EXHIBIT 10.74
MUTUAL GENERAL RELEASE AND SEVERANCE AGREEMENT
This Mutual General Release and Severance Agreement (the
"Agreement") is entered into by and between CytRx Corporation, a Delaware
Corporation (the "Company") and C. Xxxx Xxxxxxx ("Xxxxxxx") as of the date on
which Peacock executes and dates this Agreement. The Company and Peacock are
referred to collectively as the "Parties."
RECITALS
A. Whereas, Peacock has been employed by the Company, as its
Chief Financial Officer, since August 16, 2003 pursuant to an employment
agreement dated August 1, 2003 (the "Employment Agreement"); and
B. Whereas, Peacock has alleged that he has suffered a
constructive discharge in violation of his Employment Agreement and other
rights; and
C. Whereas, the Company denies that it constructively discharged
Peacock or otherwise violated his rights; and
D. Whereas, the Parties wish to avoid the time, expense,
inconvenience, publicity, risks, and costs involved in litigation of Peacock's
threatened claims, and on the terms set forth below, the Parties desire to
extinguish the Employment Agreement and compromise and settle all disputes
between them, including, but not limited to, all claims arising out of or
relating to Peacock's employment with the Company or the termination of that
employment.
NOW, therefore, in consideration of the foregoing stipulated facts,
and the mutual promises, agreements and understandings contained herein, the
Parties hereby agree as follows:
1. Settlement Consideration
Subject to the terms and conditions set forth below, the Company
shall provide the following payments and compensation:
a. The Company will pay Peacock One hundred twenty-three
thousand seven hundred fifty dollars ($123,750) (equal to nine (9) months
salary), with the Company to withhold appropriate taxes, by cashier's check
delivered to Peacock concurrent with his delivery of this executed Agreement.
b. The Company will pay Peacock his full annual bonus of
twenty-four thousand seven hundred fifty dollars ($24,750) with the Company to
withhold appropriate taxes, by cashier's check delivered concurrent with his
delivery of this executed Agreement.
c. Within two (2) business days from the date Peacock
delivers this executed Agreement, the Company will deposit into escrow, for
Peacock's benefit, with an escrow holder reasonably acceptable to the Parties,
the gross sum of one hundred twenty-three thousand seven hundred fifty dollars
($123,750) (equal to an additional nine (9) months of salary). Beginning with
the first day of the 11th month after the Severance Date, and also
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beginning with the first day of each subsequent month through the 19th month
after the Severance Date, with each such month calculated as 30-day periods
following the Severance Date, Peacock may draw from the escrow account up to
thirteen thousand seven hundred fifty dollars ($13,750), depending upon his
earnings for the previous month. To effect a withdrawal, Peacock shall present
to the escrow officer an affidavit regarding his employment and consulting
income, if any, from the month preceding the date on which he draws from the
escrow account. At such time as the affidavit is presented to the escrow
officer, the escrow officer shall pay Peacock thirteen thousand seven hundred
fifty dollars ($13,750) minus income Peacock earned from employment and
consulting during the previous month. After the 18th month after the Severance
Date (as defined in this Agreement in Paragraph 7), and once Peacock has been
paid any amount to which he is entitled under this Agreement, any amount
remaining in escrow shall be returned to the Company. The Company agrees to pay
all fees and costs of the escrow and to cause to be created an escrow account
consistent with this Agreement and take all other steps to effect the intent of
this paragraph.
d. The Company will pay for up to eighteen (18) months of
COBRA insurance coverage for Peacock, commencing on the Severance Date and
ending at the conclusion of eighteen (18) months following the Severance Date.
The Company's obligation to provide such coverage will cease on the date Peacock
obtains comparable coverage from another full-time employer. Peacock shall
provide the Company with notice that he has obtained comparable coverage
promptly, but not later than three business days after he obtains such coverage.
If Peacock is self-employed during the time the Company is required to provide
COBRA insurance coverage, the Company shall continue to provide COBRA insurance
coverage until eighteen (18) months from the Severance Date. In the event the
Company's COBRA policy is cancelled for any reason whatsoever during the period
in which Peacock is to receive such COBRA coverage, the Company will obtain and
pay for comparable insurance coverage from an alternative reputable insurance
provider (such as Aetna, Blue Cross or Travelers, by way of examples).
e. Effective immediately, the Company shall vest options to
purchase 105,000 shares of the Company's common stock, which the Company granted
Peacock in connection with the commencement of his employment with the Company.
Peacock will have 10 years from the date such options were granted within which
to exercise such options, on either a cash or cashless basis.
f. The Company will pay Peacock's counsel, Xxxxxxxxx
Xxxxxxxx Xxxxx & Xxxxx LLP ("AGS&K"), the sum of seven thousand five hundred
dollars ($7,500), which the Company shall pay by cashier's check exchanged
concurrent with Peacock's delivery of this signed Agreement. The Company shall
issue a Tax Form 1099 only to AGS&K for this amount.
g. On execution of this Agreement, the Company shall pay
Peacock a cashier's check for the gross sum of five thousand six hundred
thirty-two dollars ($5,632), less appropriate withholding taxes, which
constitutes payment in full for unused vacation to which he is entitled.
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2. General Release by Xx. Xxxxxxx
Except for the obligations set forth in this Agreement and those
claims expressly reserved hereby, Peacock on behalf of himself, his attorneys
and agents, hereby releases, acquits and forever discharges the Company and all
of its current or former shareholders, officers, directors, agents, attorneys,
employees, representatives, predecessors-in-interest, successors and assigns,
and all individuals or entities acting by, through, under or in concert with any
of them (collectively, the "Released Company Parties"), from any and all
charges, controversies, claims, wages, rights, agreements, actions, costs or
expenses, causes of action, obligations, damages, losses, promises and
liabilities of whatever kind or nature (such as claims for emotional distress,
wages and attorneys' fees), in law or equity or otherwise, whether known or
unknown, suspected or unsuspected, from the beginning of time to the date he
signs this Agreement, provided, however, that nothing in this Agreement or
provision shall be deemed a release of the following claims: (a) claims for
defense and indemnification to which Peacock may be entitled pursuant to common
or statutory law, including but not limited to Labor Code Section 2802 or
Corporations Code Section 317, by virtue of his role as an employee or officer
of the Company; (b) claims for outstanding, unpaid medical expenses submitted to
the Company's medical insurance plan; (c) claims for amounts to be paid and
stock options awarded pursuant to this Agreement; and (d) claims to enforce this
Agreement.
Peacock expressly agrees that, other than those claims expressly
reserved herein, this Agreement and General Release extends to all claims of
every nature and kind, known or unknown, suspected or unsuspected, vested or
contingent, past, present or future, arising from or attributable to any alleged
act or omission of the Released Parties or their respective agents or
representatives, occurring prior to the execution of this Agreement, including,
without limitation, claims arising from the employment by, or the termination of
Peacock's employment with, any of the Released Parties.
3. General Release by the Company
Except for the obligations set forth in this Agreement, the Company,
on behalf of itself, its attorneys, its officers, directors and agents, acquits
and forever discharges Peacock and his representatives, agents and assigns
(collectively, the "Released Peacock Parties"), from any and all charges,
controversies, claims, wages, rights, agreements, actions, costs or expenses,
causes of action, obligations, damages, losses, promises and liabilities of
whatever kind or nature (such as claims for attorneys' fees), in law or equity
or otherwise, whether known or unknown, suspected or unsuspected, from the
beginning of time to the date it signs this Agreement, provided, however, that
nothing in this Agreement or provision shall be deemed a release of the
following claims: (a) claims for defense and indemnification to which the
Company may be entitled pursuant to common or statutory law by reason of its
role as Peacock's employer; and (b) claims to enforce this Agreement.
The Company, its attorneys, officers, directors, and agents
expressly agree that this Agreement and General Release extends to all claims of
every nature and kind, known or unknown, suspected or unsuspected, vested or
contingent, past, present or future, arising from or attributable to any alleged
act or omission of Peacock occurring prior to the execution of this
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Agreement (except for representations and warranties and other obligations
created by this Agreement), including, without limitation, claims arising from
Peacock's employment.
4. Civil Code Section 1542 Waiver
The Parties are aware of and have been advised by counsel of
California Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HER SETTLEMENT WITH THE
DEBTOR."
