REGISTRATION RIGHTS AGREEMENT
This
REGISTRATION RIGHTS AGREEMENT (“Agreement”), dated as of August 2, 2007, by and
among Cytomedix, Inc., a Delaware corporation, (“Company”), and Fitch, Even,
Tabin & Xxxxxxxx and The Xxxxxxx Law Firm, together with any assignee or
transferee of all of their respective registration rights hereunder
(“Warrantholders”).
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1.
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DEFINITIONS.
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As
used
in this Agreement, the following terms shall have the following
meanings:
(a) “Agreement”
means this Registration Rights Agreement.
(b) “Common
Stock” means the Company’s common stock, par value $0.0001.
(c) “Company”
means Cytomedix, Inc., a Delaware corporation.
(d) “Exchange
Act” means the Securities Exchange Act of 1934, as amended.
(e) “Register,”
“registered,” and “registration” refer to a registration effected by preparing
and filing a Registration Statement(s) in compliance with the Securities Act
and
pursuant to Rule 415, and the declaration or ordering of effectiveness of such
Registration Statement(s) by the SEC.
(f) “Registrable
Securities” means the shares of Common Stock issuable to the Warrantholders
pursuant to the Shareholder’s Agreement, and the Warrant Shares and any shares
of Common Stock issued or issuable as a dividend on or in exchange for or
otherwise with respect to any of the Warrant Shares, provided,
that
any shares of Common Stock which have been sold pursuant to a Registration
Statement or which may be sold without registration or restriction (including
volume limitations) shall cease to be Registrable Securities
hereunder.
(g) “Registration
Period” means the period beginning upon the effectiveness of a Registration
Statement covering the resale of the Registrable Securities and ending upon
the
earlier of (i) the date on which all of the Registrable Securities have been
sold and (ii) the date on which the Registrable Securities may be immediately
sold to the public without registration or restriction (including without
limitation as to volume by each holder thereof) under the Securities
Act.
(h) “Registration
Statement” means a registration statement of the Company under the Securities
Act.
(i) “Rule
415” means Rule 415 under the Securities Act or any successor rule providing for
offering securities on a continuous basis.
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Cytomedix,
Inc.
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August
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(j) “SEC”
means the United States Securities and Exchange Commission.
(k) “Securities
Act” means the Securities Act of 1933, as amended.
(l) “Shareholder’s
Agreement” means the Shareholder’s Agreement of even date herewith between the
Company and the Warrantholder relating to the issuance of the Warrants and
other
securities to the Warrantholders.
(m) “Warrantholders”
means the current holders of the Warrants and other securities and any
transferee or assignee who agrees to become bound by the provisions of this
Agreement.
(n) “Warrants”
means the Company’s Warrants to Purchase Common Stock of Cytomedix, Inc., of
even date herewith.
(o) “Warrant
Shares” means the shares of Common Stock issuable upon exercise of the
Warrants.
| 2. |
REGISTRATION.
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(a) Within
one hundred twenty-five (125) days from the date of this Agreement, the Company
shall file with the SEC a Registration Statement covering the Registrable
Securities; provided, that Warrantholders shall furnish to the Company such
information as the Company shall require to complete the Registration
Statement.
(b)
Before
filing a Registration Statement or prospectus or any amendments or supplements
thereto, the Company shall furnish copies of all such documents proposed to
be
filed, to the Warrantholder, its counsel and the representative of the
underwriters, if any, as reasonably requested by such Warrantholder, its counsel
and/or representative of the underwriters. Such documents will be subject to
the
review and comment (none of which comments the Company will have an obligation
to accept) of the Warrantholder, its counsel and the representative of the
underwriters, if any. The Company shall not be required to file any registration
statement or prospectus or any amendments or supplements thereto to which the
representative of the underwriters, if any, reasonably shall object on a timely
basis.
