Unassociated Document


    CYTOMEDIX,
INC.

    


    CERTIFICATE
OF DESIGNATION OF PREFERENCES, RIGHTS AND LIMITATIONS

    OF

    SERIES
D 10%
CONVERTIBLE PREFERRED STOCK

    


    PURSUANT
TO SECTION 151 OF THE DELAWARE GENERAL CORPORATION LAW

    


            The
undersigned, Martin Rosendale and Andrew Maslan, do hereby certify
that:

    


    1. They
are the Chief Executive Officer and Secretary, respectively, of Cytomedix, Inc.,
a Delaware corporation (the “Corporation”).

    


    2. The
Corporation is authorized to issue 15,000,000 shares of preferred stock, par
value $0.0001 per share of which 163,447 shares are issued and outstanding as of
the date hereof.

    


    3. The
following resolutions were duly adopted by the board of directors of the
Corporation (the “Board of
Directors”):

    


    WHEREAS, the certificate of
incorporation of the Corporation provides for a class of its authorized stock
known as preferred stock, consisting of 15,000,000 shares, $0.0001 par value per
share, issuable from time to time in one or more series;

    


    WHEREAS, the Board of
Directors is authorized to fix the dividend rights, dividend rate, voting
rights, conversion rights, rights and terms of redemption and liquidation
preferences of any wholly unissued series of preferred stock and the number of
shares constituting any series and the designation thereof, of any of them;
and

    


    WHEREAS, it is the desire of
the Board of Directors, pursuant to its authority as aforesaid, to fix the
rights, preferences, restrictions and other matters relating to a series of the
preferred stock, which shall consist of, except as otherwise set forth in the
Purchase Agreement, up to 2,000,000 shares of the preferred stock which the
Corporation has the authority to issue, as follows:

    


    NOW, THEREFORE, BE IT
RESOLVED, that the Board of Directors does hereby provide for the
issuance of a series of preferred stock for cash or exchange of other
securities, rights or property and does hereby fix and determine the rights,
preferences, restrictions and other matters relating to such series of preferred
stock as follows:

    


    TERMS
OF PREFERRED STOCK

    


    Section
1.                      Definitions. For the
purposes hereof, the following terms shall have the following
meanings:

    


    “Affiliate” means any
Person that, directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with a Person, as such terms are
used in and construed under Rule 405 of the Securities Act.

    


    “Bankruptcy Event”
means any of the following events: (a) the Corporation or any Significant
Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X) thereof
commences a case or other proceeding under any bankruptcy, reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction relating to the Corporation or
any Significant Subsidiary thereof, (b) there is commenced against the
Corporation or any Significant Subsidiary thereof any such case or proceeding
that is not dismissed within 60 days after commencement, (c) the Corporation or
any Significant Subsidiary thereof is adjudicated insolvent or bankrupt or any
order of relief or other order approving any such case or proceeding is entered,
(d) the Corporation or any Significant Subsidiary thereof suffers any
appointment of any custodian or the like for it or any substantial part of its
property that is not discharged or stayed within 60 calendar days after such
appointment, (e) the Corporation or any Significant Subsidiary thereof makes a
general assignment for the benefit of creditors, (f) the Corporation or any
Significant Subsidiary thereof calls a meeting of its creditors with a view to
arranging a composition, adjustment or restructuring of its debts, or (g) the
Corporation or any Significant Subsidiary thereof, by any act or failure to act,
expressly indicates its consent to, approval of or acquiescence in any of the
foregoing or takes any corporate or other action for the purpose of effecting
any of the foregoing.

    


    
      
         

      

      
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    “Beneficial Ownership
Limitation” shall have the meaning set forth in Section
6(d).

    


    “Business Day” means
any day except any Saturday, any Sunday, any day which is a federal legal
holiday in the United States or any day on which banking institutions in the
State of New York are authorized or required by law or other governmental action
to close.

    


    “Change of Control
Transaction” means the occurrence after the date hereof of any of (a) an
acquisition after the date hereof by an individual or legal entity or “group”
(as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of
effective control (whether through legal or beneficial ownership of capital
stock of the Corporation, by contract or otherwise) of in excess of 50% of the
voting securities of the Corporation (other than by means of conversion or
exercise of Preferred Stock and the Securities issued together with the
Preferred Stock), (b) the Corporation merges into or consolidates with any other
Person, or any Person merges into or consolidates with the Corporation and,
after giving effect to such transaction, the stockholders of the Corporation
immediately prior to such transaction own less than 50% of the aggregate voting
power of the Corporation or the successor entity of such transaction, (c) the
Corporation sells or transfers all or substantially all of its assets to another
Person and the stockholders of the Corporation immediately prior to such
transaction own less than 50% of the aggregate voting power of the acquiring
entity immediately after the transaction, (d) a replacement at one time or
within a one year period of more than one-half of the members of the Board of
Directors which is not approved by a majority of those individuals who are
members of the Board of Directors on the Original Issue Date (or by those
individuals who are serving as members of the Board of Directors on any date
whose nomination to the Board of Directors was approved by a majority of the
members of the Board of Directors who are members on the Original Issue Date),
or (e) the execution by the Corporation of an agreement to which the
Corporation  is a party or by which it is bound, providing for any of
the events set forth in clauses (a) through (d) above.

