SUBSCRIPTION AGREEMENT
Exhibit
10.63
0000
Xxxxxx Xxxx
Xxx
Xxxxx, Xxxxxxxxxx 00000
Ladies
and Gentlemen:
The
undersigned (the “Investor”) hereby confirms
and agrees with you as follows:
1. This
Subscription Agreement (this “Agreement”) is made as of the
date set forth below between Cytori Therapeutics, Inc., a Delaware corporation
(the “Company”), and
the Investor.
2. The
Company has authorized the sale and issuance of (i) up to _______ shares (the
“Shares”) of the
Company’s common stock, $0.001 par value per share (the “Common Stock”), and (ii)
warrants to purchase up to ________ shares of Common Stock in the form attached
hereto as Exhibit B (the
“Warrants” and together
with the Shares, the “Securities”). The
purchase price for the Securities shall be $2.10 per unit, with each unit
consisting of one (1) Share and one and four-tenths (1.4) Warrants (the “Offering”). The Offering and
issuance of the Securities have been registered under the Securities Act of
1933, as amended (the “Securities Act”), pursuant to
the Company’s Registration Statement on Form S-3 (No. 333-157023),
including all amendments thereto, the exhibits and any schedules thereto, the
documents otherwise deemed to be a part thereof or included therein by the rules
and regulations (the “Rules
and Regulations”) of the Securities and Exchange Commission (the “Commission”) and any
registration statement relating to the Offering and filed pursuant to Rule
462(b) under the Rules and Regulations (collectively, the “Registration
Statement”). The Investor acknowledges that the Company
intends to enter into subscription agreements in substantially the same form as
this Agreement with certain other investors. The Company agrees that it
shall use commercially reasonable efforts to list the Warrants on the Nasdaq
Global Market as soon as practicable.
3. As of the
Closing (as defined below) and subject to the terms and conditions
hereof, the Company and the Investor agree that the Investor will
purchase from the Company and the Company will issue and sell to the Investor
such number of Shares and Warrants as is set forth on the signature page hereto
(the “Signature
Page”). The Investor acknowledges that the Offering is not a
firm commitment underwriting and that there is no minimum offering
amount. Certificates representing the Shares purchased by the
Investor will not be issued to the Investor; instead, such Shares will be
credited to the Investor using customary procedures for book-entry transfer
through the facilities of The Depository Trust Company (“DTC”). The
Warrants will be issued by the Company, and delivered to the Investor, in
physical form. This Offering will not clear directly through the
Placement Agent (as defined below) acting in such capacity. Consequently, the
Investor must instruct their individual broker how to settle the
transaction.
4. The
completion of the purchase and sale of the Securities shall occur at a closing
(the “Closing”) which,
in accordance with Rule 15c6-1 promulgated under the Securities Exchange Act of
1934, as amended, shall occur on March 13, 2009. At the Closing, (a)
the Company shall cause its transfer agent to release to the Investor the number
of Shares being purchased by the Investor, (b) the Company shall deliver to the
Investor the Warrants being purchased by the Investor and (c) the aggregate
purchase price for the Securities being purchased by the Investor will be
delivered by or on behalf of the Investor to the Company. The
provisions set forth in Exhibit A hereto
shall be incorporated herein by reference as if set forth fully
herein.
5. The
Registration Statement filed by the Company with the Commission contains a
prospectus (the “Base
Prospectus”) and the Company will promptly file with the Commission a
final prospectus supplement (collectively with the Base Prospectus, the “Prospectus”) with respect to
the Registration Statement in conformity with the Securities Act, including Rule
424(b) thereunder. The Investor hereby consents to the receipt of the
Company’s Prospectus in portable document format, or .pdf, via
e-mail.
