no Purchaser and any of its agents or employees shall have
any
liability to any other Purchaser (or any other Person) relating to or arising
from any such information, materials, statement or opinions. Nothing
contained herein or in any Transaction Document, and no action taken by any
Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert or as
a group with respect to such obligations or the transactions contemplated by the
Transaction Documents. Each Purchaser acknowledges that no other
Purchaser has acted as agent for such Purchaser in connection with making its
investment hereunder and that no Purchaser will be acting as agent of such
Purchaser in connection with monitoring its investment in the Securities or
enforcing its rights under the Transaction Documents. Each Purchaser
shall be entitled to independently protect and enforce its rights, including
without limitation the rights arising out of this Agreement or out of the other
Transaction Documents, and it shall not be necessary for any other Purchaser to
be joined as an additional party in any proceeding for such
purpose. Each Purchaser has been represented by its own separate
legal counsel in its review and negotiation of the Transaction
Documents. For reasons of administrative convenience only, Purchasers
and their respective counsels have chosen to communicate with the Company
through [_______]. The Company has elected to provide all Purchasers
with the same terms and Transaction Documents for the convenience of the Company
and not because it was required or requested to do so by any
Purchaser.
6.17 Termination. This
Agreement may be terminated and the sale and purchase of the Shares and Warrants
abandoned at any time prior to the Closing by either the Company or any
Purchaser (with respect to itself only) upon written notice to the other, if the
Closing has not been consummated on or prior to 5:00 p.m., New York City time,
on the Outside Date; provided,
however, that the right to terminate this Agreement under this
Section 6.17 shall not be available to any Person whose failure to comply
with its obligations under this Agreement has been the cause of or resulted in
the failure of the Closing to occur on or before such time. Nothing
in this Section 6.17 shall be deemed to release any party from any
liability for any breach by such party of the terms and provisions of this
Agreement or the other Transaction Documents or to impair the right of any party
to compel specific performance by any other party of its obligations under this
Agreement or the other Transaction Documents. In the event of a termination
pursuant to this Section, the Company shall promptly notify all non-terminating
Purchasers and the Escrow Agent. Upon a termination in accordance with this
Section, the Company and the terminating Purchaser(s) shall not have any further
obligation or liability (including arising from such termination) to the other,
and no Purchaser will have any liability to any other Purchaser under the
Transaction Documents as a result therefrom.
6.18 Waiver of Conflicts.
Each party to this Agreement acknowledges that Company Counsel, outside general
counsel to the Company, has in the past performed and is or may now or in the
future represent one or more Purchasers or their affiliates in matters unrelated
to the transactions contemplated by the Transaction Documents, including
representation of such Purchasers or their affiliates in matters of a similar
nature to the transactions contemplated by the Transaction Documents. The
applicable rules of professional conduct require that Company Counsel inform the
parties hereunder of this representation and obtain their consent. Company
Counsel has served as outside general counsel to the Company and has negotiated
the terms of the transactions contemplated by the Transaction Documents solely
on behalf of the Company. The Company and each Purchaser hereby
(a) acknowledge that they have had an opportunity to ask for and have
obtained information relevant to such representation, including disclosure of
the reasonably foreseeable adverse consequences of such representation;
(b) acknowledge that with respect to the transactions contemplated by the
Transaction Documents, Company Counsel has represented solely the Company, and
not any Purchaser or any stockholder, director or employee of the Company or any
Purchaser; and (c) gives its informed consent to Company Counsel’s
representation of the Company in the transactions contemplated by the
Transaction Documents.
6.19 Rescission and Withdrawal
Right. Notwithstanding anything to the contrary contained in (and without
limiting any similar provisions of) the Transaction Documents, whenever any
Purchaser exercises a right, election, demand or option under a Transaction
Document and the Company does not timely perform its related obligations within
the periods therein provided, then such Purchaser may rescind or withdraw, in
its sole discretion from time to time upon written notice to the Company, any
relevant notice, demand or election in whole or in part without prejudice to its
future actions and rights.
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
CYTORI
THERAPEUTICS, INC.
|
Title: Chief
Financial Officer
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE
PAGES FOR PURCHASERS FOLLOW]
NAME OF
PURCHASER: Walter Cruttenden
By: /s/ Walter Cruttenden
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $500,000
Number of
Shares to be Acquired: 219,298
Underlying
Shares Subject to Warrant: 383,772
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Genet Family 2007 Opportunity Trust
By: /s/ Benjamin
Genet
Name: Benjamin
Genet
Title: Trustee
Aggregate
Purchase Price (Subscription Amount): $400,000
Number of
Shares to be Acquired: 175,439
Underlying
Shares Subject to Warrant: 307,019
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Thomas R. Speno
By: /s/ Thomas R. Speno
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $342,000
Number of
Shares to be Acquired: 150,000
Underlying
Shares Subject to Warrant: 262,500
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Michael G. Masarek 2008 Grantor Retained Annuity Trust UAD
4/24/08
By: /s/ Michael
Masarek
Name: Michael
Masarek
Title: Trustee
Aggregate
Purchase Price (Subscription Amount): $300,000
Number of
Shares to be Acquired: 131,579
Underlying
Shares Subject to Warrant: 230,264
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Robert M. Schneider
By: /s/ Robert M.
Schneider
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $250,800
Number of
Shares to be Acquired: 110,000
Underlying
Shares Subject to Warrant: 192,500
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Gagnon Investment Associates Master Fund
By: /s/ Neil
Gagnon
Name: Neil Gagnon
Title: Managing
Member
Aggregate
Purchase Price (Subscription Amount): $250,000
Number of
Shares to be Acquired: 109,649
Underlying
Shares Subject to Warrant: 191,886
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: London Family Trust
By: /s/ Robert
S. London
Name: Robert S.
London
Title: Trustee
Aggregate
Purchase Price (Subscription Amount): $228,000
Number of
Shares to be Acquired: 100,000
Underlying
Shares Subject to Warrant: 175,000
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: M. Stephen Jackman Trust
By: /s/ M. Stephen Jackman
Name: M. Stephen
Jackman
Title: Trustee
Aggregate
Purchase Price (Subscription Amount): $215,960
Number of
Shares to be Acquired: 94,719
Underlying
Shares Subject to Warrant: 165,759
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: David Sonenberg
By: /s/ David
Sonenberg
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $200,000
Number of
Shares to be Acquired: 87,719
Underlying
Shares Subject to Warrant: 153,509
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Neil Gagnon
By: /s/ Neil
Gagnon
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $150,000
Number of
Shares to be Acquired: 65,789
Underlying
Shares Subject to Warrant: 115,131
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: David B. Schulman
By: /s/ David B. Schulman
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $114,000
Number of
Shares to be Acquired: 50,000
Underlying
Shares Subject to Warrant: 87,500
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Lois Gagnon
By: /s/ Lois
Gagnon
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $100,000
Number of
Shares to be Acquired: 43,860
Underlying
Shares Subject to Warrant: 76,755
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Manuel F. Mair
By: /s/ Manuel
F. Mair
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $100,000
Number of
Shares to be Acquired: 43,860
Underlying
Shares Subject to Warrant: 76,755
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Perry Isenberg
By: /s/ Perry
Isenberg
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $100,000
Number of
Shares to be Acquired: 43,860
Underlying
Shares Subject to Warrant: 76,755
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Peter E. Lacey
By: /s/ Peter E.
Lacey
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $100,000
Number of
Shares to be Acquired: 43,860
Underlying
Shares Subject to Warrant: 76,755
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Alfred Sacks
By: /s/ Alfred Sacks
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $75,000
Number of
Shares to be Acquired: 32,895
Underlying
Shares Subject to Warrant: 57,567
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Evan J. Brody
By: /s/ Evan J. Brody
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $75,000
Number of
Shares to be Acquired: 32,895
Underlying
Shares Subject to Warrant: 57,567
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Darren and Tara Levine, JTWROS
By: /s/ Darren Levine
By: /s/ Tara Levine
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $68,400
Number of
Shares to be Acquired: 30,000
Underlying
Shares Subject to Warrant: 52,500
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: John Collins
By: /s/ John Collins
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $57,000
Number of
Shares to be Acquired: 25,000
Underlying
Shares Subject to Warrant: 43,750
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Ronald Henriksen
By: /s/ Ronald Henriksen
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $50,160
Number of
Shares to be Acquired: 22,000
Underlying
Shares Subject to Warrant: 38,500
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Alan Rutner
By: /s/ Alan Rutner
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $50,000
Number of
Shares to be Acquired: 21,930
Underlying
Shares Subject to Warrant: 38,378
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Lisa J. Burley Revocable Trust
By: /s/ Lisa J. Burley
Name: Lisa J.
Burley
Title: Trustee
Aggregate
Purchase Price (Subscription Amount): $50,000
Number of
Shares to be Acquired: 21,930
Underlying
Shares Subject to Warrant: 38,378
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Randy M. Bennis
By: /s/ Randy M. Bennis
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $50,000
Number of
Shares to be Acquired: 21,930
Underlying
Shares Subject to Warrant: 38,378
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Marc Hedrick
By: /s/ Marc Hedrick
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $45,600
Number of
Shares to be Acquired: 20,000
Underlying
Shares Subject to Warrant: 35,000
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Ronald Stricoff
By: /s/ Ronald Stricoff
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $45,600
Number of
Shares to be Acquired: 20,000
Underlying
Shares Subject to Warrant: 35,000
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Andrea Philippou
By: /s/ Andrea Philippou
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $45,000
Number of
Shares to be Acquired: 19,737
Underlying
Shares Subject to Warrant: 34,540
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Angel Martinez
By: /s/ Angel Martinez
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $30,000
Number of
Shares to be Acquired: 13,158
Underlying
Shares Subject to Warrant: 23,027
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Gregory J. Randazza
By: /s/ Gregory J. Randazza
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $30,000
Number of
Shares to be Acquired: 13,158
Underlying
Shares Subject to Warrant: 23,027
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Bob Friedman
By: /s/ Bob Friedman
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $25,080
Number of
Shares to be Acquired: 11,000
Underlying
Shares Subject to Warrant: 19,250
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: 1999 Garfinkle Family Trust
By: /s/ Marla Garfinkle
Name: Marla
Garfinkle
Title: Trustee
Aggregate
Purchase Price (Subscription Amount): $25,000
Number of
Shares to be Acquired: 10,965
Underlying
Shares Subject to Warrant: 19,189
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Louis Berlin
By: /s/ Louis Berlin
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $25,000
Number of
Shares to be Acquired: 10,965
Underlying
Shares Subject to Warrant: 19,189
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Sidney J. Workman
By: /s/ Sidney J. Workman
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $25,000
Number of
Shares to be Acquired: 10,965
Underlying
Shares Subject to Warrant: 19,189
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: James Garrett Schwendig M.D., Inc.
By: /s/ James Garrett Schwendig
Name: James Garrett
Schwendig
Title: President
Aggregate
Purchase Price (Subscription Amount): $22,800
Number of
Shares to be Acquired: 10,000
Underlying
Shares Subject to Warrant: 17,500
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Kenneth J. Sobel & Debra S. Sobel, Husband and Wife as tenants by
the entireties
By: /s/ Kenneth J. Sobel
60;
By: /s/ Debra
S. Sobel
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $20,000
Number of
Shares to be Acquired: 8,772
Underlying
Shares Subject to Warrant: 15,351
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Mike Reuter
By: /s/ Mike Reuter
0;
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $20,000
Number of
Shares to be Acquired: 8,772
Underlying
Shares Subject to Warrant: 15,351
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Seitlin & Company
By: /s/ M. Stephen Jackman
Name: M. Stephen
Jackman
Title: Chairman
Aggregate
Purchase Price (Subscription Amount): $17,100
Number of
Shares to be Acquired: 7,500
Underlying
Shares Subject to Warrant: 13,125
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Stanley R. Brenner
By: /s/ Stanley R. Brenner
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $11,400
Number of
Shares to be Acquired: 5,000
Underlying
Shares Subject to Warrant: 8,750
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Alan J. Brenner
By: /s/ Alan J. Brenner
160;
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $11,400
Number of
Shares to be Acquired: 5,000
Underlying
Shares Subject to Warrant: 8,750
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Sam Katz
By: /s/ Sam
Katz
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $11,400
Number of
Shares to be Acquired: 5,000
Underlying
Shares Subject to Warrant: 8,750
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Dave Rickey & Daughters Foundation
By: /s/ David M. Rickey
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $10,000
Number of
Shares to be Acquired: 4,386
Underlying
Shares Subject to Warrant: 7,676
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
NAME OF
PURCHASER: Solomon Genet
By: /s/ Solomon Genet
Name:
Title:
Aggregate
Purchase Price (Subscription Amount): $5,000
Number of
Shares to be Acquired: 2,193
Underlying
Shares Subject to Warrant: 3,838
(175% of
the number of Shares to be acquired)
Tax ID
No.: ____________________
Address for Notice:
__________________________________
__________________________________
__________________________________
Telephone
No.: _______________________
Facsimile
No.: ________________________
E-mail
Address: ________________________
Attention: _______________________
Delivery
Instructions:
(if
different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: ____________________________
A: Form of
Warrant
B: Form of
Registration Rights Agreement
C-1: Accredited
Investor Questionnaire
C-2: Stock
Certificate and Warrant Questionnaire
D: Irrevocable
Transfer Agent Instructions
E: Form
of Secretary’s Certificate
F: Form
of Officer’s Certificate
G: Wire
Instructions
SCHEDULES
3.1(h)-2
SEC Reports; Disclosure Materials
4.1(b)
Legends
EXHIBIT
A
Form of
Warrant
EXHIBIT
B
Form of
Registration Rights Agreement
Instruction
Sheet
(to be
read in conjunction with the entire
Securities
Purchase Agreement and Registration Rights Agreement)
A.
|
Complete
the following items in the Securities Purchase Agreement and/or
Registration Rights Agreement:
|
|
1.
|
Provide
the information regarding the Purchaser requested on the signature
page. The Securities
Purchase Agreement and the Registration Rights Agreement must be executed
by an individual authorized to bind the
Purchaser.
|
|
2.
|
Exhibit C-1 –
Accredited Investor Questionnaire:
|
|
Provide
the information requested by the Accredited Investor
Questionnaire
|
|
3.
|
Exhibit C-2
Stock Certificate and Warrant
Questionnaire:
|
|
Provide
the information requested by the Stock Certificate and Warrant
Questionnaire
|
|
4.
|
Annex
B to the Registration Rights Agreement -- Selling Securityholder Notice
and Questionnaire
|
|
Provide
the information requested by the Selling Securityholder Notice and
Questionnaire
|
|
5.
|
Return
the signed Securities Purchase Agreement and Registration Rights Agreement
to:
|
Cytori Therapeutics, Inc.
3020
Callan Road
San
Diego, California 92121
Telephone
No.: (858) 458-0900
Facsimile
No.: (858) 450-4335
Attention: Jon
Soneff
B.
|
Instructions
regarding the transfer of funds for the purchase of Securities is set
forth on Exhibit
G to the Securities Purchase
Agreement.
|
EXHIBIT
C-1
ACCREDITED
INVESTOR QUESTIONNAIRE
(ALL
INFORMATION WILL BE TREATED CONFIDENTIALLY)
To: Cytori
Therapeutics, Inc.
This
Investor Questionnaire (“Questionnaire”) must
be completed by each potential investor in connection with the offer and sale of
shares of common stock, par value $0.001 per share, and warrants to purchase
shares of common stock (the “Securities”), of
Cytori Therapeutics, Inc., a Delaware corporation (the “Corporation”). The
Securities are being offered and sold by the Corporation without registration
under the Securities Act of 1933, as amended (the “Act”), and the
securities laws of certain states, in reliance on the exemptions contained in
Section 4(2) of the Act and on Regulation D promulgated thereunder and in
reliance on similar exemptions under applicable state laws. The
Corporation must determine that a potential investor meets certain suitability
requirements before offering or selling Securities to such
investor. The purpose of this Questionnaire is to assure the
Corporation that each investor will meet the applicable suitability
requirements. The information supplied by you will be used in
determining whether you meet such criteria, and reliance upon the private
offering exemptions from registration is based in part on the information herein
supplied.
