Exhibit 10.34
1,005,212 Shares
CYTORI THERAPEUTICS, INC.
Common Stock
PLACEMENT AGENCY AGREEMENT
August 9, 2006
Piper Jaffray & Co.
U.S. Bancorp Center
800 Nicollet Mall
Minneapolis, Minnesota
55402
Ladies and Gentlemen:
Cytori Therapeutics, Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to certain
investors located by you or set forth on Schedule III attached hereto (each an
"Investor" and, collectively, the "Investors"), up to an aggregate of 1,005,212
shares (the "Shares") of the Company's common stock, $0.001 par value per share
(the "Common Stock").
The Company desires to engage Piper Jaffray & Co. as its
exclusive placement agent (the "Placement Agent") in connection with such
issuance and sale.
The Shares are more fully described in the Registration
Statement (as hereinafter defined).
1.
AGREEMENT TO ACT AS PLACEMENT AGENT; DELIVERY AND PAYMENT.
ON
THE BASIS OF THE REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY
HEREIN CONTAINED, AND SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS
AGREEMENT:
(A)
THE COMPANY HEREBY ENGAGES THE PLACEMENT AGENT TO ACT AS ITS
EXCLUSIVE PLACEMENT AGENT IN CONNECTION WITH THE ISSUANCE AND SALE, BY THE
COMPANY, OF SHARES TO THE INVESTORS AND THE PLACEMENT AGENT HEREBY AGREES, AS AN
AGENT OF THE COMPANY, TO USE ITS BEST EFFORTS TO SOLICIT OFFERS TO PURCHASE THE
SHARES FROM THE COMPANY UPON THE TERMS AND CONDITIONS SET FORTH IN THE
PROSPECTUS (AS HEREINAFTER DEFINED).
UPON THE OCCURRENCE OF THE CLOSING (AS
HEREINAFTER DEFINED), THE COMPANY SHALL PAY TO THE PLACEMENT AGENT, BY WIRE
TRANSFER OF IMMEDIATELY AVAILABLE FUNDS PAYABLE TO THE ORDER OF THE PLACEMENT
AGENT, TO AN ACCOUNT DESIGNATED BY THE PLACEMENT AGENT, AN AGGREGATE OF SIX AND
ONE-HALF PERCENT (6.5%) OF THE GROSS PROCEEDS RECEIVED BY THE COMPANY AT CLOSING
FROM ITS SALE OF THE SHARES, PROVIDED, HOWEVER, THAT WITH RESPECT TO UP TO
33.33% OF THE AGGREGATE NUMBER OF SHARES SOLD IN THE OFFERING TO THOSE INVESTORS
WHOSE NAMES ARE SET FORTH ON SCHEDULE III ATTACHED HERETO, THE FEE TO BE PAID TO
THE PLACEMENT AGENT SHALL EQUAL THREE AND ONE-QUARTER PERCENT (3.25%) OF THE
GROSS PROCEEDS RECEIVED BY THE COMPANY AT CLOSING FROM ITS SALE OF SUCH SHARES
TO SUCH INVESTORS.
PRIOR TO THE EARLIER OF (I) THE DATE ON WHICH THIS AGREEMENT
IS TERMINATED AND (II) THE CLOSING DATE (AS HEREINAFTER DEFINED), THE COMPANY
SHALL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE PLACEMENT AGENT, SOLICIT OR
ACCEPT OFFERS TO PURCHASE SHARES OF THE COMPANY (OTHER THAN PURSUANT TO THE
EXERCISE OF OPTIONS OR WARRANTS TO PURCHASE SHARES OF COMMON STOCK THAT ARE
OUTSTANDING AT THE DATE HEREOF) OTHERWISE THAN THROUGH THE PLACEMENT AGENT IN
ACCORDANCE HEREWITH.
(B)
THE COMPANY EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE PLACEMENT
AGENT'S OBLIGATIONS HEREUNDER ARE ON A BEST EFFORTS BASIS AND THIS AGREEMENT
SHALL NOT GIVE RISE TO A COMMITMENT BY THE PLACEMENT AGENT OR ANY OF ITS
AFFILIATES TO UNDERWRITE OR PURCHASE ANY OF THE SHARES OR OTHERWISE PROVIDE ANY
FINANCING, AND THE