With full awareness and understanding of this provision, as to the
claims released by this Agreement, the Parties hereby waive all rights, that
this provision or any comparable provision under any state or federal law may
give to them. They intend the mutual general releases set forth in this
Agreement to apply to claims which they do not presently know to exist at this
time. They understand that the facts with respect to which this Agreement is
given may hereafter prove to be different from the facts now known or believed
by them (other than as to representations and warranties contained herein), and
they hereby accept and assume the risk thereof and agree that this Agreement
shall be and shall remain, in all respects, effective and not subject to
termination or rescission by reason of any such difference in facts.
5. Representation and Warranty of No Fraud
By signing this Agreement, in exchange for the Company's release of
unknown claims by waiving Civil Code section 1542 in Paragraph 4 above, Peacock
represents and warrants that during his employment with the Company, he did not
engage in fraud or other intentionally unlawful conduct relating in any way to,
or arising from or in connection with, his employment with the Company. The
Company represents and warrants that it is not aware of any fraud or other
intentionally unlawful conduct by Peacock with respect to performance of his
duties for the Company.
6. Supplemental Mutual General Releases With Civil Code Section
1542 Waivers
As a material portion of the consideration for the Parties' releases
herein, the Parties each agree that they will each execute supplemental mutual
general releases and 1542 waivers in favor of each other, in the form of Exhibit
A hereto, within one (1) business day after Peacock's Severance Date and, again,
at the conclusion of the consulting period in Paragraph 9 below.
7. Resignation/Limited Duties/Indemnity
Provided the Company has signed this Agreement and has delivered all
settlement compensation provided for in Paragraph 1, above, in accordance with
this Agreement, Peacock shall resign his employment with the Company effective
June 15, 2004, or a sooner date mutually agreeable to the parties (the
"Severance Date").
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Even after Peacock's employment has ended, the Company agrees that
it will continue to defend and indemnify Peacock as set forth under the
Company's Certificate or Articles of Incorporation and Bylaws in effect as of
August 16, 2003, against any and all claims, cause of action, inquiries, audits,
administrative or other proceedings, whether private, governmental or otherwise,
relating to or arising from his employment with the Company, or his role as a
corporate officer. The Company shall continue to insure Peacock as an additional
insured under its current policy of directors and officers liability insurance,
or under any replacements policies in effect, for events occurring while the
Company employed Peacock.
Until the Severance Date, Peacock shall continue to be the Company's
CFO. However, Peacock shall not be required to execute any contracts on the
Company's behalf.
8. Mutual Non-Disparagement/References
Peacock agrees that he will not, either directly or indirectly,
disparage or otherwise make negative remarks regarding the Company or its
then-current officers or directors, or its products or its potential products.
The Company agrees that it will not, either directly or indirectly, disparage or
otherwise make negative remarks regarding or relating to Peacock. In the event
that the Company's Human Resources Department receives inquiries about Peacock's
employment, it will not make disparaging remarks but will confirm only the
length of his employment, positions held and his annual salary as of the date of
his departure from the Company. Additionally, the Company's Board of Directors
and other officers will be instructed not to make disparaging remarks, directly
or indirectly, about Peacock, and their failure to comply shall be deemed a
breach of this Agreement by the Company. Employees shall be advised to refer all
inquires about Peacock to the Human Resources Department. Peacock's failure to
comply with the provisions of this Section shall be deemed a breach of this
Agreement by Peacock.
The Company will provide Peacock with letters of reference in a form
acceptable to Peacock, which form is attached hereto as Exhibit B.
Nothing in this Agreement shall prohibit the Parties from testifying
truthfully under oath, from responding truthfully to discovery responses and
subpoenas in any legal proceeding, from prosecuting legal action as a plaintiff
or defendant, from responding truthfully to inquiries from any government or
listing entity or agency, or from responding truthfully to inquiries from the
Company or its directors, officers or authorized agents.
9. Limited Consulting Relationship
Subject to his other personal and professional commitments, Peacock
agrees to make himself reasonably available for ninety (90) days following the
Severance Date, up to a maximum of 20 hours per week, at an hourly rate of $100,
paid weekly, to assist the Company in transitioning Peacock's responsibilities
to a new CFO. The Company also will reimburse Peacock for any travel and other
expenses he incurs in connection with this consulting relationship. Amounts
earned by Peacock in this consulting relationship shall not be deducted from any
other amounts to which Peacock is entitled under this Agreement.
