EXHIBIT 10.1
July 24,
2009
President and Chief Executive
Officer
11726 San Vicente Blvd., Suite
650
Dear
Steve:
This letter (the “ Agreement
”) constitutes the agreement between Rodman & Renshaw,
LLC (“ Rodman ” or the “ Placement
Agent ”) and CytRx Corporation (the “
Company ”), that Rodman 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, par value $0.001 per share (the “ Common
Stock ”) and potentially warrants to purchase shares of
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
Rodman 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 Rodman’s obligations hereunder are on a reasonable best
efforts basis only and that the execution of this Agreement does
not constitute a commitment by Rodman to purchase the Securities
and does not ensure the successful placement of the Securities or
any portion thereof or the success of Rodman 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
Rodman hereunder, the Company agrees to pay to Rodman:
(A) The
fees set forth below with respect to the Placement:
1. A cash fee payable
immediately upon the closing of the Placement and equal to 6% of
the aggregate gross proceeds raised in the Placement.
2. Such number of
warrants (the “Rodman Warrants”) to Rodman or its
designees at the Closing to purchase shares of Common Stock equal
to 6% of the aggregate number of Shares sold in the
Placement. The Rodman Warrants shall have the same
terms, including the same exercise price, as the warrants (if any)
issued to the Purchasers in the Placement, except that the exercise
price of the Rodman Warrants shall not be less than 125% of the
public offering price per share and the Rodman Warrants shall have
a term of five (5) years from the effective date of the
Registration Statement (i.e. December 17, 2012). If no
warrants are issued to Purchasers in the Placement, the exercise
price of the Rodman Warrants shall be 150% of the public offering
price per share. The Rodman Warrants shall not have
antidilution protections, and further, the number of Shares
underlying the Rodman Warrants shall be reduced if necessary to
comply with Financial Industry Regulatory Authority (“
FINRA ”) rules or regulations.
(B) The
Company also agrees to reimburse Rodman’s expenses (with
supporting invoices/receipts) up to a maximum of 0.80% of the
aggregate gross proceeds raised in the placement, but in no event
more than $35,000. 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:
(A) The
Company has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3
(Registration File No. 333-147605) under the Securities Act of
1933, as amended (the “Securities Act”), which became
effective on December 14, 2007, 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 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 . Except as set forth under
the corresponding section of the Disclosure Schedules which
Disclosure Schedules shall be deemed a part hereof, the Company
hereby makes the representations and warranties set forth below to
the Placement Agent.
(A)
Organization and Qualification . All of the
direct subsidiaries (individually, a “ Subsidiary
”) of the Company are set forth on Schedule
3(A). The Company owns, directly or indirectly, all of
the capital stock or other equity interests of each Subsidiary free
and clear of any “ Liens ” (which for purposes
of this Agreement
shall mean a
lien, charge, security interest, encumbrance, right of first
refusal, preemptive right or other restriction), and all the issued
and outstanding shares of capital stock of each Subsidiary are
validly issued and are fully paid, non-assessable and free of
preemptive and similar rights to subscribe for or purchase
securities. The Company and each of the Subsidiaries is
an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of
its incorporation or organization (as applicable), with the
requisite power and authority to own and use its properties and
assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in
violation or default of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other
organizational or charter documents. Each of the Company
and the Subsidiaries is duly qualified to conduct business and is
in good standing as a foreign corporation or other entity in each
jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the
case may be, could not have or reasonably be expected to result in
(i) a material adverse effect on the legality, validity or
enforceability of any Transaction Document, (ii) a material adverse
effect on the results of operations, assets, business, prospects or
condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, or (iii) a material adverse effect
on the Company’s ability to perform in any material respect
on a timely basis its obligations under any Transaction Document
(any of (i), (ii) or (iii), a “ Material Adverse
Effect ”) and no “ Proceeding ” (which
for purposes of this Agreement shall mean any action, claim, suit,
investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition), whether
commenced or threatened) has been instituted in any such
jurisdiction revoking, limiting or curtailing or seeking to revoke,
limit or curtail such power and authority or
qualification.
(B)
Authorization; Enforcement . The Company has the
requisite corporate power and authority to enter into and to
consummate the transactions contemplated by each of the Transaction
Documents and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of each of the
Transaction Documents by the Company and the consummation by it of
the transactions contemplated thereby have been duly authorized by
all necessary action on the part of the Company and no further
action is required by the Company, its board of directors or its
stockholders in connection therewith other than in connection with
the “ Required Approvals ” (as defined in
subsection 3(D) below). Each Transaction Document has
been (or upon delivery will have been) duly executed by the Company
and, when delivered in accordance with the terms hereof and
thereof, will constitute the valid and binding obligation of the
Company enforceable against the Company in accordance with its
terms except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally and (ii)
as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable
remedies.
(C)
No Conflicts . The execution, delivery and
performance of the Transaction Documents by the Company, the
issuance and sale of the Securities and the consummation by the
Company of the other transactions contemplated hereby and thereby
do not and will not (i) conflict with or violate any provision of
the Company’s or any Subsidiary’s certificate or
articles of incorporation, bylaws or other organizational or
charter documents, or (ii) conflict with, or constitute a default
(or an event that with notice or lapse of time or both would become
a default) under, result in the creation of any Lien upon any of
the properties or assets of the Company or any Subsidiary, or give
to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of,
any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or
by which any property or asset of the Company or any Subsidiary is
bound or affected, or (iii) subject to the Required Approvals,
conflict with or result in a violation of any law, rule,
regulation, order, judgment, injunction, decree or other
restriction of any court or governmental authority to which the
Company or a Subsidiary is subject (including federal and state
securities laws and regulations), or by which any property or asset
of the Company or a Subsidiary is bound or affected; except in the
case of each of clauses (ii) and (iii), such as could not have or
reasonably be expected to result in a Material Adverse
Effect.
