CONSENT AGREEMENT
Confidential Treatment has been
requested for portions of this exhibit. The copy filed herewith omits the
information subject to the confidentiality request. Omissions are
designated as “***”. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.
This Consent
Agreement (this “Agreement”) is being
entered into as of ___________, 2009 (the “Effective Date”), by
and among Genta
Incorporated, a Delaware corporation (the “Company”), and each
of the purchasers of the Senior Secured Convertible Promissory Notes Due June 9,
2010 of the Company (the “2008 Notes”) whose
names are set forth on Exhibit A attached
hereto (each a “Holder” and
collectively the “Holders”). Capitalized
terms used but not defined herein shall have the meanings given to such terms in
the 2008 Notes.
Whereas,
each of the Holders is a party to that certain Securities Purchase Agreement
dated as of June 5, 2008 (the “2008 Purchase
Agreement”) among the Company and the purchasers listed on Exhbit A
thereto;
Whereas,
in order to facilitate the consummation of that certain offering of up to
$12,000,000 of 8% Senior Secured Convertible Notes (the “New Notes”) and
warrants to purchase common stock of the Company (the “Common Stock”)
pursuant to that certain Securities Purchase Agreement (the “Purchase Agreement”)
of even date herewith (the “Financing”) and in
consideration of the Holders’ consent to the Financing the parties desire to
enter into this Agreement; and
Whereas,
concurrently with the execution of this Agreement, the Company and the Holders
are executing and delivering an Amended and Restated Security Agreement under
which the purchasers of the New Notes will be granted liens that will rank pari
passu with the liens held by the holders of the 2008 Notes.
Whereas,
pursuant to Section 4.1 of the 2008 Notes, the consent of the Holders of at
least two thirds in outstanding principal amount of the 2008 Notes is required
in order for the Company to consummate the Financing.
Now,
Therefore, in consideration of the premises and mutual covenants herein
below, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Consent to Financing and
Other Events. The undersigned Holders, constituting the
holders of at least two-thirds of the outstanding principal amount of the 2008
Notes, hereby irrevocably consent, for all purposes and in all respects under
the 2008 Notes only (and not for purposes of this Agreement or any other
agreement or other purpose), including for the purpose of Section 4.1 of the
2008 Notes, to any action, transaction, occurrence, event or condition occurring
on or after the Effective Date, whether or not entered into in connection with
the Financing, that would have, but for this consent, required prior written
consent under the 2008 Notes, including Section 4.1 thereof. The
Holders expressly do not consent to, approve of or waive any rights with respect
to (i) any action, transaction, occurrence, event or condition for any purpose
under this Agreement, including Section 6, or (ii) except as previously approved
in accordance with the 2008 Notes, any action, transaction, occurrence, event or
condition occurring prior to the Effective Date under any
agreement.
1.
2. Approval of Financing
Transactions. The undersigned Holders, constituting the
holders of at least two-thirds of the outstanding principal amount of the 2008
Notes, hereby irrevocably approve, for all purposes and in all respects under
the 2008 Purchase Agreement (and not for purposes of this Agreement or any other
agreement or other purpose), including for the purpose of Section 3.15(b) of the
2008 Purchase Agreement, the issuance of any securities in any transaction,
including the Financing and the transactions contemplated by this
Agreement. The Holders expressly do not approve of any transaction
(other than this Financing) for purposes of Section 6(b)(ii) of this
Agreement.
3. Approval of Amended and
Restated Security Agreement. The undersigned Holders hereby
acknowledge that concurrently with the execution of this Agreement, the Company
and the Holders are executing and delivering an Amended and Restated Security
Agreement under which the purchasers of the New Notes will be granted liens that
will rank pari passu with the liens held by the holders of the 2008
Notes. The Holders further approve the Amended and Restated Security
Agreement and hereby instruct the Agent (as defined in the Security Agreement)
to enter into the Amended and Restated Security Agreement and to take all other
actions required by the Agent in furtherance of the foregoing.
