UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 
 FORM 10-K/AAmendment No. 2 
  (Mark One)x

          

          ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 For the Fiscal Year Ended December 31, 2009 OR  o

          

          TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)OF THE SECURITIES EXCHANGE ACT OF 1934
 For the Transition Period from  to . Commission File Number 001-32518 [GRAPHIC MISSING] CYTOMEDIX, INC. (Exact Name of Registrant as Specified in Its Charter)  Delaware

          

          23-3011702(State or Other Jurisdiction ofIncorporation or Organization)

          

          (I.R.S. EmployerIdentification No.)
 209 Perry Parkway, Suite 7Gaithersburg, MD 20877 (Address of Principal Executive Offices) (Zip Code) (240) 499-2680 (Registrants Telephone Number, Including Area Code) Securities registered under Section 12(b) of the Exchange Act: None Securities registered under Section 12(g) of the Exchange Act:Common Stock, par value $.0001(Title of class) Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No x Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes o No x Indicate by check mark whether the registrant has submitted electronically and posted on its corporate web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes o No o Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrants knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. o Indicated by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definition of accelerated filer, large accelerated filer, and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):  Large Accelerated Filer o

          

          Accelerated Filer o

          

          Non-Accelerated Filer o

          

          Smaller Reporting Company x
 Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o No x The aggregate market value of the voting stock (Common stock) held by non-affiliates of the registrant as of the close of business on June 30, 2009 was approximately $16 million based on the closing sale price of the Common stock on the NYSE Amex on that date. The registrant does not have any non-voting common equity. APPLICABLE ONLY TO CORPORATE REGISTRANTS Indicate the number of shares outstanding of each of the registrants classes of common stock, as of the latest practicable date. 37,284,206 shares of Common stock, par value $.0001, outstanding as of March 15, 2010. DOCUMENTS INCORPORATED BY REFERENCE None.
     TABLE OF CONTENTS EXPLANATORY NOTE We are filing this Amended Annual Report on Form 10-K/A (the Amended Filing or Form 10-K/A Amendment No. 2) to our Annual Report on Form 10-K/A Amendment No. 1 for the year ended December 31, 2009 (the Original Filing) to amend and restate our financial statements and related disclosures for the year ended December 31, 2009 as discussed in Note 2 to the accompanying restated financial statements. Background of the Restatement On January 3, 2011, the Company concluded, based on the recommendation of management, that the previously issued financial statements for the year ended December 31, 2009 included in the Companys most recently filed Form 10-K/A Amendment No. 1, and each of the quarterly periods from March 31, 2009 through September 30, 2010 included in the Companys quarterly reports on Forms 10-Q (collectively, the Affected Periods) are no longer reliable because they failed to incorporate non-cash charges resulting from required adjustments to certain outstanding warrants (the Warrants). An explanation of the errors and their impact on the Companys financial statements is contained in Note 2 to the financial statements contained in Item II of this report. The following is a brief summary of the accounting errors: (a)

          The Company adopted the FASB Emerging Issues Task Forces Issue No 07-5, Determining Whether an Instrument (or Embedded Feature) is Indexed to an Entitys own Stock (EITF 07-5), now codified in ASC 815-40, as of January 1, 2009. EITF 07-5 provides guidance as to assessing equity versus liability treatment and classification for equity-linked financial instruments, including stock purchase warrants. Upon the adoption of EITF 07-5, the Company did not properly assess the impacts of certain non-standard anti-dilution provisions that existed in certain then-outstanding stock purchase warrants, resulting in equity (versus liability) treatment and classification. (b)

          In 2009, the Company did not properly assess the impacts of certain non-standard anti-dilution provisions that existed in stock purchase warrants issued in an August 2009 offering, resulting in equity (versus liability) treatment and classification. (c)

          As a result of the improper accounting treatment of the above-mentioned stock purchase warrants, certain offering expenses were also misclassified and accounted for incorrectly. Restatement of Other Financial Statements Along with the filing of this Form 10-K/A Amendment No. 2, we are concurrently filing amendments to our Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, June 30 and September 30, 2009 and March 31, June 30, and September 30, 2010. The amendments to our Quarterly Reports on Form 10-Q are being filed to restate our unaudited financial statements and related financial information for the periods contained in those reports. The amendment to our Annual Report on Form 10-K/A Amendment No. 2 is being filed to restate our financial statements for the fiscal year ended December 31, 2009. Internal Control Considerations Management determined that there was a control deficiency in its internal control that constitutes a material weakness, as discussed in Part II  Item 9 of the Amended Filing. A material weakness is a deficiency, or combination of control deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the annual or interim financial statements will not be prevented or detected on a timely basis. For a discussion of managements consideration of the Companys disclosure controls and procedures and the material weakness identified, see Part II  Item 9 included
in this Amended Filing.
     TABLE OF CONTENTS For the convenience of the reader, this Amended Filing sets forth the Original Filing as modified and superseded where necessary to reflect the restatement. The following items have been amended principally as a result of, and to reflect, the restatement: 

          Part II  Item 7. Managements Discussion and Analysis of Financial Condition and Results of Operations; and 

          Part II  Item 8. Financial Statements and Supplementary Data; 

          Part II  Item 9. Controls and Procedures In accordance with applicable SEC rules, this Amended Filing includes certifications from our Chief Executive Officer and Chief Financial Officer dated as of the date of this filing. Except for the items noted above, no other information included in the Original Filings is being amended by this Amended Filing. The Amended Filing continues to speak as of the date of the Original Filing and we have not updated the filing to reflect events occurring subsequently to the Original Filing date other than those associated with the restatement of the Companys financial statements. Accordingly, this Amended Filing should be read in conjunction with our filings made with the SEC subsequent to the filing of the Original Filing.
     TABLE OF CONTENTS CYTOMEDIX, INC. TABLE OF CONTENTS  PagePART IItem 1.Business





1Item 1A.Risk Factors





16Item 1B.Unresolved Staff Comments





22Item 2Properties





22Item 3.Legal Proceedings





22Item 4.Submission of Matters to a Vote of Security Holders





22PART IIItem 5.Market for Registrants Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities





23Item 6.Selected Financial Data





23Item 7.Managements Discussion and Analysis of Financial Condition and Results of Operations





24Item 7A.Quantitative and Qualitative Disclosures About Market Risk





30Item 8.Financial Statements and Supplementary Data





31Item 9.Changes in and Disagreements with Accountants on Accounting and Financial Disclosure





59Item 9A(T).Controls and Procedures





59Item 9B.Other Information





60PART IIIItem 10.Directors, Executive Officers and Corporate Governance





61Item 11.Executive Compensation





64Item 12.Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters





67Item 13.Certain Relationships and Related Transactions, and Director Independence





69Item 14.Principal Accountant Fees and Services





70PART IVItem 15.Exhibits and Financial Statement Schedules





71Signatures





72Exhibit Index





73
 i    TABLE OF CONTENTS FORWARD LOOKING STATEMENTS This Annual Report on Form 10-K (the Annual Report) (including the section regarding Managements Discussion and Analysis of Financial Condition and Results of Operations) contains certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, as well as information relating to Cytomedix, Inc. that is based on managements exercise of business judgment and assumptions made by and information currently available to management. Although forward-looking statements in this Annual Report reflect the good
faith judgment of management, such statements can only be based on facts and factors currently known by the Company. Consequently, forward-looking statements are inherently subject to risks and uncertainties and actual results and outcomes may differ materially from the results and outcomes discussed in or anticipated by the forward-looking statements. When used in this document and other documents, releases and reports released by the Company, the words anticipate, believe, estimate, expect, intend, the facts suggest and words of similar import, are intended to identify any forward-looking statements. You should not place undue reliance on these forward-looking statements. These statements reflect the Companys current view of future events and are subject to certain risks and uncertainties as noted in this Annual Report. Should one or more of these risks or uncertainties materialize, or should underlying
assumptions prove incorrect, actual results could differ materially from those anticipated in these forward-looking statements. Actual events, transactions and results may materially differ from the anticipated events, transactions or results described in such statements. Although the Company believes that its expectations are based on reasonable assumptions, it can give no assurance that the expectations will materialize. Many factors could cause actual results to differ materially from these forward looking statements including those set forth in Item 1A of this Annual Report. Other unknown, unidentified or unpredictable factors could materially and adversely impact future results. The Company undertakes no obligation and does not intend to update, revise or otherwise publicly release any revisions to its forward-looking statements to reflect events or circumstances after the date hereof or to reflect the occurrence of any unanticipated events. The Company files reports with the Securities and Exchange Commission (SEC or Commission). It makes available on its website (www.cytomedix.com) free of charge its Annual Report, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those reports as soon as reasonably practicable after electronic filing of such materials with or furnishing of them to the SEC. Information appearing at the Companys website is not a part of this Annual Report. You can also read and copy any materials filed by the Company with the Commission at its Public Reference Room at 100 F Street, NE, Washington, DC
20549. You can obtain additional information about the operation of the Public Reference Room by calling the Commission at 1-800-SEC-0330. In addition, the Commission maintains an Internet site (www.sec.gov) that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the Commission, including Cytomedix. The Companys corporate headquarters are located at 416 Hungerford Drive, Suite 330, Rockville, MD 20850. Its phone number is (240) 499-2680. Its fiscal year begins on January 1, and ends on December 31, and any references herein to Fiscal 2009 mean the year ended December 31, 2009, and references to other Fiscal years mean the year ending December 31, of the year indicated. The Company owns or has rights to various copyrights, trademarks and trade names used in its business. This Annual Report also includes discussions of or references to other trademarks, service marks and trade names of other companies. Other trademarks and trade names appearing in this Annual Report are the property of the holder of such trademarks and trade names. The Company obtained statistical data, market data and other industry data and forecasts used in this Annual Report from publicly available information. While it believes that the statistical data, industry data, forecasts and market research are reliable, the Company has not independently verified the data, and does not make any representation as to the accuracy of that information.
 ii    TABLE OF CONTENTS PART I Item 1. Business Corporate Overview Informatix Holdings, Inc. was incorporated in Delaware in 1998. In 1999, Autologous Wound Therapy, Inc. (AWT), an Arkansas Corporation, merged with and into Informatix Holdings, Inc. and the name of the surviving corporation was changed to Autologous Wound Therapy, Inc. In 2000, AWT changed its name to Cytomedix, Inc. (Cytomedix or the Company). In 2001, the Company filed bankruptcy under Chapter 11 of the United States Bankruptcy Code, after which Cytomedix was authorized to continue to conduct its business as debtor and debtor-in-possession. The Company emerged from bankruptcy in 2002 under a Plan of
Reorganization. At that time, all of the Companys securities or other claims against or equity interest in the Company were canceled and of no further force or effect. Holders of certain claims or securities were entitled to receive new securities from Cytomedix in exchange for their claims or equity interests prior to bankruptcy. All known and allowed claims and equity interests have been satisfied and resolved as of the filing of this Annual Report. The Companys principal offices are located in Rockville, Maryland. NYSE Amex  Approval of the Plan of Compliance As previously disclosed, the Company was notified by the Exchange of its non-compliance with Sections 1003(a)(i), 1003(a)(ii) and 1003(a)(iii) of the Exchange Company Guide relating to its shareholders equity. On July 24, 2009, the Company received a letter from NYSE Amex (the Exchange) indicating that the Exchange accepted the Companys plan of compliance and granted the Company an extension until November 12, 2010 to regain compliance with the Exchanges continued listing requirements. The Company is required to provide the Exchange staff with updates on its progress relating to the execution of the plan so as to enable
the Exchange staff to review the Companys adherence to the plan during the extension period. Failure to regain compliance with the continued listing standards by the end of the extension period or to make progress consistent with the plan of compliance during the extension period could result in the Company being delisted from the Exchange. We maintain regular dialogue with the Exchange staff regarding our progress. Financial Information About Segments and Geographic Regions Cytomedix has only one operating segment and operates only in the United States. See Item 8, Financial Statements and Supplementary Data. Business Cytomedix is a biotechnology company that develops, sells, and licenses regenerative biological therapies, to primarily address the areas of wound care, inflammation, and angiogenesis. The Company currently markets the AutoloGelTM System, a device for the production of platelet rich plasma (PRP) gel derived from the patients own blood. The AutoloGelTM System is cleared by the Food and Drug Administration (FDA) for use on a variety of exuding wounds. The Company is currently pursuing a multi-faceted strategy to penetrate the chronic wound market with its AutoloGelTM System. We are also
pursuing opportunities for the application of AutoloGelTM and PRP technology into other markets such as hair transplantation and orthopedics, as well as actively seeking complementary products for the wound care market. The Company is also seeking to monetize other product candidates in its pipeline through strategic partnerships, out-licensing, or sale. Most notably is its anti-inflammatory peptide (designated CT-112) that has shown promise in pre-clinical testing. Cytomedix sells its products primarily to health care providers in the United States. Until November 2009, it licensed certain of its patents to surgical medical device suppliers in the United States; these license agreements and the revenue streams associated therewith, have since terminated as the underlying patents have expired.
 1    TABLE OF CONTENTS AutoloGelTM System Market Cytomedixs AutoloGelTM System currently targets the chronic wound technology market, which the Company estimates to be a $2.2 billion market. Chronic, non-healing wounds typically arise from one of three etiologies: diabetic foot ulcers, venous leg ulcers, and pressure ulcers. The following table lists the incidence of these wound types: Incidence of Chronic Wounds in the U.S.(Number of Wounds in Millions)Source: Advanced Wound Management: Healing and Restoring Lives; Advanced Medical Technology Association (AdvaMed), June 2006  U.S.Diabetic Foot Ulcers

          

          

          1.5Venous Leg Ulcers

          

          

          2.5Pressure Ulcers

          

          

          2.0Totals

          

          

          6.0
 The prevalence of chronic wounds in the U.S. is linked directly to increased aging demographics, vascular diseases, venous insufficiency, and excessive pressure and diabetic neuropathy. The prevalence of worldwide chronic wounds is estimated to be 18 million(1). 

          Diabetic Foot Ulcers  According to the American Diabetes Association(2), there are approximately 20.8 million people with diabetes in the U.S., or 7% of the total population. It is estimated that 15% of these people with diabetes will develop a foot ulcer in their lifetime and that 14  24% of diabetic foot ulcers result in amputation(3) Approximately 86,000 amputations per year occur due to these ulcers at an estimated amputation costs of $60,000 (2003 costs) per procedure(3), implying an aggregate cost of nearly $5.2 billion per year. The chances of a second amputation within 3  5 years may be as high as 50%, with a 5 year post-amputation mortality rate of 39  68%.(4) 

          Venous Stasis Leg Ulcers  Venous leg ulcers are the most frequently occurring type of chronic wound. The prevalence rises dramatically with age, increasing to 1% of the population over age 60. It is estimated that treatment costs total between $2.5 to $3.5 billion annually (1998 costs) and a loss of 2 million workdays per year.(5) 

          Pressure Ulcers  Over 2 million pressure ulcers occur each year with an annual cost greater than $1.3 billion (1994 costs). One study indicates that nearly 15% of hospitalized patients age 65 or older developed a pressure ulcer during a 5-day or longer stay. Furthermore, up to one-fifth of all home health service visits involve care of a pressure ulcer, and more than one-third of people with spinal cord injuries develop pressure ulcers.(5) Broadly, the Company divides this market into targeted submarkets that contain substantial chronic wounds and have established payment pathways for our products. These include government agencies (including the Veterans Administration (VA), Department of Defense, Indian Health Services, and others), capitated environments (including Long-Term Acute Care hospitals (LTAC), health maintenance organizations, and others), state Medicaid agencies, and commercial third-party payors (e.g. Blue Cross/Blue Shield, Aetna, United Healthcare, etc).  (1)

          Growth Factors: Indications, Products, and Markets; Kalorama Publications (October 2003). (2)

          http://www.diabetes.org (2008). (3)

          H.R 3203 Submitted to the House of Representatives (September 30, 2003). (4)

          Reiber GE, Boyko EJ, Smith DG: Lower Extremity Foot Ulcers and Amputations in Diabetes. In Diabetes in America. 2nd ed., National Institutes of Health, NIDDK, NIH Pub No. 95-1468 (1995). (5)

          Advanced Wound Management: Healing and Restoring Lives; Advanced Medical Technology Association (AdvaMed) (June 2006).
 2    TABLE OF CONTENTS The Company believes that LTACs and VA Medical Centers together represent an approximately $500 million market. There are over 400 individual LTAC facilities in the U.S. accredited by the Joint Commission on the Accreditation of Healthcare Organizations and there are over 900 LTAC healthcare providers in the U.S. according to the American Hospital Association. There are approximately 1,300 VA facilities and it is estimated that the VA, Department of Defense, and Workers Compensation Programs represent nearly 10% of the total national healthcare expenditures. The Company believes that the wound care market is generally complex and crowded with some products struggling to verifiably demonstrate clinical efficacy. Other commodity types of products have established habitual use patterns and provider contracts to encourage standardized use. As such, the uptake of new products, including the AutoloGelTM System, is generally slow, as most new products are met initially with a degree of skepticism. While this represents a challenge in the short-run, the Company believes the effectiveness demonstrated by AutoloGelTM will establish the technology in a permanent role within chronic wound care.
The Company will continue to position the AutoloGelTM System as a proven wound care alternative that facilitates the bodys natural healing abilities to address a large unmet clinical need. In 2009, the Company successfully established several new customer accounts whose wound care professionals include recognized thought leaders in wound care. We believe that use by these thought leaders will encourage broader clinical acceptance of AutoloGelTM. FDA Clearance In September 2007, the Company received FDA marketing clearance for its AutoloGelTM System. The indications for use are as follows: The AutoloGelTM System is intended to be used at point-of-care for the safe and rapid preparation of platelet rich plasma (PRP) from a small sample of a patients own blood. Under the supervision of a healthcare professional, the PRP gel produced by the AutoloGelTM System is suitable for exuding wounds, such as leg ulcers, pressure ulcers, and diabetic ulcers and for the management of mechanically or surgically debrided wounds. This clearance is a broad indication for use that encompasses many wound etiologies as well as debrided wounds. It is the Companys belief that this also establishes Cytomedix as the only company with an FDA cleared PRP gel system specifically for use on chronic wounds. The Company promotes the AutoloGelTM System within the FDAs specific marketing clearance for the gel to be used as a wound dressing for the management of these wounds. However, Company-sponsored published and unpublished studies, including a prospective, multi-center, randomized, blinded, controlled, clinical trial (published in a peer reviewed medical journal), as well as other published data on traditional treatments and competing advanced treatments for diabetic foot ulcers, indicate increased wound healing with the use of AutoloGelTM as compared to a control. Increased healing is not specifically included in the FDA
cleared indication. In the 510(k) process, the claim made by the Company was that its product is substantially equivalent to other products legally on the market and therefore, the indication cleared was similar to that of other wound management products, which had not used healing as an endpoint. In conjunction with the positive clearance decision from the FDA, the Company agreed to conduct a post-market surveillance program to further analyze the safety profile of bovine thrombin as used in the AutoloGelTM System. The Company has named this program The AutoloGelTM Post-marketing Surveillance (TAPS). The TAPS program was initiated in 2008 and will analyze data from 300 patients over a three year period, does not contain any specific inclusion/exclusion criteria other than following the FDA cleared Instructions for Use, and consists of some simple diagnostic blood tests. The entire program is estimated to cost
between $500,000 and $700,000 in total. However, the Company expects to offset a portion of these costs through future sales of the AutoloGelTM System to those sites participating in the TAPS program. In addition to laboratory tests, data describing the wound repair process will be gathered and analyzed. The Company expects to publish the data generated from this study and leverage it as a tool in its sales and marketing efforts and its pursuit of Medicare and broad commercial insurance reimbursement. The Company began enrolling patients in the TAPS program in late 2009.
 3    TABLE OF CONTENTS AutoloGelTM Efficacy Studies Cytomedix has completed several efficacy studies for AutoloGelTM. The ground breaking study was its prospective, randomized, blinded, controlled, multi-center clinical trial completed in 2005 (the RCT). Forty patients met the trial protocol, with 35 of the 40 patients (88%) having wounds less than or equal to 7 square centimeters in area and 2 cubic centimeters in volume (the Majority Wound Group). In the Majority Wound Group, the healing rate for AutoloGelTM was 81.3% and that for the control group was 42.1%. Within the full cohort of the 40 patients, 68.4% of the patients treated with AutoloGelTM achieved full wound closure versus 42.9% of those patients treated in the control group. Several other prospective and retrospective case studies, wound registries, and/or non-randomized trials have been completed and/or published. The results of these studies demonstrate healing outcomes for AutoloGelTM consistent with the trend in the RCT described above. Two abstracts featuring the AutoloGelTM System were published at the April 2009 Symposium on Advanced Wound Care and Wound Healing Society (SAWC/WHS) Meeting. Two additional abstracts were presented at the October 2009 Clinical Symposium for Advances in Skin and Wound Care and a single abstract was presented at the October 2009 National Association for Long Term Hospitals (NALTH) conference. An AutoloGelTM case series, authored by one of our customers, was published in May 2009 in the journal Wounds. In the first half of 2009, we also collected new data through our clinical evaluations and customer experiences on 65 wounds
of all types. The average duration of these wounds before the first treatment with AutoloGelTM was 48 weeks. The AutoloGelTM System produced a favorable clinical response in 97% of the wounds treated, resulting in a mean reduction in wound volume of 62% in less than three weeks of treatment on average. The Company expects this 65 wound case series to be published in a peer reviewed journal in the first half of 2010. Furthermore, 6 poster presentations and 1 oral presentation will be featured at the April 2010 SAWC/WHS Meeting. We believe that these recent publications, other published literature, and the data we continue to collect through product evaluations will support our marketing efforts and help build a compelling case for a reconsideration of Medicare Part B reimbursement by the Centers for Medicare and Medicaid Services (CMS). Cytomedix believes that the efficacy of AutoloGelTM is directly linked to its formulation which includes specific centrifugation parameters, platelet concentrations, and other formulation enhancements, all of which enjoy patent protection through at least early 2019 in the United States and several other countries. Economic Study In September 2007, B&D Consulting, an independent, national, advisory and advocacy firm located in Washington, DC, (B&D) completed a Company-commissioned cost effectiveness analysis of AutoloGelTM as compared to certain alternative, advanced therapies for patients with diabetic foot ulcers (the Economic Study). Results of the Economic Study, as reported by the authors, show that AutoloGelTM demonstrates lower cost and better healing outcomes than the other therapies analyzed therein. B&D developed the research methodology, model structure, assumptions, and inputs from the peer-reviewed literature, including the publication of Cytomedixs RCT. Cytomedix paid B&D a one-time, fixed fee for its work. This fee was not dependent on the results of the Economic Study. The estimated 5-year average direct wound care costs (exclusive of lost work, disability, etc.; inclusive of recurrent wounds, amputations, etc.) when AutoloGelTM was used to treat the most commonly sized diabetic foot ulcers were approximately $15,000. This was markedly less than similar costs ranging from approximately $24,000 to $47,000 when either standard of care or advanced therapies were simulated. Data from published articles of alternative treatments utilized in this model included such therapies as standard of care alone, tissue engineered grafts, ultrasound, single growth factor therapies, and negative pressure wound therapy.
Therapies that did not have published, peer-reviewed studies of their use in diabetic foot ulcers, with full wound healing as the primary endpoint, were not considered in the Economic Study. This study was published in the journal Advances in Skin and Wound Care in December 2008.
 4    TABLE OF CONTENTS Sales and Marketing The Companys focus is currently on the targeted submarkets that have established payment pathways for our products. In the first quarter of 2008, it initiated a deliberate strategic launch designed to refine/improve the sales approach for the AutoloGelTM System and provide incremental investment in the sales and marketing efforts. In January 2009, we implemented a strategic shift in the commercialization tactics for marketing of the AutoloGelTM System. We have placed new emphasis on scientific and clinical messaging, and have realigned the commercial organization to reflect a stronger requirement for clinical support during the sales process. We have added clinical support staff to facilitate clinical product evaluations and establish protocols for the standardized use of the AutoloGelTM System and have added several additional sales representatives. Our company executives have joined sales managers and clinical staff in the selling process to establish a
greater sense of importance and commitment to the AutoloGelTM System and the positive patient outcomes it produces. Early results of the strategy indicate sales growth and broader customer acceptance. We have experienced a marked increase in the number of product evaluations and interest in the technology. Product sales in 2009 were more than double those in 2008. In 2009, we also added some of the top key opinion leaders in wound care to our roster of clients. These leaders have expressed strong initial support for our technology and continue to be active users/buyers of AutoloGelTM. As their experience with AutoloGelTM grows over time, we expect their influence in the clinical community will help drive sales as well as influence additional thought leaders, advocacy groups, and CMS. Our focus is to continue and accelerate this growth trend in the coming quarters. We have developed a new packaging concept, based on customer feedback, which we expect to introduce in the first half of 2010. The new design and component enhancements will improve the customer experience, reduce process steps and simplify the preparation of AutoloGelTM. We are also working with medical device engineers to further refine the AutoloGelTM System. Within the current target market, Cytomedix has focused most of its attention within LTACs and the VA Medical Centers. Its sales in 2008 and 2009 were primarily generated from these facilities. In 2010, the Company will focus largely on executing its sales strategy within this subset of its current target market, initiate efforts to obtain selected commercial insurance reimbursement, and explore additional state Medicaid coverage. The Company currently enjoys coverage in Illinois and Minnesota, and may seek to expand that to other states where it has adequate sales representation. The Company has also instituted a pilot program whereby it will
seek reimbursement from commercial insurers by obtaining prior authorization to treat patients. Success of this pilot program will provide an additional viable payment pathway for AutoloGelTM and support our efforts to obtain Medicare coverage. To a lesser extent, the Company will also seek to facilitate sales into the surgical hair restoration market. Distribution Agreement for Japan In September 2009, we entered into a license and distribution agreement with Millennia Holdings, Inc. (Millennia) for the Companys AutoloGelTM System in Japan. The agreement provides territorial exclusivity for 10 years with the option to extend terms upon agreement by both parties. Millennia will be responsible for implementing regulatory and reimbursement processes for the AutoloGelTM System in Japan. Through its subsidiary wound management company, which is the sole wound management corporation in Japan, Millennia will work with its network of hospitals in Japan to conduct the necessary clinical studies for
regulatory approval. Thereafter, Millennia plans to sell and distribute Cytomedixs AutoloGelTM System for the treatment of a variety of chronic wounds, including diabetic wounds, which represent a growing and underserved patient population in Japan. The diabetic population in Japan is estimated to be 22.1 million, including patients suspected to have diabetes, according to the National Health and Nutrition Report 2008 by the Ministry of Health Labor and Welfare in Japan. This data indicates that nearly one out of five Japanese either has diabetes or is suspected to be diabetic, thus providing a significant market potential for diabetic wound healing in Japan. Cytomedix must supply Millennia with approximately $25,000 worth of equipment and inventory over the first three years of this agreement. As part of its performance milestones in these first three years, Millenia will complete an investigation of the Japanese regulatory environment as it relates to AutoloGelTM, introduce AutoloGelTM to the clinical marketplace, complete case studies in hospitals, and determine a pricing structure
 5    TABLE OF CONTENTS for the Japanese market, including transfer pricing to be agreed upon by Cytomedix. Thereafter, the parties will agree to a plan of distribution including minimum purchase commitments by Millennia. Medicare Reimbursement In March 2008, the Centers for Medicare and Medicaid Services (CMS) re-affirmed its 2003 decision of non-coverage for all PRP gel products, which includes AutoloGelTM, stating that the data available was suggestive but not adequate. Although the submarkets currently targeted by Cytomedix are significant, the Company believes the achievement of the full market potential of the AutoloGelTM System requires Medicare reimbursement. Therefore, it plans to continue to work with CMS and ultimately obtain a positive coverage decision. The Company met with CMS in April 2008 to determine the optimal path forward for obtaining Medicare coverage for its AutoloGelTM System. In consultation with our advisors, we have formulated a four-pronged strategy to obtain Medicare coverage as follows: 

          Compile and publish additional data.  Cytomedix continues to gather additional data from two primary sources. First, our post market surveillance program (TAPS program) was designed to accumulate healing outcome data as well as safety data. TAPS follows a rigorous protocol that has Institutional Review Board (IRB) approval, involves multiple centers, and is well controlled. Second, as part of the clinical evaluations we conduct for prospective customers, we are able to gather efficacy data on AutoloGelTM. We expect to submit for publication data from the TAPS program by the end of 2010. Data on 65 wounds from the clinical evaluations has already been submitted for publication and is in the process of being edited based on editorial review board comments. We expect this article to be published in the first half of 2010. The data generated from these two sources will be the underpinning of our request for
reconsideration by CMS. 

          Establish strong support among key advocacy groups.  There are numerous advocacy groups and professional societies whose members would benefit by the broad reimbursement of PRP gel. We are canvassing those groups who would stand to benefit by a positive coverage decision, and whose opinions are highly regarded by CMS. We are working to ensure they are fully informed of all the facts around PRP gel generally, and AutoloGelTM specifically, so that they may appropriately voice their perspective during the anticipated reconsideration. 

