Sample Business Contracts

Placement Agent Agreement - CytRx Corp. and Gilford Securities Inc.

Sponsored Links

                            Placement Agent Agreement

This Placement Agent Agreement  ("Agreement") dated as of September 15, 2003, is
entered into by and among CytRx Corporation  ("CytRx" or the "Company"),  having
its  business  office  located at 11726 San Vincente  Boulevard,  Suite 650, Los
Angeles, CA 90049, and Gilford Securities Incorporated  ("GILFORD"),  having its
principal office located at 850 Third Ave., 14th Floor, New York, NY 10022.

The Company has entered into an engagement  letter with  Cappello  Capital Corp.
("Cappello")  under  which  Cappello  is to  serve  as the  Company's  exclusive
placement agent for any financing  transaction,  including the proposed  private
placement  in  a  "PIPE"  transaction   involving  the  sale  of  securities  to
institutional   investors   (the   "Offering").   Cappello  has  agreed  to  our
participation in the Offering on the terms set forth herein.

For good  consideration,  the receipt and sufficiency of which are acknowledged,
GILFORD and CytRx hereby agree as follows:

I.       Scope of Services to be Provided by GILFORD

GILFORD will provide the following services during the term of this Agreement.

Capital Raising

The Company currently anticipates raising up to USD$8.5 million in the Offering.
The actual terms of the Offering will depend on market  conditions,  and will be
subject to  negotiation  among the Company,  Cappello,  GILFORD and  prospective
investors;  provided,  however, that all terms must be acceptable to the Company
in its sole and absolute discretion.

Although we cannot guarantee CytRx that we will be able to raise new capital, we
will conduct the offering on a best efforts  basis.  We will offer the Company's
securities  in the Offering only to those  investors  listed in Exhibit A hereto
and any other  investors that Cappello and the Company in their sole  discretion
jointly agree to in writing (collectively, the "GILFORD Investors"). The Company
will have no obligation to accept any subscription from any proposed investor in
the  Offering or any minimum  aggregate  amount of  subscriptions  from  GILFORD

II.      Compensation and Other Provisions Relating to Fees

A.       Compensation to GILFORD

GILFORD shall be entitled to the following compensation in connection herewith:

         1.       Cash Fee

                  Upon  receipt  and  acceptance  of any  funds  from a  GILFORD
                  Investor,  CytRx  agrees to pay GILFORD a cash fee of 3.75% of
                  the aggregate  purchase price of the securities  placed at the
                  closing of the Offering ("Initial Closing Date").


         2.       Warrant

                  In  addition,   GILFORD  shall  receive  a  Warrant  ("GILFORD
                  Warrant") to purchase a number of shares of common stock equal
                  to 3% of the number of shares of common stock purchased by the
                  GILFORD Investor in the offering.

                  The GILFORD  Warrant shall be delivered at the Initial Closing
                  Date,  registered  on  the  GILFORD  Investor's   Registration
                  Statement, and shall be exercisable any time until the seventh
                  (7th)  anniversary  of the Initial  Closing Date hereof at one
                  hundred  percent  (100%) of the  purchase  price of the Common
                  Stock  issued to the GILFORD  Investors in the  Offering,  and
                  shall provide for cashless exercise provisions.

III.     Representations and Warranties

         a)       The  Company  hereby  authorizes  GILFORD to  transmit  to the
                  prospective   purchasers  of  the  securities  copies  of  the
                  Company's most recent filings with the Securities and Exchange
                  Commission,  together with summary materials, if any, approved
                  in writing by the Company.

         b)       The Company  agrees  that CytRx will enter into  subscription,
                  registration rights and other customary  agreements,  and that
                  CytRx's   counsel  will  supply  an  opinion   letter  on  the
                  transaction  in form and substance  reasonably  acceptable to,
                  and addressed to, GILFORD and the investors.

         c)       The Company further agrees that GILFORD may rely upon, and are
                  a  third  party  beneficiary  of,  the   representations   and
                  warranties,   and  applicable  covenants,  set  forth  in  any
                  agreements with investors in the Offering.

         d)       GGILFORD  represents  that the only  investors to which it has
                  offered  the  Company's  securities  are  listed in  Exhibit A

IV.      Status/Liability of GILFORD

When performing any of the services  described herein, or in connection with any
special  business  assignment,  GILFORD  shall be  deemed  to be an  independent
contractor.  Except as expressly provided for in writing by CytRx, GILFORD shall
have no authority to act unilaterally on behalf of CytRx.

GILFORD will use its best efforts in performing  its duties  hereunder.  GILFORD
shall not be liable to CytRx,  for errors in  judgment  or for any other  action
undertaken or omitted  hereunder  unless such error or action  involves  willful
malfeasance,  gross negligence or fraud. Except as hereunder  provided,  GILFORD
shall not be accountable for any loss suffered by any of them.


GILFORD's ability to complete its assignments described herein in a satisfactory
and  timely  way is  dependent  upon the  provision  by CytRx  of  corporate  or
financial records and available diligence materials,  and such other information
that GILFORD deems  material to effective  completion of its work. It is further
understood and agreed that GILFORD and/or its designees may rely on the accuracy
of such information  provided by CytRx and CytRx shall be solely responsible for
the accuracy and completeness of such records and information.

