CONFIDENTIAL Richard J. Moran Chief Financial Officer Genta Incorporated 200 Connell Drive Berkeley Heights, NJ 07922 Dear Mr. Moran:
Exhibit 10.2
February 8, 2008
CONFIDENTIAL
Xxxxxxx X. Xxxxx
Chief Financial Officer
Genta Incorporated
000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Chief Financial Officer
Genta Incorporated
000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Dear Xx. Xxxxx:
This letter (the “Agreement”) constitutes the agreement between Xxxxxx & Xxxxxxx, 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 “Registered Securities”) of the Company, including shares (the
“Shares”) of the Company’s common stock (the “Common Stock”) (sometimes referred to
as, the “Securities”). Xxxxxx shall be authorized to utilize sub-placement agents and/or
selected dealers in its discretion, provided that the use of any sub-placement agent and/or
selected dealer by Xxxxxx shall not increase any fees (including cash or Warrants) or expenses
payable by the Company under this Agreement. The terms of such Placement and Offering 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 any of 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) A cash fee payable immediately upon the closing of the Placement of Registered
Securities equal to 5% of the aggregate gross proceeds raised in the Placement.
(B) In addition to any fees payable to Xxxxxx hereunder, whether or not the Placement is
consummated, the Company hereby agrees to reimburse R&R for all reasonable travel and other
out-of-pocket expenses incurred in connection with R&R’s engagement, including the reasonable fees
and expenses of Xxxxxx’x counsel. Such reimbursement shall be limited to $50,000 without prior
written approval by the Company.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 o Tel:: 000 000 0000
Fax:: 000 000 0000
xxx.xxxxxxxxxxxxxxxx.xxx o Member: FINRA, SIPC
xxx.xxxxxxxxxxxxxxxx.xxx o Member: FINRA, SIPC
Genta Incorporated
February 8, 2008
Page 2
February 8, 2008
Page 2
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. 333-114151 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
Genta Incorporated
February 8, 2008
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February 8, 2008
Page 3
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. Each party hereto will not, without the prior consent of the other
party, which consent shall not be unreasonably withheld, 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 FINRA 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.
Genta Incorporated
February 8, 2008
Page 4
February 8, 2008
Page 4
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 provisions of which are incorporated herein by reference and shall
survive the termination or expiration of this Agreement.
SECTION 5. ENGAGEMENT TERM. The term (the “Term”) of Xxxxxx’x engagement
will begin on the date hereof and end on the consummation of the Placement. (Feb. 13, 2008)
Notwithstanding anything to the contrary contained herein, the provisions concerning
confidentiality, indemnification, limitation of engagement and limitation of liability,
contribution and the Company’s obligations to pay fees and reimburse expenses contained herein will
survive any expiration or termination of this Agreement. R&R agrees not to use any confidential
information concerning the Company provided to them by the Company for any purposes other than
those contemplated under this Agreement.
SECTION 6. R&R INFORMATION. The Company agrees that any information or advice
rendered by R&R in connection with this engagement is for the confidential use of the Company only
in its evaluation of the Placement and, except as otherwise required by law, the Company will not
disclose or otherwise refer to the advice or information in any manner without R&R’s prior written
consent.
SECTION 7. USE OF INFORMATION. The Company will furnish R&R such written
information as R&R reasonably requests in connection with the performance of its services
hereunder. The Company understands, acknowledges and agrees that, in performing its services
hereunder, R&R will use and rely entirely upon such information as well as publicly available
information regarding the Company and other potential parties to the Placement.
SECTION 8. NO FIDUCIARY RELATIONSHIP. This Agreement does not create, and shall
not be construed as creating rights enforceable by any person or entity not a party hereto, except
those entitled hereto by virtue of the Indemnification Provisions hereof. The Company acknowledges
and agrees that R&R is not and shall not be construed as a fiduciary of the Company and shall have
no duties or liabilities to the equity holders or the creditors of the Company or any other person
by virtue of this Agreement or the retention of R&R hereunder, all of which are hereby expressly
waived.
SECTION 9. SECURITIES MATTERS. The Company shall be responsible for any and all
compliance with the securities laws applicable to it, including Regulation D and the Securities Act
of 1933, and Rule 506 promulgated thereunder, and unless otherwise agreed in writing, all state
securities (“blue sky”) laws. R&R agrees to comply with all securities laws applicable to it, and
cooperate with counsel to the Company in that regard. R&R shall be responsible for all filings
with FINRA, with the reasonable cooperation by the Company and Company counsel.
