Unassociated Document


    Exhibit
      4.7

    
 

    Term
      Sheet Agreement

    


    This
      Term
      Sheet Agreement is entered into by and among Cytomedix, Inc. and Fitch, Even,
      Tabin & Flannery (“Fitch, Even”) and Robert F. Coleman & Associates
      (“RCA”) effective as of this 2nd
      day of
      August, 2007. Fitch, Even and RCA are referred to collectively as “Counsel.” The
      terms set forth herein are the binding, final agreed-upon terms to be
      incorporated into one or more definitive agreements (“Definitive Agreements")
      that the parties shall use their good faith efforts to enter into. 

    


    1. “Retainer
      Agreement” means the Amended and Restated Retainer Agreement by and among
      Cytomedix and Fitch, Even and RCA effective as of July 29, 2003. 

    


    2. Cytomedix
      shall pay Fitch, Even and RCA the
      sum
      of ninety thousand U.S. dollars ($90,000) representing an agreed upon
      liquidation of Counsel’s
      contingent fee shares of all royalty revenue, as
      of
      June 30, 2007, which would be due to Counsel pursuant to the terms of the
      Retainer
      Agreement. Subject to receiving such
      payment,
      Fitch,
      Even and RCA waive and release any and all claims or interests under the
      Retainer Agreement, including without limitation any interest in all
      amounts
      due and
      payable to Cytomedix after June 30, 2007, and any and all interest in past
      and
      future revenue generated from licensing
      agreements or sales
      of
      Cytomedix’s products. RCA does not waive but shall retain its interest in
      royalties received from Medtronic pursuant to the separate retainer agreement
      between and among Cytomedix, RCA and Fish & Richardson. 

    


    3. Pursuant
      to a Shareholder’s Agreement negotiated and executed as part of the Definitive
      Agreements, Cytomedix shall issue to Fitch, Even and RCA a total of One Million
      Three Hundred Thousand (1,300,000) shares of Cytomedix common stock
      (the
      “Shares”).
      The Shares shall be prorated between the firms according to their respective
      Lodestar Percentage as calculated according to Exhibit C of the Retainer
      Agreement. 

    


    4. Pursuant
      to the Shareholder’s Agreement and a form of warrant to be negotiated and
      executed as part of the Definitive Agreements, Cytomedix shall issue to Fitch,
      Even and RCA a total of Nine Hundred Seventy Five Thousand warrants to purchase
      shares of Cytomedix common stock (“the Warrants”). The Warrants will have a
      seven and one half (7.5) year term. The strike price on the Warrants
will
      be
      as
      follows: 325,000 at
      $1.25
      (Group A); 325,000 at $1.50
      (Group
      B); and 325,000 at $1.75 (Group C). Cytomedix shall have a right to call the
      Warrants according to the following schedule once the underlying stock trades
      at
      or above the designated call price for ten (10) consecutive trading days: Group
      A Warrants - $4/share; Group B Warrants - $5/share; Group C Warrants - $6/share.
      If Cytomedix exercises its right to call, it shall provide at least forty-five
      (45) days notice for one-half of the Warrants subject to the call and at least
      ninety (90) days notice for the remainder of the Warrants subject to the call.
      In no event, however, shall the call right apply to Warrants whose underlying
      shares are not yet publicly tradable due to the restrictions contained herein.
      

     

    
      
         

      

      
        1

        
          

        

      

      
         

      

    

    5. Upon
      the
      execution of the Definitive Agreements, Fitch, Even and RCA shall submit to
      Cytomedix lists containing the identity
      of, and
      the amounts of Shares and Warrants to be issued to, their respective
      distributees. Cytomedix shall use this information to prepare and submit the
      necessary applications seeking approval to issue the Shares and Warrants from
      the American Stock Exchange and any other
      approval
      that may be necessary. Cytomedix shall issue the Shares and Warrants within
      ten
      (10) business days after receiving all necessary authorizations, including
      that
      from the American Stock Exchange, and after it has received lists from the
      firms
      containing the identity of, and amounts to be issued to, each of their
      respective distributes. 

    


    6. As
      part
      of the Definitive Agreements, the parties will negotiate and execute a
      Registration Rights Agreement, pursuant to which Cytomedix will agree to file
      with the SEC, at its own expense, a registration statement covering resale
      of
      the Shares and the additional shares underlying the Warrants within 60 days
      after the Effective Date of the Definitive Agreements, provided that Fitch,
      Even
      and RCA furnish to Cytomedix such information as Cytomedix shall require to
      register the Shares and the additional shares underlying the Warrants. Cytomedix
      will agree to use commercially reasonable efforts to have the registration
      statement declared effective as soon as possible. Shares may be sold under
      the
      registration statement only by the methods described in the registration
      statement (which will be standard and customary for non-underwritten resales).
      

