COMMON STOCK WARRANT For the Purchase of Shares of Common Stock of CYTOMEDIX, INC. August 18, 2004
THIS
WARRANT AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”),
OR UNDER ANY APPLICABLE STATE SECURITIES LAWS. ALL SUCH SECURITIES ARE SUBJECT
TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE OFFERED FOR SALE,
SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED (A
“TRANSFER”)
WITHOUT REGISTRATION UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS
OR
WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION
IS NOT REQUIRED BECAUSE THE TRANSFER IS EXEMPT FROM REGISTRATION OR THE TRANSFER
MAY BE MADE PURSUANT TO RULE 144 OR RULE 144A UNDER THE ACT. INVESTORS
SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS
INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
COMMON
STOCK WARRANT
For
the Purchase of Shares of Common Stock
of
CYTOMEDIX,
INC.
August
18, 2004
THIS
CERTIFIES THAT, Xxxxx & Company, for value received, and its successors and
assigns (collectively, “Warrantholder”),
is
entitled to subscribe for and purchase, subject to the terms hereof, from
Cytomedix, Inc., a Delaware corporation (the “Company”),
TWELVE THOUSAND (12,000) fully-paid and non-assessable shares (the “Shares”)
of the
Company’s Common Stock, par value $0.0001 per share (“Common
Stock”),
at a
price per share equal to $1.24 (the
“Warrant
Exercise Price”)
which
is the closing price of the Common Stock on August 12, 2004, such price and
such
number of shares being subject to adjustment upon the occurrence of the
contingencies set forth in this Warrant.
This
Warrant is granted in connection with the Letter Agreement, dated May
7, 2004,
by and
between the Company and Warrantholder (the “Letter
Agreement”).
1. Term.
Except
as otherwise provided for herein, the TWELVE THOUSAND (12,000) Shares
represented by this Warrant shall be exercisable, in whole or in part, at any
time and from time to time, after the original issuance date of this Warrant
and
ending at 5:00 p.m., central standard time, on the fifth anniversary of the
original issuance date of this Warrant (the “Expiration
Date”).
2. Number
of Shares; Vesting of Shares.
Subject
to the terms and conditions set forth herein, including the Expiration Date,
the
Warrantholder is entitled, upon surrender of this Warrant and payment of the
Warrant Exercise Price, to purchase from the Company the Shares represented
by
this Warrant as follows: 2,000 Shares represented by this Warrant will become
fully vested and immediately exercisable on May 31, 2004; 2,000 Shares
represented by this Warrant will become fully vested and immediately exercisable
on June 30, 2004; 2,000 Shares represented by this Warrant will become fully
vested and immediately exercisable on July 31, 2004; 2,000 Shares represented
by
this Warrant will become fully vested and immediately exercisable on August
31,
2004; 2,000 Shares represented by this Warrant will become fully vested and
immediately exercisable on September 30, 2004; and 2,000 Shares represented
by
this Warrant will become fully vested and immediately exercisable on October
31,
2004. Such numbers of Shares are subject to adjustment upon the occurrence
of
the contingencies set forth in this Warrant.
1
3. Method
of Exercise; Payment; Issuance of New Warrant.
The
purchase right represented by this Warrant may be exercised by the holder
hereof, in whole or in part and from time to time, by the surrender of this
Warrant (together with the notice of exercise form attached hereto as
Exhibit A,
duly
executed) at the principal office of the Company and by the payment to the
Company, by check or bank draft, of an amount equal to the then applicable
Warrant Exercise Price per share multiplied by the number of Shares then being
purchased. The person or persons in whose name(s) any certificate(s)
representing the Shares shall be issuable upon exercise of this Warrant shall
be
deemed to have become the holder(s) of record of, and shall be treated for
all
purposes as the record holder(s) of, the Shares represented thereby (and such
Shares shall be deemed to have been issued) immediately prior to the close
of
business on the date or dates upon which this Warrant is exercised. In the
event
of any exercise of the rights represented by this Warrant, certificates for
the
Shares of stock so purchased shall be delivered to the holder hereof as soon
as
possible and in any event within 30 days of receipt of such notice and, unless
this Warrant has been fully exercised or expired, a new Warrant representing
the
portion of the Shares, if any, with respect to which this Warrant shall not
then
have been exercised shall also be issued to the holder hereof as soon as
possible and in any event within such 30-day period.
4. Stock
Fully Paid; Reservation of Shares.
All
Shares that may be issued upon the exercise of the rights represented by this
Warrant shall, upon issuance, be fully paid and nonassessable, and free from
all
taxes, liens and charges with respect to the issue thereof. During the period
within which the rights represented by the Warrant may be exercised, the Company
shall at all times have authorized and reserved for the purpose of issuance
upon
exercise of the purchase rights evidenced by this Warrant, a sufficient number
of shares of its Common Stock to provide for the exercise of the rights
represented by this Warrant.
5. Adjustment
of Warrant Exercise Price and Number of Shares.
