EXHIBIT 10.1

 

EXECUTION VERSION

 

CONFIDENTIAL TREATMENT REQUESTED – CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION. THE OMITTED PORTIONS HAVE BEEN REPLACED WITH "****".

EXCLUSIVE LICENSE AGREEMENT

This Exclusive License Agreement (this "Agreement"), dated and effective as of July 27, 2017 ("Effective Date"), is entered into by and between NantCell, Inc., a Delaware corporation ("NantCell"), on the one hand, and CytRx Corporation, a Delaware corporation ("CytRx"), on the other hand.  NantCell and CytRx are each sometimes referred to herein as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, CytRx is the owner of or Controls the Licensed Patents and the Licensed Know How related to the Licensed Product and has the right to grant licenses thereto as contemplated hereby.

WHEREAS, NantCell desires to obtain a license or (as applicable) sublicense under the Licensed Patents and the Licensed Know How to Exploit the Licensed Product upon the terms and conditions hereinafter set forth.

WHEREAS, in connection with the transactions contemplated by this Agreement, NantCell is making an investment in CytRx on the Effective Date in accordance with a Stock Purchase Agreement separately entered into between the parties, and CytRx has issued a warrant to NantCell dated as of the date hereof entitling NantCell to purchase additional shares of common stock on the terms and conditions set forth therein.

NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

AGREEMENT

1.   Definitions .  For purposes of this Agreement, in addition to words defined elsewhere, the following words and phrases shall have the following meanings:

"Affiliate" means, with respect to any Person, any other Person that, directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such Person, for as long as such control exists.  For purposes of this definition, "control" means the direct or indirect ownership of more than fifty percent (50%) of the voting or economic interest of a Person, or the power, whether pursuant to contract, ownership of securities or otherwise, to direct the management and policies of a Person.

"Commercially Reasonable Efforts" means those efforts and resources commensurate with those efforts commonly used in the biopharmaceutical industry by a company of comparable size in connection with the development or commercialization of biopharmaceutical products that are of similar status, taking into account the proprietary position of the product (including actual and potential regulatory exclusivity, intellectual property scope, subject matter and coverage), safety and efficacy, product profile, competitiveness of the marketplace, the regulatory status and approval process, anticipated or approved labeling, present and future market potential, the probable profitability of the applicable product (including pricing and reimbursement status achieved or likely to be achieved) and other relevant factors such as technical, legal, scientific or medical factors.

"Contract" means any agreement, contract or commitment of any nature (whether written or oral and whether expressed or implied).

"Control" (including any variations such as "Controlled" and "Controlling") means, with respect to any Licensed Know How, Licensed Patents or other intellectual property right, the possession (whether by ownership or license) by a Party of the ability to grant to the other Party a license as provided herein to such Licensed Know How, Licensed Patents or other intellectual property right, without violating the terms of any agreement or other arrangement with any Third Party.

"Covered" means, with respect to any Licensed Patent, that a Valid Claim would (absent a license thereunder or ownership thereof) be infringed by Exploitation of the Licensed Product.

"CytRx Materials" means all pre-clinical and clinical inventory of the Licensed Product (including, without limitation, API, WPI and finished dose) all other materials necessary for the Exploitation of the Licensed Product that are Controlled by CytRx or its Affiliates as of the Effective Date, including without limitation the materials listed on Exhibit A attached hereto.

"EMA" means European Medicines Agency, or any successor thereto.

"Exclusivity Period" means, for any country, a period for which a competent Regulatory Authority in such country has prohibited commercial sales of generic versions of the Licensed Product, including pediatric exclusivity and/or orphan exclusivity; provided, however, that in each country the Exclusivity Period shall only apply with respect to the therapeutic indication(s) for which the Exclusivity Period has been granted by the relevant Regulatory Authority.

"Exploit" means to research, develop, commercialize, make, have made, use, offer for sale, sell, import, export or otherwise exploit, or transfer possession of or title in, a product.  Cognates of the word "Exploit" shall have correlative meanings.

"FDA" means the United States Food and Drug Administration, or any successor thereto.

"First Commercial Sale" means, with respect to a product in any country, the first sale for end use or consumption of such product in such country after marketing approval (including pricing approval) has been granted in such country.  First Commercial Sale excludes any sale or other distribution of such product for use in a clinical trial or other development activity, promotional use (including samples) prior to marketing approval or for compassionate use or on a named patient basis.

"Infringement" means any infringement as determined by law, including, without limitation, direct infringement, contributory infringement or any inducement to infringe.

"Know How" means all techniques, technology, trade secrets, inventions (whether patentable or not), methods, know how, sequences, data and results (including pharmacological, toxicological and clinical data and results), analytical and quality control data and results, regulatory documents and other information.  For the avoidance of doubt, Know How includes all data and results from pre-clinical and clinical studies.

"KTB Agreement" means the License Agreement dated as of August 17th , 2006 between KTB Tumorforschungs GmbH (Tumor Biology Center) and Licensor's wholly-owned Affiliate CytRx Oncology Corporation (then known as Innovive Pharmaceuticals, Inc.), including all amendments thereto prior to the Effective Date, a copy of which is attached hereto as Exhibit G .

"KTB Royalty Term" means the "Royalty Term" as defined in the KTB Agreement.

"Licensed Know How" means all Know How necessary for the Exploitation of the Licensed Product and Controlled by CytRx or its Affiliates as of the Effective Date, including without limitation the Know How listed on Exhibit A attached hereto.

"Licensed Patents" means all Patents Covering the Licensed Product and Controlled by CytRx or its Affiliates, whether Controlled by CytRx or its Affiliates as of the Effective Date or thereafter, including without limitation the Patents listed on Exhibit B attached hereto.

"Licensed Product" means the product identified on Exhibit C attached hereto.

"Licensed Product INDs" means the four INDs for the Licensed Product listed on Exhibit D .

"MHLW" means the Japanese Ministry of Health, Labor and Welfare, or any successor thereto.

"Net Sales" mean the gross amount invoiced by a Selling Party on all sales of Licensed Product, less to the extent actually paid or accrued by a Selling Party (a) credits, allowances, discounts and rebates to, and chargebacks from, the account of such customers for spoiled, damaged, out-dated and returned Licensed Product; provided  that during the KTB Royalty Term   CytRx's consent shall be  required for any discount above twenty five percent (25%) or any transfer on a non-cash-basis (except transfers for research or development purposes, clinical trials, compassionate use purposes or as samples or promotions) in order for such discount or transfer to be excluded from  the calculation of Net Sales; (b) freight and insurance costs incurred by a Selling Party in transporting such Licensed Product to such customers; (c) cash, quantity and trade discounts, rebates and other price reductions for such Licensed Product given to such customers under price reduction programs; (d) sales, use, value-added and other taxes (excluding income taxes and other taxes on profit and property) incurred on the sale of such Licensed Product to such customers; and (e) customs duties, surcharges and other governmental charges incurred in exporting or importing such Licensed Product to such customers.   Net Sales shall include all consideration charged by the Selling Party in exchange for any Licensed Product, including without limitation any monetary payments or any other property whatsoever.  For purposes of determining Net Sales, a sale shall be deemed to have occurred when an invoice therefore shall be generated or the Licensed Product shipped for delivery.  Sales of Licensed Product by NantCell to any Affiliate or Sublicensee or by any Sublicensee to an Affiliate or other Sublicensee which is a reseller thereof shall be excluded from calculating Net Sales, and only the subsequent sale of such Licensed Product by such Selling Party to unrelated parties shall be deemed Net Sales hereunder.  Product provided without charge in connection with research and development, clinical trials, compassionate use, humanitarian and charitable donations, indigent programs or for use as samples will be excluded from the computation of Net Sales. Where the Licensed Product is sold in combination with other pharmaceutical products, diagnostic products or active ingredients (collectively, "Combination Components"), Net Sales will be calculated by multiplying the Net Sales of the Combination Components by the fraction A/(A+B), where A is the gross invoice price of the Licensed Product if sold separately in a country and B is the gross invoice price of the other product(s) included in the Combination Components if sold separately in such country.  If no such separate sales are made by NantCell, its Affiliates or Sublicensees in a country, Net Sales of the Combination Components will be calculated in a manner determined by NantCell in good faith based upon the relative value of the active components of such Combination Components.

"Orphan Indications" means any soft tissue sarcoma indication(s) for which the Licensed Product is approved by a Regulatory Authority in the Territory.

"Patents" means all rights and interests in and to issued patents and pending patent applications (including inventor's certificates and utility models) in any country or jurisdiction, including all provisionals, substitutions, continuations, continuations-in-part, additions, divisionals, patent term extensions, supplementary protection certificates, renewals, all letters patent granted thereon, and all reissues, reexaminations, extensions, confirmations, revalidations, registrations, patents of addition thereof, PCTs, pediatric exclusivity periods, and foreign equivalents to any of the foregoing

"Person" means any corporation, limited or general partnership, limited liability company, joint venture, trust, unincorporated association, governmental body, authority, bureau or agency, any other entity or body, or an individual.

"Regulatory Authority" means any domestic (federal, state or local) or foreign court, commission or governmental, regulatory or administrative body, board, bureau, agency, instrumentality, authority or tribunal or any subdivision thereof, including, but not limited to, the FDA, the EMA, the MHLW, and the authorit(ies) in any country in the Territory that are comparable to the FDA and have responsibility for granting marketing approval for the Licensed Product in such country.

"Regulatory Filings" means any and all submissions, correspondence, notifications, registrations, licenses, authorizations, applications and other filings with any governmental authority with respect to the research, development, manufacture, distribution, pricing, reimbursement, marketing or sale of the Licensed Product.

"Selling Party" means NantCell, any Sublicensee(s) or the Affiliates of any of the foregoing.

"Sublicense" means an agreement entered into by NantCell or an Affiliate thereof granting rights to a Third Party with respect to the Exploitation of the Licensed Product granted to NantCell hereunder.

"Sublicensee" means any Person other than an Affiliate of NantCell to which NantCell (or a Sublicensee) has granted a Sublicense under this Agreement.

"Territory" means all countries of the world.

"Third Party" means a Person other than (a) CytRx or any of its Affiliates and (b) NantCell or any of its Affiliates.

"Valid Claim" means a claim of any issued and unexpired patent or patent application within the Licensed Patent that has not been held invalid or unenforceable by a final decision of a court or governmental agency of competent jurisdiction, which decision can no longer be appealed or was not appealed within the time allowed.

2.   Grant of Rights .

(a)   License .  Subject to the terms and conditions of this Agreement, CytRx hereby grants to NantCell and its Affiliates a royalty-bearing, exclusive (even as to CytRx) license, or as applicable, sublicense, in each case with the right to sublicense (through one or more multiple tiers) in, to and under the Licensed Patents and Licensed Know How and the CytRx Materials to Exploit the Licensed Product in the Territory.  Any such sublicense shall contain covenants of the sublicensee for such sublicensee consistent with the obligations of NantCell under this Agreement.  NantCell shall be responsible for curing acts or omissions of its sublicensees and shall not grant any rights which are inconsistent with the rights granted to and obligations of NantCell hereunder.  All sublicenses shall survive termination of this Agreement provided such sublicensees are not in breach (taking into account any applicable cure period provided in such sublicense); and, provided further that CytRx shall not be obligated to incur any obligations or duties to any sublicensee of NantCell not otherwise provided for in this Agreement. .  During the term of this Agreement, neither CytRx nor any of its Affiliates will, directly or indirectly, (i) undertake or partner with any Third Party to develop or commercialize any therapeutic product incorporating doxorubicin or a derivative thereof (other than the Licensed Product) or (ii) enter into any agreement or otherwise license, grant, assign, transfer, convey or otherwise encumber or dispose any right, title or interest in, to or under any of the Licensed Patents, Licensed Know How, CytRx Materials or Licensed Product, which agreement, license, grant, assignment, transfer, conveyance, encumbrance or disposition would materially conflict with the rights granted to NantCell and its Affiliates hereunder (which foregoing restriction shall for the avoidance of doubt include, without limitation, the grant of any rights to the Licensed Product).

(b)   The Parties acknowledge that in the event of a termination of the KTB Agreement, the sublicense to NantCell hereunder with respect to the rights under the KTB Agreement (and any sublicense granted by NantCell in compliance with Section 2(a) above) shall survive such termination provided that NantCell, or the relevant sublicensee, as applicable, is not in breach of this Agreement.  CytRx agres not to terminate, amend or otherwise modify the KTB Agreement without the prior written consent of NantCell.

(c)   Transfer of Licensed Know How and CytRx Materials .  Promptly following (and in any event within ten (10) days after) the Effective Date, CytRx shall transfer to NantCell copies of the Licensed Know How and CytRx Materials , with Cytrx to bear any out of pocket costs associated with such transfer.  In addition, during the term of this Agreement, CytRx will, at CytRx's cost and expense, provide reasonable assistance, including making its personnel reasonably available for meetings or teleconferences to answer questions and provide technical support to NantCell, with respect to the use of such Licensed Know How and CytRx Materials in accordance with the licenses granted to NantCell hereunder; provided that the foregoing obligations shall not be construed to obligate CytRx to retain or hire any personnel, and shall apply only to the extent that CytRx personnel are and can be made available without interfering with CytRx's conduct of its own business.

(d)   Contracts .  CytRx agrees to transfer and assign to NantCell as of the Effective Date the Contracts listed on Exhibit E  that are identified as "Assigned Contracts" thereon and to fulfill any notice requirements in connection with such transfer and assignment.  In furtherance of the foregoing, the parties agree to execute the assignment and assumption agreement attached hereto as Exhibit F on the Effective Date.   In addition, with respect to the Contracts listed on Exhibit E that are identified as "Additional Contracts", CytRx will use commercially reasonable efforts to (i) obtain any required consent, approval, waiver or notice to transfer and assign such Additional Contracts to NantCell as soon as practical following the Effective Date, (ii) provide to NantCell the benefits under these Additional Contracts; provided that NantCell shall fulfill the corresponding obligations to the extent NantCell would have been responsible therefor if such consent, approval, waiver or notice had been obtained as of the Effective Date as contemplated by this Agreement, (iii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to NantCell and (iv) enforce at the request of NantCell and for the account of NantCell any rights of CytRx arising from any such Additional Contract (including the right to elect to terminate any such Additional Contracts in accordance with the terms thereof upon the request of NantCell). In connection with any such arrangement, NantCell shall reimburse CytRx for any reasonable and documented out-of-pocket costs and expenses actually incurred by CytRx in connection with the performance of such Additional Contracts to extent that such out-of-pocket costs and expenses would have been otherwise incurred by NantCell had such Additional Contracts been assigned and transferred to NantCell as of the Effective Date as contemplated by this Agreement.  CytRx will promptly pay to NantCell when received all monies received, if any, by CytRx under such Additional Contracts to the extent that such monies would have been otherwise payable to NantCell had such Additional Contracts been assigned and transferred to NantCell as of the Effective Date as contemplated by this Agreement.

(e)   Regulatory Filings .  Promptly following (and in any event within ten (10) days after) the Effective Date, CytRx will convey, assign and transfer to NantCell all Regulatory Filings relating to the Licensed Product, including without limitation the Licensed Product INDs.  Without limiting the generality of the foregoing, CytRx hereby grants to NantCell an exclusive and irrevocable right of access and reference to any and all Regulatory Filings (along with all data and results of the development program undertaken by or on behalf of CytRx) relating to the Licensed Product, and shall cooperate fully to make the benefits of such Regulatory Filings, data and results available to NantCell and its designee(s) on a worldwide basis.  In addition, during the term of this Agreement, CytRx will provide reasonable assistance, including making its personnel reasonably available for meetings or teleconferences to answer questions and provide support to NantCell, with respect to the Regulatory Filings, provided that the foregoing obligations shall not be construed to obligate CytRx to retain or hire any personnel, and shall apply only to the extent that CytRx personnel are and can be made available without interfering with CytRx's conduct of its own business.  From and after the Effective Date, as between the Parties, NantCell will be responsible for preparing, filing and maintaining, and will own, all Regulatory Filings and related submissions with respect to the Licensed Product and will bear the cost of such preparation, filing, maintenance and ownership.

(f)   Responsibility .  Following the Effective Date and at all times during the term of this Agreement, NantCell and its Affiliates and Sublicensees shall be responsible for, and shall bear all costs associated with, the Exploitation of the Licensed Product; provided, however, that (i) any outstanding payables related to the clinical studies and other development work being conducted by CytRx with respect to Licensed Product as of the Effective Date and (ii) subject to Section 2(d), any current or future obligations under the Contracts listed on Exhibit E (other than the Assigned Contracts) shall continue to be obligations of CytRx.  Subject to the terms of this Agreement, all decisions concerning the Exploitation of the Licensed Product, including the clinical and regulatory strategy, design, sale, price and promotion of the Licensed Product, shall be within the sole discretion of NantCell and its Affiliates and Sublicensees.

(g)   Development Plan .  Within ninety (90) days of the Effective Date, NantCell shall deliver an initial written development plan for the development for the Licensed Product, including by specifying clinical studies and activities to be conducted (the "Development Plan").  Thereafter, on an annual basis within ninety (90) days of each anniversary of the Effective Date until First Commercial Sale of the Licensed Product, NantCell shall deliver an updated, written Development Plan for the Licensed Product.  In preparing the initial Development Plan and any subsequent Development Plan, NantCell will consider CytRx's input and advice in good faith.  At any time that pre-marketing-approval development activities for a Licensed Product are being conducted by or on behalf of NantCell to seek marketing approval in the United States, Europe, or Japan for Licensed Product, NantCell shall provide semi-annual updates to CytRx regarding the work performed with respect to the development of the Licensed Product under the applicable Development Plan.

(h)   Diligence .  NantCell, at its sole cost and expense, shall use Commercially Reasonable Efforts to develop and commercialize the Licensed Product in the Territory in accordance with the Development Plan then in effect, including specifically for the Orphan Indications.  The efforts of NantCell's Affiliates and Sublicensees shall be treated as the efforts of NantCell when evaluating NantCell's compliance with the foregoing diligence obligations.

(i)   No Additional Rights .  Nothing contained herein shall be construed to confer any rights upon either Party by implication, estoppel or otherwise as to any technology or patent or other intellectual property rights of the other Party other than as expressly set forth herein

3.   Milestone Payments .

(a)	Regulatory Milestones .  NantCell shall pay, within forty-five (45) days following the date of achievement of each milestone below, to CytRx the following milestones payments upon the achievement of the designated milestone levels:

The milestone payments under clauses (i)-(iii) above shall be payable ****.  Any amounts paid under clause (iv) above shall ****.

(b)	Commercial Milestones .  Within forty-five (45) days following the last day of the calendar year, NantCell shall pay to CytRx the following milestone payments once each upon achievement of the designated milestone levels, based on annual Net Sales of Licensed Products in such calendar year:

4.   Royalties and Other Consideration .

(a)   Royalties .  NantCell shall pay to CytRx a royalty, on a country-by-country basis, on Net Sales of Licensed Product sold by a Selling Party during the applicable Royalty Term as follows:

(i)	For Net Sales of Licensed Product attributable to Orphan Indications:

1.	**** of the portion of Net Sales in a calendar year of Licensed Product up to and including ****; and

2.	**** of the portion of Net Sales in a calendar year of Licensed Product ****.

(ii)	For all other Net Sales of Licensed Product:

1.	**** of the portion of Net Sales in a calendar year of Licensed Product up to and including ****;

Royalties will be payable on a quarterly basis; any such payments shall be made within forty-five (45) days after the end of the calendar quarter during which the applicable Net Sales occurred.  NantCell's obligation to pay royalties with respect to the Licensed Product in a particular country shall commence upon the First Commercial Sale of the Licensed Product in such country and shall expire on a country by country basis, on the **** year anniversary of the later of (x) the date on which the Exploitation of the Licensed Product is no longer Covered by a Valid Claim  and (y) the expiration of an applicable Exclusivity Period covering the Licensed Product  (the "Royalty Term").

(b)   Third Party Royalty Offset .  The Applicable Rate under Section 4(a) above shall be reduced, on a country-by-country and Licensed Product-by-Licensed Product basis and calendar quarter-by-calendar quarter basis, by an amount equal to 50% of any payments made to a Third Party in a calendar quarter on sales of such Licensed Product in such calendar quarter in such country in consideration for a license to any Patents owned or otherwise controlled by a Third Party ("Third Party Patents") that NantCell reasonably determines would be infringed by the manufacture, use, sale, offer for sale, import or exploitation of the Licensed Product as a monotherapy; provided, that in no event shall the royalty payable under this Agreement in any given calendar year be reduced below 50% of the Applicable Rate under Section 4(a) above.

