EXHIBIT 10.3
INVESTMENT BANKING AGREEMENT
THIS AGREEMENT is made as of this February ___, 2004, by and between
CytRx, a Delaware Corporation having its principal office at 11726 San Vicente
Boulevard Suite 650 Los Angeles , California 90049 (the "Company"), and GUNN
ALLEN FINANCIAL, INC., a Florida corporation having an office at 1715 N.
Westshore Boulevard, Suite 700, Tampa, Florida 33607 ("GAF").
In consideration of the mutual premises contained herein and on the terms
and conditions hereinafter set forth, the Company and GAF agree as follows:
1. PROVISION OF SERVICES. The Company hereby retains GAF and GAF
hereby accepts such retention to perform consulting services related to
corporate finance and investment banking matters. The Company may
concurrently obtain corporate finance and investment banking services from
other parties and GAF may provide such services to other parties, provided
that those parties are not actively involved in the research and
development of products based on RNAi interference. GAF shall undertake
all reasonable efforts to perform for the Company the duties described
herein. In this regard, GAF shall devote such time and attention to the
business of the Company as shall be determined by GAF, in its sole
discretion.
(A) GAF agrees, to the extent reasonably required in the
conduct of the business of the Company, and at the Company's written request to
GAF's Senior Vice President of Corporate Finance (or such other similarly
qualified person designated by GAF), to provide consulting services to the
Company, including the following:
(1) advice with respect to the capital markets and the
structuring of and sources of funds for private placements and other financing
transactions (provided that if the Company elects to have GAF act as a placement
agent or in any other capacity for the Company in any financing transaction and
GAF agrees to act in such capacity, the compensation in addition to that already
paid to GAF under this Agreement to be paid to GAF for acting in such capacity
shall be separately negotiated by the parties);
(2) advice with respect to the structuring of, and the
possible identification of specific opportunities for the Company to enter into,
mergers, acquisitions, consolidations, joint ventures, product in-licensing and
out-licensing, divestitures and other similar corporate finance transactions
(provided that if the Company elects in its sole discretion to have GAF act as
the Company's authorized agent in connection with any such transaction
transaction and GAF agrees to act in such capacity, the compensation in addition
to that already paid to GAF under this Agreement to be paid to GAF for acting in
such capacity shall be separately negotiated by the parties); and
(3) advice with respect to the preparation of investor
presentations and possible introductions to capital conferences, broker-dealers,
research analysts and investment companies that GAF believes to be in the
Company's best interests.
(B) GAF shall use reasonable efforts in furnishing advice
and recommendations, and for this purpose GAF shall at all times maintain or
keep and make available qualified personnel or a network of qualified outside
professionals for the performance of its obligations under this Agreement, at
its sole expense. To the extent reasonably practicable, GAF shall so use its own
personnel rather than outside professionals and shall identify in writing to the
Company any such outside personnel that it proposes to use prior to engaging
such personnel.
(C) If warranted and mutually agreed upon by and between the
Company and GAF, the Company shall use reasonable efforts to invite a
representative appointed by GAF to attend and participate as an investment
banking consultant to the Company in at least one meeting of its Board of
Directors for every year that this Agreement is in effect. The Company shall
provide notice of such meetings to GAF at least two (2) weeks prior to the date
that the meeting at which GAF is permitted to attend is scheduled to occur. GAF
will use its reasonable efforts to attend any other meetings of the Company's
Board of Directors to which the Company requests GAF's attendance. Any
reasonable expenses incurred by GAF in attending such meetings shall be borne
for by the Company.
2. TERM. Unless otherwise provided for in this Agreement, GAF's
retention hereunder shall be for a term of two (2) years, commencing on
the date hereof and expiring on the second anniversary date of this
Agreement (the "Termination Date"). Except as provided for in Section 8
below, GAF may not terminate this Agreement without the written consent of
the Company prior to the Termination Date. In the event that the Company
desires to terminate this Agreement, without "cause", prior to the
Termination Date, it shall provide GAF with at least thirty (30) days
prior written notice of its intention to terminate this Agreement and this
Agreement shall so terminate following the expiration of this thirty (30)
day period, without any further liability or responsibility for either
party; provided, however, that GAF shall be entitled to retain the
Compensation Shares (as defined in Section 3 below) and receive all
un-reimbursed expenses, if any, outstanding as of the date of termination.
