EXHIBIT 10.4
X.X. XXXXXX & COMPANY, L.L.C.
INVESTMENT BANKING DIVISION
SECOND AMENDMENT
TO INVESTMENT BANKING AGREEMENT
THIS SECOND AMENDMENT (the "Amendment") TO INVESTMENT BANKING AGREEMENT
WITH X.X. XXXXXX & COMPANY, LLC dated April 3, 2003 (the "Agreement") is entered
into and effective as of August 13, 2003 (the "Effective Date") by and between
CytRx Corporation ("CYTR") and X.X. Xxxxxx & Company, LLC ("Xxxxxx").
1. THE PARTIES
1.1 CYTR, with its principal office at 00000 Xxx Xxxxxxxx Xxxx., XX
00000, XXX; and Phone: (000) 000-0000.
1.2 Xxxxxx, with its principal office at 0000 Xxxxxxxxx Xxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxx 00000, and Phone: 000-000-0000.
1.3 The persons executing this Amendment represent to each other that
they have full and complete authority to do so.
2. THE AMENDMENT
2.1 The Term of the Agreement during which Xxxxxx shall provide the
Services shall be extended to be twelve (12) months from the Effective Date.
2.2 As per page 2, within the compensation section of the Agreement,
CYTR shall issue Xxxxxx an additional fully vested Investment Banking Warrant
for the purchase of eighty two thousand five hundred (82,500) shares of CYTR's
common stock at an exercise price of $2.00 per share and with a term of five (5)
years. All other conditions and provisions of this warrant shall be identical to
the Investment Banking Warrant as described in the Agreement.
2.3 CYTR shall also issue Xxxxxx two hundred seventy-five thousand
(275,000) shares of CYTR's common stock (the "Investment Banking Stock"). The
Investment Banking Stock shall be restricted for resale into the public market
for a period of eighteen (18) months (the "Public Restriction"). The Investment
Banking Stock shall immediately and completely vest in favor of Xxxxxx, be fully
paid, and non-assessable. In the event of the sale of the Company (or
substantially all of the assets thereof) or the acquisition (or merger)
transaction of the Company by or into another entity at any time after twelve
(12) months from the Effective Date, the Public Restriction shall be lifted and
voided.
2.4 The issuance of the Investment Banking Warrant and Investment
Banking Stock shall be subject to approval by CYTR's shareholders of an increase
in the size of CYTR's 2000 Long-Term Incentive Plan (the "Plan"), and Xxxxxx
will not exercise the Investment Banking Warrant until such shareholder approval
has been obtained. If this increase in the size of the Plan does not occur by
December 31, 2003, this Amendment shall be rescinded.
2.5 CYTR acknowledges that it desires to consider strategic
alternatives available to it which include, but are not limited to, issuing and
selling convertible debentures, common shares, preferred shares, or similar
instruments (the "Offering"). The Offering shall be on terms and conditions
satisfactory CYTR, in its sole discretion. As a result of an introduction made
through Xxxxxx to an investor, either a single investor, several investors, or a
related entity with which Investor has not made an investment in CYTR within the
90 days prior to the Effective Date (collectively the "Investor"), should all or
any part of the Offering be placed with the Investor, CYTR shall owe Xxxxxx a
cash fee equal to ten percent (10%) of the gross proceeds of the Offering (the
as received by CYTR from the Investor. CYTR shall also issue Xxxxxx a five-year
warrant as part of the placement fee to purchase a number of shares equal to ten
percent (10%) of the gross proceeds of the Offering (the "Warrant") to the
Investor, at an exercise price equal to the average closing market price per
share of the CYTR's common stock for the five trading days preceding the date of
closing of the Offering (or at each closing). Should CYTR close on any Offering
with the Investor, it shall be understood that the Offering met terms and
conditions satisfactory to CYTR. CYTR shall have no obligation to close any
Offering.
2.6 CYTR agrees that any amendment or modification to the Agreement or
the Amendment shall be by written instrument only and must be executed by a
representative, with complete authority, from CYTR and Xxxxxx (the "Parties").
2.7 This Amendment sets forth the entire understanding of the Parties
with respect to the subject matter hereof and shall be binding and inure to the
benefit of the Parties and their respective successors.
IN WITNESS WHEREOF, if the foregoing is in accordance with the Parties
understanding, the Parties shall accept and agree to this Amendment of the
Agreement by signing and that will thereupon constitute an agreement between the
Parties.
X.X. Xxxxxx & Company, LLC
/s/ Xxxxxxx X. Power Date: _______________
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Xx. Xxxxxxx X. Power
Managing Director - Investment Banking
X.X. Xxxxxx & Company, LLC
0000 Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
(000) 000-0000
CytRx Corporation
/s/ Xxxxxx X. Xxxxxxxxx Date: 10-24-03
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Name: Xx. Xxxxx Xxxxxxxxx
Title: President and Chairman
Company: CytRx Corporation
Address: 00000 Xxx Xxxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
Phone: (000) 000-0000
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