This
Questionnaire does not constitute an offer to sell or a solicitation of an offer
to buy any security. Your answers will be kept strictly
confidential. However, by signing this Questionnaire, you will be
authorizing the Corporation to provide a completed copy of this Questionnaire to
such parties as the Corporation deems appropriate in order to ensure that the
offer and sale of the Securities will not result in a violation of the Act or
the securities laws of any state and that you otherwise satisfy the suitability
standards applicable to purchasers of the Securities. All potential
investors must answer all applicable questions and complete, date and sign this
Questionnaire. Please print or type your responses and attach
additional sheets of paper if necessary to complete your answers to any
item.
PART
A. BACKGROUND
INFORMATION
Name of
Beneficial Owner of the Securities:
Business
Address:
(Number and Street)
&
#160;
(City) (State) (Zip
Code)
Telephone
Number:
(___)
If
a corporation, partnership, limited liability company, trust or other
entity:
Type of
entity:
State of
formation:______________________ Approximate
Date of formation: ____________________
|
Were
you formed for the purpose of investing in the securities being
offered?
|
Yes
____ No
____
If an
individual:
Residence
Address:
(Number and Street)
&
#160;
(City) (State) (Zip
Code)
Telephone
Number:
(___)
Age:
__________ Citizenship:
____________ Where
registered to vote: _______________
Set forth
in the space provided below the state(s), if any, in the United States in which
you maintained your residence during the past two years and the dates during
which you resided in each state:
|
Are
you a director or executive officer of the
Corporation?
|
Yes
____ No
____
Social
Security or Taxpayer Identification
No.
PART
B. ACCREDITED INVESTOR
QUESTIONNAIRE
In order for the Company to offer and
sell the Securities in conformance with state and federal securities laws, the
following information must be obtained regarding your investor status. Please
initial each
category applicable to you as a
Purchaser of Securities of the Company.
|
__
(1)
|
A
bank as defined in Section 3(a)(2) of the Securities Act, or any savings
and loan association
or other institution as defined in Section 3(a)(5)(A) of the Securities
Act whether
acting in its individual or fiduciary
capacity;
|
|
__
(2)
|
A
broker or dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934
|
|
__
(3)
|
An
insurance company as defined in Section 2(13) of the Securities
Act;
|
|
__
(4)
|
An
investment company registered under the Investment Company Act of 1940 or
a business development company as defined in Section 2(a)(48) of that
Act;
|
|
__
(5)
|
A
Small Business Investment Company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958;
|
|
__
(6)
|
A
plan established and maintained by a state, its political subdivisions, or
any agency or instrumentality of a state or its political subdivisions,
for the benefit of its employees, if such plan has total assets in excess
of $5,000,000;
|
|
__
(7)
|
An
employee benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974, if the investment decision is made by a plan
fiduciary, as defined in Section 3(21) of such act, which is either a
bank, savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total assets in
excess of $5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are accredited
investors;
|
|
__
(8)
|
A
private business development company as defined in Section 202(a)(22) of
the Investment Advisers Act of
1940;
|
|
__
(9)
|
An
organization described in Section 501(c)(3) of the Internal Revenue Code,
a corporation, Massachusetts or similar business trust, or partnership,
not formed for the specific purpose of acquiring the Securities, with
total assets in excess of
$5,000,000;
|
|
__
(10)
|
A
trust, with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the Securities, whose purchase is directed
by a sophisticated person who has such knowledge and experience in
financial and business matters that such person is capable of evaluating
the merits and risks of investing in the
Company;
|
|
__
(11)
|
A
natural person whose individual net worth, or joint net worth with that
person’sspouse, at the time of his purchase exceeds
$1,000,000;
|
|
__
(12)
|
A natural person who had an individual income in excess
of $200,000 in each of thetwo most recent years, or joint income with that
person’s spouse in excess of$300,000, in each of those years, and has a
reasonable expectation of reaching the same income level in the current
year; |
|
___(13)
|
An
executive officer or director of the
Company;
|
|
___(14)
|
An
entity in which all of the equity owners qualify under any of the above
subparagraphs. If the undersigned belongs to this investor category only,
list the equity owners of the undersigned, and the investor category which
each such equity owner satisfies.
|
A. FOR
EXECUTION BY AN INDIVIDUAL:
By
Date
Print
Name:
B. FOR
EXECUTION BY AN ENTITY:
Entity Name:
By
Date
Print
Name:
C. ADDITIONAL
SIGNATURES (if required by partnership, corporation or trust
document):
EXHIBIT
C-2
Stock
Certificate and Warrant Questionnaire
Pursuant
to Section 2.2(b) of the Agreement, please provide us with the following
information:
1.
|
The
exact name that the Securities are to be registered in (this is the name
that will appear on the stock certificate(s) and
warrant(s)). You may use a nominee name if
appropriate:
|
|
2.
|
The
relationship between the Purchaser of the Securities and the Registered
Holder listed in response to Item 1 above:
|
|
3.
|
The
mailing address, telephone and telecopy number of the Registered Holder
listed in response to Item 1 above:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.
|
The
Tax Identification Number (or, if an individual, the Social Security
Number) of the Registered Holder listed in response to Item 1
above:
|
|
EXHIBIT
D
Form of
Irrevocable Transfer Agent Instructions
As of
_________, 2009
Computershare
Investor Services, LLC
[Address]
[Address]
Attn: _________________
Ladies
and Gentlemen:
Reference
is made to that certain Securities Purchase Agreement, dated as of May 7, 2009
(the “Agreement”), by
and among Cytori Therapeutics, Inc., a Delaware corporation (the “Company”), and the purchasers
named on the signature pages thereto (collectively, and including permitted
transferees, the “Holders”), pursuant to which
the Company is issuing to the Holders shares of common stock (the “Shares”) of the Company, par
value $0.001 per share (the “Common Stock”) and warrants
(the “Warrants”) which
are exercisable into Common Stock.
This
letter shall serve as our irrevocable authorization and direction to you
(provided that you are the transfer agent of the Company at such time and the
conditions set forth in this letter are satisfied), subject to any stop transfer
instructions that we may issue to you from time to time, if any, to issue
certificates representing shares of Common Stock to a Holder from time to time
upon delivery to you of instructions by the Company as indicated in writing
executed by a duly authorized officer of the Company together with indication of
receipt of the exercise price therefor.
You acknowledge and agree that so long
as you have received (a) written confirmation from the Company’s legal
counsel that either (1) a registration statement covering resales of the
Shares and Warrant Shares has been declared effective by the Securities and
Exchange Commission (the “Commission”) under the
Securities Act of 1933, as amended (the “Securities Act”), or
(2) the Shares and Warrant Shares have been sold in conformity with
Rule 144 under the Securities Act (“Rule 144”) or are
eligible for sale under Rule 144, without the requirement for the Company to be
in compliance with the current public information required under Rule 144 as to
such securities and without volume or manner-of-sale restrictions and
(b) if applicable, a copy of such registration statement, then, unless
otherwise required by law, within three (3) business days of your receipt
of written authorization from a duly authorized officer of the Company that the
Common Stock may be issued pursuant to the Exercise Notice, you shall issue the
certificates representing the Common Stock registered in the names of such
Holders or transferees, as the case may be, and such certificates shall not bear
any legend restricting transfer of the Shares or Warrant Shares thereby and
should not be subject to any stop-transfer restriction; provided, however, that if
such Shares or Warrant Shares are not registered for resale under the Securities
Act or able to be sold under Rule 144 without the requirement for the Company to
be in compliance with the current public information required under Rule 144 as
to such securities and without volume or manner-of-sale restrictions, then the
certificates for such Shares or Warrant Shares shall bear the following
restrictive legend:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE
ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES
ACT OR (B) AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS AS EVIDENCED BY A LEGAL
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS TRANSFER AGENT
OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID
ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING
ARRANGEMENT SECURED BY THE SECURITIES. NO REPRESENTATION IS MADE BY
THE ISSUER AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT FOR RESALES OF THESE SECURITIES.
The
Shares and the Warrant Shares shall continue to bear the following informative
legend:
THIS
CERTIFICATE EVIDENCES AND ENTITLES THE HOLDER HEREOF TO CERTAIN RIGHTS AS SET
FORTH IN A RIGHTS AGREEMENT BETWEEN CYTORI THERAPEUTICS, INC. AND COMPUTERSHARE
TRUST COMPANY, INC., A COLORADO CORPORATION, AS RIGHTS AGENT, DATED AS OF MAY
29, 2003, AS AMENDED (THE “RIGHTS AGREEMENT”), THE TERMS OF WHICH ARE HEREBY
INCORPORATED HEREIN BY REFERENCE AND A COPY OF WHICH IS ON FILE AT THE PRINCIPAL
EXECUTIVE OFFICES OF CYTORI THERAPEUTICS, INC. UNDER CERTAIN CIRCUMSTANCES, AS
SET FORTH IN THE RIGHTS AGREEMENT, SUCH RIGHTS WILL BE EVIDENCED BY SEPARATE
CERTIFICATES AND WILL NO LONGER BE EVIDENCED BY THIS CERTIFICATE. CYTORI
THERAPEUTICS, INC. WILL MAIL TO THE HOLDER OF THIS CERTIFICATE A COPY OF THE
RIGHTS AGREEMENT WITHOUT CHARGE AFTER RECEIPT OF A WRITTEN REQUEST THEREFOR.
UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS ISSUED TO,
OR HELD BY, ANY PERSON WHO IS, WAS OR BECOMES AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE THEREOF (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT) AND CERTAIN RELATED PERSONS, WHETHER CURRENTLY HELD BY OR ON BEHALF
OF SUCH PERSON OR BY ANY SUBSEQUENT HOLDER, MAY BECOME NULL AND
VOID.
A form of
written confirmation from the Company’s outside legal counsel that a
registration statement covering resales of the Shares and Warrant Shares has
been declared effective by the Commission under the Securities Act is attached
hereto as Annex I.
Please
execute this letter in the space indicated to acknowledge your agreement to act
in accordance with these instructions.
Very truly yours,
CYTORI THERAPEUTICS, INC.
By: __________________________________
Name:
________________________________
Title: ________________________________
Acknowledged
and Agreed:
COMPUTERSHARE
INVESTOR SERVICES, LLC
By:
__________________________________
Name:
________________________________
Title: ________________________________
Date: _________________,
2009
Annex I
FORM
OF NOTICE OF EFFECTIVENESS OF REGISTRATION STATEMENT
|
|
|
Computershare
Investor Services
[Address]
[Address]
Attn: _________________
|
|
|
|
|
|
Re:
Cytori Therapeutics,
Inc.
|
Ladies
and Gentlemen:
We
are counsel to Cytori Therapeutics, Inc., a Delaware corporation (the “Company”), and have
represented the Company in connection with that certain Securities Purchase
Agreement, dated as of May 7, 2009, entered into by and among the Company and
the buyers named therein (collectively, the “Purchasers”) pursuant to
which the Company issued to the Purchasers shares of the Company’s common stock,
$0.001 par value per share (the “Common Stock”) and warrants
to purchase additional shares of Common Stock. Pursuant to that
certain Registration Rights Agreement of even date, the Company agreed to
register the resale of such shares and the shares issuable upon exercise of such
warrants (collectively, the “Registrable Securities”),
under the Securities Act of 1933, as amended (the “Securities Act”). In
connection with the Company’s obligations under the Registration Rights
Agreement, on ,
2009, the Company filed a Registration Statement on Form S-3 (File
No. 333- )
(the “Registration
Statement”) with the Securities and Exchange Commission (the “Commission”) relating to the
Registrable Securities which names each of the Purchasers as a selling
stockholder thereunder.
In
connection with the foregoing, we advise you that a member of the Commission’s
staff has advised us by telephone that the Commission has entered an order
declaring the Registration Statement effective under the Securities Act at ____
[a.m.][p.m.] on __________, ____, and we have no knowledge, after telephonic
inquiry of a member of the staff, that any stop order suspending its
effectiveness has been issued or that any proceedings for that purpose are
pending before, or threatened by, the Commission and the Registrable Securities
are available for resale under the Securities Act pursuant to the Registration
Statement.
Pursuant
to the Agreement, the Purchasers have agreed to satisfy the applicable
prospectus delivery requirements and to sell pursuant to the “Plan of
Distribution” section in the Registration Statement. On the basis of
the foregoing, this letter shall serve as our standing notice to you that the
Common Stock may be freely transferred by the Purchasers pursuant to the
Registration Statement. You need not require further letters from us to effect
any future legend-free issuance or reissuance of Common Stock to the Purchasers
or the transferees of the Purchasers, as the case may be, as contemplated by the
Company’s Irrevocable Transfer Agent Instructions dated __________, 2009,
provided at the time of such reissuance, the Company has not otherwise notified
you that the Registration Statement is unavailable for the resale of the
Registrable Securities. This letter shall serve as our standing instructions
with regard to this matter.
|
|
|
|
|
|
|
Very
truly yours,
|
|
|
|
|
|
|
|
[DLA
PIPER US LLP]
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
CC: Purchasers
EXHIBIT
E
Form of
Secretary’s Certificate
The
undersigned hereby certifies that he is the duly elected, qualified and acting
Secretary of Cytori Therapeutics, Inc., a Delaware corporation (the "Company"), and that as such
he is authorized to execute and deliver this certificate in the name and on
behalf of the Company and in connection with the Securities Purchase Agreement,
dated as of May 7, 2009, by and among the Company and the investors party
thereto (the "Securities
Purchase Agreement"), and further certifies in his official capacity, in
the name and on behalf of the Company, the items set forth
below. Capitalized terms used but not otherwise defined herein shall
have the meaning set forth in the Securities Purchase Agreement.
1.
|
Attached
hereto as Exhibit A is a
true, correct and complete copy of (a) the resolutions duly adopted by the
Board of Directors of the Company, in a meeting of the Board held on
February 26, 2009, and (b) the resolutions duly adopted by the Special
Pricing Committee of the Board of Directors of the Company at a meeting of
the Special Pricing Committee held on May 6, 2009. Such
resolutions have not in any way been amended, modified, revoked or
rescinded, have been in full force and effect since their adoption to and
including the date hereof and are now in full force and
effect.
|
2.
|
Attached
hereto as Exhibit B is a
true, correct and complete copy of the Certificate of Incorporation of the
Company, together with any and all amendments thereto currently in effect,
and no action has been taken to further amend, modify or repeal such
Certificate of Incorporation, the same being in full force and effect in
the attached form as of the date
hereof.
|
3.
|
Attached
hereto as Exhibit C is a
true, correct and complete copy of the Bylaws of the Company and any and
all amendments thereto currently in effect, and no action has been taken
to further amend, modify or repeal such Bylaws, the same being in full
force and effect in the attached form as of the date
hereof.
|
4.
|
Each
person listed below has been duly elected or appointed to the position(s)
indicated opposite his name and is duly authorized to sign the Securities
Purchase Agreement and each of the Transaction Documents on behalf of the
Company, and the signature appearing opposite such person’s name below is
such person’s genuine signature.
|
Name
|
Position
|
Signature
|
Christopher
J. Calhoun
|
Chief
Executive Officer
|
_________________________
|
Mark
E. Saad
|
Chief
Financial Officer
|
_________________________
|
|
|
|
IN
WITNESS WHEREOF, the undersigned has hereunto set his hand as of this ___ day of
May, 2009.
|
|
|
Jonathan
E. Soneff |
|
Secretary |
I,
Christopher J. Calhoun, Chief Executive Officer, hereby certify that Jonathan E.
