SHAREHOLDERS AGREEMENT
This
SHAREHOLDERS AGREEMENT (“Agreement”) executed as of August 2, 2007 (“Effective
Date”), between Cytomedix, Inc., a Delaware corporation ("Cytomedix"), Fitch,
Even, Tabin & Xxxxxxxx ("Xxxxx, Even"), and The Xxxxxxx Law Firm
("Xxxxxxx"), who are all hereinafter collectively referred to as the
“Parties.”
WITNESSETH
WHEREAS,
the
Parties entered into an Amended and Restated Retainer Agreement (“Retainer
Agreement”) effective as of July 29, 2003, governing the terms of Fitch, Even
and Xxxxxxx’x legal representation of Cytomedix, including, without limitation,
the scope and nature of the legal representation and the fee agreement for
such
services; and
WHEREAS,
the
Parties entered into a Term Sheet Agreement (“Term Sheet”) effective as of
August 2, 2007, which provides for certain consideration to be exchanged between
the Parties in return for an amendment to the Retainer Agreement and the agreed
upon liquidation of contingent fees due Fitch, Even and Xxxxxxx under the
Retainer Agreement; and
WHEREAS,
as
provided in the Term Sheet, the Parties have agreed to the terms of the binding,
final agreed-upon terms to be incorporated into the definitive agreements
summarized in the Term Sheet.
NOW,
THEREFORE,
in
consideration of the mutual terms, promises, agreements, and conditions herein,
the receipt and adequacy of which are hereby acknowledged, the Parties
acknowledge and agree as follows:
1. Incorporation
of Recitals and Exhibits.
All
recitals set forth in this Agreement and the exhibits attached to this Agreement
are contractual and are not merely recitals of fact.
2. Release
of Claims and Interests under Retainer Agreement.
No later
than five business days after the execution of this Agreement, Cytomedix shall
pay to Fitch, Even and Xxxxxxx the total sum of Ninety Thousand U.S. Dollars
($90,000) (the “Payment”), representing the agreed upon liquidation amount of
contingent fees accrued and owed by Cytomedix pursuant to the Retainer Agreement
through June 30, 2007. Upon receipt of the Payment, Fitch, Even and Xxxxxxx
and
any of their past, present, or future affiliates, partners, joint venturers,
stockholders, members, predecessors, successors, assigns, officers, directors,
employees, agents, representatives, independent contractors, attorneys, and
any
other person, firm, corporation or limited liability company with whom Fitch,
Even and Xxxxxxx are now or may hereafter be affiliated, hereby waive and
release any and all claims, interests and causes of action, whether known or
unknown, under the Retainer Agreement, including without limitation any interest
in all amounts due and payable to Cytomedix before or after June 30, 2007,
and
any and all interest in past or future revenue generated from licensing
agreements or sales of Cytomedix’s products. Notwithstanding the foregoing,
Xxxxxxx shall retain, and does not waive, its interest in royalties received
from Medtronic, Inc. pursuant to a separate retainer agreement among Cytomedix,
Xxxxxxx and Fish & Xxxxxxxxxx.
3. Issuance
of Shares of Common Stock.
Cytomedix shall issue to Fitch, Even and Xxxxxxx a total of One Million Three
Hundred Thousand (1,300,000) shares of Cytomedix common stock (“Shares”).
The Shares shall be prorated between the firms according to their respective
Lodestar Percentage as calculated according to Exhibit C of the Retainer
Agreement. Cytomedix shall issue the Shares within ten (10) business days after
receiving all necessary authorizations, including that from the American Stock
Exchange, and after it has received lists from Fitch, Even and Xxxxxxx
containing the identity of, and number of Shares to be issued to, each of their
respective distributees.
4. Issuance
of Warrants.
Cytomedix shall issue to Fitch, Even and Xxxxxxx a total of Nine Hundred Seventy
Five Thousand warrants to purchase shares of Cytomedix common stock
(“Warrants”). The strike price on the Warrants will
be
as
follows: 325,000 at
$1.25
(Group A); 325,000 at $1.50
(Group
B); and 325,000 at $1.75 (Group C). The form of the Warrants are attached to
this Agreement as Exhibit A (Group A), Exhibit B (Group B) and Exhibit C (Group
C). Cytomedix shall issue the Warrants within ten (10) business days after
receiving all necessary authorizations, including that from the American Stock
Exchange, and after it has received lists from Fitch, Even and Xxxxxxx
containing the identity of, and number and type of Warrants to be issued to,
each of their respective distributees.
5. Restrictions
on Shares and Warrants. The
Shares and the shares of Cytomedix common stock issuable upon exercise of the
Warrants (“Warrant Shares”) are subject to the following
restrictions:
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a.)
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During
the period from the Effective Date until the date the Registration
Statement (as defined in the Registration Rights Agreement between
the
Parties effective as of August 2, 2007) is declared effective, no
Registered Securities may be publicly
sold.
