STOCK RESTRICTION AND REGISTRATION RIGHTS AGREEMENT
EXHIBIT 10.1
THIS STOCK RESTRICTION AND REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of July 16, 2002, by and among CYTRX CORPORATION, a Delaware corporation (the “Company”), and those
shareholders of GLOBAL GENOMICS CAPITAL, INC., a California corporation (“Seller”), appearing as signatories hereto (each, an “Investor” and collectively, the “Investors”).
R E C I T A L S
WHEREAS, pursuant to the terms of an Agreement and Plan of Merger, dated as of February 11, 2002 (as the same may be amended, the “Acquisition Agreement”), by and among the Company, GGC Merger Corporation, a California
corporation (“Sub”), and Seller, Sub shall be merged with and into Seller (the “Acquisition”), with the result that each of the outstanding shares of capital stock of Seller will be converted into the right to receive shares of
the common stock of the Company (the “Company Common Stock”); and
WHEREAS, the Company has agreed, as a
condition precedent to Seller’s obligations under the Acquisition Agreement, to grant the Investors certain registration rights; and
WHEREAS, the Company and the Investors desire to define such registration rights on the terms and subject to the conditions herein set forth.
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms have the respective meanings set forth below:
Commission: shall mean the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act;
Effective Date: shall mean the date on which the Acquisition is consummated;
Exchange Act: shall mean the Securities Exchange Act of 1934, as amended;
Holder: shall mean any holder of Registrable Securities;
Initiating Holder: shall mean any Holder or Holders who in the aggregate are Holders of a number of
Registrable Securities not less than the greater of (i) thirty percent (30%) of the then outstanding Registrable Securities and (ii) One Hundred Thousand (100,000) shares of Company Common Stock included in Registrable Securities;
Person: shall mean an individual, partnership,
limited liability company, joint stock company, corporation, trust or unincorporated organization, and a government or agency or political subdivision thereof;
Register, registered and registration: shall mean a registration effected by preparing and filing a registration statement in
compliance with the Securities Act (and any post-effective amendments filed or required to be filed) and the declaration or ordering of effectiveness of such registration statement;
Registrable Securities: shall mean (A) the shares of Company Common Stock (1) issued to the Investors under the Acquisition Agreement or
(2) issuable or issued upon the exercise of Converting Options (as defined in the Acquisition Agreement), and (B) any securities of the Company issued as a dividend or other distribution with respect to, or in exchange for or in replacement of, the
shares of Company Common Stock referred to in clause (A); provided, that Registrable Securities shall not include (i) securities which are registered for sale under a registration statement that has become effective under the Securities Act, (ii)
such securities as are eligible for sale pursuant to Rule 144 (or any successor provision thereto) under the Securities Act (“Rule 144”), or (iii) such securities as are acquired by the Company or any of its subsidiaries;
Registration Expenses: shall mean all expenses incurred by the Company in compliance with
Sections 3(a) and (b) hereof, including, without limitation, all registration and filing fees, printing expenses, fees and disbursements of counsel for the Company, blue sky fees and expenses and the expense of any special audits incident to or
required by any such registration (but excluding the compensation of regular employees of the Company, which shall be paid in any event by the Company);
Security, Securities: shall have the meaning set forth in Section 2(1) of the Securities Act;
Securities Act: shall mean the Securities Act of 1933, as amended; and
Selling Expenses: shall mean all underwriting discounts and selling commissions applicable to the sale
of Registrable Securities and all fees and disbursements of counsel for each of the Holders.
2. RESTRICTIONS ON TRANSFER
(a) Prior to any
proposed transfer of any Registrable Securities (other than under the circumstances described in Section 3 hereof), the Holder thereof shall give written notice to the Company of its intention to effect such transfer. Each such notice shall describe
the manner of the proposed transfer and, if requested by the Company, shall be accompanied by an opinion of counsel reasonably satisfactory to the Company to the effect that the proposed transfer may be effected without registration under the
Securities Act, whereupon such Holder shall be entitled to transfer the Registrable Securities in accordance with the terms of its notice. Each certificate or instrument transferred as above provided shall bear the legend set forth in Section 2(b),
except
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that such certificate or instrument shall not bear such legend if (i) such transfer is in accordance with the provisions
of Rule 144 (or any other rule permitting public sale without registration under the Securities Act) or (ii) the opinion of counsel referred to above is to the further effect that the transferee and any subsequent transferee would be entitled to
transfer such Registrable Securities in a public sale without registration under the Securities Act.
