Exhibit 10.26
SELLING AGENT AGREEMENT
THIS SELLING AGENT AGREEMENT (the "Agreement") is made and entered into
this ___ day of ___________, 2004, by and between CYTOMEDIX, INC., a Delaware
corporation (the "Issuer") and ____________________________ (the "Agent").
RECITALS
WHEREAS, the Issuer desires to offer and sell units ("Units") in a
private placement, each Unit consisting of (i) 1,000 shares (the "Common
Shares") of its Common Stock (the "Common Stock"), $0.0001 par value, and (ii) a
five-year warrant (the "Warrants") to purchase 1,000 shares of Common Stock in
accordance with the Confidential Private Placement Memorandum ("Memorandum") of
the Issuer dated March 27, 2004 (the "Offering");
WHEREAS,the Offering will be made pursuant to exemptions from
registration provided by Section 4(2) of the Securities Act of 1933, as amended
(the "Securities Act") and Rule 506 of Regulation D promulgated thereunder;
WHEREAS, the Issuer desires to obtain the services of agents to assist
it in the Offering; and
WHEREAS, the Agent is a member of the National Association of
Securities Dealers, Inc. (the "NASD") and is willing, as an agent, to assist the
Issuer in the offer and sale of the Units on the terms and conditions set forth
herein.
NOW, THEREFORE, for and in consideration of the foregoing, and of the
mutual covenants, agreements, undertakings, representations, and warranties
contained herein, the parties hereto agree as follows:
1. Appointment of Agent to Sell Securities. The Issuer hereby appoints
the Agent as its non-exclusive agent for the period of the Offering to sell up
to 4,500 Units as provided in the Memorandum. All capitalized terms used but not
defined herein shall have the definition described to it in the Memorandum.
2. Acceptance of Appointment; Agreement to Use Best Efforts to Sell
Securities. The Agent hereby accepts the appointment, and agrees, as agent for
the Issuer, to use its best efforts to find purchasers for the Units. The Agent
makes no commitment to purchase all or any of the Units.
3. Other Agents. The Issuer retains the right to employ other agents
for and in connection with the Offering.
4. Terms of Sale. The Units shall be sold in minimum offering amounts
of $25,000 per investor.
5. Termination of Offering. The Offering shall terminate on March 31,
2004. The Offering may be terminated prior to March 31, 2004, or may be extended
by the Company in its sole discretion. Upon the termination of the Offering, the
Agent immediately shall cease making offers of the Units and shall terminate all
then-pending offers.
6. Commission. As compensation for its activities hereunder and
pursuant hereto, the Agent shall be paid a commission equal to ten percent (10%)
of the sales of Units by Agent to investors. The Agent shall receive the
commission from a sale only after the Issuer has received and accepted the
investor's Subscription Agreement and proceeds from the sale. If the investor
elects the Negotiable Term Promissory Note Option as described in the
Subscription Agreement, the Agent shall receive its commission hereunder only
upon the Company's receipt of payments under such investor's Negotiable Term
Promissory Note.
7. Proceeds. There is no minimum offering amount in this Offering and
thus there will be no escrow of the proceeds. Any and all proceeds received by
the Agent from the sale of the Units must be immediately forwarded to the
Issuer. The purchase price must be paid by certified or bank check payable in
United States dollars to "Cytomedix Inc." or wired to the Issuer's account at:
Citibank of New York, ABA #000000000, for benefit of Xxxxxx Xxxxxxx/Xxxx Xxxxxx
#406-11172, for final credit to account #000-000000-000. If the investor elects
the Negotiable Term Promissory Note Option as described in the Subscription
Agreement, the Agent shall forward the investor's Negotiable Term Promissory
Note immediately to the Issuer at Cytomedix, Inc., 0000 X. Xxxxxx Xx., Xxxxx X,
Xxxxxx Xxxx, Xxxxxxxx 00000.
8. Rejection of Subscription. Once the Offering has terminated in
accordance with Section 5 of this Agreement, the Issuer shall notify the Agent
in writing that the Offering is terminated. Any subscriptions received after the
termination of the Offering will be rejected and if funds have been received,
they shall be returned to the investor. The Issuer also has the right to accept
or reject subscriptions in whole or in part at any time. The Agent shall not be
entitled to receive any commission or other compensation from the Issuer or
otherwise for sales made after the termination of the Offering or for
subscriptions (or portions thereof) otherwise rejected by the Issuer.
9. Subscription. Each subscriber shall subscribe for the Units by
completing and executing the Subscription Documents that accompany the
Memorandum and delivering the completed and executed Subscription Documents to
the Issuer.