3. COMPENSATION.
(A) As payment in full for the services rendered under this
Agreement by GAF, the Company shall issue GAF 150,000 shares of its common stock
(the "Compensation Shares") upon execution of this Agreement. GAF agrees that it
will not sell or otherwise transfer any of the Compensation Shares during the
18-month period following the date of this Agreement. Notwithstanding the
foregoing, in the event (i) the Company's common stock is listed on The NASDAQ
National Market(R), or (ii) a Change of Control (as hereafter defined) occurs,
the restricted period shall be eliminated, subject to applicable federal
securities laws. A Change of Control means the occurrence of one of the
following:
(i) a "person" or "group" within the meaning of Sections 13(d)
and 14(d) of the Securities and Exchange Act of 1934 (the
"Exchange Act"), becomes the "beneficial owner" (within the
meaning of Rule 13d-3 under the Exchange Act) of securities of
the Company representing 35% or more of the combined voting
power of the Company's then outstanding securities in any one
or more
transactions; provided, however, that purchases by employee
benefit plans of the Company, or the Company or its current
affiliates shall be disregarded;
(ii) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or
substantially all, of the operating assets of the Company,
other than an internal restructuring of the Company; or
(iii) a merger or consolidation, or a transaction having a
similar effect unless such merger, consolidation or similar
transaction is with a subsidiary of the Company or with
another company, a majority of whose outstanding capital stock
is owned by the same persons or entities who own a majority of
the Company's outstanding common stock at such time, where (A)
the Company is not the surviving corporation, (B) the majority
of the common stock of the Company is no longer held by the
stockholders of the Company immediately prior to the
transaction, or (C) the Company's common stock is converted
into cash, securities or other property (other than the common
stock of a company into which the Company is merged).
(B) The Company shall reimburse GAF for its reasonable
out-of-pocket travel expenses incurred in connection with performing the
services under this Agreement, provided that any expenditure in excess of [$500]
shall be approved in writing in advance by the Company.
4. REPRESENTATIONS AND WARRANTIES OF GAF. GAF represents and
warrants that:
(A) it is a securities broker-dealer duly licensed and
registered pursuant to federal and state securities laws rules and regulations;
(B) it has the authority and ability to provide the services
contemplated in this Agreement;
(C) it is a member in good standing with the NASD and is in
good standing with all states within which it is registered to conduct
securities business; and
(D) it will perform the services under this Agreement in
compliance with all applicable laws and regulations, including without
limitation all federal and state securities laws and regulations.
5. INDEMNIFICATION. The Company agrees to indemnify and hold
harmless GAF and its affiliates, the respective directors, officers,
partners, agents and employees and each other person, if any, controlling
GAF or any of its affiliates (collectively the "GAF Parties") from all
losses, claims, damages, liabilities and expenses incurred by them
(including reasonable attorney's fees and disbursements) that result from
any violations of securities laws or rules or any untrue statements made
by the Company, its agents or employees, or any statements omitted to be
made in connection with securities related matters by the Company, its
agents or employees. GAF will indemnify and hold harmless the Company and
the respective directors, officers, agents and employees of the Company
(the "Company Parties") from and against all losses, claims, damages,
liabilities and expenses that result from malfeasance or negligence in the
performance of GAF's duties hereunder (including reasonable attorney's
fees and disbursements). Each person or entity seeking indemnification
hereunder shall promptly notify the Company or GAF as applicable, of any
loss, claim, damage or expense for which the Company or GAF as applicable,
may become liable pursuant to this Section 5. Neither party shall pay,
settle or acknowledge liability under any such claim without the written
consent of the party liable for indemnification, and shall permit the
Company or GAF as applicable a reasonable opportunity to cure any
underlying problem or to mitigate damages. The scope of this
indemnification between GAF and the Company shall be limited to, and
pertain only to certain transactions contemplated or entered into pursuant
only to this Agreement.
The Company or GAF, as applicable, shall have the opportunity to defend any
claim for which it may be liable hereunder, provided it notifies the party
claiming the right to indemnification within fifteen (I5) days of notice of the
claim.
