EXHIBIT 4.21
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated and effective
this ___ day of October, 2003, by and among CYTOMEDIX, INC., a Delaware
corporation, (the "Company"), and IVC Group, 802 Grand Pavilion, P.O. Box 30543
SMB, Grand Cayman, Cayman Islands, British West Indies, together with any
assignee or transferee of all of its respective registration rights hereunder
(the "Investor").
WHEREAS:
A. In connection with the Services Agreement by and among the parties
hereto of even date herewith (the "Services Agreement") and the Warrant
Agreement by and among the parties hereto of even date herewith (the "Warrant
Agreement"), the Company has agreed, upon the terms and subject to the
conditions contained therein, to issue to the Investor shares of the Company's
common stock (the "Common Stock"); and
B. The Company has agreed to provide certain registration rights under the
Securities Act of 1933, as amended, and the rules and regulations thereunder, or
any similar successor statute (collectively, the "1933 Act"), and applicable
state securities laws;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and each of the
Investors hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
(a) "Effective Date" means the effective date of this Agreement;
(b) "Confidential Offering Memorandum" means the Confidential Offering
Memorandum of the Company dated June 4, 2003;
(c) "Investors" includes the Investor and all other initial holders of
Common Stock to be included in a Registration Statement (defined below) and any
transferee or assignee who agrees to become bound by the provisions of the
applicable registration rights agreement;
(d) "Register," "registered," and "registration" refer to a registration
effected by preparing and filing a Registration Statement or Statements in
compliance with the 1933 Act and pursuant to Rule 415 under the 1933 Act or any
successor rule providing for offering securities on a continuous basis ("Rule
415"), and the declaration or ordering of effectiveness of such Registration
Statement by the United States Securities and Exchange Commission (the "SEC");
(e) "Registrable Securities" means the shares of Common Stock offered, sold
and issued pursuant to the Confidential Offering Memorandum and/or any shares
issued pursuant to a Services Agreement (including any shares issuable upon
exercise of warrants) and any shares of Common Stock issued or issuable as a
dividend on or in exchange for or otherwise with respect to any of the
foregoing, provided, that any shares of Common Stock which have been sold
pursuant to a Registration Statement or which may be sold without registration
or restriction (including volume limitations) shall cease to be Registrable
Securities hereunder; and
(f) "Registration Statement" means a registration statement of the Company
under the 1933 Securities Act.
2. PIGGYBACK REGISTRATION.
(a) Following the Effective Date, each time that the Company proposes to
register a public offering solely of its Common Stock, other than pursuant to a
Registration Statement on Form S-4 or Form S-8 or similar or successor forms
(collectively, Excluded Forms), the Company shall promptly give written notice
of such proposed registration to all holders of Registrable Securities, which
shall offer such holders the right to request inclusion of any Registrable
Securities in the proposed Registration Statement.
(b) Each holder of Registrable Securities shall have ten (10) days or such
longer period as shall be set forth in the notice from the receipt of such
notice to deliver to the Company a written request specifying the number of
shares of Registrable Securities such holder intends to sell and the holder's
intended plan of disposition.
(c) In the event that the proposed Registration Statement by the Company
is, in whole or in part, an underwritten public offering of securities of the
Company, any request under Section 2(b) may specify that the Registrable
Securities be included in the underwriting on the same terms and conditions as
the shares of Common Stock, if any, otherwise being sold through underwriters
under such Registration Statement.
(d) Upon receipt of a written request pursuant to Section 2(b), the Company
shall promptly use its best efforts to cause all such Registrable Securities to
be registered, to the extent required to permit sale or disposition as set forth
in the written request.
(e) Notwithstanding the foregoing, if the managing underwriter of an
underwritten public offering, determines and advises in writing that the
inclusion of all Registrable Securities proposed to be included in the
underwritten public offering, together with any other issued and outstanding
shares of Common Stock proposed to be included therein by holders other than the
holders of Registrable Securities (such other shares hereinafter collectively
referred to as the Other Shares), would interfere with the successful marketing
of the securities proposed to be included in the underwritten public offering,
then the number of such shares to be included in such underwritten public
offering shall be reduced, and shares shall be excluded from such underwritten
public offering in a number deemed necessary by such managing underwriter, first
by excluding shares held by the directors, officers, employees and founders of
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the company, and then, to the extent necessary, by excluding Registrable
Securities participating in such underwritten public offering, pro rata based on
the number of shares of Registrable Securities each such holder proposed to
include.