4. Note Purchase
Right. At any time, and from time to time after the
Authorization Date (as defined in the Purchase Agreement) and on or prior to the
Expiration Date (as defined in the Purchase Agreement), each of the Holders who
are not natural persons (the “Institutional
Holders”) shall have the right (the “Purchase Right”), in
each such Institutional Holder’s sole discretion, upon written notice to the
Company (“Purchase
Notice”), to purchase one or more New Notes in aggregate principal amount
up to that amount set forth opposite such Institutional Holder’s name on Exhibit A
hereto, in one or more closings (each a “Closing”). At
each Closing, the Company shall issue and sell to the Institutional Holder
purchasing notes at such Closing a New Note having the principal amount set
forth in the Purchase Exercise Notice. At each such Closing, the
purchasing Institutional Holder shall deliver the purchase price for the New
Note, which shall equal the principal amount thereof, by wire transfer of
immediately available funds to the Company. The Closing shall take
place on the date specified in the Purchase Notice, which shall not be less than
five Trading Days (as defined in the New Notes) from the date on which the
Purchase Notice is delivered.
5. Covenants of the
Holders. Each Holder hereby agrees:
(a) that
such Holder will not convert any 2008 Notes on any day to the extent that,
together with all prior conversions under such 2008 Notes following the
Effective Date, the total amount of such 2008 Notes that has been converted
since the Effective Date exceeds (A) 10% of the principal amount of such 2008
Notes on the Effective Date multiplied by (B) the number of whole or partial
calendar weeks since the Effective Date;
(b) that
until the earlier of (A) 105 days following the Effective Date and (B) the
Authorization Date (as defined in the Purchase Agreement) such Holder shall not
convert any 2008 Notes into shares of Common Stock in the aggregate in excess of
such Holder’s pro-rata allocation and shall not to assert its rights arising out
of any event of default arising under Section 2.1(g) of the 2008
Note(s). For purposes of this Section 5(b), a Holder’s “pro rata
allocation” shall be equal to (A) 4,940,290,505, multiplied by (B) a fraction,
the numerator of which shall be the total outstanding principal amount of all
2008 Note(s) held by such Holder on the Effective Date and the denominator of
which shall be the total outstanding principal amount of all 2008 Notes then
outstanding;
2.
(c) that
such Holder will convert all 2008 Notes held by such Holder into shares of
Common Stock pursuant to Section 3.1(a) thereof on or before the fifth Trading
Day following the receipt by such Holder of the written request of the Company
(the “Conversion
Notice”) in the event that on the date that the Conversion Notice is sent
by the Company, the Daily VWAP has exceeded $0.20 (as appropriately adjusted for
stock splits, stock dividends, reorganizations, recapitalizations, stock
combinations and the like) for each of the twenty (20) consecutive prior Trading
Days ending on the Trading Day immediately prior to such date; provided, that the Equity
Conditions (as defined in the 2008 Notes) shall have been satisfied and the
Common Stock shall have been Tradable (as defined in the 2008 Notes) on each
Trading Day during the period beginning on the first day of such 20-day period
and ending on the date of the delivery of such shares of Common Stock pursuant
to such conversion;
6. Covenants of the
Company. The Company hereby agrees that at any time any
unexercised Purchase Rights or New Notes issued upon exercise of the Purchase
Rights remain outstanding:
(a) Negative
Covenants. Without the prior written consent of the Holders of
at least two-thirds of the then outstanding and unexercised Purchase Rights and
the then outstanding principal amount of New Notes issued upon exercise of the
Purchase Rights (together, as one class):
(i) No Liens. Other than
Permitted Liens, the Company shall not, and shall not permit its Subsidiaries
to, enter into, create, incur, assume or suffer to exist any Liens on or with
respect to any of its assets now owned or hereafter acquired or any interest
therein or any income or profits therefrom.
(ii) No Indebtedness. The
Company shall not, and shall not permit any Subsidiary to, enter into, create,
incur, assume or suffer to exist any Indebtedness, other than Indebtedness
existing on the date hereof and disclosed in the Transaction
Documents.