(D)Filings, Consents and
Approvals. The Company is not required to obtain any
consent, waiver, authorization or order of, give any notice to, or
make any filing or registration with, any court or other federal,
state, local or other governmental authority or other
“Person” (defined as an individual or corporation,
partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of
any kind, including, without limitation, any Trading Market) in
connection with the execution, delivery and performance by the
Company of the Transaction Documents, other than such filings as
are required to be made under applicable Federal and state
securities laws and the rules and regulation of any Trading Market
(collectively, the “Required Approvals”).
(E)
Issuance of the Securities; Registration . The
Securities are duly authorized and, when issued and paid for in
accordance with the applicable Transaction Documents, will be duly
and validly issued, fully paid and nonassessable, free and clear of
all Liens imposed by the Company other than restrictions on
transfer provided for in the Transaction Documents. The
Company has reserved from its duly authorized capital stock the
maximum number of shares of Common Stock issuable pursuant to the
Transaction Documents. The issuance by the Company of
the Securities has been registered under the Securities Act and all
of the Securities are freely transferable and tradable by the
Purchasers without restriction (other than any restrictions arising
solely from an act or omission of a Purchaser). The
Securities are being issued pursuant to the Registration Statement
and the issuance of the Securities has been registered by the
Company under the Securities Act. The Registration
Statement is effective and available for the issuance of the
Securities thereunder and the Company has not received any notice
that the Commission has issued or intends to issue a stop-order
with respect to the Registration Statement or that the Commission
otherwise has suspended or withdrawn the effectiveness of the
Registration Statement, either temporarily or permanently, or
intends or has threatened in writing to do so. The "Plan
of Distribution" section under the Registration Statement permits
the issuance and sale of the Securities hereunder. Upon
receipt of the Securities, the Purchasers will have good and
marketable title to such Securities and the Securities will be
freely tradable on the “ Trading Market ”
(which, for purposes of this Agreement shall mean means the
following markets or exchanges on which the Common Stock is listed
or quoted for trading on the date in question: the Nasdaq Capital
Market, the NYSE Alternext US, the New York Stock Exchange, the
Nasdaq National Market or the OTC Bulletin Board).
(F)Capitalization. The capitalization
of the Company is as set forth on Schedule 3(F). The
Company has not issued any capital stock since its most recently
filed periodic report under the Exchange Act, other than pursuant
to the exercise of employee stock options under the Company’s
stock option plans, the issuance of shares of Common Stock to
employees pursuant to the Company’s employee stock purchase
plan and pursuant to the conversion or exercise of securities
exercisable, exchangeable or convertible into Common Stock
(“Common Stock Equivalents”). No Person has
any right of first refusal, preemptive right, right of
participation, or any similar right to participate in the
transactions contemplated by the Transaction
Documents. Except as a result of the purchase and sale
of the Securities, there are no outstanding options, warrants,
script rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities, rights or
obligations convertible into or exercisable or exchangeable for, or
giving any Person any right to subscribe for or acquire, any shares
of Common Stock, or contracts, commitments, understandings or
arrangements by which the Company or any Subsidiary is or may
become bound to issue additional shares of Common Stock or Common
Stock Equivalents. The issuance and sale of the
Securities will not obligate the Company to issue shares of Common
Stock or other securities to any Person (other than the Purchasers)
and will not result in a right of any holder of Company securities
to adjust the exercise, conversion, exchange or reset price under
such securities. All of the outstanding shares of capital stock of
the Company are validly issued, fully paid and nonassessable, have
been issued in compliance with all federal and state securities
laws, and none of such outstanding shares was issued in violation
of any preemptive rights or similar rights to subscribe for or
purchase securities. There are no stockholders
agreements, voting agreements or other similar agreements with
respect to the Company’s capital stock to which the Company
is a party or, to the knowledge of the Company, between or among
any of the Company’s stockholders.
(G)
SEC Reports; Financial Statements . The Company
has complied in all material respects with requirements to file all
reports, schedules, forms, statements and other documents required
to be filed by it under the Securities Act and the Exchange Act,
including pursuant to Section 13(a) or 15(d) thereof, for the two
years preceding the date hereof (or such shorter period as the
Company was required by law to file such material) (the foregoing
materials, including the exhibits thereto and documents
incorporated by reference therein, being collectively referred to
herein as the “ SEC Reports ”) on a timely basis
or has received a valid extension of such time of filing and has
filed any such SEC Reports prior to the expiration of any such
extension. As of their respective dates, the SEC Reports
complied in all material respects with the requirements of the
Securities Act and the Exchange Act and the rules and regulations
of the Commission promulgated thereunder, and none of the SEC
Reports, when filed, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. The financial statements of the Company
included in the SEC Reports comply in all material respects with
applicable accounting requirements and the rules and regulations of
the Commission with respect thereto as in effect at the time of
filing. Such financial statements have been prepared in
accordance with United States generally accepted accounting
principles applied on a consistent basis during the periods
involved (“ GAAP ”), except as may be otherwise
specified in such financial statements or the notes thereto and
except that unaudited financial statements may not contain all
footnotes required by GAAP, and fairly present in all material
respects the financial position of the Company and its consolidated
subsidiaries as of and for the dates thereof and the results of
operations
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