exv10w24



 





EXHIBIT
10.24




SUBSCRIPTION AGREEMENT

Common Stock




RXi Pharmaceuticals Corporation

A Delaware Corporation




     The undersigned desires to subscribe for shares of common stock, par value of $.0001 per share
(the “Common Stock”), of RXi Pharmaceuticals Corporation, a Delaware corporation (the “Company”).
The execution and delivery of this Subscription Agreement to the Company will indicate the
undersigned’s acknowledgement and acceptance of the terms hereunder.


A. Subscription. The undersigned hereby irrevocably subscribes for and agrees to purchase
the shares of Common Stock indicated on the signature page hereof and to be bound by all of the
applicable terms and conditions of this Subscription Agreement.



B. Purchase. Simultaneously with the execution and delivery of this Subscription
Agreement, the undersigned shall pay to RXi Pharmaceuticals Corporation, by certified or personal
check, bank draft, wire transfer or money order, the subscription price for the shares of Common
Stock the undersigned agrees to purchase pursuant to this Subscription Agreement.



C. Representations And Warranties And Understandings.




     1. The undersigned hereby acknowledges, represents and warrants to, and agrees with, the
Company as follows, which acknowledgments, representations, warranties and agreements will be true
and correct as of the date of acceptance by the Company of the undersigned’s subscription:



          (a) The undersigned has determined that the shares of Common Stock are a suitable investment
for him or her. The undersigned has the financial ability to bear the economic risk of his or her
investment in the Company (including the possibility of a complete loss of his or her investment),
has adequate means for providing for his or her current needs and personal contingencies and has no
need for liquidity with respect to the undersigned’s investment in the Company.




          (b) The undersigned has consulted outside tax counsel, and is not relying on the Company with
respect to tax considerations involved in this investment.




          (c) The undersigned has such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of an investment in the Common Stock and protecting
the undersigned’s own interests in connection with the investment and has obtained, in the
undersigned’s judgment, sufficient information from the Company to evaluate the merits and risks of
an investment in the Common Stock. The undersigned has not utilized any person as the
undersigned’s purchaser representative in connection with evaluating such merits and risks.




          (d) The undersigned has been furnished all documents which may have been requested, has had an
opportunity to speak with management of the Company and understands and has evaluated the risks of
a purchase of the Common Stock.




 









 








          (e) The undersigned acknowledges its understanding that the offering and sale of the Common
Stock is intended to be exempt from registration under the Securities Act of 1933, as amended (the
“Securities Act”) and regulations thereunder. In furtherance thereof, the undersigned represents
and warrants to and agrees with the Company as follows:





          (1) The undersigned is acquiring the Common Stock for its own account, for investment
purposes only and not with a view to or for the resale, distribution or fractionalization
thereof, in whole or in part, and no other person has a direct or indirect beneficial
interest in the Common Stock.




          (2) The undersigned is an “Accredited Investor” as that term is defined in Regulation D
under the Act by reason of the fact that the undersigned is (CHECK THE APPROPRIATE BOX(ES)
BELOW):



	 	 	 	 	 
	o

	 	i)
	 	a natural person with individual net worth, or
joint net worth with his/her spouse which presently exceeds $1,000,000;
	 
	 	 	 	 
	o

	 	ii)
	 	a natural person with individual income in excess
of $200,000 in each of the two most recent years or joint income with
his/her spouse in excess of $300,000 in each of those years and who has
a reasonable expectation of reaching the same income level in the
current year;
	 
	 	 	 	 
	o

	 	iii)
	 	a director or executive officer of the Company or
a person who performs policy making functions for the Company similar to
those of an executive officer;
	 
	 	 	 	 
	o

	 	iv)
	 	a trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring the
securities offered, whose purchase is directed by a sophisticated person
as described in Rule 506(b)(2)(ii) of Regulation D; or
	 
	 	 	 	 
	o

	 	v)
	 	an entity in which all of the equity owners are
accredited investors.







          (3) The undersigned acknowledges that the offer and sale of the Common Stock to him or
her has not been accomplished by any form of general solicitation or general advertising,
including, but not limited to, any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media, or broadcast over television or radio
or any seminar or meeting whose attendees have been invited by any general solicitation or
general advertising.




          (4) The undersigned has been given the opportunity to ask questions of, and receive
answers from, the Company concerning the terms and conditions of this subscription and other
matters pertaining to this investment, and has been given the opportunity to obtain such
additional information necessary to verify the accuracy of the information provided in order
for him or her to evaluate the merits and risks of an investment in the Company to the
extent the Company possesses such information or can acquire it without unreasonable effort
or expense, and has not been furnished any other offering literature, except as mentioned
herein.



