CONTRIBUTION AGREEMENT by and between CYTRX CORPORATION and RXI PHARMACEUTICALS CORPORATION January 8, 2007
EXHIBITS
| EXHIBIT A | Form of Xxxx of Sale | |||
| EXHIBIT B | Form of Assignment and Assumption Agreement | |||
| EXHIBIT C | Registration Rights Terms |
THIS CONTRIBUTION AGREEMENT is dated as of January 8, 2007 and is made by and between CytRx
Corporation, a Delaware corporation (“CytRx”), and RXi Pharmaceuticals Corporation, a
Delaware corporation (“RXi”). CytRx and RXi are sometimes referred to herein individually
as a “Party” and collectively as the “Parties.”
RECITALS:
A. CytRx has assisted in the formation of RXi for the purpose of carrying out the RXi Business (as
defined below).
B. CytRx desires to transfer to RXi certain technology, contractual rights and obligations and
intellectual property rights relating to or useful for the conduct of the RXi Business, and RXi
desires to obtain such technology, contractual rights and obligations and intellectual property
rights.
C. The Parties intend for the transactions contemplated by this Agreement to qualify as a
contribution pursuant to Section 351 of the Code (as defined below).
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, CytRx and
RXi agree as follows:
ARTICLE 1
DEFINITIONS
DEFINITIONS
All capitalized terms used herein and not otherwise defined herein shall have the respective
meanings set forth below:
1.1. “Affiliate” shall mean a Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with the Person of which such
Person is deemed an Affiliate. “Control” (and, with correlative meanings, the terms “controlled
by” and “under common control with”) shall mean the possession of the power to direct or cause the
direction of the management and policies of such Person, whether through the ownership of voting
stock, by contract or otherwise. In the case of a corporation, “control” shall mean, among other
things, the direct or indirect ownership of more than fifty percent (50%) of a Person’s outstanding
voting stock. For the purposes of this Agreement, neither Party hereto shall be considered an
Affiliate of the other Party hereto.
1.2. “Agreement” shall mean this Contribution Agreement by and between CytRx and RXi.
1.3. “Assigned Contracts” shall mean the Contracts listed on Schedule 1.3 hereto.
1.4. “Assumed Liabilities” shall have the meaning set forth in Section 2.2(a) hereof.
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1.5. “Business Documents” shall have the meaning set forth in Section 2.1(a)(vi) hereof.
1.6. “Closing” shall have the meaning set forth in Section 2.3 hereof.
1.7. “Closing Date” shall mean the date of the Closing.
1.8. “Code” shall mean the Internal Revenue Code of 1986, as amended.
1.9. “Common Stock” shall mean the common stock, $0.0001 par value per share, of RXi.
1.10. “Contracts” shall mean any contracts, agreements, leases, mortgages or other
arrangements.
1.11. “CytRx” shall have the meaning set forth in the preamble to this Agreement.
1.12. “Damages” shall mean out-of-pocket losses, damages, assessments, fines, penalties, fees,
expenses, costs (including reasonable attorney’s fees) or amounts paid in settlement, but shall
exclude punitive, consequential, special damages or lost profits.
1.13. “Effective Time” shall mean 11:59 p.m. Eastern Standard Time on the Closing Date.
1.14. “Encumbrances” shall mean any charge, claim, equitable interest, lien, license, option,
pledge, security interest, mortgage, right of way, easement, encroachment, restriction on transfer
and right of first offer or first refusal other than Permitted Encumbrances.
1.15. “Excluded Assets” shall have the meaning set forth in Section 2.1(b) hereof.
1.16. “FICA” shall mean any applicable taxes established under the Federal Insurance
Contribution Act.
1.17. “Force Majeure” shall mean any contingency beyond the reasonable control of the Party
claiming to be affected, including, without limitation, an act of God, judicial or regulatory
action, war, civil commotion, destruction of production facilities or materials by explosion, fire,
earthquake, flood or storm, and labor disturbances (whether or not any such labor disturbance is
within the power of the affected Party to settle).
1.18. “Governmental Entity” shall mean any United States federal, state or local or any
foreign government, or political subdivision thereof, or any multinational organization or
authority or any authority, agency or commission entitled to exercise any administrative,
executive, judicial, legislative, police, regulatory or taxing authority or power or any court or
tribunal (or any department, bureau or division thereof).
1.19. “Indemnified Party” shall mean a party seeking indemnification under Sections 7.1 or 7.2
hereof.
1.20. “Indemnifying Party” shall mean the party from which indemnification is sought under
Sections 7.1 or 7.2 hereof.