          Develop portfolio of other payors who reimburse for AutoloGelTM.  AutoloGelTM currently enjoys Medicaid reimbursement in Illinois and Minnesota. Additionally, several commercial insurers have reimbursed for AutoloGelTM. We are working to expand the number and frequency of such commercial and Medicaid payors. This broader coverage, along with the growing clinical acceptance resulting from our sales and marketing efforts, will create an environment that makes obtainment of Medicare coverage more likely. 

          Demonstrate political interest.  In 2009 we have obtained letters signed by numerous members of Congress indicating their interest in PRP gel and its potential as an effective treatment of chronic wounds. This is important to counterbalance the lobbying efforts of our competitors who, we believe, have previously lobbied against coverage for AutoloGelTM. We expect to submit our request for reconsideration in the second half of 2010. We are working toward a positive coverage decision from CMS sometime in 2011. Suppliers The Company outsources manufacturing for all the components of the AutoloGelTM System. While the Company utilizes single suppliers for several components of AutoloGelTM, such components are generally readily available on the open market and therefore the Company believes that, with one exception, no dependencies exist from its current sourcing practices. The one exception is a reagent, bovine thrombin, available exclusively through King Pharmaceuticals.
 6    TABLE OF CONTENTS Competition There are multiple wound care products across several categories, each of which may pose some form of competition to AutoloGelTM. However, many of these products may also be viewed and used in a complementary fashion with AutoloGelTM. A discussion of the competitive products follows below. 

          Wet to dry saline/gauze  The clinician will apply a dry gauze cover to the wound and soak it in saline. When dry, the gauze adheres, and can be removed to debride the wound. Cytomedix estimates that a significant number of wounds are still managed with this inexpensive, long standing approach. Examples: Tyco, J&J gauze 

          Advanced wound dressings  These dressings are designed to interact with the wound characteristics. These dressings may provide a wound cover, debridement, absorption, delivery of moisture to the wound, etc. They typically use advanced materials or technology (e.g. foam, alginate, hydrocolloid, hydrogel) and may act as delivery systems for active ingredients (e.g. silver, iodine). These products seek to keep the wound moist, but not wet, and are also referred to as moist wound healing. Examples: Duoderm, Allevyn, Kaltostat, Tegaderm, Aquacel AG, Mepilex 

          Skin substitutes  These include skin grafts or flaps, and biologically derived tissue or synthetic skin to replace the natural body cover. They are used frequently for burns and in selected chronic wounds to speed the process of wound healing. They tend to be used for large exposed areas, and the consequences of their failure to graft may prolong time to closure and be very expensive. Examples: Aloderm, Apligraf, Dermagraft 

          Wound devices  Devices generally seek to circumvent deficiencies in the patients ability to regulate the biological, physical or chemical environment in the wound bed to facilitate the healing process. Usually these products seek to enhance the natural healing response through active alteration of the bodys regulation of heat, oxygen, electricity, pressure, or other homeostatic activity. Examples: Negative pressure wound therapy (e.g. VAC), hyperbaric oxygen, enzymatic debriding, electro stimulation, ultrasound (e.g. MIST) 

          PRP GEL  Other platelet gel companies, many of whom had licensing agreements with Cytomedix that expired in November 2009, may pose a competitive threat in the future. To date, these companies are selling platelet gel mostly into the surgical markets (e.g. cardiovascular, orthopedic), but may also try to sell into the chronic wound care market. When compared to these products, Cytomedixs AutoloGelTM System has the smallest, most portable centrifuge with the fastest spin time (1 minute compared to 13  20 minutes). This makes it possible to more easily use AutoloGelTM in a greater variety of health care settings (i.e. hospital, outpatient clinics, physicians offices, or long term care, long term acute care, and home health settings). In addition, it is a user-friendly system so multiple health care providers can process the gel, rather than specialty technicians. Other PRP
systems generally require a larger blood draw, more detailed processing steps, and a longer spin time. While other platelet gel companies claim a larger growth factor and platelet count than at baseline, no studies exist that prove this is efficacious in chronic wounds. To date, Cytomedixs AutoloGelTM System is the only platelet gel system that has completed a prospective, randomized, controlled trial in humans in the U.S. and AutoloGelTM is the only PRP gel to enjoy FDA marketing clearance for use on chronic wounds. Furthermore, AutoloGelTMs patented formulation includes ascorbic acid, which aides in the formation of the collagen matrix and, as an anti-oxidant, scavenges free radicals, both important elements in the natural wound repair process. Other Opportunities The Company is seeking to identify other markets for its AutoloGelTM System. Process, formulation, and device improvements are expected to extend the Companys market reach and patent protection. The Company is currently implementing an improved kit design, with other additional enhancements that will ease clinician use. Furthermore, we are developing a significantly enhanced device that will remove several process steps and provide for a more sterile environment. These improvements will facilitate our ability to
 7    TABLE OF CONTENTS target certain surgical procedures. We expect to submit a 510(k) for this enhanced device in the fourth quarter of 2010. This device will represent a significant improvement over the device listed in our recent 510(k) for an orthopedic application. As such, we have voluntarily withdrawn our existing 510(k) as we expect the new device to be available for marketing within a several month period after the original device would have been cleared. Additionally, we have partnered with Dr. Robert Reese, a leader in hair restoration surgery, to facilitate sales into the billion dollar U.S. surgical hair restoration market. Dr. Reese has conducted trials to determine the benefits of using AutoloGelTM in hair transplantation procedures and has been published on this subject. This is a natural market for Cytomedix as it is a self-pay market, so it is uncomplicated with insurance reimbursements, and the FDA indication covers the use of AutoloGelTM on wounds created during the hair transplantation procedure. Dr. Reese has been retained as a consultant to the Company. The Company may also seek strategic partnerships to leverage the additional healing properties that combination therapies may provide or as the best means to address the markets outside of chronic wounds. Other markets where AutoloGelTM may also be relevant are: 

          Angiogenesis (the growth of new blood vessels) 

          Application system for biologics, synthetics 

          Delivery system for stem cells Anti-inflammatory Peptide CT-112, an anti-inflammatory octapeptide, continues to represent an avenue through which we can further monetize our intellectual property. In pre-clinical in-vitro and in-vivo studies, CT-112 was shown to be potentially useful as a therapeutic for a number of autoimmune diseases, such as rheumatoid arthritis, graft-versus-host disease, chronic obstructive pulmonary disease, reperfusion injury and atherosclerosis. Market assessments found that these fields are crowded with new therapies under investigation and that the requisite clinical trials are lengthy and involve large numbers of patients. The Company engaged the Frankel Group to conduct a review
of potential therapeutic indications for CT-112, which revealed a number of underserved conditions that provide optimal market opportunity along with a well-defined regulatory pathway. Initial targets may include Pyoderma Gangrenosum (PG), atopic dermatitis, and an anti-inflammatory coating for medical devices. To facilitate partnering and further development of the CT-112 candidate, we have completed studies in human cell systems that are intended to provide potency estimates. We currently are engaged in discussions with strategic partners regarding development of the CT-112 candidate as a coating for medical devices. Patents, Licenses, and Property Rights Cytomedix relies on a combination of patents, trademarks, trade secrets, and copyright laws, as well as confidentiality procedures, contractual provisions, and other similar measures, to establish and protect its intellectual property. The Company is party to certain royalty agreements relating to its intellectual property under which it pays certain fees, as follows: 

          Curative Health Services, Inc. is entitled to receive 92% of licensing receipts from DePuy Spine, Inc. (a division of Johnson & Johnson, Inc.) and 10% of the total other amounts received by the Company in connection with upfront, milestone and other similar payments relating to patents it acquired from Curative. The DePuy and other license agreements concluded in November 2009, simultaneous with the expiration of the underlying patents. The Company currently has no further income relating to the Curative patents on which it would owe a royalty.
 8    TABLE OF CONTENTS 

          Mr. Charles Worden is entitled to receive a royalty equal to 5% of gross profits on revenues generated from reliance on the Worden Patents (U.S. patents 6,303,112 and 6,524,568), patents covering the formulation of AutoloGelTM, subject to a $6,250 minimum payment per month and a limit of $600,000 during any calendar year. This agreement also provides Mr. Worden with a security interest and lien on the patents as well as a reversionary interest if the Company discontinues substantially all efforts to commercialize the underlying patents. Patents Cytomedixs patent strategy, designed to maximize value, seeks to (i) assist the Company in establishing significant market positions for its products, (ii) attract strategic partners for collaborative research, development, marketing, distribution, or other agreements, which could likely include milestone payments to the Company, and (iii) generate revenue streams through licensing agreements. Cytomedixs current patent portfolio consists of more than 30 domestic and international patents that generally fall into the following families: 

          Process, formulation, and methods for utilizing platelet releasates to heal damaged tissue 

          Biomarkers for wound healing treatment efficacy 

          Peptides with anti-inflammatory properties 

          Peptides with angiogenic properties The above patent families encompass the Companys AutoloGelTM System, CT-112 anti-inflammatory peptide, homologous growth factors, wound-healing biomarkers, and several other potential therapies. Cytomedix is continually assessing new opportunities to create or in-license other intellectual property assets. In 2010, the Company is planning to file at least several new provisional patent applications covering new inventions or improvements to existing patents.
 9    TABLE OF CONTENTS Licensing The Company has established its intellectual property rights arising from its process patents regarding the use of platelet releasates to heal damaged tissue. Over several years it has reached settlement and/or licensing agreements with numerous companies infringing or seeking to avoid infringement of the Companys patents as listed in the table below. The underlying patents expired in late November 2009.  Licensee

          

          Date of Agreement

          

          Date of Expiration(1)

          

          Lump Sum(2)

          

          On-going RoyaltyPercentageDePuy Spine, Inc.(3)

          

          

          3/19/2001

          

          

          

          11/24/2009

          

          

          $

          750,000

          

          

          

          6.5%3/4/2005Medtronic, Inc. (assigned to Arteriocyte Medical Systems, Inc. effective November 2007)

          

          

          5/1/2005

          

          

          

          11/24/2009

          

          

          $

          680,000

          

          

          

          7.5% on disposables1.5% on hardwareHarvest Technologies, Inc.

          

          

          6/30/2005

          

          

          

          11/24/2009

          

          

          $

          500,000

          

          

          

          7.5% on disposables1.5% on hardwarePerfusion Partners and Associates, Inc.

          

          

          6/26/2005

          

          

          

          11/24/2009

          

          

          $

          250,000

          (4)

          

          

          10.0%COBE Cardiovascular, Inc.

          

          

          10/7/2005

          

          

          

          11/24/2009

          

          

          $

          45,000

          

          

          

          7.5% on disposables1.5% on hardwareSafeBlood Technologies, Inc.

          

          

          10/12/2005

          

          

          

          11/24/2009

          

          

          $

          50,000

          (4)

          

          

          8.0% to 9.0%Biomet Biologics, Inc.(5)

          

          

          5/19/2006

          

          

          

          11/24/2009

          

          

          $

          2,600,000

          

          

          

          noneCellMedix, Inc.

          

          

          11/28/2006

          

          

          

          11/24/2009

          

          

          $

          30,000

          

          

          

          9.5%Smith and Nephew, Inc.

          

          

          10/15/2007

          

          

          

          11/24/2009

          

          

          $

          250,000

          

          

          

          7.5%
  (1)

          These dates reflect the expiration of the license in the U.S., which coincides with the expiration of the Knighton Patent in the U.S. In some cases, the licensing agreements applicable to territories outside the U.S. extend to the expiration of the patents in the respective foreign countries. (2)

          For DePuy, CellMedix, and Smith and Nephew, the lump sum payments represent up-front fees for the prospective period from contract execution through termination that are in addition to any ongoing royalty percentage. For all other licensees, the up-front fees represent settlements for past patent infringement. (3)

          Cytomedix had two license agreements with DePuy Spine, Inc. The original license agreement is dated March 19, 2001, subsequently amended on March 3, 2005, and provides for the use of applications under Cytomedix patents in the fields of diagnostic and therapeutic spinal, neurosurgery and orthopedic surgery. The second license agreement is dated March 4, 2005, and applies to all fields not covered in the original license agreement as amended. (4)

          Some of these amounts were payable over a period of time as defined in executed notes payable to Cytomedix. (5)

          The Settlement and License Agreement with Biomet Biologics, Inc. (Biomet) called for a $2.6 million payout from Biomet to Cytomedix. This payout took the form of $1.4 million payable upon execution of the agreement and $100,000 payable at the end of each of 12 consecutive quarters beginning with the quarter ending September 2006. These payments were not tied to any performance commitments by Cytomedix and were not dependent on Biomet sales.
 10    TABLE OF CONTENTS Government Regulation Government authorities in the United States at the federal, state, and local levels extensively regulate, among other things, the research, development, testing, manufacture, labeling, promotion, advertising, distribution, sampling, marketing, and import and export of pharmaceutical products, biologics, and medical devices. The Companys products and product candidates are subject to regulatory approval or clearance by the FDA prior to commercialization. Various federal, state, and local statutes and regulations also govern testing, manufacturing, safety, labeling, storage, and record-keeping related to such products and their marketing.
Cytomedix would also be required to obtain regulatory approval from comparable agencies in foreign countries before commercial marketing in those countries. Before a product candidate is approved by the FDA for commercial marketing, rigorous preclinical and human clinical testing is conducted to test the safety and effectiveness of the product. If the Company fails to comply with the applicable requirements under these laws and regulations at any time during the product development process, approval process, or after approval, it may become subject to administrative or judicial sanctions. These sanctions could include the FDAs refusal to approve pending applications, withdrawals of approvals, clinical holds, warning letters, product recalls, product seizures, total or partial suspension of the Companys operations, injunctions, fines, civil penalties or criminal prosecution. Any agency enforcement action could have a material adverse effect on the Company. Medical Device Regulation The AutoloGelTM System and other devices that the Company may manufacture and distribute are subject to regulations by the Food and Drug Administration, including marketing clearance or approval, record-keeping requirements, good manufacturing practices and mandatory reporting of certain adverse experiences resulting from use of the devices, and certain state agencies. Labeling and promotional activities are also subject to regulation by the FDA and the Federal Trade Commission, in certain circumstances. Current FDA enforcement policy prohibits the marketing of approved medical devices for unapproved uses and the agency scrutinizes the
labeling and advertising of medical devices to ensure that unapproved uses are not promoted. Before a new medical device can be introduced to the market, the manufacturer must generally obtain FDA clearance or approval. In the United States, medical devices are classified into one of three classes  Class I, II or III. The controls applied by the FDA to the different classifications are those believed by the FDA to be necessary to provide reasonable assurance that the device is safe and effective. Class I devices are non-critical products that the FDA believes can be adequately regulated by general controls that include provisions relating to labeling, manufacturer registration, defect notification, records and reports, and current good manufacturing practices (cGMP) based on the FDAs Quality Systems Regulations. Most Class I devices are exempt from pre-market notification and some are also exempt from cGMP requirements. Class II devices are
products for which the general controls of Class I devices, by themselves, are not sufficient to assure safety and effectiveness and, therefore, require special controls. Additional special controls for Class II devices include performance standards, post-market surveillance patient registries, and the use of FDA guidelines. Standards may include both design and performance requirements. Class III devices have the most restrictive controls and require pre-market approval by the FDA. Generally, Class III devices are limited to life-sustaining, life-supporting or implantable devices. The FDA inspects medical device manufacturers and has a broad authority to order recalls of medical devices, to seize non-complying medical devices, and to criminally prosecute violators. Section 510(k) of the Federal Food, Drug and Cosmetic Act requires individuals or companies manufacturing most medical devices intended for human use to file a notice with the FDA at least ninety days before intending to introduce the device into the market. This notice, commonly referred to as a 510(k), must identify the type of classified device into which the product falls, the class of that type, and a specific product already being marketed or cleared by the FDA and to which the product is substantially equivalent. In some instances, the 510(k) must include data from human clinical studies in order to establish substantial
equivalence. The FDA must agree with the claim of substantial equivalence before the device can be marketed. The statutory time frame for clearance of a 510(k) is 90 days, though it often takes longer. If a product is Class III and does not qualify for the 510(k) process, then the FDA requires a pre-market approval (PMA) application and approval before marketing can begin. PMA applications must demonstrate, among other factors, that the device in question is safe and effective. Obtaining a PMA application approval can sometimes take several years, depending upon the complexity of the issues involved with the device. The
 11    TABLE OF CONTENTS statutory time frame for the review of a PMA by the FDA is 180 days and many devices are reviewed and approved within that time frame or within a few months afterward. Marketing approval based on a PMA is generally a longer process than the 510(k) clearance process that is typically obtained in comparatively less time. The Company currently markets the AutoloGelTM System Centrifuge II, the AutoloGelTM Wound Dressing Kit, and certain commercially-available reagents (i.e. calcium chloride, ascorbic acid, ACD-A anticoagulant, and bovine thrombin). Each System component is a legally-marketed product that has been cleared by the FDA. The AutoloGelTM System Centrifuge II, when used with the AutoloGelTM Wound Dressing Kit and AutoloGelTM Reagents Kit, are suitable for use on exuding wounds such as leg ulcers, pressure ulcers and diabetic ulcers and for the management of mechanically or surgically-debrided wounds. During 2003, the Company made a business decision to undertake a prospective, randomized, blinded, controlled trial for the AutoloGelTM System. The objective of the trial was to demonstrate safety and efficacy to the scientific and reimbursement community, as well as to the FDA, of the AutoloGelTM System for use on diabetic foot ulcers. In making this decision, the Company subjected itself to increased FDA oversight and its regulations governing the investigational use of medical devices, codified at 21 C.F.R. Part 812. To this end, the Company submitted an Investigational Device Exemption (IDE) application to the FDA
under these rules and obtained approval on March 5, 2004, thus allowing the Company to begin its clinical trial. Once the study was completed and clinical results analyzed, the Company submitted a 510(k) requesting the FDAs clearance of the AutoloGelTM System in January 2006, as discussed above, under the caption Clinical Trial and FDA Clearance. Clearance was received in September 2007. As a manufacturer of medical devices, Cytomedix is also subject to and complies with good manufacturing practices of the Quality System Regulation in 21 C.F.R. Part 820 of the Food, Drug and Cosmetic Act. Bio-Pharmaceutical Product Regulation The Companys CT-112 product candidate and other bio-pharmaceuticals it may develop are also regulated by the FDA. Under the United States regulatory scheme, the development process for new such products can be divided into two distinct phases: 

          Preclinical Phase.  The preclinical phase involves the discovery, characterization, product formulation and animal testing necessary to prepare an Investigational New Drug application (IND) for submission to the FDA. The IND must be accepted by the FDA before the drug can be tested in humans. The review period for an IND submission is 30 days, after which, if no comments are made by the FDA, the product candidate can be studied in Phase I clinical trials. Certain preclinical tests must be conducted in compliance with the FDAs good laboratory practice regulations and the United States Department of Agricultures Animal Welfare Act. 

          Clinical Phase.  The clinical phase of development follows a successful IND submission and involves the activities necessary to demonstrate the safety, tolerability, efficacy, and dosage of the drug in humans, as well as the ability to produce the drug in accordance with cGMP requirements. Clinical trials are conducted under protocols detailing, among other things, the objectives of the study and the parameters to be used in assessing the safety and the efficacy of the drug. Each protocol must be submitted to the FDA as part of the IND prior to beginning the trial. Each trial must be reviewed, approved, and conducted under the auspices of an IRB and each trial, with limited exceptions, must include the patients informed consent. Typically, clinical evaluation involves the following time-consuming and costly three-phase sequential process: 

          Phase I.  In Phase I clinical trials, a small number of volunteers, typically healthy individuals, are tested with the drug to determine the drugs safety and tolerability and includes biological analyses to determine the availability and metabolism of the active ingredient following administration. 

          Phase II.  Phase II clinical trials involve administering the drug to individuals who suffer from the target disease or condition to determine the drugs potential efficacy and ideal dose. These clinical trials are typically well controlled, closely monitored, and conducted in a relatively small number of patients, usually involving no more than several hundred subjects.
 12    TABLE OF CONTENTS 

          Phase III.  Phase III clinical trials are performed after preliminary evidence suggesting effectiveness of a drug has been obtained and safety, tolerability, and an ideal dosing regimen have been established. Phase III clinical trials are intended to gather additional information about effectiveness and safety that is needed to evaluate the overall benefit-risk relationship of the drug and to complete the information needed to provide adequate instructions for the use of the drug. Phase III trials usually include from several hundred to several thousand subjects. 

          Throughout the clinical phase, samples of the product made in different batches are tested for stability to establish shelf life constraints. In addition, large-scale production protocols and written standard operating procedures for each aspect of commercial manufacture and testing must be developed. These trials require scale up for manufacture of increasingly larger batches of bulk chemical. These batches require validation analyses to confirm the consistent composition of the product. 

          Phase I, II, and III testing may not be completed successfully within any specified time period, if at all. The FDA closely monitors the progress of each of the three phases of clinical trials that are conducted under an IND and may, at its discretion, reevaluate, alter, suspend (place on clinical hold), or terminate the testing based upon the data accumulated to that point and the agencys assessment of the risk/benefit ratio to the patient. The FDA may suspend or terminate clinical trials at any time for various reasons, including a finding that the subjects or patients are being exposed to an unacceptable health risk. The FDA can also request that additional clinical trials be conducted as a condition to product approval. Additionally, new government requirements may be established that could delay or prevent regulatory approval of products under development. Furthermore, IRBs, which are independent entities constituted to
protect human subjects at the institutions in which clinical trials are being conducted, have the authority to suspend clinical trials at their respective institutions at any time for a variety of reasons, including safety issues. After the successful completion of Phase III clinical trials, the sponsor of the new bio-pharmaceutical submits a Biologics License Application (BLA) to the FDA requesting approval to market the product for one or more indications. A BLA is a comprehensive, multi-volume application that includes, among other things, the results of all preclinical studies and clinical trials, information about the drugs composition and manufacturing, and the sponsors plans for producing, packaging, and labeling the drug. Under the Pediatric Research Equity Act of 2003, an application also is required to include an assessment, generally based on
clinical study data, on the safety and efficacy of drugs for all relevant pediatric populations before the BLA is submitted. The statute provides for waivers or deferrals in certain situations. In most cases, the BLA must be accompanied by a substantial user fee. In return, the FDA assigns a goal of 10 months from acceptance of the application to return of a first complete response, in which the FDA may approve the product or request additional information. The submission of the application is no guarantee that the FDA will find it complete and accept it for filing. The FDA reviews all BLAs submitted before it accepts them for filing. It may refuse to file the application and request additional information rather than accept the application for filing, in which case, the application must be resubmitted with the supplemental information. After the application is deemed filed and accepted by the FDA, agency staff reviews a BLA to determine, among other things, whether a product is safe and effective for its intended use. The FDA has substantial discretion in the approval process and may disagree with
an applicants interpretation of the data submitted in its BLA. As part of this review, the FDA may refer the application to an appropriate advisory committee, typically a panel of physicians, for review, evaluation, and an approval recommendation. The FDA is not bound by the opinion of the advisory committee. Drugs that successfully complete BLA review may be marketed in the United States, subject to all conditions imposed by the FDA. Prior to granting approval, the FDA generally conducts an inspection of the facilities, including outsourced facilities, that will be involved in the manufacture, production, packaging, testing, and control of the drug candidate for cGMP compliance. The FDA will not approve the application unless cGMP compliance is satisfactory. If the FDA determines that the marketing application, manufacturing process, or manufacturing
 13    TABLE OF CONTENTS facilities are not acceptable, it will outline the deficiencies in the submission and will often request additional testing or information. Notwithstanding the submission of any requested additional information, the FDA ultimately may decide that the marketing application does not satisfy the regulatory criteria for approval and refuse to approve the application by issuing a not approvable letter. The length of the FDAs review may range from a few months to many years. If the FDA approves the BLA, the product becomes available for physicians to prescribe in the United States. After approval, the BLA holder is still subject to continuing regulation by the FDA, including record keeping requirements, submitting periodic reports to the FDA, reporting of any adverse experiences with the product, and complying with drug sampling and distribution requirements. In addition, the BLA holder is required to maintain and provide updated safety and efficacy information to the FDA. The BLA holder is also required to comply with requirements concerning advertising and promotional labeling, including prohibitions against promoting
any non-FDA approved or off-label indications of products. Failure to comply with those requirements could result in significant enforcement action by the FDA, including warning letters, orders to pull the promotional materials, and substantial fines. Also, quality control and manufacturing procedures must continue to conform to cGMP after approval. Biologics manufacturers and their subcontractors are required to register their facilities and products manufactured annually with the FDA and certain state agencies and are subject to periodic unannounced inspections by the FDA to assess compliance with cGMP regulations. Facilities may also be subject to inspections by other federal, foreign, state or local agencies. Accordingly, manufacturers must continue to expend time, money, and effort in the area of production and quality control to maintain compliance with cGMP and other aspects of regulatory compliance. In addition, following FDA approval of a product, discovery of problems with a product or the failure to comply with requirements may result in restrictions on a product, manufacturer, or holder of an approved marketing application, including withdrawal or recall of the product from the market or other voluntary or FDA-initiated action that could delay further marketing. Newly discovered or developed safety or effectiveness data may require changes to a products approved labeling, including the addition of new warnings and contraindications. Also, the FDA may require post-market testing and surveillance to monitor the products safety or
efficacy, including additional clinical studies, known as Phase IV trials, to evaluate long-term effects. Fraud and Abuse Laws The Company may also be indirectly subject to federal and state physician self referral laws. Federal physician self-referral legislation (commonly known as the Stark Law) prohibits, subject to certain exceptions, physician referrals of Medicare and Medicaid patients to an entity providing certain designated health services if the physician or an immediate family member has any financial relationship with the entity. A person who engages in a scheme to circumvent the Stark Laws referral prohibition may be fined up to $100,000 for each such arrangement or scheme. The penalties for violating the Stark Law also include civil
monetary penalties of up to $15,000 per referral and possible exclusion from federal health care programs such as Medicare and Medicaid. The Stark Law also prohibits the entity receiving the referral from billing any good or service furnished pursuant to an unlawful referral, and any person collecting any amounts in connection with an unlawful referral is obligated to refund such amounts. Various states have corollary laws to the Stark Law, including laws that require physicians to disclose any financial interest they may have with a health care provider to their patients when referring patients to that provider. Both the scope and exception for such laws vary from state to state. The Company may also be subject to federal and state anti-kickback laws. Section 1128B (b) of the Social Security Act, commonly referred to as the Anti-Kickback Law, prohibits persons from knowingly and willfully soliciting, receiving, offering or providing remuneration, directly or indirectly, to induce either the referral of an individual, or the furnishing, recommending, or arranging for a good or service, for which payment may be made under a federal health care program such as Medicare and Medicaid. The Anti-Kickback Law is broad, and it prohibits many arrangements and practices that are otherwise lawful in businesses outside of the health care
industry. The U.S. Department of Health and Human Services (DHHS) has issued regulations, commonly known as safe harbors that set forth certain provisions which, if fully met, will assure health care providers and other parties that they will not be prosecuted under the federal Anti-Kickback Law. Although
 14    TABLE OF CONTENTS full compliance with these provisions ensures against prosecution under the Anti-Kickback Law, the failure of a transaction or arrangement to fit within a specific safe harbor does not necessarily mean that the transaction or arrangement is illegal or that prosecution under the federal Anti-Kickback Law will be pursued. The penalties for violating the Anti-Kickback Law include imprisonment for up to five years, fines of up to $250,000 per violation for individuals and up to $500,000 per violation for companies and possible exclusion from federal health care programs. Many states have adopted laws similar to the federal Anti-Kickback Law, and some of
these state prohibitions apply to patients for health care services reimbursed by any source, not only federal health care programs such as Medicare and Medicaid. In addition, there are two other health care fraud laws to which the Company may be subject, one which prohibits knowingly and willfully executing or attempting to execute a scheme or artifice to defraud any health care benefit program, including private payers (fraud on a health benefit plan) and one which prohibits knowingly and willfully falsifying, concealing or covering up a material fact or making any materially false, fictitious or fraudulent statement or representation in connection with the delivery of or payment for health care benefits, items or services. These laws apply to any health benefit plan, not just Medicare and
Medicaid. The Company may also be subject to other laws which prohibit submitting claims for payment or causing such claims to be submitted that are false. Violation of these false claims statutes may lead to civil money penalties, criminal fines and imprisonment, and/or exclusion from participation in Medicare, Medicaid and other federally funded state health programs. These statutes include the federal False Claims Act, which prohibits the knowing filing of a false claim (or causing the submission of a false claim) or the knowing use of false statements to obtain payment from the U.S. federal government. When an entity is determined to have violated the False
Claims Act, it must pay three times the actual damages sustained by the government, plus mandatory civil penalties of between $5,500 and $11,000 for each separate false claim. Suits filed under the False Claims Act can be brought by an individual on behalf of the government (a qui tam action). Such individuals (known as qui tam relators) may share in the amounts paid by the entity to the government in fines or settlement. In addition certain states have enacted laws modeled after the False Claims Act. Qui tam actions have increased significantly in recent years causing greater numbers of health care companies to have to defend false claim actions, pay fines or be excluded from the Medicare, Medicaid or other federal or state health care programs as a result of an investigation arising out of such action. Several states also have referral, fee splitting and other similar laws that may restrict the payment or receipt of remuneration in connection with the purchase or rental of medical equipment and supplies. State laws vary in scope and have been infrequently interpreted by courts and regulatory agencies, but may apply to all health care products and services, regardless of whether Medicaid or Medicare funds are involved. Research and Development The Company is currently focusing its limited resources primarily on broad commercialization of AutoloGelTM. It therefore expends only limited amounts on research and development activities (R&D). The Company currently has several development projects underway to enhance the AutoloGelTM System. These enhancements are designed to provide a more efficient user experience by removing steps from the process of creating AutoloGelTM, and to increase the closed nature of the device to allow for better suitability in a surgical setting. These enhancements will further strengthen our competitive edge in the
chronic wound market, and also facilitate our entry into surgical markets and other applications. Some of these enhancements are expected to yield a family of patents. We are working with advisory, engineering, and design firms as well as OEM medical device manufacturers to develop these improvements. Total R&D expenditures in 2010 are expected to be in the range of $350,000 to $450,000. Employees As of this Annual Report, the Company had 17 employees, including the Companys CEO, CFO, and VP of Professional Services. The remaining personnel consist of scientific, sales and marketing, accounting, clinical, and investor relations professionals. None of the Companys employees is covered by a collective bargaining agreement or represented by a labor union. The Company considers its employee relations to be good.
 15    TABLE OF CONTENTS Item 1A. Risk Factors The Company faces many risks. The risks described below may not be the only risks the Company faces. Additional risks not yet known or currently believed to be immaterial may also impair Cytomedixs business. If any of the events or circumstances described in the following risks actually occurs, the Companys business, financial condition or results of operations could suffer, and the trading price of its Common stock could decline. You should consider the following risks, together with all of the other information in this Annual Report on Form 10-K, before making an investment decision with respect to Cytomedix securities. There is Substantial Doubt As to the Companys Ability to Continue As a Going Concern The Company has suffered recurring losses from operations and has insufficient liquidity to fund its ongoing operations that raise substantial doubt about its ability to continue as a going concern. In addition, the Companys financial statements have been prepared on the assumption that it will continue as a going concern, which contemplates the realization of assets and liquidation of liabilities in the normal course of business. However, there is substantial doubt about the Companys ability to continue as a going concern. Accordingly, the Company will need to increase sales volume and obtain additional capital to continue as a going
concern and to fund our operations, including to: 