SECTION 10. COMPANY ACKNOWLEDGEMENT. The Company acknowledges that, depending on
the number and price of new shares issued, such transaction may result in substantial dilution
which could adversely affect the market price of the Company’s shares.
Genta Incorporated
February 8, 2008
Page 5
February 8, 2008
Page 5
SECTION 11. CLOSING(S). The obligations of the Placement Agent and the
Purchasers, and the closing of the sales of the Securities hereunder are subject to the accuracy,
when made and on the Applicable Closing Date, of the representations and warranties on the part of
the Company and its Subsidiaries contained herein, to the accuracy of the statements of the Company
and its Subsidiaries made in any certificates pursuant to the provisions hereof, to the performance
by the Company and its Subsidiaries of their obligations under the applicable Transaction
Documents, and the satisfaction or waiver (as may be provided for in the applicable Transaction
Document) of each closing condition set forth therein. Moreover, in respect of the Placement, the
obligations of the Placement Agent and the Purchasers, and the closing of the Placement is subject
to the satisfaction or waiver by the Placement Agent and Purchases of the following additional
terms and conditions:
(A) No stop order suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been initiated or threatened by the
Commission, and any request for additional information on the part of the Commission (to be
included in the Registration Statement, the Base Prospectus or the Prospectus Supplement or
otherwise) shall have been complied with to the reasonable satisfaction of the Placement Agent.
Any filings required to be made by the Company in shall have been timely filed with the Commission.
(B) The Placement Agent shall not have discovered and disclosed to the Company on or prior to
the Closing Date that the Registration Statement, the Base Prospectus or the Prospectus Supplement
or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion
of counsel for the Placement Agent, is material or omits to state any fact which, in the opinion of
such counsel, is material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(C) All corporate proceedings and other legal matters incident to the authorization, form,
execution, delivery and validity of each of this Agreement, the Securities, the Registration
Statement, the Base Prospectus and the Prospectus Supplement and all other legal matters relating
to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Placement Agent, and the Company shall have furnished to such
counsel all documents and information that they may reasonably request to enable them to pass upon
such matters.
(D) The Placement Agent shall have received from outside counsel to the Company such counsel’s
written opinion, addressed to the Placement Agent and the Purchasers dated as of the Closing Date,
in form and substance reasonably satisfactory to the Placement Agent, which opinion shall include a
“10b-5” representation from such counsel.
(E) (i) Neither the Company nor any of its Subsidiaries shall have sustained since the date of
the latest audited financial statements included or incorporated by reference in the Base
Prospectus, any loss or interference with its business from fire, explosion, flood, terrorist act
or other calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth in or contemplated by the Base
Prospectus and (ii) since such date there shall not have been any change in the capital stock or
long-term debt of the Company or any of its Subsidiaries or any change, or any development
involving a prospective change, in or affecting the business, general affairs, management,
financial position, stockholders’ equity, results of operations or prospects of the Company and its
Subsidiaries, otherwise than as set forth in or contemplated by the Base Prospectus, the effect of
which, in any such case described in clause (i) or (ii), is, in the judgment of the Placement
Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the sale
or delivery of the Securities on the terms and in the manner contemplated by the Base Prospectus,
the Time of Sale Prospectus, if any, and the Prospectus Supplement.
(F) The Common Stock is registered under the Exchange Act and, as of the Closing Date, the
Shares shall be listed and admitted and authorized for trading on NASDAQ Global Market, and
satisfactory evidence of such actions shall have been provided to the Placement Agent. Except as
previously disclosed
Genta Incorporated
February 8, 2008
Page 6
February 8, 2008
Page 6
by the Company, the Company shall have taken no action designed to, or likely
to have the effect of terminating the registration of the Common Stock under the Exchange Act or
delisting or suspending from trading the Common Stock from NASDAQ Global Market, nor has the
Company received any information suggesting that the Commission or NASDAQ Global Market is
contemplating terminating such registration or listing.
(G) Subsequent to the execution and delivery of this Agreement, there shall not have occurred
any of the following: (i) trading in securities generally on the New York Stock Exchange, the
NASDAQ Global Market or the American Stock Exchange or in the over-the-counter market, or trading
in any securities of the Company on any exchange or in the over-the-counter market, shall have been
suspended or minimum or maximum prices or maximum ranges for prices shall have been established on
any such exchange or such market by the Commission, by such exchange or by any other regulatory
body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been
declared by federal or state authorities or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States, (iii) the United
States shall have become engaged in hostilities in which it is not currently engaged, the subject
of an act of terrorism, there shall have been an escalation in hostilities involving the United
States, or there shall have been a declaration of a national emergency or war by the United States,
or (iv) there shall have occurred any other calamity or crisis or any change in general economic,
political or financial conditions in the United States or elsewhere, if the effect of any such
event in clause (iii) or (iv) makes it, in the sole judgment of the Placement Agent, impracticable
or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the
manner contemplated by the Base Prospectus and the Prospectus Supplement.