(c) The
Registration Statement, to the extent allowable under the Securities Act and
the
rules and regulations promulgated thereunder, shall state that such Registration
Statement also covers such indeterminate number of additional shares of Common
Stock as may become issuable upon exercise of the Warrants (i) to prevent
dilution resulting from stock splits, stock dividends or similar transactions
as
and if so provided in the Warrant or (ii) by reason of changes in the exercise
price of the Warrants as and if so provided in the Warrant.
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| 3. |
OBLIGATIONS
OF THE COMPANY.
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In
connection with the registration of the Registrable Securities, the Company
shall have the following obligations:
(a) When
so
required by Section 2(a) of this Agreement, the Company shall prepare and file
with the SEC, a Registration Statement with respect to the number of Registrable
Securities provided in Section 2(a) and 2(c), and thereafter use its best
efforts to cause such Registration Statement relating to Registrable Securities
to become effective as soon as possible after such filing. The Company shall
use
its best efforts to keep the Registration Statement effective pursuant to Rule
415 at all times until the end of the Registration Period. The Registration
Statement (including any amendments or supplements thereto and prospectuses
contained therein) shall not contain any untrue statement of a material fact
or
omit to state a material fact required to be stated therein, or necessary to
make the statements therein, in light of the circumstances, under which they
were made, not misleading.
(b) The
Company shall use its best efforts to prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to the
Registration Statements and the prospectus used in connection with the
Registration Statements as may be necessary to keep the Registration Statements
effective at all times during the Registration Period, and, during such period,
comply with the provisions of the Securities Act with respect to the disposition
of all Registrable Securities of the Company covered by the Registration
Statements until such time as all of such Registrable Securities have been
disposed of in accordance with the intended methods of disposition by the seller
or sellers thereof as set forth in the Registration Statements.
(c) The
Company shall furnish to each Warrantholder whose
Registrable Securities are included in a Registration Statement such number
of
copies of a prospectus, including a preliminary prospectus, and all amendments
and supplements thereto and such other documents as such Warrantholder may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Warrantholder in accordance with the Registration
Statement.
(d)
The
Company shall use commercially reasonable efforts to register or qualify the
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as the Warrantholder reasonably shall request. However, the
Company shall not be obligated, by reason thereof, to qualify as a foreign
corporation or file any general consent to service of process under the laws
of
any such jurisdiction or subject itself to taxation as doing business in any
such jurisdiction.
(e) The
Company will promptly respond to any and all comments received from the SEC,
with a view towards causing each Registration Statement or any amendment thereto
to be declared effective by the SEC as soon as practicable, shall promptly
file
an acceleration request as soon as practicable following the resolution or
clearance of all SEC comments or, if applicable, following notification by
the
SEC that any such Registration Statement or any amendment thereto will not
be
subject to review, shall promptly file with the SEC a final prospectus as soon
as practicable following receipt by the Company from the SEC of an order
declaring the Registration Statement effective.
(f) The
Company may enter into an underwriting agreement which shall be similar in
form,
scope and substance as is customary in underwritten offerings, and may take
all
such other actions in connection therewith in order to expedite or facilitate
the disposition of the Registrable Securities. The Company shall select the
underwriter or underwriters to be engaged and shall designate the
representative, if any, of the underwriters so engaged. In such connection,
the
Company shall make such representations and warranties to the underwriters
with
respect to the business of the Company, the registration statement, the
prospectus and the documents, if any, incorporated or deemed to be incorporated
by reference in the registration statement, in each case in form, substance
and
scope as are customarily made by issuers to underwriters in underwritten
(initial or secondary, as applicable) offerings and confirm the same if and
when
requested. The Company shall also obtain opinions of counsel to the Company
and
updates thereof, which counsel and opinions (in form, scope and substance)
shall
be reasonably satisfactory to the representative of the underwriters.
(g) The
Company shall use its best efforts to prevent the issuance of any stop order
or
other suspension of effectiveness of any Registration Statement, and, if such
an
order is issued, to obtain the withdrawal of such order at the earliest possible
moment and to notify each Warrantholder who holds Registrable Securities being
sold (or, in the event of an underwritten offering, the managing underwriters)
of the issuance of such order and the resolution thereof.
