Attached files
file | filename |
---|---|
EX-5.2 - Nuo Therapeutics, Inc. | v198505_ex5-2.htm |
EX-4.1 - Nuo Therapeutics, Inc. | v198505_ex4-1.htm |
EX-5.1 - Nuo Therapeutics, Inc. | v198505_ex5-1.htm |
EX-99.1 - Nuo Therapeutics, Inc. | v198505_ex99-1.htm |
EX-10.1 - Nuo Therapeutics, Inc. | v198505_ex10-1.htm |
EX-10.4 - Nuo Therapeutics, Inc. | v198505_ex10-4.htm |
EX-10.3 - Nuo Therapeutics, Inc. | v198505_ex10-3.htm |
EX-10.2 - Nuo Therapeutics, Inc. | v198505_ex10-2.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): October 5,
2010
Cytomedix,
Inc.
(Exact
name of registrant as specified in its charter)
Delaware
|
01-32518
|
23-3011702
|
(State
or Other Jurisdiction
|
(Commission
|
(I.R.S.
Employer
|
of
Incorporation)
|
File
Number)
|
Identification
No.)
|
209
Perry Parkway, Suite 7, Gaithersburg, MD 20877
(Address
of Principal Executive Office) (Zip Code)
240-499-2680
(Registrant’s
telephone number, including area code)
N/A
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
¨ Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01 Entry into
a Material Definitive Agreement
On
October 5, 2010, Cytomedix, Inc., a Delaware corporation (“Cytomedix” or “the
Company”), entered into a $10 million Purchase Agreement (the “Purchase
Agreement”) with Lincoln Park Capital Fund, LLC (“Lincoln Park”), an Illinois
limited liability company, together with a Registration Rights Agreement (the
“Registration Rights Agreement”), whereby Lincoln Park has agreed to purchase up
to $10 million of the Company’s common stock over a 25-month
period. Under the Registration Rights Agreement, the Company agreed
to file a registration statement related to the transaction with the U.S.
Securities & Exchange Commission (“SEC”) covering the shares that have been
or may be issued to Lincoln Park under the Purchase Agreement. After the SEC has
declared effective such registration statement, the Company has the right, but
not the obligation, over a 25-month period, to sell shares of its common stock
to Lincoln Park in amounts of up to 150,000 shares per business day every other
business day, depending on certain conditions as set forth in the Purchase
Agreement, up to the aggregate amount of $10 million. The purchase price for the
shares of common stock to be purchased by Lincoln Park will be the lower of (i)
the lowest trading price on the date of sale or (ii) the arithmetic average of
the three lowest closing sale prices for the common stock during the 12
consecutive business days ending on the business day immediately preceding the
purchase date of those securities. In no event, however, will the additional
shares be sold to Lincoln Capital at a price of less than $0.30 per
share.
In
consideration for entering into the Purchase Agreement, the Company will issue
to Lincoln Park 305,944 shares of common stock as an initial commitment and is
required to issue up to 336,538 shares of common stock pro rata additional
commitment shares as the Company requires Lincoln Park to purchase the Company’s
shares under the Purchase Agreement over the term of the
agreement. The Company can also accelerate the amount of common stock
to be purchased under certain circumstances. The Purchase Agreement may be
terminated by the Company at any time at the Company’s discretion without any
cost to the Company. Under the Purchase Agreement, the Company may not sell to
Lincoln Park any shares of its common stock in excess of 19.99% of its shares of
common stock outstanding, unless and until such issuances are approved by our
shareholders, in the event such approval is required under the rules and
regulations of the trading market where the Company’s securities are then
listed. The Company’s ability to sell its shares to Lincoln Park is
also subject to its obtaining all necessary consents, amendments or waivers as
may be required. The proceeds received by the Company under the
Purchase Agreement are expected to be used for debt servicing, working capital
and general corporate purposes.
