UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 7)*
Crdentia Corp.
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(Name of Issuer)
Common Stock, $.0001 par value
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(Title of Class of Securities)
225235209
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(CUSIP Number)
Ann E. Carey, Business Legal Assistant
Howard Rice Nemerovski Canady Falk & Rabkin,
A Professional Corporation
Three Embarcadero Center, Suite 700
San Francisco, CA 94111-4024
(415) 434-1600
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(Name, Address and Telephone Number of Person Authorized to
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Receive Notices and Communications)
11/08/05
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box. [ ]
Note: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Section 240.13d-
7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of
the Act (however, see the Notes).
CUSIP 225235209 SCHEDULE 13D Page 2 of 51
1. Names of Reporting MedCap Management & Research LLC
Persons.
I.R.S. Identification Nos. of above persons 94-3411543
(entities only).
2. Check the Appropriate Box if a Member of a Group (a) [ ]
(See Instructions)
(b) [ ]
3. SEC Use Only
4. Source of Funds (See Instructions) OO
5. Check if Disclosure of Legal Proceedings Is Required [ ]
Pursuant to Items 2(d) or 2(e)
6. Citizenship or Place of Organization Delaware
Number of 7. Sole Voting Power 11,010,769
Shares
Beneficially 8. Shared Voting Power 0
Owned by
Each 9. Sole Dispositive Power 11,010,769
Reporting
Person With 10. Shared Dispositive Power 0
11. Aggregate Amount Beneficially Owned by Each 11,010,769
Reporting Person
12. Check if the Aggregate Amount in Row (11) Excludes Certain [ ]
Shares (See Instructions)
13. Percent of Class Represented by Amount in Row 78.2%
(11)
14. Type of Reporting Person (See Instructions) IA
CUSIP 225235209 SCHEDULE 13D Page 3 of 51
1. Names of Reporting MedCap Partners L.P.
Persons.
I.R.S. Identification Nos. of above persons 94-3412423
(entities only).
2. Check the Appropriate Box if a Member of a Group (a) [ ]
(See Instructions)
(b) [ ]
3. SEC Use Only
4. Source of Funds (See Instructions) WC
5. Check if Disclosure of Legal Proceedings Is Required [ ]
Pursuant to Items 2(d) or 2(e)
6. Citizenship or Place of Organization Delaware
Number of 7. Sole Voting Power 10,999,519
Shares
Beneficially 8. Shared Voting Power 0
Owned by
Each 9. Sole Dispositive Power 10,999,519
Reporting
Person With
10. Shared Dispositive Power 0
11. Aggregate Amount Beneficially Owned by Each 10,999,519
Reporting Person
12. Check if the Aggregate Amount in Row (11) Excludes Certain [ ]
Shares (See Instructions)
13. Percent of Class Represented by Amount in Row 78.1%
(11)
14. Type of Reporting Person (See Instructions) PN
CUSIP 225235209 SCHEDULE 13D Page 4 of 51
1. Names of Reporting C. Fred Toney
Persons.
I.R.S. Identification Nos. of above persons
(entities only).
2. Check the Appropriate Box if a Member of a Group (a) [ ]
(See Instructions)
(b) [ ]
3. SEC Use Only
4. Source of Funds (See Instructions) OO
5. Check if Disclosure of Legal Proceedings Is Required [ ]
Pursuant to Items 2(d) or 2(e)
6. Citizenship or Place of Organization United States
Number of 7. Sole Voting Power 11,013,292
Shares
Beneficially 8. Shared Voting Power 0
Owned by
Each 9. Sole Dispositive Power 11,013,292
Reporting
Person With
10. Shared Dispositive Power 0
11. Aggregate Amount Beneficially Owned by Each 11,013,292
Reporting Person
12. Check if the Aggregate Amount in Row (11) Excludes Certain [ ]
Shares (See Instructions)
13. Percent of Class Represented by Amount in Row 78.2%
(11)
14. Type of Reporting Person (See Instructions) IN, HC
CUSIP 225235209 SCHEDULE 13D Page 5 of 51
Item 1. Security and Issuer
This Schedule 13D ("Schedule") relates to shares of common stock,
with par value $.0001 (the "Common Stock"), of Crdentia Corp. (the
"Issuer"). The principal executive office of the Issuer is 5001 LBJ
Freeway, Suite 850, Dallas, TX 75244.
Item 2. Identity and Background
This Schedule is filed on behalf of MedCap Partners L.P. ("MedCap"),
MedCap Management & Research LLC ("MMR") and C. Fred Toney ("Toney"),
each of whose principal business office address is 500 Third Street,
Suite 535, San Francisco, CA 94107.
MedCap is an investment limited partnership, whose general partner is
MMR. MMR is an investment adviser registered under the laws of the State
of California. Toney is MMR's sole managing member.
None of MedCap, MMR nor Toney has, during the past five years, been
convicted in any criminal proceeding (excluding traffic violations or
similar misdemeanors).
None of MedCap, MMR nor Toney has, during the past five years, been a
party to a civil proceeding of a judicial or administrative body of
competent jurisdiction, as a result of which any of them became or is
subject to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such laws.
MedCap is a Delaware limited partnership, MMR is a Delaware limited
liability company and Toney is a United States citizen.
Item 3. Source and Amount of Funds or Other Consideration
The source of funds to make the purchases described in Item 5(c) was
working capital of MedCap in the amount of $3,422,221.60 and of MedCap
Master Fund, L.P. in the amount of $90,000. The consideration for the
securities issued in the exchange transaction was: 173,428 shares of
Series C Preferred Stock, warrants to purchase 100,111 shares of Series C
Preferred Stock and a warrant to purchase 6,000 shares of Series B-1
Preferred Stock.
Item 4. Purpose of Transaction
The acquisitions of Common Stock described in Item 5(c) were made for
investment purposes.
Toney is a member of the Issuer's Board of Directors.
Except as described herein, the reporting persons do not currently
have any plans or proposals that relate to or would result in any of the
following:
CUSIP 225235209 SCHEDULE 13D Page 6 of 51
(a) The acquisition by any person of additional securities of the
Issuer, or the disposition of securities of the Issuer;
(b) An extraordinary corporate transaction, such as a merger,
reorganization, or liquidation, involving the Issuer or any of its
subsidiaries;
(c) A sale or transfer of a material amount of assets of the Issuer
or any of its subsidiaries;
(d) Any change in the present board of directors or management of the
Issuer, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board;
(e) Any material change in the present capitalization or dividend
policy of the Issuer;
(f) Any other material change in the Issuer's business or corporate
structure;
(g) Changes in the Issuer's charter, bylaws or instruments
corresponding thereto or other actions which may impede the acquisition
of control of the Issuer by any person;
(h) Causing a class of securities of the Issuer to be delisted from a
national securities exchange or to cease to be authorized to be quoted in
an inter-dealer quotation system of a registered national securities
association;
(i) A class of equity securities of the issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Act; or
(j) Any action similar to those enumerated above.
Depending upon market conditions and other factors, the reporting
persons may acquire additional securities of the Issuer or alternatively,
may dispose of some or all of the securities of the Issuer beneficially
owned by them.
Item 5. Interest in Securities of the Issuer
(a) MedCap beneficially owns 10,999,519 shares of Issuer's Common
Stock. The percentage of common stock beneficially owned by
MedCap for the purposes of this Schedule is 78.1%.
In addition to the securities beneficially owned through MedCap,
MMR and Toney beneficially own 11,250 shares of Common Stock
through MedCap Master Fund, L.P., an investment limited
partnership of which MMR is the general partner and investment
manager ("MedCap Master"). MedCap Master is a "master fund" and
contains substantially all of the assets of a "feeder fund."
CUSIP 225235209 SCHEDULE 13D Page 7 of 51
In addition to the shares beneficially owned through MedCap and
MedCap Master, Toney holds options to purchase 2,523 shares of
Common Stock. The option is exercisable within 60 days of April
4, 2006.
MMR as general partner and investment manager of MedCap and
MedCap Master and Toney as the sole managing member of MMR may be
deemed to beneficially own the shares owned by MedCap and MedCap
Master in that they may be deemed to have the power to direct the
voting or disposition of the shares. Neither the filing of this
Schedule nor any of its contents shall be deemed to constitute an
admission that either MMR or Toney is, for any other purpose, the
beneficial owner of any such securities to which this Schedule
relates, and MMR and Toney disclaim beneficial ownership as to
the Common Stock except to the extent of their respective
pecuniary interests therein. The percentage of Common Stock
beneficially owned by MMR and Toney for the purposes of this
Schedule is 78.2%.
The calculation of percentage of beneficial ownership in Item 11
of pages 2, 3 and 4 was derived from the Issuer's Post-Effective
Amendment No. 1 to Form SB-2 Registration Statement, filed with
the Securities and Exchange Commission on April 10, 2006, in
which the Issuer stated that the number of shares of its Common
Stock outstanding as of April 4, 2006 was 14,078,523 shares.
(b) Reference is made hereby to Items 7 to 10 of pages 2, 3 and 4 of
this Schedule, which Items are incorporated herein by reference.
(c) On November 8, 2005, the Board of Directors of the Issuer
approved the issuance of a dividend of Common Stock to holders of
its Series C Preferred Stock. A dividend of 2.5 shares of Common
Stock was declared on each share of outstanding Series C
Preferred Stock that had accrued as of June 30, 2005 and a
dividend of 2.5 shares of Common Stock was declared on each share
of Series C Preferred Stock that had accrued as of September 30,
2005. MedCap received 43,360 shares of Common Stock (as adjusted
for a one-for-ten reverse stock split discussed below) as a
dividend on 173,438 shares of Series C Preferred Stock it held on
June 30, 2005 and 43,360 shares of Common Stock (as adjusted for
a one-for-ten reverse stock split discussed below) as a dividend
on 173,438 shares of Series C Preferred Stock it held on
September 30, 2005, a total of 86,719 shares of Common Stock.
On December 30, 2005, the Issuer entered into a Securities
Purchase Agreement with MedCap (the "Purchase Agreement")
pursuant to which the Issuer issued 335,370 shares of Common
Stock (as adjusted for a one-for-ten reverse stock split
discussed below) to MedCap in a private transaction, at a price
of $6.00 per share (as adjusted for a one-for-ten reverse stock
split discussed below) in consideration for the cancellation of
the principal and all accrued interest under secured promissory
notes it issued to MedCap in connection with loans made by MedCap
CUSIP 225235209 SCHEDULE 13D Page 8 of 51
to the Issuer on November 15, 2005 and November 18, 2005. The
Issuer also agreed to enter into a Registration Rights Agreement,
pursuant to which it agreed to register the shares for resale on
a registration statement.
On January 24, 2006, the Issuer sold 125,000 shares of Common
Stock (as adjusted for a one-for-ten reverse stock split
discussed below) to MedCap at a purchase price of $6.00 per
share (as adjusted for a one-for-ten reverse stock split
discussed below) in a private transaction pursuant to the terms
and conditions set forth in the Purchase Agreement.
On March 1, 2006, the Board of Directors of the Issuer approved
the issuance of a dividend of Common Stock to holders of its
Series C Preferred Stock. A dividend of 2.5 shares of Common
Stock was declared on each share of outstanding Series C
Preferred Stock that had accrued as of December 31, 2005. MedCap
received 43,360 shares of Common Stock (as adjusted for a
one-for-ten reverse stock split discussed below) as a dividend
on 173,438 shares of Series C Preferred Stock it held on
December 31, 2005.
On March 3, 2006, the Issuer entered into a Subscription
Agreement with MedCap pursuant to which the Issuer sold 25,000
shares of its Common Stock (as adjusted for a one-for-ten reverse
stock split discussed below) to MedCap at a purchase price of
$8.00 per share (as adjusted for a one-for-ten reverse stock
split discussed below) in a private transaction.
On March 13, 2006, the Issuer entered into a Subscription
Agreement with MedCap pursuant to which the Issuer sold 13,750
shares of its Common Stock (as adjusted for a one-for-ten reverse
stock split discussed below) to MedCap at a purchase price of
$8.00 per share (as adjusted for a one-for-ten reverse stock
split discussed below) in a private transaction.
