UNITED
STATES 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): June 19, 2009
CYTORI
THERAPEUTICS, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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000-32501
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33-0827593
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(State
or other jurisdiction of incorporation)
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(Commission
File No.)
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(I.R.S.
Employer Identification No.)
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3020
Callan Road, San Diego, California 92121
(Address
of principal executive offices)
(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):
¨ Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
On June
19, 2009, Cytori Therapeutics, Inc., a Delaware corporation (the “Company”),
entered into a common stock purchase agreement (the “Agreement”) with Seaside
88, LP (“Seaside”) relating to the offering (the “Offering”) and sale of a total
of up to 7,150,000 shares of its common stock (the “Shares”). The Agreement requires
us to issue and Seaside to buy 275,000 shares of our common stock once every two
weeks, subject to the satisfaction of customary closing
conditions. At an initial closing, the offering price will equal 87%
of our common stock’s volume weighted average trading price during the trading
day immediately prior to the initial closing date and at subsequent closings on
each 14th day thereafter for one year the offering price will equal 87% of our
common stock’s weighted average trading price during the ten-day trading period
immediately preceding each subsequent closing date (the “Ten-Day
VWAP”). If with respect to any subsequent closing, the Ten-Day VWAP
is below $2.50 per share, then the closing will not occur and the shares of common stock that would have been
purchased at such subsequent closing will instead be added to, and purchased
together with, the shares of common stock purchased at the next subsequent closing that does
occur.
In addition, the Company may elect to cancel
up to four subsequent closings during the term of the Agreement in the event a
material development or potential material development involving the
Company occurs which the Company would be obligated to
disclose in the prospectus supplement and which disclosure, in the good faith
judgment of the Company’s chief executive officer or Board of Directors, would
be premature or otherwise inadvisable. In such case, the shares of common stock that would have been
purchased at the subsequent closing will instead be added to, and purchased
together with, the shares of common stock purchased at the next subsequent
closing that does occur. In no event will Seaside be able to
purchase or the Company be able to sell
more than 550,000 shares at any one
closing, and in the event two consecutive
subsequent closings are cancelled, then the
aggregate number of closings will be reduced by one. Under the
Agreement, Seaside will not be able to purchase and the Company will not be able to sell, in the aggregate, more than 19.99% shares of our
common stock outstanding on the date we entered into the Agreement.
We have
the option, exercisable by us in our sole discretion, upon thirty days’ prior
written notice to Seaside, to terminate the Agreement after the thirteenth
closing and prior to the fourteenth closing. The Agreement contains
customary representations and warranties and covenants for each party, which
must be true and have been performed at each closing. Seaside has
agreed not to engage in short sales of our common stock during the term of the
Agreement.
We have
agreed to indemnify and hold harmless Seaside against certain liabilities in
connection with the sale of our common stock under the Agreement.
The
Company expects the initial closing to occur on or about June 22, 2009, subject
to the satisfaction of customary closing conditions, and expects to raise
approximately $823,000 at the initial closing, net of the estimated
offering expenses, from the sale of the shares of common stock.
The
Offering was made pursuant to the Company’s shelf registration statement on Form
S-3 (File No. 333-157023), which was declared effective by the Securities and
Exchange Commission on February 11, 2009. The Company, pursuant to Rule 424(b)
under the Securities Act of 1933, will file with the Securities and Exchange
Commission a prospectus supplement relating to the Offering. The
legal opinion, including the related consent, of DLA Piper LLP (US) is filed as
Exhibit 5.1 to this Current Report.
The
foregoing is only a brief description of the material terms of the Common Stock
Purchase Agreement and does not purport to be a complete description of the
rights and obligations of the parties
2
thereunder. The
foregoing description is qualified in its entirety by reference to the form of
Common Stock Purchase Agreement, which is filed as Exhibit 10.68 to this Current
Report and incorporated herein by reference. This Current Report
contains forward-looking statements that involve risk and uncertainties, such as
statements related to the anticipated closing of the Offering and the amount of
net proceeds expected from the Offering. The risks and uncertainties involved
include the Company’s ability to satisfy certain conditions to closing on a
timely basis or at all, as well as other risks detailed from time to time in the
Company’s Securities and Exchange Commission filings, including its annual
report on Form 10-K for the year ended December 31, 2008.
Item
9.01 Financial
Statements and Exhibits.
(d)
Exhibits
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Exhibit
No.
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Description
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5.1
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Opinion
of DLA Piper LLP (US)
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10.68
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Form
of Common Stock Purchase Agreement by and between Cytori Therapeutics,
Inc. and Seaside 88, LP, dated as of June 19,
2009
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3
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.
Date: June
22, 2009
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CYTORI
THERAPEUTICS, INC.
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By:
/s/ Mark E. Saad
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Mark
E. Saad
Chief
Financial Officer
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4
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Exhibit
No.
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Description
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5.1
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Opinion
of DLA Piper LLP (US)
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10.68
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Form
of Common Stock Purchase Agreement by and between Cytori Therapeutics,
Inc. and Seaside 88, LP, dated as of June 19,
2009
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5
Exhibit
5.1
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DLA
Piper LLP (US)
San
Diego, California 92121-2133
T 858.677.1400
F 858.677.1401
W
www.dlapiper.com
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June 22,
2009
3020
Callan Road
San
Diego, California 92121
You have requested our opinion with
respect to certain matters in connection with the sale and issuance by Cytori
Therapeutics, Inc., a Delaware corporation (the “Company”),
of up to an aggregate of 7,150,000 shares (the “Shares”)
of the Company’s common stock, par value $0.001 per share (the “Common
Stock”), pursuant to a Registration Statement on Form S-3 (File
No. 333-157023) (the “Registration
Statement”) filed with the Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended (the “Act”), the
related prospectus included therein (the “Prospectus”)
and the prospectus supplement to be filed with the Commission pursuant to
Rule 424(b) promulgated under the Act (the “Prospectus
Supplement”).
