exv10w2






EXHIBIT 10.2









July 28, 2008




RXi Pharmaceuticals Corporation

One Innovation Drive

Worcester, Massachusetts 01605




     Re: Amendment to Contribution Agreement


Gentlemen:




     This letter will serve to amend in certain respects set forth below the Contribution
Agreement, dated April 30, 2007 (the “Contribution Agreement”), between RXi Pharmaceuticals
Corporation (“RXi”) and CytRx Corporation (“CytRx”). Unless otherwise defined herein, capitalized
terms used in this letter, including Exhibit A hereto, shall have the meanings ascribed to them in
the Contribution Agreement.



     In accordance with Section 7 of the Contribution Agreement, the Contribution Agreement is
hereby amended as follows:



     1. Preemptive Rights. Exhibit A to the Contribution Agreement is hereby amended and
restated in its entirety to read as set forth in Exhibit A to this letter.



     2. No Other Effect. Except as set forth in this letter, including Exhibit A hereto,
the Contribution Agreement shall remain in full force and effect.



[Remainder of page intentionally left blank]




 









 








RXi Corporation

July 28, 2008

Page 2



If the foregoing correctly states the parties’ agreement, please acknowledge the same by signing
and returning a copy of this letter.




	 	 	 	 	 
	 	Very truly yours,

 	 
	 	/s/ Steven A. Kriegsman
 	 
	 	Steven A. Kriegsman 	 
	 	President and Chief Executive
Officer

CytRx Corporation 	 
	 



AGREED AND ACCEPTED: Dated July 28, 2008




	 	 	 	 	 
	 	 
	/s/ Tod Woolf
 	 	 	 
	Tod Woolf, Ph.D.                 	 	 
	President

RXi Pharmaceuticals Corporation 	 	 
	 




 









 








Exhibit A




Form of Registration Rights Terms




REGISTRATION RIGHTS TERMS



SECTION 1. Definitions. As used in this Exhibit, the following terms shall have the following
meanings:




          (a) The term “1934 Act” means the Securities Exchange Act of 1934, as amended.




          (b) The term “Common Stock” means the RXi’s Common Stock, $.0001 par value per share.




          (c) The term “CytRx” means CytRx Corporation and its permitted successors and assigns under
Section 12.




          (d) The terms “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.




          (e) The term “Registrable Shares” means the Common Stock issued to CytRx pursuant to the
Contribution Agreement between RXi and CytRx dated as of January 8, 2007 and the Contribution
Agreement between RXi and CytRx dated as of April 30, 2007 (including the shares issued to CytRx in
September 2007 as reimbursement for expenses pursuant to such agreement) and any Common Stock
issued as a dividend or other distribution with respect to, or in exchange or in replacement of,
such Common Stock.




          (f) The term “Rule 144” means Rule 144 promulgated under the Securities Act.




          (g) The term “SEC” means the Securities and Exchange Commission.




          (h) The term “Securities Act” means the Securities Act of 1933, as amended.



SECTION 2. Request for Registration. If at any time after the Common Stock is registered
under the 1934 Act, RXi shall receive a written request (specifying that it is being made pursuant
to this Section 2 from CytRx that RXi file a registration statement under the Securities Act, or a
similar document pursuant to any other statute then in effect corresponding to the Securities Act,
covering the registration of Registrable Shares the expected price to the public of which equals or
exceeds $1,000,000 (based on the market price or fair value on the date of such request), then RXi
shall promptly use its best efforts to cause all Registrable Shares that CytRx has requested be
registered to be registered under the Securities Act on Form S-1 or any other available form.




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     Notwithstanding the foregoing, (i) RXi shall not be obligated to effect a registration
pursuant to this Section 2 during the period starting with the date sixty (60) days prior to RXi’s
estimated date of filing of, and ending on a date six (6) months following the effective date of, a
registration statement pertaining to an underwritten public offering of securities for the
account of RXi, provided that RXi is actively employing in good faith its best efforts to cause
such registration statement to become effective and that RXi’s estimate of the date of filing such
registration statement is made in good faith; (ii) RXi shall not be obligated to effect a
registration pursuant to this Section 2 within six (6) months after the effective date of a prior
registration under this Section 2 (or three (3) months where, due to the requirements of the SEC or
other factors beyond CytRx’s control, such prior registration included less than all of the
Registrable Shares that CytRx requested to be included therein); and (iii) if RXi shall furnish to
CytRx a certificate signed by the President of RXi stating that in the good faith judgment of the
Board of Directors it would be seriously detrimental to RXi or its shareholders for a registration
statement to be filed in the near future, then RXi’s obligation to use its best efforts to file a
registration statement shall be deferred for a period not to exceed ninety (90) days; provided,
however, that RXi shall not be permitted to so defer its obligation more than once in any 12-month
period.