-2-









 






          (5) The undersigned represents, warrants and agrees that it will not sell or otherwise
transfer the Common Stock without registration under the Securities Act or an exemption
therefrom, and fully understands and agrees that he or she must bear the economic risk of
its investment for an indefinite period of time because, among other reasons, the Common
Stock has not been registered under the Securities Act or under the securities laws of
certain states and, therefore, cannot be resold, pledged, assigned or otherwise disposed of
unless it is subsequently registered under the Securities Act and under the applicable
securities laws of such states or an exemption from such registration is available. The
undersigned understands that the provisions of this Subscription Agreement further restrict
sales or transfers of the Common Stock.




          (6) In making his or her decision to purchase the Common Stock herein subscribed for,
the undersigned has relied solely upon independent investigations made by him or her and
materials furnished by the Company pursuant to Section (e)(4) above.




          (7) The undersigned is authorized and qualified to become a stockholder in the Company,
and the person signing this Subscription Agreement on behalf of such Entity has been duly
authorized by such Entity to do so. This Subscription Agreement has been duly authorized,
executed and delivered by the undersigned and constitutes the valid and legally binding
obligation of the undersigned.




          (8) The execution, delivery and performance of the terms and obligations of this
Subscription Agreement and the Registration Rights Agreement between the Company and the
undersigned will not cause the undersigned to violate any judgment, order, law, ordinance,
rule, agreement, charter, organizational document or indenture to which the undersigned or
the undersigned’s property is subject.




          (9) No representations or warranties have been made to the undersigned by the Company,
officer, employee or agent of the Company or any affiliate of any of them.




          (10) Information that the undersigned has furnished herewith to the Company with
respect to his or her financial position and business experience is correct and complete as
of the date of this Subscription Agreement and if there should be any material change in
such information prior to the Company’s acceptance of this Subscription Agreement, the
undersigned will immediately furnish such revised or corrected information to the Company.




          (11) The undersigned acknowledges that he or she has been provided the opportunity and
encouraged to consult with counsel of such party’s own choosing with respect to this
investment; that the undersigned has not engaged Ropes & Gray to represent his or her
interests; and that Ropes & Gray has represented only the Company in connection with this
Subscription Agreement and the other transactions relating to the offering of the Common
Stock.



     2. The undersigned recognizes that the offer and any sale of the Common Stock are based upon
the representations and warranties contained herein, and shall indemnify and hold harmless the
Company or any of its officers, employees, registered representatives, directors, or control
persons who was or is a party or is threatened to be made a party to any threatened, pending



-3-









 







or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of or arising from any actual or alleged misrepresentation or misstatement
of facts or omission to represent or state facts by the undersigned to the Company concerning
himself or herself, or his or her financial position in connection with the offering or sale of the
Common Stock, which is not remedied by timely notice to the Company as provided below, against
losses, liabilities and expenses for which the Company or any of its officers, employees,
registered representatives, directors, or control persons have not otherwise been reimbursed
(including attorneys’ fees, judgments, fines and amounts paid in settlement) as actually and
reasonably incurred by such person(s) or entity(ies) in connection with such action, suit or
proceeding.


D. Investor Information. This information is for the sole use of the Company and its
counsel, and will not be used for any other purpose except that it may be furnished to prospective
lenders and other parties when necessary to establish compliance with federal or state securities
laws, rules, and regulations.




	 	 	 	 	 	 	 	 	 	 	 
	(a)

	 	Name:	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	 	 	Last
	 	First
	 	Middle Initial
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Age:
	 	 	 	Marital Status:	 	 


	 

	 	 	 	 	 	 

	 	  
	 	 








	 	 	 	 	 	 	 	 	 	 	 
	(b)	 	Home Address and Telephone Number:	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	(c)

	 	Firm Name:	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Nature of Business:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Position/Title:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Length of Time in Position:	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	(d)	 	In which state do you currently	 	 
	 

	 	 	 	 	 	 	 	 	 	 







	 	 	 	 	 	 	 	 	 	 	 
	 	 	(i)	 	Maintain your primary residence?	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(ii)	 	Maintain your secondary residence?	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	(iii)
	 	Vote?	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(iv)	 	File income tax returns?	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(v)	 	Maintain a driver’s license?	 	 	 	 
	 	 	 	 	 	 	 	 	 




E. Investor Awareness. The undersigned acknowledges, represents, agrees and is aware
that:




          (a) no federal or state agency has passed upon the Common Stock or made any finding or
determination as to the fairness of this investment;




-4-









 








          (b) there are substantial risks of loss of investment incidental to the purchase of the Common
Stock; and




          (c) the investment in the Company is an illiquid investment and the undersigned must bear the
economic risk of investment in the Common Stock for an indefinite period of time; and




          (d) this Subscription Agreement contains substantial restrictions on transferability of the
Common Stock.