(H) No action shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date,
prevent the issuance or sale of the Securities or materially and adversely affect or potentially
and adversely affect the business or operations of the Company; and no injunction, restraining
order or order of any other nature by any federal or state court of competent jurisdiction shall
have been issued as of the Closing Date which would prevent the issuance or sale of the Securities
or materially and adversely affect or potentially and adversely affect the business or operations
of the Company.
(I) The Company shall have prepared and filed with the Commission a Current Report on Form 8-K
in respect of the Placement, if effected, including as an exhibit thereto, this Agreement, within
four business days of closing a transaction contemplated by this Agreement.
(J) The Company shall have entered into subscription agreements with each of the Purchasers
and such agreements shall be in full force and effect and shall contain representations and
warranties of the Company as agreed between the Company and the Purchasers.
(K) FINRA shall have raised no objection to the fairness and reasonableness of the terms and
arrangements of this Agreement. In addition, the Company shall, if requested by the Placement
Agent, make or authorize Placement Agent’s counsel to make on the Company’s behalf, an Issuer
Filing with the Financial Industry Regulatory Authority, Inc. Corporate Financing Department
pursuant to NASD Rule 2710 with respect to the Registration Statement and pay all filing fees
required in connection therewith.
(L) Prior to the Closing Date, the Company shall have furnished to the Placement Agent such
further information, certificates and documents as the Placement Agent may reasonably request.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Placement Agent.
Genta Incorporated
February 8, 2008
Page 7
February 8, 2008
Page 7
SECTION12. GOVERNING LAW. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York applicable to agreements made and to be
performed entirely in such State. This Agreement may not be assigned by either party without the
prior written consent of the other party. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors and permitted assigns. Any right to
trial by jury with respect to any dispute arising under this Agreement or any transaction or
conduct in connection herewith is waived. Any dispute arising under this Agreement may be brought
into the courts of the State of New York or into the Federal Court located in New York, New York
and, by execution and delivery of this Agreement, the Company hereby accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of aforesaid courts. Each
party hereto hereby irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by delivering a copy thereof via overnight delivery
(with evidence of delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. If either party shall commence an action or proceeding to
enforce any provisions of a Transaction Document, then the prevailing party in such action or
proceeding shall be reimbursed by the other party for its attorneys fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
SECTION 13. ENTIRE AGREEMENT/MISC. This Agreement (including the attached
Indemnification Provisions) embodies the entire agreement and understanding between the parties
hereto and supersedes all prior agreements and understandings relating to the subject matter
hereof. If any provision of this Agreement is determined to be invalid or unenforceable in any
respect, such determination will not affect such provision in any other respect or any other
provision of this Agreement, which will remain in full force and effect. This Agreement may not be
amended or otherwise modified or waived except by an instrument in writing signed by both R&R and
the Company. The representations, warranties, agreements and covenants contained herein shall
survive the closing of the Placement and delivery and/or exercise of the Securities, as applicable.
This Agreement may be executed in two or more counterparts, all of which when taken together shall
be considered one and the same agreement and shall become effective when counterparts have been
signed by each party and delivered to the other party, it being understood that both parties need
not sign the same counterpart. In the event that any signature is delivered by facsimile
transmission or a .pdf format file, such signature shall create a valid and binding obligation of
the party executing (or on whose behalf such signature is executed) with the same force and effect
as if such facsimile signature page were an original thereof.
SECTION 14. NOTICES. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number specified on the signature pages attached hereto
prior to 6:30 p.m. (New York City time) on a business day, (b) the next business day after the date
of transmission, if such notice or communication is delivered via facsimile at the facsimile number
on the signature pages attached hereto on a day that is not a business day or later than 6:30 p.m.
(New York City time) on any business day, (c) the business day following the date of mailing, if
sent by U.S. nationally recognized overnight courier service, or (d) upon actual receipt by the
party to whom such notice is required to be given. The address for such notices and communications
shall be as set forth on the signature pages hereto.
Please confirm that the foregoing correctly sets forth our agreement by signing and returning to
R&R the enclosed copy of this Agreement.
