COMMON STOCK PURCHASE AGREEMENT
This
Common Stock Purchase Agreement (the “Agreement”)
is
made as of March 28, 2007, by and between Cytori Therapeutics, Inc., a Delaware
corporation (the “Company”),
and
and Green
Hospital Supply, Inc., located at 0-00-0 Xxxxxx Xxxxx-Xxxx, Xxxxx
000-0000,
Xxxxx
(“Purchaser”).
1. Sale
of Stock.
Subject
to the terms and conditions of this Agreement, the Company will issue and sell
to Purchaser, and Purchaser agrees to purchase from the Company, one million
(1,000,000) unregistered shares of the Company’s Common Stock (the “Shares”) at
a purchase price of US $6.00 per Share for a total of US $6,000,000. (“Purchase
Price”).
2. Purchase.
The
purchase and sale of the Shares under Section 1 of this Agreement shall occur
at
a closing at the principal office of the Company within 14 days of the execution
of this Agreement by the parties. At the closing, the Company shall deliver
the
Shares into the account specified by Purchaser, and Purchaser shall immediately
deliver the Purchase Price therefor to Company by wire transfer, or by alternate
means agreed between the Parties.
3. Limitations
on Transfer.
Purchaser shall not assign, encumber or dispose of any interest in the Shares
except in compliance with applicable securities laws and regulations of
applicable countries and stock exchanges. It is Purchaser's responsibility
to
familiarize itself with such laws and regulations.
4
Company’s
Representation. The
Company hereby represents and warrants to the Purchaser as follows:
(a) The
Company is duly organized and validly existing under the laws of
the
State of Delaware and has all requisite corporate power and authority to enter
into this Agreement and to consummate the transactions contemplated
hereby.
(b) The
Company has the right and power to enter into and perform its obligations under
this Agreement; has taken all necessary corporate actions required to enter
into
and perform its obligations under this Agreement; and this Agreement constitutes
the legal, valid and binding obligation of the Company, enforceable in
accordance with its terms.
(c) The
execution of this Agreement and the consummation of the transactions
contemplated hereby will not result in a breach of any of the terms or
provisions of, or constitute a default under, any agreement, or other instrument
to which the Company is a party or by which it is bound.
(d) All
consents, approvals, authorizations and other requirements prescribed by any
law, rule or regulation which must be obtained or satisfied by the Company
in
order to permit the consummation of the transactions contemplated by this
Agreement have been, or will have been as of the Closing Date, obtained and
satisfied.
(e)
The
authorized capitalization of the Company consists solely of 95,000,000
authorized shares of common stock, and 5,000,000 shares of preferred
stock.
(f) The
Shares have been duly and validly authorized and reserved for issuance and,
when
issued and delivered, will be duly and validly issued, fully paid and
non-assessable and will be owned by the Purchaser, free and clear of liens,
encumbrances, equities or claims.
(g) The
Company’s latest audited financial statements as of and for the year ended
December 31, 2005, and latest un-audited financial statements as of and for
the
year ended December 31, 2006 fairly represent the true financial position of
the
Company in all material respects and in conformity with generally accepted
accounting principles applied on a consistent basis.
5. Investment
Representations.
In
connection with the purchase of the Shares, Purchaser represents to the Company
the following:
(a) The
Company is a reporting company under the U.S. Securities Exchange Act, and
its
various periodic reports and other SEC filings are available for public
inspection on the XXXXX system at xxx.xxx.xxx. Purchaser further acknowledges
that Purchaser and Purchaser’s advisors have had the opportunity to ask
questions of and receive answers from the Company’s management concerning this
investment. Purchaser is aware of the Company’s business affairs and financial
condition based on the said public available information and the answers from
the Company’s management (the “Information”) and Purchaser and Purchaser’s
advisors has evaluated the merits and risks of an investment in the Company
and
decided to acquire the Shares based on such Information.
(b) Purchaser
understands that the Shares have not been registered under the U.S. Securities
Act by reason of a specific exemption therefrom, which exemption depends upon,
among other things, the bona fide nature of Purchaser’s investment intent as
expressed herein.
(c) Purchaser
understands that the Shares are “restricted securities” within the meaning of
applicable U.S. federal and state securities laws and that, pursuant to these
laws, Purchaser must hold the Shares indefinitely unless they are registered
with the U.S. Securities and Exchange Commission and qualified by state
authorities, or an exemption from such registration and qualification
requirements is available (e.g., Rule 144 or Regulation S). Purchaser further
acknowledges that if an exemption from registration or qualification is
available, it may be conditioned on various requirements including, but not
limited to, the time and manner of sale, the holding period for the Shares,
and
requirements relating to the Company which are outside of the Purchaser’s
control, and which the Company is under no obligation and may not be able to
satisfy.