          Continue and increase investment in sales and marketing activities related to the AutoloGelTM System 

          Pursue a strategic partner for CT-112 

          Develop additional new products and/or make improvements to existing products 

          Conduct additional trial(s) or studies to support efforts to obtain CMS reimbursement for its products 

          Pursue existing and new claims covered by intellectual property owned or contemplated by the Company 

          Sustain its corporate overhead requirements and hire and retain necessary personnel 

          Pursue other potential attractive opportunities Until the Company can generate a sufficient amount of product revenue to finance its cash requirements, which it may not accomplish, it expects to finance future cash needs primarily through offerings of its debt or equity securities, strategic collaborations, or government grants. The Company does not know whether additional funding will be available on acceptable terms, or at all. If the Company is not able to secure additional funding when needed, it may have to delay, reduce the scope, or eliminate one or more of its programs, or substantially curtail or close its operations altogether. In addition, it may have to partner one or more of its
technologies at an earlier stage of development, which could lower the economic value of those programs to the Company. The Companys Independent Registered Public Accounting Firm Has Expressed Substantial Doubt About Our Ability to Continue as a Going Concern The Company has received an audit report from its independent registered accounting firm containing an explanatory paragraph stating that its historical recurring losses from operations raise substantial doubt about the Companys ability to continue as a going concern. The Company Has Limited Sources of Working Capital Because the Company was in bankruptcy in 2002 and due to the rights of some of the Companys preferred shareholders, the Company may not be able to obtain debt financing. Working capital required to implement our business plan will most likely be provided by funds obtained through offerings of our equity securities, and revenues generated by the Company. No assurance can be given that the Company will have revenues sufficient to support and sustain its operations or that it would be able to obtain equity financing in the current economic environment. To date, the overwhelming majority of the Companys revenues have been provided by its
licensing agreements. These agreements expired in November 2009. There is no assurance that the Company will be able to replace these revenues through product sales, new licensing agreements, or other sources. If the Company does not have sufficient working capital and is unable to generate revenues or raise
 16    TABLE OF CONTENTS additional funds, the Company may delay the completion of or significantly reduce the scope of its current business plan; delay some of its development and clinical or marketing testing, its plans to pursue Medicare and/or commercial insurance reimbursement for its wound treatment technologies; or postpone the hiring of new personnel; or, under certain dire financial circumstances, cease its operations. Adverse Conditions in the Global Economy and Disruption of Financial Markets May Significantly Restrict the Companys Ability to Generate Revenues or Obtain Debt or Equity Financing The global economy continues to experience volatility and uncertainty. Such conditions could reduce demand for the Companys products, significantly jeopardizing the ability to achieve meaningful market penetration for AutoloGelTM. These conditions could also affect potential strategic partners of Cytomedix, which in turn could make it much more difficult to execute a strategic collaboration, and therefore significantly jeopardize the Companys ability to fully develop CT-112. Global credit and capital markets continue to be relatively challenging. Cytomedix may be unable to obtain capital through issuance of its equity
securities, a significant source of funding for the Company throughout its history. If it is unable to secure funding through strategic collaborations, equity investments, or debt financing, it may not be able to achieve profitability and could result in a cessation of operations. Business credit and liquidity have tightened in much of the world. Volatility and disruption of financial markets could limit Cytomedix customers ability to obtain adequate financing or credit to purchase and pay for Cytomedix products in a timely manner, or to maintain operations, and result in a decrease in sales volume. General concerns about the fundamental soundness of domestic and international economies may also cause customers to reduce purchases. Changes in governmental banking, monetary and fiscal policies to restore liquidity and increase credit availability may not be effective. Economic conditions and market turbulence may also
impact the Companys suppliers ability to supply sufficient quantities of product components in a timely manner, which could impair the Companys ability to fulfill sales orders. It is difficult to determine the extent of the economic and financial market problems and the many ways in which they may affect the Companys suppliers, customers, investors, and business in general. Continuation or further deterioration of these financial and macroeconomic conditions could significantly harm sales, profitability and results of operations. Economic downturns or other adverse economic changes (local, regional, or national) can also hurt the Companys financial performance in the form of lower interest earned on investments and/or could result in losses of portions of principal in the Companys investment portfolio. While the Companys investment policy requires it to invest only in short-term, low risk investments, there is no assurance that principal will not be eroded as a significant portion of these investments is in excess of federally mandated insurance. The Company May Not Regain Compliance with the NYSE Amex Continued Listing Criteria As a NYSE Amex listed company, Cytomedix is required to comply with the continued listing criteria of the exchange. We currently do not meet the minimum shareholders equity requirements per Sections 1003(a)(i), 1003(a)(ii) and 1003(a)(iii) of the Exchange Company Guide. On July 24, 2009, the Company received a letter from NYSE Amex (the Exchange) indicating that the Exchange accepted the Companys plan of compliance and granted the Company an extension until November 12, 2010 to regain compliance with the Exchanges continued listing requirements. In order to regain compliance, we will need to, among other things, increase
our shareholders equity balance to at least $6 million. The Company is required to provide the Exchange staff with updates on its progress relating to the execution of the plan so as to enable the Exchange staff to review the Companys adherence to the plan during the extension period. Failure to regain compliance with the continued listing standards by the end of the extension period or to make progress consistent with the plan of compliance during the extension period could result in the Company being delisted from the Exchange. There is no assurance that the Company will execute its compliance plan as intended or by the November 12, 2010 deadline. If we fail to reach the compliance goals set forth in the plan, we would likely be delisted from NYSE Amex, which could significantly reduce the active market for and liquidity of the Companys stock. The Company Has a History of Losses The Company has a history of losses, is not currently profitable, and expects to incur substantial losses and negative operating cash flows for the foreseeable future. The Company may never generate sufficient revenues to achieve and maintain profitability. The Company will continue to incur expenses at current levels as it
 17    TABLE OF CONTENTS seeks to expand its operations, pursue development of its technologies, works to increase its sales, implement internal systems and infrastructure, and hire additional personnel. These ongoing financial losses may adversely affect the Companys stock price. The Company Has a Short Operating History and Limited Operating Experience The Company must be evaluated in light of the uncertainties and complexities affecting an early stage biotechnology company. The Company has only recently implemented its commercialization strategy. Thus, the Company has a very limited operating history. Continued operating losses, together with the risks associated with the Companys ability to gain new customers for its product offerings may have a material adverse effect on the Companys liquidity. The Company may also be forced to respond to unforeseen difficulties, such as decreasing demand for its products, downward pricing trends, and services, regulatory requirements and
unanticipated market pressures. Since emerging from bankruptcy and continuing through today, the Company is developing a business model that includes protecting its patent position, addressing its third-party reimbursement issues, developing and executing a sales and marketing program, and developing other technologies covered by, or derived from, its intellectual property. There can be no assurance that its business model in its current form can accomplish the Companys stated goals. The Companys Intellectual Property Assets Are Critical to Its Success The Company regards its patents, trademarks, trade secrets, and other intellectual property assets as critical to its success. The Company relies on a combination of patents, trademarks, and trade secret and copyright laws, as well as confidentiality procedures, contractual provisions, and other similar measures, to establish and protect its intellectual property. The Company attempts to prevent disclosure of its trade secrets by restricting access to sensitive information and requiring employees, consultants, and other persons with access to the Companys sensitive information to sign confidentiality agreements. Despite these efforts, the
Company may not be able to prevent misappropriation of its technology or deter others from developing similar technology in the future. Furthermore, policing the unauthorized use of its intellectual property assets is difficult and expensive. Litigation has been necessary in the past and may be necessary in the future in order to protect the Companys intellectual property assets. Litigation could result in substantial costs and diversion of resources. The Company cannot assure that it will be successful in any litigation matter relating to its intellectual property assets. Continuing litigation or other challenges could result in one or more of its patents being declared invalid. In such a case, any royalty revenues from the affected patents would be adversely affected although the Company may still be able to continue to develop and market its products. Furthermore, the unauthorized use of the Companys patented technology by otherwise potential customers in its target
market, may significantly undermine its ability to generate sales. The Companys patent covering the specific gel formulation that is applied as part of the AutoloGelTM System (the Worden Patent) expires no earlier than February 2019. The Companys U.S. Knighton Patent (which was the subject of license agreements between the Company and Medtronic, Inc., DePuy Spine, Inc., Biomet Biologics, Inc., COBE Cardiovascular, Inc., and Harvest Technologies Corporation, among others) expired in November 2009. In 2009, the license agreements under the Knighton Patent accounted for approximately 89% of the Companys revenues. There is no assurance that the Company will obtain a significantly
increased share of the wound care market to replace the royalty revenue generated by the U.S. Knighton Patent in 2009. Furthermore, the Company may be more vulnerable to competitive factors because, henceforth, third parties will not then need a license from the Company to perform the methods claimed in the Knighton Patent. The AutoloGelTM System and Components are Subject to Governmental Regulation The Companys success is also impacted by factors outside of the Companys control. The Companys current technology and products may be subject to extensive regulation by numerous governmental authorities in the United States, both federal and state, and in foreign countries by various regulatory agencies. Specifically, the Companys devices and bio-pharmaceutical products are subject to regulation by the FDA and state regulatory agencies. The FDA regulates drugs, medical devices and biologics that move in interstate commerce and requires that such products receive clearance or pre-marketing approval based on evidence of safety
and efficacy. The regulations of government health ministries in foreign countries are analogous to those of the FDA in both application and scope. In addition, any change in current regulatory interpretations by, or positions of, state regulatory officials where the AutoloGelTM System is used could materially and adversely affect
 18    TABLE OF CONTENTS the Companys ability to sell products in those states. The FDA will require the Company to obtain clearance or approval of new devices when used for treating specific wounds or marketed with specific wound healing claims, or for other products under development. The Company believes that the AutoloGelTM System and all Company products are legally marketed. The FDA has cleared the Company to market the AutoloGelTM System, including the Wound Dressing Kit and Centrifuge II, for use in exuding wounds such as leg ulcers, pressure ulcers, and diabetic ulcers, and the management of mechanically and surgically-debrided wounds. As the Company expands and offers additional products in the United States and in foreign countries, clearance or approval from the FDA and comparable foreign regulatory authorities prior to introduction of any such products into the market may be required. The Company
has no assurance that it will be able to obtain all necessary approvals from the FDA or comparable regulatory authorities in foreign countries for these products. Failure to obtain the required approvals would have a material adverse impact on the Companys business and financial condition. Compliance with FDA and other governmental requirements imposes significant costs and expenses. Further, the Companys failure to comply with these requirements could result in sanctions, limitations on promotional or other business activities, or other adverse effects on the Companys business. Further, recent efforts to control healthcare costs could negatively affect demand for the Companys products and services. Clinical Trials May Fail to Demonstrate the Safety or Efficacy of the Companys Product Candidates The Companys product candidates are subject to the risks of failure inherent in the development of biotherapeutic products. The results of early-stage clinical trials do not necessarily predict the results of later-stage clinical trials. Product candidates in later-stage clinical trials may fail to demonstrate desired safety and efficacy traits despite having successfully progressed through initial clinical testing. Even if the Company believes the data collected from clinical trials of its product candidates is promising, this data may not be sufficient to support approval by the U.S. or foreign regulatory agencies. Pre-clinical and clinical
data can be interpreted in different ways. Accordingly, the regulatory officials could reach different conclusions in assessing such data, which could delay, limit or prevent regulatory approval. In addition, the U.S. regulatory authorities or the Company may suspend or terminate clinical trials at any time. Any failure or delay in completing clinical trials for product candidates, or in receiving regulatory approval for the sale of any product candidates, has the potential to materially harm the Companys business, and may prevent it from raising necessary, additional financing that may be needed in the future. A Disruption in Healthcare Provider Networks Could Have an Adverse Effect on Operations and Profitability The Companys operations and future profitability are dependent, in large part, upon the ability to contract with healthcare providers on favorable terms. In any particular service area, healthcare providers could refuse to contract with Cytomedix or take other actions that could result in higher healthcare costs, or create difficulties in meeting the Companys regulatory requirements. In some service areas, certain healthcare providers may have a significant market presence. If healthcare providers refuse to contract with Cytomedix, use their market position to negotiate unfavorable contracts or place the Company at a competitive
disadvantage, the Companys ability to market services or to be profitable in those service areas could be adversely affected. Provider networks could also be disrupted by the financial insolvency of a large healthcare provider group. Any disruption in provider networks could adversely impact the Companys ability to generate revenues or profits. The Companys Sales and Marketing Strategy for Its AutoloGelTM System May Not Succeed In January 2009, the Company implemented a revised sales and marketing strategy that focuses on intensive clinician to clinician interaction with both prospective and existing customers, and the scientific explanation of AutoloGelTMs mechanism of action. There is no assurance that this approach will result in significant, sustainable growth in sales revenue, or that the Company, as currently capitalized, will have sufficient resources to provide the level of clinical support for this initiative to be successful. CMSs Non-Coverage of AutoloGelTM Could Greatly Restrict the Companys Sales The AutoloGelTM System is marketed to healthcare providers. Some of these providers, in turn, seek reimbursement from third-party payers such as Medicare, Medicaid, and other private insurers. Many foreign
 19    TABLE OF CONTENTS countries also have comprehensive government managed healthcare programs that provide reimbursement for healthcare products. Under such healthcare systems, reimbursement is often a determining factor in predicting a products success, with some physicians and patients strongly favoring only those products for which they will be reimbursed. With CMSs national non-coverage decision, the market for the AutoloGelTM System is restricted and it may be difficult, if not impossible, to sell AutoloGelTM in most care settings. This currently hinders the Companys ability to grow its revenues and could reduce the likelihood
that it will ever achieve sustainable profitability. There is no assurance that the Companys efforts to obtain CMS coverage will be successful. The Companys Intention to Develop a Plan to Secure Medicare Reimbursement Without Conducting a New Randomized Controlled Trial May Not Be Successful In March 2008, CMS reaffirmed its 2003 non-coverage decision for PRP gel, which would include AutoloGelTM. Following CMSs decision, the Company met with CMS in April 2008 to discuss the optimal path for securing future coverage for AutoloGelTM and in concert with consultants and advisors, has developed a multi-pronged strategy to obtain Medicare reimbursement for AutoloGelTM. While the Company is striving to obtain a positive coverage decision without undertaking a new randomized, controlled trial with the same rigors, restrictions, and costs of its previous RCT, there is no assurance that the Company will
ultimately be successful with this strategy and that CMS will determine that the evidence is sufficient to reverse all or a portion of its existing non-coverage decision. If we later determine that a new randomized, controlled trial is necessary, it could cost several millions of dollars and take multiple years to complete. The Company would almost certainly need to obtain additional, outside financing to fund such a trial. The Company May Be Unable to Attract a Strategic Partner for the Further Development of CT-112 Due to our limited resources, we have determined that the best vehicle to move the development of CT-112 forward is through a strategic partnership, outlicensing, or other similar arrangement. While we are engaged in ongoing discussions with potential partners or licensees, there is no assurance that we will be able to come to any such agreement. Furthermore, even if such a strategic relationship regarding CT-112 is reached, there is no assurance that development milestones, clinical data, or other such benchmarks will be achieved. Therefore, CT-112 may never proceed toward commercialization or drive cash infusions for the Company, and we may
ultimately not be able to monetize the patents, existing clinical data, and other intellectual property related to CT-112. The Success of the AutoloGelTM System Is Dependent on Acceptance by the Medical Community The commercial success of the Companys products and processes will depend upon the medical community and patients accepting the therapies as safe and effective. If the medical community and patients do not ultimately accept the therapies as safe and effective, the Companys ability to sell the products and processes will be materially and adversely affected. While acceptance by the medical community may be fostered by broad evaluation via peer-reviewed literature, the Company may not have the resources to facilitate sufficient publication. The Company May Be Unable to Attract and Retain Key Personnel The future success of the Company depends on the ability to attract, retain and motivate highly skilled management, including sales representatives. The Company has retained a team of highly qualified officers and consultants, but the Company cannot provide assurance that it will be able to successfully retain all of them, or be successful in recruiting additional personnel as needed. The Companys inability to do so will materially and adversely affect the business prospects, operating results and financial condition. The Companys ability to maintain and provide additional services to its existing customers depends upon its ability to hire
and retain business development and scientific and technical personnel with the skills necessary to keep pace with continuing changes in regenerative biological therapy technologies. Competition for such personnel is intense; the Company competes with pharmaceutical, biotechnology and healthcare companies. The Companys inability to hire additional qualified personnel may lead to higher recruiting, relocation and compensation costs for such personnel. These increased costs may reduce the Companys profit margins or make hiring new personnel impractical.
 20    TABLE OF CONTENTS Legislative and Administrative Action May Have an Adverse Effect on the Company Political, economic and regulatory influences may subject the health care industry in the United States to fundamental change. The Company cannot predict what other legislation relating to its business or to the health care industry may be enacted, including legislation relating to third-party reimbursement, or what effect such legislation may have on the Companys business, prospects, operating results and financial condition. The Company expects federal and state legislators to continue to review and assess alternative health care delivery and payment systems and possibly adopt legislation affecting fundamental changes in the health care
delivery system. Such laws may contain provisions that may change the operating environment for its targeted customers including hospitals and managed care organizations. Health care industry participants may react to such legislation by curtailing or deferring expenditures and initiatives, including those relating to the Companys products. Future legislation could result in modifications to the existing public and private health care insurance systems that would have a material adverse effect on the reimbursement policies discussed above. With growing pressures on government budgets due to the current economic downturn, government efforts to contain or reduce health care spending are likely to gain increasing emphasis. Several members of the current presidential administration and Congress are espousing support for cost-containment measures that could have significant implications for healthcare therapies, including the Companys current and future products. If enacted and implemented, such measures could result in decreased revenue from the AutoloGelTM System and decrease potential returns from the Companys research and development initiatives. Furthermore, there is no assurance that we will be able to successfully neutralize any lobbying efforts against our efforts to secure Medicare coverage or other initiatives we may have with governmental agencies. The Company Could Be Affected by Malpractice Claims Providing medical care entails an inherent risk of professional malpractice and other claims. The Company does not control or direct the practice of medicine by physicians or health care providers who use the products and does not assume responsibility for compliance with regulatory and other requirements directly applicable to physicians. The Company cannot assure that claims, suits or complaints relating to the use of the AutoloGelTM System and treatment administered by physicians will not be asserted against the Company in the future. The production, marketing and sale, and use of the AutoloGelTM System entail risks that
product liability claims will be asserted against the Company. These risks cannot be eliminated, and the Company could be held liable for any damages that result from adverse reactions or infectious disease transmission. Such liability could materially and adversely affect the Companys business, prospects, operating results and financial condition. The Company currently maintains professional and product liability insurance coverage, but the Company cannot give assurance that the coverage limits of this insurance would be adequate to protect against all potential claims. The Company cannot assure that it will be able to obtain or maintain professional and product liability insurance in the future on acceptable terms or with adequate coverage against potential liabilities. AutoloGelTM Has Existing Competition in the Marketplace In the market for biotechnology products, the Company faces competition from pharmaceutical companies, biopharmaceutical companies, medical device companies, and other competitors. Other companies have developed or are developing products that may be in direct competition with the AutoloGelTM System. Biotechnology development projects are characterized by intense competition. Thus, the Company cannot assure any investor that it will be the first to the market with any newly developed products or that it will successfully be able to market these products. If the Company is not able to participate and compete in the regenerative biological
therapy market, the Companys financial condition will be materially and adversely affected. The Company cannot assure that it will be able to compete effectively against such companies in the future. Many of these companies have substantially greater capital resources, larger marketing staffs and more experience in commercializing products. Recently developed technologies, or technologies that may be developed in the future, may be the basis for developments that will compete with the Companys products.
 21    TABLE OF CONTENTS The Company May Likely Issue Additional Equity or Debt Securities Which May Materially and Adversely Affect the Price of Its Common Stock Sales of substantial amounts of shares of the Companys Common stock in the public market, or the perception that those sales may occur, could cause the market price of its Common stock to decline. Cytomedix has used, and will likely continue to use, its Common stock or securities convertible into or exchangeable for Common stock to fund working capital needs or to acquire technology, product rights or businesses, or for other purposes. If additional equity securities are issued, particularly during times when the Companys Common stock is trading at relatively low price levels, the price of its Common stock may be materially and adversely
affected. There is a Limited Public Trading Market for the Companys Common Stock The average daily trading volume in Cytomedix Common stock is relatively low. As long as this condition continues, it could be difficult or impossible to sell a significant number of shares of Common stock at any particular time at the market prices prevailing immediately before such shares are offered. Stockholders may be required to hold shares of Cytomedixs Common stock for an indefinite period of time. In addition, sales of substantial amounts of Common stock could lower the prevailing market price of the Companys Common stock. This would limit or perhaps prevent the Companys ability to raise capital through the sale of
securities. Additionally, the Company has significant numbers of outstanding warrants and options that, if exercised and sold, could put additional downward pressure on the Common stock price. In addition, in recent years, and especially in recent months, the stock market in general, and the market for life sciences companies in particular, have experienced significant price and volume fluctuations. This volatility has affected the market prices of securities issued by many companies, often for reasons unrelated to their operating performance, and it may adversely affect the price of Cytomedixs Common stock. These broad market fluctuations may reduce the demand for the Companys stock and therefore adversely affect the price of the Companys securities, regardless of operating performance. The Company is Subject to Anti-Takeover Provisions and Laws Provisions in Cytomedixs Restated Certificate of Incorporation and Restated Bylaws and applicable provisions of the Delaware General Corporation Law may make it more difficult for a third party to acquire control of the Company without the approval of the Board of Directors. These provisions may make it more difficult or expensive for a third party to acquire a majority of the Companys outstanding voting Common stock or delay, prevent or deter a merger, acquisition, tender offer or proxy contest, which may negatively affect the Common stock price. Item 1B. Unresolved Staff Comments None. Item 2. Properties The Company does not own any real property and does not intend to invest in any real property in the foreseeable future. The Companys offices and storage facilities are located in Rockville, Maryland, comprise 3,100 square feet under an operating lease expiring June 30, 2011. See Note 18 to the Financial Statements. Item 3. Legal Proceedings At present, the Company is not engaged in or the subject of any legal proceedings. Item 4. Submission of Matters to a Vote of Security Holders None.
 22    TABLE OF CONTENTS PART II Item 5. Market for Registrants Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities Market Information Since June 2005, the Companys Common stock has been listed on the NYSE Amex (formerly the American Stock Exchange) under the symbol GTF. Set forth below are the high and low closing sale prices for the Common stock for each quarter in the two most recent fiscal years as reported by NYSE Amex. The quotations reflect inter-dealer prices, without retail markup, markdown, or commissions, and may not represent actual transactions.  Quarter Ended

          

          High

          

          LowDecember 31, 2009

          

          $

          0.66

          

          

          $

          0.36September 30, 2009

          

          $

          0.81

          

          

          $

          0.35June 30, 2009

          

          $

          1.05

          

          

          $

          0.28March 31, 2009

          

          $

          0.60

          

          

          $

          0.18December 31, 2008

          

          $

          0.84

          

          

          $

          0.15September 30, 2008

          

          $

          0.90

          

          

          $

          0.45June 30, 2008

          

          $

          1.09

          

          

          $

          0.60March 31, 2008

          

          $

          2.04

          

          

