Exhibit 10.20
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered into
effective April 1, 2003, by and between Cytomedix, Inc. ("Cytomedix"), and
Xxxxxx X. Xxxxx, an individual, ("Consultant") (collectively referred to as the
"Parties").
WHEREAS, Cytomedix is biotechnology company that develops, produces and
licenses autologous cellular therapies for the treatment of chronic non-healing
wounds using its proprietary platelet gel and related product therapies;
WHEREAS, Cytomedix desires to engage Consultant to provide financing,
marketing, and strategic consulting services for the Company and to otherwise
assist the Company with its private placement and various marketing projects;
WHEREAS, Consultant desires to be engaged by Cytomedix as a Consultant
and is willing to execute this Agreement as a condition thereto;
NOW, THEREFORE, in consideration of the compensation set forth in this
Agreement, the foregoing, and the mutual covenants and agreements set forth
herein, the Parties agree as follows:
1. Commencement of Engagement.
(a) Consultant agrees to be engaged by Cytomedix, and Cytomedix agrees
to engage Consultant on a non-exclusive basis for a period of twelve months
("Consulting Term") to provide the following services:
(1) Assistance in connection with Cytomedix's private offering
expected to commence in May 2003;
(2) Assistance in structuring and overseeing the implementation of
Cytomedix's prospective clinical trials;
(3) Assistance in overseeing Cytomedix's efforts to obtain FDA
approval;
(4) Assistance in overseeing Cytomedix's efforts to obtain
reimbursement for Cytomedix's AutoloGel product; and
(5) Assistance in developing and implementing a strategic plan for
Cytomedix to obtain positive cash flow and profitability at
the earliest possible date.
(these services are collectively referred to as the "Consulting Services").
(b) The Consulting Term shall automatically renew for successive twelve
(12) month periods unless either party provides written notice thirty (30) days
in advance of the end of the Consulting Term or any successive term that the
party does not want to renew the Consulting Term.
(c) The Consultant shall provide Consulting Services during the
Consulting Term unless sooner terminated pursuant to the provisions of Section 7
of the Agreement.
(d) During the Consulting Term, Consultant shall be reasonably
available to Cytomedix during normal business hours and provide Consulting
Services as reasonably requested by Cytomedix. In the event that Cytomedix
desires to engage Consultant to perform services other than the Consulting
Services, then the Parties shall negotiate the terms and conditions of any such
special arrangement. Consultant shall have the right to perform consulting
services to parties other than Cytomedix; provided, however, that Consultant
shall not provide any services to any company which directly competes with
Cytomedix. Consultant shall also use commercially reasonable efforts to preserve
the goodwill of all employees, clients, suppliers, and other persons having
business relations with Cytomedix and to perform her services in a business-like
manner and in a manner that will not harm the business reputation of Cytomedix.
Consultant shall not be required to keep regular office hours. Cytomedix agrees
that Consultant may perform her duties hereunder at a location of Consultant's
choosing except when specifically requested to travel to a specific location.
(e) The services rendered by Consultant hereunder shall be provided by
Consultant as a consultant, and not as an employee, partner, or joint venturer
of Cytomedix. Cytomedix shall indemnify Consultant against and hold Consultant
harmless from any losses, claims, liabilities, damages, and expenses (including
without limitation, the fees and expenses of legal counsel) resulting from any
claim asserted against Consultant in connection with the performance of the
Consulting Services under the terms of this Agreement. This indemnification
provision shall survive the termination of this Agreement.
(f) Consultant shall provide Consulting Services to Cytomedix and shall
work directly with Cytomedix's management, consultants, and advisors; provided,
however, that the Consultant shall be supervised by and Consultant shall report
to Cytomedix's Board of Directors.
2. Compensation.
(a) As compensation for providing the Consulting Services to Cytomedix,
Consultant will receive compensation of Xxx Xxxxxxx Xxxxxx-Xxxx Xxxxxxxx (XX)
Dollars ($125,000.00) per annum. Such compensation shall be paid to Consultant
monthly, on the first business day of each month, commencing on the first
business day following execution of this Agreement in twelve (12) equal
installments of Ten Thousand Four Hundred Sixteen Dollars ($10,416.00).
Consultant shall be entitled to receive her monthly compensation regardless of
whether she performs any Consulting Services unless this Agreement is terminated
as set forth in Section 7 of this Agreement.
