Item 1.01 Entry into a Material
Definitive Agreement
On April 11, 2017, Cytori Therapeutics, Inc. (the “Company”) entered into an underwriting agreement (the
“Underwriting Agreement”) with Maxim Group LLC (the “Underwriter”) relating to the issuance and sale of 8,600,000 shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”). The price to
the public in this offering is $1.10 per share. The Underwriter has agreed to purchase the shares from the Company pursuant to the Underwriting Agreement at a price of $1.0395 per share. The net proceeds to the Company from the offering are expected
to be approximately $8.7 million, after deducting underwriting discounts and commissions and estimated offering expenses payable by the Company. The offering is expected to close on or about April 17, 2017, subject to customary closing
conditions. In addition, under the terms of the Underwriting Agreement, the Company has granted the Underwriter a
45-day
option to purchase up to 944,000 additional shares of Common Stock.
The offering is being made pursuant to the Company’s effective registration statement on Form
S-3
(Registration
Statement
No. 333-195846)
previously filed with and declared effective by the Securities and Exchange Commission (the “SEC”) and a prospectus supplement and accompanying prospectus filed with
the SEC.
The Underwriting Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing,
indemnification obligations of the Company and the Underwriter, including for liabilities under the Securities Act of 1933, as amended (the “Securities Act”), other obligations of the parties and termination provisions. The
representations, warranties and covenants contained in the Underwriting Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement and may be subject to limitations
agreed upon by the contracting parties.
Pursuant to the terms of the Underwriting Agreement, the Company has agreed to issue to Maxim Group LLC or its
designee a warrant (the “Warrant”) to purchase the number of shares of Common Stock equal to 1.0% of the total number of shares sold in the offering. The Warrant will be exercisable beginning six (6) months after the date of issuance
and expire five (5) years after the date of the prospectus supplement filed in connection with the offering (the “Prospectus Supplement”). The Warrant will be exercisable at a price per share of $1.32. The Warrant may be exercised in
whole or in part, and provides for “cashless” exercise, “piggyback” registration rights for seven (7) years from the date of the Prospectus Supplement, a
one-time
demand registration
right for five (5) years from the date of the Prospectus Supplement and customary anti-dilution protection in the event of stock splits, stock dividends, recapitalizations and the like.
The Warrant and the shares issuable upon exercise of the Warrant will be issued in reliance on the exemption from registration provided by Section 4(a)(2) of
the Securities Act, as transactions not involving a public offering and in reliance on similar exemptions under applicable state laws.
The foregoing
descriptions of the Underwriting Agreement and the Warrant are not complete and are qualified in their entirety by reference to the full text of the Underwriting Agreement and the Warrant, copies of which are filed as Exhibits 1.1 and 4.1,
respectively, to this report and are incorporated by reference herein. A copy of the opinion of Latham & Watkins LLP relating to the legality of the issuance and sale of Common Stock in the offering is attached as Exhibit 5.1 to this
report.
On April 10, 2017, the Company issued a press release announcing the proposed offering, and on April 11, 2017, the Company issued a
press release announcing the pricing of the offering. Copies of the press releases are attached as Exhibits 99.1 and 99.2, respectively, to this report.