(c)   Notwithstanding anything to the contrary in this Agreement, **** the royalty rate payable to CytRx  on Net Sales of Licensed Products under this Agreement, after taking into account any offsets, deductions or reductions permitted hereunder, shall not be reduced below ****.

(d)   Arms-Length Transactions .  On sales of Licensed Product which are made in other than an arms-length transaction, the value of the Net Sales attributed under this Section 4 to such a transaction shall be that which would have been received in an arms-length transaction, based on sales of like quality and quantity products on or about the time of such transaction.

(e)   Method of Payment .  Unless otherwise agreed by the Parties, all payments due from NantCell to CytRx under this Agreement shall be paid in U.S. Dollars by wire transfer or electronic funds transfer of immediately available funds to the account designated in writing by CytRx.  After the First Commercial Sale of the Licensed Product and until expiration of the Royalty Term, NantCell shall prepare and deliver to CytRx royalty reports of the sale of the Licensed Product by the Selling Parties for each calendar quarter within forty-five (45) days of the end of each such calendar quarter specifying in the aggregate and country-by-country basis: (i) total gross amounts for the Licensed Product sold or otherwise disposed of by a Selling Party; (ii) amounts deducted by category in accordance with the definition of "Net Sales" from gross amounts to calculate Net Sales; (iii) Net Sales; and (iv) royalties payable. For purposes of determining whether Net Sales are attributable to Orphan Indications, NantCell shall be permitted to rely on data in the IntrinsiQ data base, any successor thereto, or another healthcare informatics data base reasonably acceptable to CytRx  .  If either Party fails to make an payment due under this Agreement within thirty (30) days of the date upon which such payment is due, then interest shall accrue from the date such payment was originally due at a rate equal to the lower of two percent (2%) above the thirty (30) day U.S. Dollar  LIBOR (as published in The Wall Street Journal , New York edition) or the maximum interest rate permitted under applicable law, and such interest shall be paid when such payment is made.  Such interest shall be computed on the basis of a year of 365 days for the actual number of days payment is delinquent.

(f)   Foreign Sales .  The remittance of royalties payable on sales outside the United States shall be payable to CytRx in United States Dollar equivalents at the official rate of exchange of the currency of the country from which the royalties are payable, as quoted in the Wall Street Journal for the last business day of the calendar quarter in which the royalties are payable.  If the transfer of or the conversion into the United States Dollar equivalents of any such remittance in any such instance is not lawful or possible, the payment of such part of the royalties as is necessary shall be made by the deposit thereof, in the currency of the country where the sale was made on which the royalty was based to the credit and account of CytRx or its nominee in any commercial bank or trust company of CytRx's choice located in that country, prompt written notice of which shall be given by NantCell to CytRx.

(g)   Foreign Taxes .  Any tax required to be withheld by NantCell under the laws of any foreign country from any royalty or other payments due to CytRx hereunder or for the accounts of CytRx shall be promptly and timely paid by NantCell for and on behalf of CytRx to the appropriate governmental authority, and NantCell shall furnish CytRx with proof of payment of such tax together with official or other appropriate evidence issued by the applicable government authority.  Any such tax actually paid on CytRx's behalf shall be deducted from royalty payments due CytRx.

(h)   Record Keeping .  NantCell shall keep, and shall require its Affiliates and Sublicensees to keep, accurate records (together with supporting documentation) of Licensed Product sold under this Agreement, appropriate to determine the amount of royalties and other monies due to CytRx hereunder.  Such records shall be retained for at least five (5) years following the end of the reporting period to which such records relate.  CytRx will have the right, once annually at its own expense, to have its auditors or an independent, certified public accounting firm, selected by it and subject to NantCell's prior written consent (which shall not be unreasonably withheld), review any such records of NantCell and its Affiliates and Sublicensees (the "Audited Party") in the location(s) where such records are maintained by the Audited Party upon reasonable written notice (which shall be no less than thirty (30) days' prior written notice) and during regular business hours and under obligations of strict confidence, for the sole purpose of verifying the basis and accuracy of payments made hereunder within the thirty-six (36) month period preceding the date of the request for review.  No calendar year will be subject to audit more than once.  NantCell will receive a copy of each such report concurrently with receipt by CytRx.  Should such inspection lead to the discovery of a discrepancy to CytRx's detriment, NantCell will, within forty-five (45) days after receipt of such report from the accounting firm, pay any undisputed amount of the discrepancy plus interest on said sum at the rate of one percent (1.0%) per month (prorated for a partial month) accruing from the date such underpaid amount was initially due.  CytRx will pay the full cost of the review unless the underpayment of amounts due is greater than five percent (5%) of the amount due for the entire period being examined, in which case NantCell will pay the cost charged by such accounting firm and other reasonable out of pocket expenses for such review.  Should the audit lead to the discovery of a discrepancy to NantCell's detriment, NantCell may credit the amount of the discrepancy, without interest, against future payments payable to CytRx under this Agreement, and if there are no such payments payable, then CytRx shall pay to NantCell the amount of the discrepancy, without interest, within forty-five (45) days of NantCell's receipt of the report.

5.	Intellectual Property .

(a)   Ownership .  Inventorship of inventions made or conceived in the course of activities performed under this Agreement will be determined by application of U.S. patent laws pertaining to inventorship.  Subject to the licenses granted by CytRx to NantCell under this Agreement, each Party shall own all right, title and interest in and to any inventions, works-of-authorship and developments (and all intellectual property with respect thereto) invented, created or developed by such Party in the course of performance of this Agreement.

(b)   Prosecution .  Subject to Section 5(c) below, NantCell shall  prepare, file, prosecute and maintain (including with respect to any oppositions, cancellations, interferences, reissue proceedings, derivation proceedings, IPRs, PGRs, reexaminations, or other post-grant proceedings in any regional or national patent office in the Territory) (collectively, "Prosecution" or "Prosecute") the Licensed Patents at NantCell's sole cost and expense.  NantCell shall reasonably consult with CytRx regarding the patent filing strategy for the Licensed Patents prior to Prosecution thereof and the Prosecution of the Licensed Patents, in each case to the extent related to Licensed Product or otherwise relevant to the rights granted hereunder, by providing CytRx a Reasonable Opportunity to review and comment on all proposed submissions to any patent office before submission.  For the purpose of this Agreement, "Reasonable Opportunity" means that CytRx shall receive from NantCell or patent counsel true copies of all documents relating to the Prosecution of patent applications and patents within the Licensed Patents as soon as reasonably practical after NantCell has prepared or received such documents and materials, together with any documents submitted by NantCell to or received by NantCell from such patent office with respect to such Prosecution.  NantCell shall, in its reasonable judgment and to the extent practicable, consider in good faith and reasonably incorporate CytRx's comments concerning such documents and materials that NantCell receives from CytRx.

(c)   CytRx Step-In Right .  If NantCell declines to Prosecute or maintain any Licensed Patent, elects to allow any Licensed Patent to lapse, or elects to abandon any Licensed Patent before all appeals within the respective patent office have been exhausted (each, an "Abandoned Patent Right"), then:

(i)

NantCell shall provide CytRx with reasonable notice of such decision so as to permit CytRx to decide whether to Prosecute such Abandoned Patent Right and to take any necessary action (which notice shall, to the extent reasonably feasible for NantCell, be given no later than thirty (30) days prior to the next deadline for any action that may be taken with respect to such Abandoned Patent Right with the U.S. Patent & Trademark Office or any foreign patent office).

(ii)	CytRx, at CytRx's expense, may assume control of the Prosecution of such Abandoned Patent Right.

(iii)

CytRx shall have the right to transfer the responsibility for such Prosecution of such Abandoned Patent Right to patent counsel (outside or internal) selected by CytRx.

(iv)	NantCell shall use commercially reasonable efforts to assist and cooperate with CytRx's reasonable requests to support Prosecution of such Abandoned Patent Right.

Notwithstanding anything to the contrary in this Section 5(c), if NantCell, decides to abandon the preparation, filing, prosecution or maintenance of any patent or patent application sublicensed under the KTB Agreement (the "KTB Patents"), then NantCell shall notify CytRx in writing thereof and following the date of such notice CytRx shall notify KTB of such decision and thereafter, (a) KTB shall be responsible in its sole discretion for and shall control, at its sole cost, the preparation, filing, prosecution and maintenance of such patent or patent applications, (b) NantCell shall thereafter have no sublicense under this Agreement to such patent or patent application, and (c) KTB shall retain a non-exclusive right under the KTB Patents solely to the extent necessary to practice the inventions claimed in such abandoned patent or patent application, to the extent that such retained right does not compete with the commercialization of Licensed Products hereunder.

(d)   NantCell Enforcement .  Each Party will notify the other promptly in writing when any Infringement of a Licensed Patent by a Third Party is uncovered or reasonably suspected.  NantCell shall have the first right to enforce any patent within the Licensed Patents against any Infringement or alleged Infringement thereof, and shall at all times keep CytRx informed as to the status thereof.  NantCell may, at its own expense, institute suit against any such infringer or alleged infringer and control and defend and settle such suit in a manner consistent with the terms and provisions hereof and recover any damages, awards or settlements resulting therefrom, subject to Section 5(g) below.  CytRx shall reasonably cooperate in any such litigation (including joining or being named a necessary party thereto) at NantCell's expense.  NantCell shall not enter into any settlement of any claim described in this Section 5(d) that admits to the invalidity or unenforceability of any Licensed Patent, incurs any financial liability on the part of CytRx or requires an admission of liability, wrongdoing or fault on the part of CytRx without CytRx's prior written consent, in each case, such consent not to be unreasonably withheld.

(e)   CytRx Enforcement .  If NantCell elects not to enforce any patent within the Licensed Patents, then it shall so notify CytRx in writing within ninety (90) days of receiving notice that an Infringement exists (or such shorter period as may be necessary to prevent exhaustion of a statute of limitations  or other legal or equitable time limitation applicable to maintaining a right to assert a claim against such Infringement), then CytRx may, in its sole judgment, and at its own expense, take steps to enforce any such patent and control, settle, and defend such suit in a manner consistent with the terms and provisions hereof, and recover any damages, awards or settlements resulting therefrom, subject to Section 5(g) below.  NantCell shall reasonably cooperate in any such litigation (including joining or being named a necessary party thereto) at CytRx's expense.  CytRx shall not enter into any settlement of any claim described in this Section 5(e) that admits to the invalidity or unenforceability of any Licensed Patent, incurs any financial liability on the part of NantCell or requires an admission of liability, wrongdoing or fault on the part of NantCell without NantCell' prior written consent, in each case, such consent not to be unreasonably withheld.

(f)   Progress Reports .  The Party initiating or defending any such enforcement action (the "Enforcing Party") shall keep the other Party reasonably informed of the progress of any such enforcement action, and such other Party shall have the individual right to participate with counsel of its own choice at its own expense.

(g)   Recovery .  The costs and expenses of the Party bringing suit under Section 5(d) or 5(e) shall be borne by such Party, and any damages, settlements or other monetary awards recovered shall be shared as follows: (i) the amount of such recovery actually received by the Party controlling such action shall first be applied to the out-of-pocket costs of each Party in connection with such action; and then (ii) the remainder of the recovery shall be shared as follows:

(i)	If CytRx is the Enforcing Party, seventy-five percent (75%) to CytRx and twenty-five percent (25%) to NantCell; and

(ii)	If NantCell is the Enforcing Party, seventy-five percent (75%) to NantCell and twenty-five percent (25%) to CytRx.

6.	Representations and Warranties .

(a)   Each Party hereby represents and warrants to the other Party as of the Effective Date that:

(i)	It is a corporation duly incorporated, validly existing and in good standing under the laws of its state of incorporation.

(ii)	It has the corporate power and authority and the legal right to enter into this Agreement free from any conflicting right owed to a third party and to perform its obligations hereunder.

(iii)

It has taken all necessary corporate action on its part to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder and that this Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid, binding obligation, enforceable against such Party in accordance with its terms.

(iv)	All necessary consents, approvals and authorizations of all applicable competent authorities and other persons required to be obtained by such Party in order to execute and perform this Agreement on behalf of such Party have been obtained.

(v)	The execution and delivery of this Agreement and the performance of such Party's obligations do not constitute a default or require any consent under any other contractual obligation of such Party.

(b)   In addition, CytRx hereby represents and warrants to NantCell as of the Effective Date that:

(i)	To CytRx's knowledge, each item of the Licensed Patents (x) is valid, subsisting and in full force and effect, (y) has not been abandoned or passed into the public domain and (z) is free and clear of any liens or encumbrances.

(ii)

CytRx has not transferred ownership of, or granted any license of or right to use, or authorized the retention of any rights to use or joint ownership of, any Licensed Patents, Licensed Know How or the CytRx Materials to any Person in a manner that would materially conflict with the rights granted to NantCell under this Agreement.

(iii)

CytRx Controls the Licensed Patents, Licensed Know How, CytRx Materials and Licensed Product and has all rights necessary to grant the licenses to NantCell hereunder.

(iv)	Neither the shareholders or employees of CytRx nor any other Person (other than CytRx) has any rights to the Licensed Patents, the Licensed Know How, CytRx Materials or the Licensed Product (and any such rights previously held by any of them have been assigned to CytRx).

(v)	To CytRx's knowledge, no patent application or registration within the Licensed Patents is the subject of any pending interference, opposition, cancellation or patent protest pursuant to 37 C.F.R. §1.291.

(vi)	No Person has made any claim or allegation in writing to CytRx or its Affiliates that such Person has any right or interest in, to or under the Licensed Patents or the Licensed Know How.

(vii)

CytRx has no knowledge of any facts, circumstances or information that (x) would render any Licensed Patent invalid or unenforceable or (y) would materially adversely affect any pending application for any Licensed Patent.

(viii)

CytRx has not misrepresented, or failed to disclose, and has no knowledge of any misrepresentation or failure to disclose, any fact or circumstances in any application for any Licensed Patent that would constitute fraud or a misrepresentation with respect to such application or that would otherwise materially adversely affect the validity or enforceability of any Licensed Patent.  To CytRx's knowledge, all necessary registration, maintenance and renewal fees in connection with each item of the Licensed Patents have been paid and all necessary documents and certificates in connection with such Licensed Patents have been filed with the relevant patent or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such Licensed Patents.

(ix)

No claim or litigation has been brought or threatened in writing by any Third Party alleging that (x) the Licensed Patents are invalid or unenforceable or (y) the Exploitation of the Licensed Product and/or the CytRx Materials or Licensed Know How infringe or misappropriate or would infringe or misappropriate any right of any Third Party.

(x)

Exhibit E sets forth a true and complete list of the Contracts Controlled by CytRx or its Affiliates relating to the Exploitation of the Licensed Product (including the KTB Agreement, the "CytRx Contracts").  CytRx has fulfilled and performed its obligations under each of the CytRx Contracts and is not in, or alleged to be in, breach or default under, nor is there or is there alleged to be any basis for termination of, any of the CytRx Contracts and no other party to any of the CytRx Contracts has breached or defaulted thereunder, and no event has occurred an no condition or state of fact exists which, with the passage of time or the giving of notice or both, would constitute such a default or breach by CytRx or by any such other party.  Each of the CytRx Contracts is currently valid and in full force and effect, and is enforceable by CytRx in accordance with its terms.  Except as set forth on Exhibit E , no consent of any Third Party is required to be obtained under any of CytRx Contracts  in connection with the assignment and transfer contemplated by Section 2(d).

(c)   Disclaimer .  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION 6, NEITHER PARTY MAKES ANY REPRESENTATIONS OR EXTENDS ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR VALIDITY OF PATENT CLAIMS.

7.   Confidentiality and Publicity .

(a)   Confidential Information .  Each Party ("Disclosing Party") may disclose to the other Party ("Receiving Party"), and Receiving Party may acquire during the course and conduct of activities under this Agreement, certain proprietary or confidential information of Disclosing Party in connection with this Agreement.  The term "Confidential Information" means all ideas and information of any kind, whether in written, oral, graphical, machine-readable or other form, whether or not marked as confidential or proprietary, which are transferred, disclosed or made available by Disclosing Party or at the request of Receiving Party, including any of the foregoing of third parties.  The terms and conditions of this Agreement will be deemed Confidential Information of both Parties.

(b)   Restrictions .  Receiving Party will keep all Disclosing Party's Confidential Information in confidence with the same degree of care with which Receiving Party holds its own Confidential Information (but in no event less than a commercially reasonable degree of care).  Receiving Party will not use Disclosing Party's Confidential Information except in connection with the performance of its obligations and exercise of its rights under this Agreement.  Receiving Party has the right to disclose Disclosing Party's Confidential Information without Disclosing Party's prior written consent, to the extent and only to the extent reasonably necessary, to Receiving Party's Affiliates and their employees, subcontractors, consultants or agents who have a need to know such Confidential Information in order to perform its obligations and exercise its rights under this Agreement and who are required to comply with the restrictions on use and disclosure in this Section 7.  Receiving Party will use diligent efforts to cause those entities and persons to comply with the restrictions on use and disclosure in this Section 7.  Receiving Party assumes responsibility for those entities and persons maintaining Disclosing Party's Confidential Information in confidence and using same only for the purposes described herein.

(c)   Exceptions .  Receiving Party's obligation of nondisclosure and the limitations upon the right to use the Disclosing Party's Confidential Information will not apply to the extent that Receiving Party can demonstrate that the Disclosing Party's Confidential Information:  (i) was known to Receiving Party or any of its Affiliates prior to the time of disclosure; (ii) is or becomes public knowledge through no fault or omission of Receiving Party or any of its Affiliates; (iii) is obtained by Receiving Party or any of its Affiliates from a third party under no legal obligation of confidentiality to Disclosing Party; or (iv) has been independently developed by employees, subcontractors, consultants or agents of Receiving Party or any of its Affiliates without the use of or derivation from Disclosing Party's Confidential Information, as evidenced by contemporaneous written records.

(d)   Permitted Disclosures .  Receiving Party may disclose Disclosing Party's Confidential Information to the extent (and only to the extent) such disclosure is reasonably necessary in the following instances:

(i)	in order to comply with applicable law (including any securities law or regulation or the rules of a securities exchange) or with a legal or administrative process or proceeding;

(ii)	in order for it to reasonably fulfill its obligations herein, to its subcontractors, vendors, outside legal counsel, accountants and auditors under obligations of confidentiality substantially similar in scope to the confidentiality obligations herein;

(iii)

in connection with prosecuting or defending litigation, marketing approvals and other regulatory filings and communications, and prosecuting and enforcing Patents and other intellectual property rights in connection with Receiving Party's rights and obligations pursuant to this Agreement; and

(iv)

in connection with exercising its rights hereunder, to its Affiliates; potential and future collaborators (including Sublicensees where NantCell is the Receiving Party); potential and permitted acquirers or assignees; and potential investment bankers, investors and lenders; provided, that (1) with respect to Sections 7(d)(i) and (d)(iii), where reasonably possible, Receiving Party will notify Disclosing Party of Receiving Party's intent to make any disclosure pursuant thereto sufficiently prior to making such disclosure so as to allow Disclosing Party adequate time to take whatever action it may deem appropriate to protect the confidentiality of the information to be disclosed, and (2) with respect to Section 7(d)(iv), each of those named people and entities are required to comply with the restrictions on use and disclosure in Section 7(b) (other than investment bankers, investors and lenders, which must be bound prior to disclosure by commercially reasonable obligations of confidentiality).

(e)   The obligations of the Parties under clauses (a), (b) and (d) of Section 7 shall last until the applicable Confidential Information is no longer secret and confidential or until one of the exceptions in clause (c) applies to such Confidential Information, whichever occurs first.

(f)   Publicity .  The Parties agree that the terms of this Agreement will be treated as Confidential Information of both Parties, and thus may be disclosed only as permitted by Section 7(d).  The Parties agree that the public announcement of the Effective Date of this Agreement shall be substantially in the form of the press release(s)s attached as Exhibit H , and the Parties will cooperate in the release thereof as soon as practicable after the signature of this Agreement by the Parties.  Except as required by law, each Party agrees not to issue any other press release or public statement disclosing information relating to this Agreement or the transactions contemplated hereby or the terms hereof without the prior written consent of the other Party not to be unreasonably withheld, delayed or conditioned (or as such consent may need to be obtained in accordance with this Section 7(f) or Section 7(g) below).  In the event either Party (the "Issuing Party") desires to issue a press release or other public statement disclosing information relating to this Agreement or the transactions contemplated hereby or the terms hereof, the Issuing Party will provide the other Party (the "Reviewing Party") with a copy of the proposed press release or public statement (the "Release").  The Issuing Party will specify with each such Release, taking into account the urgency of the matter being disclosed and timing requirements for disclosure, as required by any applicable law, a reasonable period of time within which the Receiving Party may provide any comments on such Release (but in no event less than two (2) business days or less, as may be required for disclosure by any applicable law).  If the Receiving Party provides any comments, the Parties will consult on such Release and work in good faith to prepare a mutually acceptable Release.  Either Party may subsequently publicly disclose any information previously contained in any Release, provided that the other Party provided its written consent hereto as stated in this Section 7(f), and such consent shall not be unreasonably withheld, conditioned or delayed.

