TRANSITIONAL SERVICES AGREEMENT
This Transitional Services (the "Agreement"), is made and
entered into as of December 26, 2000 (the "Effective Date"), by and between
Cytomedix, Inc., a Delaware corporation ("Cytomedix"), and Curative Health
Services, Inc., a Minnesota corporation ("Curative").
WITNESSETH:
WHEREAS, Cytomedix and Curative are parties to that certain
Amended and Restated Asset Purchase Agreement effective as of October 12, 2000
(the "Asset Purchase Agreement"), pursuant to which Cytomedix has agreed to
purchase certain of the assets of Curative and its affiliates as set forth
therein;
WHEREAS, pursuant to Section 2.7(a)(ix) of the Asset Purchase
Agreement, it is a condition to the closing of the transactions described in the
Asset Purchase Agreement that the parties hereto enter into this Agreement;
AGREEMENT
NOW, THEREFORE, for and in consideration of the premises and
the mutual covenants contained herein, and for other good and valuable
consideration, the receipt, adequacy and legal sufficiency of which are hereby
acknowledged, the parties do hereby agree as follows:
ARTICLE I.
SERVICES
During the Transitional Period (as defined in Section 3.1
below), Cytomedix hereby engages Curative to provide quality assurance services,
warehouse services, information services, finance services, human resource
services, accounting services, access to e-mail and computers, access to office
space, and such other transitional assistance as may be agreed upon by Cytomedix
and Curative during the Transitional Period, in each case as may be reasonably
directed by Cytomedix from time to time, and, except as otherwise specified by
Cytomedix, in the manner and at a relative level of service, where applicable,
and consistent in all material respects with that provided by Curative with
respect to the Procuren Operations (as defined in the Asset Purchase Agreement)
prior to the date hereof (all such services, the "Transitional Services"), and
Curative hereby accepts such engagement, all on the terms and conditions herein.
In the event that Curative shall be unable to perform any services as required
by this Agreement for any reason, Curative and Cytomedix shall cooperate in
obtaining an alternative means of providing such services.
ARTICLE II.
PAYMENT
The Transitional Services shall be provided by Curative at a
cost which is equal to the reasonable direct expenses (excluding any overhead
allocation) incurred by Curative in providing such services, including but not
limited to any costs in connection with utilizing consultants (such amount, the
"Service Fees"), plus the Monthly Base Fee (as defined below) (the Services Fees
and Monthly Base Fee together, the "Fees"). Within thirty (30) days following
the end of each calendar month, Curative shall send Cytomedix a monthly invoice
(a) showing the amount of the Fees owing by Cytomedix, and (b) providing a
reasonably detailed description of the services provided by Curative, during
that month. The Fees shall be paid by Cytomedix within thirty (30) days of its
receipt of the invoice therefor. If so
requested by Cytomedix, Curative shall provide a good faith estimate of the
out-of-pocket costs that Curative expects to incur in providing any requested
service. The "Monthly Fee" shall be an amount equal to (i) $5,000 per month
during the first and second months of the Transitional Period, (ii) $6,000 per
month during the third and fourth months of the Transitional Period, and (iii)
$7,000 per month during the balance of the Transitional Period (as such period
may be extended pursuant to Section 3.4).
ARTICLE III.
TERM AND TERMINATION
Section 3.1 Term. The term of this Agreement (such term, the
"Transitional Period") commences upon the Effective Date and terminates six (6)
months from the date thereof, unless earlier terminated pursuant to (a) the
mutual consent of the parties, or (b) Sections 3.2 or 3.3 below.
Section 3.2 Termination by Cytomedix. Cytomedix may terminate
this Agreement without cause upon thirty (30) days' prior written notice to
Curative.
Section 3.3 Termination by Either Party. Upon thirty (30)
days' prior written notice to the other party, either party may terminate this
Agreement if the other party breaches any of its material obligations hereunder
and fails to cure such breach by the end of such thirty (30) day period.
Section 3.4 Extension by Cytomedix. Cytomedix may elect to
extend the Transitional Period for an additional three (3) months upon thirty
(30) days' prior written notice to Curative, provided that in any event the
Transitional Period shall not exceed nine (9) months.