(iii) Compliance with this
Agreement. The Company shall not, and shall not permit any Subsidiary to,
fail comply with its and their obligations under this Agreement.
(iv) Compliance with Law.
The Company shall not, and shall not permit any Subsidiary to, fail to comply
with law and duly observe and conform in all material respects to all valid
requirements of governmental authorities relating to the conduct of its and
their business or to its and their properties or assets.
3.
(v) Transactions with
Affiliates. The Company shall not, and shall not permit its Subsidiaries
to, engage in any transactions with any officer, director, employee or any
Affiliate of the Company, including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
officer, director or such employee or, to the knowledge of the Company, any
entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee or partner, in each case in excess
of $50,000, other than (i) for payment of reasonable salary for services
actually rendered, as approved by the Board of Directors of the Company as fair
in all respects to the Company, (ii) reimbursement for expenses incurred on
behalf of the Company and (iii) as otherwise contemplated by this
Agreement.
(vi) No Dividends. The
Company shall not, and shall not permit any Subsidiary to, (i) declare or pay
any dividends or make any distributions to any holder(s) of Common Stock or
other equity security of the Company or such Subsidiaries (other than dividend
and distributions from a Subsidiary to the Company), (ii) purchase or otherwise
acquire for value, directly or indirectly, any shares or other equity security
of the Company, (iii) form or create any subsidiary, become a partner in any
partnership or joint venture, or make any acquisition of any interest in any
Person or acquire substantially all of the assets of any Person, or (iv)
transfer, assign, pledge, issue or otherwise permit any equity or other
ownership interests in the Subsidiaries to be beneficially owned or held by any
Person other than the Company.
(vii) No Merger or Sale of
Assets. The Company shall not, and shall not permit any Subsidiary to,
(i) merge or consolidate or sell or dispose of all its assets or any substantial
portion thereof or (ii) in any way or manner alter its organizational structure
or effect a change of entity or (iii) effect a Change of Control.
(viii) Payment of Taxes,
Etc. The Company shall not, and shall not permit any Subsidiary to, fail
to promptly pay and discharge, or cause to be paid and discharged, when due and
payable, all lawful taxes, assessments and governmental charges or levies
imposed upon the income, profits, property or business of the Company and the
Subsidiaries, except for such failures to pay that, individually or in the
aggregate, have not had and would not reasonably be expected to have a Material
Adverse Effect; provided,
however, that any such tax, assessment, charge or levy need not be paid
if the validity thereof shall currently be contested in good faith by
appropriate proceedings and if the Company or such Subsidiaries shall have set
aside on its books adequate reserves with respect thereto, and provided,
further, that the Company and such Subsidiaries will pay all such taxes,
assessments, charges or levies forthwith upon the commencement of proceedings to
foreclose any lien which may have attached as security therefor.
(ix) Corporate Existence.
The Company shall not, and shall not permit any Subsidiary to, fail to maintain
in full force and effect its corporate existence, rights and franchises and all
licenses and other rights to use property owned or possessed by it and
reasonably deemed to be necessary to the conduct of its business.
(x) Investment Company
Act. The Company shall not conduct its businesses in a manner so that it
will become subject to the Investment Company Act of 1940, as
amended.
(xi) Maintenance of
Assets. The Company shall not, and shall not permit any Subsidiary to,
fail to keep its properties in good repair, working order and condition,
reasonable wear and tear excepted, and from time to time make all necessary and
proper repairs, renewals, replacements, additions and improvements
thereto.
4.
(xii) Indebtedness to
Affiliates. The Company shall not, and shall not permit any Subsidiary
to, make any payment on any Indebtedness owed to officers, directors or
Affiliates.
(xiii) Restriction on
Dividends. The Company shall not, and shall not permit any Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary to pay
dividends or distributions to the Company, pay any Indebtedness owed to the
Company or transfer any properties or assets to the Company.