(g)   Publications .  Subject to the provisions of this Sections 7(g), NantCell shall have the right to publish with respect to the Licensed Product, and to make scientific presentations on the Licensed Product.  Except as required by law or court order, for any proposed publication or presentation regarding the Licensed Product, NantCell: (i) shall transmit a copy of the proposed publication for review and comment to the CytRx at least thirty (30) days prior to the submission of such publication to a Third Party; (ii) shall postpone such publication for up to an additional forty-five (45) days upon the reasonable request of CytRx to allow the consideration of appropriate patent applications or other protection to be filed; and (iii) upon request of CytRx shall remove all Confidential Information of CytRx.

(h)   Attorney-Client Privilege .  Neither Party is waiving, nor will be deemed to have waived or diminished, any of its attorney work product protections, attorney-client privileges or similar protections and privileges recognized under the applicable law of any jurisdiction as a result of disclosing information pursuant to this Agreement, or any of its Confidential Information (including Confidential Information related to pending or threatened litigation) to the receiving Party, regardless of whether the disclosing Party has asserted, or is or may be entitled to assert, such privileges and protections.  The Parties may become joint defendants in proceedings to which the information covered by such protections and privileges relates and may determine that they share a common legal interest in disclosure between them that is subject to such privileges and protections, and in such event, may enter into a joint defense agreement setting forth, among other things, the foregoing principles but are not obligated to do so.

8.   Term and Termination .

(a)   Term .  The term of this Agreement shall commence on the Effective Date, and unless terminated earlier as provided in this Section 8, shall continue in full force and effect until expiration of the last-to-expire Royalty Term for the Licensed Product.  Upon expiration of this Agreement, the licenses granted to NantCell by CytRx under this Agreement shall be fully paid-up and irrevocable.

(b)   Termination Upon Mutual Agreement .  This Agreement may be terminated by mutual written consent of both Parties.

(c)   Termination by CytRx for Breach .  CytRx will have the right to terminate this Agreement in full upon delivery of written notice to NantCell in the event of any material breach by NantCell of any terms and conditions of this Agreement, provided, that such termination will not be effective if such breach has been cured within ninety (90) days after written notice thereof is given by CytRx to NantCell specifying in reasonable detail the nature of the alleged breach; provided further, however,   that if the material breach is not reasonably capable of being cured within the ninety (90)-day cure period, and if NantCell (a) proposes within such ninety (90)-day period a written plan to cure such breach and (b) makes good faith efforts to cure such default and to implement such written cure plan, then, until the first anniversary of receipt of notice of termination, CytRx may not terminate this Agreement for so long as NantCell is diligently pursuing such cure in accordance with such plan.

(d)   Termination by NantCell .  NantCell may terminate this Agreement as follows:

(i)

Breach .  NantCell will have the right to terminate this Agreement upon delivery of written notice to CytRx in the event of any material breach by CytRx of any terms and conditions of this Agreement; provided that such termination will not be effective if such breach has been cured within ninety (90) days after written notice thereof is given by NantCell to CytRx specifying the nature of the alleged breach; provided further, however,   that if the material breach is not reasonably capable of being cured within the ninety (90)-day cure period, and if CytRx (a) proposes within such ninety (90)-day period a written plan to cure such breach and (b) makes good faith efforts to cure such default and to implement such written cure plan, then, until the first anniversary of receipt of notice of termination, NantCell may not terminate this Agreement for so long as CytRx is diligently pursuing such cure in accordance with such plan.

(ii)

Voluntary Termination .  NantCell may terminate this Agreement in its entirety at any time upon twelve (12) months' written notice to CytRx.  Following any such termination, NantCell agrees, at CytRx's request, to negotiate in good faith a written agreement with CytRx under which CytRx would receive a license to intellectual property Controlled by NantCell that is necessary or useful for the development, manufacturing or commercialization of the Licensed Product on financial and other terms to be negotiated by the Parties.

(e)   Termination Upon Bankruptcy .  Either Party may terminate this Agreement if, at any time, the other Party shall (i) file in any court or agency pursuant to any statute or regulation of any state, country or jurisdiction, a petition in bankruptcy or insolvency or for reorganization or for an arrangement or for the appointment of a receiver or trustee of that Party or of its assets, (ii) propose a written agreement of composition or extension of its debts, (iii) be served with an involuntary petition against it, filed in any insolvency proceeding, and such petition has not been dismissed within sixty (60) days after the filing thereof, (iv) propose or be a party to any dissolution or liquidation, (v) make an assignment for the benefit of its creditors or (vi) admit in writing its inability generally to meet its obligations as they fall due in the general course.

(f)   Effect of Termination .  Upon any termination of this Agreement:

(i)

(w) as of the effective date of such termination, all licenses granted by CytRx to NantCell under this Agreement shall terminate automatically; (x) each Party shall return all Confidential Information of the other Party; (y) NantCell will make no further use of the Licensed Know How or CytRx Materials for any purpose; and (z)  NantCell shall cease development, manufacturing and commercialization of Licensed Products.

(ii)	NantCell shall promptly transfer and assign its rights in all pre-clinical and clinical and commercial inventory of the Licensed Product (including, without limitation, API, WPI and finished dose) and all other materials necessary for the Exploitation of the Licensed Product anywhere in the world.

(g)   Surviving Provisions .  Notwithstanding any provision herein to the contrary, the rights and obligations of the Parties set forth in Sections 1, 4(h), 5(a), 6,7,8(f), 8(g), 9 and 10 as well as any rights or obligations otherwise accrued hereunder (including any accrued payment obligations), shall survive the expiration or termination of this Agreement. Termination shall not relieve any Party from any liability which has accrued prior to such termination.

9.   Indemnification and Insurance .

(a)   Indemnity by CytRx .  CytRx agrees to defend NantCell and its (and its Affiliates') directors, officers, employees and agents (the "NantCell Indemnified Parties") at CytRx's cost and expense, and will indemnify and hold NantCell and the other NantCell Indemnified Parties harmless from and against any claims, losses, costs, damages, fees or expenses (including legal fees and expenses) (collectively, "Losses") to the extent resulting from any Third Party claim (including product liability claims) arising out of or otherwise relating to (i) the negligence or willful misconduct of CytRx or its Affiliates in connection with its activities under this Agreement or (ii) the material breach of this Agreement or the representations and warranties made hereunder by CytRx or its Affiliates; except to the extent such Losses result from clause (i), (ii) or (iii) of Section 9(b) below.  In the event of any such claim against the NantCell Indemnified Parties by a Third Party, the foregoing indemnity obligations shall be conditioned upon (x) NantCell promptly notifying CytRx in writing of the claim (provided, however,   that any failure or delay to notify shall not excuse any obligations of CytRx except to the extent CytRx is actually materially prejudiced thereby) and (y) NantCell granting CytRx sole management and control, at CytRx's sole expense, of the defense of the claim and its settlement (provided, however, that CytRx shall not settle any such claim without the prior written consent of NantCell if such settlement does not include a complete release from liability or if such settlement would involve NantCell undertaking an obligation (including the payment of money by a NantCell Indemnified Party), would bind or impair a NantCell Indemnified Party, or includes any admission of wrongdoing or that any intellectual property or proprietary right of NantCell or this Agreement is invalid, narrowed in scope or unenforceable), and (z) the NantCell Indemnified Parties reasonably cooperating with CytRx (at CytRx's expense).  The NantCell Indemnified Parties may, at their option and expense, be represented in any such action or proceeding by counsel of their own choosing.

(b)   Indemnity by NantCell .  NantCell agrees to defend CytRx and its (and its Affiliates') directors, officers, employees and agents (the "CytRx Indemnified Parties") at NantCell's cost and expense, and will indemnify and hold CytRx and the other CytRx Indemnified Parties harmless from and against any Losses to the extent resulting from any Third Party claim (including product liability claims) arising out of or otherwise relating to (i) the negligence or willful misconduct of NantCell, its Affiliates, or their respective Sublicensees in connection with its activities under this Agreement, (ii) the material breach of this Agreement or the representations, warranties and covenants made hereunder by NantCell or (iii) the Exploitation of Licensed Product by or on behalf of NantCell, its Affiliates, or their respective Sublicensees (including from product liability and intellectual property infringement claims); except, in each case, to the extent such Losses result from clause (i) or (ii) of Section 9(a) above.  In the event of any such claim against the CytRx Indemnified Parties by a Third Party, the foregoing indemnity obligations shall be conditioned upon (x) CytRx promptly notifying NantCell in writing of the claim (provided, however, that any failure or delay to notify shall not excuse any obligation of NantCell except to the extent NantCell is actually materially prejudiced thereby) and (y) CytRx granting NantCell shall sole management and control, at NantCell's sole expense, the defense of the claim and its settlement (provided, however, that NantCell shall not settle any such claim without the prior written consent of CytRx if such settlement does not include a complete release from liability or if such settlement would involve undertaking an obligation (including the payment of money by a CytRx Indemnified Party), would bind or impair a CytRx Indemnified Party, or includes any admission of wrongdoing or that any intellectual property or proprietary right of CytRx or this Agreement is invalid, narrowed in scope or unenforceable), and (z)  the CytRx Indemnified Parties reasonably cooperating with NantCell (at NantCell's expense).  The CytRx Indemnified Parties may, at their option and expense, be represented in any such action or proceeding by counsel of their own choosing.

(c)   LIMITATION OF DAMAGES .  IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER TO THE OTHER PARTY FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST REVENUE, LOST PROFITS, OR LOST SAVINGS) HOWEVER CAUSED AND UNDER ANY THEORY, EVEN IF IT HAS NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS CLAUSE (C) IS INTENDED TO LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF A PARTY UNDER THIS SECTION 9 WITH RESPECT TO ANY DAMAGES PAID BY THE OTHER PARTY TO A THIRD PARTY IN CONNECTION WITH A THIRD-PARTY CLAIM.

10.   Miscellaneous .

(a)   Fees and Expenses .  Each Party shall pay its own costs and expenses in connection with this Agreement and the transactions contemplated hereby (including the fees and expenses of its advisers, accountants and legal counsel).

(b)   Section 365(n) of the Bankruptcy Code .  All rights and licenses granted under or pursuant to any section of this Agreement are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code, licenses of rights to "intellectual property" as defined under Section 101(35A) of the U.S. Bankruptcy Code to the extent permitted thereunder. The Parties shall retain and may fully exercise all of their respective rights and elections under the U.S. Bankruptcy Code. Upon the bankruptcy of any Party, the non-bankrupt Party shall further be entitled to a complete duplicate of (or complete access to, as appropriate) any such intellectual property, and such, if not already in its possession, shall be promptly delivered to the non-bankrupt Party, unless the bankrupt Party elects to continue, and continues, to perform all of its obligations under this Agreement.

(c)   Independent Contractors .  The relationship between NantCell and CytRx created by this Agreement is solely that of independent contractors.  This Agreement does not create any agency, distributorship, employee-employer, partnership, joint venture or similar business relationship between the Parties.  Neither Party is a legal representative of the other Party, and neither Party can assume or create any obligation, representation, warranty or guarantee, express or implied, on behalf of the other Party for any purpose whatsoever.  Each Party shall use its own discretion and shall have complete and authoritative control over its employees and the details of performing its obligations under this Agreement.

(d)   Further Assurances .  At any time or from time to time after the date hereof, the Parties agree to cooperate with each other, and at the request of any other Party, to execute and deliver any further instruments or documents and to take all such further action as the other Party may reasonably request in order to evidence or effectuate the consummation of the transactions contemplated hereby and to otherwise carry out the intent of the Parties hereunder.

(e)   Amendment; Waiver .  This Agreement may be amended only by a written instrument signed by the Parties hereto.  No waiver by any Party hereto of any provision hereof shall be effective unless set forth in a writing executed by the Party so waiving.  The waiver by any Party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by either Party to exercise any right or privilege hereunder shall be deemed a waiver of such Party's rights or privileges hereunder or shall be deemed a waiver of such Party's rights to exercise the same at any subsequent time or times hereunder.

(f)   Governing Law and Dispute Resolution .  This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be performed wholly within that State without regard to its conflicts of laws provisions.  Any claim or controversy between the Parties arising out of the circumstances and relationships contemplated by this Agreement, including disputes relating to the validity, construction or interpretation of this Agreement ("Disputes"), shall, upon written notice of CytRx to NantCell or NantCell to CytRx, as applicable, be referred for resolution by final, binding arbitration in accordance with the provisions of this Section 10(f).  The arbitration shall be conducted by the Judicial Arbitration and Mediation Services, Inc. (or any successor entity thereto) ("JAMS") under its rules of arbitration then in effect, except as modified in this Agreement.  The arbitration shall be conducted in the English language, by a single arbitrator.  The arbitrator shall engage an independent expert with experience in the subject matter of the Dispute to advise the arbitrator. With respect to any Dispute arising under this Agreement, the Parties and the arbitrator shall use all reasonable efforts to complete any such arbitration within six (6) months from the issuance of notice of a referral of any such Dispute to arbitration.  The arbitrator shall determine what discovery will be permitted, consistent with the goal of limiting the cost and time which the Parties must expend for discovery; provided that the arbitrator shall permit such discovery as he or she deems necessary to permit an equitable resolution of the Dispute.  The Parties agree that the decision of the arbitrator shall be the sole, exclusive and binding remedy between them regarding the Dispute presented to the arbitrator.  Any decision of the arbitrator may be entered in a court of competent jurisdiction for judicial recognition of the decision and an order of enforcement.  The arbitration proceedings and the decision of the arbitrator shall not be made public without the mutual consent of the Parties and each Party shall maintain the confidentiality of such proceedings and decision unless each Party otherwise agrees in writing; provided that a Party may make such disclosures as are permitted for Confidential Information under Section 7 above.  Unless otherwise mutually agreed upon by the Parties, the arbitration proceedings shall be conducted in the County of Los Angeles in the State of California.  The Parties agree that they shall share equally the cost of the arbitration filing and hearing fees, the cost of the independent expert retained by the arbitrator, and the cost of the arbitrator and administrative fees of JAMS.  Each Party shall bear its own costs and attorneys' and witnesses' fees and associated costs and expenses.  Pending the selection of the arbitrator or pending the arbitrator's determination of the merits of any Dispute, a Party may seek appropriate interim or provisional relief from any court of competent jurisdiction as necessary to protect the rights or property of that Party.

(g)   Successors and Assigns .  Neither this Agreement nor any of the rights or obligations created herein may be assigned by either Party, in whole or in part, without the prior written consent of the other Party, not to be unreasonably withheld or delayed or conditioned, except that either Party shall be free to assign this Agreement without the consent of the non-assigning Party (i) to an Affiliate of such Party provided that such Party shall remain liable and responsible to the other Party for the performance and observance of all such duties and obligations by such Affiliate, or (ii) in connection with any merger, consolidation or sale of such Party or sale of all or substantially all of the assets of the Party that relate to this Agreement.  This Agreement shall bind and inure to the benefit of the successors and permitted assigns of the Parties hereto.  Any assignment of this Agreement in contravention of this Section 10(g) shall be null and void.

(h)   Force Majeure .  Neither Party shall be held liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for failure or delay in fulfilling or performing any term of this Agreement to the extent, and for so long as, such failure or delay is caused by or results from causes beyond the reasonable control of the affected Party, including fire, floods, embargoes, power shortage or failure, acts of war (whether war be declared or not), insurrections, riots, terrorism, civil commotions, strikes, lockouts or other labor disturbances, acts of God, or any acts, omissions, or delays in acting by any governmental authority or the other Party; provided such failure or delay did not arise from the negligence or willful misconduct of the affected Party.

(i)   Interpretation .  The captions to the Sections of this Agreement are not a part of this Agreement, but are included for convenience of reference and shall not affect its meaning or interpretation.  In this Agreement: (i) the word "including," "includes," "included," and "include" shall be deemed to be followed by the phrase "without limitation" or like expression; (ii) the singular shall include the plural and vice versa ; (iii) masculine, feminine, and neuter pronouns and expressions shall be interchangeable; (iv) the words "hereof," "herein," "hereto," "hereby," "hereunder," and derivative or similar words refer to this Agreement as an entirety and not solely to any particular provision of this Agreement; (v) each reference in this Agreement to a particular Section, appendix, schedule, or exhibit means a Section, appendix, schedule, or exhibit of or to this Agreement, unless another agreement is specified; (vi) "the word "will" shall be construed to have the same meaning and effect as the word "shall"; (vii) "or" is disjunctive but not necessarily exclusive; (viii) references to any Party or Person shall include its permitted successors or assigns; and (ix) whenever this Agreement refers to a number of days, such number shall refer to calendar days unless business days are specified; and business days means any day, except Saturday and Sunday, on which commercial banking institutions in Los Angeles, California are open for business.  This Agreement has been prepared jointly and shall not be strictly construed against either Party.

(j)   Third Party Beneficiaries .  No Person other than the Parties hereto and their respective successors and permitted assigns shall be deemed an intended beneficiary hereunder or have any right to enforce any obligation of this Agreement.

(k)   Counterparts .  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  Counterparts may be delivered via facsimile, electronic mail (including pdf) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

(l)   Titles and Subtitles .  The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

(m)   Notices .  All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or: (i) personal delivery to the Party to be notified, (ii) when sent, if sent by electronic mail or facsimile during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient's next business day, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt.  All communications shall be sent to the respective Parties at their address as set forth on the signature page, or to such e-mail address, facsimile number or address as subsequently modified by written notice given in accordance with this Section 10(m).

(n)   Delays or Omissions .  It is agreed that no delay or omission to exercise any right, power or remedy accruing to any Party, upon any breach, default or noncompliance by another Party under this Agreement, shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of or in any similar breach, default or noncompliance thereafter occurring.  It is further agreed that any waiver, permit, consent or approval of any kind or character on the part of any Party hereto of any breach, default or noncompliance under this Agreement or any waiver on such Party's part of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing.  All remedies, either under this Agreement, by law, or otherwise afforded to any Party, shall be cumulative and not alternative.

(o)   Severability .  Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

(p)   Enforcement .  Each Party hereto acknowledges that money damages would not be an adequate remedy in the event that any of the covenants or agreements in this Agreement are not performed by the Parties in accordance with its terms, and it is therefore agreed that in addition to and without limiting any other remedy or right each Party may have, each Party will have the right to an injunction, temporary restraining order or other equitable relief in any court of competent jurisdiction enjoining any such breach and enforcing specifically the terms and provisions hereof.

(q)   Integration; Entire Agreement .  This Agreement and the documents referred to herein or delivered pursuant hereto contain the entire understanding of the Parties with respect to the subject matter hereof and thereof.  There are no agreements, representations, warranties, covenants or undertakings with respect to the subject matter hereof and thereof other than those expressly set forth herein and therein.  This Agreement supersedes all prior agreements and understandings between the Parties with respect to such subject matter.  Except as otherwise expressly set forth herein, this Agreement embodies the complete agreement and understanding among the Parties hereto with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the Parties, written or oral, that may have related to the subject matter hereof in any way.

 [ Signature Page Follows ]

                    IN WITNESS WHEREOF, the parties have executed this Exclusive License Agreement as of the Effective Date.

	CYTRX CORPORATION
	By:	/s/ STEVEN A. KRIEGSMAN
		Name:Steven A. Kriegsman
		Title: Chief Executive Officers
		Address: CytRx Corporation
		11726 San Vicente Boulevard, Suite 650
		Los Angeles, California 90049
		Chief Financial Officer

 

	NANTCELL, INC.
	By:	/s/ PATRICK SOON-SHIONG
		Name: Patrick Soon-Shiong
		Title: Chief Executive Officer
		Address: NantCell, Inc.
		9920 Jefferson Boulevard
		Culver City, California 90232
		Attention: General Counsel

EXHIBIT 10.2

STOCK PURCHASE AGREEMENT

THIS STOCK PURCHASE AGREEMENT (this " Agreement ") is made as of the 27th day of July, 2017, by and between CytRx Corporation (the " Company "), a Delaware corporation, and NantCell, Inc. (" Purchaser "), a Delaware corporation.  The Company and Purchaser are each referred to herein by name or as a "Party" or, collectively, as the "Parties".

