Exhibit 10.11
[LOGO]
X.X. XXXXXX & COMPANY, L.L.C.
INVESTMENT BANKING DIVISION
April 3, 2003
Xxxxx Xxxxxxxxx
President and Chairman
CytRx Corporation
00000 Xxx Xxxxxxxx Xxxx.
Los Angeles, CA 90049
Phone: (000) 000-0000
RE: INVESTMENT BANKING AGREEMENT WITH X. X. XXXXXX & Company, LLC
Dear Xx. Xxxxxxxxx,
This letter (the "AGREEMENT") shall confirm the engagement of X.X. Xxxxxx &
Company, LLC ("XXXXXX") by CytRx Corporation [NasdaqSC: CYTR] (the "COMPANY")
for purposes of providing, on a non-exclusive basis, investor awareness and
business advisory services as set forth below in consideration for the
compensation described hereinafter. The Agreement shall be effective as of the
date set forth above.
The Company agrees to provide Xxxxxx such information, historical financial
data, projections, proformas, business plans, due diligence documentation, and
other information (collectively the "INFORMATION") in the possession of the
Company or its agents that Xxxxxx may reasonably request or require to perform
the Services (as hereinafter defined) set forth herein. The Information provided
by the Company to Xxxxxx shall be true, complete, accurate and current in all
respects and shall not set forth any untrue statements nor omit any fact
required or necessary to make the Information provided not misleading. The
Company acknowledges that Xxxxxx may rely on the accuracy and completeness of
all Information provided by the Company without independent verification. The
Company authorizes Xxxxxx to use such Information in connection with its
performance of the Services. Xxxxxx shall use its commercially reasonable best
efforts to preserve the confidentiality of Information expressly designated as
confidential by the Company.
Xxxxxx will use its best efforts to furnish ongoing investor awareness and
business advisory services (the "SERVICES") as the Company may from time to time
reasonably request. The Services may include without limitation the following:
preparation and assistance with investor presentations; introduction to capital
conferences; the identification and evaluation of financing transactions; and
introductions to broker dealers, research analysts, and investment companies
that Xxxxxx believes to be in the best interest of the Company.
The term of this Agreement shall be 12 months from the effective date of
this Agreement (the "TERM"). In the event that the Company desires to terminate
this Agreement prior to the expiration date, it shall provide Xxxxxx with at
least thirty (30) days prior written notice of its intention to terminate this
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Investment Banking Agreement
04/03/03
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Agreement and this Agreement shall so terminate following the expiration of this
thirty (30) day period (the "Termination Date"), without any further
responsibility for either party; provided, however, that Xxxxxx shall be
entitled to receive all vested Warrants (as set forth below), and un-reimbursed
expenses, if any, outstanding as of the Termination Date.
In consideration for the services described herein, the Company shall issue
and deliver to Xxxxxx a non-refundable common stock purchase warrant (the
"INVESTMENT BANKING WARRANT") for the purchase of four hundred thousand
(400,000) shares of the Company's common stock. The Investment Banking Warrant
shall have an exercise price of twenty cents ($.20) upon issuance, be fully
paid, non-assessable, and free of any restrictions on transfer, but for those
restrictions that are the result of state or federal securities law. The
Investment Banking Warrant shall immediately and completely vest in favor of
Xxxxxx, and shall become immediately exercisable, 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. The Warrant shall
be issued to Xxxxxx in the form of a warrant agreement (the "WARRANT
AGREEMENT"), which shall be in form and content satisfactory to Xxxxxx and its
counsel.
The Warrant Agreement shall provide for, among other provisions, the above
terms and the following:
(i) Xxxxxx may exercise the Warrant at any time after signing the
Warrant Agreement. The Warrant shall expire three (3) years from
the date that the Warrant Agreement is issued.
(ii) anti-dilution provisions for stock dividends and splits. Upon a
merger or sale of substantially all of the Company's assets, the
Warrant will dilute in direct proportion with majority
shareholders.
(iii) in lieu of any cash payment required by Xxxxxx in connection
with the exercise of the Warrant, the holder(s) of the Warrant
shall have the right at any time and from time to time, to
exercise the Warrant in full or in part by surrendering the
Warrant Agreement as payment of the aggregated Strike Price
("Cashless Exercise").
(iv) the Company shall reserve, and at all times have available, a
sufficient number of shares of its common stock to be issued upon
the exercise of the Warrant. Furthermore, the Company shall
accept, and shall so instruct its transfer agent to accept, an
appropriate Rule 144 opinion letter from any qualified securities
attorney (not just an opinion from the Company's counsel)
representing Xxxxxx or any of its employees or agents that are
holders of the Warrant.