1.21. “Indemnity Claim” means a claim for indemnity under Section 7.1 or 7.2, as the case may
be.
1.22. “Intellectual Property” shall mean all rights and interests (including contractual
rights) pertaining to or deriving from: (a) patents, copyrights and trade marks; (b) trade names,
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service marks and service names; (c) registrations, applications, and licenses relating to any
of the foregoing; and (d) any and all technology, inventions or technical information, whether
patentable or not, discovered, invented or developed before the Effective Time.
1.23. “Legal Requirement” shall mean any United States federal, state or local or foreign law,
statute, ordinance or regulation, or any Governmental Order, or any license, franchise or permit
granted under any of the foregoing.
1.24. “Material Adverse Effect” shall mean any change in, or effect on, the RXi Business or
the Transferred Assets (including on the operations or financial condition of the RXi Business)
which, when considered either individually or in the aggregate together with all other adverse
changes or effects with respect to which such phrase is used in this Agreement, is materially
adverse to the RXi Business or the Transferred Assets; provided, however, that the following shall
not be deemed to constitute a Material Adverse Effect: (a) the loss of a RXi Employee after the
date of this Agreement or (b) any matter resulting from or arising out of (i) actions taken in
connection with the transactions contemplated by this Agreement and the pendency of the
transactions contemplated hereby; (ii) the condition of the United States economy, financial
markets or political conditions generally; (iii) a condition generally affecting participants in
the life sciences industry; or (iv) hostilities or terrorist activities, any war or other national
or international calamity or emergency.
1.25. “Ordinary Course of Business” means an action taken by any Person in the ordinary course
of such Person’s business which is consistent with the past customs and practices of such Person.
1.26. “Organizational Documents” means, with respect to any Person, the certificate or
articles of incorporation or organization and any joint venture, limited liability company,
operating or partnership agreement and other similar documents adopted or filed in connection with
the creation, formation or organization of such Person and all by-laws of such Person, in each
case, as amended or supplemented.
1.27. “Party” and “Parties” shall have the meaning set forth in the preamble to this
Agreement.
1.28. “Permitted Encumbrances” shall mean (i) those encumbrances set forth in Schedule 1.2828
of this Agreement, (ii) all encumbrances approved in writing by RXi, (iii) mechanics’,
materialmen’s, carriers’, workers’, repairers’ and similar statutory liens, (iv) zoning,
entitlement, building and other land use regulations imposed by governmental agencies, (v) deposits
or pledges made in connection with, or to secure payment of, worker’s compensation, unemployment
insurance, and pension programs mandated under applicable Legal Requirements or other social
security, (vi) encumbrances arising out of operation of law with respect to any and all debts,
liabilities and obligations, whether accrued or fixed, known or unknown, absolute or contingent,
matured or unmatured or determined or determinable incurred in the Ordinary Course of Business and
which are not delinquent, (vii) covenants, conditions, restrictions, easements, encumbrances and
other similar matters of record, (viii) restrictions on the transfer of securities arising under
federal, state or foreign securities laws, (ix) such easements, restrictions of record and other
non-monetary encumbrances or other imperfections of title as do not materially detract from the
value or unreasonably interfere with the use of or the conduct of the RXi Business or the
Transferred Assets, or (x) statutory liens for Taxes, special assessments or other governmental
charges not yet due and payable.
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1.29. “Person” shall mean any individual or corporation, association, partnership, limited
liability company, joint venture, joint stock or other company, business trust, trust,
organization, Governmental Entity or other entity of any kind.
1.30. “Plans” shall mean all pension, profit sharing, retirement, deferred compensation,
welfare, insurance, disability, bonus, vacation pay, severance pay and similar plans, programs or
arrangements, including without limitation, all employee benefit plans as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) covering current
employees or former employees of CytRx employed in conducting the RXi Business.
1.31. “RXi Business” shall mean the development, manufacture and/or commercialization of
therapeutic products related to, based on or utilizing RNA interference technology.
1.32. “RXi” shall have the meaning set forth in the preamble to this Agreement.
1.33. “Securities Act” shall mean the Securities Act of 1933, as amended.
1.34. “Shares” shall have the meaning set forth in Section 3.1 hereof.
1.35. “Tax” means any and all federal, state, local, or foreign income, gross receipts,
license, payroll, employment, excise, social security (including FICA), unemployment, real
property, sales, use, value added or alternative minimum including any interest or penalties unless
subject to a good faith dispute.