10. Delivery of Subscription Documents. All Subscription Documents
received by the Agent from subscribers shall be forwarded immediately by the
Agent to the Issuer at Cytomedix, Inc., 0000 X. Xxxxxx Xx., Xxxxx X, Xxxxxx
Xxxx, Xxxxxxxx 00000.
11. Copy of Subscription to Agent. Upon the acceptance of a
subscription, the Issuer shall execute the acceptance on the Subscription
Agreement and shall forward a duplicate of the accepted Subscription Agreement
to the subscriber with a copy to the Agent.
12. Representations and Warranties of the Issuer. The Issuer represents
and warrants to, and agrees with, the Agent that:
(a) The Issuer is a corporation duly organized under the laws
of the State of Delaware with power and authority to own its properties and to
conduct its business as described in the Memorandum.
(b) The Issuer anticipates an outstanding capitalization as
set forth in the Memorandum. The Units, when issued and delivered, shall be duly
and validly issued, fully paid and non-assessable, and shall conform to the
descriptions contained in the Memorandum and exhibits thereto.
(c) The Memorandum does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated or
necessary to make the statements in the Memorandum not misleading, except that
this representation and warranty does not apply to statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Issuer in connection with the Memorandum by the Agent directly or through or by
counsel on the Agent's behalf. If at any time prior to the completion of the
Offering or other termination of this Agreement any event shall occur as a
result of which it may be necessary to amend or supplement the Memorandum so
that it does not include any untrue fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances then existing, not misleading, the Issuer will supply the Agent
with amendments or supplements correcting such statement or omission. The Issuer
will also provide the Agent for delivery to all offerees and purchasers and
their representatives, if any, any information, documents and instruments which
the Agent and the Issuer deem necessary to comply with applicable state and
federal law.
(d) Except as stated in the Memorandum, the execution and
delivery of this Agreement, the consummation of the transactions contemplated in
this Agreement, and compliance with the terms and provisions of this Agreement
shall not conflict with, or result in a breach of, any of the terms or
provisions of, or constitute a default under, the Restated Articles of
Incorporation, or the Restated Bylaws of the Issuer, or any indenture, mortgage
or other agreement or instrument to which the Issuer is a party or by which it
or its properties are bound, or any applicable law, rule, regulation, judgment,
order, or decree of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Issuer or its properties.
(e) This Agreement has been duly authorized, executed, and
delivered on behalf of the Issuer, and is the valid, binding and enforceable
obligation of the Issuer, except to the extent that obligations concerning
indemnification herein may be limited by applicable securities laws.
(f) No authorization, approval, consent, or license of any
regulatory body or authority is required for the valid authorization, issuance,
sale, and delivery of the Units, or, if so required, all authorizations,
approvals, consents, and licenses have been obtained and are in full force and
effect.
(g) Assuming (i) the accuracy of the information provided by
the respective subscribers in the Subscription Documents and (ii) that the Agent
has complied in all material respects with the applicable provisions of
Regulation D promulgated under the Securities Act, the offer and sale of the
Units pursuant to the terms of this Agreement and the Memorandum are exempt from
the registration requirements of the Securities Act and the rules and
regulations promulgated thereunder. The Issuer is not disqualified from the
exemption in Rule 506 of Regulation D by virtue of the disqualifications
contained in Rule 507.
13. Covenants of the Issuer. The Issuer covenants that:
(a) The Issuer shall prepare and file any amendments or
supplements to the Memorandum that in the opinion of counsel for the Agent may
be necessary or advisable in connection with the offering and sale of the Units
by the Agent, and shall use its best efforts to cause each such amendment or
supplement to become effective as promptly as possible.
(b) The Issuer shall deliver to the Agent, without charge,
from time to time during the term of this Agreement as many copies of the
Memorandum as the Agent reasonably may request, and the Issuer consents to the
use of the Memorandum as permitted by applicable state and federal securities
and other laws.
(c) The Issuer shall use its best efforts to comply with
applicable state and federal securities and other laws so as to permit the
continuation of the offering and sale of the Units.
(d) The Issuer promptly shall notify the Agent in the event of
(i) the issuance by any federal or state securities commission or authority of
any stop order suspending the sale of the Units, or (ii) the institution or
notice of the intended institution of any action or proceeding for that purpose.
The Issuer shall make every reasonable effort to prevent the issuance of a stop
order, and, if a stop order is issued at any time, to obtain the withdrawal of
the order at the earliest possible time.
(e) The Issuer shall not sell the Units offered pursuant to
the Memorandum to any investor who is not an "Accredited Investor" as defined by
Rule 501 of Regulation D.