(b) Each certificate evidencing Registrable Securities issued to any Holder in connection with the Acquisition shall bear a legend in substantially the following form:
“THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES ACTS AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF
UNLESS THEY HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE SECURITIES ACTS OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.”
(c) In the event that any Registrable Shares shall cease to be subject to the restrictions on transfer set forth in this Agreement, the Company
shall, upon the written request of the Holder thereof, issue to such Holder a new certificate evidencing such Registrable Shares without the legend required by Section 2(b) hereof endorsed thereon.
3. REGISTRATION RIGHTS
(a) Requested Registration.
(i) Request for Registration. If the Company shall receive from an Initiating Holder, at any time on or after the Effective Date and prior to the second
anniversary of the Effective Date, a written request that the Company effect any registration with respect to all or a part of the Registrable Securities, the Company will:
(A) promptly give written notice of the proposed registration, qualification or compliance to all other Holders; and
(B) as soon as practicable, use commercially reasonable efforts to effect such registration (including,
without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the
Securities Act) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable
Securities of any Holder or Holders joining in such request as are specified in a written request received by the Company within ten business days after written notice from the Company is given under Section 3(a)(i)(A) above; provided that
the Company shall not be obligated to effect, or take any action to effect, any such registration pursuant to this Section 3(a):
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(u) If the Registrable Securities requested by all
Holders (including the Initiating Holder) to be registered pursuant to such request are less than five percent (5%) of the Company Common Stock issued in the Acquisition to the Investors;
(v) If the Company shall have previously effected an underwritten registration with respect to Registrable Securities pursuant to Section 3(b)
hereof, the Company shall not be required to effect any registration pursuant to this Section 3(a) until a period of 90 days shall have elapsed from the effective date of the most recent such previous registration;
(w) If, upon receipt of a registration request pursuant to this Section 3(a), the Company is advised in
writing (with a copy to each Initiating Holder) by a recognized national independent investment banking firm selected by the Company that, in such firm’s opinion, a registration at the time and on the terms requested would adversely affect any
public offering of securities of the Company by the Company (other than in connection with benefit and similar plans) or by or on behalf of any stockholder of the Company exercising a demand registration right (collectively, a “Company
Offering”) with respect to which the Company has commenced preparations for a registration prior to the receipt of a registration request pursuant to this Section 3(a), the Company shall not be required to effect a registration pursuant to this
Section 3(a) until the earlier of (i) 30 days after the completion of such Company Offering or (ii) promptly after any abandonment of such Company Offering; provided, however, that the periods during which the Company shall not be
required to effect a registration pursuant to this Section 3(a) together with any periods of suspension under Section 3(g) hereof may not exceed 90 days in the aggregate during any period of 12 consecutive months;
(x) In any particular jurisdiction in which the Company would be required to execute a general consent to
service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act or applicable rules or regulations thereunder;
(y) After the Company has effected three (3) such registrations pursuant to this
Section 3(a) (in the aggregate for all Holders) and such registrations have been declared or ordered effective; provided, that Holders shall not have the right to request an underwritten registration pursuant to this Section 3(a) more than one (1)
time in any six-month period.
The registration statement filed pursuant to the request of the Initiating Holders
may, subject to the provisions of Section 3(a)(ii) below, include other Securities of the Company which are held by Persons who, by virtue of agreements with the Company, are entitled to include their Securities in any such registration (“Other
Stockholders”).
