REGISTRATION RIGHTS AGREEMENT
Exhibit 4.22
This Registration Rights Agreement (this “AGREEMENT”) is made and entered into as of January
___, 2008, by and among Cytocore, Inc., a Delaware corporation (the “COMPANY”), and the investors
signatory hereto (each a “INVESTOR” and collectively, the “INVESTORS”).
This Agreement is made pursuant to Purchase Agreements between the Company and each Investor
(the “PURCHASE AGREEMENT”) and the Finder’s Agreement between the Company and Bathgate Capital
Partners LLC.
The Company and the Investors hereby agree as follows:
“ADDITIONAL WARRANTS” has the meaning set forth in Section 2(c).
“ADVICE” has the meaning set forth in Section 6(d).
“COMMON STOCK” means the Company’s $.001 par value common stock.
“EXCHANGE ACT” means the Securities Exchange Act of 1934, as amended.
“FILING DATE” means (a) with respect to the initial Registration Statement required to be filed
under Section 2(a), 120 days from the Final Close of the Offering.
“HOLDER” or “HOLDERS” means the holder or holders, as the case may be, from time to time of
Registrable Securities.
“INDEMNIFIED
PARTY” has the meaning set forth in Section 5(c).
“INDEMNIFYING PARTY” has the meaning set forth in Section 5(c). “LOSSES” has the meaning set forth in Section 5(a).
“INDEMNIFYING PARTY” has the meaning set forth in Section 5(c). “LOSSES” has the meaning set forth in Section 5(a).
“OFFERING” means that private offering of Units made pursuant to the Purchase Agreements.
“FINDER’S AGREEMENT” means that agreement dated January 24, 2008, between the Company and Bathgate
Capital Partners LLC relating to the Offering.
“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.
“REGISTRABLE SECURITIES” means: (i) the Warrant Shares and (ii) any securities issued or issuable
upon any stock split, dividend or other distribution, recapitalization or similar event, or any
conversion price adjustment with respect to the Warrant Shares.
“REGISTRATION STATEMENT” means the initial registration statement required to be filed in
accordance with Section 2(a) and any additional registration statement(s) required to be filed
under Section 2(b) and 2(c), including (in each case) the Prospectus, amendments and supplements to
such registration statements or Prospectus, including pre- and post-effective amendments, all
exhibits thereto, and all material incorporated by reference or deemed to be incorporated by
reference therein.
“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.
“RULE 415” means Rule 415 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.
“RULE 424” means Rule 424 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.
“SECURITIES ACT” means the Securities Act of 1933, as amended.
“UNITS” means the units comprising shares of Common Stock and Warrants issued in the
Offering.
“WARRANTS” means the Common Stock purchase warrants issued or issuable to the Investors as part
of the Units and the Finder’s Warrants issued pursuant to the Finder’s Agreement.
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“WARRANT SHARES” means the shares of Common Stock issued or issuable upon exercise of the
Warrants and the Additional Warrants.
(a) As soon as possible after the Final Closing of the Offering, but not later than each
Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all 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, on Form SB-2 (or on such other form appropriate for such purpose). Such
Registration Statement 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” attached hereto as Annex A. The Company shall cause such Registration Statement to be
declared effective under the Securities Act as soon as possible after it is filed, and shall use
its reasonable best efforts to keep the Registration Statement continuously effective under the
Securities Act until the date which is the earlier of (i) four years after its Effective Date, (ii)
such time as all of the Registrable Securities covered by such Registration Statement have been
publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by
such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the
counsel to the Company pursuant to a written opinion letter to such effect, addressed and
acceptable to the Company’s transfer agent and the affected Holders (the “EFFECTIVENESS PERIOD”).
(b) Promptly following any date on which the Company becomes eligible to use a registration
statement on Form S-3 to register the Registrable Securities for resale, the Company shall file a
registration statement on Form S-3 covering the Registrable Securities (or a post-effective
amendment on Form S-3 to the then effective Registration Statement) and shall cause such
Registration Statement to be declared effective as soon as possible thereafter. Such Registration
Statement 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” attached
hereto as Annex A. The Company shall cause such Registration Statement to be declared effective
under the Securities Act as soon as possible and shall use its reasonable best efforts to keep
such Registration Statement continuously effective under the Securities Act during the entire
Effectiveness Period.