(f) The net proceeds of the Offering will be used by the
Issuer substantially as set forth in the Memorandum.
14. Representations and Warranties of the Agent. The Agent represents
and warrants to, and agrees with the Issuer that:
(a) The Agent is a licensed broker-dealer within the meaning
of Section 3 of the Securities Exchange Act of 1934, as amended, and is a member
in good standing of the NASD.
(b) The Agent and all persons employed by it or who work for
it as agents have all necessary permits, licenses and permissions to enable it
and them to act as agent for the Issuer in the offering and sale of the Units as
required by applicable state and federal securities and other laws.
15. Covenants of the Agent. The Agent covenants that:
(a) The Agent shall not make any statement or take any action
in connection with the offering and sale of the Units and its activities under
and pursuant to this Agreement that is not consistent with the exemptions from
registration provided by Section 4(2) of the Securities Act and Regulation D,
including Rule 506, promulgated thereunder or that violates Section 10 of the
Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated
thereunder.
(b) The Agent shall not offer the Units in this Offering to
any investor who is not an Accredited Investor, as defined by Rule 501 of
Regulation D under the Securities Act.
(c) The Agent shall, in connection with the sale of the Units,
provide information to the Issuer sufficient to enable the Issuer to establish
and determine that all purchasers of the Units are Accredited Investors.
(d) The Agent shall not sell the Units offered pursuant to the
Memorandum by any means of public solicitation or general advertising, or in any
manner that violates the conditions imposed by securities laws in connection
with an offer and sale of securities pursuant to the exemptions from
registration contained in Section 4(2) under the Securities Act and Regulation
D, including Rules 501, 502 and 506, promulgated thereunder, or in any manner
that violates Section 10 of the Securities Exchange Act of 1934, as amended, and
Rule 10b-5 promulgated thereunder.
16. Expenses. The Issuer shall bear and pay all costs and expenses in
connection with the preparation, printing and filing of the Memorandum and any
amendments or supplements to the Memorandum, federal or state filing fees in
connection with the Offering, the preparation of this Agreement and related
documents, the issuance and delivery of certificates representing the Common
Shares to the purchasers of the Units, federal and state documentary taxes on
the issue of the certificates to the purchasers, and the cost of furnishing the
Memoranda.
17. Termination of Agreement. This Agreement may, subject to Section 20
and the other provisions hereof, be terminated as follows:
(a) This Agreement may be terminated by the Agent at any time
by notice to the Issuer because of any failure on the part of the Issuer to
comply with any of the terms and provisions, or to fulfill any of the conditions
hereof, or if for any reason the Issuer is unable to perform its obligations
hereunder.
(b) This Agreement may be terminated by the Issuer at any time
by notice to the Agent because of any failure on the part of the Agent to comply
with any of the terms and provisions, or to fulfill any of the conditions
hereof, or if for any reason the Agent is unable to perform its obligations
hereunder.
18. Indemnification. The Issuer shall indemnify and hold harmless the
Agent and each person, if any, who controls the Agent within the meaning of
Section 15 of the Securities Act from and against any and all losses, claims,
damages, expenses, or liabilities, joint or several, to which they or any of
them may become subject under the Securities Act or under any other statute or
at common law or otherwise, and, except as provided below, shall reimburse the
Agent and each controlling person, if any, for any legal or other expenses
reasonably incurred by them or any of them in connection with investigating or
defending any actions whether or not resulting in any liability, in so far as
the losses, claims, damages, expenses, liabilities, or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained the Memorandum, or arise out of or are based upon the omission or
alleged omission to state a material fact required to be stated in the
Memorandum or necessary in order to make the statements in the Memorandum not
misleading, unless the untrue statement or omission was made in the Memorandum
in reliance upon and in conformity with information furnished in writing to the
Issuer by the Agent directly or through counsel. However, this indemnification
provision shall not benefit the Agent or any person controlling the Agent if the
Agent failed to send or give a copy of the Memorandum to a person at or prior to
the time an offer of Units was made to that person, or otherwise acted in
violation of any covenants made by it herein.
Promptly after receipt by the Agent or any person controlling the Agent
of notice of the commencement of any action with respect to which
indemnification may be sought from the Issuer under this Section 18, the Agent
shall notify the Issuer in writing of the commencement, and, subject to the
provisions stated below, the Issuer may, but is not required to, assume the
defense of the action (including the employment of counsel and the payment of
expenses) in so far as the action relates to any alleged liability with respect
to which indemnification may be sought from the Issuer. The Agent or any person
controlling the Agent shall have the right to employ separate counsel in any
action and to participate in the defense of the action, but the fees and
expenses of the counsel shall not be the expense of the Issuer unless the
employment of the counsel has been specifically authorized in writing by the
Issuer. The Issuer shall not be liable, and shall not be required, to indemnify
any person in connection with any settlement of any action effected without the
Issuer's consent in writing.
