CYTORI THERAPEUTICS, INC. AMENDMENT NO. 2 TO RIGHTS AGREEMENT
Exhibit
4.1.1
AMENDMENT
NO. 2 TO RIGHTS AGREEMENT
This
Amendment No. 2 To Rights Agreement
(this
“Amendment”)
is
made as of August 28, 2007 between Cytori
Therapeutics, Inc. (formerly
known as
MacroPore Biosurgery, Inc.),
a
Delaware corporation (the “Corporation”),
and
Computershare
Trust Company, N.A.
(as
successor to
Computershare Trust Company, Inc.),
a
Colorado Corporation (the “Rights
Agent”).
Whereas,
the
Corporation and the Rights Agent entered into that certain Rights Agreement
dated as of May 29, 2003 (the “Rights
Agreement”)
(capitalized terms used in this Agreement but not defined herein shall have
the
meaning assigned to them in the Rights Agreement); and
Whereas,
the
Corporation and the Rights Agent entered into that certain Amendment No. 1
to
Rights Agreement dated as of May 12, 2005 (the “Amendment
No. 1”);
and
Whereas,
the
Corporation and the Rights Agent desire to irrevocably amend the Rights
Agreement as provided below.
Now,
Therefore,
in
consideration of the foregoing premises and the mutual covenants and conditions
set forth below, and for other good and valuable consideration, the receipt
of
which is hereby acknowledged, the parties to this Amendment No. 2 to Rights
Agreement hereby agree as follows:
AMENDMENT
1. Amendment
of the Rights Agreement.
1.1 Preamble.
The
preamble of the Rights Agreement is hereby amended to reflect the name of the
Corporation as, “Cytori Therapeutics, Inc. (formerly known as MacroPore
Biosurgery, Inc.),” and the name of the Rights Agent as, “Computershare Trust
Company, N.A. (as successor to Computershare Trust Company, Inc.).”
1.2 Section
1.10.
Section
1.10 of the Rights Agreement is hereby amended in its entirety, to read:
““Close
of Business” on any given date means 5:00 P.M., Eastern time, on such date;
provided, however, that if such date is not a Business Day it means 5:00 P.M.,
Eastern time, on the next succeeding Business Day.”
1.3 Section
2.1.
Section
2.1 of the Rights Agreement is hereby amended in its entirety, to read:
“The
Corporation hereby appoints the Rights Agent to act as agent for the Corporation
in accordance with the terms and conditions hereof, and the Rights
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Agent
hereby accepts such appointment. The Corporation may from time to time appoint
such co-Rights Agents as it may deem necessary or desirable, upon ten (10)
days’
prior written notice to the Rights Agent. The Rights Agent shall have no duty
to
supervise, and in no event shall be liable for, the acts or omissions of any
such co-Rights Agent.”
1.4 Section
21.
Section
21 of the Rights Agreement is hereby amended in its entirety, to read:
“The
Rights Agent or any successor Rights Agent may resign and be discharged from
its
duties under this Agreement upon thirty (30) days' notice in writing mailed
to
the Corporation and to each transfer agent of the Common Stock or Preferred
Stock by registered or certified mail, and, at the expense of the Corporation,
to the holders of the Right Certificates by first-class mail. In the event
the
transfer agency relationship in effect between the Company and the Rights Agent
terminates, the Rights Agent will be deemed to resign automatically on the
effective date of such termination; and any required notice will be sent by
the
Company. The Corporation may remove the Rights Agent or any successor Rights
Agent upon sixty (60) days' notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer agent of the
Common Stock or Preferred Stock by registered or certified mail, and to holders
of the Right Certificates by first-class mail. If the Rights Agent shall resign
or be removed or shall otherwise become incapable of acting, the Corporation
shall appoint a successor to the Rights Agent. If the Corporation shall fail
to
make such appointment within a period of sixty (60) days after giving notice
of
such removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the holder
of a
Right Certificate (who shall, with such notice, submit his Right Certificate
for
inspection by the Corporation), then the registered holder of any Right
Certificate may apply to any court of competent jurisdiction for the appointment
of a new Rights Agent. Any successor Rights Agent, whether appointed by the
Corporation or by such a court, shall be (i) a Person organized and doing
business under the laws of the United States or of any of the States of New
York, New Jersey, Colorado or California (or of any other state of the United
States so long as such Person is authorized to do business in any of the States
of New York, New Jersey, Colorado or California), in good standing, having
an
office in any of such States, which is subject to supervision or examination
by
federal or state authority and which (or the parent corporation of which) has
at
the time of its appointment as Rights Agent a combined capital and surplus
of at
least $50,000,000 or (ii) an affiliate of such Person. After appointment, the
successor Rights Agent shall be vested with the same powers, rights, duties
and
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and transfer
to the successor Rights Agent any property at the time held by it hereunder,
and
execute and deliver any further assurance, conveyance, act or deed necessary
for
the purpose. In case at the time such successor Rights Agent shall succeed
to
the agency created by this Agreement, any of the Right Certificates shall have
been countersigned but not delivered, any
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such
successor Rights Agent may adopt the countersignature of a predecessor Rights
Agent and deliver such Right Certificates so countersigned; and in case at
that
time any of the Right Certificates shall not have been countersigned, any
successor Rights Agent may countersign such Right Certificates either in the
name of the predecessor or in the name of the successor Rights Agent; and in
all
such cases such Right Certificates shall have the full force provided in the
Right Certificates and in this Agreement. Not later than the effective date
of
any such appointment, the Corporation shall file notice thereof in writing
with
the predecessor Rights Agent and each transfer agent of the Common Stock or
Preferred Stock, and mail a notice thereof in writing to the registered holders
of the Right Certificates. Failure to give any notice provided for in this
Section 21, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent or the appointment
of
the successor Rights Agent, as the case may be.