Soneff is the duly elected, qualified and acting Secretary of the Company and
that the signature set forth above is his true signature.
|
|
|
Christopher
J. Calhoun |
|
Secretary |
EXHIBIT
A
Resolutions
EXHIBIT
B
Certificate
of Incorporation
EXHIBIT
C
Bylaws
EXHIBIT
F
Form of
Officer’s Certificate
The
undersigned, the Chief Executive Officer of Cytori Therapeutics, Inc., a
Delaware corporation (the "Company"), pursuant to
Section 5.1(g) of the Securities Purchase Agreement, dated as of May 7, 2009, by
and among the Company and the investors signatory thereto (the "Securities Purchase
Agreement"), hereby represents, warrants and certifies as follows
(capitalized terms used but not otherwise defined herein shall have the meaning
set forth in the Securities Purchase Agreement):
|
1.
|
The
representations and warranties of the Company contained in the Securities
Purchase Agreement are true and correct in all material respects (except
for those representations and warranties which are qualified as to
materiality, in which case such representations and warranties shall be
true and correct in all respects) as of the date when made and as of the
Closing Date, as though made on and as of such date, except for such
representations and warranties that speak as of a specific
date.
|
|
2.
|
The
Company has performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by it at or prior to
the Closing.
|
IN WITNESS WHEREOF, the
undersigned has executed this certificate this ___ day of May,
2009.
___________________________
Christopher
J. Calhoun
Chief
Executive Officer
EXHIBIT
G
Wire
Instructions
Wells
Fargo Bank, N.A.
ABA #:
XXXXXX
Account
#: XXXXXXXX
Account
Name: Cytori Therapeutics, Inc.
Account
Officer: XXXXXXXXX
Phone
Number: XXXXXXXXXX
exhibit1064_warrant.htm
Exhibit
10.64
NEITHER
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE
SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT, OR (B) AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS OR BLUE SKY LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY. NOTWITHSTANDING THE
FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE
SECURITIES. NO REPRESENTATION IS MADE BY THE ISSUER AS TO THE
AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT FOR
RESALES OF THESE SECURITIES.
CYTORI
THERAPEUTICS, INC.
WARRANT
TO PURCHASE COMMON STOCK
|
|
|
Warrant
No. ___
|
|
Original
Issue Date: _________, 2009
|
Cytori
Therapeutics, Inc., a Delaware corporation (the “Company”), hereby certifies
that, for value received, [_______________] or its permitted registered assigns
(the “Holder”), is
entitled to purchase from the Company up to a total of [_____________
(__________)] shares of common stock, $0.001 par value per share (the “Common Stock”), of the
Company (each such share, a “Warrant Share” and all such
shares, the “Warrant
Shares”) at an exercise price per share equal to $2.62 per share (as
adjusted from time to time as provided in Section 9 herein, the “Exercise Price”), at any time
and from time to time after the date hereof (the “Trigger Date”) and through
and including 5:30 P.M., New York City time, on ____________, 2014 (the “Expiration Date”), and
subject to the following terms and conditions:
This
Warrant (this “Warrant”) is one of a series
of similar warrants issued pursuant to that certain Securities Purchase
Agreement, dated May 7, 2009, by and among the Company and the Purchasers
identified therein (the “Purchase
Agreement”). All such warrants are referred to herein,
collectively, as the “Warrants.”
1. Definitions. In
addition to the terms defined elsewhere in this Warrant, capitalized terms that
are not otherwise defined herein have the meanings given to such terms in the
Purchase Agreement.
2.
Registration of
Warrants. The Company shall register this Warrant, upon
records to be maintained by the Company for that purpose (the “Warrant Register”), in the
name of the record Holder (which shall include the initial Holder or, as the
case may be, any registered assignee to which this Warrant is permissibly
assigned hereunder) from time to time. The Company may deem and treat
the registered Holder of this Warrant as the absolute owner hereof for the
purpose of any exercise hereof or any distribution to the Holder, and for all
other purposes, absent actual notice to the contrary.
3. Registration of
Transfers. Subject to the restrictions on transfer set forth in Section
4.1 of the Purchase Agreement and compliance with all applicable securities
laws, the Company shall register the transfer of all or any portion of this
Warrant in the Warrant Register, upon surrender of this Warrant, with the Form
of Assignment attached as Schedule 2 hereto
duly completed and signed, to the Company’s transfer agent or to the Company at
its address specified in the Purchase Agreement and (x) delivery, at the request
of the Company, of an opinion of counsel reasonably satisfactory to the Company
to the effect that the transfer of such portion of this Warrant may be made
pursuant to an available exemption from the registration requirements of the
Securities Act and all applicable state securities or blue sky laws and (y)
delivery by the transferee of a written statement to the Company certifying that
the transferee is an “accredited investor” as defined in Rule 501(a) under the
Securities Act and making the representations and certifications set forth in
Section 3.2(b), (c), (d) and (f) of the Purchase Agreement, to the Company at
its address specified in the Purchase Agreement. Upon any such registration or
transfer, a new warrant to purchase Common Stock in substantially the form of
this Warrant (any such new warrant, a “New Warrant”) evidencing the
portion of this Warrant so transferred shall be issued to the transferee, and a
New Warrant evidencing the remaining portion of this Warrant not so transferred,
if any, shall be issued to the transferring Holder. The acceptance of the New
Warrant by the transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations in respect of the New Warrant
that the Holder has in respect of this Warrant. The Company shall prepare, issue
and deliver at its own expense any New Warrant under this Section
3.
4. Exercise and Duration of
Warrant.
(a) All
or any part of this Warrant shall be exercisable by the registered Holder in any
manner permitted by Section 10 of this Warrant at any time and from time to time
on or after the Trigger Date and through and including 5:30 P.M. New York City
time, on the Expiration Date. At 5:30 P.M., New York City time, on the
Expiration Date, the portion of this Warrant not exercised prior thereto shall
be and become void and of no value and this Warrant shall be terminated and no
longer outstanding.
(b) The
Holder may exercise this Warrant by delivering to the Company (i) an exercise
notice, in the form attached as Schedule 1 hereto
(the “Exercise
Notice”), completed and duly signed, and (ii) payment of the
Exercise Price for the number of Warrant Shares as to which this Warrant is
being exercised (which may take the form of a “cashless exercise” if so
indicated in the Exercise Notice and if a “cashless exercise” may occur at such
time pursuant to Section 10 below), and the date such items are delivered to the
Company (as determined in accordance with the notice provisions hereof) is an
“Exercise Date.” The
delivery by (or on behalf of) the Holder of the Exercise Notice and the
applicable Exercise Price as provided above shall constitute the Holder’s
certification to the Company that its representations contained in Section
3.2(b), (c), (d) and (f) of the Purchase Agreement are true and correct as of
the Exercise Date as if remade in their entirety (or, in the case of any
transferee Holder that is not a party to the Purchase Agreement, such transferee
Holder’s certification to the Company that such representations are true and
correct as to such assignee Holder as of the Exercise Date). The
Holder shall not be required to deliver the original Warrant in order to effect
an exercise hereunder, but if it is not so delivered then such exercise shall
constitute an agreement by the Holder to deliver the original Warrant to the
Company as soon as practicable thereafter. Execution and delivery of
the Exercise Notice shall have the same effect as cancellation of the original
Warrant and issuance of a New Warrant evidencing the right to purchase the
remaining number of Warrant Shares.
5. Delivery of Warrant
Shares.
(a) Upon
exercise of this Warrant, the Company shall promptly (but in no event later than
three Trading Days after the Exercise Date) issue or cause to be issued and
cause to be delivered to or upon the written order of the Holder and in such
name or names as the Holder may designate (provided that, if the Registration
Statement is not effective and the Holder directs the Company to deliver a
certificate for the Warrant Shares in a name other than that of the Holder or an
Affiliate of the Holder, it shall deliver to the Company on the Exercise Date an
opinion of counsel reasonably satisfactory to the Company to the effect that the
issuance of such Warrant Shares in such other name may be made pursuant to an
available exemption from the registration requirements of the Securities Act and
all applicable state securities or blue sky laws), (i) a certificate for the
Warrant Shares issuable upon such exercise, free of restrictive legends, or (ii)
an electronic delivery of the Warrant Shares to the Holder’s account at the
Depository Trust Company (“DTC”) or a similar
organization, unless in the case of clause (i) and (ii) a registration statement
covering the resale of the Warrant Shares and naming the Holder as a selling
stockholder thereunder is not then effective or the Warrant Shares are not
freely transferable without restriction under Rule 144 by Holders who are not
affiliates of the Company, in which case such Holder shall receive a certificate
for the Warrant Shares issuable upon such exercise with appropriate restrictive
legends. The Holder, or any Person permissibly so designated by the
Holder to receive Warrant Shares, shall be deemed to have become the holder of
record of such Warrant Shares as of the Exercise Date. If the Warrant
Shares are to be issued free of all restrictive legends, the Company shall, upon
the written request of the Holder, use its commercially reasonable best efforts
to deliver, or cause to be delivered, Warrant Shares hereunder electronically
through The Depository Trust Company or another established clearing corporation
performing similar functions, if available; provided, that, the Company will not
be required to, change its transfer agent if its current transfer agent cannot
deliver Warrant Shares electronically through such a clearing
corporation.
(b)
If by the close of the third Trading Day after delivery of an Exercise Notice
and the payment of the aggregate exercise price in any manner permitted by
Section 10 of this Warrant, the Company fails to deliver to the Holder a
certificate representing the required number of Warrant Shares in the manner
required pursuant to Section 5(a), and if after such third Trading Day and prior
to the receipt of such Warrant Shares, the Holder purchases (in an open market
transaction or otherwise) shares of Common Stock to deliver in satisfaction of a
sale by the Holder of the Warrant Shares which the Holder anticipated receiving
upon such exercise (a “Buy-In”), then the Company
shall, within three (3) Trading Days after the Holder’s request and in the
Holder’s sole discretion, either (1) pay in cash to the Holder an amount equal
to the Holder’s total purchase price (including brokerage commissions, if any)
for the shares of Common Stock so purchased (the “Buy-In Price”), at which
point the Company’s obligation to deliver such certificate (and to issue such
Warrant Shares) shall terminate or (2) promptly honor its obligation to deliver
to the Holder a certificate or certificates representing such Warrant Shares and
pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In
Price over the product of (A) such number of Warrant Shares, times (B) the
closing bid price of a share of Common Stock as reported on the Exercise
Date.
(c) To
the extent permitted by law, the Company’s obligations to issue and deliver
Warrant Shares in accordance with the terms hereof are absolute and
unconditional, irrespective of any action or inaction by the Holder to enforce
the same, any waiver or consent with respect to any provision hereof, the
recovery of any judgment against any Person or any action to enforce the same,
or any setoff, counterclaim, recoupment, limitation or termination, or any
breach or alleged breach by the Holder or any other Person of any obligation to
the Company or any
violation
or alleged violation of law by the Holder or any other Person, and irrespective
of any other circumstance that might otherwise limit such obligation of the
Company to the Holder in connection with the issuance of Warrant Shares. Nothing
herein shall limit the Holder’s right to pursue any other remedies available to
it hereunder, at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief with respect to the Company’s
failure to timely deliver certificates representing shares of Common Stock upon
exercise of the Warrant as required pursuant to the terms hereof.
6. Charges, Taxes and
Expenses. Issuance and delivery of certificates for shares of Common
Stock upon exercise of this Warrant shall be made without charge to the Holder
for any issue or transfer tax, transfer agent fee or other incidental tax or
expense in respect of the issuance of such certificates, all of which taxes and
expenses shall be paid by the Company; provided, however, that the
Company shall not be required to pay any tax that may be payable in respect of
any transfer involved in the registration of any certificates for Warrant Shares
or the Warrants in a name other than that of the Holder or an Affiliate thereof.
The Holder shall be responsible for all other tax liability that may arise as a
result of holding or transferring this Warrant or receiving Warrant Shares upon
exercise hereof.
7. Replacement of
Warrant. If this Warrant is mutilated, lost, stolen or
destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu of and substitution
for this Warrant, a New Warrant, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction (in such case)
and, in each case, a customary and reasonable indemnity and surety bond, if
requested by the Company. Applicants for a New Warrant under such circumstances
shall also comply with such other reasonable regulations and procedures and pay
such other reasonable third-party costs as the Company may prescribe. If a New
Warrant is requested as a result of a mutilation of this Warrant, then the
Holder shall deliver such mutilated Warrant to the Company as a condition
precedent to the Company’s obligation to issue the New Warrant.
8. Reservation of Warrant
Shares. The Company covenants that it will at all times reserve and keep
available out of the aggregate of its authorized but unissued and otherwise
unreserved Common Stock, solely for the purpose of enabling it to issue Warrant
Shares upon exercise of this Warrant as herein provided, the number of Warrant
Shares that are then issuable and deliverable upon the exercise of this entire
Warrant, free from preemptive rights or any other contingent purchase rights of
persons other than the Holder (taking into account the adjustments and
restrictions of Section 9). The Company covenants that all Warrant Shares so
issuable and deliverable shall, upon issuance and the payment of the applicable
Exercise Price in accordance with the terms hereof, be duly and validly
authorized, issued and fully paid and nonassessable. The Company will take all
such action as may be reasonably necessary to assure that such shares of Common
Stock may be issued as provided herein without violation of any applicable law
or regulation, or of any requirements of any securities exchange or automated
quotation system upon which the Common Stock may be listed.
9. Certain Adjustments.
The Exercise Price and number of Warrant Shares issuable upon exercise of this
Warrant are subject to adjustment from time to time as set forth in this Section
9.
(a)
Stock Dividends and
Splits. If the Company, at any time while this Warrant is outstanding,
(i) pays a stock dividend on its Common Stock or otherwise makes a distribution
on any class of capital stock that is payable in shares of Common Stock, (ii)
subdivides its outstanding shares of Common Stock into a larger number of
shares, or (iii) combines its outstanding shares of Common Stock into a smaller
number of shares, then in each such case the
Exercise
Price shall be multiplied by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding immediately before such event and
the denominator of which shall be the number of shares of Common Stock
outstanding immediately after such event. Any adjustment made pursuant to clause
(i) of this paragraph shall become effective immediately after the record date
for the determination of stockholders entitled to receive such dividend or
distribution, and any adjustment pursuant to clause (ii) or (iii) of this
paragraph shall become effective immediately after the effective date of such
subdivision or combination.
(b) Pro Rata
Distributions. If the Company, at any time while this Warrant
is outstanding, distributes to all holders of Common Stock for no consideration
(i) evidences of its indebtedness, (ii) any security (other than a distribution
of Common Stock covered by the preceding paragraph) or (iii) rights or warrants
to subscribe for or purchase any security, or (iv) any other asset (in each
case, “Distributed
Property”), then, upon any exercise of this Warrant that occurs after the
record date fixed for determination of stockholders entitled to receive such
distribution, the Holder shall be entitled to receive, in addition to the
Warrant Shares otherwise issuable upon such exercise (if applicable), the
Distributed Property that such Holder would have been entitled to receive in
respect of such number of Warrant Shares had the Holder been the record holder
of such Warrant Shares immediately prior to such record date without regard to
any limitation on exercise contained therein.