The
foregoing description of the Purchase Agreement and the Registration Rights
Agreement are qualified in their entirety by reference to the full text of the
Purchase Agreement and the Registration Rights Agreement, a copy of each of
which is attached hereto as Exhibit 10.1 and 10.2, respectively, and each of
which is incorporated herein in its entirety by reference.
Registered
Direct Offering
On
October 7, 2010, Cytomedix entered into securities purchase agreements with
investors to raise gross proceeds of approximately $1.5 million, before fees and
other offering expenses, in a registered direct offering of 3,727,677 shares of
its common stock and warrants to purchase 1,863,839 shares of common stock. The
per share purchase price paid by investors was $0.40, the purchase price paid by
affiliate investors was $0.53. The warrants expire after five years and are
exercisable at $0.60 per share on or after April 7, 2011. This initial closing
of the offering is expected to take place on or about October 12, 2010 subject
to the satisfaction of customary closing conditions. The Company expects to use
the proceeds from this transaction to service the Company’s payment obligations
under the Sorin promissory notes and general corporate and working capital
purposes. The Company’s total expenses in connection with this offering were
approximately $210,000.
The
offering was made pursuant to an S-3 shelf registration statement on (SEC File
No. 333-147793, the base prospectus originally filed with the SEC on December 3,
2007), as supplemented by a prospectus supplement filed with the Securities and
Exchange Commission on October 7, 2010.
The
descriptions of terms and conditions of the Securities Purchase Agreement and
Warrant set forth herein do not purport to be complete and are qualified in
their entirety by the full text of the form of Securities Purchase Agreement,
which is attached hereto as Exhibit 10.3 and incorporated herein by reference
and the form of the Warrant, which is attached hereto as Exhibit 4.1 and
incorporated by reference herein.
Lincoln
Park Transaction
On
October 6, 2010, Cytomedix entered into a certain Purchase Agreement (the “LPA”)
with Lincoln Park, which provides that, upon the terms and subject to the
conditions and limitations set forth therein, Lincoln Park is committed to
purchase up to an aggregate of $1.5 million of the Company’s shares of common
stock, including 91,784 commitment shares, over the 25-month term of the
LPA. Under this LPA, the Company has the right, in its sole discretion, on every
other business day, to present Lincoln Park with a purchase notice, directing
Lincoln Park (as principal) to purchase up to 150,000 shares of the Company’s
common stock per trading day, up to $1.5 million of the Company’s common stock
in the aggregate over the 25-month term of the LPA, at a per share price (the
“Purchase Price”) calculated as the lower of (i) the lowest trading price on the
date of sale or (ii) the arithmetic average of the three lowest closing sale
prices for the common stock during the 12 consecutive business days ending on
the business day immediately preceding the purchase date of those securities.
The LPA provides in no event shall the Purchase Price be less than $0.30 per
share. The Company will control the timing and amount of any sales of
its common stock to Lincoln Park. Lincoln Park has no right to require any sales
by the Company, but is obligated to make purchases from the Company as the
Company directs in accordance with the LPA. The
Company also can accelerate the amount of common stock to be purchased under
certain circumstances. There are no limitations on use of proceeds,
financial or business covenants, restrictions on future fundings, rights of
first refusal, participation rights, penalties or liquidated damages in the LPA.
The Company did not pay any expense reimbursement or placement agent fee in
connection with the LPA. The LPA may be terminated by the Company at
any time, at its discretion, without any penalty or cost to the
Company. The Company’s ability to sell its shares to Lincoln Park is
also subject to its obtaining all necessary consents, amendments or waivers as
may be required. Under the LPA, the Company may not sell to Lincoln
Park any shares of its common stock in excess of 19.99% of its shares of common
stock outstanding, unless and until such issuances are approved by our
shareholders, in the event such approval is required under the rules and
regulations of the trading market where the Company’s securities are then
listed.
The LPA
contains customary representations, warranties, covenants, closing conditions
and indemnification and termination provisions by, among and for the benefit of
the parties. Lincoln Park has covenanted not to cause or engage in any manner
whatsoever, any direct or indirect short selling or hedging of the Company’s
shares of common stock.