In connection with this opinion, we
have examined and relied upon the Registration Statement and the related
Prospectus and Prospectus Supplement to be filed as an exhibit to a Current
Report of the Company on Form 8-K, the Company’s Amended and Restated
Certificate of Incorporation and Amended and Restated Bylaws, as currently in
effect, and the originals or copies certified to our satisfaction of such other
documents, records, certificates, memoranda and other instruments as in our
judgment are necessary or appropriate to enable us to render the opinion
expressed below.
In rendering this opinion, we have
assumed the genuineness and authenticity of all signatures on original
documents; the genuineness and authenticity of all documents submitted to us as
originals; the conformity to originals of all documents submitted to us as
copies; the accuracy, completeness and authenticity of certificates of public
officials; and the due authorization, execution and delivery of all documents
where due authorization, execution and delivery are prerequisites to the
effectiveness of such documents.
On the basis of the foregoing, and in
reliance thereon, we are of the opinion that the Shares, when issued and sold in
accordance with the Registration Statement and the related Prospectus and
Prospectus Supplement, will be validly issued, fully paid and
nonassessable.
In
addition to the qualifications set forth above, the foregoing opinion is further
qualified as follows:
(a) The
foregoing opinion is rendered as of the date hereof. We assume no
obligation to update such opinion to reflect any facts or circumstances that may
hereafter come to our attention or changes in the law which may hereafter
occur.
(b) We are
members of the Bar of the State of California and we do not express any opinion
herein concerning any law other than the Delaware General Corporation Law, the
substantive law of the State of California and the substantive federal
securities laws of the United States of America. We express no
opinion as to the laws of any other state or jurisdiction of the United States
or of any foreign jurisdiction. We have made no inquiry into the laws
and regulations or as to laws relating to choice of law or conflicts of law
principles. The opinion expressed herein is subject to the effect of
judicial decisions which may permit the introduction of parol evidence to modify
the terms or the interpretation of agreements.
(c) We
express no opinion as to compliance with the securities (or “blue sky”), broker
licensing, real estate syndication or mortgage lending laws of any
jurisdiction.
(d) The
opinion stated herein relating to the validity and binding nature of obligations
of the Company is subject to (i) the effect of any applicable bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting creditors’
rights generally and (ii) the effect of general principles of equity
(regardless of whether considered in a proceeding in equity or at
law).
(e) This
opinion is limited to the matters set forth herein, and no other opinion should
be inferred beyond the matters expressly stated.
We consent to the reference to our firm
under the caption “Legal Matters” in the Prospectus Supplement and to the filing
of this opinion as an exhibit to a Current Report of the Company on Form
8-K. In giving our consent, we do not thereby admit that we are in
the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Commission
thereunder.
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Very
truly yours,
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/s/ DLA PIPER LLP (US)
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DLA
PIPER LLP
(US)
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2
Exhibit
10.68
COMMON
STOCK PURCHASE AGREEMENT
This
Common Stock Purchase Agreement (this “Agreement”) is dated
as of June 19, 2009, by and between Cytori Therapeutics, Inc., a Delaware
corporation (the “Company”), and
Seaside 88, LP, a Florida limited partnership (such investor, including its
successors and assigns, “Seaside”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement, the Company
desires to issue and sell to Seaside, and Seaside desires to purchase from the
Company, up to 7,150,000 shares of Common Stock on the Closing
Dates;
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 Seaside 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 have the meanings indicated in this Section
1.1:
“10-Day VWAP” means
the daily volume weighted average of actual trading prices measured in
hundredths of cents of the Common Stock of the Company on the Trading Market for
the ten consecutive Trading Days immediately prior to a Subsequent Closing
Date.
“Action” shall have
the meaning ascribed to such term in Section 3.1(j).
“Affiliate” means any
Person that, directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with a Person as such terms are
used in and construed under Rule 144.
“Closing” means the
Initial Closing and each Subsequent Closing.
“Closing Dates” means
the Initial Closing Date and each Subsequent Closing Date.
“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 common stock may hereafter be reclassified.
“Common Stock
Equivalents” means any securities of the Company or the Subsidiaries
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.
“Company Counsel”
means DLA Piper LLP (US), or other counsel (including in-house counsel)
reasonably acceptable to Seaside.
1
“DTC” means the
Depository Trust Company.
“DWAC” means DTC’s
Deposit Withdrawal Agent Commission system.
“Disclosure Schedules”
means the disclosure schedules of the Company delivered concurrently herewith,
as updated by the Company from time to time.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Floor” shall mean
$2.50 (as the same may be proportionately adjusted in respect of any stock
split, stock dividend, combination, recapitalization or the like with respect to
the Common Stock).
“GAAP” shall have the
meaning ascribed to such term in Section 3.1(h).
“Initial Closing”
means the closing of the purchase and sale of the Common Stock pursuant to
Section 2.1.
“Initial Closing Date”
means June 22, 2009 or such later date when all of the Transaction Documents
have been executed and delivered by the applicable parties thereto, and all
conditions precedent to (i) Seaside’s obligations to purchase the Shares and
(ii) the Company’s obligations to issue and deliver the Shares have been
satisfied or waived.
“Initial Per Share Purchase
Price” shall be an amount equal to the daily volume weighted average of
actual trading prices measured in hundredths of cents of the Common Stock of the
Company on the Trading Market for the one trading day immediately prior to the
Initial Closing Date multiplied by 0.87.
“Intellectual
Property” shall have the meaning ascribed to such term in Section
3.1(r).
“Lien” means a lien,
charge, security interest, encumbrance, right of first refusal, preemptive right
or other restriction.