          $

          0.58
 On March 15, 2010, the closing price of the Companys Common stock was $0.45. Holders There were approximately 613 shareholders of record of Common stock as of March 15, 2010. Dividends Cytomedix did not pay dividends to holders of Common stock in 2009 or 2008. The Company is prohibited from declaring dividends on Common stock if any dividends are due on shares of Series A, B, or C Convertible Preferred stock. If there are no unpaid dividends on shares of Series A, B, or C Convertible Preferred stock, any decision to pay cash dividends on Common stock will depend on the Companys ability to generate earnings, need for capital, and overall financial condition, and other factors the Board deems relevant. Cytomedix does not anticipate paying cash dividends on Common stock in the foreseeable future, but instead will retain any
earnings for reinvestment in the business. Issuer Purchases of Equity Securities The Company did not make any stock repurchases during the last quarter of 2009. Recent Sales of Unregistered Securities The Company did not issue any unregistered securities during the last quarter of 2009. Item 6. Selected Financial Data As a smaller reporting issuer (as defined in Item 10(f)(1) of Regulation S-K), the Company is not required to report selected financial data specified in Item 301 of Regulation S-K.
 23    TABLE OF CONTENTS Item 7. Managements Discussion and Analysis of Financial Condition and Results of Operations The following discussion and analysis of the Companys financial condition and results of operations should be read in conjunction with the financial statements and related notes appearing elsewhere in this Annual Report. The discussion in this section regarding the Companys business and operations includes forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1996. Such statements consist of any statement other than a recitation of historical fact and can be identified by the use of forward-looking terminology such as may, expect, anticipate,
estimate, or continue, or the negative thereof or other variations thereof or comparable terminology. You are cautioned that all forward-looking statements are speculative, and there are certain risks and uncertainties that could cause actual events or results to differ from those referred to in such forward-looking statements. Actual results may differ materially from those anticipated in these forward-looking statements as a result of various factors, including those set forth in the Risk Factors section and elsewhere in this Annual Report. The Company assumes no obligation to update any such forward-looking statements. The following should be read in conjunction with the audited financial statements and the notes thereto included elsewhere herein. Certain numbers in this section have been rounded for ease of analysis. Historically, the Companys revenues have primarily been earned through its licensing agreements. These revenues, net of related royalty and contingent legal fees, represented the primary source of cash from operations for the Company in 2008 and 2009. These revenues, which constituted approximately 89% of the Companys revenues in 2009, ceased at the end of November 2009 as the underlying license agreements expired at that time. Sales of the Companys products, while growing, are currently very modest. The Company implemented a strategic shift in its commercialization efforts in January 2009. This new approach focuses on the scientific mechanisms underpinning AutoloGelTM, and leverages our clinical expertise in chronic wound care. Part of this new sales approach includes increased clinical involvement by our staff to assist prospective customers in conducting intensive on-site evaluations of AutoloGelTM and offering on-going support to existing customers in order to optimize healing outcomes. This new approach is eliciting positive customer
responses. In 2009, product sales of $226,000 were more than double those in 2008, evidencing success of the new sales strategy. We expect continued growth in the coming quarters. The Company continues to target selected submarkets, including the Veterans Administration and other government agency health facilities, as well as capitated payment scheme environments such as long-term acute care facilities. Our revenues are insufficient to cover our operating expenses. Operating expenses primarily consist of employee compensation, professional fees, consulting expenses, and other general business expenses such as insurance, travel expenses, and sales and marketing related items. Cash used in operations is expected to increase in the short term as we have increased our investment in our AutoloGelTM commercialization efforts, and no longer enjoy the inflows from the now expired licensing agreements. Restatements On January 1, 2009, we adopted new accounting guidance (ASC 815-40. formerly EITF 07-5 Determining Whether an Instrument (or Embedded Feature) Is Indexed to an Entity's Own Stock) that required additional analysis as to whether or not stock purchase warrants are indexed to our stock, a condition that is required to attain equity accounting and classification. Upon the adoption of this new guidance, we concluded that our previously issued stock purchase warrants were appropriately classified as equity and, therefore, the adoption of the new guidance did not have any impact on our historical financial statements or on our
2009 financial statements. In connection with the review of certain equity transactions in 2010, we determined that, upon the adoption of the new accounting guidance on January 1, 2009, certain stock purchase warrants issued in 2004 should have been appropriately classified as derivative liabilities (and not equity) due to the presence of non-standard anti-dilution provisions in those warrant agreements. These provisions require that we modify existing warrants (as to the actual number of warrants and their exercise price) in the event that we issue subsequent equity (or equity-linked instruments) at a price below the exercise price of the existing warrants. Additionally,
 24    TABLE OF CONTENTS stock purchase warrants issued in 2009 (after the adoption of the new guidance) should also have been classified as derivative liabilities (and not equity) for similar reasons. Also, as a result of the improper accounting treatment for the above-mentioned stock purchase warrants, certain offering expenses were also misclassified and accounted for incorrectly. As a result, we have restated our 2009 financial statements to correct for the misapplication of the new accounting guidance related to the accounting and classification of stock purchase warrants. See Note 2 to the financial statements contained in Part II Item 8 of this report for further discussion. The following discussion and analysis incorporates the impact of the above-mentioned restatements. Comparison of Years Ended December 31, 2009 and 2008 Revenues Revenues fell $25,000 (1%) to $2,066,000, comparing the year ended December 31, 2009, to the previous year. Revenues are normally generated from two sources: the sale of the disposable kits and reagents and royalties received from licensing activities. The decrease was due to lower royalties of $150,000, mostly offset by higher product sales of $125,000. Decreases in royalties were due to the conclusion of licensing agreements in late November 2009 upon expiration of the patents underlying these agreements. Product sales grew as a result of our strategic shift in commercialization tactics which emphasizes scientific messaging and clinical support. We
expect continued growth in product sales in 2010. Gross Profit Gross profit rose $118,000 (8%) to $1,607,000, comparing the year ended December 31, 2009, to the previous year. For the same periods, gross margins rose to 78% from 71%. The increase in gross profits is attributable to improved margins. Gross margins on royalties increased by a shift to higher margin royalty revenue, but were partly offset by a shift in product revenue to lower margin reagent kits and a $14,000 write-off of obsolete inventory in the second quarter of 2009. Operating Expenses Operating expenses fell $4,327,000 (46%) to $5,057,000, comparing the year ended December 31, 2009, to the previous year. A discussion of the various components of Operating expenses follows below. Salaries and Wages Salaries and wages fell $435,000 (17%) to $2,183,000, comparing the year ended December 31, 2009, to the previous year. The decrease was primarily due to lower bonus expense ($493,000), as the Company elected not to pay bonuses to employees in 2009, and the accrual in 2008 of a severance package to the former CEO ($510,000). These amounts were partly offset by higher salaries ($341,000), and the reversal in 2008 of the bonus accrual for the former CEO ($192,000). Consulting Expenses Consulting expenses fell $77,000 (25%) to $236,000, comparing the year ended December 31, 2009, to the previous year. The decrease was primarily due to non-cash equity-based compensation expenses associated with the modification of certain consultant warrants in 2008. Professional Fees Professional fees fell $125,000 (15%) to $709,000, comparing the year ended December 31, 2009, to the previous year. Professional fees consist primarily of legal and accounting services. The decrease was primarily due to lower legal fees ($130,000) associated with Medicare reimbursement efforts and patent maintenance fees. Trials and Studies Trials and studies expenses rose $82,000 (56%) to $227,000, comparing the year ended December 31, 2009, to the previous year. The increase was due to increased costs associated with the TAPS program ($30,000) and the CT-112 project ($52,000), both initiated in the third quarter of 2008.
 25    TABLE OF CONTENTS General and Administrative Expenses General and administrative expenses fell $229,000 (12%) to $1,701,000, comparing the year ended December 31, 2009, to the previous year. Decreases in patent amortization ($151,000), equity-based compensation ($216,000), recruiting fees ($43,000), information technology costs ($35,000), investor services ($22,000) and various other expenses, were partly offset by increased travel expenses ($130,000) and sales supplies ($52,000). Impairment of Goodwill and Patents Impairment of goodwill and patents expense was $3,543,000 for the year ended December 31, 2008. The impairment charge was due to the reduced value of the Companys intellectual property as a result of its negative cash flows and the substantial doubt as to its ability to continue as a going concern. There was no impairment charge in 2009. Other Income (Expense) Other income (expense) for 2009, as compared to 2008, reflects lower interest earned on cash invested in money market accounts and notes receivable balances, lower patent settlement income in the third quarter of 2009 as the Company had received a final balloon payment in the third quarter of 2008 under a license agreement it was accounting for on the cash basis, as well as changes in the fair value of derivative liabilities of $191,000. Liquidity and Capital Resources As of December 31, 2009, we had cash and equivalents of approximately $2.1 million and working capital of approximately $1.5 million. Our financing activities provided approximately $1.4 million, net in each of the years 2009 and 2008 through the issuance of Common stock and warrants in registered direct offerings. There exists substantial doubt that the Company will continue as a going concern. We believe that we have adequate cash to fund operations through the second quarter of 2010. However, our long term viability is dependent upon, among other things, our ability to raise additional debt and/or equity financing. The licensing agreements, under which the Companys royalty revenues are generated, expired in late November 2009. This revenue, which constituted approximately 89% of the Companys revenues in 2009, has ceased and there is no assurance that the Company will be able to replace this revenue through increased sales of its current or future
products, new license agreements, or other mechanisms. Additional cash will be required for the Company to pursue its strategic plan. Specific programs that may require additional funding include, without limitation: continued investment in the sales and marketing efforts, new product development or modifications, conduct of the studies the Company deems necessary in order to obtain CMS coverage, solicitation of a partner for further development of CT-112, and pursuit of certain other attractive opportunities for the Company. We are exploring potential strategic partnerships for some of these endeavors, which could provide a capital infusion to the Company. However, it may be necessary to partner one or
more of our technologies at an earlier stage of development, which could cause the Company to share a greater portion of the potential future economic value of those programs with its partners. We will seek to raise capital through the issuance of our equity securities, though this may result in significant dilution to our existing investors. The Company continuously assesses the state of the capital markets and its access to capital. It weighs the cost of capital and dilutive effects of equity issuance against the expected benefits of further pursuit of certain strategic objectives. The Companys ability to raise additional capital is dependent on, among other things, the state of the financial markets at the time of any proposed offering. Given the current state of the financial markets, the likelihood of a capital raise may be significantly diminished. Because the Company was in bankruptcy in 2002, the Company may not be able to obtain debt financing. There is no assurance that
additional funding, through any of the aforementioned means, will be available on acceptable terms, or at all. If we do not obtain additional financing prior to the end of the second quarter of 2010, we may need to substantially curtail or cease our operations altogether. The Company has certain warrants that are callable by the Company, subject to certain requirements including a minimum per share price ranging from $4 to $6, at an aggregate exercise price of approximately $6.0 million. The Company has no material commitments for capital expenditures. The Company has begun
 26    TABLE OF CONTENTS implementation of a post-market surveillance study per its understanding reached with the FDA. The Company estimates that this new study will cost between $500,000 and $700,000 in total. Of that amount, approximately $111,000 has been incurred through December, 2009, and approximately $300,000 will be expended in 2010. Inflation The Company believes that the rates of inflation in recent years have not had a significant impact on its operations. Off-Balance Sheet Arrangements The Company does not have any off-balance sheet arrangements. Critical Accounting Policies Stock-Based Compensation Under the Companys Long Term Incentive Plan (the LTIP), it grants share-based awards to eligible employees, directors, and service providers to purchase shares of Common stock. The fair values of these awards are determined on the dates of grant or issuance and are recognized as expense over the service periods. For the years ended December 31, 2009 and 2008, the Company recognized $432,000 and $592,000, respectively, of compensation expense for stock issued and stock options granted under the LTIP. At December 31, 2009, there was $344,000 remaining in unrecognized compensation cost related to stock options under the LTIP, which is expected to be recognized over a weighted average period of 1.7 years. The Company estimates the fair value of stock options on the date of grant using the Black-Scholes option-pricing method (Black-Scholes method). The determination of fair value using this model requires the use of certain estimates and assumptions that affect the reported amount of compensation cost recognized in the Companys Statements of Operations. These include estimates of the expected term of the option, expected volatility of the Companys stock price, expected dividends and the risk-free interest rate. These estimates and assumptions are highly subjective and may result in materially different amounts should circumstances change and
the Company employ different assumptions in future periods. The Company estimates the fair value of stock issuances based on the closing market value of the Companys stock on the date of grant. For share-based awards issued during the year ended December 31, 2009 and 2008, the expected term was estimated by using peer company information as Cytomedixs history is limited. Estimated volatility was derived using the Companys historical stock price volatility. No cash dividends have ever been declared or paid on the Companys Common stock and currently none is anticipated. The risk-free interest rate is based upon U.S. Treasury securities with remaining terms similar to the expected term of the share-based awards. In certain select cases, the Company has issued warrants, outside the LTIP, to service providers in exchange for the performance of consulting or other services. These warrants have generally been immediately vested and expense was recognized equal to the fair value of the warrant on the date of grant using the Black-Scholes model. The same assumptions (and related risks) as discussed above apply, with the exception of the expected term. For these warrants issued to service providers, the Company estimates that the warrant will be held for the full term. For the years ended December 31, 2009 and 2008, the Company recognized $12,000 and $135,000,
respectively, of compensation expense for warrants issued to service providers. At December 31, 2009, there was no remaining unrecognized compensation cost related to warrants. Valuation of Goodwill The Company is required to perform a review for impairment of goodwill in accordance with FASB ASC 350, Intangibles  Goodwill and Other. Goodwill is considered to be impaired if it is determined that the carrying value of the Company exceeds its fair value. In addition to the annual review, an interim review is required if an event occurs or circumstances change that would more likely than not reduce the fair value of the Company below its carrying amount. Examples of such events or circumstances include: 

          a significant adverse change in legal factors or in the business climate;
 27    TABLE OF CONTENTS 

          a significant decline in Cytomedixs stock price or the stock price of comparable companies; 

          a significant decline in the Companys projected revenue or cash flows; 

          an adverse action or assessment by a regulator; 

          unanticipated competition; 

          a loss of key personnel; 

          a more-likely-than-not expectation that the Company will be sold or otherwise disposed of; 

          a substantial doubt about the Companys ability to continue as a going concern. Assessing the impairment of goodwill requires that the Company make assumptions and judgments regarding the fair value of its net assets. The Company completed its most recent annual evaluation for impairment of goodwill as of December 31, 2008 and determined that goodwill was fully impaired, resulting in an impairment charge of approximately $2.0 million in the fourth quarter of 2008. This determination was primarily attributable to the substantial doubt regarding the Companys ability to continue as a going concern, the fact that the Company continues to incur significant negative cash flows from operations, the significant decline in the
Companys market capitalization, and the overall deterioration in the global economy and financial markets at that time. This assessment was supported by the findings in the annual independent valuation that the Company commissioned as of December 31, 2008. Valuation of Patents The Company capitalizes the costs of purchased patents. This cost is amortized via the straight-line method over the remaining life of the patents. The Company accounts for finite-lived intangibles under FASB ASC 360, Property, Plant, and Equipment, and therefore reviews the recoverability of long-lived and finite-lived intangible assets when circumstances indicate that the carrying amount of assets may not be recoverable. The value of the Companys patents, determined upon fresh start accounting in 2002, was driven by the Worden patents, which cover the formulation of AutoloGelTM and expire in 2019. The value was being amortized via the straight-line method through 2019, and had an unamortized remaining value of approximately $1.5 million at December 31, 2008, prior to consideration of any impairments. Given the substantial doubt regarding the Companys ability to continue as a going concern and the fact that the Company continues to incur significant negative cash flows from operations, the Company identified that it may not realize the value of
these patents and concluded that their value had been fully impaired, resulting in a charge of approximately $1.5 million in the fourth quarter of 2008. Financial Instruments The balance sheets include various financial instruments that are carried at fair value. Fair value is the price that would be received from the sale of an asset or paid to transfer a liability assuming an orderly transaction in the most advantageous market at the measurement date. U.S. GAAP establishes a hierarchical disclosure framework which prioritizes and ranks the level of observability of inputs used in measuring fair value. These tiers include: 

          Level 1, defined as observable inputs such as quoted prices in active markets for identical assets; 

          Level 2, defined as observable inputs other than Level I prices such as quoted prices for similar assets; quoted prices in markets that are not active; or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities; and 

          Level 3, defined as unobservable inputs in which little or no market data exists, therefore requiring an entity to develop its own assumptions. An asset's or liability's level within the fair value hierarchy is based on the lowest level of any input that is significant to the fair value measurement. At each reporting period, we perform a detailed analysis of our assets and liabilities that are measured at fair value. All assets and liabilities for which the fair value measurement is based on significant unobservable inputs or instruments which trade infrequently and therefore have little or no price transparency are classified as Level 3.
 28    TABLE OF CONTENTS Lump-sum Payments from Settlement Agreements Under certain agreements, Cytomedix has been entitled to receive lump sum payments. If the lump sum payment is deemed to be an inducement to enter into an agreement, and is applicable to some future period, then this amount is recorded as deferred revenue and amortized to revenue on a straight line basis over the course of the agreement. If the lump-sum payment is deemed to be in settlement of prior infringement of Cytomedixs patents by the other party, then the lump sum, net of any associated fees, is recorded as non-operating income at its present value and reflected in the Patent litigation settlements, net line of the Statements of
Operations. The determination of whether a lump sum is associated with prior infringement or is part of an inducement to enter an agreement requires judgment by the Company. A number of factors must be considered including evidence of prior sales by the other party, nature of negotiations and/or court proceedings, and accounting treatment by the other party. Each agreement requires a unique assessment to determine the true nature of the lump sum payment. Further, any future lump sums deemed a settlement of past infringement will be reflected in Operating Income. In 2009 and 2008, the Company recorded $0 and $71,000 (net of associated costs), respectively, in non-operating income associated with infringement settlements. Recent Accounting Pronouncements On January 1, 2009, we adopted new accounting guidance (ASC 815-40, formerly EITF 07-5 Determining Whether an Instrument (or Embedded Feature) Is Indexed to an Entity's Own Stock) that required additional analysis as to whether or not stock purchase warrants are indexed to our stock, a condition that is required to attain equity accounting and classification. Upon the adoption of this new guidance. we concluded that our previously issued stock purchase warrants were appropriately classified as equity and, therefore, the adoption of the new guidance did not have any impact on our historical financial statements or on our
2009 financial statements. In connection with the review of certain equity transactions in 2010, we determined that, upon the adoption of the new accounting guidance on January 1. 2009, certain stock purchase warrants issued in 2004 should have been appropriately classified as derivative liabilities (and not equity) due to the presence of non-standard anti-dilution provisions in those warrant agreements. These provisions require that we modify existing warrants (as to the actual number of warrants and their exercise price) in the event that we issue subsequent equity (or equity-linked instruments) at a price below the exercise price of the existing warrants. Additionally, stock
purchase warrants issued in 2009 (after the adoption of the new guidance) should also have been classified as derivative liabilities (and not equity) for similar reasons. Also, as a result of the improper accounting treatment for the above-mentioned stock purchase warrants, certain offering expenses were also misclassifed and accounted for incorrectly. As a result, we have restated our 2009 financial statements to correct for the misapplication of the new accounting guidance related to the accounting and classification of stock purchase warrants. See Note 2 to the financial statements contained in Part II Item 8 of this report for further discussion. In April 2009, the Financial Accounting Standards Board (FASB) issued Staff Position No. FAS 107-1 and APB No. 28-1, Interim Disclosures about Fair Value of Financial Instruments, now included in FASB ASC 825-10, Financial Instruments. This guidance now requires disclosures about fair value of financial instruments in interim reporting periods. These disclosures were previously only required in annual financial statements. The adoption of this guidance did not have a material impact on our financial statements. In April 2009, the FASB issued FSP FAS 157-4, Determining Fair Value When the Volume and Level of Activity for the Asset of Liability Have Significantly Decreased and Identifying Transactions That Are Not Orderly, now included in FASB ASC 820, Fair Value Measurements and Disclosures, which provides additional guidance for estimating fair value when the volume and level of market activity for an asset or liability have significantly decreased. This guidance emphasizes that even if there has been a significant decrease in the volume and level of market activity for the asset or liability and regardless of the valuation techniques used, the
objective of a fair value measurement remains the same. In addition, the statement provides guidance on
 29    TABLE OF CONTENTS identifying circumstances that indicate a transaction is not orderly. The adoption of this guidance did not have a material impact on our financial statements. In May 2009, the FASB issued SFAS No. 165, Subsequent Events, now included in FASB ASC 855, Subsequent Events, which sets forth general standards of accounting for and disclosure of events that occur after the balance sheet date but before the financial statements are issued or are available to be issued. The adoption of this guidance did not have a material impact on our financial statements. In June 2009, the FASB issued SFAS No. 168, The FASB Accounting Standards Codification and the Hierarchy of Generally Accepted Accounting Principles, a replacement of FASB Statement No. 162, now included in FASB ASC 105, Generally Accepted Accounting Principles. This guidance establishes the FASB Accounting Standards Codification as the source of authoritative accounting principles recognized by the FASB to be applied in the preparation of financial statements in conformity with generally accepted accounting principles. This guidance explicitly recognizes rules and interpretive releases of the SEC under federal securities laws as
authoritative GAAP for SEC registrants and is effective for the Companys current reporting period. We have updated our financial statement disclosures to reflect the adoption of this standard. In October 2009, the FASB issued ASU No. 2009-13, Multiple-Deliverable Revenue Arrangements, or ASU 2009-13, which amends existing revenue recognition accounting pronouncements that are currently within the scope of FASB ASC 605, Revenue Recognition. This guidance eliminates the requirement to establish the fair value of undelivered products and services and instead provides for separate revenue recognition based upon managements estimate of the selling price for an undelivered item when there is no other means to determine the fair value of that undelivered item. ASU 2009-13 is effective prospectively for revenue arrangements
entered into or materially modified in fiscal years beginning on or after June 15, 2010. The Company is currently evaluating the impact, if any, that the adoption of this amendment will have on its financial statements. Item 7A. Quantitative and Qualitative Disclosures About Market Risk As a smaller reporting issuer (as defined in Item 10(f)(1) of Regulation S-K), the Company is not required to report quantitative and qualitative disclosures about market risk specified in Item 305 of Regulation S-K.
 30    TABLE OF CONTENTS Item 8. Financial Statements and Supplementary Data REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM To the Board of Directors and Stockholders of Cytomedix Inc. In our opinion, the accompanying balance sheets and the related statements of operations, of stockholders equity and of cash flows present fairly, in all material respects, the financial position of Cytomedix, Inc. (the Company) at December 31, 2009 and December 31, 2008, and the results of its operations and its cash flows for each of the two years in the period ended December 31, 2009 in conformity with accounting principles generally accepted in the United States of America. In addition, in our opinion, the financial statement schedule listed in the index appearing under Item 15(a)(2) presents fairly, in all material respects, the
information set forth therein when read in conjunction with the related financial statements. These financial statements and the financial statement schedule are the responsibility of the Companys management. Our responsibility is to express an opinion on these financial statements and financial statement schedule based on our audits. We conducted our audits of these statements in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. As discussed in Note 2 to the financial statements, the 2009 financial statements have been restated to correct an error. As discussed in Note 2 to the financial statements, the Company changed the way certain financial instruments that are settled in the Companys common stock are accounted for. The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 3 to the financial statements, the Company has suffered recurring losses from operations and has insufficient liquidity to fund its ongoing operations that raise substantial doubt about its ability to continue as a going concern. Managements plans in regard to these matters are also described in Note 3. The financial statements do not include any adjustments that might result from the outcome of this uncertainty. /s/ PricewaterhouseCoopers LLP McLean, Virginia March 29, 2010, except for the effects of the restatement discussed in Note 2 to the financial statements as to which the date is January 7, 2011.
 31    TABLE OF CONTENTS CYTOMEDIX, INC.   BALANCE SHEETS  December 31,2009(restated)

          

          December 31,2008ASSETSCurrent assetsCash

          

          $

          2,107,499

          

          

          $

          4,027,026Short-term investments, restricted

          

          

          52,672

          

          

          

          Accounts and royalties receivable, net

          

          

          180,560

          

          

          

          390,739Patent settlements receivable, current portion

          

          

          

          

          

          

          102,618Prepaid expenses, inventory, and other current assets

          

          

          219,729

          

          

          

          190,720Total current assets

          

          

          2,560,460

          

          

          

          4,711,103Property and equipment, net

          

          

          84,623

          

          

          

          87,389Total assets

          

          $

          2,645,083

          

          

          $

          4,798,492LIABILITIES AND STOCKHOLDERS' EQUITYCurrent liabilitiesAccounts payable and accrued expenses

          

          $

          1,037,894

          

          

          $

          1,325,325Deferred revenues, current portion

          

          

          

          

          

          

          197,344Dividends payable on Series A and Series B preferred stock

          

          

          7,285

          

          

          

          7,243Derivative liabilities, current portion

          

          

          391

          

          

          

          Total current liabilities

          

          

          1,045,570

          

          

          

          1,529,912Derivatives and other liabilities

          

          

          623,462

          

          

          

          123,241Total liabilities

          

          

          1,669,032

          

          

          

          1,653,153Commitments and contingenciesStockholders' equitySeries A Convertible preferred stock; $.0001 par value, authorized 5,000,000 shares; 2009 and 2008 issued and outstanding  97,663 and 90,217 shares, respectively, liquidation preference of $97,663 and $90,217, respectively

          

          

          10

          

          

          

          9Series B Convertible preferred stock; $.0001 par value, authorized 5,000,000 shares; 2009 and 2008 issued and outstanding  65,784 and 92,300 shares, respectively, liquidation preference of $65,784 and $92,300, respectively

          

          

          7

          

          

          

          10Series C Convertible preferred stock; $.0001 par value, authorized 1,000,000 shares; 2009 and 2008 issued and outstanding  0.0 shares

          

          

          

          

          

          

          Common stock; $.0001 par value, authorized 65,000,000 shares;2009 issued and outstanding  37,273,628 shares;2008 issued and outstanding  33,962,623 shares

          

          

          3,727

          

          

          

          3,396Additional paid-in capital

          

          

          41,827,199

          

          

          

          42,219,802Accumulated deficit

          

          

          (40,854,892

          )

          

          

          (39,077,878

          )Total stockholders' equity

          

          

          976,051

          

          

          

          3,145,339Total liabilities and stockholders' equity

          

          $

          2,645,083

          

          

          $

          4,798,492
 The accompanying notes are an integral part of these financial statements.
 32    TABLE OF CONTENTS  CYTOMEDIX, INC.   STATEMENTS OF OPERATIONS  Year Ended December 31,2009(restated)

          

          2008RevenuesSales

          

          $

          226,212

          

          

          $

          100,983Royalties

          

          

          1,839,972

          

          

          

          1,989,754Total revenues

          

          

          2,066,184

          

          

          

          2,090,737Cost of revenuesCost of sales

          

          

          58,690

          

          

          

          16,764Cost of royalties

          

          

          400,115

          

          

          

          584,256Total cost of revenues

          

          

          458,805

          

          

          

          601,020Gross profit

          

          

          1,607,379

          

          

          

          1,489,717Operating expensesSalaries and wages

          

          

          2,183,082

          

          

          

          2,617,646Consulting expenses

          

          

          235,929

          

          

          

          312,822Professional fees

          

          

          709,479

          

          

          

          834,834Trials and studies

          

          

          227,490

          

          

          

          145,713General and administrative expenses

          

          

          1,700,863

          

          

          

          1,929,551Impairment of goodwill and patents

          

          

          

          

          

          

          3,543,205Total operating expenses

          

          

          5,056,843

          

          

          

          9,383,771Loss from operations

          

          

          (3,449,464

          )

          

          

          (7,894,054

          )Other income (expense)Interest income, net

          

          

          9,764

          

          

          

          156,609Change in fair value of derivative liabilities

          

          

          190,888

          

          

          

          Other

          

          

          (10,405

          )

          

          

          5,350Patent litigation settlements, net

          

          

          

          

          

          

          71,346Total other income (expense)

          

          

          190,247

          

          

          

          233,305Loss before provision for income taxes

          

          

          (3,259,217

          )

          

          

          (7,660,749

          )Income tax provision

          

          

          

          

          

          

          Net loss

          

          

          (3,259,217

          )

          

          

          (7,660,749

          )Preferred dividend on:Series A preferred stock

          

          

          7,738

          

          

          

          7,773Series B preferred stock

          

          

          7,213

          

          

          

          7,174Net loss to common stockholders

          

          $

          (3,274,168

          )

          

          $

          (7,675,696

          )Loss per common share  Basic and diluted

          

          $

          (0.09

          )

          

          $

          (0.24

          )Weighted average shares outstanding  Basic and diluted

          

          

          35,116,049

          

          

          

          32,515,784
 The accompanying notes are an integral part of these financial statements.
 33    TABLE OF CONTENTS CYTOMEDIX, INC.   STATEMENTS OF STOCKHOLDERS EQUITY  Series A Preferred

          

          Series B Preferred

          

          Common Stock

          

          AdditionalPaid-InCapital

          

          AccumulatedDeficit

          

          TotalStockholdersEquityShares

          

          Amount

          

          Shares

          

          Amount

          

          Shares

          

          AmountBalance at December 31, 2007

          

          

          92,837

          

          

          $

          9

          

          

          

          85,405

          

          

          $

          9

          

          

          

          31,926,788

          

          

          $

          3,193

          

          

          $

          40,026,574

          

          

          $

          (31,402,182

          )

          

          $

          8,627,603Common stock issued upon conversion of Series A stock

          

          

          (17,479

          )

          

          

          (1

          )

          

          

          

          

          

          

          

          

          

          

          5,827

          

          

          

          

          

          

          

          1

          

          

          

          

          

          

          

          Dividend issued on Series A and Series B stock

          

          

          14,859

          

          

          

          1

          

          

          

          6,895

          

          

          

          1

          

          

          

          

          

          

          

          

          

          

          

          21,752

          

          

          

          

          

          

          

          21,754Common stock issued pursuant to registered direct offering completed in Third Quarter 2008

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          2,000,008

          

          

          

          200

          

          

          

          1,445,114

          

          

          

          

          

          

          

          1,445,314Common stock issued in lieu of cash for fees earned by advisors

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          30,000

          

          

          

          3

          

          

          

          11,997

          

          

          

          

          

          

          

          12,000Employees and Directors

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          579,699

          

          

          

          

          

          

          

          579,699Other parties

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          134,665

          

          

          

          

          

          

          

          134,665Net loss

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          (7,675,696

          )

          

          

          (7,675,696

          )Balance at December 31, 2008

          

          

          90,217

          

          

          $

          9

          

          

          

          92,300

          

          

          $

          10

          

          

          

          33,962,623

          

          

          $

          3,396

          

          

          $

          42,219,802

          

          

          $

          (39,077,878

          )

          

          $

          3,145,339Cumulative effect of adoption of new accounting guidance

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          (1,615,431

          )

          

          

          1,497,154

          

          

          

          (118,277

          )Common stock issued upon conversion of Series B stock

          

          

          

          

          

          

          

          

          

          

          (33,979

          )

          

          

          (4

          )

          

          

          11,326

          

          

          

          1

          

          

          

          3

          

          

          

          

          

          

          

          Dividend issued on Series A and Series B stock

          

          

          7,446

          

          

          

          1

          

          

          

          7,463

          

          

          

          1

          

          

          

          

          

          

          

          

          

          

          

          14,907

          

          

          

          

          

          

          

          14,909Common stock issued pursuant to registered direct offering completed in Third Quarter 2009 (including repricing of certain warrants)

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          3,299,679

          

          

          

          330

          

          

          

          764,492

          

          

          

          

          

          

          

          764,822Stock-based compensation related to options and warrants issued for services rendered by Employees and Directors

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          431,846

          

          

          

          

          

          

          

          431,846Other parties

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          11,580

          

          

          

          

          

          

          

          11,580Net loss (restated)

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          (3,274,168

          )

          

          

          (3,274,168

          )Balance at December 31, 2009 (restated)

          

          

          97,663

          

          

          $

          10

          

          

          

          65,784

          

          

          $

          7

          

          

          

          37,273,628

          

          

          $

          3,727

          

          

          $

          41,827,199

          

          

          $

          (40,854,892

          )

          

          $

          976,051
 34    TABLE OF CONTENTS CYTOMEDIX, INC.   STATEMENTS OF CASH FLOWS  Year Ended December 31,2009(restated)

          

          2008Cash flows from operating activities:Net loss

          

          $

          (3,259,217

          )

          

          $

          (7,660,749

          )Adjustments to reconcile net loss to net cash used in operating activities:Depreciation and amortization

          

          

          44,927

          

          

          

          170,767Stock-based compensation

          

          

          443,426

          

          

          

          726,364Change in fair value of derivative liabilities

          

          

          (190,888

          )

          

          

          Gain on disposal of assets

          

          

          (1,116

          )

          

          

          (5,300

          )Impairment of goodwill and patents

          

          

          

          

          

          

          3,543,205Change in accounts and royalties receivable, net

          

          

          312,797

          

          

          

          245,702Change in other current assets

          

          

          23,989

          

          

          

