EXHIBIT 10.16
AMENDED AND RESTATED AGREEMENT
This Amended and Restated Agreement ("Agreement"), dated March 19, 2004,
amends and supersedes the Letter Agreement dated January 30, 2004, by and
between Cytomedix, Inc. (the "Company") and Xxxxxxx Xxxx Partners ("BHP").
I. Services to Be Rendered
BHP shall act as the Company's placement agent in connection with the private
placement of $2.8 million of Series C Convertible Preferred Stock ("Series C
Stock") and warrants (the "Financing"). Of the total amount of securities
offered and sold in the Financing, $1.5 million shall be offered and sold to
Xxxxxxx Capital Management ("Xxxxxxx") or an entity "affiliated" with Xxxxxxx
(as defined in Rule 12b-2 under the Securities Exchange Act of 1934 ("Exchange
Act")). The remaining $1.3 million shall be offered and sold only to individual
"accredited" investors (as defined in Rule 501 under the Exchange Act) who are
natural persons with high net worth. The Financing will involve a transaction or
transactions exempt from registration under the Securities Act of 1933, as
amended, and in compliance with the applicable laws and regulations of any
jurisdiction in which the securities offered in the Financing are offered or
sold.
In connection with this Agreement, BHP will advise the Company as to the
specific terms of the securities to be offered in the Financing, consult with
the Company as to potential purchasers of the securities to be offered in the
Financing, assist in the preparation and distribution of appropriate offering
materials to be used in connection with the Financing, and arrange the Financing
at a price and on terms acceptable to the Company. BHP shall not have the power
or authority to bind the Company to any sale of the securities offered in the
Financing. Only the Company shall have the authority to approve any sale or
transfer of any security to be offered in the Financing.
BHP shall be permitted to engage the services of one or more sub-placement
agents, subject to the Company's approval and consent to the sub-placement
agent(s) selected by BHP.
The rights, duties and obligations of BHP as contained in this Agreement shall
be limited only to the Financing as described above. BHP shall have no rights,
duties or obligations with respect to any other offering of the Company's
securities, including, specifically, (i) any exchange of Series C Stock for the
Company's existing preferred stock, or (ii) any offering of the Company's common
stock and/or rights to purchase the Company's common stock.
II. Compensation and Expense Reimbursement
The Company shall pay to BHP a cash fee equal to ten percent (10%) of the gross
proceeds received by the Company in connection with the Financing.
BHP or its assigns shall receive Placement Agent Warrants representing the right
to purchase that number of shares of the Company's common stock equal to ten
percent (10%) of the common shares underlying the aggregate number of Series C
Stock sold as a result of BHP's services as placement agent hereunder. The
Placement Agent Warrants shall be exercisable at the conversion price of the
Series C Stock and shall expire five (5) years from the issuance date. The
common stock to be issued upon exercise of the Placement Agent Warrants shall
have standard piggyback registration rights, a cashless exercise provision,
shall be non-redeemable and shall be included in the registration statement
covering the common stock to be issued upon conversion of the Series C Stock to
be issued in the Financing.
The Company shall provide to BHP periodic reimbursement of all out-of-pocket
expenses, which amount shall not exceed $10,000 without the prior written
approval of the Company.
III. Notice
Notice given pursuant to any of the provisions of this Agreement shall be given
in writing and shall be sent by recognized overnight courier or personally
delivered (a) if to the Company, to its office at 0000 Xxxxxx Xxxx, Xxxxx X,
Xxxxxx Xxxx, Xxxxxxxx, 00000. (b) if to BHP, to its office at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000. Attention: Xxxxx Xxxxxxx, Managing Director.
IV. Confidentiality
Unless otherwise required by applicable law, no advice or opinion rendered by
BHP, whether formal or informal, may be disclosed, in whole or in part, or
summarized, excerpted from or otherwise referred to without its prior written
consent. In addition and unless otherwise required by applicable law, BHP may
not be otherwise referred to without its prior written consent.
BHP agrees that all confidential information which it may now possess or may
obtain relating to the business, financial condition, results of operations,
business properties, assets or liabilities, or future prospects of the Company
may not be published, disclosed or made accessible by it to any other person or
any entity at any time or used by it without the written consent of the Company;
provided, however, that the restrictions of this sentence shall not apply (a) as
may otherwise be required by law, (b) as may be necessary or appropriate in
connection with this Agreement, or (c) to the extent such information shall be
or shall otherwise become publicly available.