(h) The
Company shall make available for inspection by any Warrantholder or
Warrantholder’s counsel, or any underwriter participating in any disposition
pursuant to a Registration Statement (collectively, the “Inspectors”) all
pertinent financial and other records, and pertinent corporate documents and
properties of the Company (collectively, the “Records”), as shall be reasonably
deemed necessary by each Inspector to enable each Inspector to exercise its
due
diligence responsibility, and cause the Company’s officers, directors and
employees to supply all information which any Inspector may reasonably request
for purposes of such due diligence; provided,
however,
that
each Inspector shall hold in confidence and shall not make any disclosure
(except to a Warrantholder) of any Record or other information which the Company
determines in good faith to be confidential, and of which determination the
Inspectors are so notified, unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in any Registration
Statement, (ii) the release of such Records is ordered pursuant to a subpoena
or
other order from a court or government body of competent jurisdiction, or (iii)
the information in such Records has been made generally available to the public
other than by disclosure in violation of this or any other agreement. The
Company shall not be required to disclose any confidential information in such
Records to any Inspector until and unless such Inspector shall have entered
into
confidentiality agreements (in form and substance satisfactory to the Company).
Each Inspector agrees that it shall, upon learning that disclosure of such
Records is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to the Company and
allow
the Company, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, the Records deemed
confidential. Nothing herein (or in any other confidentiality agreement between
the Company and any Warrantholder) shall be deemed to limit the Warrantholder’s
ability to sell Registrable Securities in a manner which is otherwise consistent
with applicable laws and regulations.
(i) The
Company shall in connection with the Registration Statement covering the
Registrable Securities (i) cause all the Registrable Securities covered by
the
Registration Statement to be listed on each national securities exchange on
which securities of the same class or series issued by the Company are then
listed, if any, if the listing of such Registrable Securities is then permitted
under the rules of such exchange, or (ii) to the extent the securities of the
same class or series are not then listed on a national securities exchange,
secure the designation and quotation, of all the Registrable Securities covered
by the Registration Statement on Nasdaq or, if not eligible for Nasdaq, on
Nasdaq SmallCap or, if not eligible for Nasdaq or Nasdaq SmallCap, on the
Over-The-Counter Bulletin Board (“OTCBB”) or the Pink Sheets, LLC (“Pink
Sheets”) and, without limiting the generality of the foregoing, to arrange for
at least two market makers to register with the National Association of
Securities Dealers, Inc. (“NASD”) as such with respect to such Registrable
Securities.
(j) The
Company shall provide a transfer agent and registrar, which may be a single
entity, for the Registrable Securities not later than the effective date of
the
Registration Statement.
(k) The
Company shall cooperate with the Warrantholders who hold Registrable Securities
being offered and the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates (not bearing
any
restrictive legends) representing shares of Common Stock and enable such
certificates to be in such denominations or amounts, as the case may be, as
the
managing underwriter or underwriters, if any, or the Warrantholders may
reasonably request and registered in such names as the managing underwriter
or
underwriters, if any, or the Warrantholders may request. The Company shall
deliver, and shall cause legal counsel selected by the Company to deliver,
to
the transfer agent for the Registrable Securities (with copies to the
Warrantholders, whose Registrable Securities are included in such Registration
Statement) an instruction that certain shares have been registered and may
be
transferred.
| 4. |
OBLIGATIONS
OF THE WARRANTHOLDERS.
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In
connection with the registration of the Registrable Securities, the
Warrantholders shall have the following obligations:
(a) It
shall
be a condition precedent to the obligations of the Company to complete the
registration pursuant to this Agreement with respect to the Registrable
Securities of a particular Warrantholder that such Warrantholder shall furnish
to the Company such information regarding itself, the Registrable Securities
held by it and the intended method of disposition of the Registrable Securities
held by it as shall be reasonably required to effect the registration of such
Registrable Securities and shall execute such documents in connection with
such
registration as the Company may reasonably request. At least five (5) business
days prior to the first anticipated filing date of the Registration Statement,
the Company shall notify each Warrantholder of the information the Company
requires from each such Warrantholder.