“Material Adverse
Effect” shall have the meaning ascribed to such term in Section
3.1(b).
“Per Share Purchase
Price” shall be an amount equal to the 10-Day VWAP multiplied by
0.87.
“Permits” shall have
the meaning ascribed to such term in Section 3.1(s).
“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.
“Prospectus
Supplement” means the supplement or supplements to the base prospectus
contained in the Registration Statement to be filed in connection with the sale
to Seaside, and, to the extent that it is deemed an underwriter under the
Securities Act, the resale by Seaside in its capacity as an underwriter , of the
Shares.
2
“Registration
Statement” means the registration statement of the Company, Commission
File No. 333-157023, as amended, covering the sale to Seaside, and, to the
extent that it is deemed an underwriter under the Securities Act, the resale by
Seaside in its capacity as an underwriter, of the Shares.
“Required Approvals”
shall have the meaning ascribed to such term 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.
“Seaside Party” shall
have the meaning ascribed to such term in Section 4.6.
“SEC Reports” shall
have the meaning ascribed to such term in Section 3.1(h).
“Securities Act” means
the Securities Act of 1933, as amended.
“Shares” means the
shares of Common Stock issued or issuable to Seaside pursuant to this
Agreement.
“Short Sales” shall
include, without limitation, all “short sales” as defined in Rule 200 of
Regulation SHO of the Exchange Act and all types of direct and indirect stock
pledges, forward sale contracts, options, puts, calls, swaps and similar
arrangements (including on a total return basis).
“Subsequent Closing”
means each closing of the purchase and sale of the Common Stock pursuant to
Section 2.2.
“Subsequent Closing
Date” means the day two weeks subsequent to the prior Closing Date (or,
if such day is not a Trading Day, then the first day thereafter that is a
Trading Day) commencing on July 6, 2009 and ending on June 7, 2010, or such
later dates when all conditions precedent to (i) Seaside’s obligations to
purchase the Shares and (ii) the Company’s obligations to deliver the Shares
have been satisfied or waived, in each event with respect to such Subsequent
Closing.
“Subsidiary” shall
have the meaning ascribed to such term in Section 3.1(a).
“Trading Day” means a
day on which the Common Stock is traded on a Trading Market.
“Trading Market” means
whichever of the following markets or exchanges on which the Common Stock is
listed or quoted for trading on the date in question: the New York Stock
Exchange, the NYSE Alternext Exchange, the Nasdaq Capital Market, the Nasdaq
Global Market or the Nasdaq Global Select Market.
3
“Transaction
Documents” means this Agreement and any other documents or agreements
executed in connection with the transactions contemplated
hereunder.
ARTICLE
II
PURCHASE
AND SALE
2.1 Initial
Closing. On the Initial Closing Date, Seaside shall purchase
from the Company, and the Company shall issue and sell to Seaside, 275,000
Shares at the Initial Per Share Purchase Price. Upon satisfaction or
waiver of the conditions set forth in Sections 2.3, 2.4, 2.5 and 2.6, the
Initial Closing shall occur on the Initial Closing Date at the offices of White
White & Van Etten PC, 55 Cambridge Parkway, Cambridge, MA 02142, or such
other location as the parties shall mutually agree.
2.2 Subsequent
Closings. On each Subsequent Closing Date, Seaside shall
purchase from the Company, and the Company shall issue and sell to Seaside,
275,000 Shares (subject to Section 2.6 hereof) at the Per Share Purchase Price.
Upon satisfaction or waiver of the conditions set forth in Sections 2.3, 2.4,
2.5 and 2.6, each Subsequent Closing shall occur on the applicable Subsequent
Closing Date at the offices of White White & Van Etten PC, 55 Cambridge
Parkway, Cambridge, MA 02142, or such other location as the parties shall
mutually agree.
2.3 Deliveries by the
Company. On each Closing Date, the Company shall deliver or
cause to be delivered to Seaside the following:
(a) 275,000
Shares (subject to Section 2.6 hereof), registered in the name of Seaside, via
the DTC DWAC system, as specified on the signature pages hereto;
(b) an
officer’s certificate of the Company’s Chief Executive Officer or Chief
Financial Officer, in form reasonably acceptable to Seaside, certifying the
accuracy in all material respects (without giving effect to any limitation as to
“materiality” or “knowledge” set forth therein) of the Company’s representations
and warranties made in this Agreement as of the Closing Date and the Company’s
performance of the covenants to be performed by it pursuant to this Agreement at
or prior to the Closing; and
(c) solely
on the Initial Closing Date, a legal opinion of Company Counsel, in the form of
Exhibit A
attached hereto.
2.4 Deliveries by
Seaside. On each Closing Date, Seaside shall deliver or
cause to be delivered to the Company an amount equal to (a) the Initial Per
Share Purchase Price, with respect to the Initial Closing, or the Per Share
Purchase Price, with respect to each Subsequent Closing, multiplied by (b)
275,000 (subject to Section 2.6 hereof), by wire transfer to the account as
specified in writing by the Company, in each case less the amount due Seaside
for reimbursement of its expenses pursuant to the last sentence of in Section
5.2 hereof.
2.5 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with each Closing are subject
to the satisfaction by Seaside, or waiver by the Company, of the following
conditions:
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(i) the
accuracy in all material respects (without giving effect to any limitation as to
“materiality” or “knowledge” set forth therein) on the Closing Date of the
representations and warranties of Seaside contained herein;
(ii) all
obligations, covenants and agreements of Seaside required to be performed at or
prior to the Closing Date shall have been performed;
(iii) the
delivery by Seaside of the items set forth in Section 2.4 of this Agreement;
and
(iv) the
satisfaction of the condition set forth in Section 2.6(a) of this
Agreement.
