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EXHIBIT 10.2
[RODMAN & RENSHAW LOGO]
September 19, 2006
CONFIDENTIAL
Richard J. Moran
Chief Financial Officer
Genta Incorporated
Two Connell Drive
Berkeley Heights, NJ 07922
Dear Mr. Moran:
This
letter (the "Agreement") constitutes the agreement between Rodman
&
Renshaw, LLC ("R&R" or the "Placement Agent") and Genta
Incorporated (the
"Company"), that R&R shall serve as the exclusive placement
agent for the
Company, on a "reasonable best efforts" basis, in connection with
the proposed
placement (the "Placement") of registered securities (the
"Securities") of the
Company, including shares (the "Shares") of the Company's common
stock (the
"Common Stock"). The terms of such Placement and the Securities
shall be
mutually agreed upon by the Company and the purchasers (each, a
"Purchaser" and
collectively, the "Purchasers") and nothing herein constitutes that
R&R would
have the power or authority to bind the Company or any Purchaser or
an
obligation for the Company to issue any Securities or complete the
Placement.
This Agreement and the documents executed and delivered by the
Company and the
Purchasers in connection with the Placement shall be collectively
referred to
herein as the "Transaction Documents." The date of the closing of
the Placement
shall be referred to herein as the "Closing Date." The Company
expressly
acknowledges and agrees that R&R's obligations hereunder are on
a reasonable
best efforts basis only and that the execution of this Agreement
does not
constitute a commitment by R&R to purchase the Securities and
does not ensure
the successful placement of the Securities or any portion thereof
or the success
of R&R with respect to securing any other financing on behalf
of the Company.
SECTION 1. Compensation and other Fees.
As
compensation for the services provided by R&R hereunder, the
Company
agrees to pay to R&R:
(A) The
fees set forth below with respect to the Placement:
A cash fee
payable immediately upon the closing of the Placement and equal
to 5% of
the aggregate gross proceeds raised in the Placement.
(B) The
Company also agrees to reimburse R&R's expenses (with
supporting
invoices/receipts) up to a maximum of $20,000. Such reimbursement
shall be
payable immediately upon (but only in the event of) the closing of
the
Placement.
SECTION 2. REGISTRATION STATEMENT.
The Company represents and warrants to, and agrees with, the
Placement Agent
that:
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Genta Incorporated
09/19/2006
Page 2
(A) The
Company has filed with the Securities and Exchange Commission
(the
"Commission") a registration statement on Form S-3 (Registration
File No.
333-114151 under the Securities Act of 1933, as amended (the
"Securities Act"),
which became effective on May 11, 2004, for the registration under
the
Securities Act of the Shares. At the time of such filing, the
Company met the
requirements of Form S-3 under the Securities Act. Such
registration statement
meets the requirements set forth in Rule 415(a)(1)(x) under the
Securities Act
and complies with said Rule. The Company will file with the
Commission pursuant
to Rule 424(b) under the Securities Act, and the rules and
regulations (the
"Rules and Regulations") of the Commission promulgated thereunder,
a supplement
to the form of prospectus included in such registration statement
relating to
the placement of the Shares and the plan of distribution thereof
and has advised
the Placement Agent of all further information (financial and
other) with
respect to the Company required to be set forth therein. Such
registration
statement, including the exhibits thereto, as amended at the date
of this
Agreement, is hereinafter called the "Registration Statement"; such
prospectus
in the form in which it appears in the Registration Statement is
hereinafter
called the "Base Prospectus"; and the supplemented form of
prospectus, in the
form in which it will be filed with the Commission pursuant to Rule
424(b)
(including the Base Prospectus as so supplemented) is hereinafter
called the
"Prospectus Supplement." Any reference in this Agreement to the
Registration
Statement, the Base Prospectus or the Prospectus Supplement shall
be deemed to
refer to and include the documents incorporated by reference
therein (the
"Incorporated Documents") pursuant to Item 12 of Form S-3 which
were filed under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on or
before the date of this Agreement, or the issue date of the Base
Prospectus or
the Prospectus Supplement, as the case may be; and any reference in
this
Agreement to the terms "amend," "amendment" or "supplement" with
respect to the
Registration Statement, the Base Prospectus or the Prospectus
Supplement shall
be deemed to refer to and include the filing of any document under
the Exchange
Act after the date of this Agreement, or the issue date of the Base
Prospectus
or the Prospectus Supplement, as the case may be, deemed to be
incorporated
therein by reference. All references in this Agreement to financial
statements
and schedules and other information which is "contained,"
"included,"
"described," "referenced," "set forth" or "stated" in the
Registration
Statement, the Base Prospectus or the Prospectus Supplement (and
all other
references of like import) shall be deemed to mean and include all
such
financial statements and schedules and other information which is
or is deemed
to be incorporated by reference in the Registration Statement, the
Base
Prospectus or the Prospectus Supplement, as the case may be. No
stop order
suspending the effectiveness of the Registration Statement or the
use of the
Base Prospectus or the Prospectus Supplement has been issued, and
no proceeding
for any such purpose is pending or has been initiated or, to the
Company's
knowledge, is threatened by the Commission. For purposes of this
Agreement,
"free writing prospectus" has the meaning set forth in Rule 405
under the
Securities Act and the "Time of Sale Prospectus" means the
preliminary
prospectus, if any, together with the free writing prospectuses, if
any, used in
connection with the Placement, including any documents incorporated
by reference
therein.