On March 13, 2006, the Issuer entered into a Subscription
Agreement with MedCap Master pursuant to which the Issuer sold
11,250 shares of its Common Stock (as adjusted for a one-for-ten
reverse stock split discussed below) to MedCap Master at a
purchase price of $8.00 per share (as adjusted for a one-for-ten
reverse stock split discussed below) in a private transaction.
On April 3, 2006, the Issuer entered into a Subscription
Agreement with MedCap pursuant to which the Issuer sold 58,333
shares of its Common Stock (as adjusted for a one-for-ten reverse
stock split discussed below) to MedCap at a purchase price of
$6.00 per share (as adjusted for a one-for-ten reverse stock
split discussed below) in a private transaction.
CUSIP 225235209 SCHEDULE 13D Page 9 of 51
On April 4, 2006, the Issuer exchanged (the "Exchange") an
aggregate of 9,573,843 shares of Common Stock (as adjusted for a
one-for-ten reverse stock split discussed below) to MedCap:
8,671,900 shares of Common Stock in exchange for 173,438
shares of Series C Preferred Stock
850,943 shares of Common Stock in exchange for 100,111
Warrants exercisable into an equal number of shares of
Series C Preferred Stock
51,000 shares of Common Stock in exchange for 6,000
Warrants exercisable into an equal number of shares of
Series B-1 Preferred Stock
Effective as of 5:00 p.m. Eastern time on April 4, 2006, the
Issuer implemented a one-for-ten reverse stock split of its
outstanding shares of common stock.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer
MedCap is a party to an Amended and Restated Registration Rights
Agreement entitling it to registration rights with respect to Common
Stock issuable upon conversion of its shares of Series A Preferred Stock,
Series B-1 Preferred Stock and Series C Preferred Stock, including any
Series B-1 Preferred or Series C Preferred issued upon exercise of the
Warrants.
MedCap and the Issuer are also parties to the Letter Agreement, as
amended by the Letter Agreement Amendment, which amends in part the
Amended and Restated Registration Rights Agreement. Under the Letter
Agreement, the Issuer agrees to register for resale (i) all of the shares
of Common Stock and the Common Stock that can be acquired upon the
conversion of the Series C Preferred Stock that are held by MedCap and
(ii) shares of Common Stock underlying all of the warrants that MedCap
holds to acquire the Issuer's preferred stock; provided that, the Issuer
is not required to register for resale Common Stock underlying the
warrants unless such shares can be registered at the time that the shares
of Common Stock listed in item (i) are registered for resale.
MedCap was a party to two Secured Promissory Notes issued by the
Issuer, Baker Anderson Christie, Inc., Nurses Network, Inc., New Age
Staffing, Inc., PSR Nurses, Ltd., PSR Nurse Recruiting, Inc., PSR Nurses
Holdings Corp., CRDE Corp., Arizona Home Health Care/Private Duty, Inc.,
Care Pros Staffing, Inc., HIP Holding, Inc., Health Industry
Professionals, L.L.C., Travmed USA, Inc., Prime Staff, LP, Mint Medical
Staffing Odessa LP, and GHS Acquisition Corporation (collectively, the
CUSIP 225235209 SCHEDULE 13D Page 10 of 51
"Issuer's subsidiaries") to MedCap (the "Secured Promissory Notes"). The
Issuer obtained a $500,000 loan from MedCap on November 15, 2005 and a
$1,500,000 loan from MedCap on November 18, 2005 to fund working capital
needs. No equity securities and no securities exercisable, convertible
or exchangeable for equity securities were issued in connection with the
loans which were evidenced by the Secured Promissory Notes. In
connection with the loans, MedCap, the Issuer and the Issuer's
subsidiaries were parties to an Amended and Restated Security Agreement
pursuant to which MedCap was granted a subordinate security interest in
all of the assets and property of the Issuer and the Issuer's
subsidiaries. The Amended and Restated Security Agreement imposes
various restrictions on the activities of the Iasuer and the Issuer's
subsidiaries and includes events of default (with grace periods, as
applicable).
MedCap and the Issuer were parties to a Securities Purchase Agreement
dated as December 30, 2005 pursuant to which the Issuer issued 335,370
shares of its Common Stock (as adjusted for a one-for-ten reverse stock
split discussed below) to MedCap in consideration for the cancellation of
the principal and all accrued interest under the Secured Promissory Notes.
The shares were sold in a private transaction at a price of $6.00 per
share (as adjusted for a one-for-ten reverse stock split discussed below).
In connection with the Securities Purchase Agreement, the Issuer and
MedCap entered into a Registration Rights Agreement pursuant to which
the Issuer agreed to register for resale on a registration statement the
shares acquired by MedCap under the Securities Purchase Agreement.
MedCap and the Issuer are parties to a Subscription Agreement dated
March 3, 2006, pursuant to which the Issuer sold 25,000 shares of its
Common Stock (as adjusted for a one-for-ten reverse stock split discussed
below) to MedCap at a price of $8.00 per share (as adjusted for a one-for-
ten reverse stock split discussed below) in a private transaction.
MedCap and the Issuer are parties to a Subscription Agreement dated
March 13, 2006, pursuant to which the Issuer sold 13,750 shares of its
Common Stock (as adjusted for a one-for-ten reverse stock split discussed
below) to MedCap at a price of $8.00 per share (as adjusted for a one-for-
ten reverse stock split discussed below) in a private transaction.
MedCap Master and the Issuer are parties to a Subscription Agreement
dated March 13, 2006, pursuant to which the Issuer sold 11,250 shares of
its Common Stock (as adjusted for a one-for-ten reverse stock split
discussed below) to MedCap Master at a price of $8.00 per share (as
adjusted for a one-for-ten reverse stock split discussed below) in a
private transaction.
MedCap and the Issuer are parties to a Subscription Agreement dated
April 3, 2006, pursuant to which the Issuer sold 58,333 shares of its
Common Stock (as adjusted for a one-for-ten reverse stock split discussed
below) to MedCap at a price of $6.00 per share (as adjusted for a one-for
ten reverse stock split discussed below) in a private transaction.
CUSIP 225235209 SCHEDULE 13D Page 11 of 51
Item 7. Material to Be Filed as Exhibits
No. Exhibit
1. Agreement Regarding Joint Filing of Statement on Schedule 13D or
13G.
2. Amended and Restated Registration Rights Agreement between the
Issuer and MedCap dated August 30, 2004, as amended by the Letter
Agreement listed as Exhibit 3 below (included as Exhibit 2 to
MedCap's, MMR's and Toney's Schedule 13D/A No. 1 filed with the
Commission on September 3, 2004 and incorporated herein by
reference).
3. Letter Agreement dated March 29, 2005, between the Issuer and
MedCap (the "Letter Agreement") (included as Exhibit 3 to
MedCap's, MMR's and Toney's Schedule 13D/A No. 5 filed with the
Commission on April 11, 2005 and incorporated herein by
reference).
4. Amendment to Letter Agreement, dated May 2, 2005, between the
Issuer and MedCap (included as Exhibit 4 to MedCap's, MMR's and
Toney's Schedule 13D/A No. 6 filed with the Commission on May 10,
2005 and incorporated herein by reference).
5. Secured Promissory Note, dated November 15, 2005, issued by the
Issuer, Baker Anderson Christie, Inc., Nurses Network, Inc., New
Age Staffing, Inc., PSR Nurses, Ltd., PSR Nurse Recruiting, Inc.,
PSR Nurses Holdings Corp., CRDE Corp., Arizona Home Health
Care/Private Duty, Inc., Care Pros Staffing, Inc., HIP Holding,
Inc., Health Industry Professionals, L.L.C., Travmed USA, Inc.,
Prime Staff, LP, Mint Medical Staffing Odessa LP, and GHS
Acquisition Corporation to MedCap (included as Exhibit 10.1 to the
Issuer's Form 8-K filed with the Commission on November 21, 2005,
and incorporated herein by reference).
6. Secured Promissory Note, dated November 18, 2005, issued by the
Issuer, Baker Anderson Christie, Inc., Nurses Network, Inc., New
Age Staffing, Inc., PSR Nurses, Ltd., PSR Nurse Recruiting, Inc.,
PSR Nurses Holdings Corp., CRDE Corp., Arizona Home Health
Care/Private Duty, Inc., Care Pros Staffing, Inc., HIP Holding,
Inc., Health Industry Professionals, L.L.C., Travmed USA, Inc.,
Prime Staff, LP, Mint Medical Staffing Odessa LP, and GHS
Acquisition Corporation to MedCap (included as Exhibit 10.2 to the
Issuer's Form 8-K filed with the Commission on November 21, 2005,
and incorporated herein by reference).
CUSIP 225235209 SCHEDULE 13D Page 12 of 51
7. Amended and Restated Security Agreement, dated November 18, 2005,
by and among the Issuer, Baker Anderson Christie, Inc., Nurses
Network, Inc., New Age Staffing, Inc., PSR Nurses, Ltd., PSR Nurse
Recruiting, Inc., PSR Nurses Holdings Corp., CRDE Corp., Arizona
Home Health Care/Private Duty, Inc., Care Pros Staffing, Inc., HIP
Holding, Inc., Health Industry Professionals, L.L.C., Travmed USA,
Inc., Prime Staff, LP, Mint Medical Staffing Odessa LP, GHS
Acquisition Corporation and MedCap (included as Exhibit 10.3 to
the Issuer's Form 8-K filed with the Commission on November 21,
2005, and incorporated herein by reference).
8. Securities Purchase Agreement dated as of December 30, 2005 by and
between the Issuer and MedCap (included as Exhibit 10.1 to the
Issuer's Form 8-K filed with the Commission on January 6, 2006 and
incorporated herein by reference).
9. Registration Rights Agreement dated as of January 6, 2006 by and
between the Issuer and certain investors listed on the signature
pages thereto (included as Exhibit 10.5 to the Issuer's Form 8-K
filed with the Commission on January 10, 2006 and incorporated
herein by reference).
10. Subscription Agreement dated March 3, 2006 by and between the
Issuer and MedCap (included as Exhibit 10.1 to the Issuer's Form 8-
K filed with the Commission on March 7, 2006 and incorporated
herein by reference).
11. Subscription Agreement dated March 13, 2006 by and between the
Issuer and MedCap.
12. Subscription Agreement dated March 13, 2006 by and between the
Issuer and MedCap Master.
13. Letter dated March 13, 2006, from the Board of Directors of the
Issuer to Holders of Series C and Warrants to Purchase Series B-1
and Series C Preferred Stock of the Issuer, in connection with the
Offer to Exchange Series C Preferred Stock and Warrants to
Purchase Series B-1 and Series C Preferred Stock in which the
Issuer has agreed to register the shares of Common Stock issued
pursuant to the Exchange on a suitable form and substantially in
compliance with the existing registration rights agreement
covering the Series C Stock and Series C Warrants within 60 days
of the completion of the Exchange Offer and to reimburse MedCap
for certain legal expenses incurred in connection with the
Exchange Offer.
14. Subscription Agreement dated April 3, 2006 by and between the
Issuer and MedCap.
CUSIP 225235209 SCHEDULE 13D Page 13 of 51
Signature
After reasonable inquiry and to the best of each of the undersigned's
respective knowledge and belief, each of the undersigned certifies that
the information set forth in this statement is true, complete and
correct.
Date April 13, 2006
/s/ C. Fred Toney
-----------------------
Signature
Print Name C. FRED TONEY
MEDCAP PARTNERS L.P. MEDCAP MANAGEMENT & RESEARCH LLC
By its general partner MedCap
Management & Research LLC
By: /s/ C. Fred Toney By: /s/ C. Fred Toney
-------------------- ---------------------
Print Name C. Fred Toney Print Name C. Fred Toney
Title Managing Member Title Managing Member
EXHIBITS LIST
Exhibit 1 Agreement Regarding Joint Filing of Statement on Schedule 13D
or 13G.
