Exhibit 10.22
FINANCIAL SERVICES AGREEMENT
THIS AGREEMENT is made this 29 day of July 2002, by and between
CYTOMEDIX, INC. a corporation formed under the laws of the State of Delaware
(the "Company") and HMA ADVISORS, INC., a corporation organized under the laws
of the State of Delaware ("HMA").
WHEREAS, the Company is a publicly traded corporation which is seeking
assistance for:
1. Short term, interim or long term financing for the Company;
2. Introduction to potential investors in the Company
3. Introduction to Market Makers who would be interested in making a
market in the Company's common stock, and
4. On-going financial strategies and advice.
WHEREAS, in order to obtain such financing, the Company desires to
retain HMA to assist in arranging the financings (the "Financings").
NOW, THEREFORE, for the reasons cited above, and in consideration of
the mutual promises contained therein, and intending to be legally bound hereby,
me Company and HMA agree as follows:
SECTION ONE
INVESTOR SERVICES
HMA shall assist the Company in reaching its financial goals as
outlined above. HMA shall contribute such time and efforts as are necessary to
comply with the Company's needs.
SECTION TWO
DURATION
This engagement; will be for a term of a minimum of twelve (12) months
and shall renew automatically on a month to month basis thereafter unless either
party has given written notice to the other that it desires to terminate this
engagement after the initial period, provided, however, that in any such event
The Company shall be responsible for the reimbursement of fees and expenses
referred to in Section Three incurred through the date of termination.
SECTION THREE
COMPENSATION FOR SERVICES
As compensation for the services described within this Agreement, the
Company shall issue to HMA 600,000 Common Stock Purchase Warrants exercisable at
$1.00 with in expiration date of August 1, 2007.
In addition to the compensation described above, The Company will
reimburse HMA for all reasonable fees and expenses incurred on behalf of The
Company, including, but not limited to overnight mail or courier services,
printing, travel and entertainment, etc., however, HMA, will get prior approval
for any expenditure in excess of Five Hundred ($500) Dollars.
SECTION FOUR
LIMITATION ON LIABILITY
The Company agrees that HMA shall have no liability to The Company, or
to its respective affiliates, including, without limitation, any officer,
director, employee or stockholder of the Company, or any of their respective
affiliates, for any decision or recommendation made or omitted to be made or any
action or failure to act in connection with this Agreement; provided that the
foregoing limitation on liability shall not apply to any decision or
recommendation made or omitted to be made by HMA or action or failure to act by
HMA in connection with this Agreement that is finally determined in a judicial
proceeding to have resulted from the gross negligence or willful misconduct of
HMA. The Company agrees to indemnify and hold harmless HMA and each of is heirs,
representatives, agents and employees against any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) relating to or
arising out of this Agreement and to reimburse HMA for any expenses incurred in
connection with the investigation or defense of any such loss, claim, damage,
liability action or proceeding relating to, or arising out of, this Agreement so
long as such costs do not arise from HMA's willful misconduct or gross
negligence.
SECTION FIVE
MISCELLANEOUS
Severability. Each provision of this Agreement is intended to be
severable. If any term or provision hereof shall be determined by a court of
competent jurisdiction to be illegal or invalid for any reason whatsoever, such
provision shall be severed from this Agreement mid shall not affect the validity
of the remainder of this Agreement.
Attorneys' Fees. In the event either of the parties hereto shall
institute any action or proceeding against the other party relating to this
Agreement, the unsuccessful party in such action or proceeding shall reimburse
the successful party for its disbursements incurred in connecting therewith and
for its reasonable attorneys' fees as fixed by the court.
No Waivers. No consent or waiver, express or implied, by either party
hereto or of any breach or default by the other party in the performance by the
other of its obligations hereunder shall be valid unless in writing and no such
consent or waiver shall be deemed or construed to be a consent or waiver to or
of any other breach or default in the performance by such other obligations of
such party hereunder. Failure on the part of either party to complain of any act
or failure to act of the other party or to declare the other party in default,
irrespective of how long such failure continues, shall not constitute a waiver
by such party of its rights hereunder. The granting of any consent or approval
in any new instance by or on behalf of The Company not be construed to waive or
limit the need fur such consent in any other or subsequent instance.
Governing Law. This Agreement and the rights and obligations hereunder
shall be construed in accordance with the laws of the State of Delaware.
Entire Agreement. This Agreement may not be changed or modified except
by an agreement in writing executed by each of the parties hereto. This
Agreement constitutes all of the understandings and agreements between the
parties in commotion with the subject matter hereof, and supersedes all prior
agreements, whether oral or written.
No Agency. Nothing contained in this Agreement shall be construed as
making The Company and HMA joint partners or joint venturers or as making either
of such parties liable for the debts or obligations of the other, except as in
this Agreement is expressly provided. HMA is acting under this Agreement as an
independent contractor and nothing herein contained, nor any acts of The Company
or HMA, nor any other circumstances, shall be construed to establish HMA as an
agent of The Company. HMA, by agreeing to perform obligations of The Company,
shall not be deemed to have assumed such obligations.
Captions. The captions to the various Sections of this Agreement are
for convenience of reference only and shall be of no effect in construing the
Sections of this Agreement to which they refer.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written, intending to be legally bound hereby.
CYTOMEDIX, INC.
BY: /s/Xxxx X. Xxxxx
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Title: President and CEO
HMA ADVISORS, INC.
BY: /s/Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