(c) Fundamental
Transactions. If, at any time while this Warrant is outstanding
(i) the Company effects (A) any merger of the Company with (but not into)
another Person, in which stockholders of the Company immediately prior to such
transaction own less than a majority of the outstanding stock of the surviving
entity, or (B) any merger or consolidation of the Company into another Person,
(ii) the Company effects any sale of all or substantially all of its assets in
one or a series of related transactions, (iii) any tender offer or exchange
offer approved or authorized by the Company’s Board of Directors is completed
pursuant to which holders of at least a majority of the outstanding Common Stock
tender or exchange their shares for other securities, cash or property, or (iv)
the Company effects any reclassification of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively converted into
or exchanged for other securities, cash or property (other than as a result of a
subdivision or combination of shares of Common Stock covered by Section 9(a)
above) (in any such case, a “Fundamental Transaction”),
then the Holder shall have the right thereafter to receive, upon exercise of
this Warrant, the same amount and kind of securities, cash or property as it
would have been entitled to receive upon the occurrence of such Fundamental
Transaction if it had been, immediately prior to such Fundamental Transaction,
the holder of the number of Warrant Shares then issuable upon exercise in full
of this Warrant without regard to any limitations on exercise contained herein
(the “Alternate
Consideration”), and the Holder shall no longer have the right to receive
Warrant Shares upon exercise of this Warrant. The Company shall not
effect any such Fundamental Transaction unless prior to or simultaneously with
the consummation thereof, any successor to the Company, surviving entity or the
corporation purchasing or otherwise acquiring such assets or other appropriate
corporation or Person shall assume the obligation to deliver to the Holder, such
Alternate Consideration as, in accordance with the foregoing provisions, the
Holder may be entitled to receive, and the other obligations under this
Warrant. The provisions of this paragraph (c) shall similarly apply
to subsequent transactions analogous of a Fundamental Transaction type.
Notwithstanding the foregoing, in the event of a Fundamental Transaction in
which the consideration consists of substantially all cash or securities of a
private company, at the request of the Holder delivered before the 20th day
after such Fundamental Transaction, the Company (or the successor entity) shall
purchase this Warrant from the Holder by paying to the Holder, within five
Business Days after such request (or, if later, on the effective date of the
Fundamental Transaction), cash in an amount equal to the Black
Scholes
Value (as defined below) of the remaining unexercised portion of this Warrant on
the date of such Fundamental Transaction. For purposes hereof, “Black
Scholes Value” means the value of this Warrant based on the Black and Scholes
Option Pricing Model obtained from the “OV” function on
Bloomberg Financial Markets (“Bloomberg”) determined as of the day
immediately following the public announcement of the applicable Fundamental
Transaction and reflecting (i) a risk-free interest rate corresponding to the
U.S. Treasury rate for a period equal to the remaining term of this Warrant as
of such date of request and (ii) an expected volatility equal to the greater of
50% and the 100 day volatility obtained from the HVT function on
Bloomberg.
(d) Number of Warrant
Shares. Simultaneously with any adjustment to the Exercise Price pursuant
to paragraph (a) of this Section 9, the number of Warrant Shares that may be
purchased upon exercise of this Warrant shall be increased or decreased
proportionately, so that after such adjustment the aggregate Exercise Price
payable hereunder for the increased or decreased number of Warrant Shares shall
be the same as the aggregate Exercise Price in effect immediately prior to such
adjustment.
(e) Calculations. All
calculations under this Section 9 shall be made to the nearest cent or the
nearest 1/100th of a share, as applicable. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by or for
the account of the Company, and the disposition of any such shares shall be
considered an issue or sale of Common Stock.
(f) Notice of
Adjustments. Upon the occurrence of each adjustment pursuant to this
Section 9, the Company at its expense will, at the written request of the
Holder, promptly compute such adjustment, in good faith, in accordance with the
terms of this Warrant and prepare a certificate setting forth such adjustment,
including a statement of the adjusted Exercise Price and adjusted number or type
of Warrant Shares or other securities issuable upon exercise of this Warrant (as
applicable), describing the transactions giving rise to such adjustments and
showing in reasonable detail the facts upon which such adjustment is based. Upon
written request, the Company will promptly deliver a copy of each such
certificate to the Holder and to the Company’s transfer agent.
(g) Notice of Corporate
Events. If, while this Warrant is outstanding, the Company (i) declares a
dividend or any other distribution of cash, securities or other property in
respect of its Common Stock, including, without limitation, any granting of
rights or warrants to subscribe for or purchase any capital stock of the Company
or any Subsidiary, (ii) authorizes or approves, enters into any agreement
contemplating or solicits stockholder approval for any Fundamental Transaction
or (iii) authorizes the voluntary dissolution, liquidation or winding up of the
affairs of the Company, then, except if such notice and the contents thereof
shall be deemed to constitute material non-public information, the Company shall
deliver to the Holder a notice describing the material terms and conditions of
such transaction at least ten (10) business days prior to the applicable record
or effective date on which a Person would need to hold Common Stock in order to
participate in or vote with respect to such transaction; provided, however, that the
failure to deliver such notice or any defect therein shall not affect the
validity of the corporate action required to be described in such
notice.
10. Payment of Exercise
Price. The Holder shall pay the Exercise Price in immediately available
funds; provided,
however, that if, on any Exercise Date there is not an effective
Registration Statement (as defined in that certain Registration Rights
Agreement, of even date herewith, by and among the Company and the several
purchasers signatory thereto) registering, or no current prospectus available
for, the resale of the Warrant Shares by the Holder, then the
Holder
may, in its sole discretion, satisfy its obligation to pay the Exercise Price
through a “cashless exercise”, in which event the Company shall issue to the
Holder the number of Warrant Shares determined as follows:
X = Y
[(A-B)/A]
where:
X = the
number of Warrant Shares to be issued to the Holder.
Y = the
total number of Warrant Shares with respect to which this Warrant is being
exercised.
A = the
average of the Closing Sale Prices of a share of Common Stock (as reported by
Bloomberg Financial Markets) for the five (5) Trading Days ending on the date
immediately preceding the Exercise Date.
B = the
Exercise Price then in effect for the applicable Warrant Shares at the time of
such exercise.
For
purposes of this Warrant, “Closing Sale Price” means,
for any security as of any date, the last trade price for such security on the
principal securities exchange or trading market for such security, as reported
by Bloomberg Financial Markets, or, if such exchange or trading market begins to
operate on an extended hours basis and does not designate the last trade price,
then the last trade price of such security prior to 4:00 P.M., New York City
time, as reported by Bloomberg Financial Markets, or if the foregoing do not
apply, the last trade price of such security in the over-the-counter market on
the electronic bulletin board for such security as reported by Bloomberg
Financial Markets, or, if no last trade price is reported for such security by
Bloomberg Financial Markets, the average of the bid prices, or the ask prices,
respectively, of any market makers for such security as reported in the "pink
sheets" by Pink Sheets LLC. If the Closing Sale Price cannot be
calculated for a security on a particular date on any of the foregoing bases,
the Closing Sale Price of such security on such date shall be the fair market
value as mutually determined by the Company and the Holder. If the
Company and the Holder are unable to agree upon the fair market value of such
security, then the Board of Directors of the Company shall use its good faith
judgment to determine the fair market value. The Board of Directors’
determination shall be binding upon all parties absent demonstrable
error. All such determinations shall be appropriately adjusted for
any stock dividend, stock split, stock combination or other similar transaction
during the applicable calculation period.
For
purposes of Rule 144 promulgated under the Securities Act, it is intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction shall be deemed to have been acquired by the original
Holder, and the holding period for the Warrant Shares shall be deemed to have
commenced as to such original Holder, on the date this Warrant was originally
issued pursuant to the Purchase Agreement (provided that the Commission
continues to take the position that such treatment is proper at the time of such
exercise).
11. Limitations on
Exercise. Notwithstanding anything to the contrary contained herein, the
number of Warrant Shares that may be acquired by the Holder upon any exercise of
this Warrant (or otherwise in respect hereof) shall be limited to the extent
necessary to ensure that, following such exercise (or other issuance), the total
number of shares of Common Stock then beneficially owned by the Holder and its
Affiliates and any other Persons whose beneficial ownership of
Common
Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the
Exchange Act, does not exceed 19.999% of the total number of issued and
outstanding shares of Common Stock (including for such purpose the shares of
Common Stock issuable upon such exercise). For such purposes, beneficial
ownership shall be determined in accordance with Section 13(d) of the Exchange
Act and the rules and regulations promulgated thereunder. Each delivery of an
Exercise Notice by the Holder will constitute a representation by the Holder
that it has evaluated the limitation set forth in this Section 11 and determined
that issuance of the full number of Warrant Shares requested in such Exercise
Notice is permitted under this Section 11. The Company’s obligation
to issue shares of Common Stock in excess of the limitation referred to in this
Section 11 shall be suspended (and, except as provided below, shall not
terminate or expire notwithstanding any contrary provisions hereof) until such
time, if any, as such shares of Common Stock may be issued in compliance with
such limitation; provided, that, if, as of 5:30 P.M., New York City time, on the
Expiration Date, the Company has not received written notice that the shares of
Common Stock may be issued in compliance with such limitation, the Company’s
obligation to issue such shares shall terminate. This provision shall
not restrict the number of shares of Common Stock which a Holder may receive or
beneficially own in order to determine the amount of securities or other
consideration that such Holder may receive in the event of a Fundamental
Transaction as contemplated in Section 9 of this Warrant.
12. No Fractional Shares.
No fractional Warrant Shares will be issued in connection with any exercise of
this Warrant. In lieu of any fractional shares that would otherwise
be issuable, the number of Warrant Shares to be issued shall be rounded down to
the next whole number and the Company shall pay the Holder in cash the fair
market value (based on the Closing Sale Price) for any such fractional
shares.
13. Notices. Any and all
notices or other communications or deliveries hereunder (including, without
limitation, any Exercise Notice) shall be in writing and shall be deemed given
and effective on the earliest of (i) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified in
the Purchase Agreement prior to 5:30 P.M., New York City time, on a Trading Day,
(ii) the next Trading Day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified in
the Purchase Agreement on a day that is not a Trading Day or later than 5:30
P.M., New York City time, on any Trading Day, (iii) the Trading Day following
the date of mailing, if sent by nationally recognized overnight courier service
specifying next business day delivery, or (iv) upon actual receipt by the party
to whom such notice is required to be given, if by hand delivery. The address
and facsimile number of a party for such notices or communications shall be as
set forth in the Purchase Agreement unless changed by such party by two (2)
Trading Days’ prior notice to the other party in accordance with this Section
13.
14. Warrant Agent. The
Company shall serve as warrant agent under this Warrant. Upon thirty (30) days’
notice to the Holder, the Company may appoint a new warrant agent. Any
corporation into which the Company or any new warrant agent may be merged or any
corporation resulting from any consolidation to which the Company or any new
warrant agent shall be a party or any corporation to which the Company or any
new warrant agent transfers substantially all of its corporate trust or
shareholders services business shall be a successor warrant agent under this
Warrant without any further act. Any such successor warrant agent shall promptly
cause notice of its succession as warrant agent to be mailed (by first class
mail, postage prepaid) to the Holder at the Holder’s last address as shown on
the Warrant Register.
15. Miscellaneous.
(a) No Rights as a
Stockholder. The Holder, solely in such Person's
capacity as a holder of this Warrant, shall not be entitled to vote or receive
dividends or be deemed the holder of share capital of the Company for any
purpose, nor shall anything contained in this Warrant be construed to confer
upon the Holder, solely in such Person's capacity as the Holder of this Warrant,
any of the rights of a stockholder of the Company or any right to vote, give or
withhold consent to any corporate action (whether any reorganization, issue of
stock, reclassification of stock, consolidation, merger, amalgamation,
conveyance or otherwise), receive notice of meetings, receive dividends or
subscription rights, or otherwise, prior to the issuance to the Holder of the
Warrant Shares which such Person is then entitled to receive upon the due
exercise of this Warrant. In addition, nothing contained in this Warrant shall
be construed as imposing any liabilities on the Holder to purchase any
securities, whether such liabilities are asserted by the Company or by creditors
of the Company.
(b) Successors and
Assigns. Subject to the restrictions on transfer set forth in
this Warrant and in Section 4.1 of the Purchase Agreement, and compliance with
applicable securities laws, this Warrant may be assigned by the Holder. This
Warrant may not be assigned by the Company without the written consent of the
Holder except to a successor in the event of a Fundamental Transaction. This
Warrant shall be binding on and inure to the benefit of the parties hereto and
their respective successors and assigns. Subject to the preceding sentence,
nothing in this Warrant shall be construed to give to any Person other than the
Company and the Holder any legal or equitable right, remedy or cause of action
under this Warrant.
(c) Amendment and
Waiver. This Warrant may be amended only in writing signed by
the Company and the Holder, or their successors and assigns. Except as otherwise
provided herein, the provisions of the Warrants may be amended and the Company
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company has obtained the written
consent of the Holders of Warrants representing a majority of the Warrant Shares
obtainable upon exercise of the Warrants then outstanding.
(d) Acceptance. Receipt
of this Warrant by the Holder shall constitute acceptance of and agreement to
all of the terms and conditions contained herein.
(e) Governing Law; Service of
Process. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY,
ENFORCEMENT AND INTERPRETATION OF THIS WARRANT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. EACH PARTY HEREBY
IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING
SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA
REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY)
TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THE PURCHASE
AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT
SERVICE OF PROCESS AND NOTICE THEREOF. EACH PARTY HEREBY WAIVES ALL RIGHTS TO A
TRIAL BY JURY.
(f) Headings.
The headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
(g) Severability.
In case any one or more of the provisions of this Warrant shall be invalid
or unenforceable in any respect, the validity and enforceability of the
remaining terms
and
provisions of this Warrant shall not in any way be affected or impaired thereby,
and the parties will attempt in good faith to agree upon a valid and enforceable
provision which shall be a commercially reasonable substitute therefor, and upon
so agreeing, shall incorporate such substitute provision in this
Warrant.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its
authorized officer as of the date first indicated above.
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CYTORI
THERAPEUTICS, INC. |
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By:
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Name:
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Title:
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SCHEDULE
1
CYTORI
THERAPEUTICS, INC.
FORM OF
EXERCISE NOTICE
(To be
executed by the Holder to purchase shares of Common Stock under the foregoing
Warrant)
Ladies
and Gentlemen:
(1) The
undersigned is the Holder of Warrant No. __________ (the “Warrant”) issued by
Cytori Therapeutics, Inc., a Delaware corporation (the
“Company”). Capitalized terms used herein and not otherwise defined
herein have the respective meanings set forth in the Warrant.
(2) The
undersigned hereby exercises its right to purchase __________ Warrant Shares
pursuant to the Warrant.
(3) The
Holder intends that payment of the Exercise Price shall be made as (check
one):
o Cash
Exercise
o “Cashless
Exercise” under Section 10
(4) If
the Holder has elected a Cash Exercise, the Holder shall pay the sum of $_______
in immediately available funds to the Company in accordance with the terms of
the Warrant.
(5) Pursuant
to this Exercise Notice, the Company shall deliver to the Holder Warrant Shares
determined in accordance with the terms of the Warrant.
(6) By
its delivery of this Exercise Notice, the undersigned represents and warrants to
the Company that in giving effect to the exercise evidenced hereby the Holder
will not beneficially own in excess of the number of shares of Common Stock (as
determined in accordance with Section 13(d) of the Securities Exchange Act of
1934) permitted to be owned under Section 11 of the Warrant to which this notice
relates.
Dated:_______________,
_____
Name of
Holder: ___________________________
By:__________________________________
Name:
_______________________________
Title: _______________________________
(Signature
must conform in all respects to name of Holder as specified on the face of the
Warrant)
SCHEDULE
2
CYTORI
THERAPEUTICS, INC.
