EMPLOYMENT AGREEMENT
EXHIBIT 10.37
This
Employment Agreement (this “Agreement”) is made
and entered into as of January 1, 2009 (the “Effective Date”) by
and between CytRx Corporation, a Delaware corporation (“Employer”), and Xxxx
Xxxxx, an individual and resident of the State of California (“Employee”).
WHEREAS,
Employer desires to engage Employee as an employee, and Employee is willing to
be so engaged by Employer, on the terms set forth in this
Agreement.
NOW,
THEREFORE, upon the above premises, and in consideration of the mutual covenants
and agreements hereinafter contained, the parties hereto agree as
follows.
1. Employment. Effective
as of the Effective Date, Employer shall continue to employ Employee, and
Employee shall continue to serve, as Employer’s Chief Financial Officer on the
terms set forth herein.
2. Duties; Place of
Employment. Employee shall perform in a professional and
business-like manner, and to the best of his ability, the duties described on
Schedule 1 to this Agreement and such other duties as are assigned to him
from time to time by Employer’s Chief Executive Officer. Employee
understands and agrees that his duties, title and authority may be changed from
time to time in the discretion of Employer’s Chief Executive
Officer. Employee’s services hereunder shall be rendered at
Employer’s principal executive office, except for travel when and as required in
the performance of Employee’s duties hereunder.
3. Time and
Efforts. Employee shall devote all of his business time,
efforts, attention and energies to Employer’s business and to discharge his
duties hereunder.
4. Term. The
term (the “Term”) of Employee’s
employment hereunder shall commence on the Effective Date and shall expire on
December 31, 2009, unless sooner terminated in accordance with Section
6. Neither Employer nor Employee shall have any obligation to extend
or renew this Agreement. In the event this Agreement shall not be
extended or renewed, Employer shall continue to pay Employee his salary as
provided for in Section 5.1 during the period commencing on the final date
of the Term and ending on (a) June 30, 2010 or (b) the date of
Employee’s re-employment with another employer, whichever is
earlier.
5. Compensation. As
the total consideration for Employee’s services rendered hereunder, Employer
shall pay or provide Employee the following compensation and
benefits:
5.1. Salary. Employee
shall be entitled to receive an annual salary of Two Hundred Seventy Five
Thousand Dollars ($275,000), payable in 24 equal semi-
monthly
installments on the 15th day and
the last day of each calendar month during the Term, with the first such
installment due on January 15, 2009.
5.2. Discretionary
Bonus. Employee may be eligible for a bonus for his services
during the Term. Employee’s eligibility to receive a bonus, any
determination to award Employee such a bonus and, if awarded, the amount thereof
shall be in Employer’s sole discretion.
5.3. Expense
Reimbursement. Employer shall reimburse Employee for
reasonable and necessary business expenses incurred by Employee in connection
with the performance of Employee’s duties in accordance with Employer’s usual
practices and policies in effect from time to time.
5.4. Vacation. Employee
shall be entitled to twenty business days of vacation each year during the Term
in accordance with California law.
5.5. Employee
Benefits. Employee shall be eligible to participate in any
medical insurance and other employee benefits made available by Employer to all
of its employees under its group plans and employment policies in effect during
the Term. Schedule 2
hereto sets forth a summary of such plans and policies as currently in
effect. Employee acknowledges and agrees that, any such plans or
policies now or hereafter in effect may be modified or terminated by Employer at
any time in its discretion.
5.6. Payroll
Taxes. Employer shall have the right to deduct from the
compensation and benefits due to Employee hereunder any and all sums required
for social security and withholding taxes and for any other federal, state, or
local tax or charge which may be in effect or hereafter enacted or required as a
charge on the compensation or benefits of Employee.
6. Termination. This
Agreement may be terminated as set forth in this Section 6.
