FIRST AMENDMENT TO CONSULTING AGREEMENT
This FIRST AMENDMENT TO CONSULTING AGREEMENT (the "First Amendment") is
made and entered into this 15th day of September, 2000, by and between
Cytomedix, Inc., a Delaware corporation (the "Company"), and BDR Consulting,
Inc., an Arkansas corporation ("BDR").
WHEREAS, the Company's predecessor organization, Autologous Wound
Therapy, Inc. and BDR have previously entered into a "Consulting Agreement"
effective as of October 29, 1999, a copy of which is attached hereto as Schedule
1; and
WHEREAS, the Company and BDR are desirous of amending the Consulting
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
SECTION 1. AMENDMENT OF THE CONSULTING AGREEMENT.
In accordance with Section 9(b) of the Consulting Agreement, the parties agree
to amend the Consulting Agreement as follows:
a. Section 5, captioned, as "CONSULTING FEES." is hereby re-designated as
Section 5(a).
b. A new Section 5(b) is hereby added to Section 5, which reads:
"(b) In further consideration for services to be provided hereunder by
BDR, the Company grants BDR an option to purchase seventy-two thousand
fifty-six shares of the Company's common stock at an exercise price of
$7.69 per share."
c. Exhibit A, entitled "CONSULTING FEE SCHEDULE" is hereby amended by replacing
it with a new Exhibit A, which is attached to this First Amendment as Schedule 2
SECTION 2. EFFECT OF AMENDMENT.
a. It is expressly understood by the parties that any shares acquired by BDR in
connection with the option described in this First Amendment shall be subject to
that certain Voting Agreement dated September 15, 2000 entered into by Jim D.
Swink, Jr., a principal of BDR; Cytomedix, NV; and David C. Demarest as
Proxyholder and shall be considered to be "After-Acquired Shares" as that term
is defined in Section 4 of the Voting Agreement.
b. It is further expressly understood by the parties that the option granted
under this this First Amendment shall not be considered a violation of Section
4.2 of the Voting Agreement.
c. The option granted to BDR in this First Amendment shall otherwise be subject
to and governed by the applicable terms and conditions of the Voting Agreement
and the Company's Long Term Incentive Plan as adopted by the Company's Board of
Directors, approved by the Company's shareholders and otherwise in force and
effect as of the date of this First Amendment.
SECTION 3. MISCELLANEOUS.
3.1 Entire Agreement. This Agreement (including the Schedules 1 and 2
attached hereto):
3.1.1 constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof;
3.1.2 shall not be assigned by operation of law or otherwise without
the prior written consent of the party hereto purported to be affected
by such assignment, or such person's estate or legal representative;
and
3.1.3 shall not be amended, waived, altered or modified in any manner
whatsoever, except by a written instrument executed by the affected
parties.
3.2 Counterparts. This Agreement may be executed in two or more
counterparts for each respective Stockholder, each of which shall be
deemed to be an original, but all of which shall constitute one and the
same agreement.
3.3 Governing Law. This Agreement shall be governed by, construed, and
enforced in accordance with, the applicable laws of the State of
Delaware without giving effect to its principles or rules regarding
conflicts of laws.
3.4 Notices. All notices and other communications to any party hereunder
shall be in writing, duly signed by or on behalf of the party or
parties giving it, shall be served by hand, first-class mail
(registered or certified, return receipt requested), facsimile, or
professional air courier:
3.4.1 if to BDR, at the addressee as follows:
Jim D. Swink, Jr.
BDR Consulting, Inc.
10 Levant
Little Rock, Arkansas 72212
Telephone: (501) 960-5550
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3.4.2 if to Cytomedix, to the addresses as follows:
Cytomedix, Inc.
Three Parkway North
Deerfield, Illinois 60015
Attention: David C. Demarest, General Counsel
Telephone: (847) 405-7813
Facsimile: (847) 405-7801
The parties may change their addresses and contact numbers from time to
time and such will become effective upon delivery of notice of such changes, in
accordance with the provisions of this Section 3.4.
3.5 Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include,"
"includes," and "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation".
3.6 Severability. Any term or provision of this Agreement which is held
invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting the
validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction. If any provision of this Agreement
is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
3.7 Fees of Legal Counsel. In the event any party to this Agreement shall
employ legal counsel with respect to any claim concerning the
interpretation or any breach of this Agreement, or otherwise to protect
its rights hereunder or to enforce any term or provision hereof, the
prevailing party shall have the right to recover from the other party
all of its reasonable attorneys' fees and out of pocket costs and
expenses incurred in connection therewith.
3.8 Time for Performance. Time is of the essence in this Agreement.
3.9 Further Assurances. Each Stockholder further agrees to execute all
additional writings, consents and authorizations as may be reasonably
requested by the parties to evidence the agreements herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Cytomedix, Inc. BDR Consulting, Inc.
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James A. Cour Jim D. Swink, Jr.
CEO President and CEO
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SCHEDULE 1
CONSULTING AGREEMENT
[copy as attached]
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SCHEDULE 2
EXHIBIT A AS AMENDED BY FIRST AMENDMENT
[copy as attached]
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EXHIBIT A
CONSULTING FEE SCHEDULE
For purposes of this Agreement the consulting fees shall be based on
the rolling twelve month aggregate gross revenues of the Company measured as of
the close of the month immediately prior to the month for which the payment is
due is being calculated. For example, the payment due December 31, 2000, would
be based on the aggregate gross revenues for the rolling twelve month period
ending November 30, 2000. The fee due and payable shall be computed as follows:
Rolling Annual Gross Revenues Monthly Fee
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$0 to $7.5 Million $6,000
$7.5 Million and above $10,000