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(ii) Underwriting. If
the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 3(a). If Other Stockholders request
inclusion in any such registration, the Holders shall offer to include the securities of such Other Stockholders in the underwriting and may condition such offer on their acceptance of the further applicable provisions of this Section 3. The Holders
whose shares are to be included in such registration and the Company shall (together with all Other Stockholders proposing to distribute their securities through such underwriting) enter into underwriting and related agreements in customary form
with the representative of the underwriter or underwriters selected for such underwriting by the Initiating Holders and reasonably acceptable to the Company. Such underwriting agreement will contain such representations and warranties by the Company
and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, indemnities and contribution to the effect and to the extent provided in Section 3(e)
hereof and the provision of opinions of counsel and accountants’ letters to the effect and to the extent provided in Section 3(d) hereof, and the representations and warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of the Holders. The Company shall cooperate fully with the Holders and the underwriters in connection with any underwritten offering. Notwithstanding any other provision of
this Section 3(a), if the representative advises the Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the securities of the Company held by Other Stockholders shall be excluded from such
registration to the extent so required by such limitation. If, after the exclusion of such shares, still further reductions are still required, the number of shares included in the registration by each Holder shall be reduced on a pro rata basis
(based on the number of shares held by such Holder), by such minimum number of shares as is necessary to comply with such request; provided, that there shall be no reduction in the number of shares included in the registration by any Holder until
all shares of Other Stockholders have been excluded from such registration. No Registrable Securities or any other securities excluded from the underwriting by reason of the underwriter’s marketing limitation shall be included in such
registration. If any Other Stockholder who has requested inclusion in such registration as provided above disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, the underwriter and
the Initiating Holder. The securities so withdrawn shall also be withdrawn from registration. If the underwriter has not limited the number of Registrable Securities or other securities to be underwritten, the Company and officers and directors of
the Company may include its or their securities for its or their own account in such registration if the representative so agrees and if the number of Registrable Securities and other securities which would otherwise have been included in such
registration and underwriting will not thereby be limited.
(b) Company
Registration.
(i) If the Company shall determine to register any of its equity
securities either for its own account or for the account of Other Stockholders, other than a registration relating solely to benefit plans, or a registration relating solely to a Commission Rule 145 transaction, or a registration on any registration
form which does not permit secondary sales or
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does not include substantially the same information as would be required to be included in a registration statement
covering the sale of Registrable Securities, the Company will:
(A) promptly give to
each of the Holders a written notice thereof (which shall include a list of the jurisdictions in which the Company intends to attempt to qualify such securities under the applicable blue sky or other state securities laws); and
(B) include in such registration (and any related qualification under blue sky laws or other
compliance), and in any underwriting involved therein, all the Registrable Securities specified in a written request or requests, made by any Holder within ten (10) business days after the giving of the written notice from the Company described in
clause (i) above, except as set forth in Section 3(b)(ii) below. Such written request shall specify the amount of Registrable Securities intended to be disposed of by a Holder and may specify all or a part of the Holders’ Registrable
Securities.
Notwithstanding the foregoing, if, at any time after giving such written notice of its intention to
effect such registration and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to register such equity securities the Company may, at its election,
give written notice of such determination to the Holders and thereupon the Company shall be relieved of its obligation to register such Registrable Securities in connection with the registration of such equity securities (but not from its obligation
to pay Registration Expenses to the extent incurred in connection therewith as provided herein), without prejudice, however, to the rights (if any) of Holders immediately to request that such registration be effected as a registration under Section
3(a) hereof.
