June 15, 2007 STRICTLY CONFIDENTIAL Michael D. Becker President & Chief Executive Officer Cytogen Corporation
June
15, 2007
STRICTLY
CONFIDENTIAL
Xxxxxxx
X. Xxxxxx
President
& Chief Executive Officer
Cytogen
Corporation
000
Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Princeton,
NJ 08540
Dear
Xx.
Xxxxxx:
This
letter (the “Agreement”) constitutes the agreement among Cytogen Corporation
(the “Company”) and Xxxxxx & Xxxxxxx, LLC (“Xxxxxx”) and Xxxx Capital
Partners LLC (“Xxxx”, and together with Xxxxxx, the “Placement Agents”), that
Xxxxxx and Xxxx shall serve as co-placement agents, to perform placement agent
services (the “Services”) for the Company, on a “best efforts” basis, in
connection with the proposed offer and placement (the “Offering”) by the Company
of securities of the Company (the “Securities”). The terms of the Offering and
the Securities shall be mutually agreed upon by the Company and the investors
and nothing herein implies that either Placement Agent would have the power
or
authority to bind the Company or an obligation for the Company to issue any
Securities or complete the Offering. The Company expressly
acknowledges and agrees that the Placement Agents’ obligations hereunder are on
a best efforts basis only and that the execution of this Agreement does not
constitute a commitment by either of the Placement Agents to purchase the
Securities and does not ensure the successful placement of the Securities or
any
portion thereof or the success of either of the Placement Agents with respect
to
securing any other financing on behalf of the Company.
A. Fees
and Expenses. In connection with the Services described above,
the Company shall pay to the Placement Agents the following
compensation:
1. Placement
Agents’ Fee. The Company shall pay to the Placement Agents an
aggregate cash placement fee (the “Placement Agents’ Fee”) equal to 6% of the
aggregate purchase price paid by each purchaser of Securities that are placed
in
the Offering. The Placement Agents’ Fee shall be allocated between
the Placement Agents, as follows: 65% to Xxxxxx and 35% to
Xxxx.
2. Warrants. As
additional compensation for the Services, the Company shall issue to the
Placement Agents or their respective designees at the closing of the Offering
(the “Closing”), warrants (the “Placement Agent Warrants”) to purchase that
number of shares of common stock of the Company (“Shares”) equal to an aggregate
of 6% of the aggregate number of Shares placed in the Offering. The
Placement Warrants shall have the same terms, including exercise price and
registration rights, as the warrants issued to investors (“Investors”) in the
Offering. The Placement Agents’ Warrants shall be allocated between
the Placement Agents as follows: 65% to Xxxxxx and 35% to
Xxxx.
3. Expenses. In
addition to any fees payable to the Placement Agents hereunder, but only if
an
Offering is consummated, the Company hereby agrees to reimburse the Placement
Agents for their respective reasonable travel and other out-of-pocket expenses
incurred by either Placement Agent in
connection
with the engagement of the Placement Agents hereunder, including the reasonable
fees and expenses of Placement Agents’ counsel. Such reimbursement
shall be limited to an aggregate of $25,000 without prior written approval
by
the Company. The expenses shall be allocated between the Placement
Agents in proportion to their respective expenses incurred, as submitted to
the
Company at closing.
X. Xxxx
and Termination of Engagement. The term (the “Term”) of the
Placement Agents’ engagement will begin on the date hereof and end on the
earlier of the consummation of the Offering or 15 days after the receipt by
either party hereto of written notice of termination; provided that no such
notice may be given by the Company for a period of 30 days after the date
hereof. 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 will
survive any expiration or termination of this Agreement.
C. Fee
Tail. The Placement Agents shall be entitled to a Placement
Agent’s Fee and Placement Agent Warrants, calculated in the manner provided in
Paragraph A, with respect to any subsequent public or private offering or other
financing or capital-raising transaction of any kind (other than a bona fide
licensing transaction, a sale of a portion of the Company’s assets, a financing
in connection with the acquisition of another entity or its assets, or any
strategic transaction not involving securities of any type) (“Subsequent
Financing”) to the extent that such financing or capital is provided to the
Company by investors whom either of the Placement Agents had introduced to
the
Company during the Term, if such Subsequent Financing is consummated at any
time
within the 9-month period following the expiration or termination of this
Agreement (the “Tail Period”). Any fees payable in connection with a
Subsequent Financing shall be allocated between the Placement Agents as
follows: 65% to Xxxxxx and 35% to Xxxx.