RECITALS

WHEREAS, the Company and Purchaser are entering into that certain Exclusive License Agreement of even date herewith (the " License Agreement "); and

WHEREAS, in connection with the execution of the License Agreement, the Company desires to sell to Purchaser and Purchaser desires to purchase from the Company shares of the Company's common stock, par value $0.001 per share (the " Common Stock ") on the terms and subject to the conditions set forth in this Agreement and the Company has issued a Warrant to Purchaser dated as of the date hereof (the " Warrant ") entitling Purchaser to purchase additional shares of Common Stock (the " Warrant Shares ") on the terms and conditions set forth therein.

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and agreements contained herein, the Parties, intending to be legally bound, do hereby agree as follows:

1.   Definitions . The capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them below:

1.1   " Affiliate " means any Person controlled by, controlling, or under common control with a Party. For purposes of the definition of "Affiliate," "control" and, with corresponding meanings, the terms "controlled by," "controlling," and "under common control with" means (a) the ownership, directly or indirectly, of more than fifty percent (50%) of the voting securities, participating profit interest, or other ownership interests of a legal entity, or (b) the possession, directly or indirectly, of the power to direct the management or policies of a legal entity, whether through the ownership of voting securities or by contract relating to voting rights or corporate governance.

1.2   " Applicable Law " means applicable federal, national, foreign, supranational, state, provincial or local or administrative statute, law, ordinance, rule, code or regulation or orders, injunctions, decrees of any court, administrative agency or similar authority.

1.3   " Disclosure Schedule " means the Disclosure Schedule of the Company delivered concurrently with this Agreement.

1.4   " Exchange Act " means the Securities Exchange Act of 1934, as amended, together with the rules and regulations promulgated thereunder.

1.5   " GAAP " means generally accepted accounting principles in the United States.

1.6   " Governmental Entity " means any arbitrator, court, nation, government, state, locality, or other political subdivision thereof, or any authority, agency, or other entity exercising executive, legislative, judicial regulatory, taxing or administrative functions of, or pertaining to, government.

1.7    " Knowledge " means the knowledge of such Person, assuming that such Person engaged in reasonable inquiry or investigation with respect to the relative subject matter.

1.8   " Material Adverse Effect " means any event, change, or effect, individually or collectively with one or more other events, changes, or effects that have had, or reasonably would be expected to have, a material adverse effect on the business, assets, liabilities, financial condition or results of operations of the Company, taken as a whole, provided that, none of the following matters, either alone or in combination, will constitute, or be considered in determining whether there has been, a Material Adverse Effect: (i) any outbreak or escalation of war or major hostilities or any act of terrorism, (ii) changes in laws, rules, regulations, GAAP or the interpretation thereof, (iii) changes that generally affect the industry in which the Company operates, (iv) changes in financial markets, general economic conditions (including prevailing interest rates, exchange rates, commodity prices and fuel costs) or political conditions, (v) changes in the trading price or trading volume of the Common Stock, (vi) failure by the Company to meet any published or internally prepared projections, budgets, plans or forecasts of revenues, earnings or other financial performance measures or operating statistics and (vii) any matter expressly disclosed in Section 1.8 of the Disclosure Schedule to the extent the results of any such matter would or would reasonably be expected to result in a Material Adverse Effect, except solely in the case of clauses (i) through (iv), to the extent those events, changes, or effects have, or would reasonably be expected to have, a disproportionate effect on the Company, taken as a whole, as compared to other companies operating in the industry in which the Company operates, and with respect to clauses (v) and (vi), it being understood that the facts and circumstances underlying any such change or failure that are not otherwise expressly excluded in clauses (i) through (vi) herein from the definition of a "Material Adverse Effect" may be considered in determining whether there has been a Material Adverse Effect.

1.9   " NASDAQ " means the Nasdaq Stock Market, Inc.

1.10   " Person " means any means any individual, corporation, partnership, association, joint-stock company, trust, unincorporated organization or government or political subdivision thereof.

1.11   " Register ," " Registered ," and " Registration " refer to a registration effected by preparing and filing a Registration Statement in compliance with the Securities Act, and the declaration or ordering of effectiveness of such Registration Statement or document by the SEC.

1.12   " Registrable Securities " means (a) the Shares, (b) the Warrant Shares and (c) any shares of Common Stock or other securities issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, the Shares or Warrant Shares by way of stock dividend, stock split or in connection with a combination of shares, recapitalization or other reorganization or otherwise. Notwithstanding the foregoing, as to any particular Shares or other securities described above, once issued they shall cease to be Registrable Securities when (i) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been disposed of in accordance with such Registration Statement, (ii) they shall have been distributed pursuant to Rule 144 under the Securities Act, (iii) such securities may be sold without volume restrictions pursuant to Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent, or (iv) such securities shall have been otherwise transferred, unless the transfer is to an Affiliate or occurs after the Lock-Up Period in accordance with the terms and conditions of this Agreement.

1.13   " Registration Statement " means a Registration Statement filed pursuant to the Securities Act.

1.15   " Required Registration Statement " means a Registration Statement which covers the Registrable Securities requested to be included therein pursuant to the provisions of Section 6.1 on an appropriate form pursuant to the Securities Act (other than pursuant to Rule 415), and which form is available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof, and all amendments and supplements to such Registration Statement, including post-effective amendments, in each case including the prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.

1.14   " Required Shelf Registration Statement " means a Registration Statement which covers the Registrable Securities requested to be included therein pursuant to the provisions of Section 6.1 on an appropriate form or any similar successor or replacement form (in accordance with Section 6.1 ) pursuant to Rule 415 of the Securities Act, and which form is available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof, and all amendments and supplements to such Registration Statement, including post-effective amendments, in each case including the prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.

1.16   " Rule 144 " means Rule 144 promulgated under the Securities Act, or any successor rule thereto.

1.17   " SEC " means the U.S. Securities and Exchange Commission.

1.18   " Securities Act " means the Securities Act of 1933, as amended, together with the rules and regulations promulgated thereunder.

1.19   " Transaction Documents " means the License Agreement and this Agreement.

1.20   " Voting Stock " means securities of any class or series of a corporation or association the holders of which are ordinarily, in the absence of contingencies, entitled to vote generally in matters put before the stockholders or members of such corporation or association, or securities convertible or exchangeable into or exercisable for any such securities.

2.2   Delivery and Payment .

(a)   Purchaser Deliverables . At the Closing, subject to the terms and conditions hereof, Purchaser shall deliver to the Company:

(i)   the Aggregate Purchase Price, by wire transfer of immediately available funds to a bank account designated by the Company, such designation to be made no later than two (2) Business Days prior to the Closing Date; and

(ii)   a copy of the License Agreement, executed by Purchaser.

(b)   The Company's Deliverables . At the Closing, subject to the terms and conditions hereof, the Company shall deliver to Purchaser:

(i)   a stock certificate, in the name of Purchaser, representing the Shares purchased at the Closing, dated as of the Closing Date;

(ii)   a copy of the License Agreement, executed by the Company; and

(iii)   resolutions of the Company's Board of Directors (the " Company Board ") approving the transactions contemplated by this Agreement.

3.   Representations and Warranties of the Company . The Company hereby represents and warrants to Purchaser as of the date hereof (unless specifically made as of another date, in which case as of such other date), as follows except as set forth in the Disclosure Schedule.

3.1   Capitalization . As of July 27, 2017, the authorized capital stock of the Company consisted of 250,000,000 shares of common stock, $0.001 par value per share, of which 153,127,389 shares were outstanding, and 5,000,000 shares of preferred stock, $0.01 par value per share, of which 25,000 shares were designated as Series A Junior Participating Preferred Stock (all of which are reserved, and none of which are outstanding, for issuance upon the exercise of the rights under our Shareholder Protection Rights Agreement) and 3,900 shares were designated as Series B Convertible Preferred Stock, none of which were outstanding.   All issued and outstanding shares of the Company's capital stock have been duly authorized and validly issued, and are fully paid and nonassessable, and were issued in compliance with all applicable federal and state securities laws. There are no preemptive or similar rights on the part of any holder of any class or securities of the Company. As of the date hereof, except as set forth in the SEC Documents or as described or referred to above, there are no securities convertible into or exchangeable for, or options, warrants, calls, subscriptions, rights, contracts, commitments, or understandings of any kind to which the Company is a party or by which it is bound obligating the Company to issue, deliver or sell, or cause to be issued, delivered or sold additional shares of its capital stock or other voting securities of the Company. As of the date hereof, there are no outstanding agreements of the Company to repurchase, redeem or otherwise acquire any shares of its capital stock.  Except as otherwise set forth in this Agreement, the Shares have the same rights, preferences and privileges as all other shares of Common Stock.

3.2   Litigation . There are no actions, suits, proceedings or, to the Company's Knowledge, any investigations, pending or currently threatened against the Company that questions the validity of this Agreement or the issuance of the Shares contemplated hereby. As of the Closing, there is no other action, suit, or proceeding pending or, to the Company's Knowledge, currently threatened against the Company, except as disclosed in the SEC Documents and except as would not have a Material Adverse Effect. As of the Closing, there are no material outstanding consents, orders, decrees or judgments of any Governmental Entity naming the Company, except as disclosed in the SEC Documents and except as would not have a Material Adverse Effect.

3.3   Organization and Good Standing . The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties and carry on its business as now conducted. The Company is duly qualified and is in good standing as a foreign corporation in each jurisdiction in which the properties owned, leased or operated, or the business conducted, by it requires such qualification except where the failure to be so qualified or in good standing, individually or in the aggregate, would not have a Material Adverse Effect.

3.4   Authorization . All corporate actions on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Agreement and for the issuance of the Shares have been taken. The Company has the requisite corporate power to enter into this Agreement and to carry out and perform its obligations thereunder. The Agreement, when executed and delivered by the Company, shall be duly authorized, executed and delivered and, upon due execution and delivery by Purchaser, each Agreement will be a valid and binding agreement of the Company, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by equitable principles.

 3.5   Subsidiaries, Joint Ventures and Partnerships . The Company does not currently own or control, directly or indirectly, any subsidiaries or interests in any other corporation, partnership, trust, joint venture, limited liability company, association, or other business entity. The Company is not a participant in any joint venture, partnership or similar arrangement.

3.6   No Conflicts . Neither the execution, delivery nor performance of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement will result in any violation of, be in conflict with, cause any acceleration or any increased payments under, or constitute a default under, with or without the passage of time or the giving of notice: (a) any provision of the Company's Restated Certificate of Incorporation or Restated Bylaws, each as in effect on the date hereof or at the Closing; (b) any provision of any judgment, decree or order to which the Company is a party or by which it is bound; or (c) any note, mortgage, contract, agreement, license, waiver, exemption, order or permit to which the Company is a party or by which any property or asset of the Company is bound or affected, except in the case of subsections (b) and (c) as would not have a Material Adverse Effect.

3.7   No Defaults . The Company is not in default under or in violation of either its Restated Certificate of Incorporation or its Restated Bylaws.

3.8   Listing Requirements . The Common Stock is listed on NASDAQ. The Company has received notification from NASDAQ that it is not in compliance with the minimum bid price requirement for continued inclusion on The Nasdaq Capital Market under Nasdaq Listing Rule 5550(a)(2). If compliance cannot be demonstrated by August 21, 2017, NASDAQ will provide written notification that our common stock will be delisted .

3.9   Disclosure Documents .

(a)   For the two (2) years preceding the date hereof, the Company has filed, on a timely basis or has received a valid extension as of such time of filing and has thereafter made such filings prior to the expiration of any such extension, all reports, schedules, forms, statements and other documents required to be filed by the Company with the SEC under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the " SEC Documents "), and the Company has paid all fees and assessments due and payable in connection with the SEC Documents. As of their respective dates, each of the SEC Documents complied in all material respects with all statutes and applicable rules and regulations of the SEC, including the requirements of the Securities Act or the Exchange Act, as applicable, and none of the SEC Documents, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.  As of the date hereof, there are no outstanding or unresolved comments received from the SEC staff with respect to the SEC Documents, and to the Company's Knowledge, none of the SEC Documents is the subject of any ongoing SEC review or investigation.

(b)   The audited financial statements of the Company included in the SEC Documents comply in all material respects with the published rules and regulations of the SEC with respect thereto, and such audited financial statements (i) were prepared from the books and records of the Company, (ii) were prepared in accordance with GAAP applied on a consistent basis (except as may be indicated therein or in the notes or schedules thereto) and (iii) present fairly in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended. The unaudited financial statements included in the SEC Documents comply in all material respects with the published rules and regulations of the SEC with respect thereto, and such unaudited financial statements (1) were prepared from the books and records of the Company, (2) were prepared in accordance with GAAP, except as otherwise permitted under the Exchange Act and the rules and regulations thereunder, applied on a consistent basis (except as may be indicated therein or in the notes or schedules thereto) and (3) present fairly in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows (or changes in financial condition) for the periods then ended, subject to normal year-end adjustments and any other adjustments described therein or in the notes or schedules thereto.

(c)   Since the date of the latest audited financial statements included within the SEC Documents, except as specifically disclosed in a subsequent SEC Document filed prior to the date hereof:  (i) there has been no event, occurrence or development that has had or that would reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock (other than in connection with the exercise of options to purchase Common Stock or the vesting of restricted stock units issued under existing Company equity incentive plans) and (iii) the Company has not issued any equity securities to any officer or director, except pursuant to existing Company equity incentive plans.

3.10   Absence of Certain Events and Changes . Since the date of the Company's Quarterly Report on Form 10-Q for the quarter ended on March 31, 2017: (a) the Company has conducted its business in the ordinary course consistent with past practice, and (b) there has not been any event, change or development which, individually or in the aggregate, would have a Material Adverse Effect, taken as a whole.

3.11   Compliance with Laws; Permits .

(a)   The Company is not, and since January 1, 2015, has not been, in violation of any Applicable Law in respect of the conduct of its business or the ownership of its properties which would have a Material Adverse Effect.

(b)   The Company has all franchises, permits, licenses and any similar authority (" Permits ") necessary to permit it to own its properties and to conduct its business as presently conducted and is in compliance thereunder, except as does not and would not have a Material Adverse Effect. The Company has not taken any action that would interfere with the Company's ability to renew all such Permit(s), except where the failure to renew such Permit(s) would not have a Material Adverse Effect.

3.12   Valid Issuance of Shares .

(a)   The Shares, when issued, sold and delivered in accordance with the terms and for the consideration set forth in this Agreement, will be validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under this Agreement, applicable state and federal securities laws and liens or encumbrances created by or imposed by Purchaser. Assuming the accuracy of the representations of Purchaser in Section 4 of this Agreement and subject to any filings required by Section 3.13 , the Shares will be issued in compliance with all applicable federal and state securities laws.

(b)   Neither the Company nor any Person acting on behalf of the Company has offered or sold any of the Shares by any form of general solicitation or general advertising. The Company has offered the Shares for sale only to Purchaser.

(c)   The Company has not, directly or through any agent, sold, offered for sale or solicited offers to buy any "security" (as defined in the Securities Act) under any circumstances that would cause the offering of the Shares to be integrated with prior offerings by the Company for purposes of any Applicable Law or stockholder approval provision.

3.13   Governmental Entity or Third Party Consents . Assuming the accuracy of the representations made by Purchaser in Section 4 of this Agreement, no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing (each, a " Consent ") with, any Governmental Entity or other third party on the part of the Company is required in connection with the consummation of the transactions contemplated by this Agreement, except such notices and filings required or permitted to be made with certain state and federal securities commissions, which notices will be filed on a timely basis.

3.14   No Brokers . No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement based on arrangements made by the Company.

3.15   No Undisclosed Liabilities . The Company does not have any liabilities (contingent or otherwise) of the type required to be disclosed on a balance sheet prepared in accordance with GAAP, except for those (a) reflected or reserved against in financial statements of the Company included in the SEC Documents filed with the SEC prior to the date of this Agreement, (b) created under, or incurred in connection with, this Agreement, (c) incurred in the ordinary course of business or otherwise disclosed in the SEC Documents subsequent to the period covered by the Company's Quarterly Report on Form 10-Q for the quarter ended on March 31, 2017 and (d) that have not been and would not reasonably be expected to be material.

3.16   Investment Company . The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Shares, will not be or be an Affiliate of, an "investment company" within the meaning of the Investment Company Act of 1940, as amended.

3.17   Internal Controls . The Company has implemented and maintains a system of internal control over financial reporting (as required by Rule 13a-15(a) under the Exchange Act) that is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of consolidated financial statements for external purposes, and, to the knowledge of the Company, such system of internal control over financial reporting is effective. For purposes of this Section 3.17 , "knowledge of the Company" means the actual knowledge of the Chief Executive Officer and the Chief Financial Officer of the Company. The Company has implemented and maintains disclosure controls and procedures (as required by Rule 13a-15(a) of the Exchange Act) that are designed to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported within the timeframes specified by the SEC's rules and forms (and such disclosure controls and procedures are effective), and has disclosed, based on its most recent evaluation of its system of internal control over financial reporting prior to the date of this Agreement, to the Company's outside auditors and the audit committee of the Company Board, (a) any significant deficiencies and material weaknesses known to it in the design or operation of its internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) that would reasonably be expected to adversely affect the Company's ability to record, process, summarize and report financial information and (b) any fraud known to it, that involves management or other employees who have a significant role in the Company's internal control over financial reporting.  Since the date of the latest audited financial statements of the Company included in the SEC Document, there has been no change in the Company's internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company's internal control over financial reporting.

3.18   Intellectual Property . Except as contemplated by the License Agreement, the Company owns or possesses adequate enforceable rights to use all patents, patent applications, trademarks (both registered and unregistered), service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) (collectively, the " Intellectual Property ") , necessary for the conduct of their respective businesses as conducted as of the date hereof, except to the extent that the failure to own or possess adequate rights to use such Intellectual Property would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; the Company has not received any written notice of any claim of infringement or conflict which asserted Intellectual Property rights of others, which infringement or conflict, if the subject of an unfavorable decision, would reasonably be expected to result in a Material Adverse Effect; there are no pending, or to the Company's Knowledge, threatened judicial proceedings or interference proceedings against the Company challenging the Company's rights in or to or the validity of the scope of any of the Company's patents, patent applications or proprietary information, except for such right or claim that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; to the Company's Knowledge no other entity or individual has any right or claim in any of the Company's patents, patent applications or any patent to be issued therefrom by virtue of any contract, license or other agreement entered into between such entity or individual and the Company or by any non-contractual obligation, other than by written licenses granted by the Company, except for such right or claim that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; the Company has not received any written notice of any claim challenging the rights of the Company in or to any Intellectual Property owned, licensed or optioned by the Company which claim, if the subject of an unfavorable decision would reasonably be expected to result in a Material Adverse Effect.

3.19   No Other Representations and Warranties .  The representations and warranties set forth in this Section 3 are the only representations and warranties made by the Company with respect to the Shares or any other matter relating to the transactions contemplated by this Agreement. Except as specifically set forth in the this Agreement, (a) the Company is selling the Shares to Purchaser "as is" and "where is" and with all faults, and makes no warranty, express or implied, as to any matter whatsoever relating to the Shares or any other matter relating to the transactions contemplated by this Agreement, including as to (i) merchantability or fitness for any particular use or purpose, (ii) the operation of the business of the Company after the Closing in any manner, (iii) the probable success or profitability of the business of the Company after the Closing or (iv) the continued listing of the Company's shares of Common Stock on NASDAQ, and (b) neither the Company or any of its Affiliates, nor any of their respective stockholders, directors, officers, employees or agents will have or be subject to any liability or indemnification obligation to Purchaser or any other Person resulting from the distribution to Purchaser or its representatives of, or Purchaser's use of, any information relating to the Company or any of its Affiliates, including any descriptive memoranda, summary business descriptions, financial forecasts, projections or models, or any information, documents or material made available to Purchaser or its Affiliates or representatives, whether orally or in writing, in management presentations, functional "break-out" discussions, responses to questions submitted on behalf of Purchaser or in any other form in expectation of the transactions contemplated by this Agreement. The Company acknowledges that except as set forth in Section 4 , neither Purchaser nor any director, officer, employee, agent or representative of Purchaser makes any representation or warranty, either express or implied, concerning the transactions contemplated by this Agreement.  Nothing in this Section 3.19 will affect the representations and warranties in the License Agreement.