1.36. “Third Party” shall mean any Person other than CytRx or RXi and their respective
Affiliates.
1.37. “Third Party Claim” shall have the meaning set forth in Section 7.3.
1.38. “Transfer Impediment” shall have the meaning set forth in Section 6.1(a) hereof.
1.39. “Transferred Assets” shall have the meaning set forth in Section 2.1(a) hereof.
1.40. “Transferred Technology” shall mean Intellectual Property that is used exclusively by
CytRx in its conduct of the RXi Business at the Closing Date and any remedies against any and all
past, present and future infringements thereof and rights to protections of interest therein.
ARTICLE 2
TRANSFER OF ASSETS
TRANSFER OF ASSETS
2.1 Contribution and Purchase of Transferred Assets.
(a) CytRx hereby contributes, transfers, assigns, conveys, and delivers to RXi and its
successors and assigns, for its and their own use and behalf, all of CytRx’s right, title, and
interest in and to the following assets, other than the Excluded Assets (the “Transferred Assets”),
and all goodwill associated therewith, and RXi hereby accepts the contribution, transfer,
assignment, conveyance and delivery of the Transferred Assets and agrees to fully and entirely
stand in the place of CytRx in all matters related thereto:
(i) the Assigned Contracts;
(ii) the Transferred Technology;
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(iii) all (a) accounting and other books and records, (b) correspondence, (c)
reports, (d) studies and (e) documents and other business records and files (“Business
Documents”) to the extent related exclusively to the RXi Business at the Effective Time;
and
(iv) the equipment listed on Schedule 2.1(a)(iv) of this Agreement.
(b) Notwithstanding anything to the contrary contained in Section 2.1 or elsewhere in this
Agreement, the following properties, assets and rights of CytRx (collectively, the “Excluded
Assets”) are excluded from the Transferred Assets:
(i) the names and marks “CytRx” and any variants and derivations thereof;
(ii) all items listed in Schedule 2.1(b)(ii) of this Agreement;
(iii) all claims for refunds of Taxes and other governmental charges of whatever
nature;
(iv) all rights in connection with and assets of any Plans;
(v) all insurance policies and rights thereunder;
(vi) all personnel and other records that CytRx is required by law to retain in its
possession;
(vii) CytRx’s rights under this Agreement; and
(viii) CytRx’s rights under any Contracts not included in the Assumed Liabilities.
2.2 Assumption of Liabilities.
(a) At the Effective Time, RXi shall assume and agree to discharge and be responsible for all
of the liabilities and obligations, known and unknown, whether absolute or contingent, to the
extent (but only to the extent) that such liabilities and obligations relate to the Transferred
Assets or the RXi Business (the “Assumed Liabilities”), including without limitation:
(i) all of CytRx’s payment, performance and other obligations under the Assigned
Contracts, whether arising prior to, on or after the Effective Time;
(ii) all other liabilities relating to the Transferred Assets, whether incurred
prior to, on or after the Effective Time.
(b) Except as provided under this Section 2.22.1(b)(viii), RXi shall not assume or agree to
perform, pay or discharge, or have any liability for, and CytRx shall remain unconditionally liable
for and shall discharge, any obligations, liabilities and commitments of CytRx, of any kind or
nature, known or unknown, fixed or contingent (the “Excluded Liabilities”).
(c) The assumption of the liabilities by RXi under this Section 2.2 shall not enlarge any
rights of Third Parties under Contracts with RXi or CytRx.
2.3 Closing. The closing of the transactions contemplated hereby (the “Closing”) shall
take place at the offices of Ropes & Xxxx LLP, One International Place, Boston,
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Massachusetts, on the date hereof at 10:00 a.m. local time, or at such other place as CytRx
and RXi agree in writing. The Closing shall be effective as of the Effective Time.
2.4 Deliveries.
(a) At the Closing and subject to Section 6.1 hereof, CytRx shall deliver or cause to be
delivered to RXi all of the Transferred Assets, and in furtherance thereof:
(i) CytRx shall deliver or cause to be delivered to RXi all of the Assigned
Contracts with such assignments thereof and consents to assignments as are necessary to
transfer to RXi CytRx’s full right, title and interest in the same;
(ii) CytRx shall execute and deliver to RXi a xxxx of sale in substantially the
form attached hereto as Exhibit A (the “Xxxx of Sale”) and an Assignment and Assumption
Agreement in substantially the form attached hereto as Exhibit B (the “Assignment and
Assumption Agreement”); and
(iii) RXi shall execute and deliver to CytRx the Assignment and Assumption
Agreement and deliver to CytRx the Shares (as defined in Section 3.1).