(d) Purchaser
is an "accredited investor," as defined in US Securities Act Rule
501.
(e) Purchaser
has not entered into any agreement to pay commissions to any persons with
respect to the purchase or sale of the Shares, except commissions for which
Purchaser will be responsible.
(f) Purchaser
understands and acknowledges that no Japanese, German or United States federal
or state agency, governmental authority, regulatory body, stock exchange or
other entity has made any finding or determination as to the merits of this
investment, nor have any such agencies, governmental authorities, regulatory
bodies, stock exchanges or other entities made any recommendation or endorsement
with respect to the Shares.
(g) Purchaser,
in evaluating the merits of an investment in the Shares, is not relying on
the
Company, its counsel, or any financial or other advisor to the Company for
an
evaluation of the tax, legal or other consequences of an investment in the
Shares.
(h) Purchaser
is purchasing the Shares for investment for its own account only and not with
a
view to, or for resale in connection with, any “distribution” thereof within the
meaning of the U.S. Securities Act.
6. Legends.
The
certificates overlying the Shares shall bear the following legends:
"The
shares of common stock of Cytori Therapeutics, Inc. represented hereby have
not
been registered under the United States Securities Act of 1933, as amended
(the
“Securities Act”). These securities may not be offered, sold, pledged or
otherwise transferred (nor may exposure with respect to the shares otherwise
be
hedged) except (A)(1) in an offshore transaction complying with Rule 903 or
Rule
904 of Regulation S under the Securities Act, (2) pursuant to an exemption
from
registration under the Securities Act provided by Rule 144 thereunder (if
available), or (3) pursuant to another valid exemption from registration under
the Securities Act (if available), and (B) in each case in accordance with
all
applicable securities laws of the States of the United States. No representation
can be made as to the availability of the exemption provided by Rule 144 under
the Securities Act for resales of the shares.
This
certificate evidences and entitles the holder hereof to certain rights as set
forth in a Rights Agreement between Cytori Therapeutics, Inc. and Computershare
Trust Company, Inc., a Colorado corporation, as Rights Agent, dated as of
May
29,
2003, as
amended (the "Rights Agreement"), the terms of which are hereby incorporated
herein by reference and a copy of which is on file at the principal executive
offices of Cytori Therapeutics, Inc. Under certain circumstances, as set forth
in the Rights Agreement, such rights will be evidenced by separate certificates
and will no longer be evidenced by this certificate. Cytori Therapeutics, Inc.
will mail to the holder of this certificate a copy of the Rights Agreement
without charge after receipt of a written request therefor. Under certain
circumstances set forth in the Rights Agreement, rights issued to, or held
by,
any Person who is, was or becomes an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement) and certain related
Persons, whether currently held by or on behalf of such Person or by any
subsequent holder, may become null and void."
7. Registration.
The
Company shall within 30 business days after receipt of written request by
Purchaser use reasonable efforts to, prepare and file with the US Securities
and
Exchange Commission (the "Commission")
a
Registration Statement covering the resale of the Shares for an offering to
be
made on a continuous basis pursuant to Rule 415. The Registration Statement
shall be on Form S-3 (except if the Company is not then eligible to register
for
resale the Shares on Form S-3, in which case such registration shall be on
another appropriate form in accordance with the US Securities Act and the rules
promulgated thereunder). The Company shall use its reasonable efforts to cause
the Registration Statement to be declared effective under the US Securities
Act
within 60 business days after such filing. The Company shall keep such
Registration Statement continuously effective under the Securities Act for
a
period of two years (the “Effectiveness
Period”).
8. Registration
Procedures; Company’s Obligations.
In
connection with the obligation for the registration of the Shares above, the
Company shall:
(a) Furnish
to the Purchaser a copy of the Registration Statement as proposed to be
filed.
(b) Prepare
and file with the Commission such amendments, including post-effective
amendments, to the Registration Statement as may be necessary to keep the
Registration Statement continuously effective as to the applicable Shares for
the Effectiveness Period; (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 (or any similar provisions then in
force) promulgated under the Securities Act; and (iii) respond promptly to
any
comments received from the Commission with respect to the Registration Statement
or any amendment thereto and promptly provide the Purchaser true and complete
copies of all correspondence from and to the Commission relating to the
Registration Statement.
(c) Notify
the Purchaser (i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment to the 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, and (C) with respect to the 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 the Registration Statement or Prospectus or
for
additional information; (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement covering any
or
all of the Shares 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 Shares for
sale
in any State of the US, or the initiation or threatening of any proceeding
for
such purpose; and (v) of the occurrence of any event that makes any statement
made in the 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 the Registration Statement, Prospectus or other
documents so that, in the case of the Registration Statement or the Prospectus,
as the case may be, it will not contain any untrue statement of a material
fact
or omit to state any material fact required to be stated therein or necessary
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading.