    


    “Closing” means the
closing of the purchase and sale of the Securities pursuant to Section 2.1 of
the Purchase Agreement.

    


    “Closing Date” means
the Trading Day on which all of the Transaction Documents have been executed and
delivered by the applicable parties thereto and all conditions precedent to (i)
each Holder’s obligations to pay the Subscription Amount and (ii) the
Corporation’s obligations to deliver the Securities have been satisfied or
waived.

    


     “Commission” means the
United States Securities and Exchange Commission.

    


    “Common Stock” means
the Corporation’s common stock, par value $0.0001 per share, and stock of any
other class of securities into which such securities may hereafter be
reclassified or changed.

    


    
      
         

      

      
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    “Common Stock
Equivalents” means any securities of the Corporation or the Subsidiaries
which would entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, rights, options,
warrants or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common
Stock.

    


    “Conversion Amount”
means the sum of the Stated Value at issue.

    


    “Conversion Date”
shall have the meaning set forth in Section 6(a).

    


    “Conversion Price”
shall have the meaning set forth in Section 6(b).

    


    “Conversion Shares”
means, collectively, the shares of Common Stock issuable upon conversion of the
shares of Preferred Stock in accordance with the terms hereof.

    


    “Dividend Notice
Period” shall have the meaning set forth in Section 3(a).

    


    “Dividend Payment
Date” shall have the meaning set forth in Section 3(a).

    


    “Dividend Share
Amount” shall have the meaning set forth in Section 3(a).

    


     “Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.

    


    “Exempt Issuance”
means the issuance of (a) shares of Common Stock or options to employees,
consultants, officers or directors of the Corporation pursuant to any stock or
option plan or agreement duly adopted by a majority of the non-employee members
of the Board of Directors of the Corporation or a majority of the members of a
committee of non-employee directors established for such purpose, (b) securities
upon the exercise or exchange of or conversion of any securities issued pursuant
to the Purchase Agreement and/or other securities exercisable or exchangeable
for or convertible into shares of Common Stock issued and outstanding on the
date of the Purchase Agreement, provided that such securities have not been
amended since the date of the Purchase Agreement to increase the number of such
securities or to decrease the exercise price, exchange price or conversion price
of any such securities, and (c) securities issued pursuant to acquisitions or
strategic transactions approved by a majority of the disinterested directors of
the Corporation, provided that any such issuance shall only be to a Person (or
to the equityholders of a Person) which is, itself or through its subsidiaries,
an operating company or an asset in a business synergistic with the business of
the Corporation and shall provide to the Corporation additional benefits in
addition to the investment of funds, but shall not include a transaction in
which the Corporation is issuing securities primarily for the purpose of raising
capital or to an entity whose primary business is investing in
securities.

     

    “GAAP” means United
States generally accepted accounting principles.

    


    “Holder” shall have
the meaning given such term in Section 2.

    


    “Indebtedness” means
(a) any liabilities for borrowed money or amounts owed in excess of $50,000
(other than trade accounts payable incurred in the ordinary course of business),
(b) all guaranties, endorsements and other contingent obligations in respect of
indebtedness of others, whether or not the same are or should be reflected in
the Corporation’s balance sheet (or the notes thereto), except guaranties by
endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business, and (c) the present value of
any lease payments in excess of $50,000 due under leases required to be
capitalized in accordance with GAAP.

    


    
      
         

      

      
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     “Junior Securities”
means the Common Stock and all other Common Stock Equivalents of the Corporation
other than those securities which are explicitly senior or pari passu to the
Preferred Stock in dividend rights or liquidation preference.

    


    “Liens” means a lien,
charge, security interest, encumbrance, right of first refusal, preemptive right
or other restriction.

     

    “Liquidation” shall
have the meaning set forth in Section 5.

    


    “New York Courts”
shall have the meaning set forth in Section 11(d).

    


    “Notice of Conversion”
shall have the meaning set forth in Section 6(a).

    


     “Optional Redemption”
shall have the meaning set forth in Section 8(b).

    


    “Optional Redemption
Amount” means the sum of (a) 100% of the aggregate Stated Value then
outstanding and (b) accrued but unpaid dividends.

    


    “Optional Redemption
Date” shall have the meaning set forth in Section 8(a).

    


    “Optional Redemption
Notice” shall have the meaning set forth in Section 8(a).

    


    “Optional Redemption Notice
Date” shall have the meaning set forth in Section 8(a).

    


    “Original Issue Date”
means the date of the first issuance of any shares of the Preferred Stock
regardless of the number of transfers of any particular shares of Preferred
Stock and regardless of the number of certificates which may be issued to
evidence such Preferred Stock.