(xiv) No Lien on
IP. The Company shall not, and the Company shall not permit
any of its Subsidiaries to, directly or indirectly, encumber or allow any Liens
on, any of its copyright rights, copyright applications, copyright registrations
and like protections in each work of authorship and derivative work, whether
published or unpublished, any patents, patent applications and like protections,
including improvements, divisions, continuations, renewals, reissues,
extensions, and continuations-in-part of the same, trademarks, service marks
and, to the extent permitted under applicable law, any applications therefor,
whether registered or not, and the goodwill of the business of the Company and
its Subsidiaries connected with and symbolized thereby, know-how, operating
manuals, trade secret rights, rights to unpatented inventions, and any claims
for damage by way of any past, present, or future infringement of any of the
foregoing, other than Permitted Liens.
(xv) No Material Change in
Management. The Company shall not permit or suffer to exist a change in
the personnel in any material management position, except that the death,
disability or resignation of any member of management (but not the replacement
thereof) shall not constitute a change for the purposes of this
section. The Company shall not permit or suffer to exist a change in
more than two directors comprising the Board of Directors, except that the
death, disability or resignation of any director (but not the replacement
thereof) shall not constitute a change for the purposes of this
section.
(xvi) Charter Documents.
The Company shall not modify, alter, repeal or amend the charter documents of
the Company or any Subsidiary of the Company.
(xvii) Equity Interests.
Except for Permitted Financings the Company shall not authorize, reclassify,
recapitalize, issue, offer or exchange any securities or other equity interests
of the Company or any of its Subsidiaries, including, without limitation, any
and all shares of capital stock, securities convertible into, or exchangeable or
exercisable for, such shares, and options, warrants or other rights to acquire
such shares and any securities that represent the right to receive any of the
foregoing.
(xviii) Benefit Plans; Compensation
Arrangements. The Company shall not adopt, amend or terminate
any equity incentive plan or benefit plan, or any compensation plan, arrangement
or agreement, in each case for the benefit of officers or directors of the
Company or any Subsidiary of the Company; provided that the foregoing
shall not apply to the amendment or termination any medical, dental or vision
plan broadly available on the same terms to all employees of
Company.
5.
(xix) Expenditures. The
Company shall not (i) make any capital expenditure for an amount greater than
US$200,000, (ii) dispose of any asset for an amount greater than US$200,000 or
less than the book value of such asset (other than the sale of inventory in the
ordinary course of business), (iii) acquire or purchase any interest in any real
property for an amount greater than US$200,000, in each case regardless of
whether or not such amounts were set forth in the 2009 Budget provided to the
Holders herewith (the “Budget”).
(xx) Public Offering;
Registration. The Company shall not make any public offering of
securities of Company or any Subsidiary of Company and, without the prior
written approval of the Holders of at least two-thirds of the then outstanding
Purchase Rights, the Company shall not register any securities of the Company or
any Subsidiary of the Company.
(xxi) Material
Agreements. The Company shall not enter into, extend,
terminate or otherwise materially modify or amend: (i) any Material Agreement
and (ii) any other agreement with an Affiliate, officer, director or stockholder
of the Company or any Subsidiary of the Company.
(xxii) Financing. The
Company shall not enter or agree to any debt or equity financing or any other
capital raising transaction or transactions with any Person, other than
Permitted Financings.
(xxiii) Investments, Partnerships
and Joint Ventures. The Company shall not (i) subscribe, purchase or
acquire any securities of, or any interest in, or the making of any contribution
to, any Person (other than contributions by the Company or any Subsidiary of the
Company to the Company or any Subsidiary of the Company), (ii) create or cause
to be formed any new Subsidiary, (iii) enter into any partnerships, joint
ventures or consortiums, or (iv) otherwise transfer all or any part of the
businesses of the Company or any Subsidiary of the Company to another
Person.
(xxiv) Compensation. The
Company shall not (i) increase or change the compensation package (including
salary, bonus and equity incentives, if any) of any member of the management
team of the Company or any Subsidiary of the Company if the value of the total
compensation package, following such increase or change, would exceed *** or
(ii) make any payments to any member of the management team or board of
directors of the Company in respect of any deferred or foregone
compensation.