(d) Use
its
reasonable commercial efforts to avoid the issuance of, or, if issued, obtain
the withdrawal of, (i) any order suspending the effectiveness of the
Registration Statement, or (ii) any suspension of the qualification (or
exemption from qualification) of any of the Shares for sale in any State of
the
US, at the earliest practicable moment.
(e) If
requested by the Purchaser, (i) promptly incorporate in a Prospectus supplement
or post-effective amendment to the Registration Statement such information
as
the Company reasonably agrees should be included therein, and (ii) make all
required filings of such Prospectus supplement or such post-effective amendment
as soon as practicable after the Company has received notification of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment.
(f) Furnish
to the Purchaser, without charge, at least one conformed copy of the
Registration Statement and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference, and all exhibits to the extent requested
by
such Person (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the Commission.
(g) Promptly
deliver to the Purchaser, without charge, as many copies of the Registration
Statement, Prospectus or Prospectuses (including each form of prospectus) and
each amendment or supplement thereto as Purchaser may reasonably request; and
the Company hereby consents to the use of such Prospectus and each amendment
or
supplement thereto by the Purchaser in connection with the offering and sale
of
the Shares covered by such Prospectus and any amendment or supplement thereto.
Should the Purchaser offer or sell the Shares, such Purchaser agrees to comply
with all applicable securities laws.
(h) Use
its
reasonable commercial efforts to register or qualify or cooperate with the
selling Purchaser in connection with the registration or qualification (or
exemption from such registration or qualification) of such Shares for offer
and
sale under the securities or Blue Sky laws of each State of the US as the
Purchaser reasonably requests in writing, 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 States of the Shares covered by a Registration Statement;
provided,
however,
that
the Company shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action that would
subject it to general service of process in any such jurisdiction where it
is
not then so subject or subject the Company to any tax in any such jurisdiction
where it is not then so subject.
(i) Upon
the
occurrence of any event contemplated by Section 8(c)(v), promptly prepare a
supplement or amendment, including a post-effective amendment, to the
Registration Statement 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, neither the
Registration Statement nor such Prospectus will contain an untrue statement
of a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(j) Use
its
reasonable efforts to cause all Shares to be listed on any US national
securities exchange (such as the NASDAQ Global Market), US quotation system,
or
US over-the-counter bulletin board, if any, on which the same securities issued
by the Company are then listed.
(k) If
(i)
there is material non-public information regarding the Company which the
Company’s Board of Directors reasonably determines not to be in the Company’s
best interest to disclose and which the Company is not otherwise required to
disclose, or (ii) there is a significant business opportunity (including, but
not limited to, the acquisition or disposition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer or
other
similar transaction) available to the Company which the Company’s Board of
Directors reasonably determines not to be in the Company’s best interest to
disclose and which the Company would be required to disclose under the
Registration Statement, then the Company may suspend effectiveness of the
Registration Statement and suspend the sale of Shares under the Registration
Statement one time every three months or three times in any twelve month period,
provided that the Company may not suspend its obligation for more than 60 days
in the aggregate in any 12 month period.
9. Registration
Procedures; Purchaser’s Obligations.
In
connection with the registration of the Shares, the Purchaser shall:
(a) (i)
not
sell any Shares under the Registration Statement until it has received copies
of
the Prospectus as then amended or supplemented as contemplated in Section 8(g)
and the notice from the Company that such Registration Statement and any
post-effective amendments thereto have become effective as contemplated by
Section 8(c), (ii) comply with the prospectus delivery requirements of the
Securities Act as applicable to it in connection with sales of Shares pursuant
to the Registration Statement, and (iii) furnish to the Company information
regarding such Purchaser and the distribution of such Shares as is required
by
law to be disclosed in the Registration Statement.
(b) upon
receipt of a notice from the Company of the occurrence of any event of the
kind
described in Section 8(c)(ii), 8(c)(iii), 8(c)(iv), 8(c)(v) or 8(k), forthwith
discontinue disposition of such Shares under the Registration Statement until
the Purchaser’s receipt of the copies of the supplemented Prospectus and/or
amended Registration Statement contemplated by Section 8(i), or until it is
advised in writing by the Company that the use of the applicable Prospectus
may
be resumed, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus or Registration Statement.
10. Registration
Expenses.
All
reasonable fees and expenses incident to the performance of or compliance with
this Agreement by the Company shall be borne by the Company whether or not
any
Shares are sold pursuant to the Registration Statement.
11. Indemnification.
(a) Indemnification
by the Company.