    


    “Permitted Lien” means
the individual and collective reference to the following: (a) Liens for taxes,
assessments and other governmental charges or levies not yet due or Liens for
taxes, assessments and other governmental charges or levies being contested in
good faith and by appropriate proceedings for which adequate reserves (in the
good faith judgment of the management of the Corporation) have been established
in accordance with GAAP, (b) Liens imposed by law which were incurred in the
ordinary course of the Corporation’s business, such as carriers’, warehousemen’s
and mechanics’ Liens, statutory landlords’ Liens, and other similar Liens
arising in the ordinary course of the Corporation’s business, and which (x) do
not individually or in the aggregate materially detract from the value of such
property or assets or materially impair the use thereof in the operation of the
business of the Corporation and its consolidated Subsidiaries or (y) are being
contested in good faith by appropriate proceedings, which proceedings have the
effect of preventing for the foreseeable future the forfeiture or sale of the
property or asset subject to such Lien, and (c) Liens incurred in connection
with Permitted Indebtedness under clause (a) thereunder.

    


    “Person” means an
individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.

    


    “Preferred Stock”
shall have the meaning set forth in Section 2.

    


    
      
         

      

      
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    “Purchase Agreement”
means the Subscription Agreement, dated as of the Original Issue Date, among the
Corporation and the original Holders, as amended, modified or supplemented from
time to time in accordance with its terms.

    


    “Securities” means the
Preferred Stock, the Warrants, the Warrant Shares and the Underlying
Shares.

    


    “Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.

    


    “Share Delivery Date”
shall have the meaning set forth in Section 6(c).

    


    “Stated Value” shall
have the meaning set forth in Section 2, as the same may be increased pursuant
to Section 3.

    


    “Subscription Amount”
shall mean, as to each Holder, the aggregate amount to be paid for the Preferred
Stock purchased pursuant to the Purchase Agreement as specified below such
Holder’s name on the signature page of the Purchase Agreement and next to the
heading “Subscription Amount,” in United States dollars and in immediately
available funds.

    


    “Trading Day” means a
day on which the principal Trading Market is open for business.

    


    “Trading Market” means
any of the following markets or exchanges on which the Common Stock is listed or
quoted for trading on the date in question: the NYSE AMEX, the Nasdaq Capital
Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York
Stock Exchange or the OTC Bulletin Board (or any successors to any of the
foregoing).

    


    “Transaction
Documents” means this Certificate of Designation, the Purchase Agreement,
the Warrants, all exhibits and schedules thereto and hereto and any other
documents or agreements executed in connection with the transactions
contemplated pursuant to the Purchase Agreement.

     

    “Transfer Agent” means
the current transfer agent of the Corporation, and any successor transfer agent
of the Corporation.

     

    “Underlying Shares”
means the shares of Common Stock issued and issuable upon conversion or
redemption of the Preferred Stock, upon exercise of the Warrants and issued and
issuable in lieu of the cash payment of interest on the Preferred Stock in
accordance with the terms of this Certificate of Designation.

     

    “VWAP” means, for any
date, the price determined by the first of the following clauses that applies:
(a) if the Common Stock is then listed or quoted on a Trading Market, the daily
volume weighted average price of the Common Stock for such date (or the nearest
preceding date) on the Trading Market on which the Common Stock is then listed
or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b)  if the
OTC Bulletin Board is not a Trading Market, the volume weighted average price of
the Common Stock for such date (or the nearest preceding date) on the OTC
Bulletin Board, (c) if the Common Stock is not then listed or quoted for trading
on the OTC Bulletin Board and if prices for the Common Stock are then reported
in the “Pink Sheets” published by Pink OTC Markets, Inc. (or a similar
organization or agency succeeding to its functions of reporting prices), the
most recent bid price per share of the Common Stock so reported, or (d) in all
other cases, the fair market value of a share of Common Stock as determined by
an independent appraiser selected in good faith by the Holders of a majority in
interest of the Securities then outstanding and reasonably acceptable to the
Corporation, the fees and expenses of which shall be paid by the
Corporation.

    


    
      
         

      

      
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    Section
2.                      Designation, Amount and Par
Value. The series of preferred stock shall be designated as its Series D
10% Convertible Preferred Stock (the “Preferred Stock”) and
the number of shares so designated shall be up to 2,000,000. Each share of
Preferred Stock shall have a par value of $0.0001 per share and a stated value
equal to $1,000.00 subject to increase set forth in Section 3 below (the “Stated
Value”).

    


    Section
3.                      Dividends.

    


    a)           Dividends. The
Holders shall be entitled to receive, and the Corporation shall pay, cumulative
dividends at the rate per share (as a percentage of the Stated Value per share)
of 10% per annum (the “Initial Dividend
Rate”) (the “Dividend
Payment”),
payable quarterly in arrears on January 15, April 15, July 15 and October 15,
beginning on July 15, 2010 (each such date, a “Dividend Payment
Date”) (if any Dividend Payment Date is not a Trading Day, the applicable
payment shall be due on the next succeeding Trading Day) in cash, or at the
company’s option, duly authorized, validly issued, fully paid and non-assessable
shares of Common Stock (the “Dividend Share Amount”), which
number shall be determined by dividing (x) the Dividend Payment by (y) the
Dividend Payment Price. The term “Dividend Payment Price” refers to the price
equal to the VWAP for the five (5) Trading Day period ending three (3) days
immediately preceding the Dividend Payment Date, provided, however, in no
event shall the Dividend Payment Price be less than $0.40.  The
Holders shall have the same rights and remedies with respect to the delivery of
any such shares as if such shares were being issued pursuant to Section
6.