The
number and kind of securities purchasable upon the exercise of the Warrant
and
the Warrant Exercise Price shall be subject to adjustment from time to time
upon
the occurrence of certain events, as follows:
(a) Reclassification
or Merger.
In case
of any reclassification, change or conversion of securities of the class
issuable upon exercise of this Warrant (other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), or in case of any merger of the Company
with or into another corporation (other than a merger with another corporation
in which the Company is a continuing corporation and which does not result
in
any reclassification or change of outstanding securities issuable upon exercise
of this Warrant), or in case of any sale of all or substantially all of the
assets of the Company, the Company, or such successor or purchasing corporation,
as the case may be, shall execute a new Warrant (in form and substance
satisfactory to the Warrantholder) providing that the holder of this Warrant
shall have the right to exercise such new Warrant and upon such exercise to
receive, the kind and amount of shares of stock, other securities, money and
property receivable upon such reclassification, change or merger by a holder
of
one share of Common Stock. Such new Warrant shall provide for adjustments that
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Section 5, and appropriate adjustments shall be made to the purchase
price per share payable hereunder, provided the aggregate purchase price shall
remain the same. The provisions of this subsection (a) shall similarly apply
to
successive reclassification, changes, mergers and transfers.
2
(b) Subdivisions
or Combination of Shares.
If the
Company at any time while this Warrant remains outstanding and unexpired shall
subdivide or combine its Common Stock, the Warrant Exercise Price and the number
of shares of Common Stock issuable upon exercise hereof shall be proportionately
adjusted such that the aggregate exercise price of this Warrant shall at all
times remains equal. Any adjustments under this subsection (b) shall become
effective at the close of business on the date the subdivision or combination
becomes effective.
(c) Stock
Dividends.
If the
Company at any time while this Warrant is outstanding and unexpired shall pay
a
dividend payable in shares of Common Stock (except any distribution specifically
provided for in the foregoing subsections (a) and (b)), then the Warrant
Exercise Price shall be adjusted, from and after the date of determination
of
shareholders entitled to receive such dividend or distribution, to that price
determined by multiplying the Warrant Exercise Price in effect immediately
prior
to such date of determination by a fraction, (i) the numerator of which shall
be
the total number of shares of Common Stock outstanding immediately prior to
such
dividend or distribution and (ii) the denominator of which shall be the total
number of shares of Common Stock outstanding immediately after such dividend
or
distribution and the number of shares of Common Stock subject to this Warrant
shall be proportionately adjusted. Any adjustment under this subsection (c)
shall become effective as of the record date of such dividend, or in the event
that no record date is fixed, upon the making of such dividend.
(d) No
Impairment.
The
Company will not, by amendment of its Articles of Incorporation (as amended,
restated, supplemented or otherwise modified from time) or through any
reorganization, recapitalization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid
or
seek to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Company, but will at all times in good faith
assist in the carrying out of all the provisions of this Section 5 and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the holder of this Warrant against impairment.
6. Notice
of Adjustments.
Whenever
the Warrant Exercise Price shall be adjusted pursuant to the provisions hereof,
the Company shall within 10 days of such adjustment deliver a certificate signed
by its chief executive officer or chief financial officer to the registered
holder(s) hereof setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated and the Warrant Exercise Price after giving effect to such
adjustment.
3
7. Fractional
Shares.
No
fractional shares will be issued in connection with any exercise hereunder,
but
in lieu of such fractional shares the Company shall make a cash payment therefor
upon the basis of the Warrant Exercise Price then in effect.
8. Transfers
and Exchanges.
This
Warrant may be transferred upon the prior written consent of the Company, which
consent shall not be unreasonably withheld, provided
that no
such consent shall be required for the transfer of this Warrant by operation
of
law.
9. Rights
as Shareholders.
No
holder of this Warrant, as such, shall be entitled to vote or receive dividends
or be deemed the holder of Common Stock, nor shall anything contained herein
be
construed to confer upon the holder of this Warrant, as such, any of the rights
of a shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to receive notice of meetings, or to receive dividends or subscription rights
or otherwise until this Warrant shall have been exercised and the shares of
Common Stock purchasable upon the exercise hereof shall have become deliverable,
as provided herein. However, nothing in this Section 9 shall limit the right
of
the Warrantholder to be provided the notices required under this
Warrant.
10. Modification
and Waiver.
Any term
of this Warrant may be amended and the observance of any term of this Warrant
may be waived (either generally or in a particular instance and either
retroactively or prospectively), with the written consent of the Company and
the
holders of a majority of shares of Common Stock issued or issuable upon exercise
of this Warrant. Any waiver or amendment effected in accordance with this
Section shall be binding upon each holder of any Shares issuable upon exercise
of this Warrant.
11. Notices.
Any
notice, request or other document required or permitted to be given or delivered
to the holder hereof or the Company shall be delivered, or shall be sent by
certified or registered mail, postage prepaid, to each such holder at his,
her
or its address as shown on the books of the Company or to the Company at the
address indicated on the signature page of this Warrant.