          47,428Change in patent settlements receivable, non-current

          

          

          

          

          

          

          193,978Change in accounts payable and accrued expenses

          

          

          (287,431

          )

          

          

          377,028Change in deferred revenues

          

          

          (197,344

          )

          

          

          (215,285

          )Change in other liabilities

          

          

          (123,241

          )

          

          

          103,841Net cash used in operating activities

          

          

          (3,234,098

          )

          

          

          (2,473,021

          )Cash flows from investing activitiesPurchase of investment

          

          

          (52,672

          )

          

          

          Purchase of equipment

          

          

          (31,424

          )

          

          

          (87,013

          )Proceeds from sale of equipment

          

          

          1,900

          

          

          

          5,300Net cash used in investing activities

          

          

          (82,196

          )

          

          

          (81,713

          )Cash flows from financing activities:Proceeds from sale of common stock, net

          

          

          1,396,767

          

          

          

          1,445,314Net cash provided by financing activities

          

          

          1,396,767

          

          

          

          1,445,314Net decrease in cash

          

          

          (1,919,527

          )

          

          

          (1,109,420

          )Cash, beginning of period

          

          

          4,027,026

          

          

          

          5,136,446Cash, end of period

          

          $

          2,107,499

          

          

          $

          4,027,026
 35    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 1  Description of the Business Cytomedix is a biotechnology company that develops, sells, and licenses regenerative biological therapies, to primarily address the areas of wound care, inflammation, and angiogenesis. The Company currently markets the AutoloGelTM System, a device for the production of platelet rich plasma (PRP) gel derived from the patients own blood. The AutoloGelTM System is cleared by the Food and Drug Administration (FDA) for use on a variety of exuding wounds. Cytomedix sells its products primarily to health care providers in the United States. Until November 2009, it licensed certain of
its patents to surgical medical device suppliers in the United States; these license agreements have since terminated as the underlying patents have expired. Note 2  Restatement of 2009 Financial Statements Historically, the Company has issued stock purchase warrants as part of various financings and as compensation to consultants for various services. Prior to January 1, 2009, the Company assessed whether or not stock purchase warrants should be accounted for and classified as equity or liabilities based on the accounting guidance in effect at the time. On January 1, 2009, the Company adopted new accounting guidance (ASC 815-40, formerly EITF 07-5 Determining Whether an Instrument (or Embedded Feature) Is Indexed to an Entity's Own Stock) that required additional analysis as to whether or not stock purchase warrants are indexed to the Company's stock, a condition that is required to attain equity accounting and classification. Upon the adoption of this new guidance, the Company concluded that its previously issued stock purchase warrants were appropriately classified as equity and, therefore, the adoption of the new guidance did not have any impact on the historical
financial statements or on the 2009 financial statements. In connection with the review of certain equity transactions in 2010, the Company determined that, upon the adoption of the new accounting guidance on January 1, 2009, certain stock purchase warrants issued in 2004 should have been appropriately classified as derivative liabilities (and not equity) due to the presence of non-standard anti-dilution provisions in those warrant agreements. These provisions require that the Company modify existing warrants (as to the actual number of warrants and their exercise price) in the event that the Company issue subsequent equity (or equity-linked instruments) at a price below the exercise price of the existing
warrants. Additionally, stock purchase warrants issued in 2009 (after the adoption of the new guidance) should also have been classified as derivative liabilities (and not equity) for similar reasons. Also, as a result of the improper accounting treatment for warrants, certain offering expenses were accounted for incorrectly.
 36    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 2  Restatement of 2009 Financial Statements  (continued) As a result, the Company has restated its 2009 quarterly and annual financial statements to correct for the misapplication of the new accounting guidance related to the accounting and classification of stock purchase warrants. This correction resulted in adjustments to the following financial statement line items as of and for the periods indicated:  As Previously Reported

          

          Increase (Decrease)

          

          As RestatedYear ended December 31, 2009Statements of OperationChange in fair value of derivative liabilities

          

          $

          

          

          

          $

          190,888

          

          

          $

          190,888Other, net

          

          $

          1,116

          

          

          $

          (11,521

          )

          

          $

          (10,405

          )Total other income (expense)

          

          $

          10,880

          

          

          $

          179,367

          

          

          $

          190,247Loss before provision for income taxes

          

          $

          (3,438,584

          )

          

          $

          179,367

          

          

          $

          (3,259,217

          )Net loss

          

          $

          (3,438,584

          )

          

          $

          179,367

          

          

          $

          (3,259,217

          )Net loss to common stockholders

          

          $

          (3,453,535

          )

          

          $

          179,367

          

          

          $

          (3,274,168

          )Loss per common share  Basic and diluted

          

          $

          (0.10

          )

          

          $

          0.01

          

          

          $

          (0.09

          )Statements of Cash FlowsNet loss

          

          $

          (3,438,584

          )

          

          $

          179,367

          

          

          $

          (3,259,217

          )Depreciation and Amortization

          

          $

          33,406

          

          

          $

          11,521

          

          

          $

          44,927Change in fair value of derivative liabilities

          

          $

          

          

          

          $

          (190,888

          )

          

          $

          (190,888

          )As of December 31, 2009Prepaid Expenses and other current assets

          

          $

          166,731

          

          

          $

          52,998

          

          

          $

          219,729Total current assets

          

          $

          2,507,462

          

          

          $

          52,998

          

          

          $

          2,560,460Total assets

          

          $

          2,592,085

          

          

          $

          52,998

          

          

          $

          2,645,083Derivative liability, current portion

          

          $

          

          

          

          $

          391

          

          

          $

          391Total current liabilities

          

          $

          1,045,179

          

          

          $

          391

          

          

          $

          1,045,570Derivative and other liabilities

          

          $

          

          

          

          $

          623,462

          

          

          $

          623,462Total liabilities

          

          $

          1,045,179

          

          

          $

          623,853

          

          

          $

          1,669,032Additional paid-in capital

          

          $

          44,074,575

          

          

          $

          (2,247,376

          )

          

          $

          41,827,199Accumulated deficit

          

          $

          (42,531,413

          )

          

          $

          1,676,521

          

          

          $

          (40,854,892

          )Total stockholders' equity

          

          $

          1,546,906

          

          

          $

          (570,855

          )

          

          $

          976,051Total liabilities and stockholders' equity

          

          $

          2,592,085

          

          

          $

          52,998

          

          

          $

          2,645,083
 The cumulative effect of the adoption of the new accounting guidance as of January 1, 2009 was a $1.6 million decrease in additional paid in capital, a $1.5 million decrease in accumulated deficit and a $0.1 million increase in derivative liabilities. The effect of the adoption on the three months ended March 31, 2009 was a $0.1 million increase in other expenses. Note 3  Liquidity Risks and Managements Plans The accompanying financial statements have been prepared on a going-concern basis, which contemplates the realization of assets and satisfaction of liabilities in the normal course of business. Since inception, the Company has incurred, and continues to incur, significant losses from operations. The licensing agreements, under which the Companys royalty revenues are generated, expired in late November 2009. In addition, the Company needs to obtain increased product sales and additional capital to continue its business operations and fund deficits in operating cash flow. The Company is currently executing a new sales strategy, but it is difficult
to forecast the success of this new strategy in the current market. The Company also plans to obtain additional capital, to finance the development of its business operations, through strategic collaborations, issuance of its equity securities, grant funding, or any other means it deems appropriate. There is no assurance that such capital will be available on acceptable terms or at all. As a result, there is substantial doubt as to the Companys ability to continue as a going concern.
 37    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 3  Liquidity Risks and Managements Plans   (continued) In the event the Company is unable to successfully increase product sales and obtain additional capital, it is unlikely that the Company will have sufficient cash flows and liquidity to finance its business operations as currently contemplated. Accordingly, if the Company determines it will not be able to obtain the necessary financing to address its working capital needs for a reasonable period into the future, it may pursue alternative paths forward for the Company. These paths could include, but not be limited to, sale of the Company or its assets, merger, organized wind-down, going private/dark, fundamental shift in its strategic plan (e.g.
abandon commercialization strategy and focus exclusively on licensing), bankruptcy, etc. The balance sheets do not include any adjustments relating to recoverability and classification of recorded asset amounts or the amounts and classification of liabilities that might be necessary should the Company be unable to continue in existence. Note 4  Summary of Significant Accounting Policies Basis of Presentation The Companys financial statements are prepared on the accrual basis of accounting in accordance with accounting principles generally accepted in the United States of America. Certain financial information is based on fresh-start accounting utilized upon the Companys emergence from bankruptcy in July 2002. Use of Estimates The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the amounts reported in the financial statements and the accompanying notes. Actual results could differ from those estimates. Concentration of Risk As of December 31, 2009 and 2008, the Company maintained no amounts in financial institutions in excess of Federal Deposit Insurance Corporation (FDIC) insurance. However, approximately $1,482,000 and $3,431,000 held in money market accounts at brokerage firms were in excess of Securities Investor Protection Corporation (SIPC) coverage as of December 31, 2009 and 2008, respectively. These amounts not covered by SIPC were insured by the Companys brokerage firm through the Customer Asset Protection Company (CAPCO). CAPCO would cover losses in the event of the financial failure and liquidation of the financial
institution that houses the Companys institutional money market investments, however does not ensure against losses due to market fluctuations. The Company currently has one product that is presently marketed. Significant changes in technology could lead to new products or services that compete with the product offered by the Company. These changes could materially affect the price of the Companys product or render it obsolete. The Company outsources manufacturing for all the components of its offerings. While the Company utilizes single suppliers for several components of the AutoloGelTM offering, most components are readily available on the open market and therefore no dependency exists. The one exception is a reagent, bovine thrombin, available exclusively through King
Pharmaceuticals, with whom the Company has an established vendor relationship. Cash Equivalents The Company considers all highly liquid instruments purchased with an original maturity of three months or less to be cash equivalents. Accounts and Royalties Receivable Cytomedix generates accounts receivable from the sale of its products. Cytomedix provides for a reserve against receivables for estimated losses that may result from a customers inability or unwillingness to pay. The allowance for doubtful accounts is estimated primarily based upon historical write-off percentages, known
 38    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 4  Summary of Significant Accounting Policies   (continued) problem accounts, and current economic conditions. Accounts are written off against the allowance for doubtful accounts when the Company determines that amounts are not collectable. Recoveries of previously written-off accounts are recorded when collected. Royalties receivable represent current royalties earned on sales of covered product by licensees. Financial Instruments The balance sheets include various financial instruments that are carried at fair value. Fair value is the price that would be received from the sale of an asset or paid to transfer a liability assuming an orderly transaction in the most advantageous market at the measurement date. U.S. GAAP establishes a hierarchical disclosure framework which prioritizes and ranks the level of observability of inputs used in measuring fair value. These tiers include: 

          Level 1, defined as observable inputs such as quoted prices in active markets for identical assets; 

          Level 2, defined as observable inputs other than Level 1 prices such as quoted prices for similar assets; quoted prices in markets that are not active; or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities; and 

          Level 3, defined as unobservable inputs in which little or no market data exists, therefore requiring an entity to develop its own assumptions. An asset's or liability's level within the fair value hierarchy is based on the lowest level of any input that is significant to the fair value measurement. At each reporting period, we perform a detailed analysis of our assets and liabilities that are measured at fair value. All assets and liabilities for which the fair value measurement is based on significant unobservable inputs or instruments which trade infrequently and therefore have little or no price transparency are classified as Level 3. Additional information regarding fair value is disclosed in Note 5. Inventory Inventory is stated at the lower of cost or net realizable value. Inventory consists exclusively of finished goods. Cost is determined on a first-in-first-out basis. The Companys primary product is a kit, composed of multiple items. Certain items within the kits have shelf lives of approximately two years. The Company also maintains an inventory of reagents that have shelf lives that generally range from ten months to two years. Expired products are segregated and used for demonstration purposes only; the Company writes off expired inventory through cost of sales. Property and Equipment Property and equipment is stated at cost less accumulated depreciation and is depreciated, using the straight-line method, over their estimated useful lives ranging from three to four years for all assets except for furniture which is depreciated over seven years. Maintenance and repairs are charged to operations as incurred. When assets are sold, or otherwise disposed of, the cost and related accumulated depreciation are removed from the accounts and any gain or loss is included in other income and expense. Centrifuges may be sold, leased, or placed at no charge with customers. Intangible Assets The Company capitalizes the costs of purchased patents. This cost is amortized via the straight-line method over the remaining life of the patents. The Company accounts for finite-lived intangibles under FASB ASC 360, Property, Plant, and Equipment, and therefore reviews the recoverability of long-lived and finite-lived intangible assets when circumstances indicate that the carrying amount of assets may not be recoverable. The Company follows the guidance of FASB ASC 350, Intangibles  Goodwill and Other, with regard to its indefinite-lived intangibles. ASC 350 requires that goodwill be assessed at least annually for
impairment by
 39    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 4  Summary of Significant Accounting Policies   (continued) applying a fair value based test. This evaluation has been performed for 2008 based on the Market and Income Approaches. In the event these analyses indicate an impairment, the Company would record an impairment loss, if any, based on the fair value of the assets. As of December 31, 2008, the Company determined that the full value of its Goodwill and Patents were impaired, and took impairment charges totaling approximately $3.5 million. See Note 11 for a further explanation. Income Taxes The Company accounts for income taxes under the liability method, which requires companies to account for deferred income taxes using the asset and liability method. Under the asset and liability method, current income tax expense or benefit is the amount of income taxes expected to be payable or refundable for the current year. A deferred income tax asset or liability is recognized for future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and tax credits and loss carryforwards. Deferred tax assets are reduced by a valuation allowance when,
in the opinion of management, it is more likely than not that some portion or all of the deferred tax assets will not be realized. Tax rate changes are reflected in income during the period such changes are enacted. At December 31, 2009, we have accumulated U.S. federal and state net operating tax losses that are available to offset future taxable income and reduce future federal and state income taxes during the carryforward period. The utilization of available losses depends on the generation of future taxable income to absorb the losses. We may not be able to use available losses within the carryforward period. In addition, based on generally accepted accounting principles, we have determined for financial accounting and reporting purposes that it is unlikely that we will be able to apply or use the available losses to reduce future federal or state income
taxes during the carryforward period. This assessment is updated annually or more frequently based on changes in circumstances. A valuation allowance is recorded against deferred tax assets when it is more likely than not that a tax benefit will not be realized. The assessment for a valuation allowance requires judgment on the part of management with respect to the benefits that may be realized. The Company has concluded, based upon available evidence, it is more likely than not that the U.S. federal, state, and local deferred tax assets at December 31, 2009, will not be realizable. For the year ended December 31, 2009, we did not record an income tax provision, as a full valuation allowance has been provided against U.S. federal, state, and local deferred tax assets. The
valuation allowance will be reversed at such time that realization is believed to be more likely than not. The Company has analyzed filing positions in all of the federal and state jurisdictions where it is required to file income tax returns, as well as all open tax years in these jurisdictions. The only periods subject to examination for the Companys federal return are the 2003 through 2008 tax years. The Company believes that its income tax filing positions and deductions would be sustained on audit and does not anticipate any adjustments that would result in a material change to its financial position. Therefore, no reserves for uncertain income tax positions have been recorded. The Companys policy for recording interest and penalties associated with audits is to record such items as a component of income before taxes. There were no such items during the periods covered in this report. Revenue Recognition The Company recognizes revenue in accordance with FASB ASC 605, Revenue Recognition. ASC 605 requires that four basic criteria must be met before revenue can be recognized: (1) persuasive evidence of an arrangement exists; (2) delivery has occurred or services rendered; (3) consideration is fixed or determinable; and (4) collectibility is reasonably assured. Revenue from the sale of the Companys products to distributors and caregivers is recognized upon shipment of product to customer. The Company does not maintain a reserve for returned products as, historically, these amounts have been negligible.
 40    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 4  Summary of Significant Accounting Policies   (continued) Percentage based fees on licensee sales of covered products are generally recorded as products are sold by licensees and are reflected as Revenues in the Royalties line of the Statements of Operations. Under certain agreements, Cytomedix has received lump sum payments. If the lump sum payment is deemed to be an inducement to enter into an agreement, and is applicable to some future period, then this amount is recorded as deferred revenue and amortized to revenue on a straight line basis over the course of the agreement. If the lump-sum payment is deemed to be in settlement of prior infringement of Cytomedixs patents by the other party, then the
lump sum, net of any associated fees, had been recorded as Other income at its present value and reflected in the Patent litigation settlements, net line of the Statements of Operations. Any future lump sums deemed a settlement of past infringement will be reflected in operating income. The Company recorded revenue in 2008 and 2009 and settlement income in 2008 related to its agreement with Perfusion Partners Associates, Inc. (PPAI) on the cash basis due to PPAIs recent emergence from bankruptcy at the time of the agreement. Direct costs associated with product sales and royalty revenues are recorded at the time that revenue is recognized. Stock-Based Compensation The Company from time to time, may issue compensatory stock options or shares to employees, consultants, and other service providers under its Long-Term Incentive Plan (LTIP) (see Note 15). In some cases, it has issued compensatory warrants to service providers outside the LTIP (see Note 14). The Company issues new shares of its Common stock when employees or service providers exercise options or warrants. The Company adopted FASB ASC 718, Compensation  Stock Compensation, as of January 1, 2006, using the modified prospective application. Under this method, all equity-based compensation awarded after the adoption date has been determined under the fair value provisions of ASC 718. This compensation is then expensed over the vesting period of the underlying award. Additionally, for all equity-based compensation awarded prior to the adoption date, compensation for the portion of awards for which the requisite service is performed after the adoption date is recognized as service is rendered. The fair value of each option award to employees and directors is estimated on the date of grant using the Black-Scholes option valuation model. The weighted-average assumptions used in the model are summarized in the following table:  2009

          

          2008Risk free rate

          

          

          2.05

          %

          

          

          2.96

          %Expected years until exercise

          

          

          5.8

          

          

          

          6.0Expected stock volatility

          

          

          141

          %

          

          

          125

          %Dividend yield

          

          

          

          

          

          

          
 For employee and director options, expected volatilities are based on historical volatility of the Companys stock. Due to the Companys short operating history, it uses peer company data to estimate option exercise and employee termination within the valuation model. The expected years until exercise represents the period of time that options are expected to be outstanding and was estimated by using peer company information as Cytomedixs history is limited. The risk-free rate for periods within the contractual life of the option is based on the U.S. Treasury yield curve in effect at the time of grant. The Company estimated that the
dividend rate on its Common stock will be zero. The fair value of compensatory options or warrants issued to service providers utilizes the same methodology with the exception of the expected term. For these awards to non-employees, the Company estimates that the options or warrants will be held for the full term.
 41    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 4  Summary of Significant Accounting Policies   (continued) Stock-based compensation for awards granted to non-employees is periodically remeasured as the underlying options and warrants vest. The Company recognizes an expense for such awards throughout the performance period as the services are provided by the non-employees, based on the fair value of these options and warrants at each reporting period. The Company estimates the fair value of stock issuances based on the closing market value of the Companys stock on the date of grant. Loss per Share Loss per share is calculated in accordance with FASB ASC 260, Earnings Per Share. Basic loss per share is computed based upon the weighted average number of shares of Common stock outstanding for the period and excludes any potential dilution. Diluted earnings per share reflects potential dilution from the exercise of securities into Common stock. Outstanding options and warrants to purchase Common stock, and the Common stock equivalents of convertible preferred stock are not included in the computation of diluted earnings per share because the effect of these instruments would be anti-dilutive (i.e. would reduce the loss per share). The Common
shares potentially issuable upon the exercise of these instruments, were as follows at December 31:  2009

          

          2008Options

          

          

          4,616,554

          

          

          

          4,020,388Warrants

          

          

          7,058,972

          

          

          

          5,353,172Series A Preferred Stock

          

          

          32,554

          

          

          

          30,072Series B Preferred Stock

          

          

          21,928

          

          

          

          30,76711,730,008

          

          

          

          9,434,399
 Defined Contribution Plans The Company sponsors a defined contribution plan under Section 401(k) of the Internal Revenue Code covering substantially all full-time U.S. employees. Employee contributions are voluntary and are determined on an individual basis subject to the maximum allowable under federal tax regulations. Participants are always fully vested in their contributions. Beginning in 2007, the Company modified its plan and began making employer matching contributions, which also vest immediately. This plan is designated as a Safe Harbor plan. During 2009 and 2008, the Company contributed approximately $47,000 and $42,000 in cash to the plan. Fair Value of Financial Instruments The carrying value of current assets and liabilities approximates fair value due to their relatively short maturities. Recent Accounting Pronouncements On January 1, 2009, the Company adopted new accounting guidance (ASC 815-40, formerly EITF 07-5 Determining Whether an Instrument (or Embedded Feature) Is Indexed to an Entity's Own Stock) that required additional analysis as to whether or not stock purchase warrants are indexed to its stock, a condition that is required to attain equity accounting and classification. Upon the adoption of this new guidance, the Company concluded that its previously issued stock purchase warrants were appropriately classified as equity and, therefore, the adoption of the new guidance did not have any impact on its historical financial
statements or on its 2009 financial statements. In connection with the review of certain equity transactions in 2010, the Company determined that, upon the adoption of the new accounting guidance on January 1, 2009, certain stock purchase warrants issued in 2004 should have been appropriately classified as derivative liabilities (and not equity) due to the presence of non-standard anti-dilution provisions in those warrant agreements. These provisions require that the Company modify existing warrants (as to the actual number of warrants and their exercise price) in the event that the
 42    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 4  Summary of Significant Accounting Policies   (continued) Company issues subsequent equity (or equity-linked instruments) at a price below the exercise price of the existing warrants. Additionally, stock purchase warrants issued in 2009 (after the adoption of the new guidance) should also have been classified as derivative liabilities (and not equity) for similar reasons. Also, as a result of the improper accounting treatment for the above-mentioned stock purchase warrants, certain offering expenses were also misclassified and accounted for incorrectly. As a result, the Company has restated our 2009 financial statements to correct for the misapplication of the new accounting guidance related to the accounting and classification of stock purchase warrants. See Note 2 for further discussion. In October 2009, the FASB issued ASU No. 2009-13, Multiple-Deliverable Revenue Arrangements, or ASU 2009-13, which amends existing revenue recognition accounting pronouncements that are currently within the scope of FASB ASC 605, Revenue Recognition. This guidance eliminates the requirement to establish the fair value of undelivered products and services and instead provides for separate revenue recognition based upon managements estimate of the selling price for an undelivered item when there is no other means to determine the fair value of that undelivered item. ASU 2009-13 is effective prospectively for revenue arrangements
entered into or materially modified in fiscal years beginning on or after June 15, 2010. The Company is currently evaluating the impact, if any, that the adoption of this amendment will have on its financial statements. Note 5  Fair Value Measurements The Company determines the fair value of its financial instruments utilizing a three-tier fair value hierarchy, which prioritizes the inputs used in measuring fair value. The following summarizes the three levels of inputs required, as well as the assets that we value using those levels of inputs. Level 1  Quoted prices in active markets for identical assets and liabilities. Level 2  Observable inputs, other than quoted prices in active markets for identical assets and liabilities, such as quoted prices for similar assets and liabilities; quoted prices in markets that are not active; or other inputs that are observable. Level 3  Unobservable inputs, supported by little or no market data available, where the reporting entity is required to develop its own assumptions to determine the fair value of the instrument. The fair value of the Company's Certificate of Deposit was determined using Level 1 inputs. The fair value as of December 31, 2009 was $52,672. The following table sets forth a summary of changes in the fair value of Level 3 liabilities for year ended December 31, 2009:  Description

          

          Balance at December 31, 2008

          

          Cumulative Effect of Adoption of New Accounting Guidance

          

          Additional Issuances and Repricing Due to Anti-Dilution Provisions

          

          Change in Fair Value

          

          Balance at December 31, 2009Derivative Liabilities

          

          $

          

          

          

          $

          128,121

          

          

          $

          686,620

          

          

          $

          (190,888

          )

          

          $

          623,853
 The change in fair value of the derivative liabilities is classified in other income (expense) in the Companys statement of operations. The fair value of the Company's derivative liabilities related to stock purchase warrants was determined using the Black-Scholes option pricing model  a Level 3 input. The Company does not have any non financial assets or liabilities that it measures at fair value.
 43    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 6  Patent Settlement and License Agreements In 2005, 2006, and 2007 the Company identified and successfully pursued numerous companies that either marketed or sought to market products similar to the AutoloGelTM System, that the Company believed were infringing, inducing infringement of, or would infringe its intellectual property rights. Settlements have been achieved and/or licenses have been granted to these companies resulting in a royalty stream for Cytomedix. A table of the Companys primary settlement and license agreements, where it serves as licensor, follows below:  Licensee

          

          Date of Agreement

          

          Date of Expiration(1)

          

          LumpSum(2)

          

          On-GoingRoyaltyPercentageDePuy Spine, Inc.(3)

          

          

          3/19/2001

          

          

          

          11/24/2009

          

          

          $

          750,000

          

          

          

          6.5%3/4/2005Medtronic, Inc. (assigned to Arteriocyte Medical Systems, Inc. effective November 2007)

          

          

          5/1/2005

          

          

          

          11/24/2009

          

          

          $

          680,000

          

          

          

          7.5% ondisposables1.5% onhardwareHarvest Technologies, Inc.

          

          

          6/30/2005

          

          

          

          11/24/2009

          

          

          $

          500,000

          

          

          

          7.5% ondisposables1.5% onhardwarePerfusion Partners and Associates, Inc. (PPAI)

          

          

          6/26/2005

          

          

          

          11/24/2009

          

          

          $

          250,000

          (4)

          

          

          10.0%COBE Cardiovascular, Inc.

          

          

          10/7/2005

          

          

          

          11/24/2009

          

          

          $

          45,000

          

          

          

          7.5% ondisposables1.5% onhardwareSafeBlood Technologies, Inc.

          

          

          10/12/2005

          

          

          

          11/24/2009

          

          

          $

          50,000

          (4)

          

          

          8.0% to 9.0%Biomet Biologics, Inc.(5)

          

          

          5/19/2006

          

          

          

          11/24/2009

          

          

          $

          2,600,000

          

          

          

          noneCellMedix, Inc.

          

          

          11/28/2006

          

          

          

          11/24/2009

          

          

          $

          30,000

          

          

          

          9.5%Smith and Nephew, Inc.