The
Company shall indemnify and hold harmless Purchaser, its permitted assignees,
officers, directors, agents, brokers, investment advisors and employees, each
person who controls Purchaser or a permitted assignee (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, agents and employees of each such controlling person,
and
the respective successors, assigns, estate and personal representatives of
each
of the foregoing, to the fullest extent permitted by applicable law, from and
against any and all claims, losses, damages, liabilities, penalties, judgments,
costs (including, without limitation, costs of investigation) and expenses
(including, without limitation, reasonable attorneys’ fees and expenses)
(collectively, “Losses”),
as
incurred, arising out of or relating to any untrue or alleged untrue statement
of a material fact contained in the Registration Statement, any Prospectus,
as
supplemented or amended, if applicable, or arising out of or relating to any
omission or alleged omission of a material fact required to be stated therein
or
necessary to make the statements therein (in the case of any Prospectus or
supplement thereto, in the light of the circumstances under which they were
made) not misleading, except (i) to the extent, but only to the extent, that
such untrue statements or omissions are based solely upon information regarding
the Purchaser furnished in writing to the Company by the Purchaser expressly
for
use therein, or (ii) as a result of the failure of the Purchaser to deliver
a
Prospectus, as amended or supplemented, to a purchaser in connection with an
offer or sale. The Company shall notify the Purchaser promptly of the
institution, threat or assertion of any Proceeding of which the Company is
aware
in connection with the transactions contemplated by this Agreement. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of an Indemnified Party (as defined in Section
11(¾)
hereof)
and shall survive the transfer of the Shares by the Purchaser.
(b) Conduct
of Indemnification Proceedings.
If any
Proceeding shall be brought or asserted against any Person entitled to indemnity
pursuant to Section 11(a) hereunder (an “Indemnified
Party”),
such
Indemnified Party promptly shall notify the Person from whom indemnity is sought
(the “Indemnifying
Party)
in
writing, and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the Indemnified Party
and
the payment of all fees and expenses incurred in connection with defense
thereof; provided,
that
the failure of any Indemnified Party to give such notice shall not relieve
the
Indemnifying Party of its obligations or liabilities pursuant to this Agreement,
except (and only) to the extent that it shall be finally determined by a court
of competent jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have materially and adversely prejudiced
the Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (i) the Indemnifying Party has agreed in writing to pay such fees and
expenses; or (ii) 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 (iii) 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 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, conditioned or delayed. No Indemnifying Party shall, without the
prior
written consent of the Indemnified Party, which consent shall not unreasonably
be withheld, conditioned or delayed, 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
reasonable 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 20 business
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 or pursuant to applicable law).
(c) The
indemnity agreement contained in this Section is in addition to any liability
that the Indemnifying Parties may have to the Indemnified Parties.
12. No
Special Rights.
Nothing
in this Agreement shall affect in any manner whatsoever the right or power
of
the Company to negotiate, or to decline to negotiate, any contractual
relationship with Purchaser, nor the right or power of Purchaser to negotiate,
or to decline to negotiate, any contractual relationship with the
Company.
13. Miscellaneous.
(a) Governing
Law.
This
Agreement and all acts and transactions pursuant hereto and the rights and
obligations of the parties hereto shall be governed, construed and interpreted
in accordance with the laws of the State of California, without giving effect
to
principles of conflicts of law.
(b) Entire
Agreement; Enforcement of Rights.
This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter herein and merges all prior discussions between
them with regard to such subject matter. No modification of or amendment to
this
Agreement, nor any waiver of any rights under this Agreement, shall be effective
unless in writing signed by the parties to this Agreement. The failure by either
party to enforce any rights under this Agreement shall not be construed as
a
waiver of any rights of such party.
(c) Construction.
This
Agreement is the result of negotiations between and has been reviewed by both
of
the parties hereto and their respective counsel, if any; accordingly, this
Agreement shall be deemed to be the product of both of the parties hereto,
and
no ambiguity shall be construed in favor of or against either one of the parties
hereto.
(d) Notices.
Any
notice required or permitted by this Agreement shall be in writing and shall
be
deemed sufficient when delivered personally or sent and confirmed by fax or
48
hours after being deposited in the U.S. mail, as certified or registered mail,
with postage prepaid, and addressed to the party to be notified at such party’s
address or fax number as set forth below or as subsequently modified by written
notice.
(e) Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one instrument.
[Signature
Page Follows]
The
parties have executed this Common Stock Purchase Agreement as of the date first
set forth above.
COMPANY:
By:
Title:
Address:
0000
Xxxxxx Xxxx
Xxx
Xxxxx, XX 00000
Fax:
US
000-000-0000
PURCHASER:
GREEN
HOSPITAL SUPPLY, INC.
By:
Title:
Address:
0-00-0
Xxxxxx Xxxxx-Xxxx
Xxxxx
000-0000, Xxxxx