(b) In addition, within 90 days after the Closing, CytRx shall make available, transfer, and
deliver any and all physical embodiments of the Transferred Technology to RXi.
ARTICLE 3
CONSIDERATION
CONSIDERATION
3.1 Consideration. In consideration of the contribution, transfer and rights granted to RXi
hereunder, RXi agrees to issue to CytRx 3,953 shares of the Common Stock of RXi, par value $0.0001
per share (the “Shares”), which, when aggregated with the 200 shares of the Common Stock of RXi
held by CytRx on the date hereof, shall represent 85.366% of the issued and outstanding shares of
RXi as of the Effective Time. CytRx acknowledges that the certificates representing the Shares will
contain customary legends as are required by the Delaware General Corporation Law and regarding
restrictions on transferability under federal and state securities laws
3.2 Reporting. The Parties intend that the consummation of the transactions contemplated by
this Agreement will constitute a contribution to which the provisions of Section 351(a) of the Code
apply, and each of the Parties agrees to report the consummation of such transactions as such for
federal, state and local income tax purposes. Each of CytRx and RXi shall duly and timely file
their respective tax returns for their taxable year in which the transactions contemplated by this
Agreement are consummated containing the information required under Treasury Regulation Section
1.351-3. The Parties shall cooperate with each other in timely providing the information necessary
for the filing of such information.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF CYTRX
REPRESENTATIONS AND WARRANTIES OF CYTRX
CytRx represents and warrants to RXi as of the Closing Date that:
4.1 Organization and Qualification. CytRx is a corporation, validly existing and in good
standing under the laws of the State of Delaware with all requisite corporate power and authority
to execute, deliver and perform its obligations under this Agreement.
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4.2 Authorization. The execution, delivery and performance of this Agreement have been duly
authorized by all necessary corporate action on the part of CytRx.
4.3 No Conflicts. Except as would not reasonably be expected to have a Material Adverse
Effect and subject to obtaining any third party consents referred to in the final sentence of this
Section 4.3, the execution, delivery and performance by CytRx of this Agreement will not:
| (a) | result in a material breach or violation of, or default under, any obligation under a Contract; or | ||
| (b) | result in a breach or violation of, or default under, the Organizational Documents of CytRx. |
No consents, waivers or approvals under any of CytRx’s or any of its subsidiaries’ Contracts are
required to be obtained in connection with the consummation of the transactions contemplated
hereby, except for those the absence of which would not reasonably be expected to have a Material
Adverse Effect.
4.4 Title to Properties. CytRx has sole and exclusive title to, or right to use, the
Transferred Assets, other than the Transferred Technology (which are covered in Section 4.45).
4.5 Intellectual Property. To its knowledge and without any independent investigation, CytRx
has not (i) interfered with or misappropriated any Intellectual Property rights of Third Parties
that is included in the Transferred Assets or (ii) received any written charge, complaint, claim,
demand, or notice alleging any such interference or misappropriation (including any claim that
CytRx must license or refrain from using any Intellectual Property rights of any third party in
connection with the conduct of the RXi Business).
4.6 Permits. All of the approvals, authorizations, permits, licenses, waivers, filings and
consents required to be made, obtained or given by CytRx to accomplish the transactions
contemplated by this Agreement, have been made or obtained by CytRx, unless the failure to obtain
any such approval, authorization, permit, license, waiver, filing or consent would not,
individually or collectively, reasonably be expected to have a Material Adverse Effect.
4.7 Agreements, Contracts and Commitments. A true and correct list of all Assigned Contracts
are listed in Schedule 1.3. CytRx is not in arrears on any payment due under any of the Assigned
Contracts. CytRx has not received a notice of default from any other party to any of the Assigned
Contracts.
4.8 Representations Regarding the Shares.
(a) CytRx is acquiring the Shares for its own account, for investment and not for, with a view
to, or in connection with, any distribution or public offering thereof within the meaning of the
Securities Act.
(b) CytRx understands that the Shares have not been, and will not be, registered under the
Securities Act or any state securities law, by reason of their issuance in a transaction exempt
from the registration requirements of the Securities Act and such laws, that the Shares must be
held indefinitely unless they are subsequently registered under the Securities Act and such laws or
a subsequent disposition thereof is exempt from registration, that the certificates for the Shares
shall bear a legend to such effect, and that appropriate stop transfer instructions may
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be issued. CytRx further understands that such exemption depends upon, among other things,
the bona fide nature of CytRx’s investment intent expressed herein.