(b) Each
Warrantholder, by such Warrantholder’s acceptance of the Registrable Securities,
agrees to cooperate with the Company as reasonably requested by the Company
in
connection with the preparation and filing of the Registration Statements
hereunder, unless such Warrantholder has notified the Company in writing of
such
Warrantholder’s election to exclude all of such Warrantholder’s Registrable
Securities from the Registration Statements, except to the extent any such
requested information is required by the SEC or by applicable law to be included
in any such Registration Statement.
(c) In
the
event, the Company decides to engage the services of an underwriter, each
Warrantholder agrees to enter into and perform such Warrantholder’s obligations
under an underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
managing underwriter of such offering and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of the
Registrable Securities, unless such Warrantholder has notified the Company
in
writing of such Warrantholder’s election to exclude all of such Warrantholder’s
Registrable Securities from such Registration Statement.
(d) Each
Warrantholder agrees that, upon receipt of any notice from the Company of the
happening of any event described in Section 3(g), such Warrantholder will
immediately discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such
Warrantholder’s receipt of the copies of the supplemented or amended prospectus.
If so directed by the Company, such Warrantholder shall deliver to the Company
(at the expense of the Company) or destroy (and deliver to the Company a
certificate of destruction) all copies in such Warrantholder’s possession, of
the prospectus covering such Registrable Securities current at the time of
receipt of such notice.
(e) No
Warrantholder may participate in any underwritten registration hereunder unless
such Warrantholder (i) agrees to sell such Warrantholder’s Registrable
Securities on the basis provided in any underwriting arrangements in usual
and
customary form entered into by the Company, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements, and (iii) agrees to pay its pro rata share of all underwriting
discounts and commissions and any expenses in excess of those payable by the
Company pursuant to Section 5 below.
| 5. |
EXPENSES
OF REGISTRATION.
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All
reasonable expenses (other than underwriting discounts and commissions and
stock
transfer taxes, if any, and such fees for counsel, printing, registration and
other fees as state securities officials may require that holders of shares
pay)
including, without limitation, all registration, listing and qualification
fees,
printers and accounting fees, the fees and disbursements of counsel for the
Company, shall be paid by the Company.
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6.
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INDEMNIFICATION.
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(a) To
the
extent permitted by law, the Company will indemnify, hold harmless and defend
(i) each Warrantholder who holds such Registrable Securities, (ii) the
directors, officers, partners and each person who controls any Warrantholder
within the meaning of the Securities Act or the Exchange Act, if any, (iii)
any
underwriter (as defined in the Securities Act) for the Warrantholders, and
(iv)
the directors, officers, partners, employees and each person who controls any
such underwriter within the meaning of the Securities Act or the Exchange Act,
if any (each, an “Indemnified Person”), against any joint or several losses,
claims, damages, liabilities or expenses (collectively, together with actions,
proceedings or inquiries by any regulatory or self-regulatory organization,
whether commenced or threatened, in respect thereof, “Claims”) to which any of
them may become subject insofar as such Claims arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of a material fact in
a
Registration Statement or the omission or alleged omission to state therein
a
material fact required to be stated or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading; (ii)
any untrue statement or alleged untrue statement of a material fact contained
in
any preliminary prospectus if used prior to the effective date of such
Registration Statement, or contained in the final prospectus (as amended or
supplemented, if the Company files any amendment thereof or supplement thereto
with the SEC) or the omission or alleged omission to state therein any material
fact necessary to make the statements made therein, in light of the
circumstances under which the statements therein were made, not misleading;
or
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any other law, including, without limitation, any state
securities law, or any rule or regulation thereunder relating to the offer
or
sale of the Registrable Securities (the matters in the foregoing clauses (i)
through (iii) being, collectively, “Violations”). The Company shall reimburse
the Indemnified Person for any reasonable legal fees or other reasonable
expenses incurred by them in connection with investigating or defending any
such
Claim, subject to Section 6(c). Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this Section 6(a):
(i) shall not apply to a Claim arising out of or based upon a Violation which
occurs in reliance upon and in conformity with information furnished in writing
to the Company by any Indemnified Person or underwriter for such Indemnified
Person expressly for use in connection with the preparation of such Registration
Statement or any such amendment thereof or supplement thereto, if such
prospectus was timely made available by the Company pursuant to Section 3(c)
hereof (ii) shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of the Company, which
consent shall not be unreasonably withheld; (iii) with respect to any
preliminary prospectus, shall not inure to the benefit of any Indemnified
Person, if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected on a timely basis in the prospectus, as
then amended or supplemented, and such corrected prospectus was timely made
available by the Company and the Indemnified Person was promptly advised in
writing not to use the incorrect prospectus prior to the use giving rise to
a
Violation and such Indemnified Person, notwithstanding such advice, used it,
and
(iv) in the case of gross negligence or willful misconduct by such
Warrantholder.