(B) The
Registration Statement (and any further documents to be filed
with
the Commission) contains all exhibits and schedules as required by
the
Securities Act. Each of the Registration Statement and any
post-effective
amendment thereto, at the time it became effective, complied in all
material
respects with the Securities Act and the Exchange Act and the
applicable Rules
and Regulations and did not and, as amended or supplemented, if
applicable, will
not, contain any untrue statement of a material fact or omit to
state a material
fact required to be stated therein or necessary to make the
statements therein
not misleading. The Base Prospectus, the Time of Sale Prospectus,
if any, and
the Prospectus Supplement, each as of its respective date, comply
in all
material respects with the Securities Act and the Exchange Act and
the
applicable Rules and Regulations. Each of the Base Prospectus, the
Time of Sale
Prospectus, if any, and the Prospectus Supplement, as amended or
supplemented,
did not and will not contain as of the date thereof any untrue
statement of a
material fact or omit to state a material fact necessary in order
to make the
statements therein, in light of the circumstances under which they
were made,
not misleading. The Incorporated Documents, when they were filed
with the
Commission, conformed in all material respects to the
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Genta Incorporated
09/19/2006
Page 3
requirements of the Exchange Act and the applicable Rules and
Regulations, and
none of such documents, when they were filed with the Commission,
contained any
untrue statement of a material fact or omitted to state a material
fact
necessary to make the statements therein (with respect to
Incorporated Documents
incorporated by reference in the Base Prospectus or Prospectus
Supplement), in
light of the circumstances under which they were made not
misleading; and any
further documents so filed and incorporated by reference in the
Base Prospectus,
the Time of Sale Prospectus, if any, or Prospectus Supplement, when
such
documents are filed with the Commission, will conform in all
material respects
to the requirements of the Exchange Act and the applicable Rules
and
Regulations, as applicable, and will not contain any untrue
statement of a
material fact or omit to state a material fact necessary to make
the statements
therein, in light of the circumstances under which they were made,
not
misleading. No post-effective amendment to the Registration
Statement reflecting
any facts or events arising after the date thereof which represent,
individually
or in the aggregate, a fundamental change in the information set
forth therein
is required to be filed with the Commission. There are no documents
required to
be filed with the Commission in connection with the transaction
contemplated
hereby that (x) have not been filed as required pursuant to the
Securities Act
or (y) will not be filed within the requisite time period. There
are no
contracts or other documents required to be described in the Base
Prospectus,
the Time of Sale Prospectus, if any, or Prospectus Supplement, or
to be filed as
exhibits or schedules to the Registration Statement, which have not
been
described or filed as required.
(C) The
Company is eligible to use free writing prospectuses in
connection
with the Placement pursuant to Rules 164 and 433 under the
Securities Act. Any
free writing prospectus that the Company is required to file
pursuant to Rule
433(d) under the Securities Act has been, or will be, filed with
the Commission
in accordance with the requirements of the Securities Act and the
applicable
rules and regulations of the Commission thereunder. Each free
writing prospectus
that the Company has filed, or is required to file, pursuant to
Rule 433(d)
under the Securities Act or that was prepared by or behalf of or
used by the
Company complies or will comply in all material respects with the
requirements
of the Securities Act and the applicable rules and regulations of
the Commission
thereunder. The Company will not, without the prior consent of the
Placement
Agent, prepare, use or refer to, any free writing prospectus.
(D) The
Company has delivered, or will as promptly as practicable
deliver,
to the Placement Agent complete conformed copies of the
Registration Statement
and of each consent and certificate of experts, as applicable,
filed as a part
thereof, and conformed copies of the Registration Statement
(without exhibits),
the Base Prospectus, the Time of Sale Prospectus, if any, and the
Prospectus
Supplement, as amended or supplemented, in such quantities and at
such places as
the Placement Agent reasonably requests. Neither the Company nor
any of its
directors and officers has distributed and none of them will
distribute, prior
to the Closing Date, any offering material in connection with the
offering and
sale of the Shares other than the Base Prospectus, the Time of Sale
Prospectus,
if any, the Prospectus Supplement, the Registration Statement,
copies of the
documents incorporated by reference therein and any other materials
permitted by
the Securities Act.
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Company hereby makes
to the
Placement Agent all of the representations and warranties which the
Company is
making to the Purchasers in Section 3.1 of the Securities Purchase
Agreement
between the Company and each Purchaser, as if set forth in full
herein, plus the
following representation: There are no affiliations with any NASD
member firm
among the Company's officers, directors or, to the knowledge of the
Company, any
five percent (5%) or greater stockholder of the Company, except as
set forth in
the Base Prospectus.
SECTION 4. INDEMNIFICATION. The Company agrees to the
indemnification and other
agreements set forth in the Indemnification Provisions (the
"Indemnification")
attached hereto as Addendum A, the
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Genta Incorporated
09/19/2006
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provisions of which are incorporated herein by reference and shall
survive the
termination or expiration of this Agreement.
SECTION 5. ENGAGEMENT TERM. R&R's engagement hereunder will be
for the period of
10 days. Notwithstanding anything to the contrary contained herein,
the
provisions concerning confidentiality, indemnification,
contribution and the
Company's obligations to pay fees and reimburse expenses contained
herein and
the Company's obligations contained in the Indemnification
Provisions will
survive any expiration or te