(c) If a Registration Statement is not filed on or prior to its Filing Date (if the Company
files a Registration Statement without affording the Holders the opportunity to review and comment
on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied
this clause (i)(such failure or breach being referred to as an “EVENT” and the date on which such
Event occurs, being referred to as the “EVENT DATE”), and/or if the Company fails to use its
reasonable best efforts to cause the
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Registration Statement to be declared effective as soon as possible after it is filed, then in
addition to any other rights the Holders may have hereunder or under applicable law, the Company
shall issue to the holders of the Registrable Securities, as liquidated damages and not as a
penalty, warrants (“ADDITIONAL WARRANTS”). The number of Additional Warrants that shall be issued
to a Holder is equivalent to two Additional Warrants for every four Warrants owned by such Holder.
The Additional Warrants will have a per share exercise price equal to the lower of $2.00 per
share. The Additional Warrants will be exercisable for three years, and will be in the same form
as the warrants issued as part of the Units in the Offering.
(d) Each Holder agrees to furnish to the Company a completed Questionnaire in the form
attached to this Agreement as Annex B (a “SELLING HOLDER QUESTIONNAIRE”). The Company shall not be required to include the Registrable Securities of a
Holder in a Registration Statement and shall not be required to issue any Additional Warrants or
other damages under Section 2(d) to any Holder who fails to furnish to the Company a fully
completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date
(subject to the requirements set forth in Section 3(a)).
(a) Not less than four Trading Days prior to the filing of the Registration Statement or any
related Prospectus or any amendment or supplement thereto, the Company shall furnish to each Holder
copies of the “Selling Stockholders” section of such document, the “Plan of Distribution” and any
risk factor contained in such document that addresses specifically this transaction or the Selling
Stockholders, as proposed to be filed which documents will be subject to the review of such Holder.
The Company shall not file a Registration Statement, any Prospectus or any amendments or
supplements thereto in which the “Selling Stockholder” section thereof differs from the disclosure
received from a Holder in its Selling Holder Questionnaire (as amended or supplemented).
(b) Prepare and file with the Commission such amendments, including post-effective amendments,
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 and prepare and file with the Commission such additional
Registration Statements in order to register for resale under the Securities Act all of the
Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any
required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424;
(iii) respond as promptly as reasonably possible 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 would not result in the disclosure to the
Holders of material and non-public information
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concerning the Company; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to
the Registration Statements and the disposition of all Registrable Securities covered by each
Registration Statement.
(c) Notify the Holders as promptly as reasonably possible (and, in the case of (i)(A) below,
not less than three Trading Days prior to such filing) 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 such Registration
Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of
the Holders that pertain to the Holders as a Selling Stockholder or to the Plan of Distribution,
but not information which 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; (iii) of the issuance by the Commission 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 light of the
circumstances under which they were made, not misleading.
(d) Use its reasonable best 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, at the earliest practicable moment.
(e) Furnish to each 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) promptly after the filing of such documents with the
Commission.
(f) Promptly deliver to each Holder, without charge, as many copies of each Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
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supplement thereto as such Persons may reasonably request. The Company hereby consents to the use of such Prospectus
and each amendment or supplement thereto by each of the selling Holders in connection with the
offering and sale of the Registrable Securities covered by such Prospectus and any amendment or
supplement thereto.
(g) Prior to any public offering of Registrable Securities, to register or qualify or
cooperate with the selling Holders in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable Securities for offer and
sale under the securities or Blue Sky laws of all jurisdictions within the United States, to keep
each such registration or qualification (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things necessary or advisable to enable
the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statements.
(h) 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 Statements, which certificates shall be free, to the extent permitted by the
Subscription Agreement, 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 request.
(i) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as
reasonably possible, 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 light of the circumstances under
which they were made, not misleading.
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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.
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from and against all Losses, as incurred, arising solely out of or based solely upon: (x) such Holder’s failure to comply with the prospectus delivery
requirements of the Securities Act or (y) any 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 arising solely out of or based solely upon any omission of a material fact
required to be stated therein or necessary to make the statements therein not misleading to the
extent, but only to the extent that, (1) 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 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 expressly approved
in writing by such Holder expressly for use in the 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 (2) in the case of an occurrence of
an event of the type specified in Section 3(c)(ii)-(v), 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 an Advice or an amended or
supplemented Prospectus, but only if and to the extent that following the receipt of the Advice or
the amended or supplemented Prospectus the misstatement or omission giving rise to such Loss would
have been corrected. 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.
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 is
likely
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to exist 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). 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. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party (which consent shall not be unreasonably withheld), 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.
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) shall be paid to the Indemnified Party,
as incurred, within ten Trading Days of written notice thereof to the Indemnifying Party
(regardless of whether it is ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder; provided, that the Indemnifying Party may require such Indemnified Party
to undertake to reimburse all such fees and expenses to the extent it is finally judicially
determined that such Indemnified Party is not entitled to indemnification hereunder).