Exhibit 11 Subscription Agreement dated March 13, 2006 by and between the
Issuer and MedCap.
Exhibit 12 Subscription Agreement dated March 13, 2006 by and between the
Issuer and MedCap Master.
CUSIP 225235209 SCHEDULE 13D Page 14 of 51
Exhibit 13 Letter dated March 13, 2006, from the Board of Directors of the
Issuer to Holders of Series C and Warrants to Purchase Series
B-1 and Series C Preferred Stock of the Issuer, in connection
with the Offer to Exchange Series C Preferred Stock and
Warrants to Purchase Series B-1 and Series C Preferred Stock in
which the Issuer has agreed to register the shares of Common
Stock issued pursuant to the Exchange on a suitable form and
substantially in compliance with the existing registration
rights agreement covering the Series C Stock and Series C
Warrants within 60 days of the completion of the Exchange Offer
and to reimburse MedCap for certain legal expenses incurred in
connection with the Exchange Offer.
Exhibit 14 Subscription Agreement dated April 3, 2006 by and between the
Issuer and MedCap.
CUSIP 225235209 SCHEDULE 13D Page 15 of 51
EXHIBIT 1
AGREEMENT REGARDING JOINT FILING OF STATEMENT ON SCHEDULE 13D OR
13G
The undersigned agree to file jointly with the Securities and
Exchange Commission (the "SEC") any and all statements on Schedule 13D or
Schedule 13G (and any amendments or supplements thereto) required under
section 13(d) of the Securities Exchange Act of 1934, as amended, in
connection with purchases by the undersigned of the common stock of
Crdentia Corp. For that purpose, the undersigned hereby constitute and
appoint C. Fred Toney as their true and lawful agent and attorney-in-
fact, with full power and authority for and on behalf of the undersigned
to prepare or cause to be prepared, sign, file with the SEC and furnish
to any other person all certificates, instruments, agreements and
documents necessary to comply with section 13(d) and section 16(a) of the
Securities Exchange Act of 1934, as amended, in connection with said
purchases, and to do and perform every act necessary and proper to be
done incident to the exercise of the foregoing power, as fully as the
undersigned might or could do if personally present.
Date April 13, 2006
/s/ C. Fred Toney
-----------------
Signature
Print Name C. FRED TONEY
MEDCAP PARTNERS L.P. MEDCAP MANAGEMENT & RESEARCH LLC
By its general partner MedCap
Management & Research LLC
By: /s/ C. Fred Toney By: /s/ C. Fred Toney
--------------------- ---------------------
Print Name C. Fred Toney Print Name C. Fred Toney
Title Managing Member Title Managing Member
CUSIP 225235209 SCHEDULE 13D Page 16 of 51
EXHIBIT 11
SUBSCRIPTION AGREEMENT DATED MARCH 13, 2006
BY AND BETWEEN THE ISSUER AND MEDCAP
THIS SUBSCRIPTION AGREEMENT DOES NOT CONSTITUTE AN OFFER OR SOLICITATION
BY ANYONE IN ANY JURISDICTION IN WHICH SUCH AN OFFER OR SOLICITATION IS
NOT AUTHORIZED
CRDENTIA CORP.
SUBSCRIPTION AGREEMENT
I. Subscription.
A. The Undersigned (the "Purchaser"), pursuant to the terms and
conditions of this Subscription Agreement (the "Agreement"), hereby
irrevocably subscribes for the purchase of $110,000 of Common Stock (the
"Stock") issued by Crdentia Corp. (the "Company"), at a price per share
of $0.80. The shares of Stock are sometimes referred to herein as the
"Securities." The total aggregate purchase price to be paid by the
Purchaser for the Securities purchased hereunder will be the amount of
$110,000 (the "Purchase Price"). The Purchaser hereby agrees to deliver
to the Company an executed copy of this Agreement and the Purchase Price.
B. The Purchaser agrees that this subscription shall be irrevocable
and shall survive the death or disability of the Purchaser.
C. The executed Agreement will be held for the benefit of the
Purchaser until the subscription is accepted by the Company pursuant to
Section II below. If the subscription is not accepted, the executed
Agreement will be promptly returned to the Purchaser.
D. On the date set forth on the signature page hereto the Purchaser
shall wire to the Company the payment representing the Purchase Price of
the Securities acquired by the Purchaser.
II. Acceptance of Subscription.
The Purchaser acknowledges that the Company has the right to accept
or reject this subscription, in whole or in part, for any reason, and
that this subscription shall be deemed to be accepted by the Company only
when an authorized representative of the Company has executed and
acknowledged this Agreement on the Company's behalf. The subscription
either will be accepted or rejected, or accepted in part and rejected in
part, as promptly as practical after receipt. The Purchaser agrees that
subscriptions need not be accepted in the order they are received by the
Company. Upon rejection of this subscription for any reason, all items
received with this subscription shall be returned to the Purchaser, and
CUSIP 225235209 SCHEDULE 13D Page 17 of 51
this Subscription Agreement shall be deemed to be null and void and of no
further force or effect. The Purchaser understands and agrees that the
acceptance of this subscription by the Company, or a part of this
subscription, will in no way constitute a determination by the Company
that an investment in the Securities is a suitable investment for the
Purchaser.
III. Representations, Warranties and Covenants of the Company.
A. In connection with the execution of this Agreement by the
Purchaser, the Company hereby agrees to the following representations,
warranties and covenants and the Purchaser is entitled to rely on such
representations, warranties and covenants in making any purchase that it
may make of the Stock pursuant to this Agreement.
1.1 Organization. The Company is duly organized and validly existing in
good standing under the laws of the State of Delaware. Each of the Company
and its Subsidiaries (as defined in Rule 405 under the Securities Act) has
full power and authority to own, operate and occupy its properties and to
conduct its business as presently conducted and as described in the
Exchange Act Documents and is registered or qualified to do business and in
good standing in each jurisdiction in which the nature of the business
conducted by it or the location of the properties owned or leased by it
requires such qualification and where the failure to be so qualified would
have a material adverse effect upon the condition (financial or otherwise),
earnings, business or business prospects, properties or operations of the
Company and its Subsidiaries, considered as one enterprise (a "Material
Adverse Effect").
1.2 Due Authorization and Valid Issuance. The Company has all requisite
power and authority to execute, deliver and perform its obligations under
this Agreement, and this Agreement has been duly authorized. This
Agreement has been validly executed and delivered by the Company and
constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as
(A) rights to indemnity and contribution may be limited by court decision
or applicable law, (B) enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' and contracting parties' rights generally and (C)
enforceability may be subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or
at law) or the discretion of the court before which any proceeding is
brought. The Stock being purchased hereunder will, upon issuance and
payment therefor pursuant to the terms hereof, be duly authorized and
validly issued, and the Stock will, upon issuance pursuant to the terms
hereof, be fully paid and nonassessable.
CUSIP 225235209 SCHEDULE 13D Page 18 of 51
1.3 Non-Contravention. Assuming the correctness of the representations
and warranties of the Purchaser, no consent, approval, authorization or
other order of, or registration, qualification or filing with, any
regulatory body, administrative agency, or other governmental body in the
United States or any other person is required for the execution and
delivery of this Agreement and the valid issuance and sale of the
Securities to be sold and issued pursuant to this Agreement, other than
such as have been made or obtained, and except for any post-closing
securities filings or notifications required to be made under federal or
state securities laws and applicable rules of the National Association of
Securities Dealers, Inc.
1.4 Transfer Taxes. All stock transfer or other taxes (other than income
taxes) which are required to be paid in connection with the sale and
transfer of the Securities to be sold to the Purchaser hereunder will be,
or will have been, fully paid or provided for by the Company and all laws
imposing such taxes will be or will have been fully complied with.
1.5 Private Offering. Assuming the correctness of the representations
and warranties of the Purchasers set forth in this Agreement, the offer
and sale of Securities hereunder is exempt from registration under the
Securities Act. The Company has not in the past nor will it hereafter
take any action to sell, offer for sale or solicit offers to buy any
securities of the Company which would bring the offer, issuance or sale
of the Securities as contemplated by this Agreement, within the
provisions of Section 5 of the Securities Act, unless such offer,
issuance or sale was or shall be within the exemptions of Section 4 of
the Securities Act.
The foregoing representations and warranties are true, complete and
accurate as of the date hereof, shall be true, complete and accurate as
of the date of delivery, if any, of the Securities to the Purchaser and
shall survive for a period of one year after the delivery, if any, of the
Securities. The Company undertakes no duty to update the foregoing
representations and warranties.
IV. Representations, Warranties and Covenants of Purchaser.
The Purchaser hereby represents and warrants to and covenants with
the Company for the Company's benefit with knowledge that the Company is
relying thereon in entering into this Agreement and issuing the
Securities to such Purchaser, as follows:
A. The Purchaser has reviewed the documents filed by the Company
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of its most recently completed fiscal year through
the date hereof, including, without limitation, its most recent reports
on Form 10-KSB, Form 10-QSB and Form 8-K (together with all exhibits
thereto). The Purchaser has been given the opportunity to ask questions
of and to receive answers from the Company concerning the terms and
CUSIP 225235209 SCHEDULE 13D Page 19 of 51
conditions of the offer and sale of the Securities, and to obtain such
additional written information necessary to verify the accuracy of same
as the Purchaser desires in order to evaluate an investment in the
securities described herein.
B. The Purchaser is an accredited investor as that term is defined
in Rule 501(a) of Regulation D under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), which definition is annexed hereto as
"Exhibit A."
C. Immediately prior to the Purchaser's execution of this Agreement,
the Purchaser had such knowledge and experience in financial and business
matters (including experience with investments of a similar nature), that
the Purchaser was capable of evaluating the merits and risks of an
investment in the Securities.
D. The Securities are being acquired solely for the Purchaser's own
account for investment purposes only and not with a view to or for any
resale or distribution thereof or with any present intention of
distributing or selling all or any part of such Securities. The
Purchaser agrees that the Securities may not be transferred except upon
registration under the Securities Act, and under any applicable state
securities or "blue sky" laws, or upon receipt by the Company of evidence
in form and substance reasonably satisfactory to the Company, to the
effect that such transfer may be made without registration under the Act
and applicable state securities or "blue sky" laws.
E. The Purchaser recognizes that the purchase of the Securities is a
speculative investment that involves a high degree of risk and is
suitable only for persons with the financial capability of making and
holding long-term investments not readily reducible to cash. The
Purchaser is aware that there is no guarantee that the Purchaser will
realize any gain from an investment in the Securities. The Purchaser
further understands that the Purchaser could lose the entire amount of
the Purchaser's investment.
F. The Purchaser understands that no U.S. federal or state
securities commission or regulatory authority, or other authority (within
or outside of the United States) has made any finding or determination
regarding the fairness of the offer, sale and/or issuance of the
Securities, has made any recommendation or endorsement of the offer and
sale of the Securities or has passed in any way upon this Agreement.
G. The Purchaser is financially able to bear the economic risk of an
investment in the Securities, including the ability to hold such
Securities indefinitely and to afford a complete loss of his investment
in the Securities.
H. The certificates and/or other documentation evidencing the
Securities will contain a legend substantially as follows:
CUSIP 225235209 SCHEDULE 13D Page 20 of 51
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES, BLUE SKY OR
OTHER APPLICABLE LAWS OF ANY STATE, OR ANY OTHER RELEVANT JURISDICTION,
AND MAY NOT BE OFFERED AND SOLD UNLESS (A) REGISTERED AND/OR QUALIFIED
PURSUANT TO THE RELEVANT PROVISIONS OF U.S. FEDERAL SECURITIES LAWS, THE
SECURITIES, BLUE SKY, OR OTHER APPLICABLE LAWS OF ANY STATE, OR OTHER
RELEVANT JURISDICTION OR (B) EXEMPT FROM SUCH REGISTRATION OR
QUALIFICATION. THEREFORE, NO SALE, PLEDGE OR OTHER TRANSFER OF THIS
SECURITY SHALL BE MADE, NO ATTEMPTED SALE, PLEDGE OR OTHER TRANSFER SHALL
BE VALID, AND THE ISSUER SHALL NOT BE REQUIRED TO GIVE ANY EFFECT TO ANY
SUCH TRANSACTION UNLESS (A) SUCH TRANSACTION SHALL HAVE BEEN DULY
REGISTERED UNDER THE SECURITIES ACT AND QUALIFIED OR APPROVED UNDER THE
SECURITIES, BLUE SKY, OR OTHER APPLICABLE LAWS OF ANY STATE, OR OTHER
RELEVANT JURISDICTION, OR (B) THE COMPANY SHALL HAVE BEEN SATISFIED THAT
SUCH REGISTRATION, QUALIFICATION OR APPROVAL IS NOT REQUIRED.