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(x) In
connection with any Registration Statement in which a Warrantholder is
participating, each such Warrantholder agrees to indemnify, hold harmless and
defend, to the same extent and in the same manner set forth in Section 6(a),
the
Company, each of its directors, each of its officers who signs the Registration
Statement, each person, if any, who controls the Company within the meaning
of
the Securities Act or the Exchange Act, any underwriter and any other
stockholder selling securities pursuant to the Registration Statement or any
of
its directors or officers or any person who controls such stockholder or
underwriter within the meaning of the Securities Act or the Exchange Act
(collectively and together with an Indemnified Person, an “Indemnified Party”),
against any Claim to which any of them may become subject, under the Securities
Act, the Exchange Act or otherwise, insofar as such Claim arises out of or
is
based upon any Violation by such Warrantholder, in each case to the extent
(and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished to the Company by such
Warrantholder expressly for use in connection with such Registration Statement
(or prospectus forming a part thereof); and subject to Section 6(c) such
Warrantholder will reimburse any legal or other expenses incurred by them in
connection with investigating or defending any such Claim; provided,
however,
that
the indemnity agreement contained in this Section 6(b) shall not apply (i)
to
amounts paid in settlement of any Claim if such settlement is effected without
the prior written consent of such Warrantholder, which consent shall not be
unreasonably withheld and (ii) in the case of gross negligence or willful
misconduct by the Company; provided,
further,
however,
that
the Warrantholder shall be liable under this Agreement (including this Section
6(b) and Section 7) for only that amount as does not exceed the net proceeds
to
such Warrantholder as a result of the sale of Registrable Securities pursuant
to
such Registration Statement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such Indemnified
Party and shall survive the transfer of the Registrable Securities by the
Warrantholders. Notwithstanding anything to the contrary contained herein,
the
indemnification agreement contained in this Section 6(b) with respect to any
preliminary prospectus shall not inure to the benefit of any Indemnified Party
if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected on a timely basis in the prospectus, as
then amended or supplemented.
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Registration
Rights Agreement
Cytomedix,
Inc.
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Page
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August
2, 2007
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(c) Promptly
after receipt by an Indemnified Person or Indemnified Party under this Section
6
of notice of the commencement of any action (including any governmental action),
such Indemnified Person or Indemnified Party shall, if a Claim in respect
thereof is to be made against any indemnifying party under this Section 6,
deliver to the indemnifying party a written notice of the commencement thereof,
and the indemnifying party shall have the right to participate in, and, to
the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnified Person
or
the Indemnified Party, as the case may be; provided,
however,
that an
Indemnified Person or lndemnified Party shall have the right to retain its
own
counsel with the fees and expenses to be paid by the indemnifying party, if,
in
the reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person or Indemnified Party
and the indemnifying party would be inappropriate due to actual or potential
differing interests between such Indemnified Person or Indemnified Party and
any
other party represented by such counsel in such proceeding. The indemnifying
party shall pay for only one separate legal counsel for the Indemnified Persons
or the Indemnified Parties, as applicable, and such legal counsel shall be
selected by Warrantholders holding at least seventy-five percent (75%) of the
Registrable Securities included in the Registration Statement to which the
Claim
relates if the Warrantholders are entitled to indemnification hereunder, or
the
Company, if the Company is entitled to indemnification hereunder, as applicable.