(b) The
obligations of Seaside hereunder in connection with each Closing are subject to
the satisfaction by the Company, or the waiver by Seaside, of the following
conditions:
(i) the
accuracy in all material respects (without giving effect to any limitation as to
“materiality” or “knowledge” set forth therein) on the Closing Date of the
representations and warranties of the Company contained herein (as qualified and
limited by the Disclosure Schedules, as updated through such Closing
Date);
(ii) all
obligations, covenants and agreements of the Company required to be performed at
or prior to the Closing Date shall have been performed;
(iii) the
delivery by the Company of the items set forth in Section 2.3 of this
Agreement;
(iv) the
satisfaction of the condition set forth in Section 2.6(a) of this
Agreement;
(v) there
shall have been no Material Adverse Effect with respect to the Company since the
date hereof that has not been cured by the Company; and
(vi) from
the date hereof to each Closing Date, trading in the Common Stock shall not have
been suspended by the Commission and trading in securities generally as reported
by Bloomberg Financial Markets shall not have been suspended or limited, or
minimum prices shall not have been established on securities whose trades are
reported by such service, or on any Trading Market, nor shall a banking
moratorium have been declared either by the United States or New York State
authorities nor shall there have occurred any material outbreak or escalation of
hostilities or other national or international calamity of such magnitude in its
effect on, or any material adverse change in, any financial market which, in
each case, in the reasonable judgment of Seaside, makes it impracticable or
inadvisable to purchase the Shares at the Closing.
2.6 Cancellation of a Subsequent
Closing in Certain Circumstances.
(a) In
the event that the 10-Day VWAP does not equal or exceed the Floor, as calculated
with respect to any Subsequent Closing Date, then such Subsequent Closing will
not occur.
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(b) In
the event that the Company furnishes to Seaside a certificate signed by the
Chief Executive Officer or Chief Financial Officer of the Company stating that a
material development or potential material development involving the Company has
occurred which the Company would be obligated to disclose in the Prospectus
Supplement, which disclosure would, in the good faith judgment of the Chief
Executive Officer or the Board of Directors of the Company, be premature or
otherwise inadvisable at such time, then such Subsequent Closing will not occur;
provided, however, that the
Company will not be permitted to cancel a Subsequent Closing pursuant to this
Section 2.6(b) more than four times during the term of this
Agreement.
(c) In
the event that a Subsequent Closing is cancelled pursuant to either Section
2.6(a) or (b) hereof, then the number of shares to be sold by the Company, and
purchased by Seaside, at the next Subsequent Closing pursuant to this Agreement
will be increased by 275,000 Shares to 550,000 Shares for such Subsequent
Closing. For clarification, if two or more consecutive Subsequent
Closings are cancelled pursuant to Section 2.6(a) or (b), the number of shares
to be purchased and sold at the next Subsequent Closing will be 550,000 Shares,
without regard to whether one, two or more Subsequent Closings have been
cancelled. Whenever a Subsequent Closing is cancelled pursuant to
Section 2.6(a) or (b), the aggregate number of Subsequent Closings pursuant to
this Agreement will be reduced by one, and if two or more consecutive Subsequent
Closings are cancelled, then the aggregate number of shares purchased and sold
pursuant to this Agreement will be reduced accordingly.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
3.1 Representations and
Warranties of the Company. Except as set forth under the
corresponding section of the Disclosure Schedules, which Disclosure Schedules
may be updated before any Closing and shall be deemed a part hereof, the Company
hereby makes the representations and warranties set forth below to
Seaside:
(a) Subsidiaries. All
of the direct and indirect subsidiaries of the Company are listed in the
Company’s most recent Annual Report on Form 10-K as modified by any subsequent
SEC Reports filed with the SEC (each a “Subsidiary”). The
Company owns, directly or indirectly, all of the capital stock or other equity
interests of each Subsidiary free and clear of any Liens, and all the issued and
outstanding shares of capital stock 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. If the Company has no
subsidiaries, then references in the Transaction Documents to the Subsidiaries
will be disregarded.
(b) Organization and
Qualification. The Company and each of the 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 power and authority to own and use its
properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation or
default of any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter
documents. Each of the Company and the 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
6
qualification
necessary, except where the failure to be so qualified or in good standing, as
the case may be, could not reasonably be expected to result in (i) a material
adverse effect on the legality, validity or enforceability of any Transaction
Document, (ii) a material adverse effect on the results of operations, assets,
business, prospects or financial condition of the Company and the Subsidiaries,
taken as a whole, or (iii) a material adverse effect on the Company’s ability to
perform in any material respect on a timely basis its obligations under any
Transaction Document (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and, to the knowledge of the Company, no Action has been
instituted in any such jurisdiction revoking, limiting or curtailing or seeking
to revoke, limit or curtail such power and authority or
qualification.
(c) Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by each
of the Transaction Documents and otherwise to carry out its obligations
thereunder. The execution and delivery of each of the Transaction
Documents by the Company and the consummation by it of the transactions
contemplated thereby have been duly authorized by all necessary action on the
part of the Company and its stockholders and no further action is required by
the Company or its stockholders in connection therewith other than in connection
with the Required Approvals. Each Transaction Document has been (or
upon delivery will have been) duly executed by the Company and, when delivered
in accordance with the terms hereof, will constitute the valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (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.
(d) No
Conflicts. The execution, delivery and performance of the
Transaction Documents by the Company, the issuance and sale of the Shares and
the consummation by the Company of the other transactions contemplated thereby
do not and will not (i) conflict with or violate any provision of the Company’s
or any Subsidiary’s certificate or articles of incorporation, bylaws or other
organizational or charter documents, or (ii) conflict with, violate or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or result in the creation of any Lien upon any of
the properties or assets of the Company or any Subsidiary pursuant to, or give
to others any rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any agreement (written or
oral), credit facility, debt or other instrument (evidencing a Company or
Subsidiary debt or otherwise) to which the Company or any Subsidiary is a party
or by which any property or asset of the Company or any Subsidiary is bound, 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 or a
Subsidiary is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company or a Subsidiary
is bound or affected, except in the case of each of clauses (ii) and (iii), such
as could not reasonably be expected to result in a Material Adverse
Effect.