The Purchaser further acknowledges that: (i) any necessary stop
transfer orders will be placed upon the certificates for the Securities
in accordance with the Securities Act, and (ii) the Company is under no
obligation to aid the Purchaser in obtaining an exemption from the
registration requirements of the Securities Act or any jurisdiction.
I. Purchaser understands that the Securities are being offered and
sold to it in reliance on specific exemptions from the registration and
approval requirements of the U.S. federal and state securities laws or
the laws of other applicable jurisdictions and that the Company is
relying upon the truth, completeness and accuracy of the representations,
warranties, agreements, acknowledgments and understandings of Purchaser
set forth herein in order to determine the applicability of such
exemptions and the suitability of Purchaser to acquire the Securities.
J. The execution, delivery and performance by the Purchaser of this
Subscription Agreement are within the powers of the Purchaser, have been
duly authorized and will not constitute or result in a breach or default
under, or conflict with, any order, ruling or regulation of any court or
other tribunal or of any governmental commission or agency, or any
agreement or other undertaking, to which the Purchaser is a party or by
which the Purchaser is bound; and, if the Purchaser is not an individual,
will not violate any provision of the charter documents, bylaws,
indenture of trust, partnership agreement or similar documents, as
applicable, of the Purchaser. The signatures on this Subscription
Agreement are genuine; and the signatory, if the Purchaser is an
individual, has legal competence and capacity to execute the same, or, if
the Purchaser is not an individual, the signatory has been duly
authorized to execute the same; and this Subscription Agreement
constitutes the legal, valid and binding obligation of the Purchaser,
enforceable in accordance with its terms.
CUSIP 225235209 SCHEDULE 13D Page 21 of 51
K. The type of ownership in which the Purchaser is applying to
purchase Securities is as follows: (Check One)
[ ] INDIVIDUAL OWNERSHIP (One signature required)
[ ] JOINT TENANTS WITH RIGHT OF SURVIVORSHIP (Both parties must
sign)
[ ] TRUST (Please include name of trustee, date trust was formed
and a copy of the Trust Agreement or other authorization)
[ ] CORPORATION (Please include Certified Corporate Resolution
authorizing signature)
[x] PARTNERSHIP (Signature of the authorized general partner is
required)
[ ] COMMUNITY PROPERTY (Two signatures required)
[ ] TENANTS-IN-COMMON (Both parties must sign)
[ ] OTHER (Describe)
The foregoing representations and warranties are true, complete and
accurate as of the date hereof, shall be true, complete and accurate as
of the date of delivery of this Subscription Agreement and accompanying
documents to the Company and shall survive the delivery of the
Securities. If, in any respect, those representations and warranties
shall not be true, complete and accurate prior to acceptance or rejection
of this subscription by the Company pursuant to Section II, the
undersigned shall immediately give written notice to the Company
specifying which representations and warranties are not true, complete
and accurate and the reason therefor. The Purchaser agrees that the
foregoing representations and warranties may be used as a defense in any
actions relating to the Company or the offering of the Securities, and
that it is only on the basis of such representations and warranties that
the Company may be willing to accept the Purchaser's subscription for the
Securities.
V. Waiver.
Except as otherwise specifically provided for hereunder, no party
shall be deemed to have waived any of his, her or its rights hereunder
unless such waiver is in writing and signed by the party waiving said
right. Except as otherwise specifically provided for hereunder, no delay
or omission by any party in exercising any right with respect to the
subject matter hereof shall operate as a waiver of such right or of any
such other right. A waiver on any one occasion with respect to the
subject matter hereof shall not be construed as a bar to or waiver of any
right or remedy on any future occasion. All rights and remedies with
respect to the subject matter hereof shall be cumulative and may be
exercised separately or concurrently.
CUSIP 225235209 SCHEDULE 13D Page 22 of 51
VI. Severability.
If any term, covenant or condition of this Agreement is held to be
invalid, void or otherwise unenforceable by any court of competent
jurisdiction, the remainder of this Agreement shall not be affected
thereby and each term, covenant and condition of this Agreement shall be
valid and enforceable to the fullest extent permitted by law.
VII. Entire Agreement.
Neither the Company nor the Purchaser has made any representations or
warranties with respect to the subject matter hereof not set forth
herein. This Subscription Agreement and the documents and exhibits
referred to herein constitute the entire agreement between the parties
hereto with respect to the subject matter hereof. All understandings and
agreements which heretofore may have existed or did exist between the
parties hereto with respect to the subject matter hereof are superseded
by this Subscription Agreement.
VIII. Assignability.
This Subscription Agreement is not transferable or assignable by the
undersigned or any successor thereto. Any attempted assignment will be
void.
IX. Attorney's Fees.
If any action of law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be
entitled to an award of its reasonable attorneys' fees, costs and
disbursements in addition to any other relief to which such party may be
entitled.
X. Amendment; Termination.
This Subscription Agreement may not be changed, modified, extended or
terminated other than by an agreement in writing, signed by the Company
and the Purchaser.
XI. Survival.
The representations and warranties made herein shall survive the
consummation of the transaction contemplated hereby.
XII. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
CUSIP 225235209 SCHEDULE 13D Page 23 of 51
XIII. Governing Law.
This Subscription Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without
regard to principles of conflicts of laws.
XIV. Confidentiality; Certain Disclosures.
The Company may present this Subscription Agreement to such parties
as its deems advisable if compelled by law or called upon to establish
the availability under any U.S. federal or state securities laws of an
exemption from registration of the Securities or if the contents thereof
are relevant to any issue in any action, suit, or proceeding to which the
Company is a party or by which it is or may be bound.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Purchaser hereby agrees to pay an aggregate of $110,000 as consideration
for the Stock.
"Purchaser:" MedCap Partners L.P.
By: MedCap Management & Research LLC
Its: General Partner
By: /s/ C. Fred Toney
------------------------------
Name: C. Fred Toney
Its: Managing Member
Address: 500 Third Street, Suite 535
San Francisco, CA 94107
Telephone: (415) 495-1010
Facsimile: (415) 495-1012
Date: March 13, 2006
Please register the Securities as follows:
---------------------------------------------
Deliver to (if other than the address above):
---------------------------------------------
SUBSCRIPTION ACCEPTED AS OF
THE THIRTEENTH DAY OF MARCH, 2006.
Crdentia Corp.,
a Delaware corporation
By: /s/ James J. TerBeest
----------------------------
Name: James J. TerBeest
Title: Chief Financial Officer
CUSIP 225235209 SCHEDULE 13D Page 24 of 51
EXHIBIT "A"
DEFINITION OF ACCREDITED INVESTOR
Accredited Investor. "Accredited investor" shall mean any person who
comes within any of the following categories, or who the issuer
reasonably believes comes within any of the following categories, at the
time of the sale of the securities to that person:
(1) Any bank as defined in section 3(a)(2) of the Securities Act, or
any savings and loan association or other institution as defined in
section 3(a)(5)(A) of the Securities Act whether acting in its individual
or fiduciary capacity; any broker or dealer registered pursuant to
section 15 of the Securities Exchange Act of 1934; any insurance company
as defined in section 2(13) of the Securities Act; any investment company
registered under the Investment Company Act of 1940 or a business
development company as defined in section 2(a)(48) of that Act; Small
Business Investment Company licensed by the U.S. Small Business
Administration under section 301(c) or (d) of the Small Business
Investment Act of 1958; any plan established and maintained by a state,
its political subdivisions, or any agency or instrumentality of a state
or its political subdivisions, for the benefit of its employees, if such
plan has total assets in excess of $5,000,000; employee benefit plan
within the meaning of the Employee Retirement Income Security Act of 1974
if the investment decision is made by a plan fiduciary, as defined in
section 3(21) of such Act, which is either a bank, savings and loan
association, insurance company, or registered investment adviser, or if
the employee benefit plan has total assets in excess of $5,000,000 or, if
a self-directed plan, with investment decisions made solely by persons
that are accredited investors;
(2) Any private business development company as defined in section
202(a)(22) of the Investment Advisers Act of 1940;
(3) Any organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of $5,000,000;
(4) Any director, executive officer, or general partner of the issuer
of the securities being offered or sold, or any director, executive
officer, or general partner of a general partner of that issuer;
(5) Any natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of his purchase exceeds
$1,000,000;
(6) Any natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that
person's spouse in excess of $300,000 in each of those years and has a
reasonable expectation of reaching the same income level in the current
year;
CUSIP 225235209 SCHEDULE 13D Page 25 of 51
(7) Any trust, with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the securities offered, whose
purchase is directed by a sophisticated person as described in Section
230.506(b)(2)(ii); and
(8) Any entity in which all of the equity owners are accredited
investors.
CUSIP 225235209 SCHEDULE 13D Page 26 of 51
EXHIBIT 12
SUBSCRIPTION AGREEMENT DATED MARCH 13, 2006
BY AND BETWEEN THE ISSUER AND MEDCAP MASTER
THIS SUBSCRIPTION AGREEMENT DOES NOT CONSTITUTE AN OFFER OR SOLICITATION
BY ANYONE IN ANY JURISDICTION IN WHICH SUCH AN OFFER OR SOLICITATION IS
NOT AUTHORIZED
CRDENTIA CORP.
SUBSCRIPTION AGREEMENT
I. Subscription.
A. The Undersigned (the "Purchaser"), pursuant to the terms and
conditions of this Subscription Agreement (the "Agreement"), hereby
irrevocably subscribes for the purchase of $90,000 of Common Stock (the
"Stock") issued by Crdentia Corp. (the "Company"), at a price per share
of $0.80. The shares of Stock are sometimes referred to herein as the
"Securities." The total aggregate purchase price to be paid by the
Purchaser for the Securities purchased hereunder will be the amount of
$90,000 (the "Purchase Price"). The Purchaser hereby agrees to deliver to
the Company an executed copy of this Agreement and the Purchase Price.
B. The Purchaser agrees that this subscription shall be irrevocable
and shall survive the death or disability of the Purchaser.
C. The executed Agreement will be held for the benefit of the
Purchaser until the subscription is accepted by the Company pursuant to
Section II below. If the subscription is not accepted, the executed
Agreement will be promptly returned to the Purchaser.
D. On the date set forth on the signature page hereto the Purchaser
shall wire to the Company the payment representing the Purchase Price of
the Securities acquired by the Purchaser.
II. Acceptance of Subscription.
The Purchaser acknowledges that the Company has the right to accept
or reject this subscription, in whole or in part, for any reason, and
that this subscription shall be deemed to be accepted by the Company only
when an authorized representative of the Company has executed and
acknowledged this Agreement on the Company's behalf. The subscription
either will be accepted or rejected, or accepted in part and rejected in
part, as promptly as practical after receipt. The Purchaser agrees that
subscriptions need not be accepted in the order they are received by the
Company. Upon rejection of this subscription for any reason, all items
received with this subscription shall be returned to the Purchaser, and
this Subscription Agreement shall be deemed to be null and void and of no
CUSIP 225235209 SCHEDULE 13D Page 27 of 51
further force or effect. The Purchaser understands and agrees that the
acceptance of this subscription by the Company, or a part of this
subscription, will in no way constitute a determination by the Company
that an investment in the Securities is a suitable investment for the
Purchaser.