The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action shall not relieve such
indemnifying party of any liability to the Indemnified Person or Indemnified
Party under this Section 6, except to the extent that the indemnifying party
is
actually prejudiced in its ability to defend such action. The indemnification
required by this Section 6 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as such expense,
loss, damage or liability is incurred and is due and payable.
| 7. |
CONTRIBUTION.
|
To
the
extent any indemnification by an indemnifying party is prohibited or limited
by
law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 6 to the
fullest extent permitted by law; provided,
however,
that
(i) no contribution shall be made under circumstances where the maker would
not
have been liable for indemnification under the fault standards set forth in
Section 6, (ii) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any seller of Registrable Securities
who
was not guilty of such fraudulent misrepresentation, and (iii) contribution
(together with any indemnification or other obligations under this Agreement)
by
any seller of Registrable Securities shall be limited in amount to the net
amount of proceeds received by such seller from the sale of such Registrable
Securities.
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Registration
Rights Agreement
Cytomedix,
Inc.
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August
2, 2007
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| 8. |
RESERVED.
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| 9. |
REPORTS
UNDER THE EXCHANGE ACT.
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With
a
view to making available to the Warrantholders the benefits of Rule 144
promulgated under the Securities Act or any other similar rule or regulation
of
the SEC that may at any time permit the Warrantholders to sell Registrable
Securities to the public without registration (“Rule 144”), the Company agrees
to use its best efforts to:
(a) make
and
keep public information available, as those terms are understood and defined
in
Rule 144 as soon as practicable after Confirmation;
(b) file
with
the SEC in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act so long as the Company
remains subject to such requirements and the filing of such reports and other
documents is required for the applicable provisions of Rule 144;
and
(c) furnish
to each Warrantholder so long as such Warrantholder owns Registrable Securities,
promptly upon request, (i) a written statement by the Company that it has
complied with the reporting requirements of Rule 144, the Securities Act and
the
Exchange Act, (ii) a copy of the most recent annual or quarterly report of
the
Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested to permit the
Warrantholders to sell such securities pursuant to Rule 144 without
registration.
| 10. |
AMENDMENT
OF REGISTRATION RIGHTS.
|
Provisions
of this Agreement may be amended and the observance thereof may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with written consent of the Company, and Warrantholders
who
hold at least seventy-five percent (75%) of the Registrable Securities. Any
amendment or waiver effected in accordance with this Section 10 shall be binding
upon each Warrantholder and the Company.
| 11. |
MISCELLANEOUS.
|
(a) A
person
or entity is deemed to be a holder of Registrable Securities whenever such
person or entity owns of record such Registrable Securities. If the Company
receives conflicting instructions, notices or elections from two or more persons
or entities with respect to the same Registrable Securities, the Company shall
act upon the basis of instructions, notice or election received from the
registered owner of such Registrable Securities.
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Registration
Rights Agreement
Cytomedix,
Inc.
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(x) Any
notices required or permitted to be given under the terms hereof shall be sent
by certified or registered mail (return receipt requested) or delivered
personally or by courier (including a recognized overnight delivery service)
or
by facsimile and shall be effective five days after being placed in the mail,
if
mailed by regular United States mail, or upon receipt, if delivered personally
or by courier (including a recognized overnight delivery service) or by
facsimile, in each case addressed to a party. The addresses for such
communications shall be unless otherwise notified:
If
to the
Company:
Cytomedix,
Inc.