(c) CytRx has not been formed for the specific purpose of acquiring the Shares pursuant to
this Agreement. CytRx understands the term “accredited investor” as used in Regulation D
promulgated under the Securities Act and represents and warrants to RXi that it is an “accredited
investor” for purposes of acquiring the Shares hereunder.
(d) CytRx has sufficient knowledge and experience in business and financial matters and with
respect to investment in securities of privately held companies so as to enable it to analyze and
evaluate the merits and risks of the investment contemplated hereby and is capable of protecting
its interest in connection with this transaction. CytRx is able to bear the economic risk of such
investment, including a complete loss of the investment.
(e) CytRx acknowledges that it and its representatives have had the opportunity to ask
questions and receive answers from officers and representatives of RXi concerning RXi and its
business and the transactions contemplated by this Agreement and to obtain any additional
information which RXi possesses or can acquire that is necessary to verify the accuracy of the
information regarding RXi herein set forth or otherwise desired in connection with its acquisition
of the Shares hereunder.
(f) CytRx understands that the exemption from registration afforded by Rule 144 (the
provisions of which are known to CytRx) promulgated by the Securities and Exchange Commission under
the Securities Act depends upon the satisfaction of various conditions, and that such exemption is
not currently available.
4.9 Disclaimer. CytRx shall not be deemed to have made to RXi any representation or warranty
other than as expressly made by CytRx in this Article 4.
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND COVENANTS OF RXi
REPRESENTATIONS, WARRANTIES AND COVENANTS OF RXi
RXi represents, warrants, and covenants to CytRx as of the Closing Date as follows:
5.1 Organization and Qualification. RXi is a corporation, validly existing and in good
standing under the laws of the State of Delaware with all requisite corporate power and authority
to execute, deliver, and perform its obligations under this Agreement and under the Assigned
Contracts.
5.2 Authorization. The execution, delivery, and performance of this Agreement have been duly
authorized by all necessary corporate action on the part of RXi.
5.3 No Conflicts. Except as would not reasonably be expected to have a Material Adverse
Effect, the execution, delivery and performance by RXi of this Agreement will not:
| (a) | result in a material breach or violation of, or default under, any Contractual Obligation of RXi; or | ||
| (b) | result in a breach or violation of, or default under, the Organizational Documents of RXi. |
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5.4 Capitalization. Immediately prior to the Effective Time, the authorized capital stock of
RXi consists of 1,000,000 shares of Common Stock, 912 shares of which are issued and outstanding.
5.5 Issuance of the Shares. The issuance, sale and delivery of the Shares in accordance with
this Agreement have been duly authorized and reserved for issuance by all necessary corporate
action on the part of RXi. The Shares, when so issued, sold and delivered against payment therefor
in accordance with the provisions of this Agreement, will be duly and validly issued, fully paid
and non-assessable.
5.6 Permits. All of the approvals, authorizations, permits, licenses, waivers, filings and
consents required to be made, obtained or given by RXi to accomplish the transactions contemplated
by this Agreement have been made or obtained by RXi, unless the failure to obtain any such
approval, authorization, permit, license, waiver, filing or consent would not, individually or
collectively, reasonably be expected to materially adversely affect CytRx or otherwise result in a
material diminution of the benefits of the transactions contemplated by this Agreement to CytRx.
5.7 Compliance with Laws. RXi shall comply with all applicable laws and regulations in
performing its obligations under this Agreement. In particular, it is understood and acknowledged
that the transfer of certain commodities and technical data is subject to United States laws and
regulations controlling the export of such commodities and technical data, including all Export
Administration Regulations of the United States Department of Commerce. These laws and
regulations, among other things, prohibit or require a license for the export of certain types of
technical data to certain specified countries. RXi hereby agrees and gives assurance that in
performing its obligations under this Agreement it will comply with all United States laws and
regulations controlling the export of commodities and technical data, that it will be solely
responsible for any violation of such by RXi or its Affiliates or sublicensees under this
Agreement, excluding CytRx, and that it will defend and hold CytRx harmless in the event of any
legal action of any nature occasioned by such violation.