    


    b)           Dividend
Calculations. Payment of dividends in shares of Common Stock shall
otherwise occur pursuant to Section 6(c)(i) herein and, solely for purposes of
the payment of dividends in shares, the Dividend Payment Date shall be deemed
the Conversion Date.  Dividends shall cease to accrue with respect to
any Preferred Stock converted, provided that, the Company actually delivers the
Conversion Shares within the time period required by Section 6(c)(i)
herein.

    


    c)           Other Securities. So
long as any Preferred Stock shall remain outstanding, neither the Corporation
nor any Subsidiary thereof shall redeem, purchase or otherwise acquire directly
or indirectly any Junior Securities. So long as any Preferred Stock shall remain
outstanding, neither the Corporation nor any Subsidiary thereof shall directly
or indirectly pay or declare any dividend or make any distribution upon (other
than a dividend or distribution described in Section 6 or dividends due and paid
in the ordinary course on preferred stock of the Corporation at such times when
the Corporation is in compliance with its payment and other obligations
hereunder), nor shall any distribution be made in respect of, any Junior
Securities as long as any dividends due on the Preferred Stock remain unpaid,
nor shall any monies be set aside for or applied to the purchase or redemption
(through a sinking fund or otherwise) of any Junior Securities or shares pari passu with the
Preferred Stock.

    


    Section
4.                      Voting Rights. Except
as otherwise provided herein or as otherwise required by law, the Preferred
Stock shall have no voting rights.

    


    Section
5.                      Liquidation. Upon any
liquidation, dissolution or winding-up of the Corporation, whether voluntary or
involuntary (a “Liquidation”), the
Holders shall be entitled to receive out of the assets, whether capital or
surplus, of the Corporation an amount equal to the Stated Value, plus any
accrued and unpaid dividends thereon and any other fees then due and owing
thereon under this Certificate of Designation, for each share of Preferred Stock
before any distribution or payment shall be made to the holders of any Junior
Securities, and if the assets of the Corporation shall be insufficient to pay in
full such amounts, then the entire assets to be distributed to the Holders shall
be ratably distributed among the Holders in accordance with the respective
amounts that would be payable on such shares if all amounts payable thereon were
paid in full. A Change of Control Transaction shall not be deemed a Liquidation.
The Corporation shall mail written notice of any such Liquidation, not less than
15 days prior to the payment date stated therein, to each Holder.

    


    
      
         

      

      
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    Section
6.                      Conversion.

    


    a)           Conversions at Option of
Holder. Each share of Preferred Stock shall be convertible, at any time
and from time to time from and after the Original Issue Date at the option of
the Holder thereof, into that number of shares of Common Stock (subject to the
limitations set forth in Section 6(d)) determined by dividing the Stated Value
of such share of Preferred Stock by the Conversion Price. Holders shall effect
conversions by providing the Corporation with the form of conversion notice
attached hereto as Annex A (a “Notice of
Conversion”). Each Notice of Conversion shall specify the number of
shares of Preferred Stock to be converted, the number of shares of Preferred
Stock owned prior to the conversion at issue, the number of shares of Preferred
Stock owned subsequent to the conversion at issue and the date on which such
conversion is to be effected, which date may not be prior to the date the
applicable Holder delivers by facsimile such Notice of Conversion to the
Corporation (such date, the “Conversion Date”);
provided, however, that
the aggregate number of shares of the Corporation common stock issuable upon any
and all conversion of the Preferred Stock or exercises of the Warrants sold in
this Offering (as the term is defined under the Subscription Agreement) may not
exceed 19.99% (the “Numeric Limitation”) of the total issued and outstanding
shares of the Corporation outstanding common stock on the Original Issue Date,
unless such issuances in excess of the Numeric Limitation are approved by the
Company’s common stockholders.. To the extent that such stockholders have not
approved such issuance within 90 days after the Closing and at the time the
Holder notifies the Company of its desire to effect a Share Conversion, the
Initial Dividend Rate shall increase from 10% to 14% effective as of date of
such notification.  If no Conversion Date is specified in a Notice of
Conversion, the Conversion Date shall be the date that such Notice of Conversion
to the Corporation is deemed delivered hereunder. The calculations and entries
set forth in the Notice of Conversion shall control in the absence of manifest
or mathematical error.  To effect conversions of shares of Preferred
Stock, a Holder shall not be required to surrender the certificate(s)
representing the shares of Preferred Stock to the Corporation unless all of the
shares of Preferred Stock represented thereby are so converted, in which case
such Holder shall deliver the certificate representing such shares of Preferred
Stock promptly following the Conversion Date at issue.  Shares of
Preferred Stock converted into Common Stock or redeemed in accordance with the
terms hereof shall be canceled and shall not be reissued.

