Exhibit 10.13
AGREEMENT BETWEEN
CARMEN GROUP, INC.
AND
CYTOMEDIX, INC.
Agreement, dated as of the first day of __________, 2003 (Agreement) is by and
between Cytomedix, Inc., having its principal place of business at 1523 S.
Bowman Road, Suite A, Little Rock, Arkansas 72211 ("Client") and Carmen Group,
Inc., a District of Columbia corporation having its principal office at 1301 K
Street, NW. Suite 800 East, Washington, D.C. 20005.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledge, the parties hereto agree as
follows:
ARTICLE I. SCOPE OF WORK
SECTION 1.01 SCOPE.
(A) Carmen Group shall work with Client to provide information on
Autologel(TM) to high level Food and Drug Administration (FDA) officials with a
goal of gaining FDA approval for Autologel(TM).
(B) Carmen Group shall assist Client in obtaining opportunities to
educate high level officials at Centers for Medicare and Medicaid Services (CMS)
and the Department of Health and Human Services (DHHS) as well as Executive
Branch officials as to the benefits of Autologel(TM).
(C) Assist Client in providing information on the benefits of
Autologel(TM) to Congressional representatives important to the FDA and CMS
approval process.
(D) Continue to work on development of a strategic plan leading to FDA
approval and Medicare and Medicaid reimbursement eligibility.
(E) Carmen Group's assistance with FDA approval is conditional upon the
necessary technical expertise from William Von Oehsen and Justin Hunter of
Powers, Pyles, Sutter & Verville, PI or other qualified technical experts as
designated by Client.
SECTION 1.02 PROFESSIONAL SERVICES AGREEMENT. There can be no guarantee
regarding the outcome or success of the federal approval, appropriations,
procurement, or grant processes.
SECTION 1.03 PROJECT MANAGEMENT. Carmen Group's efforts will be serviced by a
team that will be led by Greg Hampton, Managing Director, Healthcare. Mr.
Hampton shall oversee Carmen Group's professional staff whom he may assign this
project. Such staff will be available to Client for meetings and phone
conferencing as required.
ARTICLE II. TERMS AND FEE
SECTION 2.01 DURATION. This Agreement shall be effective on October 1, 2003 and
shall continue for one (1) calendar year thereafter.
SECTION 2.02 MONTHLY FEES. Client agrees to pay Carmen Group via a monthly fee
and a granting of stock options. The flat monthly fee is Fifteen Thousand
Dollars ($15,000). Fee is due upon signing of this Agreement and thereafter in
advance of each month of service, upon receipt of an invoice. Carmen Group shall
be under no obligation to perform any work for which payment has not been
received. Normally, all Carmen Group fees are based on the hourly rates of
personnel providing service, multiplied by the number of hours provided. Time is
recorded in increments of thirty (30) minutes. The minimum amount of time billed
for any assignment is thirty (30) minutes. Carmen Group's published rates range
between Seventy Five Dollars ($75) and Six Hundred Fifty Dollars ($650) per
hour. Client is informed and aware that Carmen Group reviews its rates at least
annually and that they may be modified to reflect changes in Carmen Group's
business structure. Additionally, upon signing of this agreement, Cytomedix
agrees to issue to Carmen Group an option for One Hundred Thousand (100,000)
shares of Cytomedix stock exercisable at the share price of One Dollar and
Twenty Five Cents ($1.25) per share. This option fully vests immediately and is
irrevocable. No later than September 30, 2004, Cytomedix will issue to Carmen
Group an additional option for One Hundred Thousand (100,000) shares of
Cytomedix stock exercisable at Two Dollars ($2.00) per share. In the case of
early termination of this Agreement, for any reason, Cytomedix shall have the
option of either immediately paying Carmen Group a lump sum amount equal to an
additional Ten Thousand Dollars ($10,000) per month for every month the
Agreement has been in effect and through the termination period, or Carmen Group
will immediately receive the fully vested option for One Hundred Thousand
(100,000) shares of Cytomedix stock exercisable at Two Dollars ($2.00) per
share.
ARTICLE III. EXPENSES
SECTION 3.01 RESPONSIBILITY FOR PAYMENT. Client is responsible for the payment
of all agreed upon fees and expenses.
SECTION 3.02 OUT-OF-POCKET EXPENSES. Expenses such as postage, courier
deliveries, telephone calls, fax usage, federal express deliveries,
photocopying, document design and production, and local transportation and
Client-authorized travel will be billed in addition to monthly fees. Travel will
be by client's request and will be economy class for flights under four hours
and business class for longer flights. Hotel stay is at the same level provided
to Client's executives.