          

          

          10/15/2007

          

          

          

          11/24/2009

          

          

          $

          250,000

          

          

          

          7.5%
  (1)

          These dates reflect the expiration of the license in the U.S., which coincides with the expiration of the Knighton Patent in the U.S. In some cases, the licensing agreements applicable to territories outside the U.S. extend to the expiration of the patents in the respective foreign countries. (2)

          For DePuy, CellMedix, and Smith and Nephew, the lump sum payments represent up-front fees for the prospective period from contract execution through termination that are in addition to any ongoing royalty percentage. For all other licensees, the up-front fees represent settlements for past patent infringement. (3)

          Cytomedix had two license agreements with DePuy Spine, Inc. The original license agreement was dated March 19, 2001, subsequently amended on March 3, 2005, and provides for the use of applications under
 44    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 6  Patent Settlement and License Agreements   (continued) Cytomedix patents in the fields of diagnostic and therapeutic spinal, neurosurgery and orthopedic surgery. The second license agreement is dated March 4, 2005, and applies to all fields not covered in the original license agreement as amended. (4)

          Some of these amounts were payable over a period of time as defined in executed notes payable to Cytomedix. (5)

          The Settlement and License Agreement with Biomet Biologics, Inc. (Biomet) called for a $2.6 million payout from Biomet to Cytomedix. This payout took the form of $1.4 million payable upon execution of the agreement and $100,000 payable at the end of each of 12 consecutive quarters beginning with the quarter ending September 2006. These payments were not tied to any performance commitments by Cytomedix and were not dependent on Biomet sales. Under the terms of the respective agreements, lump sum payments of approximately $1,030,000 representing up-front fees to the Company were received. These up-front fees were recorded as deferred revenue and were amortized to revenue over the life of the respective licensing agreements. The Company was also due lump sums totaling $4,125,000 for the discharge of past obligations relating to infringement of the Companys patents. These settlements were one-time, non-recurring transactions. Amounts related to these settlements that were payable to the Company over time are reflected as Patent settlements receivable, current portion. Associated costs, consisting of royalty and contingent legal fees payable upon the collection of such receivables, are reflected in Accounts payable and accrued expenses. Income related to the settlement of these past obligations, net of associated costs, are reflected as Patent litigation settlements, net on the Statements of Operations as follows:  2009

          

          2008Income

          

          $

          

          

          

          $

          82,000Costs

          

          

          

          

          

          

          (11,000

          )Net settlement income

          

          $

          

          

          

          $

          71,000
 Due to PPAIs recent emergence from bankruptcy, the Company recorded revenue when payments were received from PPAI. As of December 31, 2008, the Company had received the full $250,000 settlement for past obligations from PPAI. Certain licensees are also required to pay on-going royalties on defined classes of sales. Royalties earned after the effective dates of these agreements, together with the related costs, are included in the Statements of Operations as Royalties and Cost of royalties, respectively. Note 7  Royalty Agreements The Company is party to a Royalty Agreement with Curative Health Services, Inc. Under this agreement as amended, Curative was due 92% of licensing receipts from DePuy Spine, Inc. (a division of Johnson & Johnson, Inc.) and 10% of the total other amounts received by the Company in connection with upfront, milestone and other similar payments relating to the patents it acquired from Curative. On the Statements of Operations, these costs are reflected in the Cost of royalties line when the costs were related to ongoing license revenue and in the Patent litigation settlements, net line when the costs were related to settlements of prior infringement.
The related payables are included in Accounts payable and accrued expenses on the Balance Sheets. The DePuy and other license agreements concluded in November 2009, simultaneous with the expiration of the underlying patents. The Company currently has no further income relating to the Curative patents on which it would owe a royalty. The Company is also party to a Royalty Agreement with Mr. Charles Worden. Under this agreement, the Company is to pay Mr. Worden a royalty equal to 5% of gross profit on sales relying on certain patents, subject to a $6,250 minimum payment per month and a limit of $600,000 during any calendar year. This agreement also provides Mr. Worden with a security interest and lien in the patent as well as a reversionary interest if the Company discontinues substantially all efforts to commercialize the Worden Patent.
 45    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 8  Receivables Accounts and royalties receivable, net consisted of the following at December 31:  2009

          

          2008Trade receivables

          

          $

          68,171

          

          

          $

          49,960Royalty receivables

          

          

          131,715

          

          

          

          361,250Other receivables

          

          

          929

          

          

          

          6,014200,815

          

          

          

          417,224Less allowance for doubtful accounts

          

          

          (20,255

          )

          

          

          (26,485

          )$

          180,560

          

          

          $

          390,739
 Bad debt expense was approximately $20,000 and $3,000, respectively, for the years ended December 31, 2009 and 2008. Patent settlements are one-time, non-recurring transactions negotiated by the Company for the discharge of past obligations pursuant to settlement and licensing agreements with various licensees. Patent settlements receivable are reflected at their net present value and consisted of the following remaining balances due at December 31:  2009

          

          2008Noninterest bearing:Principal remaining, due quarterly through June 2009

          

          $

          

          

          

          $

          100,000Less unamortized discount based on imputed interest rate of 8.25%

          

          

          

          

          

          

          (2,021

          )Net

          

          

          

          

          

          

          97,979Interest bearing principal remaining, 8.0% interest rate

          

          

          

          

          

          

          4,639Total

          

          

          

          

          

          

          102,618Current portion

          

          

          

          

          

          

          102,618Long-term portion

          

          $

          

          

          

          $

          
 Note 9  Prepaid Expenses, Inventory, and Other Current Assets Prepaid expenses, other current assets and inventory consisted of the following at December 31:  2009

          

          2008Prepaid insurance

          

          $

          99,998

          

          

          $

          112,944Prepaid fees and rent

          

          

          12,061

          

          

          

          12,436Deferred financing fees (restated)

          

          

          52,998

          

          

          

          Deposits and advances

          

          

          28,686

          

          

          

          28,153Inventory

          

          

          25,986

          

          

          

          37,187$

          219,729

          

          

          $

          190,720
 46    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 10  Property and Equipment Property and equipment consisted of the following at December 31:  2009

          

          2008Medical equipment

          

          $

          112,406

          

          

          $

          330,591Office equipment

          

          

          46,562

          

          

          

          64,579Automobile

          

          

          

          

          

          

          158,968

          

          

          

          395,170Less accumulated depreciation

          

          

          (74,345

          )

          

          

          (307,781

          )$

          84,623

          

          

          $

          87,389
 Depreciation expense was approximately $33,000 and $20,000 for the years ended December 31, 2009 and 2008, respectively. The net book value of property and equipment disposed during 2009 and 2008 was nominal. Note 11  Intangible Assets Cytomedix owns eight U.S. patents, including U.S. Patent No. 5,165,938 (the Knighton Patent) and U.S. Patent No. 6,303,112 (the Worden Patent), various corresponding foreign patents, and various trademarks. The Knighton Patent expired in November 2009 and the Worden Patent will expire in February 2019. Patents, related accumulated amortization, and cumulative impairment charges at December 31 were as follows:  2009

          

          2008Patents

          

          $

          

          

          

          $

          2,400,000Less accumulated amortization

          

          

          

          

          

          

          (878,418

          )Less impairment charges

          

          

          

          

          

          

          (1,521,582

          )$

          

          

          

          $

          
 Given the substantial doubt regarding the Companys ability to continue as a going concern and the fact that the Company continues to incur significant negative cash flows from operations, the Company determined that it may not realize the value of these patents and has concluded that their value has been fully impaired, resulting in a charge of approximately $1.5 million in the fourth quarter of 2008. This charge is reflected in the Impairment of goodwill and patents line of the Statements of Operations. The patent impairment charge resulted in an approximate $607,000 net increase to the deferred tax assets, but this increase was offset by a
corresponding increase to the valuation allowance and therefore had no effect on the Companys provision for income taxes. Amortization expense was approximately $151,000 in the year ended December 31, 2008. Goodwill represents the excess reorganization value over the amounts allocable to identifiable assets upon the Companys emergence from bankruptcy in 2002. The Company completed its most recent annual evaluation for impairment of goodwill as of December 31, 2008 and determined that goodwill was fully impaired, resulting in an impairment charge of approximately $2.0 million in the fourth quarter of 2008. This charge is reflected in the Impairment of goodwill and patents line of the Statements of Operations. This determination was primarily attributable to the substantial doubt regarding the Companys ability to continue as a going concern,
the fact that the Company continues to incur significant negative cash flows from operations, the significant decline in the Companys market capitalization, and the overall deterioration in the global economy and financial markets. This assessment was supported by the findings in the annual independent valuation that the Company commissioned as of December 31, 2008. The goodwill impairment charge is not deductible for income tax purposes.
 47    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 12  Accounts Payable and Accrued Expenses Accounts payable and accrued expenses consisted of the following at December 31:  2009

          

          2008Trade payables

          

          $

          185,483

          

          

          $

          263,544Accrued compensation and benefits

          

          

          216,179

          

          

          

          481,884Accrued professional fees

          

          

          364,886

          

          

          

          209,800Accrued royalty fees

          

          

          261,964

          

          

          

          334,300Other payables

          

          

          9,382

          

          

          

          35,797$

          1,037,894

          

          

          $

          1,325,325
 Note 13  Income Taxes Income tax benefit (expense) for the years ended December 31, 2009 and 2008 consisted of the following:  2009

          

          2008Current:Federal

          

          $

          

          

          

          $

          State

          

          

          

          

          

          

          Deferred:Federal

          

          

          58,000

          

          

          

          392,000State

          

          

          3,000

          

          

          

          53,000Net operating loss carryforward

          

          

          1,274,000

          

          

          

          1,936,000Valuation Allowance

          

          

          (1,335,000

          )

          

          

          (2,381,000

          )Total income tax (expense) benefit

          

          $

          

          

          

          $

          
 Significant components of Cytomedixs deferred tax assets and liabilities consisted of the following at December 31:  2009

          

          2008Deferred tax assets:Stock-based compensation

          

          $

          3,727,000

          

          

          $

          3,554,000Amortization of patents

          

          

          108,000

          

          

          

          126,000Other

          

          

          52,000

          

          

          

          146,000Total deferred tax assets

          

          

          3,887,000

          

          

          

          3,826,000Deferred tax liabilities

          

          

          

          

          

          

          Net deferred tax assets

          

          

          3,887,000

          

          

          

          3,826,000Net operating loss carryforwards

          

          

          12,155,000

          

          

          

          10,881,00016,042,000

          

          

          

          14,707,000Less valuation allowance

          

          

          (16,042,000

          )

          

          

          (14,707,000

          )Total deferred tax assets

          

          $

          

          

          

          $

          
 48    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 13  Income Taxes   (continued) The following table presents a reconciliation between the U.S. federal statutory income tax rate and the Companys effective tax rate:  2009

          

          2008U.S. Federal statutory income tax

          

          

          35.0

          %

          

          

          35.0

          %State and local income tax benefits

          

          

          3.8

          %

          

          

          5.1

          %Nondeductible goodwill impairment

          

          

          

          

          

          

          (9.2

          )%Other

          

          

          

          

          

          

          0.2

          %Valuation allowance for deferred income tax assets

          

          

          (38.8

          )%

          

          

          (31.1

          )%Effective income tax rate

          

          

          0.0

          %

          

          

          0.0

          %
 The Company had loss carryforwards of approximately $31,800,000 as of December 31, 2009 that may be offset against future taxable income. The carryforwards will expire between 2021 and 2029. Utilization of these carryforwards may be subject to annual limitations based upon previous significant changes in stock ownership. Management has determined that realization of the net deferred tax assets is not assured and accordingly has established a valuation allowance of $16,042,000 and $14,707,000 at December 31, 2009 and 2008, respectively. The Companys source of income before expenses is exclusively domestic. The Company does not believe it has any uncertain income tax positions as described in its discussion of Income Tax accounting policy in Note 4. Note 14  Capital Stock The Company has several classes of stock as described below. Common Stock Common stock has a par value of $.0001 per share and is limited to a maximum of 65,000,000 shares. It is subordinate to both Series A Convertible Preferred stock and Series B Convertible Preferred stock and to all other classes and series of equity securities of the Company which by their terms rank senior to it, in the event of a liquidation, dissolution, or winding up of the Company or with regard to any other rights, privileges or preferences. Each share of Common stock represents the right to one vote. Holders of Common stock are entitled to receive dividends as may be declared by the Board of Directors, subject to the limitations in the terms of
the Series A and B Convertible Preferred stock described below. Series A Convertible Preferred Stock Series A Convertible Preferred stock (Series A) has a par value of $.0001 per share and is limited to a maximum of 5,000,000 shares. It has a stated liquidation preference of $1.00 per share and preference over and rank senior to (i) Series B Convertible Preferred stock, (ii) Common stock, and (iii) all other classes and series of equity securities of the Company which by its terms do not rank senior to the Series A stock. The Series A contains a negative covenant prohibiting the Company from granting any security interest in the Companys patents and/or future royalty streams (Intellectual Property). The holders of record
of shares are entitled to receive cumulative dividends at the rate of 8% of the stated liquidation preference amount per share per annum, payable quarterly in arrears. These dividends are prior and in preference to any declaration or payment of any distribution on any outstanding shares of Common stock or any other equity securities of the Company ranking junior as to the payment of dividends. Dividends are to be paid in shares of Series A or, in the sole discretion of the Board of Directors, in cash. Each share of Series A stock shall entitle the holder thereof to vote on all matters voted on by holders of Common stock of the Company voting together as a single class with the other shares entitled to vote.
 49    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 14  Capital Stock   (continued) Each share of Series A stock may be converted into Common stock at a conversion rate equal to 90% of the twenty-day average closing price of the Companys Common stock, but in no case shall this price be less than $3.00 per share. The Company may redeem Series A stock for cash at a price per share equal to 104% of the liquidation preference amount plus all accrued but unpaid dividends, by providing proper notice of not less than 10 days nor more than 60 days prior to a redemption date set by the Company. Series B Convertible Preferred Stock Series B Convertible Preferred stock (Series B) has a par value of $.0001 per share and is limited to a maximum of 5,000,000 shares. It has a stated liquidation preference of $1.00 per share, is subordinate to the Series A stock, and has preference over and ranks senior to (i) Common stock, and (ii) all other classes and series of equity securities of the Company which by its terms do not rank senior to the Series B stock. The Series B contains a negative covenant prohibiting the Company from granting any security interest in the Companys Intellectual Property. The holders of record of shares are entitled to receive cumulative
dividends at the rate of 8% of the stated liquidation preference amount per share per annum, payable quarterly in arrears. These dividends are prior and in preference to any declaration or payment of any distribution on any outstanding shares of Common stock or any other equity securities of the Company ranking junior as to the payment of dividends. Dividends are to be paid in shares of Series B or, in the sole discretion of the Board of Directors, in cash. Each share of Series B stock shall entitle the holder thereof to vote on all matters voted on by holders of Common stock of the Company voting together as a single class with the other shares entitled to vote. Each share of Series B stock may be converted into Common stock at a conversion rate equal to 90% of the twenty-day average closing price of the Companys Common stock, but in no case shall this price be less than $3.00 per share. The Company may redeem Series B stock for cash at a price per share equal to 103% of the liquidation preference amount plus all accrued but unpaid dividends, by providing proper notice of not less than 10 days nor more than 60 days prior to a redemption date set by the Company. Series C Convertible Preferred Stock Series C Convertible Preferred stock (Series C) has a par value of $.0001 per share and is limited to a maximum of 1,000 shares. It has a stated liquidation preference of $10,000 per share, and ranks junior to the Series A regarding distributions upon liquidation of the Company. Series C stock ranks junior to the Series B solely with respect to the priority security interest in the Companys Intellectual Property. The shares accrued dividends at 6% of the stated liquidation preference amount from the date of issuance and increased to 8% commencing on September 25, 2005, and were payable annually in cash or shares of Common stock at
the option of the Company. The Series C stock ranks pari passu with Series A and Series B with respect to payment of dividends. As of December 31, 2009 and 2008, no Series C remained outstanding.
 50    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 14  Capital Stock   (continued) Warrants and Options The Company had the following outstanding warrants and options at December 31:  # OutstandingEquity Instrument

          

          December 31,2009

          

          December 31,2008D Warrants(1)

          

          

          304,033

          

          

          

          304,033Unit Warrants(2)

          

          

          1,812,500

          

          

          

          1,812,500Fitch/Coleman Warrants(3)

          

          

          975,000

          

          

          

          975,000August 2008 Warrants(4)

          

          

          1,000,007

          

          

          

          1,000,007August 2009 Warrants(5)

          

          

          1,717,800

          

          

          

          Other warrants(6)

          

          

          1,249,632

          

          

          

          1,261,632Options issued under the Long-Term Incentive Plan(7)

          

          

          4,616,554

          

          

          

          4,020,388
  (1)

          These warrants were issued in exchange for the voluntary exercise of Outstanding Warrants during the offer period ending May 1, 2006 and are voluntarily exercisable at $3.50 per share, provided that the exercise does not result in the holder owning in excess of 9.9% of the outstanding shares of the Companys Common stock, and expire on May 1, 2011. The Company may call up to 100% of the class D warrants, provided that the Companys Common stock must have been trading at a closing price greater than $4.50 for a period of at least ten (10) consecutive trading days prior to the date of delivery of the Call Notice, provided that the Registration Statement is then in effect and trading in the Common stock shall not have been suspended by the Securities and Exchange commission or the securities exchange or quotation system on which the Common stock is then listed or traded. (2)

          These warrants were issued in connection with the Unit offering (discussed later in this Note). As amended, they expire on March 31, 2010, and are voluntarily exercisable at $1.51 per share, provided that the exercise does not result in the holder owning in excess of 9.999% of the outstanding shares of the Companys Common stock. They provide for a cashless exercise at the option of the warrantholder provided that (i) the per share market price of one share of Common stock is greater than the warrant price and (ii) a registration statement for the resale of warrant stock is not in effect. The Company may call up to 100% of the outstanding Unit warrants, provided that the Companys Common stock must have been trading at a closing price greater than $5.00 for a period of at least ten (10) consecutive trading days prior to the date of delivery of the Call Notice and the Registration Statement is then in effect and trading in the Common
stock shall not have been suspended by the Securities and Exchange commission or the securities exchange or quotation system on which the Common stock is then listed or traded. The warrants are accounted for as derivative liabilities as of January 1, 2009. (3)

          These warrants were issued in connection with August 2, 2007 Term Sheet Agreement and Shareholders Agreement with the Companys outside patent counsel, Fitch Even Tabin & Flannery and The Coleman Law Firm, and have a 7.5 year term. The strike price on the warrants will be: 325,000 at $1.25 (Group A); 325,000 at $1.50 (Group B); and 325,000 at $1.75 (Group C). The Company may call up to 100% of these warrants, provided that the closing stock price is at or above the following call prices for ten consecutive trading days: Group A  $4/share; Group B  $5/share; Group C  $6/share. If the Company exercises its right to call, it shall provide at least 45 days notice for one-half of the warrants subject to the call and at least 90 days notice for the remainder of the warrants subject to the call. (4)

          These warrants were issued in connection with the August 2008 financing (discussed later in this Note), are voluntarily exercisable at $1.00 per share, provided that the exercise does not result in the holder owning in excess of 9.99% of the outstanding shares of the Companys Common stock, and expire on August 29, 2012. (5)

          These warrants were issued in connection with the August 2009 financing (discussed later in this Note), are voluntarily exercisable at $0.65 per share, provided that the exercise does not result in the holder owning in excess of 9.99% of the outstanding shares of the Companys Common stock, and expire in
 51    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 14  Capital Stock   (continued) February 2015. These amounts include 67,955 warrants issued to a placement agent on identical terms. The warrants are accounted for as derivative liabilities. (6)

          These warrants were issued to placement agents, consultants, and other professional service providers in exchange for services provided. They have terms ranging from 4 to 10 years with various expiration dates through February 24, 2014 and exercise prices ranging from $1.00 to $6.00. They are voluntarily exercisable once vested. There is no call provision associated with these warrants, except as follows: one service provider warrant for 450,000 shares, as amended, contains a call provision identical to the one in Unit warrants discussed above. (7)

          These options were issued under the Companys shareholder approved Long-Term Incentive Plan. See Note 15 for a full discussion regarding these options. Activity The Company issued 3,311,005 shares of Common stock during 2009. The following table lists the sources of and the proceeds from those issuances:  Source

          

          # ofShares

          

          TotalProceedsConversion of series B convertible preferred shares

          

          

          11,326

          

          

          $

          Issuance of shares pursuant to registered direct offering completed in Third Quarter 2009

          

          

          3,299,679

          

          

          $

          1,490,057Totals

          

          

          3,311,005

          

          

          $

          1,490,057
 The Company issued 2,035,835 shares of Common stock during 2008. The following table lists the sources of and the proceeds from those issuances:  Source

          

          # ofShares

          

          TotalProceedsConversion of series A convertible preferred shares

          

          

          5,827

          

          

          $

          Issuance of shares pursuant to registered direct offering completed in Third Quarter 2008

          

          

          2,000,008

          

          

          $

          1,500,000Common stock issued in lieu of cash for fees earned by advisors

          

          

          30,000

          

          

          $

          12,000Totals

          

          

          2,035,835

          

          

          $

          1,512,000
 The Company has used the cash proceeds from these 2009 and 2008 issuances for general corporate purposes. The issuance of shares under the Companys LTIP were registered by the Companys Registration Statement on Form S-8 filed with the SEC on November 1, 2004 and subsequently amended on June 12, 2006, March 26, 2008, and September 25, 2009. All other offerings of the Companys securities were either registered under the Securities Act or made in reliance on the private offering exemptions contained in Section 4(2) of the Securities Act and regulations promulgated thereunder, and in reliance on similar exemptions under applicable state
laws as a transaction not involving a public offering. None of these transactions involved any underwriters, underwriting discounts or commissions. In 2009, the Company granted 663,500 options to purchase the Companys Common stock with exercise prices ranging from $0.30 to $0.62 under the LTIP (see Note 15). On September 17, 2009, pursuant to the Certificate of Designation filed with the Delaware Secretary of State, the Board of Directors authorized a stock dividend on the Companys Series A and B Convertible Preferred shares. This dividend resulted in the issuance of 7,446 and 7,463 shares of Series A and B Convertible Preferred stock, respectively. In August 2009, the Company entered into securities purchase agreements with certain investors for their purchase of 3,299,679 shares of Cytomedixs Common stock at a purchase price of $0.44 per share, and 5-year warrants to purchase an additional 1,717,800 shares of Cytomedixs Common stock at an exercise price
 52    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 14  Capital Stock   (continued) of $0.65 (the Financing). Holders of the warrants may exercise warrants at any time on or after 180 days following the issuance date through February 2014. The warrants are accounted for as derivative liabilities. The securities in this Financing were offered and sold pursuant to a prospectus dated March 26, 2008 and a prospectus supplement dated August 10, 2009, pursuant to the Companys effective shelf registration statement on Form S-3 (SEC File No. 333-147793). As a result of this Financing, Cytomedix received gross proceeds of approximately $1,490,000 (before customary offering expenses of approximately $93,000, and excluding any
proceeds that Cytomedix may receive upon exercise of the warrants). Certain officers and directors of the Company participated in this offering. Their purchase price per share was $0.57; all other terms and provisions were the same as those of the public investors. During the year ended December 31, 2009, 67,334 options expired or were forfeited by contract due to the termination of the underlying service arrangement. In 2008, the Company granted 1,235,500 options to purchase the Companys Common stock with exercise prices ranging from $0.40 to $1.50 under the LTIP (see Note 15). In December 2008, under the LTIP, the Company issued 30,000 shares of restricted Common stock to individual principals at Spencer Clarke, LLC, for investment advisory services. These shares were contractually restricted from sale through December 16, 2009. In October 2008, the Company executed amendments to certain terms and provisions of its outstanding Unit Offering Warrants to purchase the Common stock of the Company, issued in the March 2004 private placement (the Unit Warrants) and of the FEQ Investments, Inc. warrant issued in April 2004 (the FEQ Warrant). Specifically, the Unit Warrant amendments were as follows: (i) the term of such warrants was extended from March 31, 2009 to March 31, 2010, (ii) the exercise price of the warrants was increased by 10% from $1.50 to $1.65 per share, and (iii) the call provision was amended so that such instruments are callable by the
Company in the event the closing price of the Companys securities is in excess $5.00 per share for at least 10 consecutive trading days. The FEQ Warrant was amended so that (i) its term was extended from April 1, 2009 to April 1, 2010, (ii) the exercise price of the warrant was increased by 10% from $1.00 to $1.10 per share and (iii) a call provision identical to the one added to the Unit Warrants was added to the FEQ Warrant. The amendment to the FEQ Warrant resulted in approximately $78,000 of non-cash equity based compensation expense in the fourth quarter of 2008. The foregoing amendments to the warrants were approved by the requisite vote of the warrant holders and are effective as of October 31, 2008. The warrants are accounted for as derivative liabilities. On September 18, 2008, pursuant to the Certificate of Designation filed with the Delaware Secretary of State, the Board of Directors authorized a stock dividend on the Companys Series A and B Convertible Preferred shares. This dividend resulted in the issuance of 14,859 and 6,895 shares of Series A and B Convertible Preferred stock, respectively. In August 2008, the Company entered into securities purchase agreements with certain investors for their purchase of up to 2,000,000 shares (subject to rounding for partial shares) of Cytomedixs Common stock at a purchase price of $0.75 per share, and 4-year warrants to purchase an additional 1,000,000 (subject to rounding for partial shares) shares of Cytomedixs Common stock at an exercise price of $1.00. Holders of the warrants may exercise warrants at any time through August 29, 2012. The securities in this financing were offered and sold pursuant to a prospectus dated March 26, 2008 and a prospectus supplement dated August 22, 2008,
pursuant to the Companys effective shelf registration statement on Form S-3 (SEC File No. 333-147793). As a result of this Financing, Cytomedix received gross proceeds of approximately $1,500,000 (before customary offering expenses of approximately $55,000, and excluding any proceeds that Cytomedix may receive upon exercise of the warrants). Certain officers and directors of the Company participated in this offering on the same terms and provisions as public investors.
 53    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 14  Capital Stock   (continued) During the year ended December 31, 2008, 509,799 options expired or were forfeited by contract due to the termination of the underlying service arrangement. No dividends were declared or paid on the Companys Common stock in any of the periods discussed in this report. At December 31, the following amounts were accrued for dividends payable:  2009

          

          2008Series A Preferred Stock

          

          $

          3,945

          

          

          $

          3,653Series B Preferred Stock

          

          

          3,340

          

          

          

          3,590$

          7,285

          

          

          $

          7,243
 As of December 31, 2009, the balance of unamortized stock-based compensation for warrants granted to non-employees was $0. Note 15  Long-Term Incentive Plan and Other Compensatory Awards Cytomedix has a shareholder-approved, Long-Term Incentive Plan (LTIP) that permits incentive awards of options, SARs, restricted stock awards, phantom stock awards, performance unit awards, dividend equivalent awards and other stock-based awards. Cytomedix may issue up to 6,500,000 shares of stock under this LTIP. At December 31, 2009, 1,387,246 shares were available for future grants. Of all options granted through December 31, 2009, 496,200 had been exercised and 4,616,554 remained outstanding. Option terms are set by the Board of Directors for each option grant, and generally vest immediately upon grant or over a period of time ranging
up to three years, are exercisable in whole or installments, and expire ten years from the date of grant. These options expire at various dates through November 12, 2019. A summary of option activity under the LTIP as of December 31, 2009, and changes during the year then ended is presented below:  LTIP Options

          

          Shares

          

          Weighted-AverageExercisePrice

          

          Weighted-AverageRemainingContractualTerm

          

          Aggregate IntrinsicValueOutstanding at January 1, 2009

          

          

          4,020,388

          

          

          $

          1.63Granted

          

          

          663,500

          

          

          $

          0.52Exercised

          

          

          0

          

          

          

          Forfeited or expired

          

          

          (67,334

          )

          

          $

          1.60Outstanding at December 31, 2009

          

          

          4,616,554

          

          

          $

          1.47

          

          

          

          6.5

          

          

          $

          15,150Exercisable at December 31, 2009

          

          

          3,717,059

          

          

          $

          1.64

          

          

          

          5.9

          

          

          $

          13,650
 The following table summarizes information about stock options outstanding as of December 31, 2009:  Options Outstanding

          

          Options ExercisableRange ofExercisePrices

          

          Number ofOutstandingShares

          

          WeightedAverageRemainingContract Life

          

          WeightedAverageExercisePrice

          

          NumberExercisable

          

          WeightedAverageExercisePrice$0.30  $1.50

          

          

          3,066,554

          

          

          

          6.8

          

          

          $

          1.02

          

          

          

          2,287,059

          

          

          $

          1.15$1.51  $3.00

          

          

          1,480,000

          

          

          

          5.8

          

          

          $

          2.22

          

          

          

          1,360,000

          

          

          $

          2.28$3.01  $4.50

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          

          $4.51  $6.00

          

          

          70,000

          

          

          

          6.0

          

          

          $

          5.20

          

          

          

          70,000

          

          

          $

          5.20
 54    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 15  Long-Term Incentive Plan and Other Compensatory Awards   (continued) The weighted-average grant-date fair value of stock options granted under the LTIP during the years 2009 and 2008 was $0.47 and $0.72, respectively. No stock options were exercised under the LTIP during the fiscal years ended December 31, 2009 and 2008. As of December 31, 2009, there was approximately $344,000 of total unrecognized compensation cost related to nonvested stock options granted under the LTIP. That cost is expected to be recognized over a weighted-average period of 1.7 years. The total fair value of stock options granted under the LTIP that vested during the fiscal years ended December 31, 2009 and 2008 was approximately $444,000 and $490,000, respectively. Additionally, the Company has issued certain compensatory warrants outside of the LTIP, in exchange for the performance of services. A summary of service provider warrant activity as of December 31, 2009, and changes during the year then ended is presented below:  Warrants to Service Providers

          

          Shares

          

          Weighted-AverageExercisePrice

          

          Weighted-Average Remaining Contractual Term

          

          Aggregate Intrinsic ValueOutstanding at January 1, 2009

          

          

          2,268,900

          

          

          $

          1.54Granted

          

          

          0

          

          

          

          Exercised

          

          

          0

          

          

          

          Forfeited or expired

          

          

          (44,268

          )

          

          $

          1.07Outstanding at December 31, 2009

          

          

          2,224,632

          

          

          $

          1.55

          

          

          

          2.9

          

          

          $

          0Exercisable at December 31, 2009

          

          

          2,224,632

          

          

          $

          1.55

          

          

          

          2.9

          

          

          $

          0
 The following table summarizes information about compensatory warrants outstanding as of December 31, 2009:  Warrants Outstanding

          

          Warrants ExercisableRange ofExercisePrices

          

          Number ofOutstandingShares

          

          WeightedAverageRemainingContract Life

          

          WeightedAverageExercisePrice

          

          NumberExercisable

          

          WeightedAverageExercisePrice$1.00  $1.50

          

          

          1,650,149

          

          

          

          2.8

          

          

          $

          1.24

          

          

          

          1,650,149

          

          

          $

          1.24$1.51  $3.00

          

          

          419,483

          

          

          

          4.4

          

          

          $

          1.96

          

          

          

          419,483

          

          

          $

          1.96$3.01  $4.50

          

          

          125,000

          

          

          

          0.3

          

          

          $

          3.14

          

          

          

          125,000

          

          

          $

          3.14$4.51  $6.00

          

          

          30,000

          

          

          

          1.0

          

          

          $

          6.00

          

          

          

          30,000

          

          

          $

          6.00
 The Company has recorded stock-based compensation expense as follows:  Year Ended December 31Stock-Based Expense

          

          2009

          

          2008Awards under the LTIP

          

          $

          431,846

          

          

          $

          591,699Awards outside the LTIP

          

          $

          11,580

          

          

          $

          134,665$

          443,426

          

          

          $

          726,364Included in Statements of Operations caption as follows:Salaries and wages

          

          $

          374,544

          

          

          $

          371,759Consulting expense

          

          $

          11,580

          

          

          $

          81,069General and administrative

          

          $

          57,302

          

          

          $

          273,536$

          443,426

          

          