    


    b)           Conversion
Price.  The conversion price for the Preferred Stock shall
equal to Ninety Percent (90%) of the VWAP for the 10 Trading Days immediately
prior to April 9, 2010, provided, however, in no
event shall the Conversion Price be less than $.40 (the “Conversion
Price”).

    


    
      	
               
      

            	
              c)

            	
              Mechanics of
      Conversion

            


    

    


    i.           Delivery of Certificate Upon
Conversion. Not later than three (3) Trading Days after each Conversion
Date (the “Share
Delivery Date”), the Corporation shall deliver, or cause to be delivered,
to the converting Holder (A) a certificate or certificates representing the
Conversion Shares which, on or after the earlier of (i) the six month
anniversary of the Original Issue Date or (ii) the Effective Date, shall be free
of restrictive legends and trading restrictions (other than those which may then
be required by the Purchase Agreement) representing the number of Conversion
Shares being acquired upon the conversion of the Preferred Stock (including, if
the Corporation has given continuous notice pursuant to Section 3(b) for payment
of dividends in shares of Common Stock at least 20 Trading Days prior to the
date on which the Notice of Conversion is delivered to the Corporation, shares
of Common Stock representing the payment of accrued dividends otherwise
determined pursuant to Section 3(a) but assuming that the Dividend Notice Period
is the 20 Trading Days period immediately prior to the date on which the Notice
of Conversion is delivered to the Corporation and excluding for such issuance
the condition that the Corporation deliver the Dividend Share Amount as to such
dividend payment), and (B) a bank check in the amount of accrued and unpaid
dividends (if the Corporation has elected or is required to pay accrued
dividends in cash). On or after the earlier of (i) the six month anniversary of
the Original Issue Date or (ii) the Effective Date, the Corporation shall use
its best efforts to deliver any certificate or certificates required to be
delivered by the Corporation under this Section 6 electronically through the
Depository Trust Company or another established clearing corporation performing
similar functions.

    


    
      
         

      

      
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    ii.           Failure to Deliver
Certificates.  If, in the case of any Notice of Conversion,
such certificate or certificates are not delivered to or as directed by the
applicable Holder by seventh (7th)
Trading Day after the Share Delivery Date, the Holder shall be entitled to elect
by written notice to the Corporation at any time on or before its receipt of
such certificate or certificates, to rescind such Conversion, in which event the
Corporation shall promptly return to the Holder any original Preferred Stock
certificate delivered to the Corporation and the Holder shall promptly return to
the Corporation the Common Stock certificates issued to such Holder pursuant to
the rescinded Conversion Notice.

    


    iii.           Obligation
Absolute.  The Corporation’s obligation to issue and deliver
the Conversion Shares upon conversion of Preferred Stock in accordance with the
terms hereof are absolute and unconditional, irrespective of any action or
inaction by a Holder to enforce the same, any waiver or consent with respect to
any provision hereof, the recovery of any judgment against any Person or any
action to enforce the same, or any setoff, counterclaim, recoupment, limitation
or termination, or any breach or alleged breach by such Holder or any other
Person of any obligation to the Corporation or any violation or alleged
violation of law by such Holder or any other person, and irrespective of any
other circumstance which might otherwise limit such obligation of the
Corporation to such Holder in connection with the issuance of such Conversion
Shares; provided, however, that such
delivery shall not operate as a waiver by the Corporation of any such action
that the Corporation may have against such Holder.

    


    iv.           Reservation of Shares
Issuable Upon Conversion. The Corporation covenants that it will at all
times reserve and keep available out of its authorized and unissued shares of
Common Stock for the sole purpose of issuance upon conversion of the Preferred
Stock and payment of dividends on the Preferred Stock, each as herein provided,
free from preemptive rights or any other actual contingent purchase rights of
Persons other than the Holder (and the other holders of the Preferred Stock),
not less than such aggregate number of shares of the Common Stock as shall
(subject to the terms and conditions set forth in the Purchase Agreement) be
issuable (taking into account the adjustments and restrictions of Section 7)
upon the conversion of the then outstanding shares of Preferred Stock and
payment of dividends hereunder.  The Corporation covenants that all
shares of Common Stock that shall be so issuable shall, upon issue, be duly
authorized, validly issued, fully paid and nonassessable.

    


    v.           Fractional Shares. No
fractional shares or scrip representing fractional shares shall be issued upon
the conversion of the Preferred Stock.  As to any fraction of a share
which the Holder would otherwise be entitled to purchase upon such conversion,
the Corporation shall at its election, either pay a cash adjustment in respect
of such final fraction in an amount equal to such fraction multiplied by the
Conversion Price or round up to the next whole share.