FORM OF
ASSIGNMENT
[To be
completed and signed only upon transfer of Warrant]
FOR VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
(the “Transferee”) the right represented by the within Warrant to purchase
shares of Common Stock of Cytori Therapeutics, Inc., a Delaware corporation (the
“Company”) to which the within Warrant relates and appoints
attorney to transfer said right on the books of the Company with full power of
substitution in the premises. In connection therewith, the undersigned
represents, warrants, covenants and agrees to and with the Company
that:
(a)
|
the
offer and sale of the Warrant contemplated hereby is being made in
compliance with Section 4(1) of the United States Securities Act of 1933,
as amended (the “Securities Act”) or another valid exemption from the
registration requirements of Section 5 of the Securities Act and in
compliance with all applicable securities laws of the states of the United
States;
|
(b)
|
the
undersigned has not offered to sell the Warrant by any form of general
solicitation or general advertising, including, but not limited to, any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or
radio, and any seminar or meeting whose attendees have been invited by any
general solicitation or general
advertising;
|
(c)
|
the
undersigned has read the Transferee’s investment letter included herewith,
and to its actual knowledge, the statements made therein are true and
correct; and
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(d)
|
the
undersigned understands that the Company may condition the transfer of the
Warrant contemplated hereby upon the delivery to the Company by the
undersigned or the Transferee, as the case may be, of a written opinion of
counsel (which opinion shall be in form, substance and scope customary for
opinions of counsel in comparable transactions) to the effect that such
transfer may be made without registration under the Securities Act and
under applicable securities laws of the states of the United
States.
|
Dated:
,
|
|
|
|
|
(Signature
must conform in all respects to name of holder as specified on the face of
the Warrant)
|
|
|
|
|
|
Address
of Transferee
|
In
the presence of:
|
|
|
|
|
|
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exhibit1065_regrights.htm
Exhibit
10.65
REGISTRATION
RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”) is made and
entered into as of May 7, 2009, by and among Cytori Therapeutics, Inc., a
Delaware corporation (the “Company”), and the several
purchasers signatory hereto (each a “Purchaser” and collectively,
the “Purchasers”).
This
Agreement is made pursuant to the Securities Purchase Agreement, dated as of the
date hereof between the Company and each Purchaser (the “Purchase
Agreement”).
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Company and each of the Purchasers agree as
follows:
1. Definitions. Capitalized
terms used and not otherwise defined herein that are defined in the Purchase
Agreement shall have the meanings given such terms in the Purchase
Agreement. As used in this Agreement, the following terms shall have
the following meanings:
“Affiliate” means, with
respect to any person, any other person which directly or indirectly controls,
is controlled by, or is under common control with, such person.
“Agreement” shall have the
meaning set forth in the Preamble.
“Business Day” means a day,
other than a Saturday or Sunday, on which banks in New York City are open for
the general transaction of business.
“Closing” has the meaning set
forth in the Purchase Agreement.
“Closing Date” has the meaning
set forth in the Purchase Agreement.
“Commission” means the
Securities and Exchange Commission.
“Common Stock” means the
common stock of the Company, par value $0.001 per share, and any securities into
which such shares of common stock may hereinafter be reclassified.
“Company” shall have the
meaning set forth in the Preamble.
“Effective Date” means the
date that the Registration Statement filed pursuant to Section 2(a) is first
declared effective by the Commission.
“Effectiveness Deadline”
means, with respect to the Initial Registration Statement or the New
Registration Statement, the 90th
calendar day following the Closing Date (or, in the event the Commission reviews
and has written comments to the Initial Registration Statement or the New
Registration Statement, the 120th
calendar day following the Closing Date); provided, however, that if
the Company is notified by the Commission that the Initial Registration
Statement
will not be reviewed or is no longer subject to further review and comments, the
Effectiveness Deadline as to such Registration Statement shall be the seventh
(7th)
Trading Day following the date on which the Company is so notified if such date
precedes the dates otherwise required above; provided, further, that if
the Effectiveness Deadline falls on a Saturday, Sunday or other day that the
Commission is closed for business, the Effectiveness Deadline shall be extended
to the next Business Day on which the Commission is open for
business.
“Effectiveness Period” shall
have the meaning set forth in Section 2(b).
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Filing Deadline” means, with
respect to the Initial Registration Statement required to be filed pursuant to
Section 2(a), the 30th
calendar day following the Closing Date, provided, however, that if
the Filing Deadline falls on a Saturday, Sunday or other day that the Commission
is closed for business, the Filing Deadline shall be extended to the next
business day on which the Commission is open for business.
“Holder” or “Holders” means the holder or
holders, as the case may be, from time to time of Registrable
Securities.
“Initial Registration
Statement” means the initial Registration Statement filed pursuant to
Section 2(a) of this Agreement.
“New Registration Statement”
shall have the meaning set forth in Section 2(a).
“Person” means an individual
or corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an
agency or subdivision thereof) or other entity of any kind.
“Principal Market” means the
Trading Market on which the Common Stock is primarily listed on and quoted for
trading, which, as of the Closing Date, shall be the NASDAQ Global
Market.
“Proceeding” means an action,
claim, suit, investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition), whether commenced or
threatened.
“Prospectus” means the
prospectus included in a Registration Statement (including, without limitation,
a prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Securities covered by a Registration Statement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“Purchase Agreement” shall
have the meaning set forth in the Recitals.
“Purchaser” or “Purchasers” shall have the
meaning set forth in the Preamble.
“Registrable Securities” means
all of (i) the Shares, (ii) the Warrant Shares, and (iii) any securities issued
or issuable upon any stock split, dividend or other distribution,
recapitalization or similar event with respect to the foregoing, provided, that the Holder
has completed and delivered to the Company a Selling Stockholder Questionnaire;
and provided, further,
that Shares and Warrant Shares shall cease to be Registrable Securities upon the
earliest to occur of the following: (A) a sale pursuant to a Registration
Statement or Rule 144 under the Securities Act (in which case, only such
security sold shall cease to be a Registrable Security); or (B) becoming
eligible for sale without the requirement for the Company to be in compliance
with the current public information required under Rule 144 and without volume
or manner of sale restrictions by Holders who are not Affiliates of the
Company.
“Registration Statements”
means any one or more registration statements of the Company filed under the
Securities Act that covers the resale of any of the Registrable Securities
pursuant to the provisions of this Agreement (including without limitation the
Initial Registration Statement, the New Registration Statement and any Remainder
Registration Statements), amendments and supplements to such Registration
Statements, including post-effective amendments, all exhibits and all material
incorporated by reference or deemed to be incorporated by reference in such
Registration Statements.
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
“Selling Stockholder
Questionnaire” means a questionnaire in the form attached as Annex B hereto, or
such other form of questionnaire as may reasonably be adopted by the Company
from time to time.
“Shares” means the shares of
Common Stock issued or issuable to the Purchasers pursuant to the Purchase
Agreement.
“Trading Day” means (i) a day
on which the Common Stock is listed or quoted and traded on its Principal Market
(other than the OTC Bulletin Board).
“Warrants” means the warrants
issued pursuant to the Purchase Agreement.
“Warrant Shares” means the
shares of Common Stock issued or issuable upon exercise of the
Warrants.
2. Registration.
(a) On or
prior to the Filing Deadline, the Company shall prepare and file with the
Commission a Registration Statement covering the resale of all of the
Registrable Securities not already covered by an existing and effective
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 or, if Rule 415 is not available for offers and sales of the
Registrable Securities, by such other means of distribution of Registrable
Securities as the Holders may reasonably specify (the “Initial Registration
Statement”). The Initial Registration Statement shall be on
Form S-3 (except if the Company is then ineligible to
register
for resale of the Registrable Securities on Form S-3, in which case such
registration shall be on such other form available to register for resale of the
Registrable Securities as a secondary offering) subject to the provisions of
Section 2(f) and shall contain (except if otherwise required pursuant to written
comments received from the Commission upon a review of such Registration
Statement) the “Plan of Distribution” section attached hereto as Annex
A. Notwithstanding the registration obligations
set forth in this Section 2, in the event the Commission informs the Company
that all of the Registrable Securities cannot, as a result of the application of
Rule 415, be registered for resale as a secondary offering on a single
registration statement, the Company agrees to promptly (i) inform each of the
Holders thereof and use its commercially reasonable efforts to file amendments
to the Initial Registration Statement as required by the Commission and/or (ii)
withdraw the Initial Registration Statement and file a new registration
statement (a “New Registration
Statement”), in either case covering the maximum number of Registrable
Securities permitted to be registered by the Commission, on Form S-3 or such
other form available to register for resale the Registrable Securities as a
secondary offering; provided,
however, that prior to filing such amendment or New Registration
Statement, the Company shall be obligated to use its commercially reasonable
efforts to advocate with the Commission for the registration of all of the
Registrable Securities in accordance with the SEC Guidance, including without
limitation, the Manual of Publicly Available Telephone Interpretations D.29.
Notwithstanding any other provision of this Agreement and subject to the payment
of liquidated damages in Section 2(c), if any SEC Guidance sets forth a
limitation of the number of Registrable Securities permitted to be registered on
a particular Registration Statement as a secondary offering (and notwithstanding
that the Company used diligent efforts to advocate with the Commission for the
registration of all or a greater number of Registrable Securities), unless
otherwise directed in writing by a Holder as to its Registrable Securities, the
number of Registrable Securities to be registered on such Registration Statement
will first be reduced by Registrable Securities not acquired pursuant to the
Purchase Agreement (whether pursuant to registration rights or otherwise),
second by Registrable Securities represented by Warrant Shares (applied, in the
case that some Warrant Shares may be registered, to the Holders on a pro rata
basis based on the total number of unregistered Warrant Shares held by such
Holders) and third by Registrable Securities represented by Shares (applied, in
the case that some Shares may be registered, to the Holders on a pro rata basis
based on the total number of unregistered Shares held by such Holders, subject
to a determination by the Commission that certain Holders must be reduced first
based on the number of Shares held by such Holders). In the event the
Company amends the Initial Registration Statement or files a New Registration
Statement, as the case may be, under clauses (i) or (ii) above, the Company will
use its commercially reasonable efforts to file with the Commission, as promptly
as allowed by Commission or SEC Guidance provided to the Company or to
registrants of securities in general, one or more registration statements on
Form S-3 or such other form available to register for resale those Registrable
Securities that were not registered for resale on the Initial Registration
Statement, as amended, or the New Registration Statement (the “Remainder Registration
Statements”).
(b) The
Company shall use its commercially reasonable efforts to cause each Registration
Statement to be declared effective by the Commission as soon as practicable and,
with respect to the Initial Registration Statement or the New Registration
Statement, as applicable, no later than the Effectiveness Deadline (including
filing with the Commission a request for acceleration of effectiveness in
accordance with Rule 461 promulgated under the Securities Act within five (5)
Business Days after the date that the Company is notified (orally or
in
writing, whichever is earlier) by the Commission that such Registration
Statement will not be “reviewed,” or not be subject to further review and the
effectiveness of such Registration Statement may be accelerated), and shall use
its commercially reasonable efforts to keep each Registration Statement
continuously effective under the Securities Act until the earlier of (i) such
time as all of the Registrable Securities covered by such Registration Statement
have been publicly sold by the Holders or (ii) the date that all Registrable
Securities covered by such Registration Statement may be sold by non-affiliates
without volume or manner of sale restrictions under Rule 144, without the
requirement for the Company to be in compliance with the current public
information requirements under Rule 144, as determined by counsel to the Company
pursuant to a written opinion letter to such effect, addressed and reasonably
acceptable to the Company’s transfer agent and the effected Holders (the “Effectiveness
Period”). The Company shall request effectiveness of a
Registration Statement as of 5:00 p.m. New York City time on a Trading
Day. The Company shall promptly notify the Holders via facsimile or
electronic mail of a “.pdf” format data file of the effectiveness of a
Registration Statement within one (1) business day of the Effective Date. The
Company shall, by 9:30 a.m. New York City time on the first Trading Day after
the Effective Date, file a final Prospectus with the Commission, as required by
Rule 424(b).
(c) If:
(i) the Initial Registration Statement is not filed with the Commission on or
prior to the Filing Deadline, (ii) the Initial Registration Statement or the New
Registration Statement, as applicable, is not declared effective by the
Commission (or otherwise does not become effective) for any reason on or prior
to the Effectiveness Deadline or (iii) after its Effective Date, (A) such
Registration Statement ceases for any reason (including without limitation by
reason of a stop order, or the Company’s failure to update the Registration
Statement), to remain continuously effective as to all Registrable Securities
for which it is required to be effective or (B) the Holders are not permitted to
utilize the Prospectus therein to resell such Registrable Securities, in the
case of (A) and (B), for more than an aggregate of 30 Trading Days (which need
not be consecutive) during any 12 month period (other than during an Allowable
Grace Period (as defined in Section 2(e) of this Agreement)), (iv) a Grace
Period (as defined in Section 2(e) of this Agreement) exceeds the length of an
Allowable Grace Period, or (v) after the date six months following the Closing
Date, the Company fails to file with the SEC any required reports under Section
13 or 15(d) of the 1934 Act such that it is not in compliance with Rule
144(c)(1) as a result of which the Holders who are not affiliates are unable to
sell Registrable Securities without restriction under Rule 144 (or any successor
thereto) (any such failure or breach in clauses (i) through (v) above being
referred to as an “Event,” and, for purposes of
clauses (i), (ii) or (v), the date on which such Event occurs, or for purposes
of clause (iii), the date on which such 30 Trading Day period is exceeded, or
for purposes of clause (iv) the date on which such Allowable Grace Period is
exceeded, being referred to as an “Event Date”), then in lieu of
any other rights the Holders may have hereunder or under applicable law, on each
such Event Date and on each monthly anniversary of each such Event Date (if the
applicable Event shall not have been cured by such date) until the applicable
Event is cured, the Company shall pay to each Holder an amount in cash, as
liquidated damages and not as a penalty (“Liquidated Damages”), equal
to 1.0% of the aggregate purchase price paid by such Holder pursuant to the
Purchase Agreement for any Registrable Securities held by such Holder on the
Event Date (which remedy shall be exclusive of any other remedies available
under this Agreement or under applicable law). The parties agree that
(1) the Company will not be liable for Liquidated Damages under this Agreement
with respect to any Warrants or Warrant Shares,
(2)
notwithstanding anything to the contrary herein or in the Purchase Agreement, no
Liquidated Damages shall be payable with respect to any period after the
expiration of the Effectiveness Period (it being understood that this sentence
shall not relieve the Company of any Liquidated Damages accruing prior to the
Effectiveness Period), and in no event shall, the aggregate amount of Liquidated
Damages payable to a Holder exceed, in the aggregate, six percent (6%) of the
aggregate purchase price paid by such Holder pursuant to the Purchase Agreement
and (3) in no event shall the Company be liable in any 30-day period for
Liquidated Damages under this Agreement in excess of 1.0% of the aggregate
purchase price paid by the Holders pursuant to the Purchase
Agreement. If the Company fails to pay any Liquidated Damages
pursuant to this Section 2(c) in full within five (5) Business Days after the
date payable, the Company will pay interest thereon at a rate of 1.5% per month
(or such lesser maximum amount that is permitted to be paid by applicable law)
to the Holder, accruing daily from the date such Liquidated Damages are due
until such amounts, plus all such interest thereon, are paid in
full. The Liquidated Damages pursuant to the terms hereof shall apply
on a daily pro-rata basis for any portion of a month prior to the cure of an
Event, except in the case of the first Event Date. The Effectiveness
Deadline for a Registration Statement shall be extended without default or
Liquidated Damages hereunder in the event that the Company’s failure to obtain
the effectiveness of the Registration Statement on a timely basis results from
(i) the failure of a Purchaser to timely provide the Company with
information requested by the Company and necessary to complete the Registration
Statement in accordance with the requirements of the Securities Act (in which
the Effectiveness Deadline would be extended with respect to Registrable
Securities held by such Purchaser) or (ii) events or circumstances that are not
in any way attributable to the Company.
(d) Each
Holder agrees to furnish to the Company a completed Selling Stockholder
Questionnaire not more than five (5) Trading Days following the date of this
Agreement. At least ten (10) Trading Days prior to the first anticipated filing
date of a Registration Statement for any registration under this Agreement, the
Company will notify each Holder of the information the Company requires from
that Holder other than the information contained in the Selling Stockholder
Questionnaire, if any, which shall be completed and delivered to the Company
promptly upon request and, in any event, within three (3) Trading Days prior to
the applicable anticipated filing date. Each Holder further agrees
that it shall not be entitled to be named as a selling securityholder in the
Registration Statement or use the Prospectus for offers and resales of
Registrable Securities at any time, unless such Holder has returned to the
Company a completed and signed Selling Stockholder Questionnaire and a response
to any requests for further information as described in the previous sentence.