6.1. Termination by Employer for
Cause. Employer may terminate Employee’s employment hereunder
for “Cause” upon notice to Employee. “Cause” for this
purpose shall mean any of the following:
(a) Employee’s
breach of any material term of this Agreement; provided that the first occasion
of any particular breach shall not constitute such Cause unless Employee shall
have previously received written notice from Employer stating the nature of such
breach and affording Employee at least ten days to correct such
breach;
(b) Employee’s
conviction of, or plea of guilty or nolo contendere to, any misdemeanor, felony
or other crime of moral turpitude;
(c) Employee’s
act of fraud or dishonesty injurious to Employer or its reputation;
(d) Employee’s
continual failure or refusal to perform his material duties as required under
this Agreement after written notice from Employer stating the nature of such
failure or refusal and affording Employee at least ten days to correct the
same;
(e) Employee’s
act or omission that, in the reasonable determination of Employer’s Board of
Directors (or a Committee of the Board), indicates alcohol or drug abuse by
Employee; or
(f) Employee’s
act or personal conduct that, in the judgment of Employer’s Board of Directors
(or a Committee of the Board), gives rise to a material risk of liability of
Employee or Employer under federal or applicable state law for discrimination,
or sexual or other forms of harassment, or other similar liabilities to
subordinate employees.
Upon
termination of Employee’s employment by Employer for Cause, all compensation and
benefits to Employee hereunder shall cease and Employee shall be entitled only
to payment, not later than three days after the date of termination, of any
accrued but unpaid salary and unused vacation as provided in Sections 5.1 and
5.5 as of the date of such termination and any unpaid bonus that may have been
awarded Employee as provided in Section 5.2 prior to such date.
6.2. Termination by Employer
without Cause. Employer may also terminate Employee’s
employment without Cause upon ten days notice to Employee. Upon
termination of Employee’s employment by Employer without Cause, all compensation
and benefits to Employee hereunder shall cease and Employee shall be entitled to
(a) payment of (1) any accrued but unpaid salary and unused vacation as of the
date of such termination as required by California law, which shall be due and
payable upon the effective date of such termination, and (2) an amount, which
shall be due and payable within ten days following the effective date of such
termination, equal to six months’ salary as provided in Section 5.1, and
(b) continued participation, at Employer’s cost and expense, for a period of six
months following such termination, in any Employer-sponsored group benefit plans
in which Employee was participating as of the date of termination.
6.3. Death or
Disability. Employee’s employment will terminate automatically
in the event of Employee’s death or upon notice from Employer in event of his
permanent disability. Employee’s “permanent disability”
shall have the meaning ascribed to such term in any policy of disability
insurance maintained by Employer (or by Employee, as the case may be) with
respect to Employee or, if no such policy is then in effect, shall mean
Employee’s inability to fully perform his duties hereunder for any period of at
least 75 consecutive days or for a total of 90 days, whether or not
consecutive. Upon termination of Employee’s employment as aforesaid,
all compensation and benefits to Employee hereunder shall cease and Employer
shall pay to the Employee’s heirs or personal representatives, not later than
ten days after the date of termination, any accrued but unpaid salary and unused
vacation as of the date of such termination as required by California
law.
7. Confidentiality. While
this Agreement is in effect and for a period of five years thereafter, Employee
shall hold and keep secret and confidential all “trade secrets” (within the
meaning of applicable law) and other confidential or proprietary information of
Employer and shall use such information only in the course of performing
Employee’s duties hereunder; provided, however, that with respect to trade
secrets, Employee shall hold and keep secret and confidential such trade secrets
for so long as they remain trade secrets under applicable
law. Employee shall maintain in trust all such trade secrets or other
confidential or proprietary information, as Employer’s property, including, but
not limited to, all documents concerning Employer’s business, including
Employee’s work papers, telephone directories, customer information and notes,
and any and all copies thereof in Employee’s possession or under Employee’s
control. Upon the expiration or earlier termination of Employee’s
employment with Employer, or upon request by Employer, Employee shall deliver to
Employer all such documents belonging to Employer, including any and all copies
in Employee’s possession or under Employee’s control.