1.5 Section
25.1.1.
Section
25.1.1 of the Rights Agreement is hereby amended to provide that notices or
demands authorized by the Rights Agreement made to or on the Corporation shall
be addressed to:
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Attention:
Corporate Secretary”.
1.6 Section
25.1.2.
Section
25.1.2 of the Rights Agreement is hereby amended to provide that notices or
demands authorized by the Rights Agreement made to or on the Rights Agent shall
be addressed to:
“Computershare
Trust Company, N.A.
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1.7 Section
25.10.
A new
Section 25.10 of the Rights Agreement is hereby added as follows:
“25.10.
Force
Majeure.
Notwithstanding
anything to the contrary contained herein, Rights Agent shall not be liable
for
any delays or failures in performance resulting from acts beyond its reasonable
control including, without limitation, acts of God, terrorist acts, shortage
of
supply, breakdowns or malfunctions, interruptions or malfunction of computer
facilities, or loss of data due to power failures or mechanical difficulties
with information storage or retrieval systems, labor difficulties, war, or
civil
unrest.”
1.8 Section
28.
A new
Section 28 of the Rights Agreement is hereby added as follows:
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“28.
Beneficial
Ownership by Olympus Corporation.
Notwithstanding
anything to the contrary in this Agreement: (A) the Beneficial Ownership by
Olympus Corporation, either individually or together with its Affiliates and
Associates (collectively, “Olympus”)
of 20%
or less of the outstanding shares Common Stock shall not constitute Olympus
an
Acquiring Person; and (B) Olympus shall
not
be deemed an Acquiring Person either (i) as a result of the acquisition of
Common Stock by the Corporation which, by reducing the number of shares of
Common Stock outstanding, increases the proportional number of shares
Beneficially Owned by Olympus; provided however
that if
(1) Olympus would become an Acquiring Person (but for the operation of this
subclause (B)(i)) as a result of the acquisition of shares of Common Stock
by
the Corporation, and (2) after such share acquisition by the Corporation,
Olympus becomes the Beneficial Owner of any additional shares of Common Stock,
then Olympus shall be deemed an Acquiring Person, or (ii) if (1) within eight
(8) days after Olympus would otherwise have become an Acquiring Person (but
for
the operation of this subclause (B)(ii)), Olympus notifies the Board of
Directors of the Corporation that Olympus did so inadvertently and (2) within
two (2) Business Days (as defined in Section 1.8 hereof) after such
notification, Olympus is the Beneficial Owner of 20% or less of the outstanding
shares of Common Stock.”
2. No
Other Amendment.
Except
as modified by this Amendment, the Rights Agreement, as previously amended
by
Amendment No. 1, shall remain in full force and effect without any modification.
By executing this Amendment below, the Corporation certifies that this Amendment
has been executed and delivered in compliance with the terms of
Section 25.2 of the Rights Agreement. This
Amendment shall be deemed an amendment to the Rights Agreement and shall become
effective when executed and delivered by the Corporation and the Rights Agent
as
provided under Section 25.2 of the Rights Agreement.
3. Effect
of Amendment.
Except
as and to the extent expressly modified by this Amendment, the Rights Agreement,
as previously amended by Amendment No. 1, and the exhibits thereto, shall remain
in full force and effect in all respects. In the event of a conflict or
inconsistency between this Amendment and the Rights Agreement, as previously
amended by Amendment No. 1, and the exhibits thereto, the provisions of this
Amendment shall govern.
4. Counterparts.
This
Amendment may be executed in several counterparts, each of which shall
constitute an original and all of which, when taken together, shall constitute
one agreement.
[THIS
SPACE INTENTIONALLY LEFT BLANK]
The
parties hereto have caused this Amendment to be executed and delivered as of
the
day and year first written above.
By:/s/
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Chief
Financial
Officer
Computershare
Trust
Company, N.A.
(as
successor to
Computershare Trust Company, Inc.)
By:/s/
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Manager,
Contract
Administration
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