     RXi shall not be obligated to effect more than three registrations on behalf of CytRx pursuant
to this Section 2. In order to count as a registration under this Section 2, the registration
statement relating to such registration must have included Registrable Shares and must have been
ordered or declared effective by the SEC.


SECTION 3. RXi Registration. If at any time RXi proposes to register any of its Common
Stock under the Securities Act in connection with the public offering of such securities for its
own account or for the accounts of shareholders other than CytRx, solely for cash on a form that
would also permit the registration of the Registrable Shares, RXi shall, each such time, promptly
give CytRx written notice of such determination. Upon the written request of CytRx given within
thirty (30) days after giving of any such notice by RXi, RXi shall, subject to the limitations set
forth in Section 8, use its best efforts to cause to be registered under the Securities Act all of
the Registrable Shares that CytRx has requested be registered; provided, that RXi shall have the
right to postpone or withdraw any registration statement relating to an offering in which CytRx is
eligible to participate under this Section 3 without any liability or obligation to CytRx under
this Section 3.



SECTION 4. Obligations of RXi. Whenever required under Section 2, Section 3 or Section 11
to use its best efforts to effect the registration of any Registrable Shares, RXi shall, as
expeditiously as reasonably possible:




          (a) Prepare and file with the SEC a registration statement with respect to such Registrable
Shares and use its best efforts to cause such registration statement to become effective, and, upon
the request of CytRx, keep such registration statement effective for a period of up to one (1) year
or, if earlier, until the distribution contemplated in the registration statement has been
completed; provided, however, that (i) such one (1) year period shall be extended for a period of
time equal to the period CytRx refrains from selling any securities included in such registration
at the request of an underwriter of Common Stock (or other securities) of RXi; and (ii) in the case
of any registration of Registrable Shares on Form S-3 which are intended to be offered on a
continuous or delayed basis, subject to compliance with applicable SEC rules, such one (1) year
period shall be extended for up to ninety (90) days, if necessary, to keep the registration
statement effective until all such Registrable Shares are sold.



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          (b) Prepare and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement 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.



          (c) Furnish to CytRx such numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such other documents as
they may reasonably request in order to facilitate the disposition of such Registrable Shares owned
by it.



          (d) Use its best efforts to register and qualify the securities covered by such registration
statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably
appropriate for the distribution of the securities covered by the registration statement, provided
that RXi shall not be required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states or jurisdictions,
and further provided that (anything in this Exhibit to the contrary notwithstanding with respect to
the bearing of expenses) if any jurisdiction in which the securities shall be qualified shall
require that expenses incurred in connection with the qualification of the securities in that
jurisdiction be borne by shareholders, then such expenses shall be payable by CytRx to the extent
required by such jurisdiction.



          (e) Provide a transfer agent for the Common Stock no later than the effective date of the
first registration of any Registrable Shares.



          (f) Otherwise use its best efforts to comply with all applicable rules and regulations of the
SEC.



          (g) Use its best efforts either (i) to cause all such Registrable Shares to be listed on a
national securities exchange (if such securities are not already so listed) and on each additional
national securities exchange on which similar securities issued by RXi are then listed, if the
listing of such securities is then permitted under the rules of such exchange, or (ii) to secure
designation of all such Registrable Shares as a Nasdaq “national market system security” within the
meaning of Rule 11Aa2-1 of the SEC or, failing that, to secure listing on Nasdaq for such
Registrable Shares and, without limiting the generality of the foregoing, to arrange for at least
two (2) market makers to register as such with respect to Registrable Shares with the National
Association of Securities Dealers.



          (h) Enter into such customary agreements (including an underwriting agreement in customary
form) and take such other actions as CytRx shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Shares.