4.   Representations And Warranties Of Purchaser . Purchaser hereby represents and warrants to the Company as of the date hereof and as of the Closing Date (unless specifically made as of another date, in which case as of such other date) as follows:

4.1   Organization and Good Standing . Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties and carry on its business as now conducted. Purchaser is duly qualified and is in good standing as a foreign corporation in each jurisdiction in which the properties owned, leased or operated, or the business conducted, by it requires such qualification except where the failure to be so qualified or in good standing, individually or in the aggregate, would not have a material adverse effect on the   on the business, assets, liabilities, financial condition or results of operations of Purchaser and its subsidiaries, taken as a whole.

4.2   Authorization . All corporate actions on the part of Purchaser, its officers, directors and stockholders necessary for the authorization, execution and delivery of the Transaction Documents have been taken. Purchaser has the requisite corporate power to enter into the Transaction Documents and to carry out and perform its obligations thereunder. The Transaction Documents, when executed and delivered by Purchaser, shall be duly authorized, executed and delivered and, upon due execution and delivery by the Company. Each Transaction Document will be a valid and binding agreement of Purchaser, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by equitable principles.

4.3   No Conflicts . Neither the execution, delivery nor performance of any of the Transaction Documents, nor the consummation by Purchaser of the transactions contemplated by the Transaction Documents will result in any violation of, be in conflict with, cause any acceleration or any increased payments under, or constitute a default under, with or without the passage of time or the giving of notice: (a) any provision of Purchaser's Amended and Restated Certificate of Incorporation or Purchaser's Bylaws, each as in effect on the date hereof or at the Closing; (b) any provision of any judgment, decree or order to which Purchaser is a party or by which it is bound; or (c) any note, mortgage, material contract, material agreement, license, waiver, exemption, order or permit, except in the case of subsections (b) and (c) as would not have had, or reasonably would be expected to have, a material adverse effect on the on the business, assets, liabilities, financial condition or results of operations of Purchaser and its subsidiaries, taken as a whole.

4.4   Ownership . Other than the Shares acquired in this Agreement, none of Purchaser nor any of its Affiliates, nor any "group" of Persons (as such term is used in and construed under Sections 13d-3 and 14d-2 of the Exchange Act) owns any shares or other securities of the Company or any direct or indirect rights or options to acquire any such securities or any securities convertible into such securities or has any rights to acquire such securities, or has established or increased, directly or indirectly, a put equivalent position, as defined in Rule 16a-1(h) under the Exchange Act, with respect to the Company's equity securities. Immediately prior to the entry into this Agreement, Purchaser is not the beneficial owner, as defined under Rule 13d-3 under the Exchange Act, of any securities of the Company. None of Purchaser nor any of its Affiliates has traded in any shares or other securities of the Company in the ninety (90) days prior to the date hereof.

4.5   Governmental Entity or Third Party Consents . Assuming the accuracy of the representations made by the Company in Section 3 of this Agreement, no Consent of any Governmental Entity or other third party on the part of Purchaser is required in connection with the consummation of the transactions contemplated by this Agreement.

4.6   No Brokers . No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement based on arrangements made by Purchaser.

4.7   Investment Representations . In connection with the offer, purchase and sale of the Shares, Purchaser makes the following representations:

(a)   Purchase for Own Account . Purchaser is acquiring the Shares for its own account, not as nominee or agent, for investment and not for, with a view to, or for resale in connection with, any distribution or public offering thereof within the meaning of the Securities Act. Purchaser does not presently have any contract, undertaking or agreement with any Person to sell, transfer or grant participation rights to such Person or to any other Person with respect to any of the Shares acquired by Purchaser hereunder. Purchaser has not been organized solely for purposes of acquiring the Shares.

(b)   Restricted Securities . Purchaser understands that the Shares are being offered and sold to it in reliance upon specific exemptions from the registration requirements of the Securities Act and state securities laws and that the Company is relying upon the truth and accuracy of, and Purchaser's compliance with, the representations, warranties, agreements, acknowledgments and understandings of Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of Purchaser to acquire the Shares.  Purchaser understands that the Shares, when issued, shall be "restricted securities" under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws the Shares may be resold without registration under the Securities Act only in certain limited circumstances. Consequently, Purchaser may have to bear the risk of owning the Shares for an indefinite period of time. Purchaser is familiar with Rule 144 as presently in effect.

(c)   Purchaser Status .  At the time Purchaser was offered the Shares, it was, and as of the date of this Agreement and the Closing Date is, an "accredited investor" as defined in Regulation D, Rule 501(a), promulgated under the Securities Act.

(d)   Knowledge and Experience of Purchaser .  Purchaser has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares, and has so evaluated the merits and risks of such investment.  Purchaser has had the opportunity to review the SEC Documents and to ask questions of, and receive answers from, the officers of the Company concerning the Company, including its financial condition, results of operation and prospects, and the terms and conditions of the offering of the Shares sufficient to enable it to evaluate its investment. Purchaser has received all of the information it considers necessary or appropriate for deciding whether to purchase the Shares hereunder. Purchaser understands that its investment in the Shares involves a significant degree of risk, including a risk of total loss of Purchaser's investment.  Purchaser understands that the market price of the Common Stock has been volatile and that no representation is being made as to the future value of the Common Stock.  Purchaser is able to bear the economic risk of an investment in the Shares and is able to afford a complete loss of such investment.

(e)   Sufficient Funds . Purchaser has sufficient funds to deliver the Purchase Price in full and to consummate the transactions contemplated by this Agreement in accordance with the terms hereof.

(f)   Legend . Purchaser understands that, until such time as a Registration Statement has been declared effective or the Shares may be sold pursuant to Rule 144 under the Securities Act without any restriction as to the number of securities as of a particular date that can then be immediately sold, the certificates evidencing the Shares will bear with one or all of the following restrictive legends:

(i)   "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM (AND UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED). THE TRANSFER OF THE SECURITIES EVIDENCED BY THIS CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN A STOCK PURCHASE AGREEMENT BETWEEN THE COMPANY AND PURCHASER OF SUCH SECURITIES.  THE COMPANY AND ITS TRANSFER AGENT WILL NOT BE OBLIGATED TO RECOGNIZE OR GIVE EFFECT TO ANY TRANSFER MADE IN VIOLATION OF SUCH RESTRICTIONS. A COPY OF SUCH RESTRICTIONS MAY BE OBTAINED FROM THE COMPANY UPON WRITTEN REQUEST.";

(ii)   any legend required by the securities laws of any state.

4.8   No Other Representations and Warranties . The representations and warranties set forth in this Section 4 are the only representations and warranties made by Purchaser with respect to the transactions contemplated by this Agreement. Purchaser acknowledges that, except as set forth in Section 3 , neither the Company nor any director, officer, employee, agent or representative of the Company makes any representation or warranty, either express or implied, concerning the Shares or the transactions contemplated by this Agreement. Nothing in this Section 4.8 will affect the representations and warranties in the License Agreement.

5.   Stock Ownership Governance .

5.1   Lock-Up Period . From the date hereof until the earlier of (i) the one year anniversary of the date of this Agreement and (ii) the time of acceptance by the United States Food and Drug Administration for filing by Purchaser or its sublicensee under the License Agreement of a new drug application on a Licensed Product (as such term is defined under the License Agreement) filed pursuant to Section 505(b)(1) or 505(b)(2) of the Food Drug and Cosmetic Act (such time period, the " Lock-Up Period "), Purchaser shall not, and shall cause any other holder of Registrable Securities not to, without the prior written consent of the Company, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any Shares or enter into a transaction which would have the same effect; provided , however , that the foregoing shall not prohibit Purchaser from transferring Shares to one of its Affiliates, provided that such Affiliate, prior to or simultaneously with such transfer, shall have agreed in writing to be subject to and bound by all of the restrictions and obligations set forth in this Agreement as though it were Purchaser hereunder.

5.2   Standstill Agreement . During the Lock-Up Period, except (i) with the prior written consent of the Company or (ii) by way of stock dividends or other distributions made to the Company's stockholders generally, Purchaser will not, and, subject to Section 5.3 , will not encourage, direct, facilitate or cause any of its Affiliates, employees, representatives or agents to, directly or indirectly:

(a)   acquire or agree, offer, seek or propose to acquire ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any Voting Stock of the Company or securities convertible or exchangeable into or exercisable for any Voting Stock of the Company if, as a result of such acquisition, Purchaser in the aggregate would own more than 14.9% of the Voting Stock of the Company at the time of such acquisition;

(b)   cause to be acquired ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any Voting Stock of the Company or securities convertible or exchangeable into or exercisable for any Voting Stock of the Company if, as a result of such acquisition, the Person acquiring ownership together with Purchaser and its Affiliates, employees, representatives or agents, in the aggregate, would own more than 14.9% of the Voting Stock of the Company at the time of such acquisition; effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in (i) any tender or exchange offer for securities of the Company or merger, consolidation, business combination or acquisition or disposition of assets of the Company; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company; or (iv) any "solicitation" of "proxies" to vote (as such terms are used in Regulation 14A of the Exchange Act), becoming a "participant" in any "election contest" (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiating, proposing, encouraging or otherwise soliciting any other stockholder(s) of the Company for the approval of any stockholder proposals with respect to the Company, or otherwise seeking to solicit, advise or influence any Person with respect to the voting of any securities of the Company;

(c)   form, join or in any way participate in a "partnership, limited partnership, syndicate, or other group" (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) with respect to any Voting Stock of the Company;

(d)   otherwise act to seek to control or influence the Company's management, Company Board or policies of the Company (including by seeking to replace or remove any representative on the Company Board or seeking to have called any meeting of stockholders of the Company or executing any written consent in lieu of a meeting of stockholders of the Company);

(e)   arrange, or in any way participate in, any financing for the purchase of any Voting Stock of the Company or securities convertible or exchangeable into or exercisable for any Voting Stock of the Company; or

(f)   enter into any discussions, negotiations, arrangements or understandings with or advise, assist or encourage any third party with respect to, any of the foregoing.

5.3   Exceptions to Section 5.2 Standstill Provisions . Notwithstanding the foregoing, the obligations under Section 5.1 shall terminate as to Purchaser and its Affiliates in the event that:

(a)   the Company publicly announces a decision of the Company Board to conduct a formal process to sell all or substantially all of the assets of the Company; provided that the restrictions in Section 5.1 will automatically be reinstated and be in full force and effect if and at such time as the Company publicly announces a termination of such process;

(b)   a third party commences a tender offer for more than fifty percent (50%) of the Voting Stock of the Company, and the Company has publicly recommended acceptance of such tender offer; provided , the obligations in Section 5.1 will automatically be reinstated in the event such tender offer is terminated;

(c)   the Company enters into any binding written agreement (i) to sell or dispose of securities representing at least fifty percent (50%) of all outstanding Voting Stock (on a Common Stock equivalent basis) to any Person or group that is unaffiliated with Purchaser and

all of its Affiliates or (ii) providing for a transaction that, if consummated, would result in (A) the holders of the outstanding Voting Stock immediately prior to such transaction ceasing to hold more than fifty percent (50%) of the combined voting power of the surviving, purchasing or continuing entity immediately after such transaction or (B) the sale of all or substantially all of the assets of the Company to a third party that does not control, is not controlled by and is not under common control with the Company; or

(d)   upon the adoption of a plan of liquidation or dissolution with respect to the Company.

5.4   Voting Agreement . During the Lock-up Period, Purchaser shall (a) publicly support and recommend that the Company's stockholders vote for the election of each of the Company Board's nominees at each meeting of the Company's stockholders at which directors are to be elected, (b) cause all Voting Stock of the Company that it or its Affiliates is entitled to vote at each such stockholder's meeting (whether held of record or beneficially) to be present for quorum purposes and (c) cause all Voting Stock of the Company that it or its Affiliates is entitled to vote (whether held of record or beneficially) to be voted in accordance with the Company Board's recommendation with respect to each proposal submitted to the Company's stockholders at any such meeting.

5.5   Market Stand-Off Agreement . During the Lock-Up Period, Purchaser agrees that in connection with any registration of the Company's securities that, upon the request of the Company or the underwriters managing any underwritten offering of the Company's securities, not to sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any Registrable Securities without the prior written consent of the Company or such underwriters, as the case may be, for such period of time from the effective date of such registration as the Company or the underwriters may specify.

6.   Registration Rights .

6.1   Demand Registration . At any time following the Lock-Up Period, Purchaser may request in writing (" Request ") (which Request will specify the Registrable Securities intended to be disposed and the intended method of distribution thereof) that the Company register under the Securities Act all or part of the Registrable Securities that are Beneficially Owned by Purchaser (a) on a Registration Statement on Form S-3 or other available form (a " Demand Registration ") or (b) on a Shelf Registration Statement covering any Registrable Securities (or otherwise designating an existing Shelf Registration Statement with the SEC to cover the Registrable Securities) (" Shelf Registration ").  Each Request pursuant to this Section 6.1 will be in writing and will specify the number of Registrable Securities requested to be registered.

6.2   Restrictions on Demand Registrations . Notwithstanding anything to the contrary in this Agreement, Purchaser may not make more than three Requests for Demand Registration and not more than three Requests for Shelf Registration.  The Company may on up to two occasions postpone for up to 120 days the filing or the effectiveness of a Registration Statement if the Board of Directors of the Company determines in good faith that such Demand Registration or Shelf Registration, as the case may be, would reasonably be expected to have a material adverse effect on any acquisition of assets (other than in the ordinary course of business), merger, consolidation, tender offer or any other material business transaction by the Company; provided that in such event, Purchaser will be entitled to withdraw such Request and, if such Request is withdrawn, such Request will not count as one of the permitted Requests.

6.3   Selection of Underwriters; Underwritten Offering .  If Purchaser so elects in writing delivered to the Company, the Company will use its reasonable best efforts to cause a Demand Registration to be in the form of an underwritten offering.  The Company will have the right to select the managing underwriter and managers to administer the offering, subject to such managing underwriter being a nationally recognized investment bank reasonably acceptable to Purchaser. Purchaser may not participate in any registration hereunder which is underwritten unless Purchaser (a) agrees to sell the Registrable Securities held by Purchaser on the basis provided in any underwriting agreement with the underwriters and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.

6.4   Piggyback Registrations .

(a)   If the Company determines to register any of its securities either for its own account or the account of a security holder or holders, other than a registration pursuant to Section 6.1 , a registration relating solely to employee or director benefit plans or employee dividend reinvestment plans, a registration relating to the offer and sale of debt securities, a registration relating solely to a corporate reorganization (including by way of merger of the Company with any other business) or acquisition of another business or a registration on any registration form that does not permit secondary sales (a " Piggyback Registration "), the Company will (i) promptly give written notice of the proposed Piggyback Registration to Purchaser and (ii) subject to Sections 6.4(b) and 6.4(c) , include in such Piggyback Registration and in any underwriting involved therein all of such Registrable Securities as are specified in a written request or requests made by Purchaser received by the Company within 10 Business Days after such written notice from the Company is given to Purchaser.

(b)   If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the Company, the Company will include in such registration (i) first, the securities the Company proposes to sell, (ii) second, the securities requested to be included in such registration by holders that are contractually entitled to include such securities therein pursuant to any written agreement entered into by the Company prior to the date of this Agreement (the " Other Registrable Securities ") pro rata, on the basis of the number of shares of Common Stock held by Purchaser and the holders of the other Registrable Securities and the Registrable Securities requested to be included in such registration by Purchaser and (iii) third, any other securities requested to be included in such registration. If a Piggyback Registration is an underwritten secondary registration on behalf of any holder of Other Registrable Securities, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the holders of Other Registrable Securities, the Company will include in such registration (A) first, the Other Registrable Securities requested to be included in such registration by the holders thereof, (B) second, the Registrable Securities requested to be included in such registration by Purchaser and (C) third, any other securities requested to be included in such registration.

(c)   The Company and any holder of Other Registrable Securities initiating any registration will have the right to, in its sole discretion, defer, terminate or withdraw any registration initiated by it under this Section 6.4 whether or not Purchaser has elected to include any Registrable Securities in such registration. Notwithstanding anything contained herein, in the event that the SEC or applicable federal securities laws and regulations prohibit the Company from including all of the Registrable Securities requested by Purchaser to be registered in a registration statement pursuant to this Section 6.4 , then the Company will be obligated to include in such registration statement only such limited portion of the Registrable Securities as is permitted by the SEC or such federal securities laws and regulations.

        6.5   Withdrawals .  Purchaser may withdraw all or any part of the Registrable Securities from a Registration Statement at any time prior to the effective date of such Registration Statement.  If such withdrawal is made primarily as a result of the failure of the Company to comply with any provision of this Agreement, then such Request will not count as one of the permitted Requests and the Company will be responsible for the payment of all Registration Expenses in connection with such registration.  In the case of any other withdrawal, Purchaser may elect either to pay for the Registration Expenses associated with the withdrawn registration or to forfeit one request.

        6.6   Registration Procedures .  Whenever Purchaser has made a Request in accordance with Section 6.1 that any Registrable Securities be registered pursuant to this Agreement, the Company will:

(a)   not later than the 30th calendar day after the receipt by the Company of such a Request, prepare and file with the SEC a Required Registration Statement or Required Shelf Registration Statement, as the case may be, providing for the registration under the Securities Act of the Registrable Securities which the Company has been so requested to register in accordance with the intended methods of distribution thereof specified in such Request or  requests, and will use reasonable best efforts to have such Required Registration Statement or Required Shelf Registration Statement, as the case may be, declared effective by the SEC as soon as practicable thereafter and to keep such Required Registration Statement or Required Shelf Registration Statement, as the case may be, continuously effective (i) in the case of a Demand Registration, for a period of at least 180 calendar days (or, in the case of an underwritten offering, such period as the underwriters will reasonably require) following the date on which such Required Registration Statement is declared effective (or such shorter period which will terminate when all of the Registrable Securities covered by such Required Registration Statement have been sold pursuant thereto) or (ii) in the case of a Shelf Registration, until such time as all Registrable Securities covered by such Required Shelf Registration Statement have been sold pursuant thereto, including, in either case, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Required Registration Statement or Required Shelf Registration Statement or the related prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Required Registration Statement or Required Shelf Registration Statement, if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Required Registration Statement or Required Shelf Registration Statement or by the Securities Act, the Exchange Act, any state securities or blue sky laws, or any rules and regulations thereunder;

(b)   prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement for the period set forth in (a) above;

(c)   furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, the prospectus included in such Registration Statement (including each preliminary prospectus) and such other documents as Purchaser may reasonably request in order to facilitate the disposition of the Registrable Securities owned by Purchaser;

(d)   use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as Purchaser reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable Purchaser to consummate the disposition in such jurisdictions of the Registrable Securities owned by Purchaser; provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or (ii) consent to general service of process in any such jurisdiction;

(e)   in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriters of such offering and take such other actions as are prudent and reasonably required in order to expedite or facilitate the disposition of such Registrable Securities, including causing its officers to participate in "road shows" and other information meetings organized by the managing underwriters;

(f)   notify Purchaser, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and in such case, the Company will promptly prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;

(g)   use its reasonable best efforts to cause all such Registrable Securities which are registered to be listed on each securities exchange on which similar securities issued by the Company are then listed;

(h)   enter into such customary agreements and take all such other actions as Purchaser or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;

(i)   make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by Purchaser or any underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser or any underwriter, attorney, accountant or agent in connection with such Registration Statement;

(j)   if such sale is pursuant to an underwritten offering, use reasonable best efforts to obtain "comfort" letters dated the pricing date of the offering of the Registrable Securities and the date of the closing under the underwriting agreement from the Company's independent public accountants in customary form and covering such matters of the type customarily covered by "comfort" letters as the managing underwriter reasonably requests;

(k)   use reasonable best efforts to furnish, at the request of Purchaser on the date such securities are delivered to the underwriters for sale pursuant to such registration or are otherwise sold pursuant thereto, an opinion, dated such date, of counsel representing the Company for the purposes of such registration, addressed to the underwriters, if any, and to the seller making such request, covering such legal matters with respect to the registration in respect of which such opinion is being given as the underwriters, if any, and the seller may reasonably request and are customarily included in such opinions;

(l)   use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement registering such Registrable Securities;

(m)   otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable but no later than 15 months after the effective date of the Registration Statement, an earnings statement covering the period of at least twelve months beginning with the first day of the Company's first full calendar quarter after the effective date of the Registration Statement, which earnings statement will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;

(n)   cooperate with Purchaser and each underwriter participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority;

(o)   promptly notify in writing Purchaser and the underwriter, if any, of the following events:

(i)	the effectiveness of any such Registration Statement;

(ii)	any request by the SEC for amendments or supplements to the Registration Statement or the prospectus or for additional information and when same has been filed and become effective;

(iii)

the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any person for that purpose; and

                                                    the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for the sale under the securities or blue sky    laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;

(p)   if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customer "lock-up" agreements restricting the ability to dispose of Company securities; and

(q)   use reasonable best efforts to take all other steps reasonably necessary to effect the registration of the Registrable Securities contemplated hereby.