(b) The Parties agree that Cytomedix shall not withhold from any
compensation paid to Consultant any amounts required by federal, state or local
law to be withheld (including without limitation federal income tax withholding,
Social Security tax and Medicare tax). Cytomedix shall report Consultant's
compensation on a Form 1099. Consultant shall remain solely responsible for
payment of her own federal, state, and local taxes, and other withholdings, if
any.
(c) As compensation for providing Consulting Services to Cytomedix,
Consultant shall receive warrants as provided for in the Warrant Agreement,
attached as Exhibit 1 to this Agreement.
3. Expenses.
(a) Upon presentation of reasonable documentation of expenses, the
Company will promptly reimburse Consultant for all reasonable out of pocket
expenses that Consultant incurs in connection with providing Consulting
Services, including without limitation airfare and related travel expenses from
her home in the Cayman Islands to the United States when such travel is incurred
in connection with performing Consulting Services.
(b) Cytomedix shall reimburse Consultant for her legal expenses
incurred in connection with the preparation and execution of this Agreement, the
Warrant Agreement, and the Registration Rights Agreement, in an amount not to
exceed $15,000.
4. Limitations on Authority. Consultant is an independent contractor
and not an agent of Cytomedix or any of its affiliates for any purpose
whatsoever. Consultant will have no authority to, and agrees not to, assume or
create any obligation or liability, express or implied, on behalf of Cytomedix
or any of its affiliates or bind Cytomedix or any of its affiliates in any
manner whatsoever. Except as provided in Section 3 of this Agreement, Consultant
agrees to be liable for her own expenses.
5. Representation. Consultant hereby represents and warrants to
Cytomedix that her 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
any contract, agreement or understanding to which Consultant is a party or by
which Consultant is or may be bound, including without limitation, any
non-competition or similar agreement.
6. Confidential Information. Consultant agrees that all matters
concerning Cytomedix or any of its affiliates provided to Consultant by
Cytomedix in connection with the Consulting Services will be treated by
Consultant as Confidential Information and held in strict confidence both during
and for a period of two years after the Consulting Term. Confidential
Information means all information related to the Company's business or
operations, including without limitation, client and supplier lists, data,
marketing plans, projections, strategies, unpublished financial information,
trade secrets or discoveries unless that information is otherwise within the
public domain. Except for Consultant's disclosure of Confidential Information
included in Cytomedix's Confidential Offering Memorandum to prospective
investors in Cytomedix's private offering, Consultant shall not disclose the
Confidential Information to any individual who is not a Cytomedix employee,
officer, director, controlling shareholder, or representative of any of the
foregoing without consent of the Board of Directors of Cytomedix. Consultant
further agrees that she will take all commercially reasonable steps to comply
with the terms of this Section 6.
7. Termination.
(a) Upon thirty (30) days advance written notice, either party may
terminate this Agreement for any reason.
(b) Either party may terminate this Agreement if the other party
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.
(c) In the event that Consultant is terminated pursuant to this
Section, the Warrants shall cease to vest upon the date of termination only if
Consultant is terminated for "Cause" as provided and defined in the Common Stock
Warrant attached hereto as Exhibit A and incorporated herein.
(d) Cytomedix shall pay Consultant all fees and expenses incurred
through the effective date of termination. Additionally, Consultant shall be
entitled to her monthly payment for any month in which she has provided services
prior to the effective date of termination.
8. Entire Agreement. This Agreement constitutes the entire Agreement of
the Parties and supersedes all prior and contemporaneous negotiations and
agreements, oral or written. All prior and contemporaneous negotiations and
agreements are deemed incorporated and merged into this Agreement and are deemed
to have been abandoned if not so incorporated. No representations, oral or
written, are being relied upon by either party in executing this Agreement other
than the express representations of this Agreement. This Agreement cannot be
changed or terminated without the express written consent of the Parties.
9. Miscellaneous Provisions.
(a) This Agreement may not be amended or modified in any
respect except by a written instrument signed by both Parties hereto.
(b) This Agreement and the rights and obligations of the
Parties hereto shall be construed and enforced in accordance with the laws of
the state of Arkansas.
(c) The captions and section headings used herein are for the
purposes of reference and convenience only, are not a part of this Agreement,
and shall not be used in construing this Agreement.
(d) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and such counterparts
together shall constitute one and the same document.
EXECUTED in ____________, ____________ this ______ day of
________________, 2003.
______________________________________
Xxxxxx X. Xxxxx, Consultant
CYTOMEDIX, Inc.:
By: ____________________________________
Xxxx Xxxxx, Chief Executive Officer
