Exhibit 4.17
Services Agreement
This Services Agreement (the "Agreement") made and entered into this
___ day of October 2003 (the "Effective Date") by and between Cytomedix, Inc.
("Company"), a Delaware corporation, 0000 Xxxxx Xxxxxx Xxxx, Xxxxx X, Xxxxxx
Xxxx, XX 00000, and Xxxxx & Co., 00 Xxxxxxxxxxx Xxxxx, Xxxxx 0000, Xxx Xxxx, XX
00000 (the "Consultant").
WHEREAS the Consultant desires to assist the Company in locating
potential investors to invest in the Company's debt and equity securities during
the Term of this Agreement and identifying market makers who would possibly be
interested in making a market in the Company's common stock ("Services", as
further described in Section 2 hereof);
WHEREAS, the Company desires the Consultant to perform the Services;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties agree as follows:
1. Term. The Consultant shall provide Services to commence on the
Effective Date and continuing until December 31, 2004 (the "Term"), unless
sooner terminated pursuant to the provisions of Section 10 of this Agreement.
2. Services Rendered.
a. During the Term of this Agreement, the Consultant hereby
agrees to provide Services to the Company by locating potential investors in the
Company's debt and equity securities. The Services provided by Consultant shall
be limited to those of a finder and shall not include services customarily
performed by a broker-dealer. As a "finder", the Consultant (i) shall bring
together the Company and investors; (ii) shall not negotiate raising of capital
transactions; (iii) shall not directly solicit purchasers of the Company's
securities; (iv) shall not hold any funds or securities in a capital raising
transaction; (v) may not bind either party to a transaction; (vi) may introduce
the Company to broker-dealers without registering as a broker-dealer; (vii) may
only distribute offering materials or pre-offering materials to prospective
offerees where a substantial and pre-existing relationship establishing
"sophisticated" or "accredited investor" status is in place; and (viii) may give
the investor information about the Company, but not about the Company's
securities. The compensation due to Consultant is not based on a specified
percentage of any actual or proposed funds raised. Consultant further agrees not
to engage in any form of general solicitation or advertising as such terms are
defined by Rule 502(c) of Regulation D promulgated under the Securities Act of
1933.
b. During the Term, the Consultant shall be reasonably and
fully accessible to the Company during normal business hours and provide
Services as reasonably requested by the Company. The Consultant shall have the
right to perform services to parties other than the Company; provided, however,
that the Consultant shall not provide services to any other person or entity
which competes with the Company's business. The Consultant acknowledges that it
is obligated by this Agreement to perform the Services for the Company during
the Term of this Agreement without any compensation in addition to that
described in Section 4 hereof.
3. Oversight. The Consultant shall provide Services to the Company and
shall work directly with the Company's management; provided, however, that the
Consultant shall be supervised by and shall report directly to Ms. Xxxxxx Xxxxx
or such other representative so designated by the Company's Board of Directors.
4. Compensation. As compensation for providing the Services to the
Company, the Consultant will receive warrants, upon the approval by the
Company's Board of Directors of a resolution authorizing the issuance of such
warrants, representing the right to purchase an aggregate of one hundred
thousand (100,000) shares of common stock (the "Warrants") exercisable pursuant
to Schedule A attached hereto and incorporated herein. Consultant shall have
registration rights for the shares of common stock issued upon exercise of the
Warrants as provided in the Registration Rights Agreement attached hereto as
Exhibit B and incorporated herein.
5. Expenses. The Company will reimburse Consultant for reasonable
out-of-pocket expenses the Consultant incurs in connection with providing
Services only if Consultant has received prior written approval from the Company
of said expenses.
6. Status. The Consultant is an independent contractor, and not an
agent, employee, or partner of the Company or any of its affiliates for any
purpose whatsoever. The Consultant will have no authority to, and agrees not to,
assume or create any obligation or liability, express or implied, on behalf of
the Company or any of its affiliates, or bind the Company or any of its
affiliates in any manner or to anything whatsoever. Except as otherwise provided
herein, the Consultant agrees to be liable for and to pay its own expenses.
7. Representation. The Consultant hereby represents and warrants to the
Company that its execution, delivery and performance of this Agreement, and the
consummation of the transactions contemplated hereby does not and will not
conflict with, contravene or result in a violation or breach of or default under
(with or without the giving of notice or the lapse of time or both), any
contract, agreement or understanding to which the Consultant is a party or by
which the Consultant is or may be bound, including without limitation, any
non-competition or similar agreement. The Company acknowledges that it has been
given notice by Consultant that Consultant is not a licensed securities
broker-dealer and that Consultant therefore is not required under this Agreement
or any oral or written side agreement to sell securities on behalf of the
Company or any issuer affiliated with the Company. Moreover, the Company
acknowledges that Consultant does not intend to negotiate raising of capital
transactions, does not intend to directly solicit purchasers of the Company's
common stock, and will not hold any funds or securities in a capital raising
transaction; the compensation due to Consultant is not based on a specified
percentage of any actual or proposed funds raised. The parties specifically
acknowledge that Consultant has advised the Company that it is not a duly
licensed securities broker-dealer or member investment banking firm, that
Consultant does not act as a placement agent or underwriter for securities,
and/or that Consultant does not sell any securities. The Company acknowledges
that Consultant has informed it that neither Consultant nor any of its members
or employees provides any legal advice or counsel. Consultant's duties shall not
include auditing, valuation, accounting, computer network design or appraisal
services, all of which shall be procured by the Company at its own expense.
8. Confidential Information. The Consultant agrees that all matters
concerning the Company, any affiliate of the Company, or any business partner of
the Company will be treated by the Consultant as Confidential Information and
held in strict confidence both during and after the Term. "Confidential
Information" means all information relating to the Company's business or
operations, including but not limited to, client and supplier lists, data,
marketing plans, projections, strategies, unpublished financial information,
trade secrets, or discoveries. The provisions of this Section 8 shall survive
the termination or expiration of this Agreement.
9. Termination.
(a) The Consultant or the Company may terminate this Agreement
due to a material breach hereof after written notice of the alleged breach to
the other party and a fifteen (15) day opportunity to cure has been given. If
the breach is not cured, the termination becomes effective on the date the cure
period has ended.
(b) In the event of termination, the Company shall pay the
Consultant for the expense reimbursement due and payable through the date of
termination.
10. Execution of Agreement. The Consultant agrees to be bound by the
terms of this Agreement upon its execution of this Agreement and acknowledges
that the Company shall be bound by the terms of this Agreement only upon its
execution of this Agreement after the approval of a resolution authorizing the
Company to enter into this Agreement by the Board of Directors of the Company.
11. Miscellaneous. This Agreement contains the entire agreement between
the Consultant and the Company concerning the subject matter hereof. No
amendment, modification or discharge of this Agreement, and no waiver hereunder,
shall be valid or binding unless set forth in writing and signed by both
parties. This Agreement shall be governed by and construed in accordance with
the laws of the State of Arkansas, without giving effect to its conflict of laws
principles or rules to the extent that the application of the law of another
jurisdiction would be required thereby.
12. Counterparts; Headings. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument. The headings contained in this
Agreement are for purposes of convenience only and shall not affect the meaning
or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
CYTOMEDIX, INC. XXXXX & CO.
By: ______________________________ By:_____________________________
Xxxx X. Xxxxx, Chief Executive Officer Xxxx X. Xxxxx, ______________