D. Use
of Information. The Company will furnish the Placement Agents
such written information as either of the Placement Agents shall reasonably
request in connection with the performance of its services
hereunder. The Company understands, acknowledges and agrees that, in
performing its services hereunder, the Placement Agents will use and rely
entirely upon such information as well as publicly available information
regarding the Company and other potential parties to an Offering and that
neither Placement Agent assumes responsibility for independent verification
of
the accuracy or completeness of any information, whether publicly available
or
otherwise furnished to it, concerning the Company or otherwise relevant to
an
Offering, including, without limitation, any financial information, forecasts
or
projections considered by either Placement Agent in connection with the
provision of its services.
E. Confidentiality. In
the event of the consummation or public announcement of any Offering, each
Placement Agent shall have the right to disclose its participation in such
Offering, including, without limitation, the placement at its cost of
“tombstone” advertisements in financial and other newspapers and journals. Each
Placement Agent agrees not to use any confidential information concerning the
Company provided to each Placement Agent by the Company for any purposes other
than those contemplated under this Agreement.
F. Securities
Matters. The Company shall be responsible for any and all
compliance with the securities laws applicable to it, including Regulation
D and
the Securities Act of 1933, and Rule 506 promulgated thereunder, and unless
otherwise agreed in writing, all state securities (“blue sky”) laws. Each
Placement Agent agrees to cooperate with counsel to the Company in that
regard.
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G. Indemnity.
1. In
connection with the Company’s engagement of Xxxxxx and Xxxx as placement agents,
the Company hereby agrees to indemnify and hold harmless each Placement Agent
and their respective Affiliates, and the respective controlling persons,
directors, officers, shareholders, agents and employees of any of the foregoing
(collectively the “Indemnified Persons”), from and against any and all claims,
actions, suits, proceedings (including those of shareholders), damages,
liabilities and expenses incurred by any of them (including the reasonable
fees
and expenses of counsel), (collectively a “Claim”), which are (A) related to or
arise out of (i) any actions taken or omitted to be taken (including any untrue
statements made of a material fact or any statements of a material fact omitted
to be made) by the Company, or (ii) any actions taken or omitted to be taken
by
any Indemnified Person in connection with the Company’s engagement of the
Placement Agents, or (B) otherwise relate to or arise out of either Placement
Agent’s activities on the Company’s behalf under their engagement, and the
Company shall reimburse any Indemnified Person for all expenses (including
the
reasonable fees and expenses of counsel) incurred by such Indemnified Person
in
connection with investigating, preparing or defending any such claim, action,
suit or proceeding, whether or not in connection with pending or threatened
litigation in which any Indemnified Person is a party. The Company
will not, however, be responsible for any Claim, which is finally judicially
determined to have resulted from the gross negligence or willful misconduct
of
any person seeking indemnification for such Claim. The Company
further agrees that no Indemnified Person shall have any liability to the
Company for or in connection with the Company’s engagement of Xxxxxx or Xxxx,
except for any Claim incurred by the Company as a result of such Indemnified
Person’s gross negligence or willful misconduct.
2. The
Company further agrees that it will not, without the prior written consent
of
Xxxxxx and/or Xxxx, as applicable, settle, compromise or consent to the entry
of
any judgment in any pending or threatened Claim in respect of which
indemnification may be sought hereunder (whether or not any Indemnified Person
is an actual or potential party to such Claim), unless such settlement,
compromise or consent includes an unconditional, irrevocable release of each
Indemnified Person from any and all liability arising out of such
Claim.