SECTION 3.03 TIMELY PAYMENT OUT-OF-POCKET EXPENSES. Payment for out-of-pocket
expenses shall be due upon receipt of an invoice by Carmen Group to Client.
ARTICLE IV. LATE FEES AND REMITTANCES
SECTION 4.01 TIMELY PAYMENT OF INVOICES. All invoices are due and owing upon
receipt. Payments more than 45 days late are subject to a one and one half
percent (1.5%) per month late penalty.
SECTION 4.02 PAST DUE SUMS. In the event that it becomes necessary to expend
resources to recover any past due sums under this Agreement, Client shall be
responsible for all costs and expenses associated with collection efforts,
including, reasonable attorneys' fees.
SECTION 4.03 DELIVERY OF REMITTANCES. Client will direct all remittances via non
U.S. Postal Service courier service (e.g., Fedex, DHL, UPS) to Carmen Group,
1301 Street, NW, Suite 800 East, Washington, D.C. 20005-3317. Attention: Mr.
Michael Russell, CFO (phone: 202/85-0500). Client may also remit via wire
transfer as follows:
Wire Instructions
BB&T Bank
Branch Banking & Trust Company
601 13th Street, NW
Washington, DC 20005
ABA # 054001547
Further Credit
Carmen Group, Inc.
Account # 5160022134
Carmen Group, Inc. is a District of Columbia Corporation
Tax ID # 52-1905865
Client may also remit via automatic debit (ACH) free of charge. Information
available upon request.
ARTICLE V. TERMINATION
SECTION 5.01 TERMINATION. This agreement may be terminated by either party upon
SIXTY (60) days prior written notice. In the event of cancellation of this
Agreement by Cytomedix, for any reason, Cytomedix shall have the option of
either immediately paying Carmen Group a lump sum amount equal to an additional
Ten Thousand Dollars ($10,000) per month for every month the Agreement has been
in effect and through the termination period, or Carmen Group will immediately
receive the fully vested option for One Hundred Thousand (100,000) shares of
Cytomedix stock exercisable at Two Dollars ($2.00) per share, as specified in
Section 2.02 of this Agreement.
SECTION 5.02 ACCRUED BALANCES. In the event this Agreement is terminated prior
to the scheduled termination as outlined in Section 5.01, all accrued balances
are due within five (50) calendar days of termination.
ARTICLE VI. CONFIDENTIALITY
SECTION 6.01 CONFIDENTIALITY. All matters between the parties including the
provisions of this Agreement are confidential and shall not be transferred,
communicated, or delivered to a third party, whether or not for compensation,
without the expressed prior authorization of either party, or as required by
law.
ARTICLE VII. AGREEMENT
SECTION 7.01 APPLICABLE LAWS. This Agreement shall be governed and construed in
accordance with the laws of the District of Columbia, in the United States of
America. The parties agree to submit to the jurisdiction of the courts of the
District of Columbia to adjudicate any dispute arising from or relating to this
Agreement.
SECTION 7.02 FEDERAL LOBBYING REGISTRATION. In accordance with the Federal
Lobbying Disclosure Act and Amendments, Carmen Group is required to file and
maintain registration and activity reports regarding its lobbyists, lobbying
activity, and lobbying income earned on behalf of Client.
SECTION 7.03 AGREEMENT IN ENTIRETY. This Agreement contains the entire Agreement
of the parties with respect to the subject matter hereof and supersedes any
prior or contemporaneous representation, proposal, warranty, understanding, or
agreement, written or oral, regarding such subject matter.
SECTION 7.04 NO PARTNERSHIP, JOINT VENTURE, OR EMPLOYMENT RELATIONSHIP. This
Agreement shall not be deemed to create any partnership, joint venture or
enterprise or employment relationship between the parties.
SECTION 7.05 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
counterparts and it is the intent of the parties that the copy signed by a party
will be fully enforceable against such party and its corporate affiliates and
assigns.
THE UNDERSIGNED PERSONS ARE AUTHORIZED BY THE PARTIES HERETO TO SIGN THIS
AGREEMENT AND HAVE READ AND FULLY UNDERSTAND THE FOREGOING AND IT IS THEIR
INTENT TO BE BOUND BY THE TERMS AND CONDITIONS HEREOF.
CYTOMEDIX
Dated: ______________, 2003
________________________________
By: Printed Name:
Title:
Authorized Agent of Cytomedix, Inc.
CARMEN GROUP, INC.
Dated: ________________________, 2003
___________________________________
By: David Carmen
President & Chief Executive Officer