(ii) Underwriting. If the registration of
which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise each of the Holders as a part of the written notice given pursuant to Section 3(b)(i)(A). In such event, the right of each of
the Holders to registration pursuant to this Section 3(b) shall be conditioned upon such Holders’ participation in such underwriting and the inclusion of such Holders’ Registrable Securities in the underwriting to the extent provided
herein. The Holders whose shares are to be included in such registration shall (together with the Company and the Other Stockholders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with
the representative of the underwriter or underwriters selected for the underwriting by the Company or such Other Stockholders, as the case may be. Such underwriting agreement will contain such representations and warranties by the Company and such
other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, indemnities and contribution to the effect and to the extent provided in Section 3(e) hereof
and the provision of opinions of counsel and accountants’ letters to the effect and to the extent provided in Section 3(d), and the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit
of such underwriters shall also be made to and for the benefit of the Holders whose shares are to be included in such registration. Notwithstanding any other provision of this Section 3(b), if the representative determines that marketing factors
require a limitation on the number of shares to be underwritten, the Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in
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the registration and underwriting shall be allocated in the following manner: The
securities of the Company held by officers and directors shall be excluded from such registration and underwriting to the extent required by such limitation, and, if a limitation on the number of shares is still required, the number of shares that
may be included in the registration and underwriting by each of the Holders and such Other Stockholders (other than Other Stockholders who are exercising their demand registration rights under an agreement between such Other Stockholders and the
Company) shall be reduced, on a pro rata basis (based on the number of shares held by such holder), by such minimum number of shares as is necessary to comply with such limitation. In no event will the shares requested for registration by the
Company or by Other Stockholders who are exercising their demand registration rights be reduced until all of the shares requested for registration by the Holders and the Other Stockholders (other than Other Stockholders who are exercising their
demand registration rights under an agreement between such Other Stockholders and the Company) are excluded entirely from such registration. If any of the Holders or any officer or director of the Company or Other Stockholder disapproves of the
terms of any such underwriting, he/she may elect to withdraw therefrom by written notice to the Company and the underwriter. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such
registration.
(c) Expenses of Registration. All
Registration Expenses incurred in connection with any registration, qualification or compliance pursuant to this Section 3 shall be borne by the Company, and all Selling Expenses shall be borne by the Holders of the securities so registered pro rata
on the basis of the number of their shares so registered; provided, however, that if, as a result of the withdrawal of a request for registration by any of the Holders, as applicable, the registration statement does not become effective, the Holders
and Other Stockholders requesting registration may elect to bear the Registration Expenses (pro rata on the basis of the number of their shares so included in the registration request, or on such other basis as such Holders and Other Stockholders
may agree), in which case such registration shall not be counted as a registration pursuant to Section 3(a)(i)(B)(y).
(d) Registration Procedures. In the case of each registration effected by the Company pursuant to this Section 3, the Company will keep the Holders, as applicable, advised in writing
as to the initiation of each registration and as to the completion thereof. At its expense, the Company will:
(i) keep such registration effective for a period of 90 days or until the Holders, as applicable, have completed the distribution described in the registration statement relating thereto, whichever first occurs;
(ii) furnish to each Holder, and to any underwriter before filing with the Commission,
copies of any registration statement (including all exhibits) and any prospectus forming a part thereof and any amendments and supplements thereto (including all documents incorporated or deemed incorporated by reference therein prior to the
effectiveness of such registration statement and including each preliminary prospectus, any summary prospectus or any term sheet (as such term is used in Rule 434 under the Securities Act)) and any other prospectus filed under Rule 424 under the
Securities Act, which documents, other than documents incorporated or deemed incorporated by reference,
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will be subject to the review of the Holders and any such underwriter for a
period of at least five business days, and the Company shall not file any such registration statement or such prospectus or any amendment or supplement to such registration statement or prospectus to which any Holder or any such underwriter shall
reasonably object within five business days after the receipt thereof; a Holder or such underwriters, if any, shall be deemed to have reasonably objected to such filing only if the registration statement, amendment, prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement or omission;
(iii) furnish to each Holder and to any underwriter, such number of conformed copies of the applicable registration statement and of each amendment and supplement thereto (in each case including all exhibits) and such
number of copies of the prospectus forming a part of such registration statement (including each preliminary prospectus, any summary prospectus or any term sheet (as such term is used in Rule 434 under the Securities Act)) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents, including without limitation documents incorporated or deemed to be incorporated by reference prior to the
effectiveness of such registration, as each of the Holders or any such underwriter, from time to time may reasonably request;