3. Promptly
upon receipt by an Indemnified Person of notice of any complaint or the
assertion or institution of any Claim with respect to which indemnification
is
being sought hereunder, such Indemnified Person shall notify the Company in
writing of such complaint or of such assertion or institution but failure to
so
notify the Company shall not relieve the Company from any obligation it may
have
hereunder, except and only to the extent such failure results in the forfeiture
by the Company of substantial rights and defenses. If the Company so
elects or is requested by such Indemnified Person, the Company will assume
the
defense of such Claim, including the employment of counsel reasonably
satisfactory to such Indemnified Person and the payment of the fees and expenses
of such counsel. In the event, however, that legal counsel to such Indemnified
Person reasonably determines that having common counsel would present such
counsel with a conflict of interest or if the defendant in, or target of, any
such Claim, includes an Indemnified Person and the Company, and legal counsel
to
such Indemnified Person reasonably concludes that there may be legal defenses
available to it or other Indemnified Persons different from or in addition
to
those available to the Company, then such Indemnified Person may employ its
own
separate counsel to represent or defend him, her or it in any such Claim and
the
Company shall pay the reasonable fees and expenses of such
counsel. Notwithstanding anything herein to the contrary, if the
Company fails timely or diligently to defend, contest, or otherwise protect
against any Claim, the relevant Indemnified Party shall have the right, but
not
the obligation, to defend, contest, compromise, settle, assert crossclaims,
or
counterclaims or otherwise protect against the same, and shall be fully
indemnified by the Company therefor, including without limitation, for the
reasonable fees and expenses of its counsel and all amounts paid as a result
of
such Claim or the compromise or settlement thereof. In addition, with
respect to any Claim in which the Company assumes the defense, the
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Indemnified
Person shall have the right to participate in such Claim and to retain his,
her
or its own counsel therefor at his, her or its own expense.
4. The
Company agrees that if any indemnity sought by an Indemnified Person hereunder
is held by a court to be unavailable for any reason then (whether or not either
Placement Agent is the Indemnified Person), the Company and the Placement Agents
shall contribute to the Claim for which such indemnity is held unavailable
in
such proportion as is appropriate to reflect the relative benefits to the
Company, on the one hand, and the Placement Agents on the other, in connection
with the Placement Agents’ engagement referred to above, subject to the
limitation that in no event shall the amount of either Placement Agent’s
contribution to such Claim exceed the amount of fees actually received by such
Placement Agent from the Company pursuant to the Placement Agents’
engagement. The Company hereby agrees that the relative benefits to
the Company, on the one hand, and the Placement Agents on the other, with
respect to the Placement Agents’ engagement shall be deemed to be in the same
proportion as (a) the total value paid or proposed to be paid or received by
the
Company or its stockholders as the case may be, pursuant to the Offering
(whether or not consummated) for which is the Placement Agents are engaged
to
render services bears to (b) the fee paid or proposed to be paid to the
Placement Agents in connection with such engagement.
5. The
Company’s indemnity, reimbursement and contribution obligations under this
Agreement (a) shall be in addition to, and shall in no way limit or otherwise
adversely affect any rights that any Indemnified Party may have at law or at
equity and (b) shall be effective whether or not the Company is at fault in
any
way.
H. Limitation
of Engagement to the Company. The Company acknowledges that
Xxxxxx and Xxxx have been retained only by the Company, that each Placement
Agent is providing services hereunder as an independent contractor (and not
in
any fiduciary or agency capacity) and that the Company’s engagement of the
Placement Agents is not deemed to be on behalf of, and is not intended to confer
rights upon, any shareholder, owner or partner of the Company or any other
person not a party hereto as against Xxxxxx, Xxxx, or any of their respective
affiliates, or any of its or their respective officers, directors, controlling
persons (within the meaning of Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934), employees or agents. Unless
otherwise expressly agreed in writing by Xxxxxx and Xxxx, no one other than
the
Company is authorized to rely upon this Agreement or any other statements or
conduct of the Placement Agents, and no one other than the Company is intended
to be a beneficiary of this Agreement. The Company acknowledges that
any recommendation or advice, written or oral, given by either Placement Agent
to the Company in connection with the engagement of the Placement Agents is
intended solely for the benefit and use of the Company’s management and
directors in considering a possible Offering, and any such recommendation or
advice is not on behalf of, and shall not confer any rights or remedies upon,
any other person or be used or relied upon for any other
purpose. Neither Placement Agent shall have the authority to make any
commitment binding on the Company. The Company, in its sole
discretion, shall have the right to reject any investor introduced to it by
either Placement Agent. The Company agrees that it will perform and
comply with the covenants and other obligations set forth in the purchase
agreement and related transaction documents between the Company and the
investors in the Offering, and that either Placement Agent will be entitled
to
rely on the representations, warranties, agreements and covenants of the Company
contained in such purchase agreement and related transaction documents as if
such representations, warranties, agreements and covenants were made directly
to
such Placement Agent by the Company.