If a Holder of Registrable Securities returns a Selling Stockholder
Questionnaire or a request for further information, in either case, after its
respective deadline, the Company shall use its commercially reasonable efforts
at the expense of the Holder who failed to return the Selling Stockholder
Questionnaire or to respond for further information to take such actions as are
required to name such Holder as a selling security holder in the Registration
Statement or any pre-effective or post-effective amendment thereto and to
include (to the extent not theretofore included) in the Registration Statement
the Registrable Securities identified in such late Selling Stockholder
Questionnaire or request for further information. Each Holder acknowledges and
agrees that the information in the Selling Stockholder Questionnaire or request
for further information as described in this Section 2(d) will be used by the
Company in the preparation of the Registration Statement and hereby consents to
the inclusion of such information in the Registration Statement.
(e) Notwithstanding
anything to the contrary herein, at any time after the Registration Statement
has been declared effective by the Commission, the Company may delay the
disclosure of material non-public information concerning the Company if the
disclosure of such information at the time is not, in the good faith judgment of
the Company, in the best interests of the Company (a “Grace Period”); provided, however, the
Company shall promptly (i) notify the Holders in writing of the existence of
material non-public information giving rise to a Grace Period (provided that the
Company shall not disclose the content of such material non-public information
to the Holders) or the need to file a post-effective amendment, as applicable,
and the date on which such Grace Period will begin, and (ii) notify the Holders
in writing of the date on which the Grace Period ends; provided, further, that no
single Grace Period shall exceed thirty (30) consecutive days, and during any
three hundred sixty-five (365) day period, the aggregate of all Grace Periods
shall not exceed an aggregate of sixty (60) days (each Grace Period complying
with this provision being an “Allowable Grace
Period”). For purposes of determining the length of a
Grace Period, the Grace Period shall be deemed to begin on and include the date
the Holders receive the notice referred to in clause (i) above and shall end on
and include the later of the date the Holders receive the notice referred to in
clause (ii) above and the date referred to in such notice; provided, however, that no
Grace Period shall be longer than an Allowable Grace
Period. Notwithstanding anything to the contrary, the
Company shall cause the Transfer Agent to deliver unlegended Common Stock to a
transferee of a Holder in accordance with the terms of the Purchase Agreement in
connection with any sale of Registrable Securities with respect to which a
Holder has entered into a contract for sale prior to the Holder’s receipt of the
notice of a Grace Period and for which the Holder has not yet
settled.
3. Registration
Procedures
In
connection with the Company's registration obligations hereunder, the Company
shall:
(a) Not less
than five (5) Trading Days prior to the filing of a Registration Statement and
not less than one (1) Trading Day prior to the filing of any related Prospectus
or any amendment or supplement thereto (except for Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K and any similar
or successor reports), the Company shall, furnish to the Holder copies of such
Registration Statement, Prospectus or amendment or supplement thereto, as
proposed to be filed, which documents will be subject to the review of such
Holder (it being acknowledged and agreed that if a Holder does not object to or
comment on the aforementioned documents within such five (5) Trading Day or one
(1) Trading Day period, as the case may be, then the Holder shall be deemed to
have consented to and approved the use of such documents). The
Company shall not file any Registration Statement or amendment or supplement
thereto in a form to which a Holder reasonably objects
in good
faith, provided that, the Company is notified of such objection in writing
within the five (5) Trading Day or one (1) Trading Day period described above,
as applicable.
(b) (i) Prepare
and file with the Commission such amendments (including post-effective
amendments) and supplements, to each Registration Statement and the Prospectus
used in connection therewith as may be necessary to keep such Registration
Statement continuously effective as to the applicable Registrable Securities for
its Effectiveness Period (except during an Allowable Grace Period); (ii) cause
the related Prospectus to be amended or supplemented by any required Prospectus
supplement (subject to the terms of this Agreement), and, as so supplemented or
amended, to be filed pursuant to Rule 424 (except during an Allowable Grace
Period); (iii) respond as promptly as reasonably practicable to any comments
received from the Commission with respect to each Registration Statement or any
amendment thereto and, as promptly as reasonably possible, provide the Holders
true and complete copies of all correspondence from and to the Commission
relating to such Registration Statement that pertains to the Holders as “Selling
Stockholders” but not any comments that would result in the disclosure to the
Holders of material and non-public information concerning the Company; and (iv)
comply with the provisions of the Securities Act and the Exchange Act with
respect to the disposition of all Registrable Securities covered by a
Registration Statement until such time as all of such Registrable Securities
shall have been disposed of (subject to the terms of this Agreement) in
accordance with the intended methods of disposition by the Holders thereof as
set forth in such Registration Statement as so amended or in such Prospectus as
so supplemented; provided,
however, that each Purchaser shall be responsible for the delivery of the
Prospectus to the Persons to whom such Purchaser sells any of the Shares or
Warrant Shares (including in accordance with Rule 172 under the Securities Act),
and each Purchaser agrees to dispose of Registrable Securities in compliance
with the plan of distribution described in the Registration Statement and
otherwise in compliance with applicable federal and state securities laws. In
the case of amendments and supplements to a Registration Statement which are
required to be filed pursuant to this Agreement (including pursuant to this
Section 3(b)) by reason of the Company filing a report on Form 10-K, Form 10-Q
or Form 8-K or any analogous report under the Exchange Act, the Company shall
have incorporated such report by reference into such Registration Statement, if
applicable, or shall file such amendments or supplements with the Commission on
the same day on which the Exchange Act report which created the requirement for
the Company to amend or supplement such Registration Statement was
filed.
(c) Notify
the Holders (which notice shall, pursuant to clauses (iii) through (v) hereof,
be accompanied by an instruction to suspend the use of the Prospectus until the
requisite changes have been made) as promptly as reasonably practicable (and, in
the case of (i)(A) below, not less than two Trading Days prior to such filing,
in the case of (iii) and (iv) below, not more than one Trading Day after such
issuance or receipt, and in the case of (v) below, not more than one Trading Day
after the occurrence or existence of such development) and (if requested by any
such Person) confirm such notice in writing no later than one Trading Day
following the day (i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment to a Registration Statement is proposed to be filed;
(B) when the Commission notifies the Company whether there will be a “review” of
such Registration Statement and whenever the Commission comments in writing on
any Registration Statement (in which case the Company shall provide to each of
the Holders true and complete copies of all comments that pertain to the Holders
as a “Selling Stockholder” or to the “Plan of Distribution” and all written
responses thereto, but not
information
that the Company believes would constitute material and non-public information);
and (C) with respect to each Registration Statement or any post-effective
amendment, when the same has become effective; (ii) of any request by the
Commission or any other Federal or state governmental authority for amendments
or supplements to a Registration Statement or Prospectus or for additional
information that pertains to the Holders as “Selling Stockholders” or the “Plan
of Distribution”; (iii) of the issuance by the Commission or any other federal
or state governmental authority of any stop order suspending the effectiveness
of a Registration Statement covering any or all of the Registrable Securities or
the initiation of any Proceedings for that purpose; (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction, or the initiation or threatening of any Proceeding for such
purpose; and (v) of the occurrence of any event or passage of time that makes
the financial statements included in a Registration Statement ineligible for
inclusion therein or any statement made in such Registration Statement or
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires any revisions to such
Registration Statement, Prospectus or other documents so that, in the case of
such Registration Statement or the Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
(in the case of any Prospectus, form of prospectus or supplement thereto, in
light of the circumstances under which they were made), not
misleading.
(d) Use
commercially reasonable efforts to avoid the issuance of, or, if issued, obtain
the withdrawal of (i) any order suspending the effectiveness of a Registration
Statement, or (ii) any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, as soon as practicable.
(e) If
requested by a Holder, furnish to such Holder, without charge, at least one
conformed copy of each Registration Statement and each amendment thereto and all
exhibits to the extent requested by such Person (including those previously
furnished or incorporated by reference) promptly after the filing of such
documents with the Commission; provided, that the Company
shall have no obligation to provide any document pursuant to this clause that is
available on the Commission’s EDGAR system.
(f) Prior to
any resale of Registrable Securities by a Holder, use its commercially
reasonable efforts to register or qualify or cooperate with the selling Holders
in connection with the registration or qualification (or exemption from the
registration or qualification) of such Registrable Securities for the resale by
the Holder under the securities or Blue Sky laws of such jurisdictions within
the United States as any Holder reasonably requests in writing, to keep each
registration or qualification (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things reasonably
necessary to enable the disposition in such jurisdictions of the Registrable
Securities covered by each Registration Statement; provided, that the Company
shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified, subject the Company to any material tax in
any such jurisdiction where it is not then so subject or file a general consent
to service of process in any such jurisdiction.
(g) If
requested by the Holders, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be delivered to a transferee pursuant to the Registration Statement, which
certificates shall be free, to the extent permitted by the Purchase Agreement
and under law, of all restrictive legends, and to enable such Registrable
Securities to be in such denominations and registered in such names as any such
Holders may reasonably request.
(h) Following
the occurrence of any event contemplated by Section 3(c)(iii)-(v), as promptly
as reasonably practicable (taking into account the Company’s good faith
assessment of any adverse consequences to the Company and its stockholders of
the premature disclosure of such event), prepare a supplement or amendment,
including a post-effective amendment, to the affected Registration Statements or
a supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, no Registration Statement nor any Prospectus will
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein (in
the case of any Prospectus, form of prospectus or supplement thereto, in light
of the circumstances under which they were made), not misleading.
(i) The
Company may require each selling Holder to furnish to the Company a certified
statement as to (i) the number of shares of Common Stock beneficially owned by
such Holder and any Affiliate thereof, (ii) any Financial Industry Regulatory
Authority (“FINRA”)
affiliations, (iii) any natural persons who have the power to vote or dispose of
the Common Stock and (iv) any other information as may be requested by the
Commission, FINRA or any state securities commission. During any periods that
the Company is unable to meet its obligations hereunder with respect to the
registration of Registrable Securities because any Holder fails to furnish such
information within three Trading Days of the Company’s request, any Liquidated
Damages that are accruing at such time as to such Holder only shall be tolled
and any Event that may otherwise occur solely because of such delay shall be
suspended as to such Holder only, until such information is delivered to the
Company.
(j) The
Company shall cooperate with any registered broker through which a Holder
proposes to resell its Registrable Securities in effecting a filing with FINRA
pursuant to NASD Rule 2710 as requested by any such Holder and the Company shall
pay the filing fee required for the first such filing within two (2) Business
Days of the request therefore.
4. Registration
Expenses. All fees and expenses incident to the Company’s
performance of or compliance with its obligations under this Agreement
(excluding any underwriting discounts and selling commissions and all legal fees
and expenses of legal counsel for any Holder) shall be borne by the Company
whether or not any Registrable Securities are sold pursuant to a Registration
Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with any Trading Market on which the Common Stock is then
listed for trading, (B) with respect to compliance with applicable state
securities or Blue Sky laws (including, without limitation, fees and
disbursements of counsel for the Company in connection with Blue Sky
qualifications or exemptions of the Registrable Securities and determination of
the eligibility of the Registrable
Securities
for investment under the laws of such jurisdictions as requested by the Holders)
and (C) if not previously paid by the Company in connection with an Issuer
Filing, with respect to any filing that may be required to be made by any broker
through which a Holder intends to make sales of Registrable Securities with
FINRA pursuant to the NASD Rule 2710, so long as the broker is receiving no more
than a customary brokerage commission in connection with such sale, (ii)
printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities and of printing prospectuses if the
printing of prospectuses is reasonably requested by the Holders of a majority of
the Registrable Securities included in the Registration Statement), (iii)
messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company, (v) Securities Act liability insurance, if the Company
so desires such insurance, and (vi) fees and expenses of all other Persons
retained by the Company in connection with the consummation of the transactions
contemplated by this Agreement. In addition, the Company shall be
responsible for all of its internal expenses incurred in connection with the
consummation of the transactions contemplated by this Agreement (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit and the
fees and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange as required hereunder. In no
event shall the Company be responsible for any underwriting, broker or similar
fees or commissions of any Holder or, except to the extent provided for in the
Transaction Documents, any legal fees or other costs of the
Holders.
5. Indemnification.
(a) Indemnification by the
Company. The Company shall, notwithstanding any termination of
this Agreement, indemnify, defend and hold harmless each Holder, the officers,
directors, agents, partners, members, managers, stockholders, Affiliates and
employees of each of them, each Person who controls any such Holder (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
and the officers, directors, partners, members, managers, stockholders, agents
and employees of each such controlling Person, to the fullest extent permitted
by applicable law, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, reasonable costs of
preparation and investigation and reasonable attorneys' fees) and expenses
(collectively, “Losses”), as incurred, that
arise out of or are based upon any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, any Prospectus or any
form of prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any omission or alleged
omission to state a material fact required to be stated therein or necessary to
make the statements therein (in the case of any Prospectus or form of prospectus
or supplement thereto, in light of the circumstances under which they were made)
not misleading, except to the extent, but only to the extent, that (A) such
untrue statements, alleged untrue statements, omissions or alleged omissions are
based solely upon information regarding such Holder furnished in writing to the
Company by such Holder expressly for use therein, or to the extent that such
information relates to such Holder or such Holder's proposed method of
distribution of Registrable Securities and was reviewed and approved by such
Holder expressly for use in the Registration Statement, such Prospectus or such
form of Prospectus or in any amendment or supplement thereto (it being
understood that each Holder has approved Annex A hereto for
this purpose), (B) in the case of an occurrence of an event of the type
specified in Section 3(c)(iii)-(v), related to the use by a Holder of an
outdated or defective Prospectus after the Company has notified such Holder in
writing that
the
Prospectus is outdated or defective and prior to the receipt by such Holder of
the Advice contemplated and defined in Section 6(d) below, but only if and to
the extent that following the receipt of the Advice the misstatement or omission
giving rise to such Loss would have been corrected or (C) any such Losses arise
out of the Purchaser’s (or any other indemnified Person’s) failure to send or
give a copy of the Prospectus or supplement (as then amended or supplemented),
if required, to the Persons asserting an untrue statement or alleged untrue
statement or alleged untrue statement or omission or alleged omission at or
prior to the written confirmation of the sale of Registrable Securities to such
Person if such statement or omission was corrected in such Prospectus or
supplement. The Company shall notify the Holders promptly of the
institution, threat or assertion of any Proceeding arising from or in connection
with the transactions contemplated by this Agreement of which the Company is
aware. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of an Indemnified Party (as
defined in Section 5(c)) and shall survive the transfer of the Registrable
Securities by the Holders.
(b) Indemnification by
Holders. Each Holder shall, severally and not jointly, indemnify and hold
harmless the Company, its directors, officers, agents and employees, each Person
who controls the Company (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act), and the directors, officers, agents or
employees of such controlling Persons, to the fullest extent permitted by
applicable law, from and against all Losses, as incurred, arising out of or are
based upon any untrue or alleged untrue statement of a material fact contained
in any Registration Statement, any Prospectus, or any form of prospectus, or in
any amendment or supplement thereto or in any preliminary prospectus, or arising
out of or relating to any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein (in
the case of any Prospectus, or any form of prospectus or supplement thereto, in
light of the circumstances under which they were made) not misleading (i) to the
extent, but only to the extent, that such untrue statements or omissions are
based solely upon information regarding such Holder furnished in writing to the
Company by such Holder expressly for use therein or (ii) to the extent, but only
to the extent, that such information relates to such Holder or such Holder’s
proposed method of distribution of Registrable Securities and was reviewed and
approved by such Holder expressly for use in a Registration Statement (it being
understood that the Holder has approved Annex A hereto for
this purpose), such Prospectus or such form of Prospectus or in any amendment or
supplement thereto or (iii) in the case of an occurrence of an event of the type
specified in Section 3(c)(iii)-(v), to the extent, but only to the extent,
related to the use by such Holder of an outdated or defective Prospectus after
the Company has notified such Holder in writing that the Prospectus is outdated
or defective and prior to the receipt by such Holder of the Advice contemplated
in Section 6(d). In no event shall the liability of any selling
Holder hereunder be greater in amount than the dollar amount of the net proceeds
received by such Holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation.