(f) All shares of Common Stock that are not included in the underwritten
public offering shall be withheld from the market by the holders thereof for a
period, not to exceed twelve (12) months following a public offering, that the
managing underwriter reasonably determines as necessary in order to effect the
underwritten public offering. The holders of such Shares shall execute such
documentation as the managing underwriter reasonably requests to evidence this
lock-up.
3. OBLIGATIONS OF THE COMPANY.
If and whenever the Company is under an obligation pursuant to the
provisions of Section 2 to use its best efforts to affect the registration of
any Registrable Securities, the Company shall have the following obligations:
(a) The Company shall prepare and file with the SEC a Registration
Statement with respect to such Registrable Securities, and thereafter use its
best efforts to cause such Registration Statement relating to Registrable
Securities to become effective as soon as possible after such filing. The
Company shall keep the Registration Statement effective pursuant to Rule 415 at
all times until such date as is the earlier of (i) the date on which all of the
Registrable Securities have been sold and (ii) the date on which the Registrable
Securities (in the opinion of counsel to the Company) may be immediately sold to
the public without registration or restriction (including without limitation as
to volume by each holder thereof) under the 1933 Act (the "Registration
Period"). The Registration Statement (including any amendments or supplements
thereto and prospectuses contained therein) shall not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein, or necessary to make the statements therein, in light of the
circumstances, under which they were made, not misleading.
(b) The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the Registration
Statements and the prospectus used in connection with the Registration
Statements as may be necessary to keep the Registration Statements effective at
all times during the Registration Period, and, during such period, comply with
the provisions of the 1933 Act with respect to the disposition of all
Registrable Securities of the Company covered by the Registration Statements
until such time as all such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof as set forth in the Registration Statements.
(c) The Company shall furnish to each Investor whose Registrable Securities
are included in a Registration Statement such number of copies of a prospectus,
including a preliminary prospectus, and all amendments and supplements thereto
and such other documents as such Investor may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such Investor
in accordance with the Registration Statement.
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(d) The Company shall use its best efforts to register or qualify the
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as the Investor reasonably shall request. However, the Company
shall not be obligated, by reason thereof, to qualify as a foreign corporation
or file any general consent to service of process under the laws of any such
jurisdiction or subject itself to taxation as doing business in any such
jurisdiction.
(e) The Company will promptly respond to any and all comments received from
the SEC (which comments shall promptly be made available to the Investors upon
request, unless they relate to information for which the Company has sought
confidential treatment), with a view towards causing the Registration Statement
or any amendment thereto to be declared effective by the SEC as soon as
practicable, shall promptly file an acceleration request as soon as practicable
following the resolution or clearance of all SEC comments or, if applicable,
following notification by the SEC that any such Registration Statement or any
amendment thereto will not be subject to review and shall promptly file with the
SEC a final prospectus as soon as practicable following receipt by the Company
from the SEC of an order declaring the Registration Statement effective.
(f) The Company may enter into an underwriting agreement which shall be
similar in form, scope and substance as is customary in underwritten offerings,
and may take all such other actions in connection therewith in order to expedite
or facilitate the disposition of the Registrable Securities. The Company shall
select the underwriter or underwriters to be engaged and shall designate the
representative, if any, of the underwriters so engaged. In such connection, the
Company shall make such representations and warranties to the underwriters with
respect to the business of the Company, the Registration Statement, the
prospectus and the documents, if any, incorporated or deemed to be incorporated
by reference in the Registration Statement, in each case in form, substance and
scope as are customarily made by issuers to underwriters in underwritten
(initial or secondary, as applicable) offerings and confirm the same if and when
requested. The Company shall also obtain opinions of counsel to the Company and
updates thereof, which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the representative of the underwriters.
(g) The Company shall use its best efforts to prevent the issuance of any
stop order or other suspension of effectiveness of any Registration Statement,
and, if such an order is issued, to obtain the withdrawal of such order at the
earliest possible moment and to notify each Investor who holds Registrable
Securities being sold (or, in the event of an underwritten offering, the
managing underwriters) of the issuance of such order and the resolution thereof.