F. Registration Rights. The Company agrees to grant the undersigned, and the undersigned
accepts, certain registration rights for the Common Stock of the Company as described in Annex
I.



G. Miscellaneous.




     1. All pronouns and any variations thereof used herein shall be deemed to refer to the
masculine, feminine, singular, or plural as the identity of the person or persons may require. The
captions used in this Subscription Agreement are used for convenience only and are not to be
considered in construing or interpreting this Subscription Agreement.



     2. Neither this Subscription Agreement nor any provision hereof shall be waived, modified,
changed, discharged, terminated, revoked, or canceled except by an instrument in writing signed by
the party against whom any change, discharge, or termination is sought.



     3. This Subscription Agreement maybe executed in several counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.



     4. Unless otherwise provided, any notice required or permitted under this Subscription
Agreement shall be given in writing and shall be deemed effectively given upon personal delivery to
the party to be notified or upon deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed to the party to be notified at the address indicted
for such party on the signature page hereof, or at such other address as such party may designate
by ten (10) days’ advance written notice to the other.



     5. If one or more provisions of this Subscription Agreement are held to be unenforceable under
applicable law, such provisions shall be excluded from this Subscription Agreement and the balance
of the Agreement shall be interpreted as if such provision were to be excluded and shall be
enforceable in accordance with its terns.



     6. This Subscription Agreement shall be enforced, governed and construed in all respects in
accordance with the laws of the Commonwealth of Massachusetts, as such laws are applied by
Massachusetts courts to agreements entered into and to be performed in Massachusetts and shall be
binding upon the undersigned, the undersigned’s heirs, estate, legal representatives, successors
and assigns and shall inure to the benefit of the Company and its successors and assigns.



     7. Title to Common Stock shall be taken as follows (circle one):




	 	(a)	 	Husband and Wife, as Community Property;




-5-









 







	 	(b)	 	Joint Tenants;
	 
	 	(c)	 	Tenants in Common;
	 
	 	(d)	 	Separate Property;
	 
	 	(e)	 	Other (e.g., corporation, limited liability company, partnership,
custodian trustee, etc.):                                         .





[The remainder of this page intentionally left blank.]




-6-









 








RXI PHARMACEUTICALS CORPORATION

SUBSCRIPTION AGREEMENT

SIGNATURE PAGE




     This page constitutes the Signature Page for the Subscription Agreement. The undersigned
represents to the Company that (a) the information contained herein is complete and accurate on the
date hereof and may be relied upon by the Company and (b) the undersigned will notify the Company
immediately of any change in any of such information occurring prior to the acceptance of the
subscription and will promptly send the Company written confirmation of such change.



     IN WITNESS WHEREOF, the undersigned has executed this Subscription Agreement this ___ day of
                                        , 2007.



	 	 	 
	 


	 	 
	Shares of Common Stock
	 	 
	subscribed for at $5.00 per share
	 	 






	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	$ 

	 	 

	 	 	 	 
	 

	 

	 	 	 	 
	Total Purchase Price	 	 	 	Signature(s) of Purchaser (include title if
executing on behalf of an Entity)
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 

	 	 	 	 	 	Title:






     In consideration of the above representations, warranties and agreements, the Company accepts
the subscription and will cause a certificate to be issued upon payment as provided above.



	 	 	 	 	 
	 	 	RXI PHARMACEUTICALS CORPORATION
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:







-7-









 








ANNEX I




REGISTRATION RIGHTS TERMS



A. Definitions. As used in this Annex, the following terms shall have the following
meanings:




     1. The term “1934 Act” means the Securities Exchange Act of 1934, as amended.



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



     3. 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.



     4. The term “Registrable Shares” means the Common Stock issued to the Subscriber pursuant to
the Subscription Agreement to which this Annex is attached and any Common Stock issued as a
dividend or other distribution with respect to, or in exchange or in replacement of, such Common
Stock.



     5. The term “Rule 144” means Rule 144 promulgated under the Securities Act.



     6. The term “SEC” means the Securities and Exchange Commission.



     7. The term “Securities Act” means the Securities Act of 1933, as amended.



     8. The term “Subscriber” shall mean the individual who executed a signature page to the
Subscription Agreement and is referred to as the “undersigned” in the text of the Subscription
Agreement.


B. 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 the Subscriber, solely for cash on a form that would
also permit the registration of the Registrable Shares, RXi shall, each such time, promptly give
the Subscriber written notice of such determination. Upon the written request of the Subscriber
given within thirty (30) days after giving of any such notice by RXi, RXi shall, subject to the
limitations set forth in Section F, use its best efforts to cause to be registered under the
Securities Act all of the Registrable Shares that the Subscriber has requested be registered;
provided, that RXi shall have the right to postpone or withdraw any registration statement relating
to an offering in which the Subscriber is eligible to participate under this Section B without any
liability or obligation to the Subscriber under this Section B.