(c) Conduct of Indemnification
Proceedings. If any Proceeding shall be brought or asserted against any
Person entitled to indemnity hereunder (an “Indemnified Party”), such
Indemnified Party shall promptly notify the Person from whom indemnity is sought
(the “Indemnifying
Party”) in writing, and the Indemnifying Party shall have the right to
assume the defense
thereof,
including the employment of counsel reasonably satisfactory to the Indemnified
Party and the payment of all reasonable fees and expenses incurred in connection
with defense thereof; provided, that the failure of
any Indemnified Party to give such notice shall not relieve the Indemnifying
Party of its obligations or liabilities pursuant to this Agreement, except (and
only) to the extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or further review)
that such failure shall have materially and adversely prejudiced the
Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such
fees and expenses; (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or (3) the named
parties to any such Proceeding (including any impleaded parties) include both
such Indemnified Party and the Indemnifying Party, and such Indemnified Party
shall have been advised by counsel that a conflict of interest exists if the
same counsel were to represent such Indemnified Party and the Indemnifying Party
(in which case, if such Indemnified Party notifies the Indemnifying Party in
writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to assume
the defense thereof and such counsel shall be at the expense of the Indemnifying
Party); provided, that
the Indemnifying Party shall not be liable for the fees and expenses of more
than one separate firm of attorneys at any time for all Indemnified
Parties. The Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld, delayed or
conditioned. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending
Proceeding in respect of which any Indemnified Party is a party, unless such
settlement includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such Proceeding.
Subject
to the terms of this Agreement, all fees and expenses of the Indemnified Party
(including reasonable fees and expenses to the extent incurred in connection
with investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section 5(c)) shall be paid to the Indemnified Party, as
incurred, within twenty Trading Days of written notice thereof to the
Indemnifying Party; provided, that the
Indemnified Party shall promptly reimburse the Indemnifying Party for that
portion of such fees and expenses applicable to such actions for which such
Indemnified Party is finally judicially determined to not be entitled to
indemnification hereunder). The failure to deliver written notice to the
Indemnifying Party within a reasonable time of the commencement of any such
action shall not relieve such Indemnifying Party of any liability to the
Indemnified Party under this Section 5, except to the extent that the
Indemnifying Party is materially and adversely prejudiced in its ability to
defend such action.
(d) Contribution. If
a claim for indemnification under Section 5(a) or 5(b) is unavailable to an
Indemnified Party or insufficient to hold an Indemnified Party harmless for any
Losses, then each Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party
as a result of such Losses, in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions, statements or omissions that resulted in such Losses as well
as any other relevant equitable considerations. The relative fault of
such
Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material fact,
has been taken or made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party
as a result of any Losses shall be deemed to include, subject to the limitations
set forth in this Agreement, any reasonable attorneys' or other reasonable fees
or expenses incurred by such party in connection with any Proceeding to the
extent such party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section 5(d) was available to such party in
accordance with its terms.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), no
Holder shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the net proceeds actually received by such Holder from
the sale of the Registrable Securities subject to the Proceeding exceeds the
amount of any damages that such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
The
indemnity and contribution agreements contained in this Section 5 are in
addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties and are not in diminution or limitation of the
indemnification provisions under the Purchase Agreement.
6. Miscellaneous.
(a) Remedies. In
the event of a breach by the Company or by a Holder of any of their obligations
under this Agreement, each Holder or the Company, as the case may be, in
addition to being entitled to exercise all rights granted by law and under this
Agreement, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and each
Holder agree that monetary damages would not provide adequate compensation for
any losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
(b) No Piggyback on
Registrations. Neither the Company nor any of its security
holders (other than the Holders in such capacity pursuant hereto) may include
securities of the Company in a Registration Statement filed pursuant to this
Agreement, other than the Registrable Securities. For the avoidance of doubt,
the Company shall not be prohibited from preparing and filing with the
Commission a registration statement relating to an offering of Common Stock by
existing stockholders of the Company under the Securities Act pursuant to the
terms of
registration rights held by such stockholder or from filing amendments to
registration statements filed prior to the date of this Agreement.
(c) Compliance. Each
Holder covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act as applicable to it (unless an exemption
therefrom is available) in connection with sales of Registrable Securities
pursuant to the Registration Statement and shall sell the Registrable Securities
only in accordance with a method of distribution described in the Registration
Statement
(d) Discontinued
Disposition. By its acquisition of Registrable Securities,
each Holder agrees that, upon receipt of a notice from the Company of the
occurrence of any event of the kind described in Section 3(c)(iii)-(v), such
Holder will forthwith discontinue disposition of such Registrable Securities
under a Registration Statement until it is advised in writing (the “Advice”) by the Company that
the use of the applicable Prospectus (as it may have been supplemented or
amended) may be resumed. The Company may provide
appropriate stop orders to enforce the provisions of this
paragraph.
(e) No Inconsistent
Agreements. Neither the Company nor any of its Subsidiaries
has entered, as of the date hereof, nor shall the Company or any of its
Subsidiaries, on or after the date hereof, enter into any agreement with respect
to its securities, that would have the effect of impairing the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions
hereof.
(f) Amendments and
Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, or
waived unless the same shall be in writing and signed by the Company and Holders
holding a majority of the then outstanding Registrable Securities, provided that
any party may give a waiver as to itself. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof
with respect to a matter that relates exclusively to the rights of Holders and
that does not directly or indirectly affect the rights of other Holders may be
given by Holders of all of the Registrable Securities to which such waiver or
consent relates; provided, however, that the provisions
of this sentence may not be amended, modified, or supplemented except in
accordance with the provisions of the immediately preceding
sentence.
(g) Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be delivered as set forth in the Purchase
Agreement.
(h) Successors and
Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties and
shall inure to the benefit of each Holder. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement. The Company may not assign its
rights (except by merger or in connection with another entity acquiring all or
substantially all of the Company’s assets) or obligations hereunder without the
prior written consent of all the Holders of the then outstanding
Registrable
Securities. Each Holder may assign its respective rights hereunder in
the manner and to the Persons as permitted under the Purchase
Agreement.
(i) Execution and
Counterparts. This Agreement may be executed in two or more
counterparts, each of which when so executed shall be deemed to be an original
and, all of which taken together shall constitute one and the same Agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or by e-mail delivery of a “.pdf” format
data file, such signature shall create a valid and binding obligation of the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile or “.pdf” signature were the original
thereof.
(j) Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined in
accordance with the provisions of the Purchase Agreement.
(k) Cumulative
Remedies. Except as provided in Section 2(c) with respect to
Liquidated Damages, the remedies provided herein are cumulative and not
exclusive of any other remedies provided by law.
(l) Severability. If any
term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their good faith reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(m) Headings. The
headings in this Agreement are for convenience only and shall not limit or
otherwise affect the meaning hereof.
(n) Independent Nature of
Purchasers’ Obligations and Rights. The obligations of each
Purchaser under this Agreement are several and not joint with the obligations of
any other Purchaser hereunder, and no Purchaser shall be responsible in any way
for the performance of the obligations of any other Purchaser
hereunder. The decision of each Purchaser to purchase the Shares
pursuant to the Transaction Documents has been made independently of any other
Purchaser. Nothing contained herein or in any other agreement or document
delivered at any closing, and no action taken by any Purchaser pursuant hereto
or thereto, shall be deemed to constitute the Purchasers as a partnership, an
association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert with respect to
such obligations or the transactions contemplated by this
Agreement. Each Purchaser acknowledges that no other Purchaser has
acted as agent for such Purchaser in connection with making its investment
hereunder and that no Purchaser will be
acting as
agent of such Purchaser in connection with monitoring its investment in the
Shares and Warrants or enforcing its rights under the Transaction Documents.
Each Purchaser shall be entitled to protect and enforce its rights, including,
without limitation, the rights arising out of this Agreement, and it shall not
be necessary for any other Purchaser to be joined as an additional party in any
Proceeding for such purpose. The Company acknowledges that each of
the Purchasers has been provided with the same Registration Rights Agreement for
the purpose of closing a transaction with multiple Purchasers and not because it
was required or requested to do so by any Purchaser.
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as
of the date first written above.
CYTORI
THERAPEUTICS, INC.
By: /s/ Mark E.
Saad
Name: Mark
E. Saad
Title: Chief
Financial Officer
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE
PAGES OF HOLDERS TO FOLLOW]
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Walter
Cruttenden
AUTHORIZED SIGNATORY
By: /s/
Walter Cruttenden
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Genet Family
2007 Opportunity Trust
AUTHORIZED SIGNATORY
By: /s/ Benjamin
Genet
Name:
Benjamin Genet
Title:
Trustee
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Thomas R.
Speno
AUTHORIZED SIGNATORY
By: /s/ Thomas
R. Speno
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Michael G.
Masarek 2008 Grantor Retained Annuity Trust UAD 4/24/08
AUTHORIZED SIGNATORY
By: /s/ Michael
Masarek
Name:
Michael Masarek
Title:
Trustee
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Robert M.
Schneider
AUTHORIZED SIGNATORY
By:
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Gagnon
Investment Associates Master Fund
AUTHORIZED SIGNATORY
By: /s/ Neil
Gagnon
Name:
Neil Gagnon
Title:
Managing Member
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
London Family
Trust
AUTHORIZED SIGNATORY
By: /s/ Robert
S. London
Name:
Robert S. London
Title:
Trustee
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
M. Stephen
Jackman Trust
AUTHORIZED SIGNATORY
By: /s/ M.
Stephen Jackman
Name:
M. Stephen Jackman
Title:
Trustee
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
David
Sonenberg
AUTHORIZED SIGNATORY
By: /s/ David
Sonenberg
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Neil
Gagnon
AUTHORIZED SIGNATORY
By: /s/ Neil
Gagnon
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
David B.
Schulman
AUTHORIZED SIGNATORY
By: /s/ David
B. Schulman
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Lois
Gagnon
AUTHORIZED SIGNATORY
By: /s/ Lois
Gagnon
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Manuel F.
Mair
AUTHORIZED SIGNATORY
By: /s/ Manuel
F. Mair
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Perry
Isenberg
AUTHORIZED SIGNATORY
By: /s/ Perry
Isenberg
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Peter E.
Lacey
AUTHORIZED SIGNATORY
By: /s/ Peter
E. Lacey
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Alfred
Sacks
AUTHORIZED SIGNATORY
By: /s/ Alfred
Sacks
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Evan J.
Brody
AUTHORIZED SIGNATORY
By: /s/ Evan
J. Brody
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Darren &
Tara Levine, JTWROS
AUTHORIZED SIGNATORY
By: /s/ Darren
Levine
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
John
Collins
AUTHORIZED SIGNATORY
By: /s/ John
Collins
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Ronald
Henriksen
AUTHORIZED SIGNATORY
By: /s/ Ronald
Henriksen
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Alan
Rutner
AUTHORIZED SIGNATORY
By: /s/ Alan
Rutner
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Lisa J. Burley
Revocable Trust
AUTHORIZED SIGNATORY
By: /s/ Lisa
J. Burley
Name:
Lisa J. Burley
Title:
Trustee
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Randy M.
Bennis
AUTHORIZED SIGNATORY
By: /s/ Randy
M. Bennis
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Marc
Hedrick
AUTHORIZED SIGNATORY
By: /s/ Marc
Hedrick
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
0;
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Ronald
Stricoff
AUTHORIZED SIGNATORY
By: /s/ Ronald
Stricoff
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
160;
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Andrea
Philippou
AUTHORIZED SIGNATORY
By: /s/ Andrea
Philippou
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Angel
Martinez
AUTHORIZED SIGNATORY
By: /s/ Angel
Martinez
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
0;
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Gregory J.
Randazza
AUTHORIZED SIGNATORY
By: /s/ Gregory
J. Randazza
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
0;
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Bob
Friedman
AUTHORIZED SIGNATORY
By: /s/ Bob
Friedman
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
160;
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
1999 Garfinkle
Family Trust
AUTHORIZED SIGNATORY
By: /s/ Marla
Garfinkle
Name:
Marla Garfinkle
Title:
Trustee
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
160;
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Louis
Berlin
AUTHORIZED SIGNATORY
By: /s/ Louis
Berlin
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
160;
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Sidney J.
Workman
AUTHORIZED SIGNATORY
By: /s/ Sidney
J. Workman
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
160;
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
James Garrett
Schwendig M.D., Inc.
AUTHORIZED SIGNATORY
By: /s/ James
Garrett Schwendig
Name:
James Garrett Schwendig
Title:
President
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
160;
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Kenneth J.
Sobel & Debra S. Sobel, Husband and Wife as Tenants by the
entireties
AUTHORIZED SIGNATORY
By: /s/ Kenneth
J. Sobel
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Mike
Reuter
AUTHORIZED SIGNATORY
By: /s/ Mike
Reuter
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Seitlin &
Company
AUTHORIZED SIGNATORY
By: /s/ M.
Stephen Jackman
Name:
M. Stephen Jackman
Title:
Chairman
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
160;
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Stanley R.
Brenner
AUTHORIZED SIGNATORY
By: /s/ Stanley
R. Brenner
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
160;
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Alan J.
Brenner
AUTHORIZED SIGNATORY
By: /s/ Alan
J. Brenner
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
160;
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Dave Rickey
& Daughters Foundation
AUTHORIZED SIGNATORY
By: /s/ David
M. Rickey
Name:
David M. Rickey
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
0;
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Solomon
Genet
AUTHORIZED SIGNATORY
By: /s/ Solomon
Genet
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
NAME OF INVESTING ENTITY
Sam Katz
AUTHORIZED SIGNATORY
By: /s/ Sam
Katz
Name:
Title:
ADDRESS FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
Email:
160;
Annex A
PLAN
OF DISTRIBUTION
We are registering the Common Stock
issued to the selling stockholders and issuable upon exercise of warrants issued
to the selling stockholders to permit the resale of these shares of Common Stock
by the holders of the Common Stock from time to time after the date of this
prospectus. We will not receive any of the proceeds from the sale by
the selling stockholders of the Common Stock. We will bear all fees
and expenses incident to our obligation to register the Common
Stock.
The
selling stockholders may sell all or a portion of the Common Stock beneficially
owned by them and offered hereby from time to time directly or through one or
more underwriters, broker-dealers or agents. If the Common Stock is
sold through underwriters or broker-dealers, the selling stockholders will be
responsible for underwriting discounts or commissions or agent's
commissions. The Common Stock may be sold on any national securities
exchange or quotation service on which the securities may be listed or quoted at
the time of sale, in the over-the-counter market or in transactions otherwise
than on these exchanges or systems or in the over-the-counter market and in one
or more transactions at fixed prices, at prevailing market prices at the time of
the sale, at varying prices determined at the time of sale, or at negotiated
prices. These sales may be effected in transactions, which may involve crosses
or block transactions. The selling stockholders may use any one or
more of the following methods when selling shares:
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
·
|
block
trades in which the broker-dealer will attempt to sell the shares as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
·
|
privately
negotiated transactions;
|
·
|
settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a
part;
|
·
|
broker-dealers
may agree with the selling stockholders to sell a specified number of such
shares at a stipulated price per
share;
|
·
|
through
the writing or settlement of options or other hedging transactions,
whether such options are listed on an options exchange or
otherwise;
|
·
|
a
combination of any such methods of sale;
and
|
·
|
any
other method permitted pursuant to applicable
law.
|
The
selling stockholders also may resell all or a portion of the shares in open
market transactions in reliance upon Rule 144 under the Securities Act, as
permitted by that rule, or Section 4(1) under the Securities Act, if available,
rather than under this prospectus, provided that they meet the criteria and
conform to the requirements of those provisions.