(h) The Company shall make available for inspection by any Investor or
Investor's counsel, or any underwriter participating in any disposition pursuant
to a Registration Statement (collectively, the "Inspectors") all pertinent
financial and other records, and pertinent corporate documents and properties of
the Company (collectively, the "Records"), as shall be reasonably deemed
necessary by each Inspector to enable each Inspector to exercise its due
diligence responsibility, and cause the Company's officers, directors and
employees to supply all information which any Inspector may reasonably request
for purposes of such due diligence; provided, however, that each Inspector shall
hold in confidence and shall not make any disclosure (except to an Investor) of
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any Record or other information which the Company determines in good faith to be
confidential, and of which determination the Inspectors are so notified, unless
(a) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (b) the release of such
Records is ordered pursuant to a subpoena or other order from a court or
government body of competent jurisdiction, or (c) the information in such
Records has been made generally available to the public other than by disclosure
in violation of this or any other agreement. The Company shall not be required
to disclose any confidential information in such Records to any Inspector until
and unless such Inspector shall have entered into confidentiality agreements (in
form and substance satisfactory to the Company). Each Inspector agrees that it
shall, upon learning that disclosure of such Records is sought in or by a court
or governmental body of competent jurisdiction or through other means, give
prompt notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective order
for, the Records deemed confidential. Nothing herein (or in any other
confidentiality agreement between the Company and any Investor) shall be deemed
to limit the Investor's ability to sell Registrable Securities in a manner which
is otherwise consistent with applicable laws and regulations.
(i) The Company shall as soon as practicable use its best efforts to (i)
cause all the Registrable Securities covered by the Registration Statement to be
listed on each national securities exchange on which securities of the same
class or series issued by the Company are then listed, if any, if the listing of
such Registrable Securities is then permitted under the rules of such exchange,
or (ii) to the extent the securities of the same class or series are not then
listed on a national securities exchange, secure the designation and quotation,
of all the Registrable Securities covered by the Registration Statement on
NASDAQ or, if not eligible for NASDAQ, on NASDAQ SmallCap or, if not eligible
for NASDAQ or NASDAQ SmallCap, on the Over-The-Counter Bulletin Board ("OTCBB")
and, without limiting the generality of the foregoing, to arrange for at least
two market makers to register with the National Association of Securities
Dealers, Inc. ("NASD") as such with respect to such Registrable Securities.
(j) The Company shall provide a transfer agent and registrar, which may be
a single entity, for the Registrable Securities not later than the effective
date of the Registration Statement.
(k) The Company shall cooperate with the Investors who hold Registrable
Securities being offered and the managing underwriter or underwriters, if any,
to facilitate the timely preparation and delivery of certificates (not bearing
any restrictive legends) representing shares of Common Stock and enable such
certificates to be in such denominations or amounts, as the case may be, as the
managing underwriter or underwriters, if any, or the Investors may reasonably
request and registered in such names as the managing underwriter or
underwriters, if any, or the Investors may request. The Company shall deliver,
and shall cause legal counsel selected by the Company to deliver, to the
transfer agent for the Registrable Securities (with copies to the Investors
whose Registrable Securities are included in such Registration Statement) an
instruction that certain shares have been registered and may be transferred.
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4. OBLIGATIONS OF THE INVESTORS.
In connection with the registration of the Registrable Securities, the
Investors shall have the following obligations:
(a) It shall be a condition precedent to the obligations of the Company to
complete the registration pursuant to this Agreement with respect to the
Registrable Securities of a particular Investor that such Investor shall furnish
to the Company such information regarding itself, the Registrable Securities
held by it, and the intended method of disposition of the Registrable Securities
held by it as shall be reasonably required to effect the registration of such
Registrable Securities and shall execute such documents in connection with such
registration as the Company may reasonably request. At least fifteen (15)
business days prior to the first anticipated filing date of the Registration
Statement, the Company shall notify each Investor of the information the Company
requires from each such Investor.
(b) Each Investor, by such Investor's written request for inclusion of its
Registrable Securities in a Registration Statement, agrees to cooperate with the
Company as reasonably requested by the Company in connection with the
preparation and filing of the Registration Statements hereunder.
(c) In the event the Company decides to engage the services of an
underwriter, each Investor by requesting inclusion of its Registrable Securities
in a Registration Statement agrees to enter into and perform such Investor's
obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the managing underwriter of such offering and take such other
actions as are reasonably required in order to expedite or facilitate the
disposition of the Registrable Securities.