(iv) to the extent practicable, promptly prior to the filing of any document that is to be incorporated by reference into any registration statement or prospectus forming a part thereof
subsequent to the effectiveness thereof, and in any event no later than the date such document is filed with the Commission, provide copies of such document to the Holders, if requested, and to any underwriter, and make representatives of the
Company available for discussion of such document and other customary due diligence matters, and include in such document prior to the filing thereof such information as any Holder or any such underwriter reasonably may request;
(v) make available at reasonable times for inspection by the Holders, any underwriter participating
in any disposition pursuant to such registration and any attorney or accountant retained by the Holders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company and cause the officers,
directors and employees of the Company to supply all information reasonably requested by the Holders and any such underwriters, attorneys or accountants in connection with such registration subsequent to the filing of the applicable registration
statement and prior to the effectiveness of the applicable registration statement;
(vi) use commercially reasonable efforts (x) to register or qualify all Registrable Securities and other securities covered by such registration under such other securities or blue sky laws of such States of the United
States of America where an exemption is not available and as the sellers of Registrable Securities covered by such registration shall reasonably request, (y) to keep such registration or qualification in effect for so long as the applicable
registration statement remains in effect, and (z) to take any other action which may be reasonably necessary or advisable to enable such sellers to consummate the disposition in such jurisdictions of the securities to be sold by such sellers, except
that the
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Company shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction where it is not so qualified, or to subject itself to taxation in any such jurisdiction, or to execute a general consent to service of process in effecting such registration, qualification or
compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act or applicable rules or regulations thereunder;
(vii) use commercially reasonable efforts to cause all Registrable Securities covered by such registration statement to be registered with or
approved by such other federal or state governmental agencies or authorities as may be necessary in the opinion of counsel to the Company and counsel to the Holders of Registrable Securities to enable the Holders thereof to consummate the
disposition of such Registrable Securities;
(viii) subject to Section 3(g) hereof,
promptly notify each Holder of Registrable Securities covered by a registration statement (A) upon discovery that, or upon the happening of any event as a result of which, the prospectus forming a part of such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (B)
of the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or the initiation of proceedings for that purpose, (C) of any request by the Commission for (1) amendments to such registration statement
or any document incorporated or deemed to be incorporated by reference in any such registration statement, (2) supplements to the prospectus forming a part of such registration statement or (3) additional information, or (D) of the receipt by the
Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, and at the
request of any such Holder promptly prepare and furnish to it a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such
prospectus shall not include an 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, in the light of the circumstances under which they were made, not
misleading;
(ix) use commercially reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of any such registration, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction;
(x) if requested by any Initiating Holder, or any underwriter, promptly incorporate in such registration
statement or prospectus, pursuant to a supplement or post effective amendment if necessary, such information as the Initiating Holder and any underwriter may reasonably request to have included therein, including, without limitation, information
relating to the “plan of distribution” of the Registrable Securities, information with respect to the principal amount or number of shares of Registrable Securities being sold to such
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underwriter, the purchase price being paid therefor and any other terms of the
offering of the Registrable Securities to be sold in such offering and make all required filings of any such prospectus supplement or post-effective amendment as soon as practicable after the Company is notified of the matters to be incorporated in
such prospectus supplement or post effective amendment;
(xi) furnish to the Holders,
addressed to them, an opinion of counsel for the Company, dated the date of the closing under the underwriting agreement, if any, or the date of effectiveness of the registration statement if such registration is not an underwritten offering, and
use commercially reasonable efforts to furnish to the Holders, addressed to them, a “cold comfort” letter signed by the independent certified public accountants who have certified the Company’s financial statements included in such
registration, covering substantially the same matters with respect to such registration (and the prospectus included therein) and, in the case of such accountants’ letter, with respect to events subsequent to the date of such financial
statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to underwriters in underwritten public offerings of securities and such other matters as the Holders may reasonably request;
(xii) otherwise use commercially reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first full
calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(xiii) provide promptly to the Holders upon request any document filed by the Company with the Commission
pursuant to the requirements of Section 13 and Section 15 of the Exchange Act; and
(xiv) use commercially reasonable efforts to cause all Registrable Securities included in any registration pursuant hereto to be listed on each securities exchange on which securities of the same class are then listed, or,
if not then listed on any securities exchange, to be eligible for trading in any over-the-counter market or trading system in which securities of the same class are then traded.
(e) Indemnification.