III. Representations, Warranties and Covenants of the Company.
A. In connection with the execution of this Agreement by the
Purchaser, the Company hereby agrees to the following representations,
warranties and covenants and the Purchaser is entitled to rely on such
representations, warranties and covenants in making any purchase that it
may make of the Stock pursuant to this Agreement.
1.1 Organization. The Company is duly organized and validly existing in
good standing under the laws of the State of Delaware. Each of the
Company and its Subsidiaries (as defined in Rule 405 under the Securities
Act) has full power and authority to own, operate and occupy its
properties and to conduct its business as presently conducted and as
described in the Exchange Act Documents and is registered or qualified to
do business and in good standing in each jurisdiction in which the nature
of the business conducted by it or the location of the properties owned
or leased by it requires such qualification and where the failure to be
so qualified would have a material adverse effect upon the condition
(financial or otherwise), earnings, business or business prospects,
properties or operations of the Company and its Subsidiaries, considered
as one enterprise (a "Material Adverse Effect").
1.2 Due Authorization and Valid Issuance. The Company has all requisite
power and authority to execute, deliver and perform its obligations under
this Agreement, and this Agreement has been duly authorized. This
Agreement has been validly executed and delivered by the Company and
constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as
(A) rights to indemnity and contribution may be limited by court decision
or applicable law, (B) enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' and contracting parties' rights generally and (C)
enforceability may be subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or
at law) or the discretion of the court before which any proceeding is
brought. The Stock being purchased hereunder will, upon issuance and
payment therefor pursuant to the terms hereof, be duly authorized and
validly issued, and the Stock will, upon issuance pursuant to the terms
hereof, be fully paid and nonassessable.
1.3 Non-Contravention. Assuming the correctness of the representations
and warranties of the Purchaser, no consent, approval, authorization or
other order of, or registration, qualification or filing with, any
regulatory body, administrative agency, or other governmental body in the
United States or any other person is required for the execution and
delivery of this Agreement and the valid issuance and sale of the
CUSIP 225235209 SCHEDULE 13D Page 28 of 51
Securities to be sold and issued pursuant to this Agreement, other than
such as have been made or obtained, and except for any post-closing
securities filings or notifications required to be made under federal or
state securities laws and applicable rules of the National Association of
Securities Dealers, Inc.
1.4 Transfer Taxes. All stock transfer or other taxes (other than income
taxes) which are required to be paid in connection with the sale and
transfer of the Securities to be sold to the Purchaser hereunder will be,
or will have been, fully paid or provided for by the Company and all laws
imposing such taxes will be or will have been fully complied with.
1.5 Private Offering. Assuming the correctness of the representations
and warranties of the Purchasers set forth in this Agreement, the offer
and sale of Securities hereunder is exempt from registration under the
Securities Act. The Company has not in the past nor will it hereafter
take any action to sell, offer for sale or solicit offers to buy any
securities of the Company which would bring the offer, issuance or sale
of the Securities as contemplated by this Agreement, within the
provisions of Section 5 of the Securities Act, unless such offer,
issuance or sale was or shall be within the exemptions of Section 4 of
the Securities Act.
The foregoing representations and warranties are true, complete and
accurate as of the date hereof, shall be true, complete and accurate as
of the date of delivery, if any, of the Securities to the Purchaser and
shall survive for a period of one year after the delivery, if any, of the
Securities. The Company undertakes no duty to update the foregoing
representations and warranties.
IV. Representations, Warranties and Covenants of Purchaser.
The Purchaser hereby represents and warrants to and covenants with
the Company for the Company's benefit with knowledge that the Company is
relying thereon in entering into this Agreement and issuing the
Securities to such Purchaser, as follows:
A. The Purchaser has reviewed the documents filed by the Company
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of its most recently completed fiscal year through
the date hereof, including, without limitation, its most recent reports
on Form 10-KSB, Form 10-QSB and Form 8-K (together with all exhibits
thereto). The Purchaser has been given the opportunity to ask questions
of and to receive answers from the Company concerning the terms and
conditions of the offer and sale of the Securities, and to obtain such
additional written information necessary to verify the accuracy of same
as the Purchaser desires in order to evaluate an investment in the
securities described herein.
B. The Purchaser is an accredited investor as that term is defined
in Rule 501(a) of Regulation D under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), which definition is annexed hereto as
"Exhibit A."
CUSIP 225235209 SCHEDULE 13D Page 29 of 51
C. Immediately prior to the Purchaser's execution of this Agreement,
the Purchaser had such knowledge and experience in financial and business
matters (including experience with investments of a similar nature), that
the Purchaser was capable of evaluating the merits and risks of an
investment in the Securities.
D. The Securities are being acquired solely for the Purchaser's own
account for investment purposes only and not with a view to or for any
resale or distribution thereof or with any present intention of
distributing or selling all or any part of such Securities. The
Purchaser agrees that the Securities may not be transferred except upon
registration under the Securities Act, and under any applicable state
securities or "blue sky" laws, or upon receipt by the Company of evidence
in form and substance reasonably satisfactory to the Company, to the
effect that such transfer may be made without registration under the Act
and applicable state securities or "blue sky" laws.
E. The Purchaser recognizes that the purchase of the Securities is a
speculative investment that involves a high degree of risk and is
suitable only for persons with the financial capability of making and
holding long-term investments not readily reducible to cash. The
Purchaser is aware that there is no guarantee that the Purchaser will
realize any gain from an investment in the Securities. The Purchaser
further understands that the Purchaser could lose the entire amount of
the Purchaser's investment.
F. The Purchaser understands that no U.S. federal or state
securities commission or regulatory authority, or other authority (within
or outside of the United States) has made any finding or determination
regarding the fairness of the offer, sale and/or issuance of the
Securities, has made any recommendation or endorsement of the offer and
sale of the Securities or has passed in any way upon this Agreement.
G. The Purchaser is financially able to bear the economic risk of an
investment in the Securities, including the ability to hold such
Securities indefinitely and to afford a complete loss of his investment
in the Securities.
H. The certificates and/or other documentation evidencing the
Securities will contain a legend substantially as follows:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES, BLUE SKY OR
OTHER APPLICABLE LAWS OF ANY STATE, OR ANY OTHER RELEVANT JURISDICTION,
AND MAY NOT BE OFFERED AND SOLD UNLESS (A) REGISTERED AND/OR QUALIFIED
PURSUANT TO THE RELEVANT PROVISIONS OF U.S. FEDERAL SECURITIES LAWS, THE
SECURITIES, BLUE SKY, OR OTHER APPLICABLE LAWS OF ANY STATE, OR OTHER
RELEVANT JURISDICTION OR (B) EXEMPT FROM SUCH REGISTRATION OR
QUALIFICATION. THEREFORE, NO SALE, PLEDGE OR OTHER TRANSFER OF THIS
SECURITY SHALL BE MADE, NO ATTEMPTED SALE, PLEDGE OR OTHER TRANSFER SHALL
BE VALID, AND THE ISSUER SHALL NOT BE REQUIRED TO GIVE ANY EFFECT TO ANY
SUCH TRANSACTION UNLESS (A) SUCH TRANSACTION SHALL HAVE BEEN DULY
CUSIP 225235209 SCHEDULE 13D Page 30 of 51
REGISTERED UNDER THE SECURITIES ACT AND QUALIFIED OR APPROVED UNDER THE
SECURITIES, BLUE SKY, OR OTHER APPLICABLE LAWS OF ANY STATE, OR OTHER
RELEVANT JURISDICTION, OR (B) THE COMPANY SHALL HAVE BEEN SATISFIED THAT
SUCH REGISTRATION, QUALIFICATION OR APPROVAL IS NOT REQUIRED.
The Purchaser further acknowledges that: (i) any necessary stop
transfer orders will be placed upon the certificates for the Securities
in accordance with the Securities Act, and (ii) the Company is under no
obligation to aid the Purchaser in obtaining an exemption from the
registration requirements of the Securities Act or any jurisdiction.
I. Purchaser understands that the Securities are being offered and
sold to it in reliance on specific exemptions from the registration and
approval requirements of the U.S. federal and state securities laws or
the laws of other applicable jurisdictions and that the Company is
relying upon the truth, completeness and accuracy of the representations,
warranties, agreements, acknowledgments and understandings of Purchaser
set forth herein in order to determine the applicability of such
exemptions and the suitability of Purchaser to acquire the Securities.
J. The execution, delivery and performance by the Purchaser of this
Subscription Agreement are within the powers of the Purchaser, have been
duly authorized and will not constitute or result in a breach or default
under, or conflict with, any order, ruling or regulation of any court or
other tribunal or of any governmental commission or agency, or any
agreement or other undertaking, to which the Purchaser is a party or by
which the Purchaser is bound; and, if the Purchaser is not an individual,
will not violate any provision of the charter documents, bylaws,
indenture of trust, partnership agreement or similar documents, as
applicable, of the Purchaser. The signatures on this Subscription
Agreement are genuine; and the signatory, if the Purchaser is an
individual, has legal competence and capacity to execute the same, or, if
the Purchaser is not an individual, the signatory has been duly
authorized to execute the same; and this Subscription Agreement
constitutes the legal, valid and binding obligation of the Purchaser,
enforceable in accordance with its terms.
K. The type of ownership in which the Purchaser is applying to
purchase Securities is as follows: (Check One)
[ ] INDIVIDUAL OWNERSHIP (One signature required)
[ ] JOINT TENANTS WITH RIGHT OF SURVIVORSHIP (Both parties must
sign)
[ ] TRUST (Please include name of trustee, date trust was formed
and a copy of the Trust Agreement or other authorization)
[ ] CORPORATION (Please include Certified Corporate Resolution
authorizing signature)
[x] PARTNERSHIP (Signature of the authorized general partner is
required)
CUSIP 225235209 SCHEDULE 13D Page 31 of 51
[ ] COMMUNITY PROPERTY (Two signatures required)
[ ] TENANTS-IN-COMMON (Both parties must sign)
[ ] OTHER (Describe)
The foregoing representations and warranties are true, complete and
accurate as of the date hereof, shall be true, complete and accurate as
of the date of delivery of this Subscription Agreement and accompanying
documents to the Company and shall survive the delivery of the
Securities. If, in any respect, those representations and warranties
shall not be true, complete and accurate prior to acceptance or rejection
of this subscription by the Company pursuant to Section II, the
undersigned shall immediately give written notice to the Company
specifying which representations and warranties are not true, complete
and accurate and the reason therefor. The Purchaser agrees that the
foregoing representations and warranties may be used as a defense in any
actions relating to the Company or the offering of the Securities, and
that it is only on the basis of such representations and warranties that
the Company may be willing to accept the Purchaser's subscription for the
Securities.
V. Waiver.
Except as otherwise specifically provided for hereunder, no party
shall be deemed to have waived any of his, her or its rights hereunder
unless such waiver is in writing and signed by the party waiving said
right. Except as otherwise specifically provided for hereunder, no delay
or omission by any party in exercising any right with respect to the
subject matter hereof shall operate as a waiver of such right or of any
such other right. A waiver on any one occasion with respect to the
subject matter hereof shall not be construed as a bar to or waiver of any
right or remedy on any future occasion. All rights and remedies with
respect to the subject matter hereof shall be cumulative and may be
exercised separately or concurrently.
VI. Severability.
If any term, covenant or condition of this Agreement is held to be
invalid, void or otherwise unenforceable by any court of competent
jurisdiction, the remainder of this Agreement shall not be affected
thereby and each term, covenant and condition of this Agreement shall be
valid and enforceable to the fullest extent permitted by law.
VII. Entire Agreement.
Neither the Company nor the Purchaser has made any representations or
warranties with respect to the subject matter hereof not set forth
herein. This Subscription Agreement and the documents and exhibits
referred to herein constitute the entire agreement between the parties
hereto with respect to the subject matter hereof. All understandings and
agreements which heretofore may have existed or did exist between the
parties hereto with respect to the subject matter hereof are superseded
by this Subscription Agreement.
