COMMON STOCK PURCHASE AGREEMENT
Exhibit
10.51
This
Common Stock Purchase Agreement (the “Agreement”) is made as of February
8, 2008, by and between Cytori Therapeutics, Inc., a Delaware corporation (the
“Company”), 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, two million
(2,000,000) 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
$12,000,000. (“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.
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(g) The
Company’s latest audited financial statements as of and for the year ended
December 31, 2006, and latest un-audited financial statements as of and for
the
quarter ended September 30, 2007 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.
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(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.
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(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.
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(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.
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(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(ｂ)
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.
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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. Board
Observer Seat. So long as Purchaser continues to own all
of the Shares purchased hereunder or at least 10% of the Company’s outstanding
shares, the Company shall permit Purchaser to designate one representative
reasonably acceptable to the Company as a non-voting observer to the Board
of
Directors. The Purchaser representative shall receive all notices, documents
and
other information supplied to members of the Board of Directors. The Company
shall allow the representative to observe Board of Directors meetings by
telephone if they are unable to attend in person. The Purchaser representative
(and Purchaser) shall hold all information received thereby in strict
confidentiality, and shall sign a confidentiality agreement provided by the
Company requiring all information disclosed pursuant to the Board Observer
Seat
to be held in complete confidence and trust. The Company reserves the right
to
withhold certain information, and/or to exclude the Purchaser representative
from any meeting or portion thereof, if, in the judgment of the Board of
Directors the failure to do so might compromise the attorney-client privilege,
or potentially result in a conflict of interest situation.
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14. 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]
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The
parties have executed this Common Stock Purchase Agreement as of the date first
set forth above.
COMPANY:
By:
/s/ Xxxxxxxxxxx X. Xxxxxxx
Title:
CEO
Address:
0000
Xxxxxx Xxxx
Xxx
Xxxxx, XX 00000
Fax: US
000-000-0000
PURCHASER:
GREEN
HOSPITAL SUPPLY, INC.
By:
Kunishisa Furukawa
Title:
President
Address:
0-00-0
Xxxxxx Xxxxx-Xxxx
Xxxxx
000-0000, Xxxxx
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