(i) The Company will indemnify each of the Holders, as applicable, each of its officers, directors, members and partners, and each person controlling each of the Holders, with respect to
each registration which has been effected pursuant to this Section 3, and each underwriter, if any, and each person who controls any underwriter, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, offering circular or other document (including any related registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to
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make the statements therein not misleading, or any violation by the Company of
the Securities Act or the Exchange Act or any rule or regulation thereunder applicable to the Company and relating to action or inaction required of the Company in connection with any such registration, qualification or compliance, and will
reimburse each of the Holders, each of its officers, directors, members and partners, and each person controlling each of the Holders, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses
reasonably incurred in connection with investigating and defending any such claim, loss, damage, liability or action, provided that the Company will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission based upon information furnished to the Company by the Holders or underwriter.
(ii) Each of the Holders will, if Registrable Securities held by it are included in the securities as to which such registration, qualification or compliance is being effected, indemnify the
Company, each of its directors and officers and each underwriter, if any, of the Company’s securities covered by such a registration statement, each person who controls the Company or such underwriter, each Other Stockholder and each of their
officers, directors, members and partners, and each person controlling such Other Stockholder against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document made by such Holder, or any omission (or alleged omission) to state therein a material fact required to be stated therein or
necessary to make the statements by such Holder therein not misleading, and will reimburse the Company and such Other Stockholders, directors, officers, partners, members, persons, underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with information furnished to the Company by such Holder; provided, however, that the obligations of each of the
Holders hereunder and under clause (vi) below shall be limited to an amount equal to the net proceeds to such Holder of securities sold as contemplated herein.
(iii) Each party entitled to indemnification under this Section 3(e) (the “Indemnified Party”) shall give notice to the party required
to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting therefrom; provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld) and the Indemnified Party may participate in such defense at such party’s expense (unless the Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Indemnifying Party
and the Indemnified Party in such action, in which case the fees and expenses of one such counsel for all Indemnified Parties shall be at the expense of the Indemnifying Party), and provided further that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of its obligations under this
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Section 3 unless the Indemnifying Party is materially prejudiced thereby. No
Indemnifying Party, in the defense of any such claim or litigation shall, except with the consent of each Indemnified Party (which consent shall not be unreasonably withheld or delayed), consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with the defense of such claim and litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 3(e) is held by a court of competent jurisdiction to
be unavailable to an Indemnified Party with respect to any loss, liability, claim, damage or expense referred to herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such loss, liability, claim, damage or expense in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in
connection with the statements or omissions which resulted in such loss, liability, claim, damage or expense, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be
determined by reference to, among other things, whether the untrue (or alleged untrue) statement of a material fact or the omission (or alleged omission) to state a material fact relates to information supplied by the Indemnifying Party or by the
Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(v) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement
entered into in connection with any underwritten public offering contemplated by this Agreement are in conflict with the foregoing provisions, the provisions in such underwriting agreement shall be controlling.
(vi) The foregoing indemnity agreement of the Company and Holders is subject to the condition that, insofar as
they relate to any loss, claim, liability or damage made in a preliminary prospectus but eliminated or remedied in the amended prospectus on file with the Commission at the time the registration statement in question becomes effective or the amended
prospectus filed with the Commission pursuant to Commission Rule 424(b) (the “Final Prospectus”), such indemnity or contribution agreement shall not inure to the benefit of any underwriter or Holder (but only if such Holder was required to
deliver such Final Prospectus) if a copy of the Final Prospectus was furnished to the underwriter and was not furnished to the person asserting the loss, liability, claim or damage at or prior to the time such action is required by the Securities
Act.
(f) Information by the Holders. Each of the Holders
holding securities included in any registration shall furnish to the Company such information regarding such Holder and the distribution proposed by such Holder as the Company may reasonably request in writing and as
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shall be reasonably required in connection with any registration, qualification or compliance referred to in this Section
3.
(g) Holdback Agreement; Postponement. Notwithstanding
the provisions of Sections 3(a) and (b), if the Board of Directors of the Company determines in good faith that it is in the best interests of the Company (A) not to disclose the existence of facts surrounding any proposed or pending acquisition,
disposition, strategic alliance or financing transaction involving the Company or (B) for any purpose, to suspend the registration rights set forth herein, the Company may, by notice to the Holders in accordance with Section 6(a), postpone any
registration which is requested pursuant to Section 3(a) for such a period of time as the Board of Directors may determine or suspend sales under an effective registration statement covering the sale of Registrable Securities; provided that such
periods of suspension together with any periods of suspension effected pursuant to Section 3(a)(i)(B)(w) hereof may not exceed 90 days in the aggregate during any period of 12 consecutive months.