6. STATUS OF GAF. GAF shall at all times be an independent
contractor of the Company and, except as expressly provided or authorized
in this Agreement, shall have no authority to act for or represent the
Company or bind it to any agreements.
7. OTHER ACTIVITIES OF GAF. The Company recognizes that GAF 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.
Subject to Section 1 above and to Section 17 below, GAF shall be free to
render such advice and other services and the Company hereby consents
thereto. GAF 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
for such purposes, in its sole discretion.
8. COVENANTS OF THE COMPANY. The Company covenants, promises and
agrees that:
(A) During the term of this Agreement, the Company shall
provide GAF at least thirty (30) days prior written notice of the proposed sale
of any securities of the Company in a "Regulation S" or "Regulation D" offering.
Such notice shall specify the type of securities to be offered, the purchase
price thereof, the terms and conditions of the offering and the proposed
offering date. GAF shall be entitled to immediately terminate this Agreement and
retain all of the compensation set forth herein without offset and with no
further liability to the Company, in the event that, during the term of this
Agreement, the Company completes a sale of its securities pursuant to a
Regulation D or S offering, without GAF's prior written consent thereto.
(B) The Company shall immediately notify GAF in the event
that it is de-listed from the NASDAQ Small Cap Market. The Company understands
and acknowledges that, in the event of any such de-listing, GAF will be entitled
to terminate this Agreement, in its sole and absolute discretion, and the
Company shall pay to GAF all unpaid expenses, as provided for in Section 2
above.
(C) during the term of this Agreement, the Company shall
furnish GAF with copies of its annual, quarterly and proxy filings with the SEC,
immediately upon the Company's filing thereof.
(D) the Company shall make available at reasonable times and
upon reasonable advance request by GAF appropriate Company personnel to attend
due diligence or similar meetings with GAF's investment banking personnel.
9. CONTROL. Nothing contained herein shall be deemed to require
the Company to take any action contrary to its Certificate of
Incorporation or By-Laws, or any applicable statute or regulation, or to
deprive its Board of Directors of their responsibility for any control of
the affairs of the Company.
10. PUBLIC DISCLOSURE REQUIREMENT. Within thirty (30) business
days of the final execution of this Agreement, the Company shall cause the
release of a public announcement which sets forth, in pertinent part, a
description of this Agreement, including without limitation, the name of
GAF, the nature of the services to be provided hereunder by GAF and the
compensation paid to it in connection herewith. At least three (3)
business days prior to the dissemination of any such public announcement
or filing containing the above required description, the Company shall
submit to GAF, for its review and comment, the proposed public
announcement or description. GAF shall thereafter have three (3) business
days within which to submit its additions or amendments to the public
announcement and/or description for inclusion therein, which additions and
amendments shall be incorporated in the final version disseminated by the
Company, unless, in the reasonable judgment of counsel to the Company,
such additions or amendments cannot be incorporated. Furthermore, during
the term of this Agreement, the Company shall disclose in its quarterly
and annual filings the nature and terms of this Agreement, to the extent
counsel for the Company determines that such disclosure is required.
11. NOTICES. Any notices hereunder shall be sent to the Company
and GAF at their respective addresses above set forth. Any notice shall be
given by registered or certified mail, postage prepaid, and shall be
deemed to have been given when deposited in the United States mail. Either
party may designate any other address to which notice shall be given, by
giving written notice to the other of such change of address in the manner
herein provided.
12. ENTIRE AGREEMENT. This Agreement contains the entire agreement
and understanding between the parties with respect to its subject matter
and supersedes all prior discussion, agreements and understandings between
them with respect thereto. This Agreement may not be modified except in a
writing signed by the parties.
13. JURISDICTION AND VENUE. This Agreement has been made in the
State of Florida and shall be governed by and construed in accordance with
the laws thereof without regard to principles of conflict of laws. Any
proceeding commenced by GAF to enforce or interpret any provision of this
Agreement shall be brought in the City of Los Angeles, State of
California. Any proceeding commenced by the Company to enforce or
interpret any provision of this Agreement shall be brought in the City of
Tampa, State of Florida.