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10. Confidentiality of Trade Secrets
Except as required by law, for a period of five (5) years from the
execution of this Agreement, Peacock shall hold and keep secret and confidential
all "trade secrets" (within the meaning of applicable law) and other
confidential or proprietary information of the Company (collectively, such trade
secrets and other confidential or proprietary information of the Company shall
be referred to herein as "Confidential Information") provided, however, that
with respect to trade secrets, Peacock shall hold and keep secret and
confidential such trade secrets for as long as they remain trade secrets under
applicable law. Confidential Information does not include (a) information which
is now or hereafter becomes publicly known or available through no act or
failure on the part of Peacock, (b) information which is hereafter furnished to
Peacock by a third party, the disclosure of which does not constitute a
violation of an obligation by such third party to the Company and (c)
information which is independently developed or known by Peacock, without use or
reference to the Confidential Information.
11. Non-Solicitation
For a period of one (1) year from the date of execution of this
Agreement, Peacock agrees not to induce any current employee of the Company at
the date of execution of this Agreement to terminate his or her employment with
the Company or solicit to hire any such person. Peacock shall not be prohibited
from soliciting to hire a former employee of the Company who has terminated his
or her employment with the Company independent of inducement by Peacock to do
so.
12. Arbitration
The parties agree that if any controversy or claim shall arise out
of this Agreement or the breach hereof (other than claims (a) for equitable
relief, including specific performance, injunctive relief or temporary
restraining orders or (b) enforcing this Paragraph 10 or an arbitration award
granted in accordance herewith), and either party shall request that the matter
be settled by arbitration, the matter shall be settled exclusively by final and
binding arbitration before JAMS (or its successor pursuant to the United States
Arbitration Act, 9 U.S.C. Section 1 et seq.) in accordance with the provisions
of JAMS' Streamlined Arbitration Rules and Procedures in effect at such time, by
a single arbitrator, if the parties shall agree upon one, or by one
arbitrator-appointee designated by JAMS. All arbitration proceedings shall be
held in the City of Los Angeles, and each party agrees to comply in all respects
with any award made in such proceeding and to the entry of a judgment in any
jurisdiction upon any award rendered in such proceeding. All costs and expenses
of arbitration shall be borne by the Company. The losing party in such
arbitration, or as otherwise directed by the arbitrator or arbitrators, shall
pay the prevailing party's reasonable attorneys' fees incurred in connection
therewith.
13. Benitec
x. Xxxxxxx agrees that for a period of two years from the
date he executes this Agreement, he will not accept employment or consult with
Benitec Ltd. ("Benitec"), or any entity at least 50% of which Benitec owns,
including owned through a Benitec subsidiary. If Benitec acquires a 50% or
greater interest in a company for which
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Peacock is already employed, he may continue his employment with such company,
provided Peacock is not aware that such company was established with a plan to
be owned 50% or more by Benitec.
x. Xxxxxxx acknowledges and agrees that his breach of this
provision regarding Benitec may cause the Company great or irreparable injury,
that it may be extremely difficult to ascertain the amount of compensation which
would afford the Company adequate relief from such a breach, that pecuniary
compensation alone would not afford adequate relief, and that in the event
Peacock commits such a breach of this provision, the Company will be entitled to
seek the remedy of injunctive relief, in addition to any and all other legal or
equitable remedies, to restrain and enjoin him from being employed by or
consulting for Benitec or any company of which Benitec owns at least 50%.
14. Company 10-K and 10-Q
Provided that the Company's independent auditor, BDO Xxxxxxx, LLP
("BDO"), has completed its audit of the Company's 2003 financial statements and
issued its audit report related to such financial statements, Peacock agrees to
certify, as the Company's Chief Financial Officer, the Company's 2003 Annual
Report on Form 10-K (the "10-K"). Furthermore, provided that BDO has completed
its quarterly review of the Company's first quarter 2004 financial statements
and issued its review report, Peacock agrees to certify, as the Company's Chief
Financial Officer, the Company's Quarterly Report on Form 10-Q for the first
quarter of 2004 (the "10-Q").