12. Assumption
of Warrant.
If at
any time, while this Warrant, or any portion thereof, is outstanding and
unexpired there shall be (i) an acquisition of the Company by another entity
by
means of a merger, consolidation or other transaction or series of related
transactions resulting in the exchange of the outstanding shares of the
Company’s capital stock such that shareholders of the Company prior to such
transaction own, directly or indirectly, less than 50% of the voting power
of
the surviving entity or (ii) a sale or transfer of all or substantially all
of
the Company’s assets to any other person, then, as a part of such acquisition,
sale or transfer, lawful provision shall be made so that the Warrantholder
shall
thereafter be entitled to receive upon exercise of this Warrant, during the
period specified herein and upon payment of the Warrant Exercise Price then
in
effect, the number of shares of stock or other securities or property of the
successor corporation resulting from such acquisition, sale or transfer which
a
holder of the shares deliverable upon exercise of this Warrant would have been
entitled to receive in such acquisition, sale or transfer if this Warrant had
been exercised immediately before such acquisition, sale or transfer, all
subject to further adjustment as provided in this Section 12; and in any such
case, appropriate adjustment (as determined in good faith by the Company’s Board
of Directors) shall be made in the application of the provisions herein set
forth with respect to the rights and interests thereafter of the Warrantholder
to the end that the provisions set forth herein (including provisions with
respect to changes in and other adjustments of the number of Shares of the
Warrantholder is entitled to purchase) shall thereafter by applicable, as nearly
as possible, in relation to any shares of Common Stock or other securities
or
other property thereafter deliverable upon the exercise of this
Warrant.
4
13. Binding
Effect on Successors.
This
Warrant shall be binding upon any corporation succeeding the Company by merger,
consolidation or acquisition of all or substantially all of the Company’s
assets, and all of the obligations of the Company relating to the Common Stock
issuable upon the exercise of this Warrant shall survive the exercise and
termination of this Warrant and all of the covenants and agreements of the
Company shall inure to the benefit of the successors and assigns of the
Warrantholder. The Company will, at the time of the exercise of this Warrant,
in
whole or in part, upon request of the Warrantholder but at the Company’s
expense, acknowledge in writing its continuing obligation to the Warrantholder
in respect of any rights to which the Warrantholder shall continue to be
entitled after such exercise in accordance with this Warrant; provided,
that
the failure of the Warrantholder to make any such request shall not affect
the
continuing obligation of the Company to the Warrantholder in respect of such
rights.
14. Lost
Warrants or Stock Certificates.
The
Company covenants to the holder hereof that upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant or any stock certificate and, in the case of any such loss, theft
or destruction, upon receipt of an indemnity reasonably satisfactory to the
Company, or in the case of any such mutilation upon surrender and cancellation
of such Warrant or stock certificate, the Company will make and deliver a new
Warrant or stock certificate, or like tenor, in lieu of the lost, stolen,
destroyed or mutilated Warrant or stock certificate.
15. Legend
on Warrant Shares.
The
certificates representing the Warrant Shares shall bear a legend substantially
similar to the following:
THE
SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF
1933 OR THE SECURITIES LAW OF ANY STATE AND ARE BEING OFFERED AND SOLD IN
RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT
OF 1933 AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE SECURITIES ACT OF 1933 AND SUCH LAWS PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM.
16. Descriptive
Headings.
The
descriptive headings of the several sections of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant.
5
17. Governing
Law.
This
Warrant shall be construed and enforced in accordance with, and the rights
of
the parties shall be governed by, the laws of the State of Arkansas.
18. Counterparts.
This
Common Stock Warrant may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument.
IN
WITNESS WHEREOF, this Common Stock Warrant is executed effective as of the
date
first above written.
| CYTOMEDIX, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxx | |
|
Address:
0000
Xxxxx Xxxxxx Xx., Xxxxx X
Xxxxxx
Xxxx, Xxxxxxxx 00000
|
||
|
Accepted
and Agreed:
XXXXX
& COMPANY
|
||
| |
|
|
| /s/ Xxxx Xxxxx | ||
|
Xxxx Xxxxx, President
|
||
|
Address:
00000
Xxxx Xxxxxxx Xxxx.
Xxxxx
000-X
Xxx
Xxxxxxx, XX 00000
|
||
6
EXHIBIT
A
NOTICE
OF EXERCISE
To:
_____________________
_____________________
_____________________
Attn:
___________________
1. The
undersigned hereby elects to purchase ___________ shares of Common Stock of
Cytomedix, Inc. pursuant to the terms of the attached Warrant, and tenders
herewith payment of the purchase price of such shares in full in the amount
of
___________ by wire transfer or by certified or bank check.
2. Please
issue a certificate or certificates representing said shares in the name of
the
undersigned or in such other name or names as are specified below
Name:
__________________________________
Address:
________________________________
________________________________
________________________________
|
(Date) |
(Signature) |
||
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