The net
proceeds the Company may receive will depend on the frequency and prices at
which it sells shares of stock to Lincoln Park under the LPA and the maximum
proceeds it may receive over the 25-month term of the agreement is $1.5
million. The Company expects that any proceeds received by the
Company from sales of the Company’s common stock to Lincoln Park under the LPA,
when such sales are made, will be used to service the Company’s payment
obligations under the Sorin promissory notes and general corporate and working
capital purposes.
The
foregoing sale of shares of common stock to Lincoln Park pursuant to the
LPC was under the S-3 shelf registration statement on (SEC File No.
333-147793, the base prospectus originally filed with the SEC on December 3,
2007), as supplemented by a prospectus supplement filed with the Securities and
Exchange Commission on October 7, 2010.
The
foregoing description of the LPA is not a complete description of all the terms
of the LPA. For a complete description of all the terms, we refer you to the
full text of the LPA, a copy of which is filed herewith as Exhibit 10.4 to this
Current Report on Form 8-K and incorporated by reference herein.
Item
3.02 Unregistered Sales of Equity
Securities.
The
information relating to the Purchase Agreement contained above in Item 1.01 is
hereby incorporated by reference into this Item 3.02. The sole purchaser in
connection with the Purchase Agreement was an “accredited investor” (as such
term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933,
as amended (the “Securities Act”)), and the Company sold the securities in
reliance upon an exemption from registration contained in Section 4(2) and Rule
506 under the Securities Act. The securities sold may not be offered or sold in
the United States absent registration or an applicable exemption from
registration requirements.
This
Current Report on Form 8-K contains “forward-looking” statements within the
meaning of Section 27A of the Securities Act and Section 21E of the Securities
Exchange Act of 1934, including statements related to the potential future sale
of shares of our common stock and price for such sales under the Purchase
Agreement. Forward-looking statements are generally identified by use of the
terms “anticipate,” “believe,” “estimate,” “expect,” “may,” “objective,” “plan,”
“possible,” “potential,” “project,” “will” and similar expressions. While we
believe our plans, intentions and expectations reflected in those
forward-looking statements are reasonable, these plans, intentions or
expectations may not be achieved. Our actual results, performance or
achievements could differ materially from those contemplated, expressed or
implied by the forward-looking statements. For information about the factors
that could cause such differences, please refer to our Amended Annual Report on
Form 10-K/A for the year ended December 31, 2009, including the information
discussed under the caption “Item 1 Business,” “Item 1A. Risk Factors” and “Item
7 Management’s Discussion and Analysis of Financial Condition and Results of
Operations,” and our Quarterly Report on Form 10-Q for the quarter ended March
31, 2010 and June 30, 2010, as well as the Company’s various other filings with
the SEC. Given these uncertainties, you should not place undue reliance on these
forward-looking statements. We assume no obligation to update any
forward-looking statements as a result of new information, future events or
developments, except as required by securities laws.
Item
8.01 Other Events.
On
October 8, 2010, the Company issued a press release announcing the foregoing. A
copy of the press release is attached hereto as Exhibit 99.1 and incorporated by
reference herein.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits.
4.1 Form
of Warrant.
5.1 Opinion
of Cozen O’Connor.
5.2 Opinion
of Cozen O’Connor.
10.1 Form
of the Purchase Agreement.
10.2 Form
of the Registration Rights Agreement.
10.3 Form
of the Securities Purchase Agreement.
10.4 Form
of the LPA.
23.1 Consent
of Cozen O’Connor (included in its opinion filed as Exhibit 5.1
hereto).
23.2 Consent
of Cozen O’Connor (included in its opinion filed as Exhibit 5.2
hereto).
99.1 Press
Release dated October 8, 2010.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned, hereunto
duly authorized.
|
Cytomedix,
Inc.
|
|
By:
|
/s/ Martin P. Rosendale
|
|
Martin
P. Rosendale
|
||
Chief
Execuive Officer
|
Date: October
8, 2010