          $

          726,364
 55    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 16  Supplemental Cash Flow Disclosures  Non-Cash Transactions Non-cash transactions for years ended December 31 include:  2009

          

          2008Accrued dividends on 8% preferred stock

          

          $

          14,951

          

          

          $

          14,947Common stock issued in lieu of cash for fees earned by advisors

          

          

          

          

          

          

          12,000Preferred dividends paid by issuance of stock

          

          

          14,909

          

          

          

          21,754
 Cash paid for interest was $13,000 and $12,000 in 2009 and 2008, respectively. There were no income taxes paid in 2009 and 2008. Note 17  Termination and Consulting Agreement On June 5, 2008, the Company and Kshitij Mohan, the Companys former Chief Executive Officer and Chairman of the Board of Directors, entered into a Termination and Consulting Agreement, pursuant to which Dr. Mohan agreed, among other things, to step down as the CEO and Chairman and to become a consultant to the Company effective June 30, 2008. As part of this agreement, Dr. Mohan or his estate is entitled to the following compensation: 

          $500,000 to be paid in 24 equal monthly installments, beginning in July 2008 

          $5,000 toward legal fees incurred by Dr. Mohan related to this agreement 

          Continuation of health benefits under the Companys health insurance plans through December 31, 2009 The Company recorded $510,000 in compensation expense in the second quarter of 2008 which represents the present value of the above outlined special termination benefits to Dr. Mohan. Additionally, in the same period, the Company reversed $192,000 in accrued bonus expense for Dr. Mohan. The net expense is reflected in the Salaries and wages line on the Statements of Operations. At December 31, 2008, $257,000 and $123,000, representing the short and long term components of the remaining obligation to Dr. Mohan, are included in the Accounts payable and accrued expenses and Other liabilities lines of the Balance Sheets, respectively. At December 31,
2009, $132,000, representing the total remaining obligation to Dr. Mohan is included in the Accounts payable and accrued expenses of the Balance Sheets. Note 18  Operating Leases The Company leases its office space under an operating lease expiring in June 2011, with future minimum lease payments as indicated in the table below:  Years ending December 31:2010

          

          $

          62,0002011

          

          

          31,930Thereafter

          

          

          Total future minimum lease payments

          

          $

          93,930
 For the years ended December 31, 2009 and 2008, the Company incurred rent expense of approximately $68,000 and $67,000, respectively.
 56    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 19  Commitments and Contingencies The Company is prohibited from granting a security interest in the Companys patents and/or future royalty streams under the terms of the Series A and B Convertible Preferred stock. Under the Companys plan of reorganization upon emergence from bankruptcy in July 2002, the Series A Preferred stock and the dividends accrued thereon that existed prior to emergence from bankruptcy are to be exchanged into one share of new Common stock for every five shares of Series A Preferred stock held as of the date of emergence from bankruptcy. This exchange is contingent on the Companys attaining aggregate gross revenues for four consecutive quarters of at least $10,000,000 and would result in the issuance of 325,000 shares of Common stock. The Company is party to a registration rights agreement and a related warrant agreement with one of its former consultants. The registration rights agreement provides for liquidated damages, at the discretion of the warrant holder, in the event that the registration statement relating to the shares underlying the warrants becomes ineffective. The Companys obligations under this agreement run through the earlier of April 1, 2012 or two years after the exercise of the related warrants. At the discretion of the warrant holder, the liquidated damages may take the form of cash or additional shares of the Companys Common stock. As of December
31, 2009, the Company has estimated the maximum undiscounted liquidated damages at $68,000. However, the Company has determined that it is unlikely that circumstances allowing for the aforementioned liquidated damages would arise, and therefore no contingent liability has been recorded. In conjunction with its FDA clearance, the Company agreed to conduct a post-market surveillance study to further analyze the safety profile of bovine thrombin as used in the AutoloGelTM System. This study is estimated to cost between $500,000 and $700,000 over a period of three years, beginning in the third quarter of 2008. As of December 31, 2009, $111,000 had been incurred. In September 2009, the Company renewed its operating lease for its office space in Rockville, MD which was set to expire in December 2009. Under the terms of the renewed lease, the new expiration date is June 30, 2011 and monthly rent expense is approximately $5,200 from January 2010 through December 2010 and approximately $5,300 thereafter. In July 2009, in satisfaction of a new Maryland law pertaining to Wholesale Distributor Permits, the Company established a Letter of Credit, in the amount of $50,000, naming the Maryland Board of Pharmacy as the beneficiary. This Letter of Credit serves as security for the performance by the Company of its obligations under applicable Maryland law regarding this permit and is collateralized by the CD described in Restricted Short-Term Investments (see Note 5). Note 20  Subsequent Events In February 2010, under the LTIP, the Company granted 190,000 stock options to board members for their upcoming service in 2010, 13,500 to new sales representatives, and 60,000 to a consultant. These options have an exercise price of $0.47, which was the closing market price on their date of grant and expire ten years from the date of grant. The board members options vest in equal monthly installments through December 2010, the other options vest over a period of approximately three years in equal annual installments.
 57    TABLE OF CONTENTS CYTOMEDIX, INC.   NOTES TO FINANCIAL STATEMENTS Note 21  Quarterly Financial Data (Unaudited) Required by Regulation S-X Item 3-02(b)  FirstQuarter

          

          SecondQuarter

          

          ThirdQuarter

          

          FourthQuarter2009 (as previously reported)Revenues

          

          $

          539,137

          

          

          $

          569,306

          

          

          $

          538,313

          

          

          $

          419,428Gross profit

          

          $

          406,150

          

          

          $

          451,333

          

          

          $

          434,792

          

          

          $

          315,104Net loss

          

          $

          (890,836

          )

          

          $

          (886,794

          )

          

          $

          (566,627

          )

          

          $

          (1,094,327

          )Loss per common share Basic and diluted

          

          $

          (0.03

          )

          

          $

          (0.03

          )

          

          $

          (0.02

          )

          

          $

          (0.03

          )2009 (as restated)Revenues

          

          $

          539,137

          

          

          $

          569,306

          

          

          $

          538,313

          

          

          $

          419,428Gross profit

          

          $

          406,150

          

          

          $

          451,333

          

          

          $

          434,792

          

          

          $

          315,104Net loss

          

          $

          (943,077

          )

          

          $

          (1,163,545

          )

          

          $

          (671,771

          )

          

          $

          (480,824

          )Loss per common share Basic and diluted

          

          $

          (0.03

          )

          

          $

          (0.03

          )

          

          $

          (0.02

          )

          

          $

          (0.01

          )2008Revenues

          

          $

          627,393

          

          

          $

          427,915

          

          

          $

          499,371

          

          

          $

          536,058Gross profit

          

          $

          409,233

          

          

          $

          321,314

          

          

          $

          390,448

          

          

          $

          368,722Net loss

          

          $

          (899,272

          )

          

          $

          (1,249,858

          )

          

          $

          (802,969

          )

          

          $

          (4,708,650

          )Loss per common share Basic and diluted

          

          $

          (0.03

          )

          

          $

          (0.04

          )

          

          $

          (0.03

          )

          

          $

          (0.14

          )
 Net loss and loss per common share basic and diluted for 2009 have been restated. The Company has filed amendments to their previously filed periodic reports on Form 10-Q for the periods ended March 31, 2009, June 30, 2009 and September 30, 2009. See Note 2 for further discussion. The Fourth Quarter of 2008 includes an impairment charge with respect to goodwill and patents of approximately $3,543,000.
 58    TABLE OF CONTENTS Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure None. Item 9A(T). Controls and Procedures Evaluation of Disclosure Controls and Procedures Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of our disclosure controls and procedures as of December 31, 2009. The termdisclosure controls and procedures is defined in Rules 13a-15(e) and 15d-15(e) under the Securities and Exchange Act of 1934. Management recognizes that any disclosure controls and procedures no matter how well designed and operated, can only provide reasonable assurance of achieving their objectives and management necessarily applies its judgment in evaluating the cost-benefit relationship of possible controls and procedures. As a result of a material weakness in our internal control over financial reporting relating to the accounting for stock purchase warrants, our management has reassessed the effectiveness of our disclosure controls and procedures and have determined that our disclosure controls and procedures were not effective as of December 31, 2009. Management's Report on Internal Control over Financial Reporting Management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Rule 13a-15(f) or Rule 15d-15(f) of the Exchange Act. Our internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements prepared for external purposes in accordance with generally accepted accounting principles. Our internal control over financial reporting includes those policies and procedures that (a) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect
the transactions and disposition of the Company's assets; (b) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures are being made only in accordance with authorizations of management and the directors of the Company; and (c) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company's assets that could have a material effect on the financial statements. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. In connection with the restatement discussed below and in Note 2 to our financial statements in this Form 10-K/A, management, including our Chief Executive Officer and Chief Financial Officer, reassessed the effectiveness of the Company's internal control over financial reporting as of December 31, 2009. Management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control-Integrated Framework. A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a
material misstatement of the Company's annual or interim financial statements will not be prevented or detected on a timely basis. Based on management's reassessment, management is restating its original report and has concluded that the Company's internal control over financial reporting was not operating properly and therefore was not effective as of December 31, 2009, because of a material weakness relating to the accounting for equity-linked financial instruments, specifically for stock purchase warrants. This material weakness resulted in a material misstatement of our liabilities, non-cash expense relating to the changes in fair value of derivative liabilities and equity accounts and related financial disclosures that was not prevented or detected on a timely basis. The material weakness described above resulted in a restatement of the Company's financial statements as discussed below and in Note 2 to the financial statements included in this Annual Report on Form 10-K/A. This Annual Report does not include an attestation report of the Company's independent registered public accounting firm regarding internal control over financial reporting. Management's internal controls over financial reporting were not subject to attestation by the Company's independent registered public accounting firm
 59    TABLE OF CONTENTS pursuant to temporary rules of the Securities and Exchange Commission that permit the company to provide only management's report in this Annual Report. Restatement of Financial Statements On January 3, 2011, the Audit Committee of the Board of Directors concluded, based on the recommendation of management, that the previously issued financial statements for the year ended December 31, 2009 included in the Company's most recently filed Form 10-K and the quarterly periods from March 31, 2009 through September 30, 2010 included in the Company's quarterly reports on Forms l0-Q (collectively, the Affected Periods) are no longer reliable because they failed to incorporate non-cash charges resulting from required adjustments to certain outstanding warrants (the Warrants). The Companys management and the Audit
Committee of the Board of Directors discussed these matters with the Companys independent registered public accounting firm and have determined that financial statements in the Affected Periods should be restated to reflect these non-cash charges. Remediation Plan Management has been actively engaged in developing a remediation plan to address the material weakness. Implementation of the remediation plan is in process and consists of redesigning quarterly procedures to enhance management's identification, capture, review, approval and recording of contractual terms included in equity arrangements. Management believes the foregoing efforts will effectively remediate the material weakness. As the Company continues to evaluate and work to improve its internal control over financial reporting, management may execute additional measures to address potential control deficiencies or modify the remediation plan
described above. Management will continue to review and make necessary changes to the overall design of the Company's internal control environment, as well as to policies and procedures to improve the overall effectiveness of internal control over financial reporting. Changes in Internal Control over Financial Reporting There were no changes in our internal control over financial reporting during the quarter ended December 31, 2009 that have materially affected. or are reasonably likely to materially affect our internal control over financial reporting. Item 9B. Other Information None.
 60    TABLE OF CONTENTS PART III Item 10. Directors, Executive Officers and Corporate Governance The following table sets forth the names and ages of all Cytomedix directors and executive officers as of December 31, 2009. Officers are appointed by, and serve at the pleasure of, the Board of Directors.  Name

          

          Age

          

          Date of Election or Appointment

          

          Position(s) with the CompanyJames S. Benson

          

          70

          

          November 1, 2004

          

          Presiding Independent Director and Acting Chairman of the BoardStephen N. Keith

          

          57

          

          September 19, 2008

          

          Independent DirectorMark T. McLoughlin

          

          54

          

          June 7, 2004

          

          Independent DirectorCraig B. Mendelsohn

          

          55

          

          November 12, 2009

          

          Independent DirectorC. Eric Winzer

          

          52

          

          January 30, 2009

          

          Independent DirectorDavid E. Jorden

          

          47

          

          September 19, 2008

          

          DirectorMartin P. Rosendale

          

          52

          

          July 1, 2008

          

          Director, Chief Executive OfficerAndrew S. Maslan

          

          40

          

          August 15, 2005

          

          Chief Financial OfficerCarelyn P. Fylling

          

          62

          

          December 1, 2001

          

          Vice President of Professional Services
 Biographical Information of Directors and Executive Officers Biographical information with respect to the Companys current executive officers and directors is provided below. James S. Benson has served as a Director since November 1, 2004. Mr. Benson has over 25 years of experience in the healthcare industry, and also serves as a director of Cryolife, Inc., and Medical Device Consultants, Inc. Mr. Benson retired from the Advanced Medical Device Association (Advamed) where he served as executive vice president for technical and regulatory affairs. Prior to that, he held numerous senior positions at the Food and Drug Administration (FDA) over a twenty year period. He retired from the FDA as director of the Center for Devices and Radiological Health (CDRH). Earlier, he served as deputy commissioner
of the FDA, and also as its commissioner for a one-year period. Mr. Benson earned a B.S. degree in civil engineering from the University of Maryland and a M.S. degree in nuclear engineering from the Georgia Institute of Technology. Mr. Benson holds experience in key areas of interest to our company, including FDA regulation, corporate governance, and executive leadership. David E. Jorden, CPA, CFA has served as a Director since September 19, 2008 and Executive Board Member since October 1, 2008. From 2003 to 2008, he was with Morgan Stanleys Private Wealth Management group where he was responsible for equity portfolio management for high net worth individuals. Prior to Morgan Stanley, Mr. Jorden served as CFO for Genometrix, Inc., a private genomics/life sciences company focused on high-throughput microarray applications. Mr. Jorden was previously a principal with Fayez Sarofim & Co. Mr. Jorden has a M.M. from Northwestern Universitys Kellogg School and a B.B.A. from University of Texas at
Austin. He holds both Certified Financial Analyst and Certified Public Accountant designations. Mr. Jorden serves on the board of Opexa Therapeutics, Inc. (Nasdaq: OPXA). He is also on the board of two private companies, PLx Pharma, Inc., a specialty pharmaceutical company developing GI safer NSAIDs (nonsteroidal anti-inflammatory drugs), and DLush, LLC, a San Diego based deluxe beverage retail concept. Mr. Jorden holds experience in key areas of interest to our company, including capital raising, investor relations, financial management and analysis, and business strategy. Stephen N. Keith, MD, MSPH has served as a Director since September 19, 2008. Dr. Keith currently holds the office of Chief Executive Officer of the American College of Clinical Pharmacology, a premier professional society for the discipline of clinical pharmacology. From 2002 until 2009, Dr. Keith was President and Chief Operating Officer of Panacea Pharmaceuticals, Inc., a biopharmaceutical company located in Gaithersburg, MD. From 2005 to 2006, Dr. Keith served as Senior Consultant at Biologics Consulting Group, LLC, a biopharmaceutical consulting company located in Alexandria, VA. From 2003 to 2005, he was Managing Director at Glocap
Advisors LLC, a division of Glocap Funding LLC, an investment banking firm based in New York, NY. Dr. Keith has held a range of senior management positions in the pharmaceutical and biotechnology industries, including President and Chief Operating Officer at Antex Biologics Inc, another
 61    TABLE OF CONTENTS Gaithersburg, MD pharmaceutical company; Vice President, Marketing and Sales at North American Vaccine, Inc., a Columbia, MD pharmaceutical company; Senior Director, Health Care Delivery Policy in Corporate Public Affairs, Senior Customer Manager in the U.S. Human Health Division and Senior Director, Health Strategies, in the Merck-Medco Managed Care Division at Merck & Co, Inc. (NYSE: MRK). Dr. Keith also serves as Chairman of the Board of Directors of NanoVec, Inc., an early-stage biopharmaceutical company. Dr. Keith holds an undergraduate degree magna cum laude from Amherst College in Massachusetts (1973), a degree in medicine from
University of Illinois, College of Medicine, (1977) and a Master of Science in Public Health degree from the University of California, Los Angeles (1982). He is a licensed physician in the states of California and Maryland. Dr. Keith is a Fellow of the Academy of Pediatrics and a Diplomate of the American Board of Pediatrics. Dr. Keith holds experience in key areas of interest to our company, including the practice of medicine, product commercialization, investment banking, and executive leadership. Mark T. McLoughlin has served as a Director since June 7, 2004. Mr. McLoughlin currently serves as a Senior Vice President for VWR International, a global distributor of laboratory supplies, equipment and services to the pharma, biotech, industrial and clinical laboratory. In this capacity, he has responsibility for the sourcing and marketing functions for North America. Prior to joining VWR International, he was Senior Vice President, Chief Marketing Officer for Cardinal Health based in Rolle, Switzerland. Prior to joining Cardinal, he was vice president of commercial operations for Norwood Abbey Ltd., an Australian-based medical
technology company. Earlier, he was President of North American operations for Ion Beam Application, Inc., a Belgium-based global medical technology company. His executive career experience also includes Mallinckrodt, as well as positions with other healthcare companies. Mr. McLoughlin holds experience in key areas of interest to our company, including sales, marketing, distribution, international business, medical supplies industry, and executive leadership. Craig B. Mendelsohn, M.D., J.D. has served as a Director since November 12, 2009. Dr. Mendelsohn currently serves as Vice President and Deputy General Counsel for the American Red Cross where he is responsible for managing a staff of attorneys that provide counsel to the Biomedical Services division at the organization, while providing guidance and legal counsel to executive management and the Board of Governors. From 2002 until he joined American Red Cross, he held senior-level Medical Director and Regulatory Affairs positions for a number of medical device and pharmaceutical companies including Cardinal Health
(2007  2008), Core Dynamics, Inc. (2005  2007) and ZLB Bioplasma, Inc. (2002  2004), as well as at the Plasma Protein Therapeutics Association (2001  2002). Dr. Mendelsohn began his legal career in 1994 at the Washington, D.C. headquarters of Hogan & Hartson, an international full-service law firm, as a member of the Food, Drug, Agriculture, and Medical Devices Group. Dr. Mendelsohn also had a private practice in ophthalmology for ten years prior to obtaining his law degree. Dr. Mendelsohn received his Juris Doctor, Cum Laude from Georgetown University Law Center, his Doctor of Medicine from George Washington University Medical Center, and his Bachelor of Arts in Chemistry from Emory University. Dr. Mendelsohn holds experience in key areas of interest to our company, including regulatory law, biomedical industry, and practice of medicine. C. Eric Winzer has served as Director since January 30, 2009. Mr. Winzer currently serves as Chief Financial Officer of OpGen, Inc., a privately held DNA molecular diagnostics company headquartered in Gaithersburg, MD. Prior to joining OpGen, Mr. Winzer was Executive Vice President and Chief Financial Officer of Avalon Pharmaceuticals, Inc. (Nasdaq: AVRX) from July 2007 to June 2009. Mr. Winzer was with Life Technologies Corporation (Nasdaq: LIFE), formerly Invitrogen Corporation, a provider of life science technologies for disease research and drug discovery, from 2000 to 2006, where he served as Senior VP and Chief Financial Officer,
Executive Sponsor for Lifes ERP implementation and VP, Finance. From 1986 to 2000, Mr. Winzer held positions of increasing responsibilities at Life Technologies, Inc., including Chief Financial Officer, Secretary and Treasurer. From 1980 until 1986, he held various financial positions at Genex Corporation. Mr. Winzer received his B.A. in Economics and Business Administration from McDaniel College and an M.B.A. from Mount Saint Marys University. Mr. Winzer holds experience in key areas of interest to our company, including financial management and analysis, corporate governance, mergers and acquisitions. Martin P. Rosendale has served as our Chief Executive Officer and Director since July 1, 2008. Prior to that, in March 2008, he was appointed as Executive Vice-President and Chief Operating Officer of the Company. From January 2005 to March 2008, Mr. Rosendale held the position of Chief Executive Officer of Core Dynamics, Inc., a Rockville, MD biotechnology startup company using cryopreservation technology developed
 62    TABLE OF CONTENTS in Israel. From March 2001 to December 2004, Mr. Rosendale held the position of Senior Vice President and General Manager of ZLB Bioplasma, Inc., a Glendale, CA biologics company, as well as other positions at various biotechnology companies. Mr. Rosendale holds a Bachelor of Science degree in Microbiology from California State University in Long Beach, CA (1982). Mr. Rosendales day to day leadership, as Chief Executive Officer of Cytomedix, provides him with intimate knowledge of our operations. Andrew S. Maslan, CPA joined the Company as corporate controller on July 1, 2005 and became the Chief Financial Officer on August 15, 2005. Mr. Maslan most recently served as controller for BioReliance Corporation based in Rockville, MD. Earlier, he held positions with two other Rockville, MD-based companies, serving as a principal with GlobeTraders, Inc., and senior accountant for Providence Laboratory Associates. Mr. Maslan began his professional career serving as an auditor with KPMG Peat Marwick and is a Certified Public Accountant licensed in the state of Maryland. Carelyn P. Fylling, RN, MSN has served as the Companys Vice President of Professional Services since December 2001. Immediately prior to joining Cytomedix, she provided independent consulting and outsourcing services to the health care industry through Fylling Associates, LLC, which she wholly owns, and through Strategic Partners, LLC, in which she holds a partnership interest. Prior to that, Ms. Fylling spent 13 years at Curative Health Services, serving as Director of Medical Communications and Education, Worldwide. Prior to that, Ms. Fylling was Director of Training and Program Development at the International Diabetes Center in
Minneapolis, Minnesota. She also has served on the national Board of Directors of the American Diabetes Association and numerous national committees of the American Diabetes Association. Ms. Fylling received the prestigious Ames Award for Outstanding Educator in the Field of Diabetes. There are no family relationships between any of the Companys executive officers or directors and there are no arrangements or understandings between a director and any other person pursuant to which such person was elected as director. There were no material changes to the procedures by which shareholders may recommend nominees to the Board since the Companys last disclosure of such policies. No director or officer of the Company has, during the last 10 years, has been subject to or involved in any legal proceedings described under Item 401(f) of Regulation S-K, been convicted of any criminal proceeding (excluding traffic violations or similar misdemeanors), or been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, United States federal or state securities laws or finding any violations with respect to such laws. Board of Directors The Board oversees the business affairs of Cytomedix and monitors the performance of management. Under the Companys Bylaws, as amended and restated, the Board of Directors size may not exceed seven members. Presently, there are seven Board members. At each annual meeting, shareholders elect directors for a full term or the remainder thereof, as the case may be, to succeed those whose terms have expired. Each director holds office for the term for which he or she is elected or until his or her successor is duly elected. There has been no material change in the procedures by which shareholders may recommend nominees to the Companys
Board. Audit Committee The Board formed an Audit Committee in December 2004. Mr. Winzer currently serves as chairman of the Audit Committee. The Board has determined that Mr. Winzer is an audit committee financial expert as defined by Item 407(d) of Regulation S-K under the Securities Act and is independent within the meaning of Item 7(d)(3)(iv) of Schedule 14A under the Exchange Act. Other members of the Audit Committee are Mr. McLoughlin and Dr. Keith. The Board has determined that each member of the Audit Committee is independent as required by the NYSE Amex Company Guide and under the federal securities laws. The Audit Committee has a written
charter adopted by the Board, which is available on the Companys website at www.cytomedix.com and at no charge by contacting the Company at its headquarters as listed on the cover page of this report. Information appearing on the Companys web site is not part of this Annual Report.
 63    TABLE OF CONTENTS The purpose of the Audit Committee is to assist the Board in its general oversight of Cytomedixs financial reporting, internal controls and audit functions. As described in the Audit Committee Charter, which is available at the Companys website, the Audit Committees primary responsibilities are to: 

          Review whether or not management has maintained the reliability and integrity of the accounting policies and financial reporting and disclosure practices of the Company; 

          Review whether or not management has established and maintained processes to ensure that an adequate system of internal controls is functioning within the Company; 

          Review whether or not management has established and maintained processes to ensure compliance by the Company with legal and regulatory requirements that may impact its financial reporting and disclosure obligations; 

          Oversee the selection and retention of the Companys independent public accountants, their qualifications and independence; 

          Prepare a report of the Audit Committee for inclusion in the proxy statement for the Companys annual meeting of shareholders; 

          Review the scope and cost of the audit, the performance and procedures of the auditors, the final report of the independent auditors; and 

          Perform all other duties as the Board may from time to time designate. Code of Conduct and Ethics In April 2005, the Board approved a Code of Conduct and Ethics applicable to all directors, officers and employees which complies with Section 807 of the NYSE Amex Company Guide and with Item 406 of Regulation S-K. A copy of this Code of Conduct is available at the Companys website at www.cytomedix.com, and is available at no charge by contacting the Company at its headquarters as listed on the cover page of this Annual Report. Information appearing on the Companys website is not part of this Annual Report. Section 16(a) Beneficial Ownership Reporting Compliance Section 16(a) of the Securities Exchange Act of 1934, as amended, requires officers, directors and persons who own more than ten percent of a registered class of equity securities to, within specified time periods, file certain reports of ownership and changes in ownership with the SEC. Based solely upon a review of Forms 3 and Forms 4 furnished to the Company pursuant to Rule 16a-3 under this Act during the Companys most recent fiscal year, and Forms 5 with respect to the most recent fiscal year, the Company believes that all such forms required to be filed pursuant to Section 16(a) were timely filed as necessary by the executive officers, directors and security holders required to file same during the fiscal year ended December 31, 2009. Item 11. Executive Compensation This discussion focuses on the compensation paid to named executive officers, which is a defined term generally encompassing all persons that served as principal executive officer at any time during the fiscal year, as well as certain other highly paid executive officers serving in such positions at the end of the fiscal year. During 2008 and 2009, the named executive officers consisted of the following persons: 

          Martin P. Rosendale  Chief Executive Officer (Principal Executive Officer) (effective July 1, 2008) 

          Kshitij Mohan  Chairman of the Board, Chief Executive Officer (Principal Executive Officer) (through June 30, 2008) 

          Andrew S. Maslan  Chief Financial Officer 

          Carelyn P. Fylling  Vice President of Professional Services
 64    TABLE OF CONTENTS Summary Compensation Table  Name and Principal Position

          

          Year

          

          Salary

          

          Bonus

          

          Option Awards

          

          All Other Compensation

          

          TotalMartin P. Rosendale(1)Chief Executive Officer(Effective July 1, 2008)

          

          

          2009

          

          

          $

          300,000

          

          

          $

          

          

          

          $

          84,830

          

          

          $

          9,406

          

          

          $

          394,2362008

          

          

          $

          173,295

          

          

          $

          25,000

          

          

          $

          435,013

          

          

          $

          917

          

          

          $

          634,225Kshitij Mohan(2)Chief Executive Officer(Effective April 1, 2004)

          

          

          2009

          

          

          $

          

          

          

          $

          

          

          

          $

          

          

          

          $

          

          

          

          

          2008

          

          

          $

          216,823

          

          

          $

          8,100

          

          

          $

          38,198

          

          

          $

          518,367

          

          

          

          781,488Andrew S. Maslan(3)Chief Financial Officer(Effective August 16, 2005)

          

          

          2009

          

          

          $

          200,000

          

          

          $

          

          

          

          $

          36,274

          

          

          $

          8,000

          

          

          $

          244,2742008

          

          

          $

          172,062

          

          

          $

          40,625

          

          

          $

          61,566

          

          

          $

          8,518

          

          

          $

          282,771Carelyn P. Fylling(4)VP Professional Services

          

          

          2009

          

          

          $

          150,500

          

          

          $

          

          

          

          $

          25,302

          

          

          $

          6,020

          

          

          $

          181,8222008

          

          

          $

          145,119

          

          

          $

          35,850

          

          

          $

          18,470

          

          

          $

          7,239

          

          

          $

          206,678
  (1)

          Mr. Rosendale joined the Company on March 24, 2008 as Executive VP  Business Development. He was appointed Chief Executive Officer, effective July 1, 2008. Amount of salary for 2008 represents salary earned from his date of hire. Mr. Rosendale may earn a cash bonus of up to 50% of his salary. The exact amount of such bonus compensation is to be determined by the Compensation Committee and approved by the Board. Amounts under Option Awards represent the grant date fair value of 165,000 and 700,000 options granted during 2009 and 2008, respectively. Amounts in all other compensation reflect employer 401(k) matching contributions. (2)

          Dr. Mohans employment was terminated effective June 30, 2008. Amount of salary for 2008 represents salary earned through his date of separation. Amounts under Option Awards represent the grant date fair value of 30,000 options granted during 2008. All Other Compensation in 2008 consists of $8,367 in employer 401(k) matching contributions and $510,000 in severance compensation to which Dr. Mohan is entitled. All Other Compensation in 2007 consisted of $9,000 in employer 401(k) matching contributions and $25,000 in a perk-package cash allowance. (3)

          Mr. Maslan may earn a cash bonus of up to 35% of his salary. The exact amount of such bonus compensation is to be determined by the Compensation Committee and approved by the Board. Amounts under Option Awards represent the grant date fair value of 65,000 and 100,000 options granted during 2009 and 2008, respectively. Amounts in All Other Compensation reflect employer 401(k) matching contributions. (4)