(d) Each Investor agrees that, upon receipt of any notice from the Company
of the happening of any event described in Section 3(g), such Investor will
immediately discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such
Investor's receipt of the copies of the supplemented or amended prospectus. If
so directed by the Company, such Investor shall deliver to the Company (at the
expense of the Company) or destroy (and deliver to the Company a certificate of
destruction) all copies in such Investor's possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
(e) No Investor may participate in any underwritten registration hereunder
unless such Investor (i) agrees to sell such Investor's Registrable Securities
on the basis provided in any underwriting arrangements in usual and customary
form entered into by the Company, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements, and (iii) agrees to pay its pro rata share of all underwriting
discounts and commissions and any expenses in excess of those payable by the
Company pursuant to Section 5 below.
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5. EXPENSES OF REGISTRATION.
All reasonable expenses (other than underwriting discounts and commissions
and stock transfer taxes, if any, and such fees for counsel, printing,
registration and other fees as state securities officials may require that
holders of shares pay) including, without limitation, all registration, listing
and qualification fees, printers and accounting fees, the fees and disbursements
of counsel for the Company, shall be paid by the Company.
6. INDEMNIFICATION.
(a) To the extent permitted by law, the Company will indemnify, hold
harmless and defend (i) each Investor who holds such Registrable Securities,
(ii) the directors, officers, partners and each person who controls any Investor
within the meaning of the 1933 Act or the Securities Exchange Act of 1934, as
amended (the "1934 Act"), if any, (iii) any underwriter (as defined in the 0000
Xxx) for the Investors, and (iv) the directors, officers, partners, employees
and each person who controls any such underwriter within the meaning of the 1933
Act or the 1934 Act, if any (each, an "Indemnified Person"), against any joint
or several losses, claims, damages, liabilities or expenses (collectively,
together with actions, proceedings or inquiries by any regulatory or
self-regulatory organization, whether commenced or threatened, in respect
thereof, "Claims") to which any of them may become subject insofar as such
Claims arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact in a Registration Statement or the omission
or alleged omission to state therein a material fact required to be stated or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus if
used prior to the effective date of such Registration Statement, or contained in
the final prospectus (as amended or supplemented, if the Company files any
amendment thereof or supplement thereto with the SEC) or the omission or alleged
omission to state therein any material fact necessary to make the statements
made therein, in light of the circumstances under which the statements therein
were made, not misleading; or (iii) any violation or alleged violation by the
Company of the 1933 Act, the 1934 Act, any other law, including, without
limitation, any state securities law, or any rule or regulation thereunder
relating to the offer or sale of the Registrable Securities (the matters in the
foregoing clauses (i) through (iii) being, collectively, "Violations"). The
Company shall reimburse the Indemnified Person for any reasonable legal fees or
other reasonable expenses incurred by them in connection with investigating or
defending any such Claim, subject to section 6(c). Notwithstanding anything to
the contrary contained herein, the indemnification agreement contained in this
Section 6(a): (i) shall not apply to a Claim arising out of or based upon a
Violation which occurs in reliance upon and in conformity with information
furnished in writing to the Company by any Indemnified Person or underwriter for
such Indemnified Person expressly for use in connection with the preparation of
such Registration Statement or any such amendment thereof or supplement thereto,
if such prospectus was timely made available by the Company pursuant to Section
3(c) hereof (ii) shall not apply to amounts paid in settlement of any Claim if
such settlement is effected without the prior written consent of the Company,
which consent shall not be unreasonably withheld; (iii) with respect to any
preliminary prospectus, shall not inure to the benefit of any Indemnified
Person, if the untrue statement or omission of material fact contained in the
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preliminary prospectus was corrected on a timely basis in the prospectus, as
then amended or supplemented, and such corrected prospectus was timely made
available by the Company and the Indemnified Person was promptly advised in
writing not to use the incorrect prospectus prior to the use giving rise to a
Violation and such Indemnified Person, notwithstanding such advice, used it, and
(iv) in the case of gross negligence or willful misconduct by such Investor.