6. The
Company has entered into a Placement Agency Agreement (the “Placement Agreement”), dated
March 9, 2009 with Xxxxx Xxxxxxx & Co. (the “Placement Agent”), which will
act as the Company’s placement agent
with respect to the Offering and receive a fee in connection with the sale of
the Securities. The Placement Agreement contains certain
representations and warranties of the Company. The Company
acknowledges and agrees that the Investor may rely on the representations and
warranties made by it to the Placement Agent in Section 2 of the Placement
Agreement to the same extent as if such representations and warranties had been
incorporated in full herein and made directly to the Investor, which shall be a
third party beneficiary thereof. Capitalized terms used, but not
otherwise defined, herein shall have the meanings ascribed to such terms in the
Placement Agreement.
7. The obligations of the
Company and the Investor to complete the transactions contemplated by this
Agreement shall be subject to the following:
(a) The
Company’s obligation to issue and sell the Securities to the Investor shall be
subject to: (i) the receipt by the Company of the purchase price for the Shares
and Warrants being purchased hereunder as set forth on the Signature Page and
(ii) the accuracy of the representations and warranties made by the Investor and
the fulfillment of those undertakings of the Investor to be fulfilled prior to
the Closing Date.
(b) The
Investor’s obligation to purchase the Securities will be subject to the
condition that the Placement Agent shall not have: (i) terminated the Placement
Agreement pursuant to the terms thereof or (ii) determined that the conditions
to closing in the Placement Agreement have not been satisfied.
8. The
Company hereby makes the following representations, warranties and covenants to
the Investor:
(a) The
Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this Agreement and otherwise to
carry out its obligations hereunder. The execution and delivery of
this Agreement by the Company and the consummation by it of the transactions
contemplated hereunder have been duly authorized by all necessary action on the
part of the Company. This Agreement has 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 as may be limited by any bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws affecting the enforcement of creditors’ rights generally or by general
principles of equity.
(b) The Company shall (i)
before the opening of trading on the Nasdaq Global Market on the next trading
day after the date hereof, issue a press release, disclosing all material
aspects of the transactions contemplated hereby and (ii) make such other filings
and notices in the manner and time required by the Commission with respect to
the transactions contemplated hereby. Upon the issuance of the press
release described in the immediately preceding sentence, the Investor will not
be in receipt of any material, non-public information provided to it by the
Company, its officers or directors. The Company shall not identify
the Investor by name in any press release or public filing, or otherwise
publicly disclose the Investor’s name, without the Investor’s prior written
consent, unless required by law or the rules and regulations of any
self-regulatory organization or exchange to which the Company or its securities
are subject.
(c) The
making, execution and performance of this Agreement by the Company and the
consummation of the transactions contemplated herein will not conflict with or
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, (i) the charter, bylaws or other organizational
documents of the Company, as applicable, (ii) any law, order, rule, regulation,
writ, injunction, judgment or decree of any court, administrative agency,
regulatory body, government or governmental agency or body, domestic or foreign,
having jurisdiction over the Company or its properties (including federal and
state securities laws and regulations and the rules and regulations of the
Nasdaq Global Market) or (iii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or
instrument
to which the Company or any of its subsidiaries is a party, except for any
conflict, breach, violation or default which is not reasonably likely to have a
material adverse effect on the Company, its subsidiaries or any property or
asset of the Company or any of its subsidiaries or the Company's performance of
its obligations hereunder or the consummation of the transactions contemplated
hereby.
(d) The
Company is not required to obtain any consent, authorization or order of, or
make any filing or registration with, any court, governmental agency or any
regulatory or self-regulatory agency or any other Person in order for it to
execute, deliver or perform any of its obligations hereunder in accordance with
the terms hereof, other than (i) as may be required under the Securities Act,
(ii) any necessary qualification of the Securities under the securities or blue
sky laws of the various jurisdictions in which the Securities are being offered
by the Placement Agent and (iii) under the rules and regulations of the
Financial Industry Regulatory Authority (“FINRA”). All
consents, authorizations, orders, filings and registrations which the Company is
required to obtain pursuant to the preceding sentence will be obtained or
effected on or prior to the Closing, and the Company and its subsidiaries are
unaware of any facts or circumstances which might prevent the Company from
obtaining or effecting any of the registration, application or filings pursuant
to the preceding sentence. The Company is not in violation of the
requirements of the Nasdaq Global Market and has no knowledge of any facts which
would reasonably lead to delisting or suspension of the Common Stock in the
foreseeable future.