14. NO ASSIGNMENT. Neither this Agreement nor the rights of either
party hereunder shall be assigned by either party without the prior
written consent of the other party.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
16. NON-COMPLIANCE. If any provision of this Agreement conflicts
with any law, rule or regulation of any federal, state or self-regulatory
organization, including the Securities and Exchange Commission, the
blue-sky laws of any state, the National Association of Securities
Dealers, Inc., or any other governmental authority having jurisdiction
over the activities or services described herein, then in that event, the
Company and GAF shall amend this Agreement to bring any affected provision
into compliance with such regulations.
17. CONFIDENTIALITY. In performing consulting services pursuant to
this Agreement, GAF from time to time will require from the Company and
its directors, officers, employees, representatives, advisors and its
affiliates (collectively, the "Disclosing Parties"), certain oral and
written information concerning the Company and its business and
operations. In this connection, GAF agrees as follows:
(A) The Evaluation Material (as defined below) will be used
by GAF solely for the purpose of performing consulting services hereunder, and
all the Evaluation Material will be kept confidential and will not be
reproduced, disclosed, distributed or communicated, directly or indirectly, in
whole or in part, by GAF to any other person except those of its employees,
agents, and advisors and those representatives of its advisors (the persons to
whom such disclosure is permissible being collectively called its
"Representatives") using such information for such purpose. The term "person" as
used in this agreement is intended to be interpreted broadly to include, without
limitation, any corporation, company, partnership or individual.
(B) GAF will inform each of its Representatives which have,
or will have, access to any or all of the Evaluation Materials, of the existence
and substance of this Agreement, and will take all reasonable action necessary
to cause its Representatives to observe the confidentiality requirements of this
Agreement. GAF agrees that it will be responsible for any breach of this
Agreement by any of its Representatives.
(C) Notwithstanding the other provisions hereof, GAF agrees
that the Evaluation Material will not be used by it or any of its
Representatives in any way detrimental to the Company, including, without
limitation, to the competitive disadvantage of the Company. GAF further agrees
to immediately notify the Company in the event it becomes aware of any
unauthorized use of the Evaluation Material.
(D) The term "Evaluation Material" as used in this Agreement
means all information and documents, whether in written or oral form, which any
Disclosing Party furnishes or otherwise discloses to GAF or any of its
Representatives, whether furnished or otherwise disclose before, on or after the
date of this Agreement, together with all analyses,
compilations, studies or other documents, records or data prepared by GAF or any
of its Representatives which contain or otherwise reflect or are generated from
such information and documents. "Evaluation Material" does not, however, include
any information which (i) is generally available to and known by the public
(other than as a result of a disclosure directly or indirectly by GAF or any of
its Representatives) or (ii) was available to GAF on a non-confidential basis
from a source other than a Disclosing Party that is not and was not bound by a
confidentiality agreement with any Disclosing Party or otherwise prohibited from
transmitting the information to you on a non-confidential basis by a
contractual, legal or fiduciary obligation.
(E) Upon the termination of this Agreement, or if the
Company so requests at any time, GAF will promptly destroy or arrange for the
return to the Company of all Evaluation Material in GAF's possession or in the
possession of any of its Representatives, and any copies, notes, extracts or
other reproduction thereof, without retaining any copy thereof.
(F) GAF agrees that the Evaluation Material is and shall
remain the sole and exclusive proprietary property of the Company, and that GAF
acquires no license or other rights whatsoever in the Evaluation Material by
virtue of this Agreement, or by virtue of any disclosure of the Evaluation
Material pursuant hereto. GAF agrees that it will not claim any rights of any
kind in the Evaluation Material.
(G) GAF recognizes and acknowledges the competitive value
and confidential nature of the Evaluation Material and the irreparable damage
that could result to the Company if information contained therein is disclosed
to any third party in violation of this Agreement. GAF agrees that money damages
would not be a sufficient remedy for any breach of this Agreement and that, in
addition to all other remedies, the Company will be entitled to specific
performance and injunctive or other equitable relief as a remedy for any such
breach, and GAF further agrees to waive any requirement for the securing or
posting of any bond in connection with any such remedy.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
Gunn Allen Financial, Inc. CytRx Corporation
/s/ RICHARD FRUEH /s/ STEVEN A. KRIEGSMAN
- ------------------------------ --------------------------------
By: Richard Frueh By: Steven A. Kriegsman
Its: Chief Executive Officer Its:Chief Executive Officer