          (i) Make available for inspection by CytRx, by any underwriter participating in any
disposition to be effected pursuant to such registration statement and by any attorney, accountant
or other agent retained by CytRx or any such underwriter, all pertinent financial and other records
and pertinent corporate documents and properties of RXi, and cause all of RXi’s officers, directors
and employees to supply all information reasonably requested by CytRx, underwriter, attorney,
accountant or agent in connection with such registration statement.



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          (j) Use every reasonable effort to prevent the issuance of any stop order suspending the
effectiveness of such registration statement or of any order preventing or suspending the use of
any preliminary prospectus and, if any such order is issued, to obtain the lifting thereof at the
earliest reasonable time.



          (k) Make such representations and warranties to CytRx and the underwriters as are customarily
made by issuers to selling stockholders and underwriters, as the case may be, in primary
underwritten public offerings.


SECTION 5. Furnish Information. It shall be a condition precedent to the obligations of
RXi to take any action pursuant to this Exhibit with respect to the registration of any CytRx’s
Registrable Shares that CytRx shall take such actions and furnish to RXi such information regarding
itself, the Registrable Shares held by it, and the intended method of disposition of such
securities, as RXi shall reasonably request and as shall be required in connection with any
registration, qualification or compliance referred to in this agreement, including, without
limitation (i) in connection with an underwritten offering, enter into an appropriate underwriting
agreement containing terms and provisions then customary in agreements of that nature, (ii) enter
into such custody agreements, powers of attorney and related documents at such time and on such
terms and conditions as may then be customarily required in connection with such offering and (iii)
distribute the Registrable Shares only in accordance with and in the manner of the distribution
contemplated by the applicable registration statement and prospectus. In addition, CytRx shall
promptly notify RXi of any request by the Commission or any state securities commission or agency
for additional information or for such registration statement or prospectus to be amended or
supplemented.



SECTION 6. Expenses of Demand Registration. All expenses incurred in connection with any
registration pursuant to Section 2 or Section 11 (excluding underwriters’ discounts and
commissions), including, without limitation, all registration and qualification fees, printers’ and
accounting fees, fees and disbursements of counsel for RXi, and the reasonable fees and
disbursements of one special counsel for CytRx, shall be borne by RXi whether or not the
registration statement to which such registration expenses relate becomes effective; provided,
however, that RXi shall not be required to pay for any expenses of any registration proceeding
begun pursuant to Section 2 if the registration request is subsequently withdrawn at the request of
CytRx (in which case CytRx shall bear such expenses), unless CytRx agrees to forfeit its right to
demand registrations pursuant to Section 2.



SECTION 7. RXi Registration Expenses. All expenses (excluding underwriters’ discounts and
commissions) incurred in connection with any registration pursuant to Section 3, including, without
limitation, any additional registration and qualification fees and any additional fees and
disbursements of counsel to RXi that result from the inclusion of securities held by CytRx in such
registration and the reasonable fees and disbursements of one special counsel for CytRx, shall be
borne by RXi whether or not the registration statement to which such registration expenses relate
becomes effective.





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SECTION 8. Underwriting Requirements.




          (a)




	 	(i)	 	In connection with any offering under Section 3 involving an underwriting of
shares being issued by RXi, RXi shall not be required to include any Registrable Shares
in such underwriting unless CytRx accepts the terms of the underwriting as agreed upon
between RXi and the underwriters selected by it, and then only in such quantity
(subject to the minimum Registrable Shares to be included as provided in subsection
(ii) below) as will not, in the reasonable opinion of the underwriters, jeopardize the
success of the offering by RXi.
	 
	 	(ii)	 	If the total amount of securities (which for the purposes of this subsection
(ii) refers only to securities owned directly by CytRx Corporation and none of its
transferees, successors or assigns) that CytRx requests to be included in an
underwritten offering under Section 3 exceeds the amount of securities that the
underwriters reasonably believe compatible with the success of the offering, RXi may
exclude from such registration and underwriting such Registrable Shares, provided that
RXi shall only be permitted to exclude such Registrable Shares that exceed fifteen (15)
percent of the total shares included in such registration and underwriting.