(b) In connection with any Registration Statement in which an Investor is
participating, each such Investor agrees to indemnify, hold harmless and defend,
to the same extent and in the same manner set forth in Section 6(a), the
Company, each of its directors, each of its officers who signs the Registration
Statement, each person, if any, who controls the Company within the meaning of
the 1933 Act or the 1934 Act, any underwriter and any other stockholder selling
securities pursuant to the Registration Statement or any of its directors or
officers or any person who controls such stockholder or underwriter within the
meaning of the 1933 Act or the 1934 Act (collectively and together with an
Indemnified Person, an "Indemnified Party"), against any Claim to which any of
them may become subject, under the 1933 Act, the 1934 Act or otherwise, insofar
as such Claim arises out of or is based upon any Violation by such Investor, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished to the
Company by such Investor expressly for use in connection with such Registration
Statement (or prospectus forming a part thereof); and subject to Section 6(c)
such Investor will reimburse any legal or other expenses incurred by them in
connection with investigating or defending any such Claim; provided, however,
that the indemnity agreement contained in this Section 6(b) shall not apply (i)
to amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of such Investor, which consent shall not be
unreasonably withheld and (ii) in the case of gross negligence or willful
misconduct by the Company; provided, further, however, that the Investor shall
be liable under this Agreement (including this Section 6(b) and Section 7) for
only that amount as does not exceed the net proceeds to such Investor as a
result of the sale of Registrable Securities pursuant to such Registration
Statement. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such Indemnified Party and shall
survive the transfer of the Registrable Securities by the Investors pursuant to
Section 9. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(b) with respect to any
preliminary prospectus shall not inure to the benefit of any Indemnified Party
if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected on a timely basis in the prospectus, as
then amended or supplemented.
(c) Promptly after receipt by an Indemnified Person or Indemnified Party
under this Section 6 of notice of the commencement of any action (including any
governmental action), such Indemnified Person or Indemnified Party shall, if a
Claim in respect thereof is to be made against any indemnifying party under this
Section 6, deliver to the indemnifying party a written notice of the
commencement thereof, and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume control of the
defense thereof with counsel mutually satisfactory to the indemnifying party and
the Indemnified Person or the Indemnified Party, as the case may be; provided,
however, that an Indemnified Person or lndemnified Party shall have the right to
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retain its own counsel with the fees and expenses to be paid by the indemnifying
party, if, in the reasonable opinion of counsel retained by the indemnifying
party, the representation by such counsel of the Indemnified Person or
Indemnified Party and the indemnifying party would be inappropriate due to
actual or potential differing interests between such Indemnified Person or
Indemnified Party and any other party represented by such counsel in such
proceeding. The indemnifying party shall pay for only one separate legal counsel
for the Indemnified Persons or the Indemnified Parties, as applicable, and such
legal counsel shall be selected by Investors holding at least seventy-five
percent (75%) of the Registrable Securities included in the Registration
Statement to which the Claim relates, if the Investors are entitled to
indemnification hereunder, or the Company, if the Company is entitled to
indemnification hereunder, as applicable. The failure to deliver written notice
to the indemnifying party within a reasonable time of the commencement of any
such action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is actually prejudiced in its ability to
defend such action. The indemnification required by this Section 6 shall be made
by periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is incurred
and is due and payable.
7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is prohibited or
limited by law, the indemnifying party agrees to make the maximum contribution
with respect to any amounts for which it would otherwise be liable under Section
6 to the fullest extent permitted by law; provided, however, that (i) no
contribution shall be made under circumstances where the maker would not have
been liable for indemnification under the fault standards set forth in Section
6, (ii) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any seller of Registrable Securities who was not
guilty of such fraudulent misrepresentation, and (iii) contribution (together
with any indemnification or other obligations under this Agreement) by any
seller of Registrable Securities shall be limited in amount to the net amount of
proceeds received by such seller from the sale of such Registrable Securities.
8. REPORTS UNDER THE 1934 ACT.
With a view to making available to the Investors the benefits of Rule 144
promulgated under the 1933 Act or any other similar rule or regulation of the
SEC that may at any time permit the investors to sell Registrable Securities to
the public without registration ("Rule 144"), the Company will use its best
efforts to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other documents
required of the Company under the 1933 Act and the 1934 Act so long as the
Company remains subject to such requirements and the filing of such reports and
other documents is required for the applicable provisions of Rule 144; and
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(c) furnish to each Investor so long as such Investor owns Registrable
Securities, promptly upon request, (i) a written statement by the Company that
it has complied with the reporting requirements of Rule 144, the 1933 Act and
the 1934 Act, (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested to permit the Investors to
sell such securities pursuant to Rule 144 without registration.
9. AMENDMENT OF REGISTRATION RIGHTS.
Provisions of this Agreement may be amended and the observance thereof may
be waived (either generally or in a particular instance and either retroactively
or prospectively), only with written consent of the Company and Investors who
hold at least seventy-five percent (75%) of the Registrable Securities. Any
amendment or waiver effected in accordance with this Section 9 shall be binding
upon each Investor and the Company.