ARTICLE 6
CERTAIN AGREEMENTS AND COVENANTS OF THE PARTIES
CERTAIN AGREEMENTS AND COVENANTS OF THE PARTIES
6.1 Inability to Transfer Assets.
(a) If and to the extent that the transfer to RXi of any Transferred Asset from CytRx would be
a violation of applicable laws or agreements or require any consent or governmental approval in
connection with the transactions contemplated hereby that has not been obtained by the Effective
Time (a “Transfer Impediment”), then, unless the Parties shall otherwise determine, the transfer or
assignment to RXi of such Transferred Asset shall be automatically deemed deferred and any such
purported transfer shall be null and void until such time as all relevant Transfer Impediments are
removed or obtained, as applicable, and CytRx shall not be obligated to transfer such asset except
as provided in Section 6.1(b) below. Notwithstanding the foregoing, such asset shall still be
considered a Transferred Asset for purposes of determining whether any Liability is an Assumed
Liability.
(b) If the transfer or assignment of any asset intended to be transferred or assigned
hereunder is not consummated prior to or on the Effective Time, whether as a result the
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provisions of Section 6.1(a) or for any other reason, then CytRx shall hold such asset for the
use and benefit, insofar as reasonably possible and not in violation of a Transfer Impediment, of
RXi (at the expense of RXi) and shall take such other actions as may be reasonably requested by RXi
in order to place RXi, insofar as reasonably possible and not in violation of a Transfer
Impediment, in the same position as if such asset had been transferred as contemplated hereby and
so that all the benefits and burdens relating to such asset, including possession, use, risk of
loss, potential for gain, and dominion, control and command over such asset, are to inure from and
after the Effective Time to RXi. If and when a Transfer Impediment which caused the deferral of a
transfer of any asset pursuant to Section 6.1(a) is removed or obtained, as applicable, the
transfer of the applicable asset shall be effected in accordance with the terms of this Agreement.
The Parties shall cooperate and use reasonable efforts, without the requirement to make any payment
or make a material concession, to remove or obtain, as applicable, any Transfer Impediment which
prohibits the transfer or assignment of assets hereunder.
6.2 Inability to Assign Liabilities. If the assignment of an Assumed Liability to RXi
hereunder is prohibited by a Transfer Impediment, CytRx shall continue to be bound by the relevant
obligations and, unless not permitted by law or the terms of the relevant obligation, RXi shall, as
agent or subcontractor for CytRx, pay, perform and discharge fully, or cause to be paid,
transferred or discharged all the obligations or other liabilities of CytRx thereunder. CytRx
shall, without further consideration, pay and remit, or cause to be paid or remitted, to RXi
promptly all money, rights and other consideration received by it in respect of such performance
(unless any such consideration is an Excluded Asset). If and when such Transfer Impediment is
removed or obtained, as applicable, or such obligations shall otherwise become assignable, the
transfer of the applicable liability shall be effected in accordance with the terms of this
Agreement. The parties shall cooperate and use reasonable efforts, without the requirement to make
any payment or make a material concession, to remove or obtain, as applicable, any Transfer
Impediment, which prohibits the assignment of any Assumed Liability hereunder.
6.3 Further Assurances. Each of CytRx and RXi agrees to duly execute and deliver, or cause to
be duly executed and delivered, such further instruments and do and cause to be done such further
acts and things, including, without limitation, the execution of such additional assignments,
agreements, documents and instruments, that may be necessary or as the other Party hereto may at
any time and from time to time reasonably request in connection with this Agreement or to carry out
more effectively the provisions and purposes of, or to better assure and confirm unto such other
Party its rights and remedies under, this Agreement.
6.4 Access. RXi agrees that CytRx and its accountants, counsel and other representatives
shall have the right, at CytRx’s own expense, at any time or from time to time during reasonable
business hours upon reasonable notice, to inspect and make copies of or extracts from any of books
and records of the RXi Business in the possession of RXi to the extent relating to the operation of
the RXi Business or ownership of the Transferred Assets prior to the Effective Time, in each case
only to the extent such inspections would not reasonably be expected to interfere with the conduct
RXi of its business.
ARTICLE 7
LIMITATION OF LIABILITY AND INDEMNIFICATION
LIMITATION OF LIABILITY AND INDEMNIFICATION
7.1 Indemnification by CytRx. Subject to Sections 7.4 and 8.2, CytRx shall indemnify RXi from
and against Damages, incurred by RXi as a result of any breach of a
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representation or warranty, or material breach of a covenant, made by CytRx in this Agreement.
The calculation of any such Damage will reflect (i) the amount of any tax benefit reasonably
expected to be recognized by RXi for tax purposes and (ii) the amount of any insurance proceeds
received by RXi in respect of such Damage.