(h) Assignment. The registration rights set forth in Section 3 hereof may be assigned, in whole or in part, to
any transferee of Registrable Securities who immediately after such transfer holds at least Four Hundred Fifty Thousand (450,000) shares of Company Common Stock that are Registrable Securities hereunder, which transferee shall be considered
thereafter to be a Holder and shall be bound by all obligations and limitations of this Agreement.
4. RULE 144 REPORTING
With a view to making available the benefits of certain
rules and regulations of the Commission which may permit the sale of restricted securities to the public without registration, the Company agrees that it will:
(i) make and keep public information available (as those terms are understood and defined in Rule 144) at all times;
(ii) use commercially reasonable efforts to file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act; and
(iii) so long as there are outstanding any Registrable Securities, furnish to each Holder, upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 and of the
Securities Act and the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed as such Holder may reasonably request in availing itself of any rule or regulation of the
Commission allowing such Holder to sell any such securities without registration.
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5. INTERPRETATION OF THIS AGREEMENT
(a) Directly or Indirectly. Where any provision in this Agreement refers to
action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person.
(b) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of
Delaware.
(c) Section Headings. The headings of the
sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute a part thereof.
6. MISCELLANEOUS
(a) Notices.
(i) All communications under this Agreement shall be in writing and shall be delivered
by facsimile or by hand or mailed by overnight courier or by registered or certified mail, postage prepaid:
(A) if to the Company, to CytRx Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Executive Officer, (▇▇▇) ▇▇▇-▇▇▇▇, or at such other address as it may have furnished in writing to
the Investors;
(B) if to the Investors, at the addresses listed on Schedule I
hereto, or at such other addresses as may have been furnished the Company in writing.
(ii) Any notice so addressed shall be deemed to be given: (A) with respect to any notice transmitted, delivered or sent by facsimile, the date of actual receipt (with confirmation of transmission of the electronic receipt
deemed conclusive evidence of such receipt, except where the intended recipient has promptly notified the other party that the transmission is illegible); (B) if delivered by hand, on the date of such delivery; (C) if mailed by courier, on the first
business day following the date of such mailing; and (D) if mailed by registered or certified mail, on the third business day after the date of such mailing.
(b) Reproduction of Documents. This Agreement and all documents relating thereto, including, without limitation,
any consents, waivers and modifications which may hereafter be executed may be reproduced by the Investor by any photographic, photostatic, microfilm, microcard, miniature photographic or other similar process and the Investors may destroy any
original document so reproduced. The parties hereto agree and stipulate that any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by the Investors in the regular course of business) and that any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence.
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(c) Successors and
Assigns. Except as expressly contemplated in this Agreement, this Agreement may not be assigned by any Investor without the prior written consent of the Company. Subject to the preceding sentence, this Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each of the parties.
(d) Entire Agreement; Amendment and Waiver. This Agreement constitutes the entire understanding of the parties hereto and supersedes all prior understanding among such parties. This Agreement
may be amended, and the observance of any term of this Agreement may be waived, with (and only with) the written consent of a majority of Independent Directors of the Company and the Holders of a majority of the then outstanding Registrable
Securities. “Independent Directors” shall mean the all directors not appointed by Global Genomics Capital, Inc. as contemplated under the Acquisition Agreement; provided, however, that if there are no such directors then Independent
Directors shall mean all directors.
(e) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same
agreement.
(f) No Inconsistent Agreements. Unless the
Company receives the prior written consent of the Holders of a majority of the then outstanding Registrable Securities, for so long as any Registrable Securities remain outstanding, the Company will not hereafter enter into any agreement with
respect to its securities which is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement.
(g) Remedies. Each Holder of Registrable Securities, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at law would be adequate.
(h) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be in any way impaired thereby, it being intended and understood that all of
the rights and privileges of each of the Holders shall be enforceable to the fullest extent permitted by law.
[SIGNATURES ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first set forth above.
| CYTRX CORPORATION | ||
| By: |
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INVESTORS:
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