10. MISCELLANEOUS.
(a) A person or entity is deemed to be a holder of Registrable Securities
whenever such person or entity is the owner of record of such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such Registrable
Securities.
(b) Any notices required or permitted to be given under the terms hereof
shall be sent by certified or registered mail (return receipt requested),
delivered personally or by courier (including a recognized overnight delivery
service), or by facsimile and shall be effective five days after being placed in
the mail, if mailed by regular United States mail, or upon receipt, if delivered
personally, by courier (including a recognized overnight delivery service), or
by facsimile, in each case addressed to a party. The addresses for such
communications shall be as follows unless otherwise notified:
If to the Company:
Cytomedix, Inc.
Attn: Xxxx Xxxxx, Chief Executive Officer
0000 X. Xxxxxx Xx, Xxxxx X
Xxxxxx Xxxx, XX 00000
With copy to:
Xxxxxxxx & Xxxxxxxx LLP
Attn: Xxxxx Xxxxx
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
If to the Investor:
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IVC Group
Attn: Xxxx X. Xxxxxxxx, Chairman
802 Grand Pavilion
P.O. Box 30543 SMB
Grand Cayman, Cayman Islands
British West Indies
(c) Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
(d) THIS AGREEMENT SHALL BE ENFORCED, GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ARKANSAS, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS. THE PARTIES HERETO HEREBY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF THE UNITED STATES FEDERAL COURTS LOCATED IN LITTLE
ROCK, ARKANSAS WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS AGREEMENT, THE
AGREEMENTS ENTERED INTO IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY. BOTH PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH SUIT OR PROCEEDING. BOTH PARTIES FURTHER AGREE
THAT SERVICE OF PROCESS UPON A PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED
IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT ANY PARTY'S RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW. ALL PARTIES AGREE THAT A FINAL NON-APPEALABLE
JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED
IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER LAWFUL MANNER.
THE PARTY WHICH DOES NOT PREVAIL IN ANY DISPUTE ARISING UNDER THIS AGREEMENT
SHALL BE RESPONSIBLE FOR ALL FEES AND EXPENSES, INCLUDING ATTORNEYS FEES,
INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH SUCH DISPUTE.
(e) In the event that any provision of this Agreement is invalid or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform to such statute or rule of law. Any
provision hereof which may prove invalid or unenforceable under any law shall
not affect the validity or enforceability of any other provision hereof
(f) This Agreement, the Warrant Agreement, and the Services Agreement
(including all schedules and exhibits thereto) constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and thereof.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein and therein. This Agreement, the Warrant
Agreement, and the Services Agreement supersede all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof and thereof
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(g) The headings in this Agreement are for convenience of reference only
and shall not form part of, or affect the interpretation of, this Agreement.
(h) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party. This Agreement, once executed by a
party, may be delivered to the other party hereto by facsimile transmission of a
copy of this Agreement bearing the signature of the party so delivering this
Agreement.
(i) Each party shall do and perform, or cause to be done and performed, all
such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.
(j) Except as otherwise provided herein, all consents and other
determinations to be made by the Investors pursuant to this Agreement shall be
made by Investors owning at least seventy-five percent (75%) of the Registrable
Securities, determined as if all of the Warrants then outstanding have been
converted into Registrable Securities.
(k) The Company acknowledges that a breach by it of its obligations
hereunder will cause irreparable harm to each Investor by vitiating the intent
and purpose of the transactions contemplated hereby. Accordingly, the Company
acknowledges that the remedy at law for breach of its obligations under this
Agreement will be inadequate and agrees, in the event of a breach or threatened
breach by the Company of any of the provisions under this Agreement, that each
lnvestor shall be entitled, in addition to all other available remedies in law
or in equity, and in addition to the penalties assessable herein, to an
injunction or injunctions restraining, preventing or curing any breach of this
Agreement and to enforce specifically the terms and provisions hereof without
the necessity of showing economic loss and without any bond or other security
being required.
(l) The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
IN WITNESS WHEREOF, the Company and the undersigned Investor has caused
this Agreement to be duly executed as of the date first above written.
CYTOMEDIX, INC. INVESTOR:
____________________________________ ____________________________________
By: Xxxx Xxxxx By: Xxxx X. Xxxxxxxx
Chief Executive Officer Chairman
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