7.2 Indemnification by RXi. Subject to Sections 7.4 and 8.2, RXi shall indemnify CytRx from
and against Damages incurred by CytRx as a result of:
(a) any breach of a representation or warranty, or material breach of a covenant, made by RXi
in this Agreement;
(b) any failure of RXi to discharge any Assumed Liabilities; or
(c) RXi’s operation of the RXi Business after the Closing Date.
7.3 Claims. Except as otherwise provided herein, if any third party notifies an Indemnified
Party with respect to any matter (a “Third Party Claim”) which may give rise to an Indemnity Claim
against an Indemnifying Party under this Article 7 then the Indemnified Party will promptly give
written notice to the Indemnifying Party; provided, however, that no delay on the part of the
Indemnified Party in notifying the Indemnifying Party will relieve the Indemnifying Party from any
obligation under this Article 7, except to the extent such delay prejudices the Indemnifying Party.
The Indemnifying Party will be entitled to control the defense of any Third Party Claim. In
addition, the Indemnifying Party will have the right to participate in the defense of any Third
Party Claim for which it does not assume control. The Indemnified Party may retain separate
co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim for
which the Indemnifying Party has assumed control. If the Indemnifying Party does not elect to
control the defense of a Third Party Claim, the Indemnified Party will control the defense of the
Third Party Claim. The Indemnified Party will not, however, without the prior written consent of
the Indemnifying Party, consent to the entry of any judgment or enter into any compromise or
settlement with respect to the Third Party Claim.
7.4 Limitations on Indemnification.
(a) No party shall be obligated pursuant to this Article 7 or for any other reason or cause to
indemnify the other in an amount in excess of $10,000,000.
(b) No indemnification shall be payable pursuant to this Article 7 unless the amount of all
claims for indemnification exceeds $100,000 in the aggregate, and, after all claims for
indemnification exceed such amount, the Indemnifying Party shall be required to indemnify the
Indemnified Parties with respect to all damages claimed by the Indemnified Parties.
(c) No action or claim pursuant to this Article 7 shall be brought or asserted after the date
twelve (12) months from the Closing Date.
7.5 Exclusive Remedy. The indemnification provisions of this Article 7 shall be the sole and
exclusive remedy for both Parties following the Closing Date with respect to any matter arising out
of the transactions contemplated hereby.
ARTICLE 8
TERM AND SURVIVAL
TERM AND SURVIVAL
8.1 Term. Subject to Section 8.2 herein, this Agreement shall be effective as of the date
hereof and shall continue in full force and effect indefinitely.
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8.2 Survival. The representations and warranties contained in Article 4 and Article 5 herein
shall survive the Closing Date, except that all such representations and warranties shall expire on
the date twelve (12) months after the Closing Date, except with respect to and to the extent of any
claims of which written notice specifying in reasonable detail, the nature and amount of the
claims, has been given by RXi to CytRx, or by CytRx to RXi, as the case may be, prior to such
expiration.
ARTICLE 9
MISCELLANEOUS
MISCELLANEOUS
9.1 Compliance with Bulk Sales Laws. The parties hereby waive compliance with the bulk sales
law and any other similar laws in any applicable jurisdiction in respect of the transactions
contemplated by this Agreement, including, without limitation, any applicable state tax law that
may require notification of state taxing authorities and related actions in respect of bulk sales
of assets outside of the ordinary course of business.
9.2 Registration Rights. The terms of Exhibit C hereto are incorporated into this
Agreement as if set forth fully herein.
9.3 Notices. Any notice, request, consent or other communication to CytRx or RXi shall be in
writing and shall be deemed given (i) when delivered personally or when sent by facsimile
transmission and confirmed by telephone or electronic transmission report, (ii) on the next
business day after timely delivery to a generally recognized receipted overnight courier (such as
FedEx) and (iii) on the third business day after deposit in the U.S. mail (certified or registered
mail, return receipt requested, postage prepaid), addressed to the Party at such Party’s address as
set forth below or as subsequently modified by written notice delivered as provided herein, as
follows:
If to CytRx, to:
CytRx Corporation
00000 Xxx Xxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
00000 Xxx Xxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxxxx, Esq.
Xxxx & Xxxxx PC
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxx & Xxxxx PC
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to RXi, to:
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RXi Pharmaceuticals Corporation
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
Telephone:
Facsimile:
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
Telephone:
Facsimile:
with a copy to:
Xxxx X. Xxxxxxxxxx
Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
9.3 Entire Agreement. This Agreement, together with any agreements referenced herein,
constitutes, on and as of the date hereof, the entire agreement of CytRx and RXi with respect to
the subject matter hereof, and all prior or contemporaneous understandings or agreements, whether
written or oral, between CytRx and RXi with respect to such subject matter are hereby superseded in
their entirety.