Very truly yours,
Genta Incorporated
February 8, 2008
Page 8
February 8, 2008
Page 8
| XXXXXX & XXXXXXX, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
Address for notice:
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX, 00000
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX, 00000
Accepted and Agreed to as of
the date first written above:
the date first written above:
| GENTA INCORPORATED | ||||
By: |
/s/ Xxxxxxx X. Xxxxx | |||
| Title: Senior Vice President, Chief Financial | ||||
| Officer & Corporate Secretary | ||||
Address for notice:
000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Xxxxxxxx Xxxxxxx, XX 00000
Genta Incorporated
Indemnification Provisions
February 8, 2008
Indemnification Provisions
February 8, 2008
ADDENDUM A
INDEMNIFICATION PROVISIONS
In connection with the engagement of Xxxxxx & Xxxxxxx, LLC (“R&R”) by Genta
Incorporated (the “Company”) pursuant to a letter agreement dated February 8, 2008, between
the Company and R&R, as it may be amended from time to time in writing (the “Agreement”),
the Company hereby agrees as follows:
| 1. | To the extent permitted by law, the Company will indemnify R&R and its affiliates, each subplacement agent and/or selected dealer, and their respective stockholders, directors, officers, employees and controlling persons (within the meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934) against all losses, claims, damages, expenses and liabilities, as the same are incurred (including the reasonable fees and expenses of counsel), relating to or arising out of its activities hereunder or pursuant to the Agreement, except to the extent that any losses, claims, damages, expenses or liabilities (or actions in respect thereof) are found in a final judgment (not subject to appeal) by a court of law to have resulted primarily and directly from R&R’s willful misconduct, bad faith or gross negligence in performing the services described herein. | |
| 2. | Promptly after receipt by R&R of notice of any claim or the commencement of any action or proceeding with respect to which R&R is entitled to indemnity hereunder, R&R will notify the Company in writing of such claim or of the commencement of such action or proceeding, and the Company will assume the defense of such action or proceeding and will employ counsel reasonably satisfactory to R&R and will pay the fees and expenses of such counsel. Notwithstanding the preceding sentence, R&R will be entitled to employ counsel separate from counsel for the Company and from any other party in such action if counsel for R&R reasonably determines that it would be inappropriate under the applicable rules of professional responsibility for the same counsel to represent both the Company and R&R. In such event, the reasonable fees and disbursements of no more than one such separate counsel will be paid by the Company. The Company will have the exclusive right to settle the claim or proceeding provided that the Company will not settle any such claim, action or proceeding without the prior written consent of R&R, which will not be unreasonably withheld. | |
| 3. | The Company agrees to notify R&R promptly of the assertion against it or any other person of any claim or the commencement of any action or proceeding relating to a transaction contemplated by the Agreement. | |
| 4. | If for any reason the foregoing indemnity is unavailable to R&R or insufficient to hold R&R harmless (other than as a result of the bad faith, gross negligence or willful misconduct of any such indemnified persons), then the Company shall contribute to the amount paid or payable by R&R as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and R&R on the other, but also the relative fault of the Company on the one hand and R&R on the other that resulted in such losses, claims, damages or liabilities, as well as any relevant equitable considerations. The amounts paid or payable by a party in respect of losses, claims, damages and liabilities referred to above shall be deemed to include any legal or other fees and expenses incurred in defending any litigation, proceeding or other action or claim. Notwithstanding the provisions hereof, R&R’s share of the liability hereunder shall not be in excess of the amount of fees actually received, or to be received, by |
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 o Tel:: 000 000 0000 Fax:: 000 000 0000
xxx.xxxxxxxxxxxxxxxx.xxx o Member: FINRA, SIPC
xxx.xxxxxxxxxxxxxxxx.xxx o Member: FINRA, SIPC
Genta Incorporated
Indemnification Provisions
February 8, 2008
Indemnification Provisions
February 8, 2008
| R&R under the Agreement (excluding any amounts received as reimbursement of expenses incurred by R&R). |
| 5. | These Indemnification Provisions shall remain in full force and effect whether or not the transaction contemplated by the Agreement is completed and shall survive the termination of the Agreement, and shall be in addition to any liability that the Company might otherwise have to any indemnified party under the Agreement or otherwise. |
| XXXXXX & XXXXXXX, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
Accepted and Agreed to as of
the date first written above:
the date first written above:
| GENTA INCORPORATED | ||||
By: |
/s/ Xxxxxxx X. Xxxxx | |||
Name: Xxxxxxx X. Xxxxx
|
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| Title: Senior Vice President, Chief Financial Officer & | ||||
| Corporate Secretary | ||||