It is also  specifically  understood  that CytRx will employ  independent  legal
counsel to advise it as to contract, tax, international laws and regulations and
securities  considerations in connection  herewith and with all of the financing
transactions  resulting  here from, and that all financing  documents  should be
reviewed and approved by such counsel prior to the  consummation  of any finance

CytRx, its corporate  affiliates or its designees and successors hereby agree to
indemnify  GILFORD and each of its  officers,  directors,  trustees,  governors,
employees,  partners,  shareholders,  beneficiaries  or  agents  of  any  of the
entities  comprising GILFORD,  against all cost and expenses,  including but not
limited to,  reasonable  attorney's  fees,  for any claim by third  parties made
against any of them arising out of or relating to this Agreement and all related
agreements,  provided that such indemnity  shall not apply if GILFORD shall have
been  found  guilty  of  willful  malfeasance,  gross  negligence  or fraud by a
competent court of final jurisdiction.

V.       Other Activities

GILFORD, its affiliates,  designees and assigns, now render and will continue to
render investment banking services, financial advisory,  management services and
the like,  to other  companies  which may  conduct  business  similar to that of
CytRx. GILFORD shall be free to render such advice and services according to its
sole discretion and CytRx hereby consents thereto. Similarly,  GILFORD shall not
be required to devote full time and attention to the  performance  of the duties
specified  under this  Agreement  but shall only  devote so much of its time and
attention as it deems reasonable and/or necessary for such purposes.

VI.      Confidentiality and Non-Disclosure

GILFORD  acknowledges  that it is being provided with, and will in the future be
provided with,  confidential and proprietary information concerning the business
and operations of CytRx and that such information  constitutes  confidential and
proprietary  information  owned  solely by CytRx.  Without the  express  written
consent of CytRx,  GILFORD  may not  disclose  to any  person,  legal  entity or
government  agency  any such  information  except  (i) to the  extent  that such
information  otherwise is generally  known to the public;  (ii)  pursuant to the
written  advice  of  counsel  that  disclosure  by  GILFORD  is  required  under
applicable law, after  providing  CytRx with  reasonable  advance notice of such
proposed  disclosure;  or (iii) pursuant to Court order.  Under no circumstances
may GILFORD use any such information for the benefit of GILFORD or third parties
without the express written consent of CytRx. In cases where  disclosure is made
with express written consent of CytRx,  GILFORD may  nevertheless  disclose such
information only upon receipt of a confidentiality  agreement from the person to
whom such disclosure is to be made, substantially in the form of this paragraph,
and stated to be for the benefit of CytRx.


VII.     Miscellaneous

A.       Term

This  Agreement  shall  continue  in effect for an  initial  period of three (3)
months from the date of execution. If the Agreement is renewed subsequent to the
expiration  of the initial  period then the Agreement  shall  continue in effect
until  terminated by either  GILFORD or CytRx by 30 days prior written notice to
the other parties  hereto.  In the event that this Agreement is terminated,  all
earned but unpaid fees or expense of any kind due GILFORD or its  successors  or
designees shall be paid in full prior to the effective date of the termination.

B.       Non-Circumvention

Any potential  GILFORD  Investor who GILFORD  introduces (via  conference  call,
visit or other means) to CytRx shall be considered for purposes of this Letter a
protected investor of GILFORD, whether or not such GILFORD Investor participates
in the  offering(s)  contemplated by this Letter.  Note that the  aforementioned
protected potential GILFORD Investors shall be listed on Exhibit A. In the event
that CytRx  accepts an  investment  from a GILFORD  Investor  for a period of 24
months from the date of introduction of said GILFORD  Investor,  CytRx agrees to
pay to GILFORD a fee as stated in Section II.  Compensation and Other Provisions
Relating to Fees at the time of closing.

C.       No Obligation

CytRx  may,  in their  sole and  absolute  discretion,  choose not to accept any
investment  with any GILFORD  Investor.  CytRx shall have no  obligation  to pay
GILFORD  any fees or issue any Stock or  warrants  to GILFORD to the extent that
CytRx rejects any proposed  investor and any future investment from said GILFORD
Investor is not covered under Section VI. B. Non-Circumvention.



D.       Venue

This Agreement shall be construed and  interpreted  according to the Laws of the
State of California  applicable to  agreements to be performed  entirely  within
such State.

E.       Entire Agreement

This  Agreement  constitutes  the  entire  Agreement  between  the  parties  and
supersedes  and  cancels  any and all  prior  or  contemporaneous  arrangements,
understandings  and  agreements,  written or oral,  between them relating to the
subject matter hereof.

F.       Effectiveness

This Agreement shall be deemed in force at the time the Agreement is executed by
both parties.

The  undersigned  have executed this  Agreement as of this 15th day of September

Gilford Securities Incorporated

By:    /s/ Robert A. Maley

Robert A. Maley
Sr. VP - Capital Markets

Date:  9/15/03


By:    /s/ Steven Kriegsman

Steven Kriegsman
Chief Executive Officer

Date:  9/19/03


                           CytRx Corporation ("CytRx")

                                    Exhibit A

Pursuant to the executed Placement Agent Agreement  ("Agreement"),  CytRx hereby
confirms that GILFORD has permission to introduce CytRx to:

o        RSGM Partners

o        Michael & Associate

The above named  investor(s)  shall be covered under the terms as agreed upon in
the executed Letter. This signed Exhibit A will act as written  confirmation for
GILFORD to make this/these introduction(s).

By:    /s/ Steven Kriegsman

Print Name: