EXHIBIT 10.2
[XXXXXX & XXXXXXX LOGO]
September 19, 2006
CONFIDENTIAL
Xxxxxxx X. Xxxxx
Chief Financial Officer
Genta Incorporated
Xxx 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 "Securities") of the
Company, including shares (the "Shares") of the Company's common stock (the
"Common Stock"). The terms of such Placement 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 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) The fees set forth below with respect to the Placement:
A cash fee payable immediately upon the closing of the Placement and equal
to 5% of the aggregate gross proceeds raised in the Placement.
(B) The Company also agrees to reimburse R&R's expenses (with supporting
invoices/receipts) up to a maximum of $20,000. Such reimbursement shall be
payable immediately upon (but only in the event of) the closing of the
Placement.
SECTION 2. REGISTRATION STATEMENT.
The Company represents and warrants to, and agrees with, the Placement Agent
that:
Genta Incorporated
09/19/2006
Page 2
(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 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
Genta Incorporated
09/19/2006
Page 3
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. The Company will not, without the prior consent of the Placement
Agent, 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 NASD 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.
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
Genta Incorporated
09/19/2006
Page 4
provisions of which are incorporated herein by reference and shall survive the
termination or expiration of this Agreement.
SECTION 5. ENGAGEMENT TERM. R&R's engagement hereunder will be for the period of
10 days. Notwithstanding anything to the contrary contained herein, the
provisions concerning confidentiality, indemnification, contribution and the
Company's obligations to pay fees and reimburse expenses contained herein and
the Company's obligations contained in the Indemnification Provisions 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 their 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. 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 8. CLOSING. The obligations of the Placement Agent and the Purchasers,
and the closing of the sale of the Securities hereunder are subject to the
accuracy, when made and on the 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 hereunder, and to each 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.
Genta Incorporated
09/19/2006
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(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) 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 National Market, and satisfactory evidence of such actions shall have
been provided to the Placement Agent. 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 National Market, nor has the Company received any
information suggesting that the Commission or Nasdaq National 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 National 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.
Genta Incorporated
09/19/2006
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(I) The Company shall have prepared and filed with the Commission a
Current Report on Form 8-K with respect to the Placement, including as an
exhibit thereto 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) The NASD 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
NASDR, 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.
SECTION 9. 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 10. 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,
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09/19/2006
Page 7
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 11. 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.
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09/19/2006
Page 8
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,
XXXXXX & XXXXXXX, LLC
By:
-------------------------------
Name:
Title:
Address for notice:
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX, 00000
Accepted and Agreed to as of
the date first written above:
GENTA INCORPORATED
By:
----------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, Chief Financial
Officer & Corporate Secretary
Address for notice:
000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Genta Incorporated
Indemnification Provisions
09/19/2006
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
September 19, 2006, 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, 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 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, 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 R&R under the Agreement
(excluding any amounts received as reimbursement of expenses incurred by
R&R).
Genta Incorporated
Indemnification Provisions
09/19/2006
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:
-----------------------------
Name:
Title:
Accepted and Agreed to as of
the date first written above:
GENTA INCORPORATED
By:
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, Chief Financial Officer &
Corporate Secretary