9. The
Investor hereby makes the following representations, warranties and covenants to
the Company:
(a) The
Investor represents that (i) it has received or had full access to the Base
Prospectus as well as the Company’s periodic reports and other information
incorporated by reference therein, prior to or in connection with its receipt of
this Agreement, (ii) it is knowledgeable, sophisticated and experienced in
making, and is qualified to make, decisions with respect to investments in
securities representing an investment decision like that involved in the
purchase of the Securities, and (iii) it does not have any agreement or
understanding, directly or indirectly, with any person or entity to distribute
any of the Securities.
(b) The
Investor has the requisite power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by the Investor
and the consummation by it of the transactions contemplated hereunder have been
duly authorized by all necessary action on the part of the
Investor. This Agreement has been executed by the Investor and, when
delivered in accordance with the terms hereof, will constitute a valid and
binding obligation of the Investor enforceable against the Investor in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
(c) The
Investor understands that nothing in this Agreement or any other materials
presented to the Investor in connection with the purchase and sale of the
Securities constitutes legal, tax or investment advice. The Investor
has consulted such legal, tax and investment advisors as it, in its sole
discretion, has deemed necessary or appropriate in connection with its purchase
of Securities.
(d) The making, execution and
performance of this Agreement by the Investor and the consummation of the
transactions contemplated herein will not conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
(i) the charter, bylaws or other organizational documents of such Investor, as
applicable, or (ii) any law, order, rule, regulation, writ, injunction, judgment
or decree of any court, administrative agency, regulatory body, government or
governmental agency or body, domestic or foreign, having jurisdiction over such
Investor or its properties, except for any conflict, breach, violation or
default which is not reasonably likely to have a material adverse effect on such
Investor’s performance of its obligations hereunder or the consummation of the
transactions contemplated hereby.
(e) The Investor will
maintain the confidentiality of all information acquired as a result of the
transactions contemplated herein prior to the public disclosure of that
information by the Company.
(f) Neither
the Investor nor any Person acting on behalf of, or pursuant to any
understanding with or based upon any information received from, the Investor
has, directly or indirectly, engaged in any purchases or sales of the securities
of the Company (including, without limitation, any Short Sales involving the
Company’s securities) since the time that the Investor first discussed the
transactions contemplated hereby with the Placement Agent or the
Company. “Short Sales” include, without limitation, all “short sales”
as defined in Rule 200 promulgated under Regulation SHO under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), whether or
not against the box, and all types of direct and indirect stock pledges,
forward sale contracts, options, puts, calls, short sales, swaps,
“put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act)
and similar arrangements (including on a total return basis), and sales and
other transactions through non-U.S. broker dealers or foreign regulated
brokers. The Investor covenants that neither it, nor any Person
acting on behalf of, or pursuant to any understanding with or based upon any
information received from, the Investor will engage in any purchases or sales of
the securities of the Company (including Short Sales) prior to the time that the
transactions contemplated by this Agreement are publicly disclosed or the
transactions contemplated hereby are terminated.
(g) The
Investor represents that, except as set forth below, (i) it has had no position,
office or other material relationship within the past three years with the
Company or persons known to it to be affiliates of the Company, (ii) it is not
a, and it has no direct or indirect association with any, FINRA member or an
Associated Person (as such term is defined under the FINRA Membership and
Registration Rules Section 1011) as of the date hereof, and (iii) neither it nor
any group of investors (as identified in a public filing made with the
Commission) of which it is a member, acquired, or obtained the right to acquire,
20% or more of the Common Stock (or securities convertible or exercisable for
Common Stock) or the voting power of the Company on a post-transaction
basis. Exceptions:
(If no
exceptions, write “none.” If left blank, response will be deemed to be
“none.”)
10. Notwithstanding
any investigation made by any party to this Agreement, all covenants,
agreements, representations and warranties made by the Company and the Investor
herein will survive the execution of this Agreement, the delivery to the
Investor of the Securities being purchased and the payment
therefor.