          (b) With respect to any underwriting of shares to be registered under Section 2 or Section 11,
CytRx shall have the right to designate the managing underwriter or underwriters, subject to the
consent of RXi. In connection with any underwritings of shares to be registered under Section 3,
RXi shall have the right to designate the managing underwriter or underwriters. In any such case,
such consent of RXi or CytRx shall not be unreasonably withheld or delayed.


SECTION 9. Delay of Registration. CytRx shall not have any right to take any action to
restrain, enjoin, or otherwise delay any registration as the result of any controversy that might
arise with respect to the interpretation or implementation of this Exhibit.



SECTION 10. Indemnification. In the event any Registrable Shares are included in a
registration statement under this Exhibit:




          (a) To the extent permitted by law, in connection with any Registration in which Registrable
Shares are included, RXi will indemnify and hold harmless CytRx and its officers, directors and
stockholders, legal counsel and accountants for CytRx, any underwriter (as defined in the
Securities Act) for CytRx and each person, if any, who controls CytRx or underwriter within the
meaning of the Securities Act or the 1934 Act, against any losses, claims, damages or liabilities,
joint or several, to which they may become subject under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based on (i) any untrue or alleged untrue statement of any material fact contained in such
registration statement, including, without limitation, any prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary to make the statements therein
not misleading or (iii) any violation by RXi of any rule or regulation promulgated under the
Securities Act applicable to RXi and relating to action or inaction required of RXi in connection
with any such registration; and will promptly reimburse CytRx, and any underwriter, controlling
person or other aforementioned person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such



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loss, claim, damage, liability, or action, provided, however, that the indemnity agreement
contained in this Section 10(a) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the consent of RXi (which
consent shall not be unreasonably withheld or delayed) nor shall RXi be liable to CytRx, or any
underwriter, controlling person or other aforementioned person in any such case for any such loss,
claim, damage, liability or action to the extent that it (i) arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission made in connection
with such registration statement, preliminary prospectus, final prospectus, or amendments or
supplements thereto, in reliance upon and in conformity with written information furnished to RXi
expressly for use in connection with such registration by or on behalf of CytRx, or any
underwriter, controlling person or other aforementioned person, (ii) is caused by the failure of
CytRx to deliver a copy of the final prospectus relating to such Registrable Shares, as then
amended or supplemented, in connection with a purchase, if RXi had previously furnished copies
thereof to CytRx or (iii) is caused by CytRx’s disposition of Registrable Shares during any period
during which CytRx is obligated to discontinue any disposition of Registrable Shares under Section
13.



          (b) To the extent permitted by law, CytRx will indemnify and hold harmless RXi, each of its
directors, each of its officers who has signed the registration statement, each person, if any, who
controls RXi within the meaning of the Securities Act, and any underwriter (within the meaning of
the Securities Act) for RXi against any losses, claims, damages or liabilities to which RXi or any
such director, officer, controlling person or underwriter may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in such registration statement, including any prospectus or final
prospectus contained therein or any amendments or supplements thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information relating to and furnished to RXi by CytRx
expressly for use in connection with such registration; and will promptly reimburse RXi or any such
director, officer, controlling person or underwriter for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained in this Section
10(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of CytRx (which consent shall not be
unreasonably withheld or delayed) and provided further that CytRx shall not have any liability
under this Section 10(b) in excess of the net proceeds actually received by CytRx in the relevant
public offering.



          (c) Promptly after receipt by an indemnified party under this Section 10 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 10, notify the indemnifying party in writing
of the commencement thereof and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel



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mutually satisfactory to the parties. The failure to notify an indemnifying party promptly of
the commencement of any such action, if prejudicial to his ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under this Section 10,
but the omission so to notify the indemnifying party will not relieve him of any liability that he
may have to any indemnified party otherwise than under this Section 10.