If any such registration or comparable statement refers to Purchaser by name or otherwise as the holder of any securities of the Company and if in its sole and exclusive judgment, Purchaser is or might be deemed to be a controlling person of the Company, Purchaser will have the right to require (i) the insertion therein of language, in form and substance satisfactory to Purchaser and presented to the Company in writing, to the effect that the holding by Purchaser of such securities is not to be construed as a recommendation by Purchaser of the investment quality of the Company's securities covered thereby and that such holding does not imply that Purchaser will assist in meeting any future financial requirements of the Company or (ii) in the event that such reference to Purchaser by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of the reference to Purchaser; provided that with respect to this clause (ii) Purchaser must furnish to the Company an opinion of counsel to such effect, which opinion and counsel will be reasonably satisfactory to the Company. In connection with any Registration Statement in which Purchaser is participating, Purchaser will furnish to the Company in writing such information and affidavits as the Company reasonably requests specifically for use in connection with any such Registration Statement or prospectus.

        6.7   Removal of Legends .  In the case of a transaction pursuant to clause (a) of the following sentence, Purchaser hereby covenants and agrees with the Company not to make any sale of the Registrable Securities under any Registration Statement without complying with the provisions of this Agreement and without causing the prospectus delivery requirements under the Securities Act to be satisfied. The legend set forth in Section 4.7 will be removed and the Company will issue a certificate without such legend if (a) such Registrable Securities are registered for resale under the Securities Act, (b) in connection with a sale, assignment or other transfer that may be made without registration under the applicable requirements of the Securities Act, or (c) Purchaser provides the Company with reasonable assurance that such Registrable Securities can be sold, assigned or transferred pursuant to Rule 144.  Following the effective date of the Registration Statement or other information or assurances referred to in the preceding sentence, the Company will as soon as reasonably practicable following the delivery by Purchaser to the Company or the Company's transfer agent of a legended certificate representing such Registrable Securities, deliver or cause to be delivered to Purchaser a certificate representing such Registrable Securities that is free from all restrictive and other legends.

6.8   Suspension .  Purchaser acknowledges that there may be times when the Company must suspend the use of the prospectus forming a part of the Registration Statement (a " Suspension ") until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC, or until such time as the Company has filed an appropriate report with the SEC pursuant to the Exchange Act.  Purchaser hereby covenants and agrees that it will not sell any Registrable Securities pursuant to such prospectus during the period commencing at the time at which the Company gives Purchaser written notice of a Suspension of the use of such prospectus and ending at the time the Company gives Purchaser written notice that Purchaser may thereafter effect sales pursuant to such prospectus (the "Suspension End Date"). Following the Suspension End Date, the Company will promptly notify Purchaser in writing that the use of the prospectus may be resumed and will provide Purchaser with a copy of any amendment to the Registration Statement or supplement to the prospectus.

        6.9   Registration Expenses .  All expenses incident to the Company's performance of or compliance with this Section 6 , including all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, the Company's internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance, the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company are then listed and fees and disbursements of counsel for the Company and all independent certified public accountants retained by the Company (all such expenses being herein called " Registration Expenses "), will be borne by the Company. Purchaser will pay all fees, costs and expenses of its counsel, accountants, advisers or representatives and all expenses of any broker's commission or underwriter's discount or commission relating to the registration and sale of Registrable Securities pursuant to this Agreement.

        6.10   Rule 144 Reporting .  With a view to making available to Purchaser the benefits of certain rules and regulations of the SEC which may permit the sale of the Registrable Securities to the public without registration, the Company agrees to use its reasonable best efforts to:

(a)   make and keep public information available, as those terms are understood and defined in Rule 144 or any similar or analogous rule promulgated under the Securities Act, at all times after the effective date of the first registration filed by the Company for an offering of its securities to the general public;

(b)   file with the SEC, in a timely manner, all reports and other documents required of the Company under the Exchange Act; and

(c)   so long as Purchaser owns any Registrable Securities, furnish to Purchaser promptly upon request (i) a written statement by the Company as to its compliance with the reporting requirements of Rule 144 of the Securities Act and of the Exchange Act, (ii) a copy of the most recent annual or quarterly report of the Company filed with the SEC and (iii) such other reports and documents as Purchaser may reasonably request in connection with availing itself of any rule or regulation of the SEC allowing it to sell any such securities without registration.

        6.11   Company Indemnification .  The Company agrees to indemnify and hold harmless, to the extent permitted by law, Purchaser, its Affiliates and each of its and their respective directors, officers, partners, members and agents and directors and each Person, if any, who controls Purchaser (within the meaning of the Securities Act or the Exchange Act) from and against (i) any and all losses, claims, damages, liabilities and expenses whatsoever (including reasonable expenses of investigation and reasonable attorneys' fees and expenses) caused by, arising out of or relating to any untrue or alleged untrue statement of material fact contained in any Registration Statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto covering the resale of any Registrable Securities by or on behalf of Purchaser or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein and (ii) any and all losses, claims, damages, liabilities and expenses whatsoever (including reimbursement as incurred, of reasonable expenses of investigation and reasonable attorneys' fees and expenses) to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any Governmental Authority, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Company (which will not be unreasonably withheld);   in each case, except insofar as the same are caused by or based upon any information furnished in writing to the Company by Purchaser expressly for use therein.  In connection with an underwritten offering, the Company will indemnify any underwriters of the Registrable Securities, their directors and officers and each Person who controls such underwriters (within the meaning of the Securities Act or the Exchange Act) to the same extent as provided above with respect to the indemnification of Purchaser.

          6.12   Purchaser Indemnification .  Purchaser agrees to indemnify and hold harmless, to the extent permitted by law, the Company, its Affiliates, its and their respective directors, officers, partners, members and agents and each Person, if any, who controls the Company (within the meaning of the Securities Act or the Exchange Act) from and against any and all losses, claims, damages, liabilities and expenses (including reasonable expenses of investigation and reasonable attorneys' fees and expenses) caused by, arising out of or relating to any untrue or alleged untrue statement of material fact contained in the Registration Statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto covering the resale of any Registrable Securities by or on behalf of Purchaser or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by Purchaser expressly stated to be used in connection with such Registration Statement; provided that the foregoing indemnity of Purchaser shall be limited to the gross proceeds of the offering received by Purchaser, unless such indemnity arises out of or is based on willful misconduct or fraud by Purchaser.

          6.13   Resolution of Claims .  Any Person entitled to indemnification pursuant to this Section 6 will give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification; provided that the failure so to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure.  If notice of commencement of any such action is given to the indemnifying party as above provided, the indemnifying party will be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party.  The indemnified party will have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will be paid by the indemnified party unless (a) the indemnifying party agrees to pay the same, (b) the indemnifying party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the indemnified party and such parties have been advised by such counsel that either (i) representation of such indemnified party and the indemnifying party by the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying party.  In any of such cases, the indemnified party will have the right to participate in the defense of such action with its own counsel, the reasonable fees and expenses of which will be paid by the indemnifying party, it being understood, however, that the indemnifying party will not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will be liable for any settlement entered into without its written consent.  No indemnifying party will, without the consent of such indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceeding.

          6.14   Contribution .  If the indemnification provided for in Section 6.11 or 6.12 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any losses, claims, damages or liabilities referred to herein, the indemnifying party, in lieu of indemnifying such indemnified party thereunder, will to the extent permitted by applicable law contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with such loss, claim, damage or liability, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party will be determined by a court of law by reference to, among other things, if it relates to an untrue or alleged untrue statement of a material fact or the omission to state a material fact in a Registration Statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereof covering the resale of any Registrable Securities by or on behalf of the holder of Registrable Securities, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.  The amount paid or payable by a party as a result of any loss, claim, damage or liability referred to above will be deemed to include, subject to the limitations set forth in this Section 6.14 , any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.14 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 6.14 .  No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.

7.   Miscellaneous .

7.1   Governing Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, United States of America (without giving

effect to principles of conflicts of laws that would require the application of any other law) and the federal laws of the U.S., in each case without reference to choice of law rules.

7.2   Dispute Resolution . In the event of any dispute under this Agreement, such dispute shall be resolved in accordance with the terms of the License Agreement.

7.3   Consent to Jurisdiction . All actions or proceedings that, directly or indirectly, arise out of or relate to this Agreement shall be heard and determined exclusively in the State and Federal Courts in the County of Los Angeles in the State of California (such courts, " California Courts "). Each of the Parties further agrees that service of any process, summons, notice or document by U.S. registered mail to such Party's respective address set forth in Section 7.12 shall be effective service of process for any action or proceeding in the California Courts with respect to any matters to which it has submitted to jurisdiction in this Section 7.3 . Consistent with the foregoing in this Section 7.3 , each of the Parties hereby (a) submits to the exclusive jurisdiction of the California Courts for the purpose of any action or proceeding brought by any Party that, directly or indirectly, arises out of or relates to this Agreement; (b) irrevocably waives and releases, and agrees not to assert by way of motion, defense, or otherwise, in or with respect to any such action or proceeding, any claim that (i) such action or proceeding is not subject to the subject matter jurisdiction of at least one of the above-named courts; (ii) its property is exempt or immune from attachment or execution in the State of California; (iii) such action or proceeding is brought in an inconvenient forum; (iv) that the venue of such action or proceeding is improper; or (v) this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above-named courts; and (d) agrees not to move to transfer any such action or proceeding to a court other than any of the above-named courts.

7.4   Waiver of Jury Trial . EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION, PROCEEDING OR LIABILITY, DIRECTLY OR INDIRECTLY, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION, PROCEEDING OR LIABILITY, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.4 .

7.5   Injunctive Relief . Without prejudice to the rights and remedies otherwise available to the Parties, each Party shall be entitled to seek injunctive relief to enforce the respective covenants and agreements of the Parties in this Agreement. For the avoidance of doubt, the Company shall be entitled to seek injunctive relief if Purchaser or any other holder of Registrable Securities breaches or threatens to breach any of the provisions of Section 7 .

7.6   Confidentiality and Publicity . The Parties shall abide by Section 7 of the License Agreement relating to confidentiality and publicity with respect to the transactions contemplated by this Agreement, and all references to "this Agreement" in Section 7 of the License Agreement shall be deemed to refer instead to the Transaction Documents.

7.7   Assignment . Neither Party may assign or otherwise transfer this Agreement without the prior written consent of the other Party, except that (a) either Party may assign this Agreement without the consent of the other Party in connection with the acquisition of such Party or the sale of all or substantially all of the assets of such Party (whether by sale or merger or otherwise), and (b) Purchaser may assign (i) this Agreement without consent in connection with a transfer of Registrable Securities not prohibited hereunder to an Affiliate at any time, and (ii) after the Lock-Up Period, its rights under Section 6 without consent in connection with a transfer of Registrable Securities not prohibited hereunder, to any Person (other than in a public offering or a sale pursuant to Rule 144); provided that the transferee, prior to or simultaneously with such transfer, shall have agreed in writing to be subject to and bound by all of the restrictions and obligations set forth in this Agreement as though it were Purchaser hereunder.  Any assignment of this Agreement in violation of this Section 7.7 shall be null and void. Assignment of this Agreement by either Party shall not relieve the assignor of its obligations hereunder. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

7.8   Entire Agreement . This Agreement and the License Agreement (including any Schedules or other attachments hereto or thereto, as applicable) constitutes the entire agreement between the Parties with respect to the subject matter hereof, and no oral or written statement may be used to interpret or vary the meaning of the terms and conditions hereof.

7.9   Severability . If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any Applicable Law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.

7.10   Amendment . This Agreement may not be amended or modified except by an instrument in writing signed by authorized representatives of Purchaser and the Company.

7.11   No Waiver . The failure of either Party to enforce at any time for any period the provisions of or any rights deriving from this Agreement shall not be construed to be a waiver of such provisions or rights or the right of such Party thereafter to enforce such provisions.

7.12   Notices . Any notice, request, demand, waiver, consent, approval or other communication which is required or permitted to be given to any Party shall be in writing and shall be deemed given only (a) when delivered to the Party personally, (b) five (5) days after being sent to the Party by registered mail, return receipt requested, postage prepaid, (c) the second (2nd) business day after being sent by a nationally recognized courier service guaranteeing next-day or second-day delivery, charges prepaid, in each case addressed to the Party at its address set forth below, or (d) the first (1st) business day after being sent by facsimile transmission to the number set forth below, or at such other address or fax number as such Party may from time to time specify by notice given in the manner provided herein to the Party entitled to receive notice hereunder:

For the Company:

CytRx Corporation

11726 San Vicente Boulevard, Suite 650

Los Angeles, California 90049

Attention: John Caloz, Chief Financial Officer

Facsimile: 310-826-6139

Email: jcaloz@cytrx.com

With a copy to:

Skadden, Arps, Slate, Meagher & Flom LLP

4 Times Square

New York, New York 10036

Attention: Marie L. Gibson, Esq. and Matthew Zisk, Esq.

Facsimile: (212)735 2000

Email:   marie.gibson@skadden.com and matthew.zisk@skadden.com

For Purchaser:

NantCell, Inc.

9920 Jefferson Boulevard

Culver City, California 90232

Attention:  General Counsel

Facsimile: (310) 853-7401

Email:  ckim@nantworks.com

7.13   Fees And Expenses . Except as otherwise set forth herein, the Company and Purchaser shall each bear their own expenses and fees incurred on their behalf with respect to this Agreement and the transactions contemplated hereby, including legal fees.

7.14   Third Party Beneficiaries . None of the provisions of this Agreement shall be for the benefit of or enforceable by any third party, including any creditor of any party hereto. No third party shall obtain any right under any provision of this Agreement or shall be reason of any such provision make any claim in respect of any debt, liability or obligation (or otherwise) against any part hereto.

7.15   Construction . The Parties agree that they have been represented by counsel during the negotiation, preparation and execution of this Agreement and, therefore, waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the Party drafting such agreement or document.

7.16   Survival . The representations, warranties and covenants of the Parties contained in this Agreement shall survive the Closing.

7.17.   Headings . The descriptive headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of the Agreement.

7.18   Pronouns . All pronouns contained herein, and any variations thereof, shall be deemed to refer to the masculine, feminine or neutral, singular or plural, as to the identity of the Parties may require. The words, "including," "includes" and "including" will be deemed to be followed by the phrase "without limitation". The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. All references to "dollars" or "$" will be deemed references to the lawful money of the United States of America. All exhibits attached hereto and all other attachments hereto are hereby incorporated herein by reference and made a part hereof.

7.19   Counterparts . This Agreement may be executed in one or more counterparts, and by the respective Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same Agreement.

[SIGNATURES FOLLOW ON NEXT PAGE]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective duly authorized officers

THE COMPANY

By:   /s/Steven Kriegsman


Name:   Steven Kriegsman


Title:   Chief Executive Officer  

PURCHASER

By:   /s/ Patrick Soon-Shiong


Name:   Patrick Soon-Shiong


Title:   Chief Executive Officer  

THIS WARRANT CERTIFIES THAT, for good and valuable consideration, NantCell, Inc. (the " Holder ") is entitled to the consideration described herein upon exercise of this Warrant (the " Warrant "), all as set forth above and as adjusted pursuant to Section 2 of this Warrant, subject to the provisions and upon the terms and conditions set forth in this Warrant. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Stock Purchase Agreement (the " Stock Purchase Agreement "), dated as of the date hereof, between the Company and the Holder.

SECTION 1. EXERCISE.

1.1

(A) = the VWAP on the Trading Day immediately preceding the date on which Holder elects to exercise this Warrant by means of a "cashless exercise," as set forth in the applicable Notice of Exercise;

(B) = the Warrant Strike Price, as adjusted hereunder; and

(X) = the number of Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise.

"VWAP" means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the arithmetic average of the daily volume weighted average price of the Common Stock as displayed under the heading of "Bloomberg VWAP" on Bloomberg page "FSAM <Equity> AQR" for each Trading Day during the 10 consecutive Trading Day Period immediately preceding the Exercise Date (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the Common Stock is not then listed or quoted for trading on the OTC Bulletin Board and if prices for the Common Stock are then reported in the "Pink Sheets" published by Pink OTC Markets, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (c) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holder and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company. "Trading Market" means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange or the OTC Bulletin Board (or any successors to any of the foregoing).

                1.2   Lock-Up Period .  All Shares issued upon exercise of  the Warrant are subject to the terms of Section 5.1, "Lock-Up Period," of the Stock Purchase Agreement.

                          1.3   Replacement of Warrant . On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form, substance and amount to the Company or, in the case of mutilation, on surrender of this Warrant to the Company for cancellation, the Company shall, within a reasonable time, execute and deliver to Holder, in lieu of this Warrant, a new warrant of like term, tenor and amount.

                               1.4   Treatment of Warrant Upon Acquisition of Company .

(a)   Acquisition. For the purpose of this Warrant, " Acquisition " means any transaction or series of related transactions involving: (i) the sale, lease, exclusive license, or other disposition of all or substantially all of the assets of the Company to a person or group of persons acting together; or (ii) any merger or consolidation of the Company into or with another person or entity.

      (b)   Treatment of Warrant at Acquisition . In the event of an Acquisition in which the consideration to be received by the Company's stockholders consists solely of cash, solely of Marketable Securities (as defined below) or a combination of cash and Marketable Securities (a " Cash/Public Acquisition "), then, if immediately prior to the closing of the Cash/Public Acquisition, the price per Share of Company Common Stock, which shall be the arithmetic average of the volume-weighted average prices per Share as displayed under the heading of "Bloomberg VWAP" on Bloomberg page "FSAM <Equity> AQR" for each Trading Day during the 20 consecutive Trading Day Period immediately preceding the Exercise Date, would be greater than the Warrant Strike Price in effect on such date, then this Warrant shall, automatically and without further action on the part of any party or other person, be deemed, as of immediately prior to the closing of such Cash/Public Acquisition, to be exercised pursuant to Section 1.1 on a cashless basis, and the Company shall promptly notify the Holder of the amount of cash and/or the number of Shares (or other securities) issued upon such exercise to the Holder in connection with the Cash/Public Acquisition.

(c)   Notice .   The Company shall provide Holder with written notice of the Cash/Public Acquisition (together with such reasonable information as Holder may reasonably require regarding the treatment of this Warrant in connection with such contemplated Cash/Public Acquisition giving rise to such notice), which is to be delivered to Holder not less than ten (10) Business Days following the execution of the definitive transaction agreement in connection with the proposed Cash/Public Acquisition.

(d)   Assumption of Obligations . Upon the closing of any Acquisition other than a Cash/Public Acquisition where the Warrant is automatically exercised pursuant to Section 1.4(b) above, the acquiring, surviving or successor entity (if other than the Company) shall assume the obligations of this Warrant, and, in the case of any Acquisition where the holders of the Common Stock are entitled to receive cash, securities or other property (" Reference Property ") for their shares of Common Stock, all references to "Shares" in this Warrant shall instead be to the type and amount of Reference Property that a holder of one share of Common Stock would receive in such Acquisition, subject to adjustment from time to time in accordance with the provisions of this Warrant (it being understood that no such further adjustments will be required with respect to any portion of the Reference Property that does not consist of equity securities). For purposes of the foregoing, the type and amount of consideration that holders of Common Stock are entitled to in the case of events that cause Common Stock to be converted into the right to receive more than a single type of consideration because holders of Common Stock have the right to elect the type of consideration they receive will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election. The provisions of this Section 1.4(d) shall similarly apply to successive Acquisitions.

    (e)   Definition of Marketable Securities . As used in this Warrant, " Marketable Securities " means securities meeting all of the following requirements: (i) the issuer thereof is then subject to the reporting requirements of Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the " Exchange Act "), and is then current in its filing of all required reports and other information under the Act and the Exchange Act; and (ii) the class and series of shares or other security of the issuer that would be received by Holder in connection with the Acquisition were Holder to exercise this Warrant on or prior to the closing thereof is then traded in a Trading Market.

SECTION 2.  ADJUSTMENTS TO THE SHARES AND WARRANT STRIKE PRICE.

            2.1   Stock Dividends and Splits . If the Company declares or pays a dividend or distribution on the outstanding shares of Common Stock, payable in Common Stock, or subdivides the outstanding shares of Common Stock by reclassification or otherwise into a greater number of shares, the Number of Shares shall be proportionately increased and the Warrant Strike Price shall be proportionately decreased. If the outstanding shares of Common Stock are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Warrant Strike Price shall be proportionately increased and the Number of Shares shall be proportionately decreased.