(e) Filings, Consents and
Approvals. The Company is not 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, the Trading Market or
7
other
Person in connection with the execution, delivery and performance by the Company
of the Transaction Documents, other than (i) the filing of the Prospectus
Supplement, and (ii) any notice filings or SEC Reports as are required to be
made following each Closing Date under applicable federal and state securities
laws or under applicable rules and regulations of the Trading Market
(collectively, the “Required
Approvals”).
(f) Issuance of the
Shares. The Shares are duly authorized and, when issued and
paid for in accordance with the Transaction Documents, will be duly and validly
issued, fully paid and nonassessable, free and clear of all Liens imposed by the
Company. The Company has reserved from its duly authorized capital
stock the maximum number of shares of Common Stock issuable pursuant to this
Agreement. The issuance by the Company to Seaside, and, to the extent
that it is deemed an underwriter under the Securities Act, the resale by Seaside
in its capacity as an underwriter, of the Shares has been registered under the
Securities Act and all of the Shares when delivered will be freely transferable
and tradable on the Trading Market by Seaside without restriction (other than
any restrictions arising solely from the status, acts or omissions of
Seaside). The Registration Statement is effective and available for
the issuance and, to the extent that it is deemed an underwriter under the
Securities Act, the resale by Seaside in its capacity as an underwriter, of the
Shares thereunder and the Company has not received any notice that the
Commission has issued or intends to issue a stop-order with respect to the
Registration Statement or that the Commission otherwise has suspended or
withdrawn the effectiveness of the Registration Statement, either temporarily or
permanently, or intends or has threatened in writing to do so. The
“Plan of Distribution” section under the Registration Statement as supplemented
by the Prospectus Supplement permits the issuance and sale and, to the extent
that it is deemed an underwriter under the Securities Act, the resale by Seaside
in its capacity as an underwriter, of the Shares hereunder.
(g) Capitalization. The
capitalization of the Company is as set forth in the Registration
Statement. The Company has not issued any capital stock since its
most recently filed periodic report under the Exchange Act, other than pursuant
to the exercise of employee stock options under the Company’s stock option
plans, the issuance of shares of Common Stock to employees pursuant to the
Company’s employee stock purchase plan and pursuant to the conversion or
exercise of outstanding Common Stock Equivalents. No Person has any
right of first refusal, preemptive right, right of participation, or any similar
right to participate in the transactions contemplated by the Transaction
Documents. Except as disclosed in the SEC Reports or Schedule 3.1(g),
there are no outstanding options, warrants, script rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities, rights or
obligations convertible into or exchangeable for, or giving any Person any right
to subscribe for or acquire, any shares of Common Stock, or contracts,
commitments, understandings or arrangements by which the Company or any
Subsidiary is or may become bound to issue additional shares of Common Stock or
Common Stock Equivalents. Except as disclosed in the SEC Reports or
Schedule 3.1(g), the issue and sale of the Shares will not obligate the Company
to issue shares of Common Stock or other securities to any Person (other than
Seaside) and will not result in a right of any holder of Company securities to
adjust the exercise, conversion, exchange or reset price under such
securities. All of the outstanding shares of capital stock of the
Company are validly issued, fully paid and nonassessable, have been issued in
material compliance with all federal and state securities laws and requirements
of the Trading Market, and none of such outstanding shares was issued in
violation of any preemptive rights or similar rights to subscribe for or
purchase
8
securities. No
further approval or authorization of any stockholder or the Board of Directors
of the Company is required for the issuance and sale of the Shares, other than
the Required Approvals. There are no stockholders agreements, voting
agreements or other similar agreements with respect to the Company’s capital
stock to which the Company is a party or, to the knowledge of the Company,
between or among any of the Company’s stockholders.
(h) SEC Reports; Financial
Statements. The Company has filed or furnished all reports,
schedules, forms, statements and other documents required to be filed or
furnished by it under the Securities Act and the Exchange Act (including all
required exhibits thereto), including pursuant to Section 13(a) or 15(d)
thereof, for the 12 months preceding the date hereof (or such shorter period as
the Company was required by law to file such material) (the foregoing materials,
as amended and including the exhibits thereto and documents incorporated by
reference therein, being collectively referred to herein as the “SEC Reports”) and any
notices, reports or other filings pursuant to applicable requirements of the
Trading Market 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 dates, the SEC Reports complied in
all material respects with the applicable requirements of the Securities Act and
the Exchange Act and the rules and regulations of the Commission promulgated
thereunder, and 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
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. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles applied on a
consistent basis during the periods involved (“GAAP”), 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 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.
(i) Material
Changes. Since the date of the latest audited financial
statements included within the SEC Reports, except as specifically disclosed in
the SEC Reports, (i) there has been no event, occurrence or development that has
had or that would reasonably be expected to result in a Material Adverse Effect,
except as has been reasonably cured by the Company, (ii) the Company has not
incurred any 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 its method of accounting except as otherwise required
pursuant to GAAP, (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), and (v) the Company has not issued any equity
securities to any officer, director or Affiliate, except pursuant to existing
Company stock option and incentive plans.