    


    7. The
      Shareholder’s Agreement will contain the following restrictions on the public
      resale of the Shares and the shares underlying the Warrants: (a) during the
      period from the Effective Date of the Definitive Agreements until the
      registration statement is declared effective, no Shares may be publicly sold;
      (b) 25% of the Shares may be sold on or after the date on which the registration
      statement is declared effective; (c) an additional 25% may be sold in or after
      the first fiscal quarter following the end of the fiscal quarter in which the
      registration statement is declared effective; (d) an additional 25% may be
      sold
      in or after the second fiscal quarter following the end of the fiscal quarter
      in
      which the registration statement is declared effective; (e) an additional 25%
      may be sold in or after the third fiscal quarter following the end of the fiscal
      quarter in which the registration statement is declared effective. Nothing
      herein shall prevent Fitch, Even or RCA from distributing the Shares and
      Warrants among partners or other lawyers of the respective firms. However,
      any
      such distributee shall take such Shares or Warrants subject to the restrictions
      contained herein and in the Definitive Agreements.

     

    8. As
      part
      of the Definitive Agreements, Cytomedix and Fitch, Even and RCA will negotiate
      in good faith regarding the terms of an
      amended Retainer Agreement
      covering
      any further patent litigation and/or licensing legal representation required
      by
      Cytomedix going forward (the “Second
      Retainer Agreement”). The Second Retainer Agreement shall provide for the
      following, as material terms thereof:

     

    (a) With
      regard to each particular matter, Cytomedix
      shall have the opportunity,
      but not
      the obligation,
      to
      engage Counsel on either a “Standard Basis” or
      on a
“Contingent Basis,” as explained more fully below. Cytomedix will pay Counsel’s
      normal hourly fees, plus all expenses, in connection with Standard Basis
      engagements. Cytomedix will pay Counsel at the same contingent fee percentages
      set forth in the Retainer Agreement, plus all expenses, in connection with
      Contingent Basis engagements. Further specifics regarding the recoveries to
      which Counsel’s contingent fee interest shall apply are provided below.
      Cytomedix shall select the desired basis of representation for a given matter
      in
      writing prior to the commencement of the representation for that matter.


     

    
      
         

      

      
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    (b) If
      Cytomedix so desires, Counsel
      shall represent Cytomedix in any matters
      involving disputes
      with Existing Licensees regarding the Knighton ‘938 patent and/or the license
      and/or settlement agreements in place
      currently
      with
      such Existing Licensees. The “Existing Licensees” are: Harvest Technologies,
      PPAI, SafeBlood Technologies, Cobe Cardiovascular (Sorin Group), Biomet,
and
      CellMedix. Counsel shall represent Cytomedix in any such disputes on a
      Contingent Basis. Counsel’s fees for any such matter handled on a Contingent
      Basis shall be limited to: (1) the full amount of any attorneys fees awarded
      to
      Cytomedix in connection with such dispute; and (2) a contingent fee
      interest
      in any
      settlements, damages, royalties or other amounts recovered by Cytomedix above
      and beyond that which was otherwise due Cytomedix under the applicable license
      agreement.

     

    (c) If
      Cytomedix so desires, Fitch,
      Even shall represent Cytomedix in any
      matters
      involving
      patent
      prosecution and maintenance necessary to maintain the Knighton ‘938 and Worden
‘112 patents in full force and effect both nationally and internationally. Such
      representation shall be on a Standard Basis.

     

    (d) If
      Cytomedix so desires, Counsel
      shall represent Cytomedix in
      the
      matters involving
      the
      investigation and notification of additional potential licensees under the
      Knighton ‘938 and/or Worden ‘112 patents, and in the negotiation of license
      agreements with such potential licensees, in matters which do not involve the
      commencement of litigation by Cytomedix or the third-party potential licensee.
      Counsel shall represent Cytomedix in any such licensing matters on
      either
      a Standard Basis or a Contingent Basis, at Cytomedix’s election. With
      regard to those licensing matters in which Cytomedix elects Counsel’s
      representations, Cytomedix
      agrees to keep Counsel reasonably informed of and involved in such licensing
      matters.