9.4 No Implied Waivers; Rights Cumulative. No failure on the part of CytRx or RXi to exercise
and no delay in exercising any right, power, remedy or privilege under this Agreement, or provided
by statute or at law or in equity or otherwise, including, without limitation, the right or power
to terminate this Agreement, shall impair, prejudice or constitute a waiver of any such right,
power, remedy or privilege or be construed as a waiver of any breach of this Agreement or as an
acquiescence therein, nor shall any single or partial exercise of any such right, power, remedy or
privilege preclude any other or further exercise thereof or the exercise of any other right, power,
remedy or privilege.
9.5 Amendments. No amendment, modification, waiver, termination or discharge of any provision
of this Agreement, nor consent to any departure by CytRx or RXi therefrom, shall in any event be
effective unless the same shall be in writing specifically identifying this Agreement and the
provision intended to be amended, modified, waived, terminated or discharged and signed by the
Party against whom enforcement of such amendment is sought, and each such amendment, modification,
waiver, termination or discharge shall be effective only in the specific instance and for the
specific purpose for which given. No provision of this Agreement shall be varied, contradicted or
explained by any oral agreement, course of dealing or performance or any other matter not set forth
in an agreement in writing and signed by the Party against whom enforcement of such variation,
contradiction or explanation is sought.
9.6 Successors and Assigns; Third-Party Beneficiaries. The terms and provisions of this
Agreement shall inure to the benefit of, and be binding upon, CytRx, RXi and their respective
successors and assigns. This Agreement is for the sole benefit of the parties and their permitted
successors and assignees no other provision of this Agreement will give or be construed to give any
Person, other than the parties and such successors and assignees, any legal or equitable rights
hereunder.
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9.7 Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without regard to the conflicts of laws provisions thereof.
9.8 Force Majeure. If the performance of any part of this Agreement by either Party, or of
any obligation under this Agreement, is prevented, restricted, interfered with or delayed by Force
Majeure, unless conclusive evidence to the contrary is provided, the Party so affected shall, on
giving written notice to the other Party, be excused from such performance to the extent of such
prevention, restriction, interference or delay, provided that the affected Party shall use its
commercially reasonable efforts to avoid or remove such causes of nonperformance and shall continue
performance with the utmost dispatch whenever such causes are removed. When such circumstances
arise, the Parties shall discuss what, if any, modification of the terms of this Agreement may be
required in order to arrive at an equitable solution.
9.9 Severability. If any provision hereof should be held invalid, illegal or unenforceable in
any respect in any jurisdiction, then, to the fullest extent permitted by law, (a) all other
provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally
construed in order to carry out the intentions of the Parties hereto as nearly as may be possible
and (b) such invalidity, illegality or unenforceability shall not affect the validity, legality or
enforceability of such provision in any other jurisdiction. To the extent permitted by applicable
law, CytRx and RXi hereby waive any provision of law that would render any provision hereof
prohibited or unenforceable in any respect.
9.10 Headings. Headings used herein are for convenience only and shall not in any way affect
the construction of, or be taken into consideration in interpreting, this Agreement.
9.11 Execution in Counterparts. This Agreement may be executed in any number of counterparts,
each of which counterparts, when so executed and delivered, shall be deemed to be an original, and
all of which counterparts, taken together, shall constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed in their
respective corporate names by their respective authorized representatives as of the date first set
forth above.
| RXI PHARMACEUTICALS CORPORATION | CYTRX CORPORATION | |||||||
By:
|
/s/ Xxx Xxxxx | By: | /s/ Xxxxxx X. Xxxxxxxxx | |||||
| Name: Xxx Xxxxx | Name: Xxxxxx X. Xxxxxxxxx | |||||||
| Title: President | Title: President and CEO | |||||||
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Exhibits and Schedules to Contribution Agreement dated January 8, 2007
EXHIBIT A:
|
Form of Xxxx of Sale | |
EXHIBIT B:
|
Form of Assignment and Assumption Agreement | |
EXHIBIT C:
|
Registration Rights Terms | |
Schedule 1.3:
|
Assigned Contracts | |
Schedule 2.1(a)(iv):
|
Transferred Equipment | |
Schedule 2.1(b)(ii):
|
Exclusions from Transferred Assets |
The Company agrees to furnish supplementally a copy of any omitted schedule to the SEC upon
request.