9
(j) Litigation. Except
as disclosed in the SEC Reports, there is no action, suit, notice of violation,
or proceeding pending or, to the knowledge of the Company, threatened against or
affecting the Company, any Subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency or
regulatory authority (federal, state, county, local or foreign) (collectively,
an “Action”)
which (i) adversely affects or challenges the legality, validity or
enforceability of any of the Transaction Documents or the Shares or (ii) could,
if there were an unfavorable decision, have or reasonably be expected to result
in a Material Adverse Effect. Neither the Company nor any Subsidiary,
nor, to the knowledge of the Company, any director or officer thereof (in his or
her capacity as such), is or has been the subject of any Action involving a
claim or violation of or liability under federal or state securities laws or a
claim of breach of fiduciary duty. There has not been and, to the knowledge of
the Company, there is not currently pending, any investigation by the Commission
involving the Company or any current or former director or officer of the
Company (in his or her capacity as such). The Commission has not
issued any stop order or other order suspending the effectiveness of any
registration statement filed by the Company or any Subsidiary under the Exchange
Act or the Securities Act and, to the Company’s knowledge, no proceeding for
such purpose is pending before by the Commission.
(k) Compliance. Neither
the Company nor any Subsidiary (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 reasonably be expected to result in a default by the Company
or any Subsidiary under), nor has the Company or any Subsidiary received notice
of a claim that it is in default under or that it is in violation of, any
indenture, loan or credit agreement or any other agreement or instrument to
which it is a party or by which it or any of its properties is bound (whether or
not such default or violation has been waived), (ii) is in violation of any
order of any court, arbitrator or governmental body, or (iii) is in violation of
any statute, rule or regulation of any governmental authority or the Trading
Market, including without limitation all foreign, federal, state and local laws
applicable to its business, except in each case as would not have a Material
Adverse Effect.
(l) Listing and Maintenance
Requirements. The Company’s Common Stock is registered
pursuant to Section 12(b) of the Exchange Act, and the Company has taken no
action designed to, or which to its knowledge is likely to have the effect of,
terminating 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 notice from any Trading Market on which the
Common Stock is or has been 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, and immediately after the consummation of the
transactions contemplated hereby will be, in compliance with all such listing
and maintenance requirements.
(m) Application of Takeover
Protections. 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
certificate of incorporation (or similar charter documents) or the laws of its
state of incorporation that is or could become applicable to Seaside as a result
of Seaside and the Company fulfilling their
10
obligations
or exercising their rights under the Transaction Documents, including without
limitation the Company’s issuance of the Shares and Seaside’s ownership of the
Shares.
(n) Disclosure. The
Company confirms that neither the Company nor any officer, director or employee
of the Company acting on its behalf (as such term is used in Regulation FD) has
provided Seaside or its agents or counsel with any information that the Company
believes may constitute material, non-public information except insofar as the
existence and terms of the proposed transactions hereunder may constitute such
information. The Company understands and confirms that Seaside will
rely on the foregoing representations and covenants in effecting transactions in
securities of the Company. All written disclosure provided to Seaside
regarding the Company, its business and the transactions contemplated hereby
furnished by or on behalf of the Company with respect to the representations and
warranties made herein are true and correct with respect to such representations
and warranties and do not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading. The Company acknowledges and agrees that Seaside does not
make and has not made any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set forth in
Section 3.2 hereof.
(o) Effective Registration
Statement. The Registration Statement has been declared
effective by the Commission and the Company knows of no reason why the
Registration Statement will not continue to remain effective for the foreseeable
future. The Company is eligible to use Form S-3 registration
statements for the issuance of securities.
(p) Acknowledgment Regarding
Seaside’s Purchase of Shares. The Company acknowledges and
agrees that Seaside is acting solely in the capacity of an arm’s length
purchaser with respect to the Transaction Documents and the transactions
contemplated hereby. The Company further acknowledges that Seaside is
not acting as a financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to this Agreement and the transactions contemplated
hereby and any advice given by Seaside or any of its respective representatives
or agents in connection with this Agreement and the transactions contemplated
hereby is merely incidental to Seaside’s purchase of the Shares. The
Company further represents to Seaside that the Company’s decision to enter into
this Agreement has been based solely on the independent evaluation of the
transactions contemplated hereby by the Company and its
representatives.
(q) Approvals. The
issuance and listing on the Trading Market of the Shares requires no further
approvals, including but not limited to, the approval of
stockholders.
(r) Intellectual
Property. The Company possesses such right, title and interest
in and to, or possesses adequate rights to use, all such patents, patent rights,
trade secrets, inventions, know-how, trademarks, trade names, copyrights,
service marks and other proprietary rights (“Intellectual
Property”) as are material to the conduct of the Company’s business
except Intellectual Property the failure of which to possess would not have a
Material Adverse Effect. Except as disclosed in the SEC Reports, the
Company has not received any notice of infringement,
11
misappropriation
or conflict from any third party as to such that has not been resolved or
disposed of, which infringement, misappropriation or conflict would if adversely
decided individually or in the aggregate have a Material Adverse
Effect. To the Company’s knowledge, it has not infringed,
misappropriated, or otherwise conflicted with Intellectual Property of any third
parties, which infringement, misappropriation or conflict would individually or
in the aggregate have a Material Adverse Effect.
(s) Permits. The
Company has made all filings, applications and submissions required by, and possesses all
approvals, licenses, certificates, certifications, clearances, consents,
exemptions, marks, notifications, orders, permits and other authorizations
issued by, the appropriate federal, state or foreign regulatory authorities
necessary to own or lease its properties or to conduct its businesses
(collectively, “Permits”), except for
such Permits the failure of which to possess, obtain or make the same would not
reasonably be expected to have a Material Adverse Effect; and the Company has
not received any written notice of proceedings relating to the limitation,
revocation, cancellation, suspension, modification or non-renewal of any such
Permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect, and has no
reason to believe that any such license, certificate, permit or authorization
will not be renewed in the ordinary course.