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b.)
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Beginning
on the date the Registration Statement is declared effective, Fitch,
Even
and Xxxxxxx may publicly sell, or may exercise and publicly
sell:
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25%
of
the Shares
25%
of
the Warrant Shares
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c.)
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In
or after the first fiscal quarter following the end of the fiscal
quarter
in which the Registration Statement is declared effective, Fitch,
Even and
Xxxxxxx may publicly sell, or may exercise and publicly
sell:
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25%
of
the Shares
25%
of
the Warrant Shares
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d.)
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In
or after the second fiscal quarter following the end of the fiscal
quarter
in which the Registration Statement is declared effective, Fitch,
Even and
Xxxxxxx may publicly sell, or may exercise and publicly
sell:
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25%
of
the Shares
25%
of
the Warrant Shares
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e.)
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In
or after the third fiscal quarter following the end of the fiscal
quarter
in which the Registration Statement is declared effective, Fitch,
Even and
Xxxxxxx may publicly sell, or may exercise and publicly
sell:
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25%
of
the Shares
25%
of
the Warrant Shares
f.) Notwithstanding
the foregoing, Fitch, Even and Xxxxxxx shall have the right to distribute the
Registered Securities a among partners and other lawyers of their respective
firms; however, any such distributees shall take such Registered Securities
subject to the restrictions contained in this Agreement and in the Registration
Rights Agreement. Nothing herein shall restrict Fitch, Even, Xxxxxxx, or their
distributees from exercising the Warrants while the underlying Warrant Shares
are subject to the foregoing restrictions on public resale.
6. Distributee
Information. Within
five business days of the execution of this Agreement, Fitch, Even and Xxxxxxx
hereby agree to provide Cytomedix with documents stating the identity of, and
the amounts of Shares and Warrants to be issued to, their respective
distributees.
7. Indemnification. Fitch,
Even and Xxxxxxx hereby agree to indemnify and hold Cytomedix harmless from
any
and all claims or liability arising out of information provided to Cytomedix
by
Fitch, Even and Xxxxxxx, including, but not limited to, any information provided
pursuant to Paragraph 6 above and any information provided pursuant to the
Registration Rights Agreement.
8. Confidentiality. All
financial terms of this Agreement and any other agreement between the Parties
shall be kept confidential and will not, without the prior written consent
of
all Parties, be disclosed by the Parties, their officers, directors, partners,
attorneys, employees, agents, shareholders, independent contractors, joint
venturers or other affiliated or related persons, entities or representatives,
in any manner whatsoever, unless required for a legitimate business purpose
or
pursuant to a binding legal requirement of disclosure.
9. Expenses.
The
Parties shall each pay their own expenses incident to the preparation, execution
and delivery of this Agreement and the consummation of the transactions
described herein or undertaken in connection herewith, including, but not
limited to, all attorneys’ fees, accountants and other professional fees and
expenses.
10. Heirs,
Successors and Assigns.
All
covenants, agreements, representations and warranties of the Parties contained
herein shall be binding upon and inure to the benefit of the Parties and their
respective heirs, successors and assigns.
11. Amendments.
This
Agreement may only be amended by a written agreement signed by all of the
Parties hereto.
12. Additional
Documents.
Each of
the Parties agrees to cooperate fully in the effectuation of the transactions
contemplated hereby and to execute and obtain and deliver any and all additional
documents or take such additional action as shall be reasonably necessary or
appropriate for such purpose.
13. Counterparts.
For the
convenience of the Parties, this Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original.
14. Headings.
Headings in this Agreement are for convenience only and shall not be used to
interpret or construe its provisions.
15. Assignment. This
Agreement shall not be assigned by any Party without the prior written consent
of all other Parties.
16. Governing
Law and Venue.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware. With regard to any dispute in connection with this Agreement,
the parties agree to the exclusive jurisdiction and venue of the federal or
state courts sitting in Xxxxxxxxxx County, Maryland.
17. Waiver. Any
failure by any of the Parties hereto to comply with any of the obligations,
agreements or conditions set forth herein may be waived in writing by the other
party or Parties, provided, however, that any such waiver shall not be deemed
a
waiver of any other obligations, agreement or condition contained herein or
a
continuing waiver of such obligation, agreement or condition.
18. Severability.
If any
provision of this Agreement, or the application thereof to any person or
circumstance, shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected thereby,
but
rather shall be enforced to the greatest extent permitted by law.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
date first above written.
| CYTOMEDIX, INC. | ||
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| By: | ||
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Xxxxxxx Xxxxx, Chairman/CEO |
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| FITCH, EVEN, TABIN & XXXXXXXX | ||
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| By: | ||
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000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
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| THE XXXXXXX LAW FIRM | ||
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| By: | ||
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00
Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
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