(v) the Company shall grant unlimited "piggy back" registration
rights, at the Company's expense, to include the shares of the
Underlying Common Stock in any registration statement filed by
the Company under the Securities Act of 1933 relating to an
underwriting of the sale of shares of common stock or other
security of the Company.
The Investment Banking Warrant shall be assigned to X.X. Xxxxxx & Company,
L.L.C. and forwarded to
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Investment Banking Agreement
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the following address:
X.X. Xxxxxx & Company, L.L.C.
Attention: Xxxxxxx X. Xxxxx, Managing Director of Investment Banking
0000 Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
The Company shall use its best efforts to supply to Xxxxxx, on a timely
basis, with logos, trademarks, slogans, and similar designs of itself and all
subsidiaries and hereby authorizes Xxxxxx in perpetuity, to use such logos, etc.
in "Tombstones" that reflect Xxxxxx'x role in the transaction pursuant to this
Agreement. This provision shall survive the expiration or termination of this
Agreement.
The Company represents and warrants that it has provided Xxxxxx access to
all Information available to the Company concerning its condition, financial and
otherwise, its management, its business, and its prospects (the "DISCLOSURE
DOCUMENTS"). The Company represents that it will continue to provide Xxxxxx with
any Information or documentation necessary to verify and update the accuracy of
the Information contained in the Disclosure Documents and will promptly notify
Xxxxxx in writing upon the filing of any registration statement or other
periodic reporting documents filed pursuant to the rules and regulations of the
Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as
amended.
The Company recognizes that Xxxxxx now renders and may continue to render
financial consulting, management, investment banking and other services to other
companies that may or may not conduct business and activities similar to those
of the Company. Xxxxxx shall be free to render such advice and other services
and the Company hereby consents thereto. Xxxxxx shall not be required to devote
its full time and attention to the performance of its duties under this
Agreement, but shall devote only so much of its time and attention as it deems
reasonable or necessary to fulfill its obligation hereunder.
During the Term of this Agreement the Company covenants, promises and
agrees that:
(a) Company shall immediately notify Xxxxxx if it is contacted by
NASDAQ for failing to maintain certain listing requirements or
any other reason.
(b) Company shall furnish Xxxxxx with copies of its annual, quarterly
and proxy filings with the SEC, within thirty (30) days of the
Company's filing thereof.
(c) Company shall furnish Xxxxxx all press releases and any copies of
any communication to the general public and its shareholders.
(d) Company shall immediately notify Xxxxxx if it is the subject of
any investigation or material litigation.
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Investment Banking Agreement
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(e) At least three (3) business days prior to the dissemination of
any public announcement regarding this Agreement, including the
fact of its existence, the Company shall submit to Xxxxxx, for
its review and comment, the proposed public announcement. Xxxxxx
shall thereafter have three (3) business days within which to
submit its proposed amendments to the public announcement for
inclusion therein. The proposed amendments shall be incorporated
in the final version to be disseminated by the Company, unless,
in the reasonable judgment of counsel to the Company, such
amendments should not be incorporated.
This Agreement shall be governed by and construed under the laws of the
State of Georgia without regard to principals of conflicts of laws provisions.
In the event of any dispute between the Company and Xxxxxx arising under or
pursuant to the terms of this Agreement, or any matters arising under the terms
of this Agreement, the same shall be settled only by arbitration through NASD
Dispute Resolution in Xxxxxx County, City of Atlanta, State of Georgia, in
accordance with the Code of Arbitration Procedure published by NASD Dispute
Resolution. The determination of the arbitrators shall be final and binding upon
the Company and Xxxxxx and may be enforced in any court of appropriate
jurisdiction. This Agreement shall be construed by and governed exclusively
under the laws of the State of Georgia, without regard to its conflicts of law
provisions. The venue shall be in Xxxxxx County, GA.
The Company shall reimburse Xxxxxx for all reasonable out of pocket
expenses including without limitation acceptable travel and lodging, printing,
legal, and mailing cost that Xxxxxx may incur in performance of the Services
under this Agreement. Xxxxxx shall submit expense statements to the Company from
time to time and the Company shall reimburse such expenses promptly thereafter.