I. Limitation
of Placement Agents’ Liability to the Company. The Placement
Agents and the Company further agree that neither Placement Agent nor any of
their respective affiliates or any of their respective officers, directors,
controlling persons (within the meaning of Section 15 of the Act or Section
20
of the Exchange Act of 1934), employees or agents shall have any liability
to
the Company, its
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security
holders or creditors, or any person asserting claims on behalf of or in the
right of the Company (whether direct or indirect, in contract, tort, for an
act
of negligence or otherwise) for any losses, fees, damages, liabilities, costs,
expenses or equitable relief arising out of or relating to this Agreement or
the
Services rendered hereunder, except for losses, fees, damages, liabilities,
costs or expenses that arise out of or are based on any action of or failure
to
act by either Placement Agent and that are finally judicially determined to
have
resulted solely from the gross negligence or willful misconduct of such
Placement Agent.
J. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements
made
and to be fully performed therein. Any disputes which arise under
this Agreement, even after the termination of this Agreement, will be heard
only
in the state or federal courts located in the City of New York, State of New
York. The parties hereto expressly agree to submit themselves to the
jurisdiction of the foregoing courts in the City of New York, State of New
York.
The parties hereto expressly waive any rights they may have to contest the
jurisdiction, venue or authority of any court sitting in the City and State
of
New York. In the event of the bringing of any action, or suit by a
party hereto against the other party hereto, arising out of or relating to
this
Agreement, the party in whose favor the final judgment or award shall be entered
shall be entitled to have and recover from the other party the costs and
expenses incurred in connection therewith, including its reasonable attorneys’
fees. Any rights to trial by jury with respect to any such action,
proceeding or suit are hereby waived by Xxxxxx and the Company.
K. Notices. All
notices hereunder will be in writing and sent by certified mail, hand delivery,
overnight delivery or telefax, if sent to Xxxxxx, to Xxxxxx & Xxxxxxx, LLC,
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Telefax
number (000) 000-0000, Attention: Xxxxxx Xxxxx, and if sent to the Company,
to
Cytogen Corporation, 000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxxxxxxxx, Xxx Xxxxxx
00000, Telefax number (000) 000-0000, Attention: Xxxxx Xxxxxxx, CFO, with a
copy
to Xxxxxxx X. Xxxxxx, General Counsel, Telefax number (000)
000-0000. Notices sent by certified mail shall be deemed received
five days thereafter, notices sent by hand delivery or overnight delivery shall
be deemed received on the date of the relevant written record of receipt, and
notices delivered by telefax shall be deemed received as of the date and time
printed thereon by the telefax machine.
L. Miscellaneous. This
Agreement shall not be modified or amended except in writing signed by Xxxxxx,
Roth, and the Company. This Agreement shall be binding upon and inure
to the benefit of Xxxxxx, Xxxx, and the Company and their respective assigns,
successors, and legal representatives. This Agreement constitutes the
entire agreement of Xxxxxx, Xxxx, and the Company with respect to the subject
matter hereof and supersedes any prior agreements. 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, and the
remainder of the Agreement shall remain in full force and
effect. This Agreement may be executed in counterparts (including
facsimile counterparts), each of which shall be deemed an original but all
of
which together shall constitute one and the same instrument.
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In
acknowledgment that the foregoing correctly sets forth the understanding reached
by Xxxxxx, Xxxx and the Company, please sign in the space provided below,
whereupon this letter shall constitute a binding Agreement as of the date
indicated above.
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Very
truly yours,
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XXXXXX
& XXXXXXX, LLC
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By:
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/s/ | |
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Name:
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Title:
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XXXX
CAPITAL PARTNERS, LLC
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By:
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/s/ | |
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Name:
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Title:
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Accepted
and Agreed:
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CYTOGEN
CORPORATION
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| /s/ Xxxxxxx X. Xxxxxx |
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Name:
Xxxxxxx X. Xxxxxx
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Title:
Senior Vice President and
General
Counsel
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