                        2.2   Reclassification, Exchange, Combinations, Substitution or Replacement . Upon any event whereby all of the outstanding shares of Common Stock are reclassified, exchanged, combined, substituted, or replaced for, into, with or by Company securities of a different class and/or series, then from and after the consummation of such event, this Warrant will be exercisable for the number, class and series of Company securities that Holder would have received had the Shares been outstanding on and as of the consummation of such event, and subject to further adjustment thereafter from time to time in accordance with the provisions of this Warrant. The provisions of this Section 2.2 shall similarly apply to successive reclassifications, exchanges, combinations substitutions, replacements or other similar events.

                        2.3   No Fractional Share . No fractional Share shall be issuable upon exercise of this Warrant and the number of Shares to be issued shall be rounded down to the nearest whole Share.

SECTION 3.  REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.

                        3.1   Representations and Warranties . The Company represents and warrants to, and covenants and agrees with, the Holder as follows:

                        (a)           Authorization of Warrant . All corporate actions on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Warrant and for the issuance of the shares of Common Stock upon the exercise of the Warrant have been taken. The Company has the requisite corporate power to enter into this Warrant and to carry out and perform its obligations thereunder. The Warrant, when executed and delivered by the Company, shall be duly authorized, executed and delivered and, upon due execution and delivery by Holder, the Warrant will be a valid and binding agreement of the Company, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by equitable principles.

                         (b)            Organization and Good Standing . The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties and carry on its business as now conducted. The Company is duly qualified and is in good standing as a foreign corporation in each jurisdiction in which the properties owned, leased or operated, or the business conducted, by it requires such qualification except where the failure to be so qualified or in good standing, individually or in the aggregate, would not have a Material Adverse Effect, as defined in the Stock Purchase Agreement.

(c)              No Other Representations and Warranties . The Company acknowledges that except as set forth in Section 4 , neither Purchaser nor any director, officer, employee, agent or representative of Purchaser makes any representation or warranty, either express or implied, concerning the transactions contemplated by this Agreement.

SECTION 4. REPRESENTATIONS, WARRANTIES OF THE HOLDER.

Holder represents and warrants to the Company (which representations and warranties will be deemed repeated upon exercise of this Warrant) as follows:

        4.1   Organization and Good Standing . Holder is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties and carry on its business as now conducted. Holder is duly qualified and is in good standing as a foreign corporation in each jurisdiction in which the properties owned, leased or operated, or the business conducted, by it requires such qualification except where the failure to be so qualified or in good standing, individually or in the aggregate, would not have a material adverse effect on the on the business, assets, liabilities, financial condition or results of operations of Holder and its subsidiaries, taken as a whole.

        4.2   Authorization . All corporate actions on the part of Holder, its officers, directors and stockholders necessary for the authorization, execution and delivery of the Warrant have been taken. Holder has the requisite corporate power to enter into the Warrant and to carry out and perform its obligations thereunder. The Warrant, when executed and delivered by Holder, shall be duly authorized, executed and delivered and, upon due execution and delivery by the Company. The Warrant will be a valid and binding agreement of Holder, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by equitable principles.

        4.3   No Conflicts . Neither the execution, delivery nor performance of the Warrant, nor the consummation by Holder of the transactions contemplated by the Warrant will result in any violation of, be in conflict with, cause any acceleration or any increased payments under, or constitute a default under, with or without the passage of time or the giving of notice: (a) any provision of Holder's Amended and Restated Certificate of Incorporation or Holder's Bylaws, each as in effect on the date hereof or at the Closing; (b) any provision of any judgment, decree or order to which Holder is a party or by which it is bound; or (c) any note, mortgage, material contract, material agreement, license, waiver, exemption, order or permit, except in the case of subsections (b) and (c) as would not have had, or reasonably would be expected to have, a material adverse effect on the on the business, assets, liabilities, financial condition or results of operations of Holder and its subsidiaries, taken as a whole.

        4.4   Ownership . Other than the Shares of Common Stock to be acquired upon exercise of this Warrant and the Shares of Common Stock to be acquired pursuant to the Stock Purchase Agreement, none of Holder nor any of its Affiliates, nor any "group" of persons (as such term is used in and construed under Sections 13d-3 and 14d-2 of the Exchange Act) owns any shares or other securities of the Company or any direct or indirect rights or options to acquire any such securities or any securities convertible into such securities or has any rights to acquire such securities, or has established or increased, directly or indirectly, a put equivalent position, as defined in Rule 16a-1(h) under the Exchange Act, with respect to the Company's equity securities. Immediately prior to the entry into this Agreement, Holder is not the beneficial owner, as defined under Rule 13d-3 under the Exchange Act, of any securities of the Company. None of Holder nor any of its Affiliates has traded in any shares or other securities of the Company in the ninety (90) days prior to the date hereof.

        4.5   Investment Representations . In connection with the offer and delivery of this Warrant and the acquisition of shares of Common Stock upon the exercise of this Warrant, Holder makes the following representations:

                    (a)    Purchase for Own Account . Holder is acquiring the Warrant and Shares of Common Stock for its own account, not as nominee or agent, for investment and not for, with a view to, or for resale in connection with, any distribution or public offering thereof within the meaning of the Act. Holder does not presently have any contract, undertaking or agreement with any person to sell, transfer or grant participation rights to such person or to any other person with respect to the Warrant or any of the Shares of Common Stock acquired by Holder hereunder. Holder has not been organized solely for purposes of acquiring the Warrant or the shares of Common Stock.

                    (b)   Restricted Securities . Holder understands that the Warrant and the Shares of Common Stock to be acquired upon the exercise of the Warrant are being offered and sold to it in reliance upon specific exemptions from the registration requirements of the Securities Act and state securities laws and that the Company is relying upon the truth and accuracy of, and Holder's compliance with, the representations, warranties, agreements, acknowledgments and understandings of Holder set forth herein in order to determine the availability of such exemptions and the eligibility of Holder to acquire the Warrant and Shares of Common Stock.  Holder understands that the Shares of Common Stock, when issued, shall be "restricted securities" under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws the Shares may be resold without registration under the Securities Act only in certain limited circumstances. Consequently, Holder may have to bear the risk of owning the shares for an indefinite period of time. Holder is familiar with Rule 144 as presently in effect.

                    (c)   Holder Status .  At the time Holder was offered this Warrant, it was, and as of the date of this Warrant is, an "accredited investor" as defined in Regulation D, Rule 501(a), promulgated under the Securities Act.

                    (d)   Knowledge and Experience of Holder .  Holder has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares of Common Stock to be acquired upon exercise of the Warrant, and has so evaluated the merits and risks of such investment.  Holder has had the opportunity to review the Company's documents filed with the U.S. Securities and Exchange Commission and to ask questions of, and receive answers from, the officers of the Company concerning the Company, including its financial condition, results of operation and prospects, and the terms and conditions of the Shares issuable upon the exercise of the Warrant sufficient to enable it to evaluate its investment. Holder has received all of the information it considers necessary or appropriate for deciding whether to acquire the Shares to be acquired upon any exercise of the Warrant. Holder understands that its acquisition of any Shares issuable upon the exercise thereto involves a significant degree of risk. Holder understands that the market price of the Common Stock has been volatile and that no representation is being made as to the future value of the Common Stock.  Holder is able to bear the economic risk of acquiring the Shares of Common Stock to be acquired upon exercise of the Warrant, and is able to afford a complete loss of such acquisition.

                     (e)   Legend . Holder understands that, until such time as a registration statement has been declared effective or the Shares issuable upon exercise of the Warrant may be sold pursuant to Rule 144 under the Securities Act without any restriction as to the number of securities as of a particular date that can then be immediately sold, the certificates evidencing the Shares of Company Common Stock will bear with one or all of the following restrictive legends:

(i)

THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE " ACT "), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD, HEDGED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS AND UNTIL REGISTERED UNDER SAID ACT OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER AND THE TRANSFER AGENT, SUCH OFFER, SALE, HEDGE, PLEDGE OR OTHER TRANSFER IS EXEMPT FROM SUCH REGISTRATION;

(ii)	any legend required by the securities laws of any state.

          4.6   The Act . Holder understands that this Warrant and the Shares issuable upon exercise hereof have not been registered under the Act in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the Holder's investment intent as expressed herein. Holder understands that any Shares issued upon any exercise hereof must be held indefinitely unless subsequently registered under the Act and qualified under applicable state securities laws, or unless exemption from such registration and qualification are otherwise available.  Holder is aware of the provisions of Rule 144.

4.7   No Voting Rights . Holder, as a Holder of this Warrant, will not have any voting rights until the exercise of this Warrant, to the extent the Holder receives Common Stock upon such exercise.

          4.8   Affiliate Status . Holder is not an "affiliate" (as defined in Rule 144 under the Securities Act) of the Company and has not been an "affiliate" (as defined in Rule 144 under the Securities Act) of the Company within the three months immediately preceding the issuance of this Warrant.

          4.9   No Other Representations and Warranties . Holder acknowledges that, except as set forth in Section 3, neither the Company nor any director, officer, employee, agent or representative of the Company makes any representation or warranty, either express or implied, concerning the shares of Common Stock or the transactions contemplated by this Warrant. Nothing in this Section 4.9 will affect the representations and warranties in the Stock Purchase Agreement or that certain Exclusive License Agreement of even date herewith.

SECTION 5.  MISCELLANEOUS.

               5.1   Term . This Warrant is exercisable at any time and from time to time on or before 5:00 PM, Eastern Time, on the Expiration Date and shall be void thereafter.

               5.2   Compliance with Securities Laws on Transfer . This Warrant and the Shares issued upon exercise of this Warrant, if any (and the securities issuable, directly or indirectly, upon conversion of the Shares, if any) may not be offered, sold, hedged, pledged or otherwise transferred in whole or in part except in compliance with applicable federal and state securities laws by all parties to such offer, sale, hedge, pledge or other transfer (including, without limitation, the delivery of investment representation letters and legal opinions reasonably satisfactory to the Company, as reasonably requested by the Company).

               5.3   Transfer of Warrant .    Without the express prior written consent of the Company, the Holder may not Transfer this Warrant to any Person other than to an Affiliate or in connection with the Transfer of Registrable Securities not prohibited under the Stock Purchase Agreement.  Any Transfer in violation of this Section 5.3 shall be void and of no force or effect.   In the event that the Company consents to any Transfer requested by the Holder to any Person (a " Proposed Transferee "), such Transfer shall be conditioned upon the receipt of an opinion of counsel reasonably satisfactory to the Company that such Transfer to a Proposed Transferee would not result in a violation of the provisions of the Securities Act and applicable state securities laws.  Each Holder of this Warrant and any Shares issued upon exercise of this Warrant, by taking or holding the same, consents to and agrees to be bound by the provisions of this Section 5.3, and to the execution of an Assignment substantially in the form of Appendix 2.  For the purposes of this Section 5.3, the term " Transfer " shall mean to dispose of or part with all or any portion of an interest (legal or equitable) by any means, direct or indirect, absolute or conditional, voluntary or involuntary, including, but not limited to, by sale, assignment, disposition, court order, operation of law, dissolution, merger, consolidation, division, spin-off, dividend, distribution, equitable or other distribution after divorce or separation, settlement, exchange, waiver, abandonment, gift, alienation, bequest, pledge, hypothecation, encumbrance or disposal.

              5.4   Transfer Tax . Holder will pay any applicable transfer, stamp and other similar taxes that may be imposed in respect of the issuance of this Warrant or in respect of the issuance of Common Stock upon exercise of this Warrant.

              5.5     Beneficial Ownership . Notwithstanding anything to the contrary in this Warrant, except with the prior written consent of the Company, during the Lock-Up Period as defined in the Stock Purchase Agreement, in no event shall the Holder be entitled to receive, or shall be deemed to receive, any Shares if, immediately upon giving effect to such receipt of such Shares, the "beneficial ownership" (within the meaning of Section 13 of the Exchange Act and the rules promulgated thereunder) of Shares by Holder, any of its affiliates subject to aggregation with Holder for purposes of the "beneficial ownership" test under Section 13 of the Exchange Act and all persons who may form a "group" (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) with Holder with respect to "beneficial ownership" of any Shares would be equal to or greater than 14.9% or more of the outstanding shares of Common Stock on the date of determination.

              5.6   Notices . All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given if so given) by hand delivery, email, facsimile, cable, telecopy or mail (registered or certified, postage prepaid, return receipt requested) to the respective parties hereto addressed as follows:

If to the Company:

CytRx Corporation
11726 San Vicente Boulevard, Suite 650
Los Angeles, California 90049
Attention: John Caloz, Chief Financial Officer
Facsimile: 310-826-6139
Email: jcaloz@cytrx.com

With a copy to (which shall not constitute notice):

Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036
Attention: Marie L. Gibson, Esq. and Matthew Zisk, Esq.
Richard J. Grossman
Facsimile: (212) 735-2000
Email: marie.gibson@skadden.com and matthew.zisk@skadden.com

If to the Holder:

NantCell, Inc.
9920 Jefferson Boulevard
Culver City, California 90232
Attention: General Counsel
Facsimile: (310) 853-7401
Email: ckim@nantworks.com

                5.7   Amendment; Waiver . This Warrant may be amended only by a written instrument duly executed by the parties hereto or their respective permitted successors or assigns. This Warrant and any term hereof may be changed, waived, discharged or terminated (either generally or in a particular instance and either retroactively or prospectively) only by an instrument in writing signed by the party against which enforcement of such change, waiver, discharge or termination is sought.

                5.8   Counterparts; Facsimile/Electronic Signatures . This Warrant may be executed in counterparts, all of which together shall constitute one and the same agreement. Any signature page delivered electronically or by facsimile shall be binding to the same extent as an original signature page with regards to any agreement subject to the terms hereof or any amendment thereto.

                5.9   Governing Law; Consent to Jurisdiction . This Warrant shall be governed by, and construed and enforced in accordance with, the laws of the State of California without regard to its choice of law principles to the extent that the application of the laws of another jurisdiction would be required thereby. Each party hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction and venue of the State and Federal Courts in the County of Los Angeles in the State of California (as applicable, the " California Courts "), and any appellate court from any decision thereof, in any suit, action or other proceeding with respect to the subject matter of this Warrant (each, a " Proceeding "), including the negotiation, execution or performance of this Warrant and agrees that all claims in respect of any such Proceeding shall be heard and determined in the California Courts, (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any Proceeding with respect to the subject matter of this Warrant or the negotiation, execution or performance of this Warrant in the California Courts, including any objection based on its place of incorporation or domicile, (c) waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such Proceeding in any such court and (d) agrees that a final judgment in any such Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.

                  5.10   Headings . The headings in this Warrant are for purposes of reference only and shall not limit or otherwise affect the meaning of any provision of this Warrant.

                  5.11   Business Days and Trading Days . " Business Day " is any day other than a Saturday, Sunday or nationally recognized holiday. " Trading Day " is any day on which (a) there is no Market Disruption Event (as defined below) and (b) The Nasdaq Global Select Market or, if the Common Stock is not listed on The Nasdaq Global Select Market, the principal other securities exchange on which Common Stock is then listed is open for trading or, if the Common Stock is not so listed, any Business Day. For these purposes, a "Trading Day" includes only those days that have a scheduled closing time of 4:00 p.m. (New York City time) or the then-standard closing time for regular trading on the relevant exchange or trading system. " Market Disruption Event " means (i) a failure by the primary exchange or quotation system on which the Common Stock trades or is quoted to open for trading during its regular trading session or (ii) the occurrence or existence for more than one half-hour period in the aggregate on any Trading Day for the Common Stock of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by The Nasdaq Global Select Market or otherwise) in the Common Stock or in any options, contracts or future contracts relating to the Common Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m. (New York City time) on such day.

[Remainder of page left blank intentionally; signature page follows]

IN WITNESS WHEREOF, the parties have caused this Warrant to be executed by their duly authorized representatives effective as of the Issue Date.

CYTRX CORPORATION

By:   /s/ Steven Kriegsman
  Name: Steven Kriegsman
  Title:Chief Executive Officer

NANTCELL, INC.

By:    /s/Patrick Soon-Shiong
  Name: Patrick Soon-Shiong
  Title:Chief Executive Officer

APPENDIX 1
NOTICE OF EXERCISE

TO:   CYTRX, INC.

(1)	The undersigned hereby elects to purchase ________ Shares of the Company pursuant to the terms of the attached Warrant, and tenders herewith payment of the applicable exercise price, together with all applicable transfer taxes, if any.

                  (2)   Payment shall take the form of (check applicable box):

[  ] in lawful money of the United States; or

[  ]  the cancellation of such number of Shares as is necessary, in accordance with the formula set forth in Section 1.1, to exercise this Warrant with respect to the maximum number of Shares purchasable pursuant to the cashless exercise procedure set forth in Section 1.1.

                                    (3)   Please issue a certificate or certificates representing said Shares in the name of the undersigned or in such other name as is specified below:

_______________________________

The Shares shall be delivered to the following DWAC Account Number or by physical delivery of a certificate to:

_______________________________

_______________________________

_______________________________

[SIGNATURE OF HOLDER]

Name of Investing Entity: ________________________________________________________________________

Signature of Authorized Signatory of Investing Entity : _________________________________________________

Name of Authorized Signatory: ___________________________________________________________________

Title of Authorized Signatory: ____________________________________________________________________

Date: ________________________________________________________________________________________

APPENDIX 2

ASSIGNMENT

For value received, [__________] hereby sells, assigns and transfers in accordance with that certain Warrant issued by CYTRX CORPORATION (the " Company "), on July 27, 2017 (the " Warrant "), together with all rights, title and interest therein.

Name:

[WARRANTHOLDER TRANSFEREE]

Address:

Tax ID:

By its execution below, and for the benefit of the Company, [WARRANTHOLDER TRANSFEREE] makes each of the representations and warranties set forth in Section 4 of the Warrant and agrees to all other provisions of the Warrant as of the date hereof.

EXHIBIT 10.4

 

FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT

THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this " Amendment "), dated as of July 27, 2017 (the " Amendment Effective Date "), is entered into by and among CYTRX CORPORATION, a Delaware corporation, and each of its Qualified Subsidiaries (collectively, the " Borrower "), the several banks and other financial institutions or entities from time to time parties thereto as Lender, constituting the Required Lenders, and HERCULES CAPITAL, INC. (formerly known as Hercules Technology Growth Capital, Inc.), a Maryland corporation, in its capacity as administrative agent and collateral agent for itself and the Lender (in such capacity, together with its successors and assigns in such capacity, " Agent ").

A.	The Borrower, the Lender and Agent are parties to a Loan and Security Agreement dated as of February 5, 2016 (as amended, restated or modified from time to time, the " Loan and Security Agreement ").

B.

Pursuant to the terms of an Exclusive License Agreement to be entered into concurrently herewith between the Borrower and NantCell, Inc. (" NantCell "), in substantially the form attached hereto as Exhibit A (the " License Agreement "), the Borrower intends to grant to NantCell and its affiliates a royalty-bearing, exclusive license, or as applicable, sublicense in, to and under certain licensed patents and know how to exploit the Licensed Product (as defined in the License Agreement) in the Territory (as defined in the License Agreement).

C.	In connection with the transactions contemplated by the License Agreement, NantCell is making an investment in Borrower concurrently with the License Agreement in accordance with a Stock Purchase Agreement separately entered into between NantCell and the Borrower (the " Stock Purchase Agreement ").

D.

Borrower has requested that Lender consent to the License Agreement and the transactions contemplated therein (collectively, the " License Transaction "). The Lender has agreed to such request, and the Borrower and Lender desire to amend the Loan and Security Agreement subject to the terms and conditions hereof.

Accordingly, the parties hereto agree as follows:

SECTION 1   Definitions; Interpretation.

(a)	Terms Defined in Loan and Security Agreement . All capitalized terms used in this Amendment (including in the recitals hereof) and not otherwise defined herein shall have the meanings assigned to them in the Loan and Security Agreement.

(b)	Interpretation . The rules of interpretation set forth in Section 1.1 of the Loan and Security Agreement shall be applicable to this Amendment and are incorporated herein by this reference.

SECTION 2   Consent. Subject to all of the terms and conditions set forth in this Amendment, Agent and Lender hereby consent to the License Transaction and agree that the License Transaction shall be deemed a "Permitted Transfer" under the Loan and Security Agreement. Agent and Lender confirm that the issuance by Borrower of its securities as contemplated by the Stock Purchase Agreement is not an Equity Event.

SECTION 3   Amendments to the Loan and Security Agreement.