(xxv) Litigation. The
Company shall not commence or settle any litigation or claim involving a
monetary payment greater than US$250,000 or which imposes restrictions on the
Company or any Subsidiary of the Company or the conduct of its businesses,
except collection actions against third parties in the ordinary course of
business.
(xxvi) Tax and Accounting
Practices. The Company shall not adopt any position for purposes of any
financial statements that, in the reasonable judgment of the Holders, shall have
a Material Adverse Effect on the Company or any Subsidiary of the Company, taken
as a whole, or on any of the Holders.
6.
(xxvii) Other
Businesses. The Company shall not engage, directly or
indirectly, in any business other than the business currently conducted by the
Company.
(xxviii) ***. The Company shall not (A) expend
any funds, use any assets or commit any resources, in each case, received from
the sale and issuance of New Notes, or (B) incur any liabilities, in each of
clause A and clause B ***.
(xxix) ***. The
Company shall not (A) expend any funds, use any assets or commit any resources,
in each case, received from the sale and issuance of New Notes, or (B) incur any
liabilities, in each of clause A and clause B ***.
(xxx) Agreements. The
Company shall not enter into any agreement, understanding or arrangement that
could reasonably be expected to result in the occurrence of any action, event or
condition specified in this Section 6(a).
(b) Participation
Right.
(i) The
Company covenants and agrees to promptly notify (in no event later than five
days after making or receiving an applicable offer) in writing (a “Rights Notice”) each
Institutional Holder then holding outstanding Purchase Rights (each a “Rights Holder”) of
the terms and conditions of any proposed offer or sale to, or exchange with (or
other type of distribution to) any third party, of Common Stock or any
securities convertible, exercisable or exchangeable into Common Stock, including
convertible debt securities, or any debt instrument (a “Subsequent
Financing”). The Rights Notice shall describe, in reasonable detail, the
proposed Subsequent Financing, the names and investment amounts of all investors
participating in the Subsequent Financing, the proposed closing date of the
Subsequent Financing, which shall be within 20 calendar days from the date of
the Rights Notice, and all of the terms and conditions thereof and proposed
definitive documentation to be entered into in connection therewith. The Rights
Notice shall provide each Rights Holder an option (the “Rights Option”)
during the 10 Trading Days following delivery of the Rights Notice (the “Option Period”) and
subject to the Rights Option granted to the Purchasers under the Purchase
Agreement, to inform the Company whether such Rights Holder will purchase
securities in such Subsequent Financing equal to up to its pro rata portion of
the securities being offered in such Subsequent Financing on the same terms and
conditions as contemplated by such Subsequent Financing. If any Rights Holder
elects not to participate in such Subsequent Financing, the other Rights Holders
may participate on a pro-rata basis. For purposes of this Section,
all references to “pro rata” mean, for any Rights Holder electing to participate
in such Subsequent Financing, the percentage obtained by dividing (x) the total
dollar amount of such Holder’s then outstanding and unexercised Purchase Right
by (y) the aggregate Purchase Right Value then held by all
Holders. Delivery of any Rights Notice constitutes a representation and
warranty by the Company that there are no other material terms and conditions,
arrangements, agreements or otherwise except for those disclosed in the Rights
Notice, to provide additional compensation to any party participating in any
proposed Subsequent Financing, including, but not limited to, additional
compensation based on changes in the Purchase Price or any type of reset or
adjustment of a purchase or conversion price or to issue additional securities
at any time after the closing date of a Subsequent Financing. If the
Company does not receive notice of exercise of the Rights Option from the Rights
Holders within the Option Period, the Company shall have the right to close the
Subsequent Financing on the scheduled closing date with a third party; provided that all of
the material terms and conditions of the closing are substantially the same as
those provided to the Rights Holders in the Rights Notice. In
addition, if due to the participation of the holders of the New Notes in such
Subsequent Financing the Company is unable to offer the full amount of the
Rights Options set forth herein, the Company shall limit the available Rights
Options under this Agreement for such Subsequent Closing pro-rata among the
Holders to accommodate the interests of the holders of the New
Notes. If the closing of the proposed Subsequent Financing does not
occur on the scheduled closing date, any closing of the contemplated Subsequent
Financing or any other Subsequent Financing shall be subject to all of the
provisions of this Section 6(b), including, without limitation, the delivery of
a new Rights Notice.
7.
(ii) For
purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall
not be considered a Subsequent Financing. A “Permitted Financing”
shall mean (1) issuances of shares of Common Stock or options to employees,
officers, directors or consultants of the Company pursuant to any stock or
option plan duly adopted by a majority of the non-employee members of the Board
of Directors of the Company or a majority of the members of a committee of
non-employee directors established for such purpose, duly approved by the
Company’s stockholders and described in the Public Filings, including up to
8,400,000 shares reserved for issuance under the 2007 Stock Incentive Plan; (2)
issuances of securities upon the exercise or exchange of or conversion of any
securities exercisable or exchangeable for or convertible into shares of Common
Stock issued and outstanding on the Effective Date and described in the Public
Filings, provided that such securities have not been amended since the Effective
Date to increase the number of such securities or to decrease the exercise,
exchange or conversion price of any such securities; and (3) securities issued
in any transaction that is approved in writing by the holders of at least two
thirds of the principal amount of the then outstanding Purchase
Rights.
7. Repurchase
Right. If at any time the Company breaches the terms of this
Agreement, and the Company receives written notice from the Holders of such
breach, each Holder shall have the right, after the Company is given 10 days to
cure such breach, at such Holder’s option and upon 10 days prior written notice
to the Company (the “Repurchase Notice”),
to require the Company to repurchase such Holder’s then outstanding Purchase
Rights by paying to the Holder, (a) the greater of (i) three times the total
dollar amount of such Holder’s then outstanding and unexercised Purchase Right
or (ii) three times the value of the Common Stock then held by such Holder under
such Holder’s then outstanding Purchase Right assuming the exercise of all of
such Holder’s then outstanding and unexercised Purchase Rights and conversion of
the Notes issuable upon exercise of such Purchase Right into Common Stock, and
(b) all amounts, expenses and costs otherwise due to such Holder in connection
with this Agreement. For purposes of this Section 7, the value of the
Company’s Common Stock shall be highest Daily VWAP on any date between (and
including) (x) the date the repurchase is demanded or otherwise due, or (y) the
date the repurchase is made. In the event the Company receives a
Repurchase Notice from more than one Holder of the Purchase Rights and the
Company can repurchase some, but not all, of the Notes pursuant to this Section
7, the Company shall repurchase from each Holder electing to require the
repurchase of its Purchaser Rights at such time an amount equal to each such
Holder’s pro-rata amount (based on the dollar amount of the then outstanding and
unexercised Purchase Right held by such Holder relative to aggregate dollar
amount of all outstanding and unexercised Purchase Rights for which the Company
has received Repurchase Notices) of all the Purchase Rights being repurchased at
such time. In such event, the portion of a Holder’s Purchase Right
that has not been repurchased shall remain outstanding until such time as the
Company pays to such Holder, all amounts due under this Section
7. Upon payment in full of all amounts due under this Section 7 with
respect to a Holder, such Holder’s Purchase Right shall be
extinguished.
8.
8. Interest
Payments. Without waiving any right to receive payments of
interest in the amounts forth in the 2008 Notes, each Holder hereby agrees to
accept, as payment of any interest amount otherwise due under the 2008 Notes,
newly-issued 2008 Notes having a principal amount equal to the amount of such
Interest payment due and to treat the receipt of such newly-issued 2008 Notes
the same as the receipt of cash for purposes of such interest
payments.
