Exhibit 10.18
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 IVC Group, 000 Xxxxx Xxxxxxxx, X.X. Xxx 00000 XXX, Xxxxx
Cayman, Cayman Islands, British West Indies (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 Sections 4 and 5 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 compensation of Two Thousand Five Hundred
US Dollars ($2,500) per month, payable on the last business day of each month,
commencing on the last business day of the first full calendar month following
the date of this Agreement (September 30).
5. Grant of Warrants.
(a) As further 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 four hundred
thousand (400,000) shares of common stock (the "Warrants") exercisable pursuant
to Schedule A attached hereto and incorporated herein.
(b) To the extent applicable, the Company and Consultant agree
that Consultant may make the "Section 83(b)" election for federal and state
income taxes with respect to the Warrants granted under this Section 6.
(c) Consultant shall have registration rights for the shares
of common stock issued upon exercise of the Warrants pursuant to the
Registration Rights Agreement attached hereto as Exhibit B and incorporated
herein.
6. Expenses. Upon presentation of acceptable documentation, the Company
will promptly reimburse the Consultant for all reasonable out-of-pocket expenses
the Consultant incurs in connection with providing Services.
7. 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.
8. 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.
9. 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 9 shall survive
the termination or expiration of this Agreement.
10. Termination.
(a) The Company may terminate this Agreement for any reason
upon written notice provided to the Consultant. Such termination shall become
effective immediately on the date written notice is mailed or sent
electronically.
(b) The Consultant may terminate this Agreement if the Company
materially breaches this Agreement or fails to perform as required under the
terms of this Agreement, after providing a fifteen (15) day written notice of
the breach and opportunity to cure. If the breach is not cured, the termination
becomes effective on the date the cure period has ended.
(c) The Company shall pay the Consultant an amount reflecting
compensation and expense reimbursement due and payable on a pro rata basis for
the period Consultant provided services prior to the effective date of
termination.
11. 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.
12. Miscellaneous.
(a) 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.
(b) 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.
(c) 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.
(d) 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. IVC GROUP
By: ______________________________ By: _____________________________
Xxxx X. Xxxxx, Chief Executive Officer Xxxx X. Xxxxxxxx, Chairman