    


    
      
         

      

      
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    vi.           Transfer
Taxes.  The issuance of certificates for shares of the Common
Stock on conversion of this Preferred Stock shall be made without charge to any
Holder for any documentary stamp or similar taxes that may be payable in respect
of the issue or delivery of such certificates, provided that the Corporation
shall not be required to pay any tax that may be payable in respect of any
transfer involved in the issuance and delivery of any such certificate upon
conversion in a name other than that of the Holders of such shares of Preferred
Stock and the Corporation shall not be required to issue or deliver such
certificates unless or until the Person or Persons requesting the issuance
thereof shall have paid to the Corporation the amount of such tax or shall have
established to the satisfaction of the Corporation that such tax has been
paid.

    


    d)           Beneficial Ownership
Limitation. The Corporation shall
not effect any conversion of the Preferred Stock, and a Holder shall not have
the right to convert any portion of the Preferred Stock, to the extent that,
after giving effect to the conversion set forth on the applicable Notice of
Conversion, such Holder (together with such Holder’s Affiliates, and any Persons
acting as a group together with such Holder or any of such Holder’s Affiliates)
would beneficially own in excess of the Beneficial Ownership Limitation (as
defined below).  For purposes of the foregoing sentence, the number of
shares of Common Stock beneficially owned by such Holder and its Affiliates
shall include the number of shares of Common Stock issuable upon conversion of
the Preferred Stock with respect to which such determination is being made, but
shall exclude the number of shares of Common Stock which are issuable upon (i)
conversion of the remaining, unconverted Stated Value of Preferred Stock
beneficially owned by such Holder or any of its Affiliates and (ii) exercise or
conversion of the unexercised or unconverted portion of any other securities of
the Corporation  subject to a limitation on conversion or exercise
analogous to the limitation contained herein (including, without limitation, the
Preferred Stock or the Warrants) beneficially owned by such Holder or any of its
Affiliates.  Except as set forth in the preceding sentence, for purposes of
this Section 6(d), beneficial ownership shall be calculated in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder.  To the extent that the limitation contained in this
Section 6(d) applies, the determination of whether the Preferred Stock is
convertible (in relation to other securities owned by such Holder together with
any Affiliates) and of how many shares of Preferred Stock are convertible shall
be in the sole discretion of such Holder, and the submission of a Notice of
Conversion shall be deemed to be such Holder’s determination of whether the
shares of Preferred Stock may be converted (in relation to other securities
owned by such Holder together with any Affiliates) and how many shares of the
Preferred Stock are convertible, in each case subject to the Beneficial
Ownership Limitation. To ensure compliance with this restriction, each Holder
will be deemed to represent to the Corporation each time it delivers a Notice of
Conversion that such Notice of Conversion has not violated the restrictions set
forth in this paragraph and the Corporation shall have no obligation to verify
or confirm the accuracy of such determination. In addition, a determination as
to any group status as contemplated above shall be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder.  For purposes of this Section 6(d), in determining the
number of outstanding shares of Common Stock, a Holder may rely on the number of
outstanding shares of Common Stock as stated in the most recent of the
following: (i) the Corporation’s most recent periodic or annual report filed
with the Commission, as the case may be, (ii) a more recent public announcement
by the Corporation or (iii) a more recent written notice by the Corporation or
the Transfer Agent setting forth the number of shares of Common Stock
outstanding.  Upon the written or oral request of a Holder, the Corporation
shall within two Trading Days confirm orally and in writing to such Holder the
number of shares of Common Stock then outstanding.  In any case, the number
of outstanding shares of Common Stock shall be determined after giving effect to
the conversion or exercise of securities of the Corporation, including the
Preferred Stock, by such Holder or its Affiliates since the date as of which
such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership
Limitation” shall be 9.99% of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of shares of Common
Stock issuable upon conversion of Preferred Stock held by the applicable
Holder.  A Holder, upon not less than 61 days’ prior notice to the
Corporation, may decrease the Beneficial Ownership Limitation provisions of this
Section 6(d) applicable to its Preferred Stock and the provisions of this
Section 6(d) shall continue to apply.  Any such decrease will not be
effective until the 61st day
after such notice is delivered to the Corporation and shall only apply to such
Holder and no other Holder.  The provisions of this paragraph shall be
construed and implemented in a manner otherwise than in strict conformity with
the terms of this Section 6(d) to correct this paragraph (or any portion hereof)
which may be defective or inconsistent with the intended Beneficial Ownership
Limitation contained herein or to make changes or supplements necessary or
desirable to properly give effect to such limitation. The limitations contained
in this paragraph shall apply to a successor holder of Preferred
Stock.

    


    
      
         

      

      
        9

        
          

        

      

      
         

      

    

    Section
7.                      Certain
Adjustments.

    


    a)                      Adjustments for Stock
Splits, Stock Dividends, Etc.  If the Corporation (a) pays a
dividend in shares of the Common Stock to holders of the Common Stock, (b) makes
distributions in shares of Common Stock to holders of the Common Stock, (c)
subdivides the outstanding shares of Common Stock into a greater number of
shares of Common Stock, (d) combines the outstanding shares of Common Stock into
a smaller number of shares of Common Stock, or (e) takes action resulting in a
similar effect upon the Common Stock, then, and in every such case, the
Conversion Rate in effect immediately prior to such action shall be adjusted to
equal the Conversion Rate in effect immediately prior to such action multiplied
by a fraction, the numerator of which is the number of issued and outstanding
shares of Common Stock immediately following such action and the denominator of
which is the number of issued and outstanding shares of Common Stock immediately
prior to such action.  An adjustment made pursuant to this Section
shall become effective on the Record Date in the case of a dividend or
distribution and on the effective date in the case of a subdivision or
combination.