000
Xxxxxxxxxx Xx.
Xxxxx
000
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Chief Financial Officer
With
copy
to:
Xxxxxxxx
& Xxxxxxxx PLC
000
Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx
Xxxx, Xxxxxxxx 00000
Attention:
A.
Xxxxx
Xxxxxxx
If
to a
Warrantholder: to the address set forth immediately below such Warrantholder’s
name on the signature pages to the Shareholder’s Agreement.
(c) Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as
a
waiver thereof.
(d) THIS
AGREEMENT SHALL BE ENFORCED, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT
OF
LAWS. THE PARTIES HERETO HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE
STATE AND FEDERAL COURTS LOCATED IN XXXXXXXXXX COUNTY, MARYLAND WITH RESPECT
TO
ANY DISPUTE ARISING UNDER THIS AGREEMENT, THE AGREEMENTS ENTERED INTO IN
CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. BOTH
PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH SUIT OR PROCEEDING. BOTH PARTIES FURTHER AGREE THAT SERVICE
OF PROCESS UPON A PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED IN EVERY
RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT ANY PARTY’S RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW. ALL PARTIES AGREE THAT A FINAL NON-APPEALABLE
JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED
IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER LAWFUL MANNER.
THE PARTY WHICH DOES NOT PREVAIL IN ANY DISPUTE ARISING UNDER THIS AGREEMENT
SHALL BE RESPONSIBLE FOR ALL FEES AND EXPENSES, INCLUDING ATTORNEYS FEES,
INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH SUCH DISPUTE.
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Rights Agreement
Cytomedix,
Inc.
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(e) In
the
event that any provision of this Agreement is invalid or unenforceable under
any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform to such statute or rule of law. Any provision hereof which
may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision hereof
(f) This
Agreement constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof. There are no restrictions, promises, warranties
or
undertakings, other than those set forth or referred to herein and therein.
This
Agreement supersedes all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof.
(g) This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and assigns.
(h) The
headings in this Agreement are for convenience of reference only and shall
not
form part of, or affect the interpretation of, this Agreement.
(i) This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which shall constitute one and the same agreement
and shall become effective when counterparts have been signed by each party
and
delivered to the other party. This Agreement, once executed by a party, may
be
delivered to the other party hereto by facsimile transmission of a copy of
this
Agreement bearing the signature of the party so delivering this
Agreement.
(j) Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
(k) Except
as
otherwise provided herein, all consents and other determinations to be made
by
the Warrantholders pursuant to this Agreement shall be made by Warrantholders
owning at least seventy-five percent (75%) of the Registrable Securities,
determined as if all of the Warrants then outstanding have been converted into
Registrable Securities.
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Registration
Rights Agreement
Cytomedix,
Inc.
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(l) The
Company acknowledges that a breach by it of its obligations hereunder will
cause
irreparable harm to each Warrantholder by vitiating the intent and purpose
of
the transactions contemplated hereby. Accordingly, the Company acknowledges
that
the remedy at law for breach of its obligations under this Agreement will be
inadequate and agrees, in the event of a breach or threatened breach by the
Company of any of the provisions under this Agreement, that each Warrantholder
shall be entitled, in addition to all other available remedies in law or in
equity, and in addition to the penalties assessable herein, to an injunction
or
injunctions restraining, preventing or curing any breach of this Agreement
and
to enforce specifically the terms and provisions hereof without the necessity
of
showing economic loss and without any bond or other security being
required.
(m) The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent, and no rules of strict construction
will
be applied against any party.
IN
WITNESS WHEREOF, the Company and the undersigned Warrantholder have caused
this
Agreement to be duly executed as of the date first above written.
CYTOMEDIX,
INC.
Chief
Financial Officer
WARRANTHOLDER(S)
FITCH,
EVEN, TABIN & XXXXXXXX
By:
000
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
THE
XXXXXXX LAW FIRM
By:
00
Xxxx
Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
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Rights Agreement
Cytomedix,
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