C. Obligations of RXi. Whenever required under Section B to use its best efforts to effect
the registration of any Registrable Shares, RXi shall, as expeditiously as reasonably possible:




     1. 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 the Subscriber, keep such registration statement effective for a period of up to one
hundred eighty (180) days or, if earlier, until the distribution contemplated in the registration



-i-









 







statement has been completed; provided, however, that (i) such 180-day period shall be
extended for a period of time equal to the period the Subscriber 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 180-day period shall be extended for up to one hundred eighty (180)
days, if necessary, to keep the registration statement effective until all such Registrable Shares
are sold.



     2. 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.



     3. Furnish to the Subscriber 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.



     4. 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 Annex 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 the Subscriber to the
extent required by such jurisdiction.



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



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



     7. 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.



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



-ii-









 





     9. Make available for inspection by the Subscriber, 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 the Subscriber 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 the Subscriber,
underwriter, attorney, accountant or agent in connection with such registration statement.



     10. 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.



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


D. Furnish Information. It shall be a condition precedent to the obligations of RXi to
take any action pursuant to this Annex with respect to the registration of any the Subscriber’s
Registrable Shares that the Subscriber 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, the Subscriber
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.



E. RXi Registration Expenses. All expenses (excluding underwriters’ discounts and
commissions) incurred in connection with any registration pursuant to Section B, 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 the Subscriber
in such registration and the reasonable fees and disbursements of one special counsel for the
Subscriber, shall be borne by RXi whether or not the registration statement to which such
registration expenses relate becomes effective.



F. Underwriting Requirements.




     1. In connection with any offering under Section B involving an underwriting of shares being
issued by RXi, RXi shall not be required to include any Registrable Shares in such underwriting
unless the Subscriber accepts the terms of the underwriting as agreed upon between RXi and the
underwriters selected by it, and then only in such quantity as will not, in the reasonable opinion
of the underwriters, jeopardize the success of the offering by RXi. If the total amount of
securities that the Subscriber requests to be included in an underwritten offering under Section B



-iii-









 







exceeds the amount of securities that the underwriters reasonably believe compatible with the
success of the offering, RXi may exclude some or all of the Registrable Shares from such
registration and underwriting.



     2. In connection with any underwritings of shares to be registered under Section B, RXi shall
have the right to designate the managing underwriter or underwriters.


G. Delay of Registration. the Subscriber 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 Annex.



H. Indemnification. In the event any Registrable Shares are included in a registration
statement under this Annex:




     1. To the extent permitted by law, in connection with any Registration in which Registrable
Shares are included, RXi will indemnify and hold harmless the Subscriber and its officers,
directors and stockholders, legal counsel and accountants for the Subscriber, any underwriter (as
defined in the Securities Act) for the Subscriber and each person, if any, who controls the
Subscriber 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 the
Subscriber, 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
loss, claim, damage, liability, or action, provided, however, that the indemnity agreement
contained in this Section H(1) 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 the Subscriber,
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 the Subscriber, or any
underwriter, controlling person or other aforementioned person, (ii) is caused by the failure of
the Subscriber 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 the Subscriber or (iii) is caused by the Subscriber’s disposition of Registrable Shares
during any period during which the Subscriber is obligated to discontinue any disposition of
Registrable Shares under Section J.



-iv-









 





     2. To the extent permitted by law, the Subscriber 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 the
Subscriber 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 H(2) 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 the Subscriber (which
consent shall not be unreasonably withheld or delayed) and provided further that the Subscriber
shall not have any liability under this Section H(2) in excess of the net proceeds actually
received by the Subscriber in the relevant public offering.



     3. Promptly after receipt by an indemnified party under this Section H 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 H, 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 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 H, 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 H.



     4. If the indemnification provided for in this Section H 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 H(1) or Section H(2) 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 the Subscriber in connection with the statements or omissions described in such Section
H(1) or Section H(2) which resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The relative fault of RXi and the Subscriber
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 the Subscriber 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



-v-









 







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 H, 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 H(3) with respect to notice of
commencement of any action shall apply if a claim for contribution is to be made under this Section
H(4); provided, however, that no additional notice shall be required with respect to any action for
which notice has been given under subsection Section H(3) for purposes of indemnification. RXi and
the Subscriber agree that it would not be just and equitable if contribution pursuant to this
Section H 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 H(4), the Subscriber shall not be required to
contribute an amount in excess of the net proceeds actually received by the Subscriber 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.


I. No Transfer of Registration Rights. The registration rights and obligations of the
Subscriber under this Annex with respect to any Registrable Shares may not be transferred to any
third party without the prior written consent of RXi, which shall not be unreasonably withheld.



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




     1. 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



     2. 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).




-vi-