    


    b)                      Adjustments for Other
Distributions.  If the Corporation distributes pro rata to all
holders of the Common Stock shares of any class of capital stock (excluding the
Common Stock), or options, rights or warrants to acquire any class of capital
stock (including the Common Stock), or cash or other assets of the Corporation
(excluding capital stock of the Corporation held in its treasury), then, and in
any such case, the Holders shall be entitled to receive, at the time such
distribution is made, the capital stock, options, rights, warrants, cash or
other assets so distributed as if such holder had owned the number of shares of
Common Stock that such holder would have owned at the time of such distribution
if the Conversion Date had occurred immediately prior to the record date for
such distribution.  Such adjustment shall become effective on the
record date for determination of the holders of Common Stock entitled to receive
the distribution.

    


    c)                      Any
notice required by the provisions of this Section 7 shall be in writing and
shall be deemed effectively given (i) upon personal delivery to the party to be
notified, (ii) when sent by telex, e-mail or facsimile, if sent during normal
business hours of the recipient; if not, then on the next business day, (iii)
five days after having been sent by registered or certified mail, return receipt
requested, postage pre-paid, or (iv) one day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All notices shall be addressed to each holder of record
at the address of such holder appearing on the books of the
Corporation.

    


    
      
         

      

      
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     Section
8.                      Redemption.

    


    a)           Subject
to the provisions of this Section 8, at any time after the 36 month anniversary
of the date of the Purchase Agreement, the Corporation may deliver a notice to
the Holders (an “Optional Redemption
Notice” and the date such notice is deemed delivered hereunder, the
“Optional Redemption Notice
Date”) of its irrevocable election to redeem some or all of the then
outstanding Preferred Stock, for cash in an amount equal to the Optional
Redemption Amount on the 30th Trading Day following the Optional Redemption
Notice Date (such date, the “Optional Redemption
Date” and such redemption, the “Optional
Redemption”).  The Optional Redemption Amount is payable in
full on the Optional Redemption Date.

    


    b)           Redemption
Procedure.  The payment of cash pursuant to an Optional
Redemption shall be made on the Optional Redemption Date.  If any
portion of the cash payment for a Optional Redemption has not been paid by the
Corporation on the Optional Redemption Date, interest shall accrue thereon until
such amount is paid in full at a rate equal to the lesser of 12% per annum or
the maximum rate permitted by applicable law.

    


    Section
9.                      Negative
Covenants.  As
long as any shares of Preferred Stock are outstanding, the Corporation shall
not, and shall not permit
any of the Subsidiaries to, directly or indirectly:

    


    a)           amend its charter documents, including,
without limitation, its certificate of incorporation and bylaws, in any manner
that materially and adversely affects any rights of the Holder; or

    


    b)           pay cash dividends or distributions on
Junior Securities of the
Corporation.

    


    Section
10..                      Reserved.

    


    Section
11..                      Miscellaneous.

    


    a)           Notices.  Any
and all notices or other communications or deliveries to be provided by the
Holders hereunder including, without limitation, any Notice of Conversion, shall
be in writing and delivered personally, by facsimile, or sent by a nationally
recognized overnight courier service, addressed to the Corporation, at the
address set forth above Attention: Andrew Maslan, CFO,
facsimile number 240-499-2690, or such other facsimile number or address
as the Corporation may specify for such purposes by notice to the Holders
delivered in accordance with this Section 11.  Any and all notices or
other communications or deliveries to be provided by the Corporation hereunder
shall be in writing and delivered personally, by facsimile, or sent by a
nationally recognized overnight courier service addressed to each Holder at the
facsimile number or address of such Holder appearing on the books of the
Corporation, or if no such facsimile number or address appears on the books of
the Corporation, at the principal place of business of such Holder, as set forth
in the Purchase Agreement.  Any notice or other communication or
deliveries hereunder shall be deemed given and effective on the earliest of (i)
the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile number set forth in this Section prior to 5:30 p.m.
(New York City time) on any date, (ii) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number set forth in this Section on a day that is not a Trading Day or
later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second
Trading Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (iv) upon actual receipt by the party to whom such
notice is required to be given.

    


    
      
         

      

      
        11

        
          

        

      

      
         

      

    

    b)           Absolute Obligation.
Except as expressly provided herein, no provision of this Certificate of
Designation shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay liquidated damages, accrued dividends and
accrued interest, as applicable, on the shares of Preferred Stock at the time,
place, and rate, and in the coin or currency, herein prescribed.