     

    (e) If
      Cytomedix so desires, Counsel
      shall represent Cytomedix in litigation matters
      necessary
      to enforce the Knighton ‘938 and/or
      Worden ‘112 patents
      against
      third-party infringers of the patent, whether the infringement claim is
      initiated by way of an affirmative claim or by counterclaim to a third-party
      declaratory judgment action. Counsel shall also represent Cytomedix in the
      defense of any declaratory judgment action or counterclaims concerning the
      Knighton ‘938 and/or
      Worden ‘112 patents
      brought
      against Cytomedix by a third-party. Counsel shall represent Cytomedix in any
      such litigation on either a Standard Basis or a Contingent Basis, at Cytomedix’s
      election; provided, however, that Counsel need not accept more than two such
      matters on a Contingent Basis
      during
      the term of the Second Retainer Agreement.
      If
      Cytomedix requests Counsel to handle more than two such matters on a Contingent
      Basis, and Counsel declines to do so, then Cytomedix shall have the right to
      either engage Counsel on a Standard Basis for the declined matters or to retain
      separate counsel for that matter on a basis acceptable to Cytomedix. Counsel
      shall have no contingent fee interest in any such declined matter for which
      Counsel
      does not represent Cytomedix.

     

    
      
         

      

      
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    (f) With
      respect to all Contingent Basis engagements under Paragraphs 8(b)
      -8(e),
      the
      recoveries to which Counsel’s contingent fee interest applies shall include
      settlements, damages, royalties or other consideration of any kind (less
      deductions as allowed under the Retainer Agreement) received by Cytomedix,
      including amounts received by Cytomedix for the purchase of Cytomedix products
      or services by a third-party that becomes a purchaser or distributor of
      Cytomedix as part of resolution of any such matter. However, with respect
      to any
      such sales of Cytomedix products or services, the contingent fee shall be
      calculated based on the Net Profit
      received
      by Cytomedix. The “Net Profit”
shall
      equal the amount received by Cytomedix from the third-party after the deduction
      of freight, taxes, commissions paid to agents or employees, non-reimbursed
      training related expenses, company-provided equipment, and the actual cost
      of
      the product or service being sold. Further,
      the
      contingent fee interest to
      which
      Counsel shall be entitled with regard to any matter undertaken on a Contingent
      Basis shall be limited to ten times the aggregate amount of “Allowed Billings”
with respect to all Contingent Basis engagements under Paragraphs 8(b) - 8(e)..
      Time billed by Counsel shall be deemed “Allowed Billings” if Cytomedix does not
      notify Counsel of its dispute within sixty (60) days following receipt of a
      consolidated monthly statement from Counsel.
      Counsel
      shall submit consolidated invoices to Client within sixty (60) days of the
      end
      of each calendar month, otherwise, Time billed on such invoices will not be
      deemed “Allowed Billings”.

     

    All
      other
      provisions of the Retainer Agreement not inconsistent with the above specific
      terms shall be included in the Second Retainer Agreement. 

     

    9. No
      party
      shall disclose any of the specific financial terms in this Term Sheet Agreement
      without the express written consent of the other parties, unless required for
      legitimate business purpose or pursuant to a binding legal requirement of
      disclosure.

     

    10. Fitch,
      Even and RCA will indemnify and hold Cytomedix harmless from any claims or
      liability arising out of the information provided to Cytomedix by Fitch, Even
      and RCA.

     

    11. The
      parties shall negotiate in good faith and endeavor to prepare and execute the
      Definitive Agreements as soon as practicable following the execution of the
      Term
      Sheet Agreement. The
      effective date
      of
the
      Definitive Agreements shall be the date
      this
      Term Sheet Agreement
      is
      signed by all parties hereto.
      

     

     

    
      
         

      

      
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    Agreed
      and accepted:

    


    
      	
              Cytomedix,
                Inc.

            	 	
              Fitch,
                Even, Tabin & Flannery

            
	
              
/s/
                Kshitij Mohan

            	 	
              
/s/
                Karl R. Fink

            
	
              Name:
                Kshitij Mohan

                Title:
                  Chairman & CEO Cytomedix

              

            	 	
              Name:
                Karl R. Fink

                Title:
                  Managing Partner

              

            
	
               

              Date:
                August 2, 2007

            	 	
               

              Date:
                August 2, 2007

            


    

     

     

    
 

    
      	
              Robert
                F. Coleman & Associates

            	 
	
               

              /s/
                Robert Coleman

            	 
	
              Name:
                Robert F. Coleman

                Title:
                  Principal

                  Robert
                    F. Coleman & Associates

                

              

            	 
	
               

              Date:
                August 2, 2007