15. Additional Representations and Obligations
a. The Parties represent and warrant that they have not
assigned or in any way conveyed, transferred or encumbered all or any portion of
the claims released or rights covered by this Agreement.
x. Xxxxxxx represents and warrants that he or others have
disclosed to the Company's Governance or Audit Committee all material areas of
conduct, of which Peacock is aware, engaged in by the Company or its officers,
directors or employees, that Peacock believes are relevant to the Company's
Governance and Audit Committee investigations of the propriety of Company
conduct. This representation and warranty does not include Peacock's contentions
regarding his constructive discharge, which the Company denies, and which are
among the claims released herein.
c. The Parties represent and warrant that they have not
filed or requested to be filed or initiated any administrative charges or claims
or legal actions against any of the Released Company Parties or Released Peacock
Parties, including without limitation any state or federal court actions, any
workers' compensation or disability claims or any equal employment opportunity
complaint.
d. The Parties agree and promise that they will not file
any charge, claim, suit, or action to pursue any claims released herein. If any
court of law or federal, state, or local administrative agency assumes
jurisdiction of any charge, claim, suit, or action on behalf of
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any of the Parties based on the matters released herein, the Parties agree to
direct that court, board or agency to withdraw from, or to dismiss, the charge,
claim, suit, or action with prejudice.
e. The Parties agree that if any of them commences, joins
in, or in any manner attempts to assert a claim released by this Agreement,
he/it shall pay to the other Party or Released Party against whom such claim is
released all costs and expenses, including all attorneys' fees, which that Party
or Released Party incurs in defending against such a claim.
f. The Company represents and warrants that the Board of
Directors has approved this Agreement, and that the individual executing this
Agreement on behalf of the Company is fully authorized and empowered to do so
and to bind the Company.
16. Miscellaneous Provisions
a. This Agreement is entered into in settlement and
compromise of disputed claims between the Parties and does not constitute and
shall not be construed as an admission by any of the Parties of any liability or
of any fact or matter whatsoever.
b. If any portion, provision or part of this Agreement is
held, determined or adjudicated to be invalid, unenforceable or void for any
reason, each such portion, provision or part shall be severed from the remaining
portions, provisions or parts of this Agreement and shall not affect the
validity or enforceability of such remaining portions, provisions or parts.
c. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective heirs, legal representatives,
successors and assigns.
d. This Agreement shall be construed under and enforced in
accordance with the substantive laws of the State of California.
e. This Agreement sets forth the entire agreement among the
Parties and supersedes all prior oral or written agreements, negotiations,
discussions, or understandings concerning the subject matter hereof, including
but not limited to the Employment Agreement, except that the terms of the
Company's stock option plan and Peacock's stock option agreement, as amended in
accordance with the terms of this Agreement, shall govern disposition of the
stock options awarded to Peacock, except as expressly modified by this
Agreement. The terms of the escrow regarding payment to be made in Paragraph
1(c) shall govern the escrow as long as it is consistent with Paragraph 1(c).
The terms of this Agreement may not be altered, amended, waived or modified,
except by a further written agreement signed by all of the Parties.
f. This Agreement may be executed in counterparts (and
exchanged via telecopier), each of which shall constitute an original, but all
of which shall constitute one and the same agreement, provided that each signing
party shall have received a copy of the signature page signed by the other
party.
g. The Parties to this Agreement each cooperated in its
drafting and preparation. Thus, the language of all parts of this Agreement
shall in all cases be construed as a
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whole, according to its fair meaning and not strictly for or against any party
as the drafter thereof.
h. Each party agrees to make, execute and deliver such
other instruments or documents, and to do or cause to be done such further or
additional acts, as reasonably may be necessary in order to effectuate the
purposes or to implement the terms of this Agreement.
i. No waiver of any breach of any term or provision of this
Agreement shall be construed to be, nor shall be, a waiver of any other breach
of this Agreement. No waiver shall be binding unless in writing and signed by
the party waiving the breach.
j. Section headings in this Agreement are included for
convenience of reference only.
k. Any notices, demands, request or other communications
that any party desires or is required to deliver to any other party pursuant to
this Agreement shall be in writing and shall be delivered in a sealed envelope
marked "Confidential - To Be Opened by Addressee Only" by hand delivery or
overnight delivery (through a nationally recognized courier, such as UPS or
Federal Express) to the addresses set forth below. Unless notice of a different
address has been given in accordance with this paragraph, all such notices shall
be addressed as follows:
To the Company: CytRx Corporation
Xxxxx Xxxxxxxxx, CEO
00000 Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
To Peacock: Xxxx Xxxxxxx
To the address set forth in the
Company's payroll records
l. If any action (including but not limited to any
arbitration) is brought to enforce or interpret any provision of this Agreement,
or the rights or obligations of any party hereunder, the prevailing party shall
be entitled to recover, as an element of such party's costs of suit, and not as
damages, all reasonable outside attorneys' fees and costs incurred or sustained
by such prevailing party in connection with such action, including, without
limitation, legal fees and costs. The "prevailing party" shall be defined as the
party who is entitled to recover his or its costs of suit.
m. The Parties hereto, and each of them, represent and
declare that in executing this Agreement, they rely solely upon their own
judgments, beliefs and knowledge, and on the advice and recommendations of their
own independently selected counsel, concerning the nature, extent and duration
of their rights and claims and that they have not been influenced to any extent
whatsoever in executing the same by any representations or statements covering
any matters made by any of the Parties hereto or by any person representing them
or any of them. The Parties acknowledge that no party hereto nor any of their
representatives has made
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any promise, representation or warranty whatsoever, written or oral, as any
inducement to enter into this Agreement, except as expressly set forth in this
Agreement.
n. The Parties, and each of them, further represent and
warrant that they have carefully read this Agreement and know and understand the
contents thereof, and that they signed this Agreement freely and voluntarily.
o. Each party to this Agreement has made such investigation
of the facts pertaining to this Agreement and of all matters pertaining thereto
as he, she or it deems necessary.
p. In entering into this Agreement, each party assumes the
risk of any misrepresentation, concealment or mistake. If any party should
subsequently discover that any fact relied upon by him, her or it, or that his,
her or its understanding of the facts or of the law was incorrect, such party
shall not be entitled to any relief in such connection or otherwise, including,
without limiting the generality of the foregoing, any alleged right or claim to
set aside or rescind this Agreement. This Agreement is intended to be and is
final and binding between the Parties hereto with respect to released claims,
regardless of any claims of misrepresentation, promise made without the
intention of performing, concealment of fact, mistake of fact or law, or of any
other circumstance whatsoever.
q. Except as provided in Paragraph 1(f), the Parties are
each solely responsible for their own attorneys' fees and costs incurred before,
from and after the date of this Agreement, and at all times thereafter, except
as may be awarded in connection with any proceedings arising regarding
enforcement, interpretation, implementation or modifiability of the Agreement.
r. The representations, warranties and covenants contained
in this Agreement are deemed to and shall survive the execution and delivery of
this Agreement by all of the Parties.
s. THE PARTIES REPRESENT AND WARRANT THAT THEY HAVE
THOROUGHLY READ AND CONSIDERED ALL ASPECTS OF THIS AGREEMENT, THAT THEY
UNDERSTAND ALL PROVISIONS OF THIS AGREEMENT, THAT THEY HAVE HAD THE OPPORTUNITY
TO CONSULT WITH COUNSEL THROUGHOUT THIS PROCESS AND THAT THEY ARE VOLUNTARILY
ENTERING INTO THE AGREEMENT OF THEIR OWN FREE WILL, WITHOUT DURESS OR COERCION
OF ANY KIND.
Dated: May 12, 2004 C. XXXX XXXXXXX, AN INDIVIDUAL
/s/ C. Xxxx Xxxxxxx
-------------------------------------------
Dated: May 12, 2004 CYTRX CORPORATION
By: Xxxxxx X. Xxxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
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EXHIBIT A
Supplemental Mutual General Releases and Civil Code Section 1542 Waivers
Supplemental General Release by Xx. Xxxxxxx
Except for the obligations set forth in the Mutual General Release
and Severance Agreement executed by Peacock and the Company (the "Agreement")
and these supplemental general releases and Civil Code Section 1542 waivers (the
"Release"), and those claims expressly reserved thereby, Peacock on behalf of
himself, his attorneys and agents, hereby releases, acquits and forever
discharges the Company and all of its current or former shareholders, officers,
directors, agents, attorneys, employees, representatives,
predecessors-in-interest, successors and assigns, and all individuals or
entities acting by, through, under or in concert with any of them (collectively,
the "Released Company Parties"), from any and all charges, controversies,
claims, wages, rights, agreements, actions, costs or expenses, causes of action,
obligations, damages, losses, promises and liabilities of whatever kind or
nature (such as claims for emotional distress, wages and attorneys' fees), in
law or equity or otherwise, whether known or unknown, suspected or unsuspected,
from the beginning of time to the date he signs this Release, provided, however,
that nothing in this Release shall be deemed a release of the following claims:
(a) claims for defense and indemnification to which Peacock may be entitled
pursuant to common or statutory law, including but not limited to Labor Code
Section 2802 or Corporations Code Section 317, by virtue of his role as an
employee or officer of the Company; (b) claims for outstanding, unpaid medical
expenses submitted to the Company's medical insurance plan; (c) claims for
amounts to be paid and stock options awarded pursuant to this Agreement; and (d)
claims to enforce the Agreement or this Release.