9. Acknowledgement. For
the purpose of clarification, the parties hereby confirm that notwithstanding
Section 3.5(c) of the 2008 Notes the Conversion Price (as defined in the 2008
Notes) adjustment set forth in Section 3.5(a)(vi) of the 2008 Notes resulting
from the Financing shall cause the Conversion Price of the 2008 Notes to be
adjusted such that, for each $1,000 in principal amount of the 2008 Notes, the
holder thereof shall be issued 500,000 shares, subject to future adjustment as
set forth in the 2008 Notes.
For purposes of clarification, at all
times after the Effective Date, the amount of consideration received for
Additional Shares of Common Stock, as determined in accordance with Section
3.5(a)(vi) of the 2008 Notes, shall not include the value of any additional
securities or other rights received in connection with such issuance of
Additional Shares of Common Stock (ie. warrants, rights of first refusal or
other similar rights).
10. Specific Performance;
Consent to Jurisdiction; Venue.
(a) The
Company and the Holders acknowledge and agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent or cure breaches of the provisions of this Agreement or
the other Transaction Documents and to enforce specifically the terms and
provisions hereof or thereof without the requirement of posting a bond or
providing any other security, this being in addition to any other remedy to
which any of them may be entitled by law or equity.
9.
(b) The
parties agree that venue for any dispute arising under this Agreement will lie
exclusively in the state or federal courts located in New York County, New York,
and the parties irrevocably waive any right to raise forum non conveniens or any
other argument that New York is not the proper venue. The parties irrevocably
consent to personal jurisdiction in the state and federal courts of the state of
New York. The Company and each Holder consent to process being served in any
such suit, action or proceeding by mailing a copy thereof 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 in this Section 10(b) shall affect or limit any right to
serve process in any other manner permitted by law. The Company and the Holders
hereby agree that the prevailing party in any suit, action or proceeding arising
out of or relating to the this Agreement or the other Transaction Documents,
shall be entitled to reimbursement for reasonable legal fees from the
non-prevailing party. The parties hereby waive all rights to a trial by
jury.
11. Entire Agreement;
Amendment. This Agreement contains the entire understanding and agreement
of the parties with respect to the matters covered hereby and, except as
specifically set forth herein, neither the Company nor any Holder make any
representation, warranty, covenant or undertaking with respect to such matters,
and they supersede all prior understandings and agreements with respect to said
subject matter, all of which are merged herein. No provision of this Agreement
may be waived or amended other than by a written instrument signed by the
Company and at least two-thirds of the Holders. The Holders
acknowledge that any amendment or waiver effected in accordance with this
Section 11 shall be binding upon each Holder (and their permitted assigns) and
the Company, including, without limitation, an amendment or waiver that has an
adverse effect on any or all Holders.
12. Notices. Any notice,
demand, request, waiver or other communication required or permitted to be given
hereunder shall be in writing and shall be effective (a) upon hand delivery by
telecopy or facsimile at the address or number designated below (if delivered on
a business day during normal business hours where such notice is to be
received), or the first business day following such delivery (if delivered other
than on a business day during normal business hours where such notice is to be
received) or (b) on the second business day following the date of mailing by
express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for
such communications shall be:
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If
to the Company or its Subsidiaries:
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Genta
Incorporated
000
Xxxxxxx Xxxxx
Xxxxxxxx
Xxxxxxx, XX 00000
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Attention:
Xxxxxxx X. Xxxxxxx, Xx., M.D.
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Telephone
No.: (000) 000-0000
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Telecopy
No.: (000) 000-0000
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with
copies to:
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Xxxxxx,
Xxxxx & Xxxxxxx LLP
000
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
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|
Attention:
Xxxxxx Xxxxxx
|
||
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Telephone
No.: (000) 000-0000
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||
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Telecopy
No.: (000) 000-0000
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10.
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If
to any Holder:
|
At
the address of such Holder set forth on Exhibit A to
this Agreement, with copies to Holder’s counsel as set forth on Exhibit A or as
specified in writing by such Holder, with a copy to:
|
|
|
With
a copy to:
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Xxxxxx
Godward Kronish LLP
|
|
|
0000
Xxxxxxxx Xxxx
|
||
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Xxx
Xxxxx, XX 00000
|
||
|
Attention:
Xxxxx Xxxxxxxxxxx
|
||
|
Telephone
No.: (000) 000-0000
|
||
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Telecopy
No.: (000)
000-0000
|
Any party
hereto may from time to time change its address for notices by giving written
notice of such changed address to the other party hereto.