(a)	The Loan and Security Agreement shall be amended as follows effective as of the Amendment Effective Date:

(i)	New Definitions .   The following definitions are added to Section 1.1 of the Loan and Security Agreement in alphabetical order:

" First Amendment Date " means July 27, 2017.

" First Amendment Repayment " has the meaning given to it in Section   2.1(d)(ii) .

" September 2017 Repayment " has the meaning given to it in Section   2.1(d)(ii) .

(ii)	Amended Definition . The definition of "Term Loan Maturity Date" appearing in Section

1.1 of the Loan and Security Agreement is hereby amended in its entirety and replaced as follows:

" Term Loan Maturity Date " means August 1, 2018.

(iii)

Section 2.1(d) . Section 2.1(d) of the Loan and Security Agreement is hereby amended and replaced in its entirety as follows:

"(d)   Payment .

(i)

Borrower will pay interest on each Term Loan Advance on the first Business Day of each month, beginning the month after the Advance Date. Borrower shall repay the aggregate Term Loan principal balance that is outstanding on the day immediately preceding the Amortization Date, in equal monthly installments of principal and interest (mortgage style) beginning on the Amortization Date and continuing on the first Business Day of each month thereafter until the Secured Obligations (other than inchoate indemnity obligations) are repaid. The entire Term Loan principal balance and all accrued but unpaid interest hereunder, shall be due and payable on the Term Loan Maturity Date (bullet payment). Borrower shall make all payments under this Agreement without setoff, recoupment or deduction and regardless of any counterclaim or defense. Lender will initiate debit entries to Borrower's account as authorized on the ACH Authorization on each payment date of all (i) periodic obligations payable to Lender under each Term Advance and (ii) reasonable and documented out-of-pocket legal fees and costs payable to Agent or Lender pursuant to Section 11.11 of this Agreement, so long as Borrower has received prior written notice thereof.

(ii)

Notwithstanding any provision herein to the contrary, (x) on the First Amendment Date, Borrower shall have repaid Five Million Dollars ($5,000,000.00) in outstanding principal and unpaid interest thereon plus the applicable Prepayment Charge (the " First Amendment Repayment "); and (y) on or prior to September 30, 2017, Borrower shall repay an additional Five Million Dollars ($5,000,000.00) in outstanding principal and unpaid interest thereon plus the applicable Prepayment Charge (the " September 2017 Repayment "). After each of the First Amendment Repayment and the September 2017 Repayment is made, Agent shall provide Borrower an updated amortization schedule for future payments of principal and interest (based on a schedule comprised of 31 months of equal payments of principal and interest with a bullet payment due on the Term Loan Maturity Date)."

(b)	References Within Loan and Security Agreement . Each reference in the Loan and Security Agreement to "this Agreement" and the words "hereof," "herein," "hereunder," or words of like import, shall mean and be a reference to the Loan and Security Agreement as amended by this Amendment.

SECTION 4                  Conditions of Effectiveness. The effectiveness of Section 2 and Section 3 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:

(a)

This Amendment . Agent shall have received (i) this Amendment, executed by Agent, the Lender and Borrower, (ii) the First Amendment to Warrant Agreement, executed by Hercules Capital, Inc. and Borrower and (i) First Amendment to Warrant Agreement, executed by Hercules Technology III, L.P. and Borrower.

(b)	Partial Repayment . Borrower shall have paid the First Amendment Repayment.

(ii)	There exist no Events of Default or events that with the passage of time would result in an Event of Defau

(d)

No Reliance . The Borrower hereby acknowledges and confirms to Agent and the Lender that the Borrower is executing this Amendment on the basis of its own investigation and for its own reasons without reliance upon any agreement, representation, understanding or communication by or on behalf of any other Person.

(e)	Binding Effect . This Amendment binds and is for the benefit of the successors and permitted assigns of each party.

(f)	Governing Law. This Agreement and the other Loan Documents shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding conflict of laws principles that would cause the application of laws of any other jurisdiction.

(g)

Complete Agreement; Amendments . This Amendment and the Loan Documents represent the entire agreement about this subject matter and supersede prior negotiations or agreements with respect to such subject matter. All prior agreements, understandings, representations, warranties, and negotiations between the parties about the subject matter of this Amendment and the Loan Documents merge into this Amendment and the Loan Documents.

(h)	Severability of Provisions. Each provision of this Amendment is severable from every other provision in determining the enforceability of any provision.

(i)

Counterparts . This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, is an original, and all taken together, constitute one Amendment. Delivery of an executed counterpart of a signature page of this Amendment by facsimile, portable document format (.pdf) or other electronic transmission will be as effective as delivery of a manually executed counterpart hereof.

(j)	Loan Documents . This Amendment shall constitute a Loan Document.

[Balance of Page Intentionally Left Blank; Signature Pages Follow]

 

                                            HERC U LES CAPITAL FUNDING TR U ST 2014-1

Signature

 

Print Name:

 

Title:

 

 

 

 

FIRST AMENDMENT TO WARRANT AGREEMENT

This First Amendment to Warrant Agreement (this " Amendment ") is entered into as of July 27, 2017(the " Effective Date ") by and between CytRx Corporation, a Delaware corporation (the " Company "), and Hercules Capital, Inc. (formerly known as Hercules Technology Growth Capital, Inc.), a Maryland corporation (the " Warrantholder "), and amends that certain Warrant Agreement to Purchase Shares of the Common Stock of the Company, dated as of February 5, 2016, issued by the Company to the Warrantholder (the " Agreement "). Capitalized terms used herein without definition shall have the meanings ascribed to such terms in the Agreement.

RECITALS

WHEREAS,  pursuant  to  Section 12(h) of the Agreement, none of the terms of the Agreement may be amended except by an instrument executed by each of the parties thereto.

WHEREAS, the Company and the Warrantholder desire to amend the Agreement as set forth herein.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual agreements, covenants and considerations contained herein, the receipt of which are hereby acknowledged, the parties agree as follows:

1.	Amendments to Warrant .

a.	The introductory paragraph of Section 1(a) of the Agreement is hereby amended and restated in its entirety to read as follows:

"(a) For value received, the Company hereby grants to the Warrantholder, and the Warrantholder is entitled, upon the terms and subject to the conditions hereinafter set forth, to subscribe for and purchase, from the Company, up to 317,073 fully paid and non-assessable shares of Common Stock (as defined below) at a purchase price per share equal to the Exercise Price (as defined below). The number of, and applicable Exercise Price for, such shares are subject to adjustment as provided in Section 8 . As used herein, the following terms shall have the following meanings:"

b.	The definition of "Exercise Price" in Section 1(a) of the Agreement is hereby amended and restated in its entirety to read as follows:

"" Exercise Price " means (i) with respect to 253,658 of the shares issuable upon exercise hereof, the 30-day volume-weighted average price of the Common Stock over the 30-day period beginning 15 days before the announcement of that certain Exclusive License Agreement to be entered into by and between the Company and NantCell, Inc., and (ii) with respect to 63,415 of the shares issuable upon exercise hereof, $2.05. Upon partial exercise of this Warrant, the Warrantholder shall specify the applicable Exercise Price in its Notice of Exercise (as defined below)."

 

c.	The definition of "Purchase Price" in Section 1(a) of the Agreement is hereby amended and restated in its entirety to read as follows:

"" Purchase Price " means, with respect to any exercise of this Warrant, an amount equal to the applicable Exercise Price (subject to adjustment from time to time in accordance with the provisions of this Agreement) multiplied by the number of shares of Common Stock as to which this Warrant is then exercised."

d.	The definition of "Warrant Coverage" in Section 1(a) of the Agreement is hereby deleted in its entirety.

e.	Section 1(b) of the Agreement is hereby amended and restated in its entirety to read as follows:

"(b) Number of Shares . This Warrant shall be exercisable for up to 317,073 fully-paid and non-assessable shares of Common Stock, as subject to adjustment from time to time in accordance with the provisions of this Agreement."

f.	Section 3(b) of the Agreement is hereby amended and restated in its entirety to read as follows:

"(b) Exercise Prior to Expiration . To the extent this Warrant is not previously exercised as to all shares subject hereto, and if the then-current fair market value of one share of Common Stock is greater than the Exercise Price then in effect, or, in the case of a Liquid Sale, where the value per share of Common Stock (as determined as of the closing of such Liquid Sale in accordance with the definitive agreements executed by the parties in connection with such Merger Event) to be paid to the holders thereof is greater than the Exercise Price then in effect, this Agreement shall be deemed automatically exercised on a Net Issuance basis pursuant to Section 3(a) (even if not surrendered) as of immediately before its expiration determined in accordance with Section 2 . For the avoidance of doubt, in the event the then-current fair market value of one share of Common Stock or the value per share of Common Stock is greater than the Exercise Price then in effect for a portion but not all of the shares of Common Stock issuable hereunder, this Agreement shall be deemed automatically exercised on a Net Issuance basis pursuant to Section 3(a) (even if not surrendered) as of immediately before its expiration determined in accordance with Section 2 for such portion of the shares issuable hereunder. For purposes of such automatic exercise, the fair market value of one share of Common Stock upon such expiration shall be determined pursuant to Section 3(a) . To the extent this Warrant or any portion hereof is deemed automatically exercised pursuant to this Section 3(b) , the Company agrees to promptly notify the Warrantholder of the number of shares of Common Stock if any, the Warrantholder is to receive by reason of such automatic exercise, and to cause its transfer agent to issue such shares to the Warrantholder in book entry form."

 

g.	Section 8(a) of the Agreement is hereby amended and restated in its entirety to read as follows:

"(a) Merger Event . In connection with a Merger Event that is a Liquid Sale, this Warrant shall, on and after the closing thereof, automatically and without further action on the part of any party or other person, represent the right to receive the consideration payable on or in respect of all shares of Common Stock that are issuable hereunder as of immediately prior to the closing of such Merger Event less the applicable Purchase Price for all such shares of Common Stock (such consideration to include both the consideration payable at the closing of such Merger Event and all deferred consideration payable thereafter, if any, including, but not limited to, payments of amounts deposited at such closing into escrow and payments in the nature of earn-outs, milestone payments or other performance- based payments), and such Merger Event consideration shall be paid to the Warrantholder as and when it is paid to the holders of the outstanding shares of Common Stock. To the extent the consideration to be received by the Warrantholder at the closing of a Merger Event that is a Liquid Sale is less than the Purchase Price, this Warrant shall automatically terminate as of the closing of such Merger Event that is a Liquid Sale. For the avoidance of doubt, in the event the consideration to be received by the Warrantholder at the closing of a Merger Event that is a Liquid Sale is less than the Purchase Price for a portion but not all of the shares of Common Stock issuable hereunder, this Warrant shall automatically terminate as of the closing of such Merger Event that is a Liquid Sale only with respect to such portion of the shares issuable hereunder. In connection with a Merger Event that is not a Liquid Sale, the Company shall cause the successor or surviving entity to assume this Agreement and the obligations of the Company hereunder on the closing thereof, and thereafter this Warrant shall be exercisable for the same number and type of securities or other property as the Warrantholder would have received in consideration for the shares of Common Stock issuable hereunder had it exercised this Warrant in full as of immediately prior to such closing, with the Exercise Price adjusted proportionally with respect to the securities issuable hereunder, but at an aggregate Exercise Price no greater than the aggregate Exercise Price in effect as of immediately prior to such closing, and subject to further adjustment from time to time in accordance with the provisions of this Agreement. The provisions of this Section 8(a) shall similarly apply to successive Merger Events."

2.

Company Representations and Warranties . The Company hereby represents and warrants to the Warrantholder that there have been no adjustments to the number of shares issuable upon exercise of the Warrant or the Exercise Price of such shares required pursuant to the provisions of the Agreement through the date hereof (without giving effect to this Amendment).

3.	Effect of this Amendment . Except as specifically amended as set forth herein, each term and condition of each of the Agreement shall continue in full force and effect. None of the terms of this Amendment may be amended except by an instrument executed by each of the parties hereto.

 

4.	Governing Law . This Amendment shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding conflict of laws principles that would cause the application of laws of any other jurisdiction.

5.

Counterparts . This Amendment and any amendments, waivers, consents or supplements hereto may be executed in any number of counterparts (including by facsimile or electronic delivery (PDF)), and by different parties hereto in separate counterparts, each of which when so delivered shall be deemed an original, but all of which counterparts shall constitute but one and the same instrument.

[Signature Page Follows]

 

                          IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by its officers thereunto duly authorized as of the Effective Date.

COMPANY:           CYTRX CORPORATION

WARRANTHOLDER:   HERCULES  CAPITAL, INC.

By:   _

[Signature Page to First Amendment to Warrant]

 

EXHIBIT 10.6

 

FIRST AMENDMENT TO WARRANT AGREEMENT

This First Amendment to Warrant Agreement (this " Amendment ") is entered into as of July 27, 2017(the " Effective Date ") by and between CytRx Corporation, a Delaware corporation (the " Company "), and Hercules Technology III, L.P., a Delaware limited partnership (the " Warrantholder "), and amends that certain Warrant Agreement to Purchase Shares of the Common Stock of the Company, dated as of February 5, 2016, issued by the Company to the Warrantholder (the " Agreement "). Capitalized terms used herein without definition shall have the meanings ascribed to such terms in the Agreement.

RECITALS

WHEREAS,  pursuant  to  Section 12(h) of the Agreement, none of the terms of the Agreement may be amended except by an instrument executed by each of the parties thereto.

WHEREAS, the Company and the Warrantholder desire to amend the Agreement as set forth herein.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual agreements, covenants and considerations contained herein, the receipt of which are hereby acknowledged, the parties agree as follows:

1.	Amendments to Warrant .

a.	The introductory paragraph of Section 1(a) of the Agreement is hereby amended and restated in its entirety to read as follows:

"(a) For value received, the Company hereby grants to the Warrantholder, and the Warrantholder is entitled, upon the terms and subject to the conditions hereinafter set forth, to subscribe for and purchase, from the Company, up to 317,073 fully paid and non-assessable shares of Common Stock (as defined below) at a purchase price per share equal to the Exercise Price (as defined below). The number of, and applicable Exercise Price for, such shares are subject to adjustment as provided in Section 8 . As used herein, the following terms shall have the following meanings:"

b.	The definition of "Exercise Price" in Section 1(a) of the Agreement is hereby amended and restated in its entirety to read as follows:

"" Exercise Price " means (i) with respect to 253,658 of the shares issuable upon exercise hereof, the 30-day volume-weighted average price of the Common Stock over the 30-day period beginning 15 days before the announcement of that certain Exclusive License Agreement to be entered into by and between the Company and NantCell, Inc., and (ii) with respect to 63,415 of the shares issuable upon exercise hereof, $2.05. Upon partial exercise of this Warrant, the Warrantholder shall specify the applicable Exercise Price in its Notice of Exercise (as defined below)."

c.	The definition of "Purchase Price" in Section 1(a) of the Agreement is hereby amended and restated in its entirety to read as follows:

"" Purchase Price " means, with respect to any exercise of this Warrant, an amount equal to the applicable Exercise Price (subject to adjustment from time to time in accordance with the provisions of this Agreement) multiplied by the number of shares of Common Stock as to which this Warrant is then exercised."

d.	The definition of "Warrant Coverage" in Section 1(a) of the Agreement is hereby deleted in its entirety.

e.	Section 1(b) of the Agreement is hereby amended and restated in its entirety to read as follows:

"(b) Number of Shares . This Warrant shall be exercisable for up to 317,073 fully-paid and non-assessable shares of Common Stock, as subject to adjustment from time to time in accordance with the provisions of this Agreement."

f.	Section 3(b) of the Agreement is hereby amended and restated in its entirety to read as follows:

"(b) Exercise Prior to Expiration . To the extent this Warrant is not previously exercised as to all shares subject hereto, and if the then-current fair market value of one share of Common Stock is greater than the Exercise Price then in effect, or, in the case of a Liquid Sale, where the value per share of Common Stock (as determined as of the closing of such Liquid Sale in accordance with the definitive agreements executed by the parties in connection with such Merger Event) to be paid to the holders thereof is greater than the Exercise Price then in effect, this Agreement shall be deemed automatically exercised on a Net Issuance basis pursuant to Section 3(a) (even if not surrendered) as of immediately before its expiration determined in accordance with Section 2 . For the avoidance of doubt, in the event the then-current fair market value of one share of Common Stock or the value per share of Common Stock is greater than the Exercise Price then in effect for a portion but not all of the shares of Common Stock issuable hereunder, this Agreement shall be deemed automatically exercised on a Net Issuance basis pursuant to Section 3(a) (even if not surrendered) as of immediately before its expiration determined in accordance with Section 2 for such portion of the shares issuable hereunder. For purposes of such automatic exercise, the fair market value of one share of Common Stock upon such expiration shall be determined pursuant to Section 3(a) . To the extent this Warrant or any portion hereof is deemed automatically exercised pursuant to this Section 3(b) , the Company agrees to promptly notify the Warrantholder of the number of shares of Common Stock if any, the Warrantholder is to receive by reason of such automatic exercise, and to cause its transfer agent to issue such shares to the Warrantholder in book entry form."

 

g.	Section 8(a) of the Agreement is hereby amended and restated in its entirety to read as follows:

"(a) Merger Event . In connection with a Merger Event that is a Liquid Sale, this Warrant shall, on and after the closing thereof, automatically and without further action on the part of any party or other person, represent the right to receive the consideration payable on or in respect of all shares of Common Stock that are issuable hereunder as of immediately prior to the closing of such Merger Event less the applicable Purchase Price for all such shares of Common Stock (such consideration to include both the consideration payable at the closing of such Merger Event and all deferred consideration payable thereafter, if any, including, but not limited to, payments of amounts deposited at such closing into escrow and payments in the nature of earn-outs, milestone payments or other performance- based payments), and such Merger Event consideration shall be paid to the Warrantholder as and when it is paid to the holders of the outstanding shares of Common Stock. To the extent the consideration to be received by the Warrantholder at the closing of a Merger Event that is a Liquid Sale is less than the Purchase Price, this Warrant shall automatically terminate as of the closing of such Merger Event that is a Liquid Sale. For the avoidance of doubt, in the event the consideration to be received by the Warrantholder at the closing of a Merger Event that is a Liquid Sale is less than the Purchase Price for a portion but not all of the shares of Common Stock issuable hereunder, this Warrant shall automatically terminate as of the closing of such Merger Event that is a Liquid Sale only with respect to such portion of the shares issuable hereunder. In connection with a Merger Event that is not a Liquid Sale, the Company shall cause the successor or surviving entity to assume this Agreement and the obligations of the Company hereunder on the closing thereof, and thereafter this Warrant shall be exercisable for the same number and type of securities or other property as the Warrantholder would have received in consideration for the shares of Common Stock issuable hereunder had it exercised this Warrant in full as of immediately prior to such closing, with the Exercise Price adjusted proportionally with respect to the securities issuable hereunder, but at an aggregate Exercise Price no greater than the aggregate Exercise Price in effect as of immediately prior to such closing, and subject to further adjustment from time to time in accordance with the provisions of this Agreement. The provisions of this Section 8(a) shall similarly apply to successive Merger Events."

2.

Company Representations and Warranties . The Company hereby represents and warrants to the Warrantholder that there have been no adjustments to the number of shares issuable upon exercise of the Warrant or the Exercise Price of such shares required pursuant to the provisions of the Agreement through the date hereof (without giving effect to this Amendment).

3.	Effect of this Amendment . Except as specifically amended as set forth herein, each term and condition of each of the Agreement shall continue in full force and effect. None of the terms of this Amendment may be amended except by an instrument executed by each of the parties hereto.

 

4.	Governing Law . This Amendment shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding conflict of laws principles that would cause the application of laws of any other jurisdiction.

5.

Counterparts . This Amendment and any amendments, waivers, consents or supplements hereto may be executed in any number of counterparts (including by facsimile or electronic delivery (PDF)), and by different parties hereto in separate counterparts, each of which when so delivered shall be deemed an original, but all of which counterparts shall constitute but one and the same instrument.

[Signature Page Follows]

COMPANY:                                   CYTRX C ORPORATION

 

                                              By:

 

 

                                              Name:

 

 

                                              Title:

W ARRA N THOLDER :                         HERC U L E S T E CH N OLOGY III , L.P . ,

a D e l awa r e l im i ted partne r sh i p

B y: Hercu l es Technology SBIC M a nagement ,   L L C ,   i ts Genera l Partne r

B y: He r cules Capita l ,   Inc. (f/k/a Hercu l es T ec hn o l ogy Growt h Ca pit a l ,   Inc.) ,   its Manager

 

 

[Signatur e Pag e lo First Amendment