CUSIP 225235209 SCHEDULE 13D Page 32 of 51
VIII. Assignability.
This Subscription Agreement is not transferable or assignable by the
undersigned or any successor thereto. Any attempted assignment will be
void.
IX. Attorney's Fees.
If any action of law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be
entitled to an award of its reasonable attorneys' fees, costs and
disbursements in addition to any other relief to which such party may be
entitled.
X. Amendment; Termination.
This Subscription Agreement may not be changed, modified, extended or
terminated other than by an agreement in writing, signed by the Company
and the Purchaser.
XI. Survival.
The representations and warranties made herein shall survive the
consummation of the transaction contemplated hereby.
XII. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
XIII. Governing Law.
This Subscription Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without
regard to principles of conflicts of laws.
XIV. Confidentiality; Certain Disclosures.
The Company may present this Subscription Agreement to such parties
as its deems advisable if compelled by law or called upon to establish
the availability under any U.S. federal or state securities laws of an
exemption from registration of the Securities or if the contents thereof
are relevant to any issue in any action, suit, or proceeding to which the
Company is a party or by which it is or may be bound.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Purchaser hereby agrees to pay an aggregate of $90,000 as
consideration for the Stock.
CUSIP 225235209 SCHEDULE 13D Page 33 of 51
"Purchaser:" MedCap Master Fund, L.P.
By: MedCap Management & Research LLC
Its: General Partner
By: /s/ C. Fred Toney
---------------------------
Name: C. Fred Toney
Its: Managing Member
Address: 500 Third Street, Suite 535
San Francisco, CA 94107
Telephone: (415) 495-1010
Facsimile: (415) 495-1012
Date: March 13, 2006
Please register the Securities as follows:
-----------------------------------------------
Deliver to (if other than the address above):
-----------------------------------------------
SUBSCRIPTION ACCEPTED AS OF
THE THIRTEENTH DAY OF MARCH, 2006.
Crdentia Corp.,
a Delaware corporation
By: /s/ James J. TerBeest
-------------------------------
Name: James J. TerBeest
Title: Chief Financial Officer
CUSIP 225235209 SCHEDULE 13D Page 34 of 51
EXHIBIT "A"
DEFINITION OF ACCREDITED INVESTOR
Accredited Investor. "Accredited investor" shall mean any person who
comes within any of the following categories, or who the issuer
reasonably believes comes within any of the following categories, at the
time of the sale of the securities to that person:
(1) Any bank as defined in section 3(a)(2) of the Securities Act, or
any savings and loan association or other institution as defined in
section 3(a)(5)(A) of the Securities Act whether acting in its individual
or fiduciary capacity; any broker or dealer registered pursuant to
section 15 of the Securities Exchange Act of 1934; any insurance company
as defined in section 2(13) of the Securities Act; any investment company
registered under the Investment Company Act of 1940 or a business
development company as defined in section 2(a)(48) of that Act; Small
Business Investment Company licensed by the U.S. Small Business
Administration under section 301(c) or (d) of the Small Business
Investment Act of 1958; any plan established and maintained by a state,
its political subdivisions, or any agency or instrumentality of a state
or its political subdivisions, for the benefit of its employees, if such
plan has total assets in excess of $5,000,000; employee benefit plan
within the meaning of the Employee Retirement Income Security Act of 1974
if the investment decision is made by a plan fiduciary, as defined in
section 3(21) of such Act, which is either a bank, savings and loan
association, insurance company, or registered investment adviser, or if
the employee benefit plan has total assets in excess of $5,000,000 or, if
a self-directed plan, with investment decisions made solely by persons
that are accredited investors;
(2) Any private business development company as defined in section
202(a)(22) of the Investment Advisers Act of 1940;
(3) Any organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of $5,000,000;
(4) Any director, executive officer, or general partner of the issuer
of the securities being offered or sold, or any director, executive
officer, or general partner of a general partner of that issuer;
(5) Any natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of his purchase exceeds
$1,000,000;
(6) Any natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that
person's spouse in excess of $300,000 in each of those years and has a
reasonable expectation of reaching the same income level in the current
year;
CUSIP 225235209 SCHEDULE 13D Page 35 of 51
(7) Any trust, with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the securities offered, whose
purchase is directed by a sophisticated person as described in Section
230.506(b)(2)(ii); and
(8) Any entity in which all of the equity owners are accredited
investors.
CUSIP 225235209 SCHEDULE 13D Page 36 of 51
EXHIBIT 13
LETTER DATED MARCH 13, 2006, FROM THE BOARD OF DIRECTORS OF THE
ISSUER TO HOLDERS OF SERIES C AND WARRANTS TO PURCHASE SERIES B-1
AND SERIES C PREFERRED STOCK OF THE ISSUER, IN CONNECTION WITH
THE OFFER TO EXCHANGE SERIES C PREFERRED STOCK AND WARRANTS TO
PURCHASE SERIES B-1 AND SERIES C PREFERRED STOCK IN WHICH THE
ISSUER HAS AGREED TO REGISTER THE SHARES OF COMMON STOCK ISSUED
PURSUANT TO THE EXCHANGE ON A SUITABLE FORM AND SUBSTANTIALLY IN
COMPLIANCE WITH THE EXISTING REGISTRATION RIGHTS AGREEMENT
COVERING THE SERIES C STOCK AND SERIES C WARRANTS WITHIN 60 DAYS
OF THE COMPLETION OF THE EXCHANGE OFFER AND TO REIMBURSE MEDCAP
FOR CERTAIN LEGAL EXPENSES INCURRED IN CONNECTION WITH THE
EXCHANGE OFFER
TO: Holders of Series C and Warrants to Purchase Series B-1 and
Series C Preferred Stock of Crdentia Corp.
FROM: The Board of Directors of Crdentia Corp.
DATE: March 13, 2006
SUBJECT: Offer to Exchange Series C Preferred Stock and
Warrants to Purchase Series B-1 and Series C
Preferred Stock
We are pleased to inform you that an independent Special Committee of
the Board of Directors (the "Special Committee") of Crdentia Corp. (the
"Company") has approved the exchange of the Company's outstanding Series
C Preferred Stock ("Series C Stock") and warrants to purchase Series C
Stock ("Series C Warrants") and Series B-1 Preferred Stock ("Series B-1
Warrants", together with the Series C Warrants, the "Warrants") for
unregistered shares of Common Stock (the "Exchange Offer").
Under the terms of the Exchange Offer, holders of Series C Stock will
receive 500 shares of Common Stock for each outstanding share of Series C
Stock. Holders of Warrants will receive 85 shares of Common Stock for
each share of Series B-1 Preferred Stock ("Series B-1 Stock") or Series C
Stock covered by the Warrants.
Through this memorandum, the Company is taking the opportunity to (A)
describe the terms of the Exchange Offer, (B) explain why the Special
Committee considers the Exchange Offer to be in the best interests of the
Company and its stockholders, (C) discuss certain risks associated with
the Exchange Offer and (D) provide instructions to holders regarding how
to participate in the Exchange Offer.
CUSIP 225235209 SCHEDULE 13D Page 37 of 51
(A) Terms of Exchange Offer
On or about March 1, 2006, the Special Committee approved the
Exchange Offer pursuant to which holders of Series C Stock will receive
500 shares of Common Stock for each outstanding share of Series C Stock
and holders of Warrants will receive 85 shares of Common Stock for each
share of Series B-1 Preferred Stock or Series C Stock covered by the
Warrants, in exchange for the cancellation of the Series C Stock and
Warrants.
The terms of the Exchange Offer were negotiated between the Special
Committee and MedCap Partners, L.P. ("MedCap"), the largest holder of
Series C Stock. Both MedCap and James D. Durham, the Company's Chief
Executive Officer and a holder of Series C Stock and Warrants, have
agreed to accept the Exchange Offer. The terms of the Exchange Offer are
voluntary with respect to each holder of Series C Stock and/or Warrants,
but MedCap may elect not to proceed unless all such holders accept the
Exchange Offer.
Under the current terms of the Series C Stock and Series C Warrants,
each share of Series C Stock may be automatically converted to Common
Stock upon the earlier of a qualified underwritten public offering or the
date specified by the written consent or agreement of the holders of a
majority of the then outstanding shares of Series C Stock voting as a
class, at a rate of 100 shares of Common Stock for each share of Series C
Stock. The Series C Warrants are exercisable into Series C Stock, which
can then be converted to Common Stock as indicated above.
Under the current terms of the Series B-1 Stock and Series B-1
Warrants, each share of Series B-1 Stock may be automatically converted
to Common Stock upon the earlier of a qualified underwritten public
offering or the date specified by the written consent or agreement of the
holders of a majority of the then outstanding shares of Series B-1 Stock
voting as a class, at a rate of 100 shares of Common Stock for each share
of Series B-1 Stock. The Series B-1 Warrants are exercisable into Series
B-1 Stock, which can then be converted to Common Stock as indicated
above.
In connection with the Exchange Offer, the Company will effect a 10:1
reverse split of the Company's Common Stock simultaneously with the
closing of the Exchange Offer (the "Reverse Split"). The Company's
stockholders approved the Reverse Split at the Annual Meeting of
Stockholders held on November 8, 2005 and the Company's Board of
Directors approved the Reverse Split on March 1, 2006.
The Company has agreed to register the shares of Common Stock on a
suitable form and substantially in compliance with the existing
Registration Rights Agreement covering the Series C Stock and Series C
Warrants within 60 days of completion of the Exchange Offer. The Company
has also agreed to reimburse MedCap for certain legal expenses incurred
in connection with the Exchange Offer. The Exchange Offer will terminate
if not consummated by May 31, 2006.
CUSIP 225235209 SCHEDULE 13D Page 38 of 51
(B) Consideration By Board of Directors
The Special Committee deems the Exchange Offer and the related
Reverse Split to be in the best long-term interests of the Company and
its stockholders for a number of reasons, including but not limited to
the following:
First, the Exchange Offer eliminates liquidation preferences which
could exceed $92 million (assuming exercise of all Warrants). At current
estimates of the Company's value and as that value may grow in the
foreseeable future, these liquidation preferences mandate the payment of
all proceeds of a sale or liquidation of the Company to the holders of
Series C Stock. Thus, the Special Committee believes that the Exchange
Offer provides immediate and significant value to holders of the
Company's Common Stock.
Second, the Exchange Offer eliminates the "full ratchet" antidilution
protection enjoyed by the holders of Series C Stock and Series B-1 Stock,
which could impose significant and possibly punitive dilution upon the
Company's common stockholders in future financings at a per share
purchase price of less than $0.60.
Third, the Special Committee has determined that the Exchange Offer
will significantly simplify the Company's capital structure. We believe
that our current complex capital structure, which includes the
liquidation preferences and antidilution protections in favor of the
holders of Series B-1 Stock and Series C Stock discussed above, has been
a barrier to attracting new investors and strategic partners. A
simplified capital structure could make the Company's Common Stock more
appealing to new investors and could improve our ability to utilize the
Company's Common Stock as consideration in any future acquisitions.
Fourth, we believe that the Exchange Offer and Reverse Split should
better enable the Company to list its Common Stock on a national stock
exchange such as NASDAQ, thus potentially providing better liquidity for
the Company's stockholders. Regulatory bodies have indicated an
unwillingness to list the Company's Common Stock on a national exchange
with the "overhang" of the Series C Stock and Series B-1 Preferred Stock.
By exchanging shares of Series C and B-1 Stock for Common Stock pursuant
to the Exchange Offer, the Company will improve its shareholders' equity
by eliminating the preferred shares from the Company's balance sheet,
thus putting the Company in a better position to qualify its Common Stock
on a national stock exchange. In addition, the Reverse Split will result
in an increase in the price per share of the Company's Common Stock,
which will also assist the Company in meeting the listing requirements of
a national stock exchange. A listing on a national stock exchange could
improve the liquidity of the Company's Common Stock, making investment in
the Company's Common Stock more appealing to investors.
CUSIP 225235209 SCHEDULE 13D Page 39 of 51
Fifth, the Exchange Offer will provide benefits to participants in
the Company's equity incentive plans, improving the Company's ability to
motivate and reward its employees. Stock options and restricted stock
awards are an important part of the Company's compensation program
because they reward employees' efforts to increase the success and growth
of the Company, align the interests of the employees with those of the
stockholders and motivate the employees to remain employed with the
Company. As a result of the liquidation preferences and antidilution
protections in favor of the holders of Series B-1 Stock and Series C
Stock discussed above, stock options and stock awards have had diminished
value as an incentive to motivate and retain the Company's valuable
employees.
The Special Committee consulted with an investment banker in its
deliberations, but the Company has not received an independent valuation
of, or a fairness opinion with respect to, the Exchange Offer. C. Fred
Toney, a member of our Board of Directors, is the managing member of
MedCap Management & Research LLC, the general partner of MedCap (the
largest holder of Series C Stock and Warrants). Mr. Toney was not a
member of the Special Committee approving the Exchange Offer and, as a
result, did not vote with respect to the Company's approval of the
Exchange Offer.
(C) Risks Associated with the Exchange Offer
Any decision to approve the Conversion associated with the Exchange
Offer involves a number of risks and uncertainties, some of which we have
outlined for you below and others of which are described in the Company's
filings on Forms 10-QSB and 10-KSB with the SEC under the heading "Risk
Factors, "which may be reviewed on the SEC's website at www.sec.gov. You
should carefully review and consider these risks before agreeing to
participate in the Exchange Offer, certain of which principal risks we
have described in further detail below.
Loss of Liquidation Preference. Series C Stock generally has senior
rights, preferences and privileges to all other classes and series of the
Company's capital stock. Such senior rights include a liquidation
preference entitling such holders to receive five (5) times their
original purchase price ($300.00) prior to any distribution of funds to
holders of Series B-1 Stock and Common Stock. Upon completion of the
Exchange Offer, holders of Series C Stock and Series C Warrants would
exchange their Series C Stock and Series C Warrants for Common Stock and
forego their preferences. Holders of shares of Series B-1 Stock are
currently entitled to receive a liquidation preference equal to $60.00
per share for each share of Series B-1 Stock held by them, to be paid
prior and in preference to any payment to the holders of Common Stock.
In connection with the Exchange Offer, holders of Series B-1 Warrants
would exchange their Series B-1 Warrants for Common Stock and forego
their preferences.
CUSIP 225235209 SCHEDULE 13D Page 40 of 51
Loss of Antidilution Protection. Holders of Series C Stock and
Series B-1 Stock currently have "full ratchet" antidilution protection,
which provides significant protection to the holders in future financings
at a per share purchase price of less than $0.60. In connection with the
Exchange Offer, holders of Warrants and Series C Stock would forego this
antidilution protection.
Potential for Future Dilution. The Company will need to raise
additional capital. If we sell additional shares of our Common Stock,
such sales will further dilute the percentage of our equity held by our
existing stockholders. In addition, our recent private placement
financings have involved the issuance of securities at a price per share
that represented a discount to the trading prices listed for our Common
Stock on the Over-the-Counter Bulletin Board, and it is possible that we
will close future private placements involving the issuance of securities
at a discount to prevailing trading prices.
Lack of Liquidity for Company Common Stock. The shares of Common
Stock that will be issued to holders of Series C and Series B-1 Stock and
the Warrants will not be immediately registered under the Securities Act
and will be subject to restrictions on transfer under the Securities Act
in the absence of registration or the availability of a resale exemption,
such as Rule 144(k). As the Company has no obligation to register the
resale of such shares of Common Stock with the U.S. Securities and
Exchange Commission, such holders may be unable to sell all of their
shares of Common Stock at the price or upon such other terms and
conditions as such holders may desire.
(D) Procedures for Exchanging Shares and Warrants
In order to exchange your shares of Series C Stock and/or Warrants
pursuant to the Exchange Offer, holders must complete and deliver the
enclosed Notice of Acceptance of Exchange Offer. In addition, holders of
Series C Stock must (i) deliver their stock certificates representing
shares of Series C Stock and (ii) complete and deliver one completed
Assignment Separate From Certificate (in the form attached to this memo)
for each stock certificate. Holders of Warrants must (i) complete and
deliver the attached Warrant Assignment Form and (ii) deliver the
original executed warrant.
All forms and stock certificates should be delivered to the Company's
corporate counsel, Morrison & Foerster LLP, at 12531 High Bluff Drive,
San Diego, California 92130, Attn: Jeanette V. Filippone. Enclosed for
your convenience is a reusable UPS envelope and pre-addressed UPS
airbill. If you are unable to locate your original stock certificate(s)
or warrant(s), please notify Morrison & Foerster LLP and appropriate
arrangements will be made. Once the above documents are received, you
will be issued stock certificates representing shares of the Company's
Common Stock issued in connection with the Exchange Offer. The Company
has retained Continental Stock Transfer & Trust Company as its transfer
agent for all matters relating to its Common Stock.
CUSIP 225235209 SCHEDULE 13D Page 41 of 51
Should you have any questions on any of the foregoing, please feel
free to contact James TerBeest of the Company at (972) 850-0780 or
Jeanette V. Filippone of Morrison & Foerster LLP at (858) 720-5100.
Thank you for your continued support of the Company.
CUSIP 225235209 SCHEDULE 13D Page 42 of 51
EXHIBIT 14
SUBSCRIPTION AGREEMENT DATED APRIL 3, 2006
BY AND BETWEEN THE ISSUER AND MEDCAP
THIS SUBSCRIPTION AGREEMENT DOES NOT CONSTITUTE AN OFFER OR SOLICITATION
BY ANYONE IN ANY JURISDICTION IN WHICH SUCH AN OFFER OR SOLICITATION IS
NOT AUTHORIZED
CRDENTIA CORP.
SUBSCRIPTION AGREEMENT
I. Subscription.
A. The Undersigned (the "Purchaser"), pursuant to the terms and
conditions of this Subscription Agreement (the "Agreement"), hereby
irrevocably subscribes for the purchase of $349,999.80 of Common Stock
(the "Stock") issued by Crdentia Corp. (the "Company"), at a price per
share of $0.60. The shares of Stock are sometimes referred to herein as
the "Securities." The total aggregate purchase price to be paid by the
Purchaser for the Securities purchased hereunder will be the amount of
$349,999.80 (the "Purchase Price"). The Purchaser hereby agrees to
deliver to the Company an executed copy of this Agreement and the
Purchase Price.
B. The Purchaser agrees that this subscription shall be irrevocable
and shall survive the death or disability of the Purchaser.
C. The executed Agreement will be held for the benefit of the
Purchaser until the subscription is accepted by the Company pursuant to
Section II below. If the subscription is not accepted, the executed
Agreement will be promptly returned to the Purchaser.
D. On the date set forth on the signature page hereto the Purchaser
shall wire to the Company the payment representing the Purchase Price of
the Securities acquired by the Purchaser.
II. Acceptance of Subscription.
The Purchaser acknowledges that the Company has the right to accept
or reject this subscription, in whole or in part, for any reason, and
that this subscription shall be deemed to be accepted by the Company only
when an authorized representative of the Company has executed and
acknowledged this Agreement on the Company's behalf. The subscription
either will be accepted or rejected, or accepted in part and rejected in
part, as promptly as practical after receipt. The Purchaser agrees that
subscriptions need not be accepted in the order they are received by the
Company. Upon rejection of this subscription for any reason, all items
received with this subscription shall be returned to the Purchaser, and
this Subscription Agreement shall be deemed to be null and void and of no
further force or effect. The Purchaser understands and agrees that the
CUSIP 225235209 SCHEDULE 13D Page 43 of 51
acceptance of this subscription by the Company, or a part of this
subscription, will in no way constitute a determination by the Company
that an investment in the Securities is a suitable investment for the
Purchaser.
III. Representations, Warranties and Covenants of the Company.
A. In connection with the execution of this Agreement by the
Purchaser, the Company hereby agrees to the following representations,
warranties and covenants and the Purchaser is entitled to rely on such
representations, warranties and covenants in making any purchase that it
may make of the Stock pursuant to this Agreement.
1.1 Organization. The Company is duly organized and validly existing in
good standing under the laws of the State of Delaware. Each of the
Company and its Subsidiaries (as defined in Rule 405 under the Securities
Act) has full power and authority to own, operate and occupy its
properties and to conduct its business as presently conducted and as
described in the Exchange Act Documents and is registered or qualified to
do business and in good standing in each jurisdiction in which the nature
of the business conducted by it or the location of the properties owned
or leased by it requires such qualification and where the failure to be
so qualified would have a material adverse effect upon the condition
(financial or otherwise), earnings, business or business prospects,
properties or operations of the Company and its Subsidiaries, considered
as one enterprise (a "Material Adverse Effect").
1.2 Due Authorization and Valid Issuance. The Company has all requisite
power and authority to execute, deliver and perform its obligations under
this Agreement, and this Agreement has been duly authorized. This
Agreement has been validly executed and delivered by the Company and
constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as
(A) rights to indemnity and contribution may be limited by court decision
or applicable law, (B) enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' and contracting parties' rights generally and (C)
enforceability may be subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or
at law) or the discretion of the court before which any proceeding is
brought. The Stock being purchased hereunder will, upon issuance and
payment therefor pursuant to the terms hereof, be duly authorized and
validly issued, and the Stock will, upon issuance pursuant to the terms
hereof, be fully paid and nonassessable.
1.3 Non-Contravention. Assuming the correctness of the representations
and warranties of the Purchaser, no consent, approval, authorization or
other order of, or registration, qualification or filing with, any
regulatory body, administrative agency, or other governmental body in the
United States or any other person is required for the execution and
delivery of this Agreement and the valid issuance and sale of the
CUSIP 225235209 SCHEDULE 13D Page 44 of 51
Securities to be sold and issued pursuant to this Agreement, other than
such as have been made or obtained, and except for any post-closing
securities filings or notifications required to be made under federal or
state securities laws and applicable rules of the National Association of
Securities Dealers, Inc.
1.4 Transfer Taxes. All stock transfer or other taxes (other than income
taxes) which are required to be paid in connection with the sale and
transfer of the Securities to be sold to the Purchaser hereunder will be,
or will have been, fully paid or provided for by the Company and all laws
imposing such taxes will be or will have been fully complied with.
1.5 Private Offering. Assuming the correctness of the representations
and warranties of the Purchasers set forth in this Agreement, the offer
and sale of Securities hereunder is exempt from registration under the
Securities Act. The Company has not in the past nor will it hereafter
take any action to sell, offer for sale or solicit offers to buy any
securities of the Company which would bring the offer, issuance or sale
of the Securities as contemplated by this Agreement, within the
provisions of Section 5 of the Securities Act, unless such offer,
issuance or sale was or shall be within the exemptions of Section 4 of
the Securities Act.
The foregoing representations and warranties are true, complete and
accurate as of the date hereof, shall be true, complete and accurate as
of the date of delivery, if any, of the Securities to the Purchaser and
shall survive for a period of one year after the delivery, if any, of the
Securities. The Company undertakes no duty to update the foregoing
representations and warranties.
IV. Representations, Warranties and Covenants of Purchaser.
The Purchaser hereby represents and warrants to and covenants with
the Company for the Company's benefit with knowledge that the Company is
relying thereon in entering into this Agreement and issuing the
Securities to such Purchaser, as follows:
A. The Purchaser has reviewed the documents filed by the Company
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of its most recently completed fiscal year through
the date hereof, including, without limitation, its most recent reports
on Form 10-KSB, Form 10-QSB and Form 8-K (together with all exhibits
thereto). The Purchaser has been given the opportunity to ask questions
of and to receive answers from the Company concerning the terms and
conditions of the offer and sale of the Securities, and to obtain such
additional written information necessary to verify the accuracy of same
as the Purchaser desires in order to evaluate an investment in the
securities described herein.
B. The Purchaser is an accredited investor as that term is defined
in Rule 501(a) of Regulation D under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), which definition is annexed hereto as
"Exhibit A."
CUSIP 225235209 SCHEDULE 13D Page 45 of 51
C. Immediately prior to the Purchaser's execution of this Agreement,
the Purchaser had such knowledge and experience in financial and business
matters (including experience with investments of a similar nature), that
the Purchaser was capable of evaluating the merits and risks of an
investment in the Securities.
D. The Securities are being acquired solely for the Purchaser's own
account for investment purposes only and not with a view to or for any
resale or distribution thereof or with any present intention of
distributing or selling all or any part of such Securities. The
Purchaser agrees that the Securities may not be transferred except upon
registration under the Securities Act, and under any applicable state
securities or "blue sky" laws, or upon receipt by the Company of evidence
in form and substance reasonably satisfactory to the Company, to the
effect that such transfer may be made without registration under the Act
and applicable state securities or "blue sky" laws.
E. The Purchaser recognizes that the purchase of the Securities is a
speculative investment that involves a high degree of risk and is
suitable only for persons with the financial capability of making and
holding long-term investments not readily reducible to cash. The
Purchaser is aware that there is no guarantee that the Purchaser will
realize any gain from an investment in the Securities. The Purchaser
further understands that the Purchaser could lose the entire amount of
the Purchaser's investment.
F. The Purchaser understands that no U.S. federal or state
securities commission or regulatory authority, or other authority (within
or outside of the United States) has made any finding or determination
regarding the fairness of the offer, sale and/or issuance of the
Securities, has made any recommendation or endorsement of the offer and
sale of the Securities or has passed in any way upon this Agreement.
G. The Purchaser is financially able to bear the economic risk of an
investment in the Securities, including the ability to hold such
Securities indefinitely and to afford a complete loss of his investment
in the Securities.
H. The certificates and/or other documentation evidencing the
Securities will contain a legend substantially as follows:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES, BLUE SKY OR
OTHER APPLICABLE LAWS OF ANY STATE, OR ANY OTHER RELEVANT JURISDICTION,
AND MAY NOT BE OFFERED AND SOLD UNLESS (A) REGISTERED AND/OR QUALIFIED
PURSUANT TO THE RELEVANT PROVISIONS OF U.S. FEDERAL SECURITIES LAWS, THE
SECURITIES, BLUE SKY, OR OTHER APPLICABLE LAWS OF ANY STATE, OR OTHER
RELEVANT JURISDICTION OR (B) EXEMPT FROM SUCH REGISTRATION OR
QUALIFICATION. THEREFORE, NO SALE, PLEDGE OR OTHER TRANSFER OF THIS
SECURITY SHALL BE MADE, NO ATTEMPTED SALE, PLEDGE OR OTHER TRANSFER SHALL
BE VALID, AND THE ISSUER SHALL NOT BE REQUIRED TO GIVE ANY EFFECT TO ANY
SUCH TRANSACTION UNLESS (A) SUCH TRANSACTION SHALL HAVE BEEN DULY
CUSIP 225235209 SCHEDULE 13D Page 46 of 51
REGISTERED UNDER THE SECURITIES ACT AND QUALIFIED OR APPROVED UNDER THE
SECURITIES, BLUE SKY, OR OTHER APPLICABLE LAWS OF ANY STATE, OR OTHER
RELEVANT JURISDICTION, OR (B) THE COMPANY SHALL HAVE BEEN SATISFIED THAT
SUCH REGISTRATION, QUALIFICATION OR APPROVAL IS NOT REQUIRED.
The Purchaser further acknowledges that: (i) any necessary stop
transfer orders will be placed upon the certificates for the Securities
in accordance with the Securities Act, and (ii) the Company is under no
obligation to aid the Purchaser in obtaining an exemption from the
registration requirements of the Securities Act or any jurisdiction.
I. Purchaser understands that the Securities are being offered and
sold to it in reliance on specific exemptions from the registration and
approval requirements of the U.S. federal and state securities laws or
the laws of other applicable jurisdictions and that the Company is
relying upon the truth, completeness and accuracy of the representations,
warranties, agreements, acknowledgments and understandings of Purchaser
set forth herein in order to determine the applicability of such
exemptions and the suitability of Purchaser to acquire the Securities.
J. The execution, delivery and performance by the Purchaser of this
Subscription Agreement are within the powers of the Purchaser, have been
duly authorized and will not constitute or result in a breach or default
under, or conflict with, any order, ruling or regulation of any court or
other tribunal or of any governmental commission or agency, or any
agreement or other undertaking, to which the Purchaser is a party or by
which the Purchaser is bound; and, if the Purchaser is not an individual,
will not violate any provision of the charter documents, bylaws,
indenture of trust, partnership agreement or similar documents, as
applicable, of the Purchaser. The signatures on this Subscription
Agreement are genuine; and the signatory, if the Purchaser is an
individual, has legal competence and capacity to execute the same, or, if
the Purchaser is not an individual, the signatory has been duly
authorized to execute the same; and this Subscription Agreement
constitutes the legal, valid and binding obligation of the Purchaser,
enforceable in accordance with its terms.
K. The type of ownership in which the Purchaser is applying to
purchase Securities is as follows: (Check One)
[ ] INDIVIDUAL OWNERSHIP (One signature required)
[ ] JOINT TENANTS WITH RIGHT OF SURVIVORSHIP (Both parties must
sign)
[ ] TRUST (Please include name of trustee, date trust was formed
and a copy of the Trust Agreement or other authorization)
[ ] CORPORATION (Please include Certified Corporate Resolution
authorizing signature)
[x] PARTNERSHIP (Signature of the authorized general partner is
required)
CUSIP 225235209 SCHEDULE 13D Page 47 of 51
[ ] COMMUNITY PROPERTY (Two signatures required)
[ ] TENANTS-IN-COMMON (Both parties must sign)
[ ] OTHER (Describe)
The foregoing representations and warranties are true, complete and
accurate as of the date hereof, shall be true, complete and accurate as
of the date of delivery of this Subscription Agreement and accompanying
documents to the Company and shall survive the delivery of the
Securities. If, in any respect, those representations and warranties
shall not be true, complete and accurate prior to acceptance or rejection
of this subscription by the Company pursuant to Section II, the
undersigned shall immediately give written notice to the Company
specifying which representations and warranties are not true, complete
and accurate and the reason therefor. The Purchaser agrees that the
foregoing representations and warranties may be used as a defense in any
actions relating to the Company or the offering of the Securities, and
that it is only on the basis of such representations and warranties that
the Company may be willing to accept the Purchaser's subscription for the
Securities.
V. Waiver.
Except as otherwise specifically provided for hereunder, no party
shall be deemed to have waived any of his, her or its rights hereunder
unless such waiver is in writing and signed by the party waiving said
right. Except as otherwise specifically provided for hereunder, no delay
or omission by any party in exercising any right with respect to the
subject matter hereof shall operate as a waiver of such right or of any
such other right. A waiver on any one occasion with respect to the
subject matter hereof shall not be construed as a bar to or waiver of any
right or remedy on any future occasion. All rights and remedies with
respect to the subject matter hereof shall be cumulative and may be
exercised separately or concurrently.
VI. Severability.
If any term, covenant or condition of this Agreement is held to be
invalid, void or otherwise unenforceable by any court of competent
jurisdiction, the remainder of this Agreement shall not be affected
thereby and each term, covenant and condition of this Agreement shall be
valid and enforceable to the fullest extent permitted by law.
VII. Entire Agreement.
Neither the Company nor the Purchaser has made any representations or
warranties with respect to the subject matter hereof not set forth
herein. This Subscription Agreement and the documents and exhibits
referred to herein constitute the entire agreement between the parties
hereto with respect to the subject matter hereof. All understandings and
agreements which heretofore may have existed or did exist between the
parties hereto with respect to the subject matter hereof are superseded
by this Subscription Agreement.
CUSIP 225235209 SCHEDULE 13D Page 48 of 51
VIII. Assignability.
This Subscription Agreement is not transferable or assignable by the
undersigned or any successor thereto. Any attempted assignment will be
void.
IX. Attorney's Fees.
If any action of law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be
entitled to an award of its reasonable attorneys' fees, costs and
disbursements in addition to any other relief to which such party may be
entitled.
X. Amendment; Termination.
This Subscription Agreement may not be changed, modified, extended or
terminated other than by an agreement in writing, signed by the Company
and the Purchaser.
XI. Survival.
The representations and warranties made herein shall survive the
consummation of the transaction contemplated hereby.
XII. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
XIII. Governing Law.
This Subscription Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without
regard to principles of conflicts of laws.
XIV. Confidentiality; Certain Disclosures.
The Company may present this Subscription Agreement to such parties
as its deems advisable if compelled by law or called upon to establish
the availability under any U.S. federal or state securities laws of an
exemption from registration of the Securities or if the contents thereof
are relevant to any issue in any action, suit, or proceeding to which the
Company is a party or by which it is or may be bound.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
CUSIP 225235209 SCHEDULE 13D Page 49 of 51
Purchaser hereby agrees to pay an aggregate of $349,999.80 as
consideration for the Stock.
"Purchaser:" MedCap Partners L.P.
By: MedCap Management & Research LLC
Its: General Partner
By: /s/ C. Fred Toney
-----------------------------
Name: C. Fred Toney
Its: Managing Member
Address: 500 Third Street, Suite 535
San Francisco, CA 94107
Telephone: (415) 495-1010
Facsimile: (415) 495-1012
Date: April 3, 2006
Please register the Securities as follows:
---------------------------------------------
Deliver to (if other than the address above):
---------------------------------------------
SUBSCRIPTION ACCEPTED AS OF
THE THIRD DAY OF APRIL, 2006.
Crdentia Corp.,
a Delaware corporation
By: /s/ James J. TerBeest
-------------------------------
Name: James J. TerBeest
Title: Chief Financial Officer
CUSIP 225235209 SCHEDULE 13D Page 50 of 51
EXHIBIT "A"
DEFINITION OF ACCREDITED INVESTOR
Accredited Investor. "Accredited investor" shall mean any person who
comes within any of the following categories, or who the issuer
reasonably believes comes within any of the following categories, at the
time of the sale of the securities to that person:
(1) Any bank as defined in section 3(a)(2) of the Securities Act, or
any savings and loan association or other institution as defined in
section 3(a)(5)(A) of the Securities Act whether acting in its individual
or fiduciary capacity; any broker or dealer registered pursuant to
section 15 of the Securities Exchange Act of 1934; any insurance company
as defined in section 2(13) of the Securities Act; any investment company
registered under the Investment Company Act of 1940 or a business
development company as defined in section 2(a)(48) of that Act; Small
Business Investment Company licensed by the U.S. Small Business
Administration under section 301(c) or (d) of the Small Business
Investment Act of 1958; any plan established and maintained by a state,
its political subdivisions, or any agency or instrumentality of a state
or its political subdivisions, for the benefit of its employees, if such
plan has total assets in excess of $5,000,000; employee benefit plan
within the meaning of the Employee Retirement Income Security Act of 1974
if the investment decision is made by a plan fiduciary, as defined in
section 3(21) of such Act, which is either a bank, savings and loan
association, insurance company, or registered investment adviser, or if
the employee benefit plan has total assets in excess of $5,000,000 or, if
a self-directed plan, with investment decisions made solely by persons
that are accredited investors;
(2) Any private business development company as defined in section
202(a)(22) of the Investment Advisers Act of 1940;
(3) Any organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of $5,000,000;
(4) Any director, executive officer, or general partner of the issuer
of the securities being offered or sold, or any director, executive
officer, or general partner of a general partner of that issuer;
(5) Any natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of his purchase exceeds
$1,000,000;
(6) Any natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that
person's spouse in excess of $300,000 in each of those years and has a
reasonable expectation of reaching the same income level in the current
year;
CUSIP 225235209 SCHEDULE 13D Page 51 of 51
(7) Any trust, with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the securities offered, whose
purchase is directed by a sophisticated person as described in Section
230.506(b)(2)(ii); and
(8) Any entity in which all of the equity owners are accredited
investors.