The Agent shall indemnify and hold harmless the Issuer, each of its
directors, each of its officers who have signed the Memorandum, and each person,
if any, who controls the Issuer within the meaning of Section 15 of the
Securities Act from and against any and all losses, claims, damages, expenses,
or liabilities, joint or several, to which they or any of them may become
subject under the Securities Act or under any other statute or at common law or
otherwise, and, except as provided below, shall reimburse the Issuer and each
director, officer or controlling person, if any, for any legal or other expenses
reasonably incurred by them or any of them in connection with investigating or
defending any actions whether or not resulting in any liability, (i) in so far
as the losses, claims, damages, expenses, liabilities, or actions arise out of
or are based upon any untrue statement or alleged untrue statement of a material
fact contained the Memorandum, or arise out of or are based upon the omission or
alleged omission to state a material fact required to be stated in the
Memorandum or necessary in order to make the statements in the Memorandum not
misleading, but only in so far as the untrue statement or omission was made in
the Memorandum in reliance upon and in conformity with information furnished to
the Issuer by the Agent directly or through counsel, or (ii) in so far as the
losses, claims, damages, expenses, liabilities, or actions arise out of or are
based upon any statements made or actions taken which are not in accordance with
Agent's representations, warranties and covenants contained herein.
Promptly after receipt of notice of the commencement of any action with
respect to which indemnification may be sought from the Agent under this Section
18, the Issuer shall notify the Agent in writing of the commencement, and,
subject to the provisions stated below, the Agent shall assume the defense of
the action (including the employment of counsel and the payment of expenses) in
so far as the action relates to any alleged liability with respect to which
indemnification may be sought from the Agent. The Issuer and each director,
officer or controlling person shall have the right to employ separate counsel in
any action and to participate in the defense of the action, but the fees and
expense of the counsel shall not be the expense of the Agent unless the
employment of the counsel has been specifically authorized in writing by the
Agent. The Agent shall not be liable, and shall not be required, to indemnify
any person in connection with any settlement of any action effected without the
Agent's consent in writing.
19. Provisions to Survive Delivery. The representations, warranties,
covenants, indemnities, understandings, agreements, and other statements of the
Issuer and the Agent contemplated by, set forth in, or made pursuant to, this
Agreement and the indemnification agreements of the Issuer and the Agent shall
survive delivery of, and payment for, the Units.
20. Effective Time; Term of Agreement. This Agreement shall be
effective at 12:01 a.m. on the day specified on page 1 of this Agreement. Except
as provided below, this Agreement shall, with respect to the undertaking to sell
or to assist in selling and to pay commissions, be effective until the
termination of the Offering. With respect to all other provisions hereof,
especially the representations and warranties, covenants, and agreements to
indemnify, this Agreement shall be effective until the statute of limitations
has run with respect to all actions that may be brought in connection with or
arising out of this Agreement or any actions or omissions contemplated hereby.
21. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Arkansas. All questions with respect to the
construction of this Agreement and the rights and liabilities of the parties to
this Agreement shall be governed by the laws of the State of Arkansas. Any
action or proceeding arising out of or relating to this Agreement shall be
brought in the State of Arkansas.
22. Assignment. Neither this Agreement nor any interest of any party
herein may be assigned, pledged or transferred without the prior written consent
of the parties hereto.
23. Binding Effect. This Agreement inures to the benefit of, and is
binding upon, the parties hereto, and their respective heirs, representatives,
successors, assigns, and controlling person, but nothing herein shall be
construed as an authorization or right of any party to assign its rights and
obligations hereunder. A successor or an assign does not include a purchaser of
the Units of the Issuer solely by reason of that purchase.
24. Waiver. No waiver of any provision hereof is valid unless it is in
writing and signed by the person against whom it is charged.
25. Notice. Any notice required or permitted to be given pursuant
hereto must be in writing addressed to the person at the address specified
herein, or at an address changed in this manner.
If to the Issuer: Cytomedix, Inc.
0000 X. Xxxxxx Xx., Xxxxx X
Xxxxxx Xxxx, XX 00000
If to the Agent: __________________________
__________________________
__________________________
26. Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day, month and year first written above.
ISSUER: AGENT:
CYTOMEDIX, INC.
By:_____________________________ By:_____________________________
Xxxx X. Xxxxx, President