The Company shall indemnify and hold harmless Xxxxxx and its directors,
officers, employees, agents, attorneys and assigns from and against any and all
losses, claims, costs, damages or liabilities (including the reasonable fees and
expenses of legal counsel) to which any of them may become subject in connection
with the investigation, defense or settlement of any actions or claims: (i)
caused by the Company's misstatement or alleged misstatement of a material fact
or omission or alleged omission of a material fact required to make any
statement not misleading; (ii) arising in any manner out of or in connection
with the rendering of Services by Xxxxxx hereunder; or (iii) otherwise in
connection with this Agreement.
The Company acknowledges that Xxxxxx has made no guarantees that its
performance hereunder will achieve any particular result with respect to the
Company's business, stock price, trading volume, market capitalization or
otherwise.
All notices hereunder shall be in writing and shall be validly given, made
or served if in writing and delivered in person or when received by facsimile
transmission, or five days after being sent first class certified or registered
mail, postage prepaid, or one day after being sent by nationally recognized
overnight carrier to the party for whom intended at the address set forth after
each parties signatures.
If any clause or provision of this Agreement is illegal, invalid or
unenforceable under applicable present or future Laws effective during the Term,
the remainder of this Agreement shall not be affected. In lieu of each clause or
provision of this Agreement that is illegal, invalid or unenforceable, there
shall
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Investment Banking Agreement
04/03/03
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be added as a part of this Agreement a clause or provision as nearly
identical as may be possible and as may be legal, valid and enforceable. In the
event any clause or provision of this Agreement is illegal, invalid or
unenforceable as aforesaid and the effect of such illegality, invalidity or
unenforceability is that either party no longer has the substantial benefit of
its bargain under this Agreement and a clause or provision as nearly identical
as may be possible cannot be added, then, in such event, such party may in its
discretion cancel and terminate this entire Agreement provided such party
exercises such right within a reasonable time after such occurrence.
The parties agree and acknowledge that they have jointly participated in
the negotiation and drafting of this Agreement and that this Agreement has been
fully reviewed and negotiated by the parties and their respective counsel. In
the event of an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties and no
presumptions or burdens of proof shall arise favoring any party by virtue of the
authorship of any of the provisions of this Agreement.
This Agreement may not be modified, amended, supplemented, canceled or
discharged, except by written instrument executed by all parties. No failure to
exercise, and no delay in exercising, any right, power or privilege under this
Agreement shall operate as a waiver, nor shall any single or partial exercise of
any right, power or privilege hereunder preclude the exercise of any other
right, power or privilege. No waiver of any breach of any provision shall be
deemed to be a waiver of any preceding or succeeding breach of the same or any
other provision, nor shall any waiver be implied from any course of dealing
between the parties. To be effective, all waivers must be in writing, signed by
both parties. The rights and remedies of the parties under this Agreement are in
addition to all other rights and remedies, at law or equity, that they may have
against each other except as may be specifically limited herein.
This Agreement contains the entire understanding of the parties in respect
of its subject matter and supersedes all prior agreements and understandings
(oral or written) between or among the parties with respect to such subject
matter. The parties agree that prior drafts of this Agreement shall not be
deemed to provide any evidence as to the meaning of any provision hereof or the
intent of the parties with respect thereto. Any amendment or modification to the
Agreement shall be by written instrument only and must be executed by a
representative, with complete authority, from the Company and Xxxxxx.
This Agreement may be executed in any number of counterparts, each of which
shall be an original but all of which together shall constitute one and the same
instrument. A telecopy signature of any party shall be considered to have the
same binding legal effect as an original signature.
In the event that any dispute among the parties to this Agreement should
result in litigation, the substantially prevailing party in such dispute shall
be entitled to recover from the losing party all fees, costs and expenses of
enforcing any right of such substantially prevailing party under or with respect
to this Agreement, including without limitation, such reasonable fees and
expenses of attorneys and accountants, which shall include, without limitation,
all fees, costs and expenses of appeals and collection.
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Investment Banking Agreement
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If the foregoing is in accordance with your understanding, kindly confirm
your acceptance and agreement by signing and returning the enclosed duplicate of
this Agreement that will thereupon constitute an agreement between us.
Yours very truly,
/s/ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx
Managing Director, Investment Banking
X. X. Xxxxxx & Company, LLC
Accepted and approved this 4th day of April, 2003.
By: /s/ Xxxxx Xxxxxxxxx
------------------------
Name: XX. XXXXX XXXXXXXXX
Title: PRESIDENT AND CHAIRMAN
Company: CYTRX CORPORATION
Address: 00000 XXX XXXXXXXX XXXX.
LOS ANGELES, CA 90049
Phone: (000) 000-0000