V. Term
BHP's engagement under this Agreement shall terminate the earlier of (i)
such date that the Company has received and accepted valid subscription
agreements and funds representing commitments to invest at least $2.8 million in
the Financing as provided in Section I above, or (ii) thirty (30) days from the
date of this Agreement.
VI. Consulting Agreement
In connection with the Company's future financing and marketing efforts,
BHP agrees to serve as a consultant to the Company for a six-month term with
compensation of $5,000 per month. As further compensation for the consulting
services provided by BHP, BHP shall be entitled to warrants granting it the
right to purchase 100,000 shares of the Company's common stock at $1.00 per
share.
VII. Indemnification
The Company shall indemnify and hold harmless BHP, its affiliates, directors,
officers, partners, agents and controlling persons (collectively, "Indemnified
Persons") from and against any and all losses, claims, damages or liabilities
(including actions or proceedings in respect thereof) (collectively "Losses")
related to or arising out of (A) any untrue statement or alleged untrue
statement of a material fact contained in any information (whether oral or
written) or documents, including, without limitation, any information furnished
by the Company and made available directly or through BHP to any offeree of
securities involved in the Financing or any of their representatives, or the
omission or the alleged omission to state therein a material fact necessary in
order to make the statements therein not misleading, in the light of the
circumstances under which they were made, or (B) otherwise related to or arising
out of the engagement pursuant to this Agreement. The Company shall be entitled
to seek reimbursement of any indemnity payments made hereunder if it is found
that the Losses resulted primarily from the bad faith or gross negligence of any
Indemnified Person, breach of this Agreement, or any Indemnified Person's
failure to comply with any federal or state law.
The Company will reimburse each Indemnified Person for reasonable expenses
(including reasonable fees and disbursements of counsel) as they are incurred by
such Indemnified Person in connection with investigating, preparing for or
defending any action, claim, investigation, inquiry, arbitration or other
proceeding ("Action") referred to above (or enforcing the Agreement).
The Company's obligations hereunder shall be in addition to any rights that any
Indemnified Person may have at common law or otherwise. Solely for the purpose
of enforcing the indemnification provisions under this Agreement, the Company
hereby consents to personal jurisdiction and to service and venue in any court
in which any claim seeking Losses covered by this indemnification provision is
brought by or against any Indemnified Person. The Company acknowledges that in
Amended and Rstated Agreement March 19, 2004
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connection with the engagement pursuant to this Agreement you are acting as an
independent contractor with duties owing solely to the Company. BHP AND
CYOTMEDIX HEREBY AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY
CLAIM, COUNTER-CLAIM OR ACTION ARISING OUT OF THE ENGAGEMENT PURSUANT TO THIS
AGREEMENT, BHP'S PERFORMANCE THEREOF OR THIS INDEMNIFICATION PROVISION.
These indemnification provisions shall apply to the engagement pursuant to the
Agreement (including related activities prior to the date hereof) and any
modification thereof and shall remain in full force and effect regardless of the
completion or termination of BHP's engagement hereunder.
VIII. Miscellaneous
BHP is a division of Pali Capital Inc., a European American Investment Group
Company. This Agreement shall remain in full force and effect as to BHP and the
Company in the event that BHP becomes an independent entity. In connection with
this engagement, BHP is acting as an independent contractor with duties owing
solely to the Company. Each of BHP and the Company agrees that the other party
has no fiduciary duty to it or its stockholders, officers and directors as a
result of the engagement described in this Agreement. This Agreement, including
the indemnification provisions provided in Section VI above, shall be under seal
and governed by and construed in accordance with the laws of the State of New
York without regard to conflicts of law principles thereof. This Agreement may
not be amended or modified except in writing signed by each of the parties
hereto.
This Agreement contains the entire agreement of the parties with respect to the
subject matter hereof and supersedes and takes precedence over all prior
agreements or understandings, whether oral or written, between BHP and the
Company. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provisions of this
Agreement, which shall remain in full force and effect.
Accepted and Agreed:
Xxxxxxx Xxxx Partners Cytomedix, Inc.
By: By:
------------------------ -------------------------
Name: Name:
Title: Title:
Amended and Rstated Agreement March 19, 2004
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