8. Equitable Remedies;
Injunctive Relief. Employee hereby acknowledges and agrees
that monetary damages are inadequate to fully compensate Employer for the
damages that would result from a breach or threatened breach of Section 7 of
this Agreement and, accordingly, that Employer shall be entitled to equitable
remedies, including, without limitation, specific performance, temporary
restraining orders, and preliminary injunctions and permanent injunctions, to
enforce such Section without the necessity of proving actual damages in
connection therewith. This provision shall not, however, diminish
Employer’s right to claim and recover damages or enforce any other of its legal
or equitable rights or defenses.
9. Indemnification;
Insurance. Employer and Employee acknowledge that, as the
Chief Financial Officer of the Employer, Employee shall be a corporate officer
of Employer and, as such, Employee shall be entitled to indemnification to the
full extent provided by Employer to its officers, directors and agents under the
Employer’s Certificate of Incorporation and Bylaws as in effect as of the date
of this Agreement. Employer shall maintain Employee as an additional
insured under its current policy of directors and officers liability insurance
and shall use commercially reasonable efforts to continue to insure Employee
thereunder, or under any replacement policies in effect from time to time,
during the Term.
10. Severable
Provisions. The provisions of this Agreement are severable and
if any one or more provisions is determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions, and any partially
unenforceable provisions to the extent enforceable, shall nevertheless be
binding and enforceable.
11. Successors and
Assigns. This Agreement shall inure to the benefit of and
shall be binding upon Employer, its successors and assigns and Employee and his
heirs and representatives; provided, however, that neither party may assign this
Agreement without the prior written consent of the other party.
12. Entire
Agreement. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof, and the parties hereto have made
no agreements, representations or warranties relating to the subject matter of
this Agreement that are not set forth otherwise herein. This
Agreement supersedes any and all prior or contemporaneous agreements, written or
oral, between Employee and Employer relating to the subject matter
hereof. Any such prior or contemporaneous agreements are hereby
terminated and of no further effect, and Employee, by the execution hereof,
agrees that any compensation provided for under any such agreements is
specifically superseded and replaced by the provisions of this
Agreement.
13. Amendment. No
modification of this Agreement shall be valid unless made in writing and signed
by the parties hereto and unless such writing is made by an executive officer of
Employer (other than Employee). The parties hereto agree that in no
event shall an oral modification of this Agreement be enforceable or
valid.
14. Governing
Law. This Agreement is and shall be governed and construed in
accordance with the laws of the State of California without giving effect to
California’s choice-of-law rules.
15. Notice. All
notices and other communications under this Agreement shall be in writing and
mailed, telecopied (in case of notice to Employer only) or delivered by hand or
by a nationally recognized courier service guaranteeing overnight delivery to a
party at the following address (or to such other address as such party may have
specified by notice given to the other party pursuant to this
provision):
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If to
Employer:
CytRx
Corporation
00000
Xxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000)
000-0000
Attention: Chief
Executive Officer
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If to
Employee:
__________________
__________________
__________________
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16. Survival. Sections
7 through 16 shall survive the expiration or termination of this
Agreement.
17. Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original and all of which together shall be deemed to be one and the same
agreement.
18. Attorney’s
Fees. In any action or proceeding to construe or enforce any
provision of this Agreement the prevailing party shall be entitled to recover
its or his reasonable attorneys’ fees and other costs of suit (up to a maximum
of $15,000) in addition to any other recoveries.
IN
WITNESS WHEREOF, this Agreement is executed as of the day and year first above
written.
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“EMPLOYER”
CytRx
Corporation
By:
/s/ XXXXXX X.
XXXXXXXXX
Xxxxxx X.
Xxxxxxxxx
Chief Executive
Officer
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“EMPLOYEE”
/s/ XXXX
XXXXX
Xxxx
Xxxxx
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