Section 3.5 Effect of Termination. In the event of notice of
termination, Curative shall continue to provide the Transitional Services up to
the date of termination. Upon termination, Cytomedix shall pay Curative any
moneys then due and owing up to the date of termination, and each party cease
using and return any Confidential and Proprietary Information except as
otherwise set forth in Section 2.4 of the Supply Agreement.
ARTICLE IV.
CONFIDENTIALITY
Each party acknowledges that any information concerning the
other party received in connection with this Agreement shall be deemed
"Confidential and Proprietary Information" (provided that information contained
within the Assets (as defined in the Asset Purchase Agreement) transferred to
Cytomedix shall not be deemed Confidential and Proprietary Information of
Curative). Each party agrees that it shall not permit the duplication, use or
disclosure of any such Confidential and Proprietary Information to any person or
entity (other than its own employees or agents who must have such information
for any proper purpose), unless (a) authorized in writing and signed by the
other party, (b) such information was in the public domain at the time of
receipt, or (c) legally required to disclose such information, provided that the
party availing itself of this exception has promptly notified the other party of
such required disclosure and has used commercially reasonable efforts to
lawfully avoid or limit such disclosure. Confidential and Proprietary
Information does not include any information which, at the time of disclosure,
is generally known by the public and any competitors of either party through no
breach of the disclosing party. The provisions of this Article IV shall survive
the expiration or termination of this Agreement.
ARTICLE V.
ACCESS; RECORDS AND REPORTS
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Section 5.1 Access. Subject to Article IV above, during the
Transitional Period, each party shall provide the other party and its personnel
with access to the equipment, office and storage space and systems of such party
during normal business hours to the extent reasonably required in connection
with the provision of the Transitional Services; provided, however, that such
access shall be supervised by the appropriate personnel of such party.
Section 5.2 Records and Reports. Curative shall keep true and
accurate records and books of account in connection with its obligations
hereunder. These records and books of account shall upon reasonable notice be
available during business hours for inspection by Cytomedix.
ARTICLE VI.
INDEMNIFICATION
Section 6.1 Indemnification by Curative. Curative shall
indemnify and hold harmless Cytomedix, its affiliates and agents harmless from
all losses, damages, claims, penalties and expenses, including, without
limitation, reasonable attorneys' fees, arising out of or in connection with (a)
any material breach of this Agreement by Curative, or (b) the negligent,
reckless or intentional acts or omissions of Curative, its employees, agents or
representatives in connection with this Agreement.
Section 6.2 Indemnification by Cytomedix. Cytomedix shall
indemnify and save and hold Curative, its affiliates and agents harmless from
all losses, damages, claims, penalties and expenses, including, without
limitation, reasonable attorneys' fees, arising out of or in connection with (a)
any material breach of this Agreement by Cytomedix, or (b) the negligent,
reckless or intentional acts or omissions of Cytomedix, its employees, agents or
representatives in connection with this Agreement.
ARTICLE VII.
MISCELLANEOUS
Section 7.1 No Joint Venture. Nothing herein shall create any
association, partnership, joint venture or agency relationship between the
parties hereto or any third party.
Section 7.2 Further Assurances. The parties shall cooperate
reasonably with each other in connection with any steps required to be taken as
part of their respective obligations under this Agreement, and the parties agree
(a) to furnish upon request to each other such further information, (b) to
execute and deliver to each other such other documents, and (c) to do such other
acts and things, all as the other party may reasonably request for the purpose
of carrying out the intent of this Agreement.
Section 7.3 Notices. All notices, consents, waivers, and other
communications under this Agreement must be in writing and are deemed to have
been duly given when (a) delivered by hand with written confirmation of receipt,
(b) sent by facsimile with confirmation of transmission by the transmitting
equipment, (c) five (5) days after delivery, if sent by certified mail, return
receipt requested, or (d) one (1) day after delivery, if sent by a nationally
recognized overnight delivery service, return receipt requested, in each case to
the appropriate addresses, or facsimile numbers set forth below (or to such
other addresses, facsimile numbers or as a party may designate by notice to the
other parties):
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Cytomedix: Cytomedix, Inc.
Xxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx
Vice President of Strategy and Business Development
Fax: (000) 000-0000
with a copy to: Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
Curative: Curative Health Services, Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Xx. Vice President of Business Development
Fax: (000) 000-0000
with a copy to: Xxxxxx & Whitney LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
Section 7.4 Waiver. The rights and remedies of the parties to
this Agreement are cumulative and not alternative. Neither the failure nor any
delay by any party in exercising any right under this Agreement operates as a
waiver of such right, and no single or partial exercise of any such right
precludes any other or further exercise of such right or the exercise of any
other right. To the maximum extent permitted by applicable law, (a) no claim or
right arising out of this Agreement can be discharged by one party, in whole or
in part, by a waiver or renunciation of the claim or right unless in writing
signed by the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand on one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement.
Section 7.5 Entire Agreement and Modification. This Agreement
and the Asset constitute the entire agreement between the parties with respect
to the subject matter of this Agreement and supersede all prior written and oral
agreements and understandings between the parties with respect to the subject
matter of this Agreement. This Agreement may not be amended except by a written
agreement signed on behalf of each of the parties hereto.
Section 7.6 Assignment. No party to this Agreement may assign,
transfer, or otherwise dispose of any of its rights, duties, or obligations
hereunder without the prior written consent of the other party hereto; provided,
that either party may assign, transfer, or otherwise dispose of any of its
rights, duties or obligations hereunder to any of its affiliates without the
prior consent of the other party (in which case the assigning party shall
continue to be liable for its obligations hereunder). Subject to the
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foregoing, this Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their permitted successors and assigns.
Section 7.7 Severability. If any provision of this Agreement
is held invalid or unenforceable by any court of competent jurisdiction, the
other provisions of this Agreement remain in full force and effect. The parties
further agree that if any provision contained herein is, to any extent, held
invalid or unenforceable in any respect under the laws governing this Agreement,
they shall take any actions necessary to render the remaining provisions of this
Agreement valid and enforceable to the fullest extent permitted by law and, to
the extent necessary, shall amend or otherwise modify this Agreement to replace
any provision contained herein that is held invalid or unenforceable with a
valid and enforceable provision giving effect to the intent of the parties.
Section 7.8 No Third Party Beneficiary. No provision of this
Agreement shall create, or be deemed to create, any legal or equitable right in
any person not a party to this Agreement or give any such person any claim
against any party to this Agreement that such party would not have but for this
Agreement.
Section 7.9 Section Headings; Construction. The headings of
Articles and Sections in this Agreement are provided for convenience only and
will not affect its construction or interpretation. All words used in this
Agreement will be construed to be of such gender or number as the context
requires. The language used in the Agreement shall be construed, in all cases,
according to its fair meaning, and not for or against any party hereto. The
parties acknowledge that each party has reviewed this Agreement and that rules
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be available in the interpretation of this
Agreement.
Section 7.10 Governing Law; Jurisdiction. This Agreement is to
be governed by and construed under the laws of the State of New York without
regard to conflicts of laws principles that would require the application of any
other law. The parties agree that the state and federal courts located in New
York County, New York shall be the sole venue and shall have sole jurisdiction
for the resolution of all disputes arising hereunder.
Section 7.11 Execution of Agreement, Counterparts. This
Agreement may be executed in one or more counterparts, each of which will be
deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement. The exchange
of copies of this Agreement and of signature pages by facsimile transmission
shall constitute effective execution and delivery of this Agreement as to the
parties and may be used in lieu of the original Agreement for all purposes.
Signatures of the parties transmitted by facsimile shall be deemed to be their
original signatures for any purpose whatsoever.
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[signature page to Transitional Services Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
CYTOMEDIX:
CYTOMEDIX, INC.
By: /s/ Xxxxx Xxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxx Xxxxxx
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Its: Vice President
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CURATIVE:
CURATIVE HEALTH SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------------------
Its: Senior Vice President, Business Development
--------------------------------------------
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