13. Waivers. No waiver by
a party of any default with respect to any provision, condition or requirement
of this Agreement shall be deemed to be a continuing waiver in the future or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of any party to exercise any right hereunder in any manner
impair the exercise of any such right accruing to it thereafter.
14. Headings. The
article, section and subsection headings in this Agreement are for convenience
only and shall not constitute a part of this Agreement for any other purpose and
shall not be deemed to limit or affect any of the provisions
hereof.
15. Successors and
Assigns. This Agreement shall be binding upon and inure to the benefit of
the parties and their successors and assigns. The Holders may assign the rights
under this Agreement without the consent of the Company.
16. No Third Party
Beneficiaries. This Agreement is intended for the benefit of the parties
hereto and their respective permitted successors and assigns and is not for the
benefit of, nor may any provision hereof be enforced by, any other
person.
17. Governing Law. This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York, without giving effect to any of the conflicts of
law principles which would result in the application of the substantive law of
another jurisdiction. This Agreement shall not be interpreted or construed with
any presumption against the party causing this Agreement to be
drafted.
18. Counterparts. This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument and shall become effective
when counterparts have been signed by each party and delivered to the other
parties hereto, it being understood that all parties need not sign the same
counterpart.
11.
19. Publicity. The
Company agrees that it will not disclose, and will not include in any public
announcement, the names of the Holders without the consent of the Holders, which
consent shall not be unreasonably withheld or delayed, or unless and until such
disclosure is required by law, rule or applicable regulation, and then only to
the extent of such requirement. Notwithstanding the foregoing, the Holders
consent to being identified in any filings the Company makes with the SEC to the
extent required by law or the rules and regulations of the SEC.
20. Severability. The
provisions of this Agreement are severable and, in the event that any court of
competent jurisdiction shall determine that any one or more of the provisions or
part of the provisions contained in this Agreement shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision or part of a
provision of this Agreement and this Agreement shall be reformed and construed
as if such invalid or illegal or unenforceable provision, or part of such
provision, had never been contained herein, so that such provisions would be
valid, legal and enforceable to the maximum extent possible.
21. Further Assurances.
From and after the date of this Agreement, upon the request of the Holders or
the Company, the Company and each Holder shall execute and deliver such
instruments, documents and other writings as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement.
22. Effectiveness of this
Agreement. This Agreement shall be effective as of the
Effective Date, provided that if the First Closing (as defined in the Purchase
Agreement) of the Financing does not occur within three business days of the
Effective Date, this Agreement shall automatically terminate and be of no
further force and effect and the rights of the parties shall revert to those
rights held by such parties prior to the effectiveness of this Agreement, as if
this Agreement had never been executed.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
12.
In Witness
Whereof, the parties have caused this Consent
Agreement to be executed as of the Effective Date.
|
GENTA
INCORPORATED
|
|
|
By:
|
|
|
Name:
|
Xxxxxxx
X. Xxxxxxx, Xx., M.D.
|
|
Title:
|
Chairman
and Chief Executive Officer
|
[SIGNATURE
PAGES CONTINUE]
[HOLDER
SIGNATURE PAGES TO CONSENT AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Consent Agreement to be duly
executed by their respective authorized signatories as of the date first
indicated above.
Name of
Holder:
_________________________________________________________________________
Signature of Authorized Signatory of
Holder: ___________________________________________________
Name of
Authorized Signatory:
_____________________________________________________________________
Title of
Authorized Signatory:
______________________________________________________________________
Email
Address of
Holder:_________________________________________________________________
Fax
Number of Holder:
_________________________________________________________________
Address
for Notice of Holder:
Address
for Delivery of Securities for Holder (if not same as address for
notice):
[SIGNATURE
PAGES CONTINUE]