    


    c)           Lost or Mutilated Preferred
Stock Certificate.  If a Holder’s Preferred Stock certificate
shall be mutilated, lost, stolen or destroyed, the Corporation shall execute and
deliver, in exchange and substitution for and upon cancellation of a mutilated
certificate, or in lieu of or in substitution for a lost, stolen or destroyed
certificate, a new certificate for the shares of Preferred Stock so mutilated,
lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft
or destruction of such certificate, and of the ownership hereof reasonably
satisfactory to the Corporation.

    


    d)           Governing
Law.  All questions concerning the construction, validity,
enforcement and interpretation of this Certificate of Designation shall be
governed by and construed and enforced in accordance with the internal laws of
the State of Delaware, without regard to the principles of conflict of laws
thereof.

    


    e)           Waiver.  Any
waiver by the Corporation or a Holder of a breach of any provision of this
Certificate of Designation shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Certificate of Designation or a waiver by any other Holders.  The
failure of the Corporation or a Holder to insist upon strict adherence to any
term of this Certificate of Designation on one or more occasions shall not be
considered a waiver or deprive that party (or any other Holder) of the right
thereafter to insist upon strict adherence to that term or any other term of
this Certificate of Designation on any other occasion.  Any waiver by
the Corporation or a Holder must be in writing.

    


    f)           Severability.  If
any provision of this Certificate of Designation is invalid, illegal or
unenforceable, the balance of this Certificate of Designation shall remain in
effect, and if any provision is inapplicable to any Person or circumstance, it
shall nevertheless remain applicable to all other Persons and
circumstances.  If it shall be found that any interest or other amount
deemed interest due hereunder violates the applicable law governing usury, the
applicable rate of interest due hereunder shall automatically be lowered to
equal the maximum rate of interest permitted under applicable law.

    


    g)           Next Business
Day.  Whenever any payment or other obligation hereunder shall
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day.

    


    h)           Headings.  The
headings contained herein are for convenience only, do not constitute a part of
this Certificate of Designation and shall not be deemed to limit or affect any
of the provisions hereof.

    


    i)           Status of Converted or
Redeemed Preferred Stock.  Shares of Preferred Stock may only
be issued pursuant to the Purchase Agreement.  If any shares of
Preferred Stock shall be converted, redeemed or reacquired by the Corporation,
such shares shall resume the status of authorized but unissued shares of
preferred stock and shall no longer be designated as Series D 10% Convertible
Preferred Stock.

    


    


    *********************

     

    
      
         

      

      
        12

        
          

        

      

      
         

      

    

    RESOLVED,
FURTHER, that the Chairman, the president or any vice-president, and the
secretary or any assistant secretary, of the Corporation be and they hereby are
authorized and directed to prepare and file this Certificate of Designation of
Preferences, Rights and Limitations in accordance with the foregoing resolution
and the provisions of Delaware law.

    


            IN
WITNESS WHEREOF, the undersigned have executed this Certificate this 9 day of
April 2010.

     

    
      
        	 	 	 	 	 
	
                /s/
      Martin Rosendale

              	 	 	
                /s/
      Andrew Maslan

              	 
	
                Name:  Martin
      Rosendale

              	 	 	
                Name:  Andrew
      Maslan

              	 
	
                Title:  Chief
      Executive Officer

              	 	 	
                Title:  Chief,
      Financial Officer, Secretary

              	 


      

    

    


     

    
      
         

      

      
        13

        
          

        

      

      
         

      

    

    


    


    ANNEX
A

    


    NOTICE OF
CONVERSION

    


    (TO BE
EXECUTED BY THE REGISTERED HOLDER IN ORDER TO CONVERT SHARES OF PREFERRED
STOCK)

    


    The
undersigned hereby elects to convert the number of shares of Series D 10%
Convertible Preferred Stock indicated below into shares of common stock (the
“Common
Stock”), of Cytomedix, Inc., a Delaware corporation (the “Corporation”),
according to the conditions hereof, as of the date written below. If shares of
Common Stock are to be issued in the name of a Person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto and is delivering herewith such certificates and opinions as may be
required by the Corporation in accordance with the Purchase Agreement. No fee
will be charged to the Holders for any conversion, except for any such transfer
taxes.

    


    Conversion
calculations:

    


    
      	
              Date
      to Effect Conversion:
      _____________________________________________

               

            
	
              Number
      of shares of Preferred Stock owned prior to Conversion:
      _______________

               

            
	
              Number
      of shares of Preferred Stock to be Converted:
      ________________________

               

            
	
              Stated
      Value of shares of Preferred Stock to be Converted:
      ____________________

               

            
	
              Number
      of shares of Common Stock to be Issued:
      ___________________________

               

            
	
              Applicable
      Conversion Price:___________________________________________

               

            
	
              Number
      of shares of Preferred Stock subsequent to Conversion:
      ________________

               

            
	
              Address
      for Delivery: ______________________

              or

              DWAC
      Instructions:

              Broker
      no: _________

              Account
      no: ___________

            


    

    


    
      
        	 	[HOLDER]	 
	 	 	 	 
	
                 

              	
                By:
      

              	 	 
	 	 	Name:	 
	 	 	Title: 	 
	 	 	 	 


      



    


    
      
         

      

      
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