3.2 Representations and
Warranties of Seaside. Seaside hereby makes the
representations and warranties set forth below to the Company:
(a) Organization;
Authority. Seaside is a limited partnership duly organized,
validly existing and in good standing under the laws of the state of Florida,
with full right, power and authority to own and use its properties and assets
and to carry on its business as currently conducted and to enter into and to
consummate the transactions contemplated by the Transaction Documents and
otherwise to carry out its obligations hereunder or thereunder. The
execution, delivery and performance by Seaside of the transactions contemplated
by this Agreement and each other Transaction Document have been duly authorized
by all necessary action on the part of Seaside and no such further action is
required. Each Transaction Document to which it is a party has been
(or upon delivery will have been) duly executed by Seaside, and, when delivered
by Seaside in accordance with the terms thereof, will constitute the valid and
legally binding obligation of Seaside, enforceable against it in accordance with
its terms, except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (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.
(b) Experience of
Seaside. Seaside, 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 has so evaluated the merits and
risks of such investment. Seaside is able to bear the economic risk
of an investment in the Shares and, at the present time, is able to afford a
complete loss of such investment.
(c) Short
Sales. Seaside has not directly or indirectly, nor has any
Person acting on behalf of or pursuant to any understanding with Seaside,
engaged in any Short Sales involving the Company’s securities or otherwise
sought to hedge its position in the securities of the Company through the date
hereof.
12
(d) Limited
Ownership. The purchase by Seaside of the Shares issuable to
it at the Closings will not result in Seaside (individually or together with any
other Person with whom Seaside has identified, or will have identified, itself
as part of a “group” in a public filing made with the Commission involving the
Company’s securities) acquiring, or obtaining the right to acquire, in excess of
19.999% of the outstanding shares of Common Stock or the voting power of the
Company on a post-transaction basis that assumes that all Closings contemplated
by this Agreement shall have occurred.
ARTICLE
IV
OTHER
AGREEMENTS OF THE PARTIES
4.1 No Transfer
Restrictions. Certificates evidencing the Shares shall not
contain any legend restricting their transferability by Seaside. The
Company shall cause its counsel to issue a legal opinion to the Company’s
transfer agent if required by the Company’s transfer agent to effect a transfer
of any of the Shares; such opinion shall be provided by the Company’s counsel at
no expense to Seaside.
4.2 Furnishing of
Information. As long as Seaside owns Shares, the Company
covenants to use best efforts 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. As long as Seaside owns Shares that are “restricted securities”
as that term is defined in Rule 144 that it has owned for less than one year in
accordance with Rule 144(d), if the Company is not required to file reports
pursuant to the Exchange Act, it will prepare and furnish to Seaside and make
publicly available in accordance with Rule 144(c) such information as is
required for Seaside to sell the Shares under Rule 144.
4.3 Securities Laws Disclosure;
Publicity. The Company shall, by 9:00 a.m. Eastern time on the
Trading Day following the date hereof file a Current Report on Form 8-K which
attaches as exhibits all agreements relating to this transaction, in each case
reasonably acceptable to Seaside, if Seaside is readily available to review such
Form 8-K in a timely manner, disclosing the material terms of the transactions
contemplated hereby.
4.4 Shareholders Rights
Plan. No claim will be made or enforced by the Company or,
with the consent of the Company, any other Person that Seaside is an “Acquiring
Person” or similar designation under any shareholders rights plan or similar
plan or arrangement in effect or hereafter adopted by the Company, or that
Seaside could be deemed to trigger the provisions of any such plan or
arrangement, by virtue of receiving Shares under the Transaction Documents or
under any other agreement between the Company and Seaside. The
Company shall conduct its business in a manner so that it will not become
subject to the Investment Company Act of 1940, as amended.
4.5 Non-Public
Information. The Company covenants and agrees that neither it
nor any other Person acting on its behalf will provide Seaside or its agents or
counsel with any information that the Company believes constitutes material
non-public information. The Company understands and confirms that
Seaside shall be relying on the foregoing representations in effecting
transactions in securities of the Company.
13
4.6 Indemnification of
Seaside. Subject to the provisions of this Section 4.6, the
Company will indemnify and hold Seaside and its directors, officers,
stockholders, partners, members, employees, agents and Affiliates (each, a
“Seaside
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 reasonably incurred in connection with defending or
investigating any suit or action in respect thereof to which any Seaside Party
may become a party under the Securities Act, the Exchange Act or other federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, liabilities, obligations, claims, contingencies, damages, costs and
expenses arise out of or are based on (a) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
Prospectus Supplement, or (b) the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, provided that the Company will not be liable
in any such case to the extent that any such liability, obligation, claim,
contingency, damage, cost or expense arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by and regarding Seaside expressly for inclusion
therein. If any action shall be brought against any Seaside Party in
respect of which indemnity may be sought pursuant to this Agreement, such
Seaside Party shall promptly notify the Company in writing, and the Company
shall have the right to assume the defense thereof with counsel of its own
choosing. Any Seaside Party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Seaside Party
except to the extent that (i) the employment thereof has been specifically
authorized by the Company in writing, (ii) the Company has failed after a
reasonable period of time to assume such defense and to employ counsel or (iii)
in such action there is, in the reasonable opinion of such separate counsel, a
material conflict on any material issue between the position of the Company and
the position of such Seaside Party. The Company will not be liable to
any Seaside Party under this Agreement (i) for any settlement by a Seaside Party
effected without the Company’s prior written consent, which consent shall not be
unreasonably withheld or delayed; or (ii) to the extent, but only to the extent,
that a loss, claim, damage or liability is attributable to any Seaside Party’s
breach of any of the representations, warranties, covenants or agreements made
by Seaside in this Agreement or in the other Transaction Documents.