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
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Section 5(d), no Holder shall be required to contribute, in the aggregate, any amount in excess of
the amount by which the 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.
The indemnity and contribution agreements contained in this Section are in addition to
any liability that the Indemnifying Parties may have to the Indemnified Parties.
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statement relating to an offering for its own account or the account of others under the Securities Act of any of its
equity securities, other than on Form S-4 or Form S-8 (each as promulgated under the Securities
Act) or their then equivalents relating to equity securities to be issued solely in connection
with any acquisition of any entity or business or equity securities issuable in connection with
stock option or other employee benefit plans, then the Company shall send to each Holder written
notice of such determination and, if within fifteen days after receipt of such notice, any such
Holder shall so request in writing, the Company shall include in such registration statement all
or any part of such Registrable Securities such holder requests to be registered, subject to
customary underwriter cutbacks applicable to all holders of registration rights.
If to the Company:
Cytocore, Inc.
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. XxXxxxxxxx Xx., CEO, CFO
Fax: 000-000-0000
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. XxXxxxxxxx Xx., CEO, CFO
Fax: 000-000-0000
If to an Investor: To the address set forth under such Investor’s name on the
signature pages hereto.
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If to any other Person who is then the registered Holder:
To the address of such Holder as it appears in the stock transfer books of the Company or
such other address as may be designated in writing hereafter, in the same manner, by such
Person.
(j) 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 Illinois, 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 (whether brought against a party hereto
or its respective Affiliates, employees or agents) will be commenced in the Illinois Courts. Each
party hereto hereby irrevocably submits to the exclusive jurisdiction of the Illinois Courts for
the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, 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 Illinois
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 Proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby. If either party shall
commence a Proceeding to enforce any provisions of this Agreement, then the prevailing party in
such Proceeding shall be reimbursed by the other party for its
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attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Proceeding.
(n) Independent
Nature of Investors’ Obligations and Rights. The obligations of each Investor
under this Agreement are several and not joint with the obligations of each other Investor, and no
Investor shall be responsible in any way for the performance of the obligations of any other
Investor under this Agreement. Nothing contained herein or in any Transaction Document, and no
action taken by any Investor pursuant thereto, shall be deemed to constitute the Investors as a
partnership, an association, a joint venture or any other kind of entity, or create a presumption
that the Investors are in any way acting in concert or as a group with respect to such obligations
or the transactions contemplated by this Agreement or any other Transaction Document. Each Investor
acknowledges that no other Investor will be acting as agent of such Investor in enforcing its
rights under this Agreement. Each Investor shall be entitled to independently protect and enforce
its rights, including without limitation the rights arising out of this Agreement, and it shall not
be necessary for any other Investor to be joined as an additional party in any Proceeding for such
purpose. The Company acknowledges that each of the Investors has been provided with the same
Registration Rights Agreement for the purpose of closing a transaction with multiple Investors and
not because it was required or requested to do so by any Investor.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date
first written above.
| CYTOCORE, INC. |
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| By: | ||||
| Name: | Xxxxxx X. XxXxxxxxxx Xx. | |||
| Title: | CEO & CFO | |||
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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date
first written above.
| If Investor is an Individual: |
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| (Print Name) | ||||
| (Signature) | ||||
| If Investor is an Entity: |
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| (Name of Entity) | ||||
| By: | ||||
| (Signature) | ||||
| (Print name of signer) | ||||
| Title: | ||||
ADDRESS FOR NOTICE |
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c/o:
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Street: |
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City/State/Zip: |
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Attention: |
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Tel: |
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Fax: |
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Email: |
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Annex A
Plan of Distribution
The Selling Stockholders and any of their pledgees, donees, transferees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares of Common Stock on
any stock exchange, market or trading facility on which the shares are traded or in private
transactions. These sales may be at fixed or negotiated prices. 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 Investors; | ||
| • | 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; | ||
| • | to cover short sales made after the date that this Registration Statement is declared effective by the Commission; | ||
| • | broker-dealers may agree with the Selling Stockholders to sell a specified number of such shares at a stipulated price per share; | ||
| • | a combination of any such methods of sale; and | ||
| • | any other method permitted pursuant to applicable law. |
The Selling Stockholders may also sell shares under Rule 144 under the Securities Act, if
available, rather than under this prospectus.
Broker-dealers engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from the Selling
Stockholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the
purchaser) in amounts to be negotiated. The Selling Stockholders do not expect these commissions
and discounts to exceed what is customary in the types of transactions involved.