Peacock expressly agrees that, other than those claims expressly
reserved in the Agreement and this Release, this Release extends to all claims
of every nature and kind, known or unknown, suspected or unsuspected, vested or
contingent, past, present or future, arising from or attributable to any alleged
act or omission of the Released Parties or their respective agents or
representatives, occurring prior to the execution of this Release, including,
without limitation, claims arising from the employment by, or the termination of
Peacock's employment with, any of the Released Parties.
Supplemental General Release by the Company
Except for the obligations set forth in the Agreement and this
Release, the Company, on behalf of itself, his attorneys, its officers,
directors and agents, acquits and forever discharges Peacock and his
representatives, agents and assigns (collectively, the "Released Peacock
Parties"), from any and all charges, controversies, claims, wages, rights,
agreements, actions, costs or expenses, causes of action, obligations, damages,
losses, promises and liabilities of whatever kind or nature (such as claims for
attorneys' fees), in law or equity or otherwise, whether known or unknown,
suspected or unsuspected, from the beginning of time to the date it signs this
Release, provided, however, that nothing in this Release shall be deemed a
release of the following claims: (a) claims for defense and indemnification to
which the Company may be entitled pursuant to common or statutory law by reason
of its role as Peacock's employer; and (b) claims to enforce the Agreement or
this Release.
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The Company, its attorneys, officers, directors, and agents
expressly agree that the Agreement and this Release extend to all claims of
every nature and kind, known or unknown, suspected or unsuspected, vested or
contingent, past, present or future, arising from or attributable to any alleged
act or omission of Peacock occurring prior to the execution of this Release,
including, without limitation, claims arising from Peacock's employment.
Supplemental Civil Code Section 1542 Waiver
The Parties are aware of and have been advised by counsel of
California Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HER SETTLEMENT WITH THE
DEBTOR."
With full awareness and understanding of this provision, as to the
claims released by this Release, the Parties hereby waive all rights, that this
provision or any comparable provision under any state or federal law may give to
them. They intend the mutual general releases set forth in this Release to apply
to claims which they do not presently know to exist at this time. They
understand that the facts with respect to which this Release is given may
hereafter prove to be different from the facts now known or believed by them
(other than as to representations and warranties contained herein), and they
hereby accept and assume the risk thereof and agree that this Release shall be
and shall remain, in all respects, effective and not subject to termination or
rescission by reason of any such difference in facts.
Representation and Warranty of No Fraud
By signing this Release, in exchange for the Company's release of
unknown claims by waiving Civil Code section 1542 above, Peacock represents and
warrants that up to the time of this Release, he did not engage in fraud or
other intentionally unlawful conduct relating in any way to, or arising from or
in connection with, his employment with the Company. The Company represents and
warrants that it is not aware of any fraud or other intentionally unlawful
conduct by Peacock with respect to performance of his duties for the Company.
Dated: , 2004 C. XXXX XXXXXXX, AN INDIVIDUAL
--------
---------------------------------------------
Dated: May 12, 2004 CYTRX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
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EXHIBIT B
Letter of Reference
[to be typed on Company letterhead]
Date
Name
Company
Address
City, State Zip
Re: C. Xxxx Xxxxxxx
Dear Name:
I am writing to provide a reference for C. Xxxx Xxxxxxx.
Xxxx Xxxxxxx was employed by CytRx Corporation (the "Company") and held
the title Chief Financial Officer during his employment. During the term of Xx.
Xxxxxxx'x employment, he was responsible for finance, accounting and treasury
functions. Xx. Xxxxxxx played a significant and valuable role as a member of the
Company's senior management team. The Company valued not only his financial
skills, which are extremely high, but also his strategic insights and business
acumen.
We wish Xx. Xxxxxxx the best in his future endeavors.
Sincerely,
Authorized Officer
13