Broker-dealers
engaged by the selling stockholders may arrange for other broker-dealers to
participate in sales. If the selling stockholders effect such transactions by
selling Common Stock to or through underwriters, broker-dealers or agents, such
underwriters, broker-dealers or agents may receive commissions in the form of
discounts, concessions or commissions from the selling stockholders or
commissions from purchasers of the Common Stock for whom they may act as agent
or to whom they may sell as principal. Such commissions will be in amounts to be
negotiated, but, except as set forth in a supplement to this Prospectus, in the
case of an agency transaction will not be in excess of a customary brokerage
commission in compliance with NASD Rule 2440; and in the case of a principal
transaction a markup or markdown in compliance with NASD IM-2440.
In
connection with sales of the Common Stock or otherwise, the selling stockholders
may enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of the Common Stock in the
course of hedging in positions they assume. The selling stockholders
may also sell Common Stock short and if such short sale shall take place after
the date that this Registration Statement is declared effective by the
Commission, the selling stockholders may deliver Common Stock covered by this
prospectus to close out short positions and to return borrowed shares in
connection with such short sales. The selling stockholders may also
loan or pledge Common Stock to broker-dealers that in turn may sell such shares,
to the extent permitted by applicable law. The selling stockholders may also
enter into option or other transactions with broker-dealers or other financial
institutions or the creation of one or more derivative securities which require
the delivery to such broker-dealer or other financial institution of shares
offered by this prospectus, which shares such broker-dealer or other financial
institution may resell pursuant to this prospectus (as supplemented or amended
to reflect such transaction). Notwithstanding the foregoing, the selling
stockholders have been advised that they may not use shares registered on this
registration statement to cover short sales of our Common Stock made prior to
the date the registration statement, of which this prospectus forms a part, has
been declared effective by the SEC.
The
selling stockholders may, from time to time, pledge or grant a security interest
in some or all of the Common Stock owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell the Common Stock from time to time pursuant to this prospectus or
any amendment to this prospectus under Rule 424(b)(3) or other applicable
provision of the Securities Act of 1933, as amended, amending, if necessary, the
list of selling stockholders to include the pledgee, transferee or other
successors in interest as selling stockholders under this
prospectus. The selling stockholders also may transfer and donate the
Common Stock in other circumstances in which case the transferees, donees,
pledgees or other successors in interest will be the selling beneficial owners
for purposes of this prospectus.
The
selling stockholders and any broker-dealer or agents participating in the
distribution of the Common Stock may be deemed to be “underwriters” within the
meaning of Section 2(11) of the Securities Act in connection with such
sales. In such event, any commissions paid, or any discounts or
concessions allowed to, any such broker-dealer or agent and any profit on the
resale of the shares
purchased
by them may be deemed to be underwriting commissions or discounts under the
Securities Act. Selling Stockholders who are "underwriters" within the meaning
of Section 2(11) of the Securities Act will be subject to the applicable
prospectus delivery requirements of the Securities Act and may be subject to
certain statutory liabilities of, including but not limited to, Sections 11, 12
and 17 of the Securities Act and Rule 10b-5 under the Securities Exchange
Act of 1934, as amended, or the Exchange Act.
Each
selling stockholder has informed the Company that it is not a registered
broker-dealer and does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the Common
Stock. Upon the Company being notified in writing by a selling
stockholder that any material arrangement has been entered into with a
broker-dealer for the sale of Common Stock through a block trade, special
offering, exchange distribution or secondary distribution or a purchase by a
broker or dealer, a supplement to this prospectus will be filed, if required,
pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of
each such selling stockholder and of the participating broker-dealer(s), (ii)
the number of shares involved, (iii) the price at which such the Common Stock
was sold, (iv) the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not
conduct any investigation to verify the information set out or incorporated by
reference in this prospectus, and (vi) other facts material to the
transaction. In no event shall any broker-dealer receive fees,
commissions and markups, which, in the aggregate, would exceed eight percent
(8%).
Under the
securities laws of some states, the Common Stock may be sold in such states only
through registered or licensed brokers or dealers. In addition, in
some states the Common Stock may not be sold unless such shares have been
registered or qualified for sale in such state or an exemption from registration
or qualification is available and is complied with.
There can
be no assurance that any selling stockholder will sell any or all of the Common
Stock registered pursuant to the shelf registration statement, of which this
prospectus forms a part.
Each
selling stockholder and any other person participating in such distribution will
be subject to applicable provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, including, without
limitation, to the extent applicable, Regulation M of the Exchange Act, which
may limit the timing of purchases and sales of any of the Common Stock by the
selling stockholder and any other participating person. To the extent
applicable, Regulation M may also restrict the ability of any person engaged in
the distribution of the Common Stock to engage in market-making activities with
respect to the Common Stock. All of the foregoing may affect the
marketability of the Common Stock and the ability of any person or entity to
engage in market-making activities with respect to the Common
Stock.
We will
pay all expenses of the registration of the Common Stock pursuant to the
registration rights agreement, including, without limitation, Securities and
Exchange Commission filing fees and expenses of compliance with state securities
or “blue sky” laws; provided, however, that each selling
stockholder will pay all underwriting discounts and selling commissions, if any
and any related legal expenses incurred by it. We will indemnify the
selling stockholders against certain liabilities, including some liabilities
under the Securities Act, in accordance with the registration rights agreement,
or the selling stockholders will be entitled to contribution. We may
be indemnified by the selling stockholders against civil liabilities, including
liabilities under the Securities Act, that may arise from any written
information furnished to us by the selling
stockholders
specifically for use in this prospectus, in accordance with the related
registration rights agreements, or we may be entitled to
contribution.
Annex B
CYTORI
THERAPEUTICS, INC.
SELLING
STOCKHOLDER NOTICE AND QUESTIONNAIRE
The
undersigned holder of common stock, par value $0.001 per share, of Cytori
Therapeutics, Inc., a Delaware corporation (the “Company”), issued pursuant to
a certain Securities Purchase Agreement by and among the Company and the
Purchasers named therein, dated as of May 7, 2009, understands that the Company
intends to file with the Securities and Exchange Commission a registration
statement on Form S-3 (the “Resale Registration
Statement”) for the registration and the resale under Rule 415 of the
Securities Act of 1933, as amended (the “Securities Act”), of the
Registrable Securities in accordance with the terms of a certain Registration
Rights Agreement by and among the Company and the Purchasers named therein,
dated as of May 7, 2009 (the “Agreement”). All
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Agreement.
In order
to sell or otherwise dispose of any Registrable Securities pursuant to the
Resale Registration Statement, a holder of Registrable Securities generally will
be required to be named as a selling stockholder in the related prospectus or a
supplement thereto (as so supplemented, the “Prospectus”), deliver the
Prospectus to purchasers of Registrable Securities (including pursuant to Rule
172 under the Securities Act) and be bound by the provisions of the Agreement
(including certain indemnification provisions, as described
below). Holders must complete and deliver this Notice and
Questionnaire in order to be named as selling stockholders in the
Prospectus. Holders
of Registrable Securities who do not complete, execute and return this Notice
and Questionnaire within five (5)Trading Days following the date of the
Agreement (1) will not be named as selling stockholders in the Resale
Registration Statement or the Prospectus and (2) may not use the Prospectus for
resales of Registrable Securities.
Certain
legal consequences arise from being named as a selling stockholder in the Resale
Registration Statement and the Prospectus. Holders of Registrable
Securities are advised to consult their own securities law counsel regarding the
consequences of being named or not named as a selling stockholder in the Resale
Registration Statement and the Prospectus.
NOTICE
The
undersigned holder (the “Selling Stockholder”) of
Registrable Securities hereby gives notice to the Company of its intention to
sell or otherwise dispose of Registrable Securities owned by it and listed below
in Item (3), unless otherwise specified in Item (3), pursuant to the Resale
Registration Statement. The undersigned, by signing and returning
this Notice and Questionnaire, understands and agrees that it will be bound by
the terms and conditions of this Notice and Questionnaire and the
Agreement.
The
undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate and
complete:
|
(a)
|
Full
Legal Name of Selling Stockholder:
|
|
(b)
|
Full
Legal Name of Registered Holder (if not the same as (a) above) through
which Registrable Securities Listed in Item 3 below are held:
|
|
(c)
|
Full
Legal Name of Natural Control Person (which means a natural person who
directly or indirectly alone or with others has power to vote or dispose
of the securities covered by the questionnaire):
|
|
2. Address
for Notices to Selling Stockholder:
|
|
|
|
Telephone:
|
Fax:
|
Contact
Person:
|
E-mail
address of Contact
Person:________________________________________________
|
|
3. Beneficial
Ownership of Registrable Securities Issuable Pursuant to the Purchase
Agreement:
|
|
(a)
|
Type
and Number of Registrable Securities beneficially owned and issued
pursuant to the Agreement:
|
|
(b)
|
Number
of shares of Common Stock to be registered pursuant to this Notice for
resale:
|
|
(a)
|
Are
you a broker-dealer?
|
Yes No
(b)
|
If
“yes” to Section 4(a), did you receive your Registrable Securities as
compensation for investment
banking services to the Company?
|
|
Note:
|
If
no, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
|
(c)
|
Are
you an affiliate of a
broker-dealer?
|
Yes No
Note:
|
If
yes, provide a narrative explanation
below:
|
|
(c)
|
If
you are an affiliate of a broker-dealer, do you certify that you bought
the Registrable Securities in the ordinary course of business, and at the
time of the purchase of the Registrable Securities to be resold, you had
no agreements or understandings, directly or indirectly, with any person
to distribute the Registrable
Securities?
|
Yes No
Note:
|
If
no, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
|
5. Beneficial
Ownership of Other Securities of the Company Owned by the Selling
Stockholder.
|
Except
as set forth below in this Item 5, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the Registrable
Securities listed above in Item 3.
|
Type
and amount of other securities beneficially
owned:
|
|
_______________________________________________________________________________
|
|
_______________________________________________________________________________
|
6. Relationships
with the Company:
Except
as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity
securities of the undersigned) has held
any
position or office or has had any other material relationship with the Company
(or its predecessors or affiliates) during the past three years.
|
State
any exceptions here:
|
The
undersigned has reviewed the form of Plan of Distribution attached as Annex A to
the Registration Rights Agreement, and hereby confirms that, except as set forth
below, the information contained therein regarding the undersigned and its plan
of distribution is correct and complete.
|
State
any exceptions here:
|
The
undersigned agrees to promptly notify the Company of any inaccuracies or changes
in the information provided herein that may occur subsequent to the date hereof
and prior to the effective date of any applicable Resale Registration Statement.
All notices hereunder and pursuant to the Agreement shall be made in writing, by
hand delivery, confirmed or facsimile transmission, first-class mail or air
courier guaranteeing overnight delivery at the address set forth
below. In the absence of any such notification, the Company shall be
entitled to continue to rely on the accuracy of the information in this Notice
and Questionnaire.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items (1) through (7) above and the inclusion
of such information in the Resale Registration Statement and the
Prospectus. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or amendment of
any such Registration Statement and the Prospectus.
By
signing below, the undersigned acknowledges that it understands its obligation
to comply, and agrees that it will comply, with the provisions of the Exchange
Act and the rules and regulations thereunder, particularly Regulation M in
connection with any offering of Registrable Securities pursuant to the Resale
Registration Statement. The undersigned also acknowledges that it
understands that the answers to this Questionnaire are furnished for use in
connection with Registration Statements filed pursuant to the Registration
Rights Agreement and any amendments or supplements thereto filed with the
Commission pursuant to the Securities Act.
The
undersigned hereby acknowledges and is advised of the following Interpretation
A.65 of the July 1997 SEC Manual of Publicly Available Telephone Interpretations
regarding short selling:
“An
Issuer filed a Form S-3 registration statement for a secondary offering of
common stock which is not yet effective. One of the selling
stockholders wanted to do a short sale of common stock “against the box” and
cover the short sale with registered shares after the effective
date. The issuer was advised that the short sale could not be made
before the registration statement become effective, because the shares
underlying the short sale are deemed to be sold at the time such sale is
made. There would, therefore, be a violation of Section 5 if the
shares were effectively sold prior to the effective date.”
By
returning this Questionnaire, the undersigned will be deemed to be aware of the
foregoing interpretation.
I confirm
that, to the best of my knowledge and belief, the foregoing statements
(including without limitation the answers to this Questionnaire) are
correct.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this
Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
Dated: Beneficial Owner:
; By:
160;
Name:
Title:
PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN
THE ORIGINAL BY OVERNIGHT MAIL, TO:
Cytori
Therapeutics, Inc.
3020
Callan Road
San
Diego, California 92121
Telephone
No.: (858) 458-0900
Facsimile
No.: (858) 450-4335
Attention: Jon
Soneff
exhibit991_pressrelease.htm
Exhibit
99.1
Cytori
Therapeutics to Raise $4.2 Million through a Private Placement
Cytori
Therapeutics, Inc. (NASDAQ: CYTX) entered into definitive agreements to raise
approximately $4.2 million through a private placement with select investors.
The transaction was executed independently without a placement
agent.
At
closing, Cytori will issue and sell to investors 1.86 million units at a
purchase price of $2.28 per unit. Each unit consists of one unregistered share
of the Company’s common stock and 1.75 warrants. The warrants will be
exercisable immediately after the closing of the transaction at an exercise
price of $2.62 per share and have a five year term.
The funds
will be used for sales and marketing activities related to the commercialization
of the Celution® System and consumables as well as other related and
complementary products in Europe, for ongoing clinical studies of the Celution®
System for breast reconstruction and cardiovascular disease, and for general
working capital. The transaction is expected to close on or about May 11, 2009,
subject to the satisfaction of customary closing conditions.
This
press release shall not constitute an offer to sell or the solicitation of an
offer to buy, nor shall there be any sales of these securities in any
jurisdiction in which such an offer, solicitation or sale would be unlawful
prior to the registration or qualification under the securities laws of any such
jurisdiction.
About
Cytori
Cytori
Therapeutics, Inc. manufactures, develops, and internationally commercializes
innovative medical technologies, which allow physicians to practice regenerative
medicine. Commercial activities are currently focused on marketing the Celution®
cell processing system and related family of products across three areas. The
first is cosmetic and reconstructive surgery in Europe and Asia-Pacific. The
second is to fulfill the demand among physicians in Europe and Asia Pacific for
access to clinical grade stem and regenerative cells. The third is to market the
Celution®-based StemSource® Cell Bank worldwide to hospitals and tissue banks so
they can in turn offer patients the opportunity to cryopreserve their own
adipose-derive stem and regenerative cells. www.cytoritx.com
Cautionary
Statement Regarding Forward-Looking Statements
This
press release includes forward-looking statements regarding events, trends and
business prospects, which may affect Cytori’s future operating results and
financial position. Such statements, including, but not limited to, those
regarding the anticipated closing of the offering and the anticipated use of the
net proceeds from the offering, are subject to risks and uncertainties that
could cause Cytori’s actual results and financial position to differ materially.
Some of these risks and uncertainties include Cytori’s history of operating
losses, the need for further financing, regulatory uncertainties regarding the
collection and results of, clinical data, dependence on third party performance,
and other risks and uncertainties described under "Risk Factors" in Cytori's
Securities and Exchange Commission Filings, including its annual report on Form
10-K for the year ended December 31, 2008. Cytori assumes no responsibility to
update or revise any forward-looking statements contained in this press release
to reflect events, trends or circumstances after the date of this press
release.
###
Contact:
Tom
Baker
Cytori
Therapeutics
Direct:
858.875.5258
Email:tbaker@cytoritx.com