The Selling Stockholders may from time to time pledge or grant a security interest in some or all
of the Shares owned by them and, if they default in the performance of their secured obligations,
the pledgees or secured parties may offer and sell shares of Common Stock from time to time under
this prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or other applicable
provision of the Securities Act of 1933 amending the list of selling stockholders to include the
pledgee, transferee or other successors in interest as selling stockholders under this prospectus.
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 shares of Common Stock were 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 addition, upon the Company being notified in writing by a Selling Stockholder that
a donee or pledgee intends to sell more than 500 shares of Common Stock, a supplement to this
prospectus will be filed if then required in accordance with applicable securities law.
The Selling Stockholders also may transfer the shares of Common Stock in other circumstances, in
which case the transferees, pledgees or other successors in interest will be the selling
beneficial owners for purposes of this prospectus.
The Selling Stockholders and any broker-dealers or agents that are involved in selling the shares
may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such
sales. In such event, any commissions received by such broker-dealers or agents 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. Discounts, concessions, commissions and similar selling
expenses, if any, that can be attributed to the sale of Securities will be paid by the Selling
Stockholder and/or the purchasers. Each Selling Stockholder has represented and warranted to the
Company that it acquired the securities subject to this registration statement in the ordinary
course of such Selling Stockholder’s business and, at the time of its purchase of such securities
such Selling Stockholder had no agreements or understandings, directly or indirectly, with any
person to distribute any such securities.
The Company has advised each Selling Stockholder that it may not use shares registered on this
Registration Statement to cover short sales of Common Stock made prior to the date on which this
Registration Statement shall have been declared effective by the Commission. If a Selling
Stockholder uses this prospectus for any sale of the Common Stock, it will be subject to the
prospectus delivery requirements of the Securities Act. The Selling Stockholders will be
responsible to comply with the applicable provisions of the Securities Act and Exchange Act, and
the rules and regulations thereunder promulgated, including, without limitation, Regulation M, as
applicable to such Selling Stockholders in connection with resales of their respective shares under
this Registration Statement.
The Company is required to pay all fees and expenses incident to the registration of the shares,
but the Company will not receive any proceeds from the sale of the Common Stock. The Company has
agreed to indemnify the Selling Stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act.
A-2
Annex B
CYTOCORE, INC.
SELLING SECURITYHOLDER QUESTIONNAIRE
The undersigned beneficial owner of common stock (the “COMMON STOCK”) of Cytocore, Inc. (the
“COMPANY”) understands that the Company has filed or intends to file with the Securities and
Exchange Commission (the “COMMISSION”) a Registration Statement for the registration and resale of
the Registrable Securities, in accordance with
the terms of the Registration Rights Agreement, dated as of ___, 2008 (the “REGISTRATION RIGHTS
AGREEMENT”), among the Company and the Investors named therein. A copy of the Registration Rights
Agreement is available from the Company upon request at the address set forth below. All
capitalized terms used and not otherwise defined herein shall have the meanings ascribed thereto
in the Registration Rights Agreement.
The undersigned hereby provides the following information to the Company and represents
and warrants that such information is accurate:
QUESTIONNAIRE
| 1. | NAME. |
| (a) | Full Legal Name of Selling Securityholder |
| (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 SECURITYHOLDER: |
Telephone:
Fax:
Contact Person:
| 3. | BENEFICIAL OWNERSHIP OF REGISTRABLE SECURITIES: |
Type and Principal Amount of Registrable Securities beneficially owned:
| 4. | BROKER-DEALER STATUS: | |
| (a) Are you a broker-dealer? | ||
| Yes o No o |
Note: If yes, the Commission’s staff has indicated that you should be identified as an
underwriter in the Registration Statement.
(b) Are you an affiliate of a broker-dealer?
Yes o No o
(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 o No o
Note: If no, the Commission’s staff has indicated that you should be identified as an
underwriter in the Registration Statement.
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.
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Type and Amount of Other Securities beneficially owned by the Selling Securityholder:
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 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 for the Registration Statement.
By signing below, the undersigned consents to the disclosure of the information contained herein in
its answers to Items 1 through 6 and the inclusion of such information in the Registration
Statement and the related prospectus. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or amendment of the Registration
Statement and the related prospectus.
| Dated: | Beneficial Owner: |
|||
| By: | ||||
| Signature | ||||
| Title: | ||||
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PLEASE FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN THE ORIGINAL
BY OVERNIGHT MAIL, TO:
[COMPANY’S ATTORNEY]
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