11. This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.
12. The headings of the
various sections of this Agreement have been inserted for convenience of
reference only and shall not be deemed to be part of this
Agreement.
13. In case
any provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein will not in any way be affected or
impaired thereby.
14. This
Agreement will be governed by, and construed in accordance with, the internal
laws of the State of New York, without giving effect to the principles of
conflicts of law that would require the application of the laws of any other
jurisdiction.
15. This
Agreement may be executed in counterparts, each of which will constitute an
original, but all of which, when taken together, will constitute but one
instrument, and will become effective when counterparts have been signed by each
party hereto and delivered to the other party.
16. The
Investor acknowledges and agrees that such Investor’s receipt of the Company’s
counterpart to this Agreement shall constitute written confirmation of the
Company’s sale of Securities to such Investor.
17. In the
event that before the Closing the Placement Agreement is terminated by the
Placement Agent pursuant to the terms thereof, this Agreement shall terminate
without any further action on the part of the parties hereto.
INVESTOR
SIGNATURE PAGE
Number of
Shares:
Number of
Warrants:
(such
number to be equal to 140% of the number of Shares being purchased by the
Investor)
Purchase
Price Per Unit: $2.10
Aggregate
Purchase Price: $
Please
confirm that the foregoing correctly sets forth the agreement between us by
signing in the space provided below for that purpose.
Dated as
of: March ___, 2009
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INVESTOR
By:
Print
Name:
Title:
Name
in which Securities are to be
registered: _____________________
Mailing
Address: ____________________________
____________________________
____________________________
Facsimile
Number: _____________________
Email
Address: _____________________
Taxpayer
Identification Number: _________________________
Manner
of Settlement of the Shares: DWAC (see Exhibit A for
explanation and instructions)
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Name
of DTC Participant (broker-dealer at which the account or accounts to be
credited with the Shares are maintained)
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DTC
Participant Number
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Name
of Account at DTC Participant being credited with the Shares
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Account
Number at DTC Participant being credited with the Shares
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Agreed
and Accepted this _____ day of March, 2009:
By:
Title:
Sales
of the Securities purchased hereunder were made pursuant to a registration
statement or in a transaction in which a final prospectus would have been
required to have been delivered in the absence of Rule 172 promulgated under the
Securities Act.
Exhibit
A
INSTRUCTIONS
FOR SETTLEMENT
Unless
otherwise agreed to by the Company and the Investor, the following instructions
shall govern the delivery of funds and the transfer of the Shares:
1. Delivery of
Funds
By
NO LATER THAN 3:00 p.m. New York City time on March 11, 2009,
wire the purchase price for the Securities to the trust account
of JPMorgan Chase Bank, N.A, as Escrow Agent, using the wire transfer
instructions below.
The wired
funds will be held in escrow pursuant to the Escrow Agreement until the Closing
and will be delivered by the Escrow Agent on your behalf to the Company upon the
satisfaction, in the sole judgment of the Placement Agent, of the conditions set
forth in Section 7(b) of the Subscription Agreement to which this Exhibit A is
attached.
2. Wire
Transfer Instructions
JPMorgan
Chase Bank
ABA #
000000000
Account
No.: XXXXXXXXX
Account
Name: Cytori Therapeutics Subscription
Attention:
Xxxx Xxxxxxxx/Xxxxxx XxXxxxx
Please
also coordinate with your financial institution to ensure that transaction fees
are not inadvertently
deducted from the wired funds prior to their receipt by JPMorgan Chase
Bank.
Contact at the Escrow
Agent:
Name: Xxxx
Xxxxxxxx - JPMorgan Chase Bank, N.A
Tel: 000-000-0000
3. Initiation
of DWAC and Transfer of Shares
The
Shares will be sent from the Company's transfer agent, ComputerShare Investor
Services, LLC, by DWAC to your prime broker. You
must contact
your prime broker and ask them to initiate the DWAC or you will not receive the
Shares. The Shares will only be released after the Company’s
receipt of the
funds.
Exhibit
B
FORM
OF WARRANT