          (d) If the indemnification provided for in this Section 10 is required by its terms but is for
any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified
party under Section 10(a) or Section 10(b) in respect of any losses, claims, damages, liabilities
or expenses referred to herein, then each applicable indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of any losses, claims, damages,
liabilities or expenses referred to herein in such proportion as is appropriate to reflect the
relative fault of RXi and CytRx in connection with the statements or omissions described in such
Section 10(a) or Section 10(b) which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative fault of RXi and
CytRx shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by RXi or CytRx 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 the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in this Section 10, any
legal or other fees or expenses reasonably incurred by such party in connection with investigating
or defending any action or claim. The provisions set forth in Section 10(c) with respect to notice
of commencement of any action shall apply if a claim for contribution is to be made under this
Section 10(d); provided, however, that no additional notice shall be required with respect to any
action for which notice has been given under subsection Section 10(c) for purposes of
indemnification. RXi and CytRx agree that it would not be just and equitable if contribution
pursuant to this Section 10 were determined solely by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred to in this
paragraph. Notwithstanding the provisions of this Section 10(d), CytRx shall not be required to
contribute an amount in excess of the net proceeds actually received by CytRx in the relevant
public offering. No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.


SECTION 11. Registrations on Form S-3.




          (a) If (i) RXi shall receive a written request (specifying that it is being made pursuant to
this Section 11) from CytRx that RXi file a registration statement on Form S-3 (or any successor
form to Form S-3 regardless of its designation) for a public offering of Registrable Shares the
reasonably anticipated aggregate price to the public of which would equal or exceed $1,000,000, and
(ii) RXi is a registrant entitled to use Form S-3 (or any successor form to Form S-3) to register
such shares, then RXi shall use its best efforts to cause all Registrable Shares that CytRx has
requested be registered to be registered on Form S-3 (or any successor form to Form S-3).



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          (b) Notwithstanding the foregoing, (i) RXi shall not be obligated to effect a registration
pursuant to this Section 11 during the period starting with the date sixty (60) days prior to RXi’s
estimated date of filing of, and ending on a date six (6) months following the effective date of, a
registration statement pertaining to an underwritten public offering of securities for the account
of RXi, provided that RXi is actively employing in good faith its best efforts to cause such
registration statement to become effective and that RXi’s estimate of the date of filing such
registration statement is made in good faith; (ii) RXi shall not be obligated to effect a
registration pursuant to this Section 11 within six (6) months after the effective date of a prior
registration under this Section 11 (or three (3) months where, due to the requirements of the SEC
or other factors beyond CytRx’s control, such prior registration included less than all of the
Registrable Shares that CytRx requested to be included therein); and (iii) if RXi shall furnish to
CytRx a certificate signed by the President of RXi stating that in the good faith judgment of the
Board of Directors it would be seriously detrimental to RXi or its shareholders for a registration
statement to be filed in the near future, then RXi’s obligation to use its best efforts to file a
registration statement shall be deferred for a period not to exceed ninety (90) days; provided,
however, that RXi shall not be permitted to so defer its obligation more than once in any 12-month
period.



          (c) CytRx’s rights to registration under this Section 11 are in addition to, and not in lieu
of, their rights to registration under Section 2 and Section 3 of this Exhibit.


SECTION 12. Transfer of Registration Rights.




          (a) The registration rights and obligations of CytRx under this Exhibit with respect to any
Registrable Shares may be transferred or assigned to any acquirer of all or substantially all of
the assets or outstanding shares of stock of CytRx or any entity that merges with or into CytRx.



          (b) The registration rights and obligations under Sections 2 and 11 hereof may be transferred
or assigned to one or more transferees of Registrable Shares (while also being retained by CytRx);
provided that RXi shall not be obligated to effect more than three registrations under Section 2 on
behalf of CytRx and those transferees.



          (c) The registration rights and obligations under Section 3 hereof may be transferred or
assigned to any transferee of 0.5% or more of the Registrable Shares at any time.


SECTION 13. Future Events. If CytRx is, at the time participating in a Registration, RXi
will notify CytRx of the occurrence of any of the following events of which RXi is actually aware,
and when so notified, CytRx will immediately discontinue any disposition of Registrable Shares
until notified by RXi that such event is no longer applicable:




          (a) the issuance by the Commission or any state securities commission or agency of any stop
order suspending the effectiveness of the registration statement or the initiation of any
proceedings for that purpose (in which case RXi will make reasonable efforts to obtain the
withdrawal of any such order or the cessation of any such proceedings); or



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          (b) the existence of any fact which makes untrue any material statement made in the
registration statement or prospectus or any document incorporated therein by reference or which
requires the making of any changes in the registration statement or prospectus or any document
incorporated therein by reference in order to make the statements therein not misleading (in which
case RXi will make reasonable efforts to amend the applicable document to correct the deficiency).



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