          Ms. Fylling may earn a cash bonus of up to 35% of her salary. The exact amount of such bonus compensation is to be determined by the Compensation Committee and approved by the Board. Amounts under Option Awards represent the grant date fair value of 45,000 and 30,000 options granted during 2009 and 2008, respectively. Amounts in All Other Compensation reflect employer 401(k) matching contributions. Employment Contracts and Termination of Employment and Change-in-Control Arrangements The Company has employment agreements with the following named executive officers. The following is a description of these agreements. Martin P. Rosendale:  Mr. Rosendales employment agreement, as amended, provides for his at-will employment as the Companys Chief Executive Officer. Effective January 1, 2009, Mr. Rosendales annual salary was $300,000 and his target bonus percentage was 50%, depending on the achievement of performance criteria. This compensation is subject to annual review and modification by the Board of Directors. If Mr. Rosendales employment is terminated by the Company, he is entitled to receive a lump sum severance payment of $50,000. Andrew S. Maslan:  Mr. Maslans employment agreement, as amended, provides for his at-will employment as the Companys Chief Financial Officer. Effective October 1, 2008, Mr. Maslans annual salary was $200,000 and his target bonus percentage was 35%, depending on the achievement of performance criteria. This compensation is subject to annual review and modification by the Board of Directors. If Mr. Maslans employment is terminated by the Company without cause, he is entitled to receive his annual base salary and all other benefits for a period of six months on the same terms and schedules as existed
immediately prior to his termination. Additionally, unvested stock options will continue to vest during this six month period.
 65    TABLE OF CONTENTS Carelyn P. Fylling:  Ms. Fyllings employment agreement, as amended, provides for her at-will employment as the Companys VP of Professional Services. Effective October 1, 2008, Ms. Fyllings annual salary was $150,500 and her target bonus percentage was 35%, depending on the achievement of performance criteria. This compensation is subject to annual review and modification by the Board of Directors. Ms. Fylling may be entitled to certain compensation upon termination or change-in-control, not to exceed a lump sum payment equal to 11/12 of her annual base salary and a pro-rata bonus through her date of
termination. Kshitij Mohan:  Pursuant to a Termination and Consulting Agreement, Dr. Mohans employment was terminated, effective June 30, 2008. Under this agreement, Dr. Mohan or his estate is entitled to the following compensation: $500,000 to be paid in 24 equal monthly installments, beginning in July 2008, $5,000 toward legal fees incurred by Dr. Mohan related to this agreement, continuation of health benefits under the Companys health insurance plans through December 2009. Dr. Mohan is not entitled to any other compensation outside of this agreement. Outstanding Equity Awards at December 31, 2009  Option AwardsName

          

          Number of Securities Underlying Unexercised Options Exercisable(1)

          

          Number of Securities Underlying Unexercised Options Unexercisable

          

          Option Exercise Price

          

          Option Expiration DateMartin P. Rosendale

          

          

          80,000

          

          

          

          120,000 (2)

          

          

          $

          1.54

          

          

          

          3/14/2018100,000

          

          

          

          200,000 (3)

          

          

          $

          0.75

          

          

          

          9/19/201866,667

          

          

          

          133,333 (4)

          

          

          $

          0.40

          

          

          

          12/16/2018100,000

          

          

          

          65,000 (5)

          

          

          $

          0.56

          

          

          

          9/18/2019Kshitij Mohan

          

          

          490,000

          

          

          

          

          

          

          $

          1.50

          

          

          

          4/20/2014500,000

          

          

          

          

          

          

          $

          2.24

          

          

          

          4/20/2014100,000

          

          

          

          

          

          

          $

          2.24

          

          

          

          6/6/2015100,000

          

          

          

          

          

          

          $

          2.24

          

          

          

          8/17/201659,310

          

          

          

          

          

          

          $

          1.50

          

          

          

          1/25/201830,000

          

          

          

          

          

          

          $

          1.50

          

          

          

          1/25/2018Andrew S. Maslan

          

          

          60,000

          

          

          

          

          

          

          $

          5.07

          

          

          

          1/11/201640,000

          

          

          

          

          

          

          $

          2.52

          

          

          

          3/16/201650,000

          

          

          

          

          

          

          $

          2.73

          

          

          

          10/11/201613,334

          

          

          

          6,666 (6)

          

          

          $

          0.88

          

          

          

          7/27/201733,334

          

          

          

          66,666 (7)

          

          

          $

          0.70

          

          

          

          9/18/201835,000

          

          

          

          

          

          

          $

          0.60

          

          

          

          5/13/2019

          

          

          

          30,000 (8)

          

          

          $

          0.62

          

          

          

          9/17/2019Carelyn P. Fylling

          

          

          250,000

          

          

          

          

          

          

          $

          1.50

          

          

          

          8/7/201219,077

          

          

          

          

          

          

          $

          1.25

          

          

          

          10/21/201320,000

          

          

          

          

          

          

          $

          2.40

          

          

          

          1/11/201613,334

          

          

          

          6,666 (6)

          

          

          $

          0.88

          

          

          

          7/27/201710,000

          

          

          

          20,000 (9)

          

          

          $

          0.70

          

          

          

          9/18/201815,000

          

          

          

          

          

          

          $

          0.60

          

          

          

          5/13/2019

          

          

          

          30,000 (8)

          

          

          $

          0.62

          

          

          

          9/17/2019
  (1)

          All options are fully vested. (2)

          Options vest as follows: 60,000 each on 3/24/2010 and 3/24/2011. (3)

          Options vest as follows: 100,000 each on 1/1/2010 and 1/1/2011. (4)

          Options vest as follows: 66,667 on 1/1/2010 and 66,666 on 1/1/2011. (5)

          Options vest as follows: 21,667 each on 9/18/2010 and 9/18/2011, and 21,666 on 9/18/2012. (6)

          Options vest on 7/27/2010. (7)

          Options vest as follows: 33,333 each on 1/1/2010 and 1/1/2011. (8)

          Options vest as follows: 10,000 each on 9/17/2010, 9/17/2011, and 9/17/2012. (9)

          Options vest as follows: 10,000 each on 1/1/2010 and 1/1/2011.
 66    TABLE OF CONTENTS Director Compensation For service during 2009, each non-employee director was entitled to and received options to purchase 30,000 shares of the Companys Common stock and, in addition, the Presiding Director and Acting Chairman of the Board and each committee chair was entitled to and received options to purchase 10,000 shares of the Companys Common stock; Director Compensation in 2009  Name

          

          Fees Earned or Paid in Cash

          

          Option Awards(1)

          

          All Other Compensation

          

          TotalJames S. Benson

          

          $

          15,000

          

          

          $

          12,826

          

          

          $

          

          

          

          $

          27,826David P. Crews(2)

          

          $

          11,000

          

          

          $

          9,620

          

          

          $

          

          

          

          $

          16,611Stephen N. Keith

          

          $

          13,500

          

          

          $

          12,826

          

          

          $

          

          

          

          $

          26,326Mark T. McLoughlin

          

          $

          13,500

          

          

          $

          12,826

          

          

          $

          

          

          

          $

          26,326Craig B. Mendelsohn(3)

          

          $

          

          

          

          $

          2,206

          

          

          $

          

          

          

          $

          2,206C. Eric Winzer

          

          $

          15,000

          

          

          $

          11,006

          

          

          $

          

          

          

          $

          26,006David E. Jorden(4)

          

          $

          

          

          

          $

          17,074

          

          

          $

          105,000

          

          

          $

          112,803
  (1)

          At December 31, 2009, the following number of stock options remained unexercised by non-employee directors as follows: Benson  230,000, Crews  367,500, Keith  40,000, McLoughlin  230,000, Mendelsohn  5,000, Winzer  40,000. Assumptions used to determine the grant date fair value of option awards may be found in Note 3 to the Financial Statements. (2)

          Effective July 28, 2009, Mr. Crews resigned as Director. (3)

          Effective November 12, 2009, the Board appointed Dr. Mendelsohn to serve as Director and awarded him options to purchase 5,000 shares of the Companys Common stock. (4)

          Mr. Jorden is an executive member of management in addition to serving on the Board. He is not compensated for his Board service. The amount in the Option Awards column represents the grant date fair value of 30,000 options granted during 2009. The amount in the All Other Compensation column represents his cash compensation as an employee in 2009. Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters Securities Authorized for Issuance under Equity Compensation Plans The Company maintains a Long-Term Incentive Plan approved by its shareholders that authorizes awards representing up to 6,500,000 shares of Common stock.
 67    TABLE OF CONTENTS Equity Compensation Plan Information as of December 31, 2009  Plan Category

          

          Number of Securities to Be Issued Upon Exercise of OutstandingOptions, Warrants, and Rights (a)

          

          Weighted Average Exercise Price of Outstanding Options, Warrants, and Rights (b)

          

          Number of Securities Remaining Available for Future Issuance (c)Equity compensation plans approved by security holders

          

          

          4,616,554

          

          

          $

          1.47

          

          

          

          1,387,246Equity compensation plans not approved by security holders(1)

          

          

          2,224,632

          

          

          $

          1.55

          

          

          

          n/aTotal

          

          

          6,841,186

          

          

          $

          1.50

          

          

          

          1,387,246
  (1)

          These amounts represent the aggregate of individual compensation arrangements with external service providers. As of December 31, 2009, 496,200 shares of Common stock have been issued upon exercise of options granted pursuant to the Long Term Incentive Plan. Security Ownership of Management The following table sets forth information regarding the ownership of the Companys Common stock as of March 15, 2010 by: (i) each director; (ii) each of the Named Executive Officers in the Summary Compensation Table; and (iii) all executive officers and directors of the Company as a group. As of March 15, 2010, there are 37,284,206 shares of Common stock issued and outstanding.  Name of Beneficial Owner(11)

          

          Amount and Nature of Beneficial Ownership(1)

          

          Percent of Class(1)James S. Benson

          

          

          246,667

          (2)

          

          

          *Carelyn P. Fylling

          

          

          341,709

          (3)

          

          

          *David E. Jorden

          

          

          4,314,426

          (4)

          

          

          11.4

          %Stephen N. Keith

          

          

          56,667

          (5)

          

          

          *Andrew S. Maslan

          

          

          335,901

          (6)

          

          

          *Mark T. McLoughlin

          

          

          266,668

          (7)

          

          

          *Craig B. Mendelsohn

          

          

          17,500

          (8)

          

          

          *Martin P. Rosendale

          

          

          667,285

          (9)

          

          

          1.8

          %C. Eric Winzer

          

          

          56,667

          (10)

          

          

          *Group consisting of Benson, Fylling, Jorden, Keith, Maslan, McLoughlin, Mendelsohn, Rosendale, and Winzer

          

          

          6,303,490

          

          

          

          15.9

          %
  *

          Less than 1%. (1)

          For purposes of determining the amount of securities beneficially owned, share amounts include all Common stock owned outright plus all shares of Common stock issuable upon conversion of convertible notes, or the exercise of options or warrants currently exercisable, or exercisable within 60 days after the preparation of this table. The Percent of Class is based on the number of shares of the Companys Common stock outstanding as of March 15, 2010, which was 37,284,206. Shares of Common stock issuable upon conversion of convertible notes, or the exercise of options or warrants currently exercisable, or exercisable within 60 days after the preparation of this table, are deemed outstanding for the purpose of computing the percentage ownership of the person holding such options or warrants, but are not deemed outstanding for computing the percentage ownership of any other persons. (2)

          Includes 246,667 shares Mr. Benson may acquire upon the exercise of stock options. (3)

          Includes 337,411 shares Ms. Fylling may acquire upon the exercise of stock options. (4)

          Includes 408,006 shares Mr. Jorden may acquire upon the exercise of stock options or warrants. (5)

          Includes 56,667 shares Dr. Keith may acquire upon the exercise of stock options.
 68    TABLE OF CONTENTS (6)

          Includes 279,401 shares Mr. Maslan may acquire upon the exercise of stock options or warrants. (7)

          Includes 253,334 shares Mr. McLoughlin may acquire upon the exercise of stock options or warrants. (8)

          Includes 17,500 shares Dr. Mendelsohn may acquire upon the exercise of stock options. (9)

          Includes 598,751 shares Mr. Rosendale may acquire upon the exercise of stock options or warrants and 10,000 shares which are held by Mr. Rosendales spouse. (10)

          Includes 56,667 shares Mr. Winzer may acquire upon the exercise of stock options. Mr. Winzer disclaims beneficial ownership to acquire 6,667 shares of common stock of the Company, which options have been transferred to his ex-spouse pursuant to a domestic relations order. (11)

          All addresses are c/o Cytomedix, Inc., 416 Hungerford Drive, Suite 330, Rockville, MD 20850. There are no arrangements, known to the Company, including any pledge by any person of securities of the registrant, the operation of, which may, at a subsequent date, result in a change of control of the registrant. Item 13. Certain Relationships and Related Transactions, and Director Independence On June 10, 2008, the Company filed a Current Report on Form 8-K, disclosing, among other things, the terms and provisions of the Termination and Consulting Agreement by and between the Company and Kshitij Mohan, the Companys former CEO and Chairman. The 8-K discussion is incorporated by reference herein. Review and Approval Policies and Procedures for Related Party Transactions Pursuant to Board policy, the Companys executive officers and directors, and principal stockholders, including their immediate family members and affiliates, are not permitted to enter into a related party transaction without the prior consent of the Audit Committee. Any request for such related party transaction with an executive officer, director, principal stockholder, or any of such persons immediate family members or affiliates, in which the amount involved exceeds $120,000 must first be presented to the Audit Committee for review, consideration and approval. All of the Companys directors, executive officers and employees are
required to report to the Audit Committee any such related party transaction. In approving or rejecting the proposed agreement, the Audit Committee will consider the relevant facts and circumstances available and deemed relevant to the Audit Committee which will approve only those agreements that, in light of known circumstances, are in, or are not inconsistent with, the Companys best interests, as the Audit Committee determines in the good faith exercise of its discretion. Director Independence The Company has the following directors: James S. Benson, David E. Jorden, Stephen N. Keith, Mark T. McLoughlin, Craig B. Mendelsohn, Martin P. Rosendale, and C. Eric Winzer. Each of these directors is independent as defined by the listing standards of the NYSE Amex Company Guide, with the exception of Messrs. Rosendale and Jorden, who, in addition to serving on the Board, also serve as the Companys Chief Executive Officer and Executive Director, respectively. Neither of these gentlemen serves on the Audit, Nominating and Governance, or Compensation Committees. The Board based its independent determinations primarily on a review of the responses
of the directors and executive officers to questions regarding employment and transaction history, affiliations and family and other relationships and on discussions with the directors. None of our directors engages in any transaction, relationship, or arrangement contemplated under section 404(a) of Regulation S-K.
 69    TABLE OF CONTENTS Item 14. Principal Accounting Fees and Services The following table presents fees for professional services rendered by PricewaterhouseCoopers, LLP for the fiscal years 2009 and 2008:  Services Performed

          

          2009

          

          2008Audit fees(1)

          

          $

          290,000

          

          

          $

          310,683Audit-related fees(2)

          

          

          20,000

          

          

          

          Tax fees(3)

          

          

          25,123

          

          

          

          27,600All other fees(4)

          

          

          

          

          

          

          Total Fees

          

          $

          335,123

          

          

          $

          338,283
  (1)

          Audit fees represent fees billed for professional services provided in connection with the audit of the Companys annual financial statements, reviews of its quarterly financial statements, and audit services provided in connection with statutory and regulatory filings for those years. (2)

          Audit-related fees represent fees billed primarily for assurance and related services not reported under Audit fees. (3)

          Tax fees principally represent fees billed for tax preparation, tax advice and tax planning services. (4)

          All other fees principally would include fees billed for products and services provided by the accountant, other than the services reported under the three captions above. Pursuant to its charter, the Audit Committee must pre-approve audit services and permitted non-audit services (including the fees and terms thereof) to be performed for the Company by its independent auditor. In 2009 and 2008, all such services were pre-approved by the Audit Committee. Audit Committee Pre-Approval Policies and Procedures The Audit Committee has the sole authority to pre-approve all audit and non-audit services provided by independent accountants. The Audit Committee has adopted policies and procedures for the pre-approval of services provided by the independent accountants. The Audit Committee, on an annual basis, reviews audit and non-audit services performed by the independent accountants. All audit and non-audit services are pre-approved by the Audit Committee, which considers, among other things, the possible effect of the performance of such services on the accountants independence. All requests for services to be provided by the independent accountants,
which must include a description of the services to be rendered and the amount of corresponding fees, are submitted to the Chief Financial Officer. The CFO has the authority to authorize services that fall within the category of services that the Audit Committee has pre-approved. If there is any question as to whether a request for services falls within the category of services that the Audit Committee has pre-approved, the CFO will consult with the chairman of the Audit Committee. The CFO submits requests or applications to provide services that the Audit Committee has not pre-approved, which must include an affirmation by the CFO and the independent accountants, that the request or application is consistent with the SECs rules on auditor independence, to the Audit Committee (or its chairman or any of its other members pursuant to delegated authority) for approval. As permitted under the Sarbanes-Oxley Act of 2002, the Audit Committee may delegate pre-approval authority to one or more of its members. Any service pre-approved by a delegate must be reported to the Audit Committee at the next scheduled quarterly meeting. The Audit Committee considered whether the provision of the auditors services, other than for the annual audit and quarterly reviews, is compatible with its independence and concluded that it is compatible.
 70    TABLE OF CONTENTS PART IV Item 15. Exhibits and Financial Statement Schedules (a) 1. Financial Statements The following financial statements of Cytomedix, Inc. are included in Item 8:  PageReport of Independent Registered Public Accounting Firm





31Balance Sheets





32Statements of Operations





33Statements of Stockholders Equity





34Statements of Cash Flows





35Notes to Financial Statements





36
 2. Schedule II  Valuation and Qualifying Accounts See Footnotes to Financial Statements in ITEM 8 of this report, other than those listed in the table below.  Balance at Beginning of Period

          

          Charged to Costs and Expenses

          

          Deductions(1)

          

          Balance at End of PeriodYear Ended December 31, 2009Allowance for doubtful accounts

          

          $

          26,000

          

          

          $

          20,000

          

          

          $

          (26,000

          )

          

          $

          20,000Valuation allowance for deferred tax assets

          

          $

          14,707,000

          

          

          $

          1,335,000

          

          

          $

          

          

          

          $

          16,042,000Year Ended December 31, 2008Allowance for doubtful accounts

          

          $

          140,000

          

          

          $

          3,000

          

          

          $

          (117,000

          )

          

          $

          26,000Valuation allowance for deferred tax assets

          

          $

          12,326,000

          

          

          $

          2,381,000

          

          

          $

          

          

          

          $

          14,707,000
  (1)

          Reflects receivables written off as uncollectible. (b) Exhibits For a list of exhibits filed with this Form 10-K, refer to the Exhibit Index beginning on page 73.
 71    TABLE OF CONTENTS SIGNATURES In accordance with Section 13 or 15(d) of the Exchange Act, the registrant caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. CYTOMEDIX, INC. Date: January 7, 2011 /s/ Martin P. RosendaleMartin P. Rosendale CEO and Director (Principal Executive Officer) In accordance with the Exchange Act, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. Date: January 7, 2011 /s/ Martin P. RosendaleMartin P. Rosendale CEO and Director Date: January 7, 2011 /s/ Andrew S. MaslanAndrew S. Maslan Chief Financial Officer (Principal Financial and Accounting Officer) Date: January 7, 2011 /s/ James S. BensonJames S. Benson Presiding Director and Acting Chairman of the Board Date: January 7, 2011 /s/ David E. JordenDavid E. Jorden Director Date: January 7, 2011 /s/ Stephen N. KeithStephen N. Keith Director Date: January 7, 2011 /s/ Mark T. McLoughlinMark T. McLoughlin Director Date: January 7, 2011 /s/ Craig B. MendelsohnCraig B. Mendelsohn Director Date: January 7, 2011 /s/ C. Eric WinzerC. Eric Winzer Director Signed originals of this written statement have been provided to Cytomedix, Inc. and will be retained by Cytomedix, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.
 72    TABLE OF CONTENTS EXHIBIT INDEX  Number

          

          Exhibit Table2.1

          

          First Amended Plan of Reorganization with All Technical Amendments (Previously filed on June 28, 2002, as exhibit to Current Report on Form 8-K, File No. 000-28443).2.2

          

          Amended and Restated Official Exhibits to the First Amended Plan of Reorganization of Cytomedix, Inc. with All Technical Amendments (Previously filed on May 10, 2004, as exhibit to Form 10-QSB for the quarter ended March 31, 2004, File No. 000-28443).3(i)

          

          Restated Certificate of Incorporation of Cytomedix, Inc. (Previously filed on November 7, 2002, as exhibit to Form 10-QSB for quarter ended June 30, 2001, File No. 000-28443).3(i)(1)

          

          Amendment to Restated Certificate of Incorporation of Cytomedix, Inc. (Previously filed on November 15, 2004, as exhibit to Form 10-QSB for quarter ended September 30, 2004, File No. 000-28443).3(ii)

          

          Restated Bylaws of Cytomedix, Inc. (Previously filed on November 7, 2002, as exhibit to Form 10-QSB for quarter ended June 30, 2001, File No. 000-28443).4.1

          

          Amended and Restated Certificate of Designation of the Relative Rights and Preferences of Series A Preferred, Series B Preferred and Common stock of Cytomedix, Inc. (Previously filed on March 31, 2004, as exhibit to Form 10-KSB for year ended December 31, 2003, File No. 000-28443).4.2

          

          Form of Class A Warrant issued to New Investors and DIP Lenders (Previously filed on December 5, 2002, as exhibit to Form 10-QSB for quarter ended September 30, 2001, File No. 000-28443).4.3

          

          Form of Class B Warrant issued to New Investors and DIP Lenders (Previously filed on December 5, 2002, as exhibit to Form 10-QSB for quarter ended September 30, 2001, File No. 000-28443).4.4

          

          Form of Series C-1 Warrant to Purchase Shares of Common stock of Cytomedix, Inc. (Previously filed on March 29, 2004 as exhibit to Current Report on Form 8-K, File No. 000-28443.)4.5

          

          Form of Series C-2 Warrant to Purchase Shares of Common stock of Cytomedix, Inc. (Previously filed on March 29, 2004 as exhibit to Current Report on Form 8-K, File No. 000-28443).4.6

          

          Certificate of Designation of the Relative Rights and Preferences of the Series C Convertible Stock of Cytomedix, Inc. as filed with the Delaware Secretary of State on March 25, 2004 (Previously filed on March 29, 2004 as exhibit to Current Report on Form 8-K, File No. 000-28443).4.7

          

          Form of warrant issued to investors in the 2004 Unit Offering (Previously filed on May 11, 2004, as exhibit to the registration statement on Form SB-2, File No. 333-115364).4.8

          

          Form of Class D Warrant to Purchase Shares of Common stock of Cytomedix, Inc. (Previously filed on May 2, 2005, as exhibit to Current Report on Form 8-K, File No. 001-32518).4.9

          

          Form of Registration Rights Agreement between Cytomedix, Inc., and Class D Warrantholders (Previously filed on May 2, 2005, as exhibit to Current Report on Form 8-K, File No. 001-32518).10.1

          

          Royalty Agreement, dated as of December 26, 2000, by and between Cytomedix, Inc. and Curative Health Services, Inc. (Previously filed on January 17, 2001, as exhibit to Current Report on Form 8-K, File No. 000-28443).10.2

          

          First Amendment to Royalty Agreement, dated as of April 20, 2001, by and between Cytomedix, Inc. and Curative Health Services, Inc. (Previously filed on May 25, 2001, as exhibit to the registration statement on Form SB-2/A, File No. 333-55818).10.3

          

          Second Amendment to Royalty Agreement, dated as of December 5, 2002, by and between Cytomedix, Inc. and Curative Health Services, Inc. (Previously filed on March 31, 2003, as exhibit to Form 10-KSB for year ended December 31, 2002, File No. 000-28443).
 73    TABLE OF CONTENTS Number

          

          Exhibit Table10.4

          

          Cytomedix, Inc. Long-Term Incentive Plan. (Previously filed on February 26, 2007, on Form 10-K for year ended December 31, 2006, File No. 001-32518).*10.5

          

          License Agreement dated March 21, 2001, by and between Cytomedix, Inc. and DePuy AcroMed, Inc. (Previously filed on April 16, 2001, as exhibit to Form 10-KSB for year ended December 31, 2000, File No. 000-28443).10.6

          

          Amendment dated March 3, 2005, to the License Agreement by and between Cytomedix, Inc. and DePuy Spine, Inc. (f/k/a DePuy Acromed, Inc.) (Previously filed on March 31, 2005, as exhibit to Form 10-KSB for year ended December 31, 2004, File No. 000-28443).10.7

          

          Second License Agreement dated March 3, 2005, to the License Agreement by and between Cytomedix, Inc. and DePuy Spine, Inc. (f/k/a DePuy Acromed, Inc.) (Previously filed on March 31, 2005, as exhibit to Form 10-KSB for year ended December 31, 2004, File No. 000-28443).10.8

          

          Settlement and License Agreement dated May 1, 2005 by and between Cytomedix, Inc. and Medtronic, Inc. (Previously filed on May 10, 2005, as exhibit to Current Report on Form 8-K, File No. 000-28443).10.9

          

          Settlement Agreement and License Agreement dated May 23, 2005, by and between Cytomedix, Inc., and Harvest Technologies Corporation (Previously filed on May 27, 2005, as exhibit to Current Report on Form 8-K, File No. 000-28443).10.10

          

          Settlement and License Agreement dated June 26, 2005, by and between Cytomedix, Inc., and Perfusion Partners and Associates Inc. (Previously filed on August 15, 2005, as exhibit to Form 10-QSB for the quarter ended June 20, 2005, File No. 000-28443).10.11

          

          License Agreement dated October 7, 2005, by and between Cytomedix, Inc., and COBE Cardiovascular, Inc. (Previously filed on October 11, 2005, as exhibit to Current Report on Form 8-K, File No. 000-28443).10.12

          

          Settlement and License Agreement dated October 12, 2005, by and between Cytomedix, Inc., and SafeBlood Technologies, Inc. (Previously filed on November 9, 2005, as exhibit to Form 10-QSB, File No. 000-28443).10.13

          

          Employment Agreement with Ms. Carelyn P. Fylling (Previously filed on December 5, 2002, as exhibit to Form 10-QSB for quarter ended September 30, 2001, File No. 000-28443).*10.14

          

          Employment Agreement with Kshitij Mohan, Ph.D., dated April 20, 2004 (Previously filed on May 7, 2004, on Current Report on Form 8-K, File No. 00028443).*10.15

          

          Termination Agreement between Cytomedix, Inc., and Kshitij Mohan, dated April 20, 2004 (Previously filed on May 7, 2004, as exhibit to Current Report on Form 8-K, File No. 000-28443).*10.16

          

          Employment Agreement dated June 3, 2005, by and between Cytomedix, Inc., and Andrew Maslan (Previously filed on June 20, 2005, as exhibit to Current Report on Form 8-K, File No. 000-28443).*10.17

          

          Distributor Agreement dated October 31, 2005 by and between Cytomedix, Inc. and National Wound Therapies, LLC. (Previously filed on March 23, 2006, as exhibit to Form 10-KSB, File No. 001-32518).10.18

          

          Settlement and License Agreement dated May 19, 2006, between Cytomedix, Inc., and Biomet Biologics, Inc. (Previously filed on August 9, 2006, as exhibit to Form 10-Q, File No. 001-32518).10.19

          

          First Addendum to Letter Agreement dated October 4, 2006, between Cytomedix, Inc., and Andrew Maslan (Previously filed on November 1, 2006 as exhibit to Form 10-Q, File No. 001-32518).*10.20

          

          License Agreement between Cytomedix, Inc., and Smith & Nephew, Inc. (Previously filed on October 15, 2007 as exhibit to Current Report on Form 8-K, File No 001-32518).
 74    TABLE OF CONTENTS Number

          

          Exhibit Table10.21

          

          First Amendment to Employment Agreement by and between the Company and Kshitij Mohan (previously filed on January 29, 2008 as exhibit to Current Report on Form 8-K, File No. 001-32518).*10.22

          

          Letter Agreement by and between the Company and Martin Rosendale, dated as of March 14, 2008 (previously filed on March 17, 2008 as exhibit to Current Report on Form 8-K, File No. 001-32518).*10.23

          

          Kshitij Mohan Termination and Consulting Agreement (previously filed on June 10, 2008 as exhibit to Current Report on Form 8-K, File No. 001-32518).*10.24

          

          Form of Securities Purchase Agreement (previously filed on August 26, 2008 as exhibit to Current Report on Form 8-K, File No. 001-32518).10.25

          

          Form Warrant (previously filed on August 12, 2009 as exhibit to Current Report on Form 8-K, File No. 001-32518).10.26

          

          Form Securities Purchase Agreement (previously filed on August 12, 2009 as exhibit to Current Report on Form 8-K, File No. 001-32518).23.1

          

          Consent of PricewaterhouseCoopers, LLP.31.1

          

          Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.31.2

          

          Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.32.1

          

          Certificate of Chief Executive Officer pursuant to 18 U.S.C.ss.1350.32.2

          

          Certificate of Chief Financial Officer pursuant to 18 U.S.C.ss.1350.
  *

          Indicates a management contract or compensatory plan or arrangement.
 75