4.7 Listing of Common
Stock. The Company hereby agrees that (a) if the Company
applies to have the Common Stock traded on any Trading Market other than its
current Trading Market, it will include in such application all of the Shares
and will take such other action as is necessary to cause all of the Shares to be
listed on such other Trading Market as promptly as possible, and (b) it will
take all action reasonably necessary to continue the listing and trading of its
Common Stock on such Trading Market or Markets and will comply in all material
respects with the Company’s reporting, filing and other obligations under the
bylaws or rules of such Trading Market or Markets.
4.8 Stockholder
Approval. The Company shall not issue shares of Common Stock
or Common Stock Equivalents, if such issuance would require stockholder approval
pursuant to applicable rules of the Trading Market, unless and until such
stockholder approval is obtained.
14
4.9 Short
Sales. Seaside covenants that neither it nor any Person acting
on its behalf or pursuant to any understanding with it will execute any Short
Sales in the securities of the Company from the date hereof until the final
Subsequent Closing contemplated hereby.
4.10 Prospectus
Supplement. The Company will use its best efforts to file the
Prospectus Supplement in accordance with the requirements of Rule 424
promulgated under the Securities Act on or before the Initial Closing Date and,
if required, before each Subsequent Closing Date.
ARTICLE
V
MISCELLANEOUS
5.1 Termination. This
Agreement may be terminated:
(a) by
Seaside by written notice to the Company, if the Initial Closing has not been
consummated on or before June 25, 2009;
(b) by
the Company, upon at least 30 days’ prior written notice, after the twelfth
Subsequent Closing and prior to the thirteenth Subsequent Closing pursuant to
this Agreement; or
(c) by
mutual written agreement of the Company and Seaside.
provided
however that no such termination will affect the right of any party to sue for
any breach by the other party (or parties).
5.2 Fees and
Expenses. Except as otherwise set forth in this Agreement and
as set forth in this Section 5.2 below, each party shall pay the fees and
expenses of its advisers, counsel, accountants and other experts, if any, and
all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this
Agreement. The Company shall pay all stamp and other taxes and duties
levied in connection with the delivery of the Shares. Notwithstanding
the foregoing, at the Initial Closing and each Subsequent Closing, the Company
shall reimburse Seaside for the fees and expenses of its counsel, White White
& Van Etten PC, in an amount equal to $3,500.
5.3 Entire
Agreement. The Transaction Documents, together with the
exhibits and Disclosure Schedules thereto, contain the entire understanding of
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect to such matters,
which the parties acknowledge have been merged into such documents, exhibits and
schedules.
5.4 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 at the facsimile number set forth on
the signature pages attached hereto prior to 5:30 p.m. (Eastern 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 set
forth on the signature pages attached hereto on a day that is not a Trading Day
or later than 5:30 p.m. (Eastern time) on any Trading Day, (c) the second
Trading Day following the date of mailing, if sent by
15
U.S.
nationally recognized overnight courier service, 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 set forth on the signature pages
attached hereto.
5.5 Amendments;
Waivers. 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 Seaside 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.
5.6 Headings. 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.
5.7 Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or
obligations hereunder without the prior written consent of
Seaside. Seaside may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the
Company.
5.8 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, except as otherwise set forth in Section 4.6.
5.9 Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of the Transaction Documents 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. The parties hereby waive all rights to a trial by
jury. If either party shall commence an action or proceeding to
enforce any provisions of the Transaction Documents, then the prevailing party
in such action or proceeding shall be reimbursed by the other party for its
attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
5.10 Survival. The
representations and warranties herein shall survive the Closings and delivery of
the Shares.
5.11 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 or email transmission, such signature shall create a valid and
16
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 email signature
page were an original thereof.
5.12 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.
5.13 Rescission and Withdrawal
Right. Notwithstanding anything to the contrary contained in
(and without limiting any similar provisions of) the Transaction Documents,
whenever Seaside 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 Seaside 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.
5.14 Remedies. In
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, Seaside 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 the obligations set forth herein and hereby
agree to waive in any such action for specific performance of any such
obligation the defense that a remedy at law would be adequate.
5.15 Payment Set
Aside. To the extent that either party hereto makes a payment
or payments to the other party hereto pursuant to any Transaction Document or
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 other party, 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.
5.16 Construction. The
parties agree that each of them and/or their respective counsel has reviewed and
had an opportunity to revise the Transaction Documents and, therefore, the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of the Transaction Documents or any amendments hereto.
(Signature
Pages Follow)
17
IN
WITNESS WHEREOF, the parties hereto have caused this Common Stock Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
Cytori
Therapeutics, Inc.
|
Address for Notice:
|
|
By:
/s/ Mark E.
Saad
Name: Mark
E. Saad
Title: CFO
|
3020
Callan Road
San
Diego, CA 92121
Attention: Chief
Executive Officer
Fax:
(858) 458-0994
|
|
With
a copy to (which shall not constitute notice):
|
DLA
Piper LLP (US)
4365
Executive Drive, Suite 1100
San
Diego, CA 92121-2133
Attention: Jeffrey
T. Baglio, Esq.
Fax:
(858) 638-5058
|
|
Seaside
88, LP
By: Seaside
88 Advisors, LLC
|
Address for Notice:
|
|
By:
/s/ William J.
Ritger
Name:
William J. Ritger
Title: Manager
|
750
Ocean Royale Way
Suite
805
North
Palm Beach, FL 33408
Attention: William
J. Ritger and
Denis
M. O’Donnell, M.D.
Fax: 866-358-6721
|
|
With
a copy to (which shall not constitute notice):
|
White
White & Van Etten PC
55
Cambridge Parkway
Cambridge,
MA 02142
Attention: David
A. White, Esq.
Fax: 617-225-0205
|
DWAC
Instructions for Common Stock:
DTC #
- -
Account
number -
18