Delaware
|
58-1642740
|
(State or other jurisdiction of
|
(I.R.S. Employer
|
incorporation or organization)
|
Identification No.)
|
11726 San Vicente Blvd, Suite 650,
|
|
Los Angeles, California
|
90049
|
(Address of principal executive offices)
|
(Zip Code)
|
Title of each class
|
Name of exchange on which registered
|
Common Stock, $0.001 par value per share
|
The NASDAQ Capital Market
|
Series A Junior Participating Preferred Stock Purchase Rights
|
Large accelerated filer
£
|
Accelerated filer
R
|
Non-accelerated filer
£
|
Smaller reporting company
£
|
(Do not check if a smaller reporting company)
|
Page
|
||
NOTE ON FORWARD-LOOKING STATEMENTS
|
[1]
|
|
PART I
|
||
Item 1. BUSINESS
|
[2]
|
|
Item 1A. RISK FACTORS
|
[8]
|
|
Item 1B. UNRESOLVED STAFF COMMENTS
|
[24]
|
|
Item 2. PROPERTIES
|
[24]
|
|
Item 3. LEGAL PROCEEDINGS
|
[25]
|
|
Item 4. MINE SAFETY DISCLOSURES
|
[27]
|
|
PART II
|
||
Item 5. MARKET FOR REGISTRANT'S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
|
[28]
|
|
Item 6. SELECTED FINANCIAL DATA
|
[30]
|
|
Item 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
|
[31]
|
|
Item 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
|
[39]
|
|
Item 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
|
[39]
|
|
Item 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
|
[39]
|
|
Item 9A. CONTROLS AND PROCEDURES
|
[39]
|
|
Item 9B. OTHER INFORMATION
|
[41]
|
|
PART III
|
||
Item 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
|
[42]
|
|
Item 11. EXECUTIVE COMPENSATION
|
[46]
|
|
Item 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
|
[63]
|
|
Item 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
|
[64]
|
|
Item 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
|
[64]
|
|
PART IV
|
||
Item 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
|
[65]
|
|
SIGNATURES
|
[68]
|
Technology
|
Product candidate
|
Indication(s)
|
Stage of Development
|
Doxorubicin conjugate
|
Aldoxorubicin
|
Soft Tissue Sarcoma
|
Pivotal Global Phase 3 ongoing
|
Small-Cell Lung Cancer
|
Global Phase 2b ongoing
|
||
Glioblastoma Multiforme
|
Phase 2 ongoing
|
||
Kaposi's Sarcoma
|
Phase 2 ongoing
|
||
Combination with ifosfamide
|
Phase 1b ongoing
|
||
Combination with gemcitabine
|
Phase 1b ongoing
|
||
LADR
TM
|
DK049
|
To be announced
|
Pre-clinical
|
LADR
TM
for albumin-binding drug conjugates
|
To be announced
|
To be announced
|
Pre-clinical
|
LADR
TM
for antibody-drug conjugates
|
To be announced
|
To be announced
|
Pre-clinical
|
·
|
after administration, aldoxorubicin rapidly forms a covalent bond to circulating albumin through an acid-sensitive linker;
|
·
|
circulating albumin preferentially accumulates in tumors, bypassing concentration in other non-tumor sites, including the heart, liver and gastrointestinal tract due to a mechanism called "Enhanced Permeability and Retention by Solid Tumors";
|
·
|
once albumin-bound aldoxorubicin is taken up by the tumor, the acidic environment within the tumor and in the cancer cells themselves causes cleavage of the acid-sensitive linker; and
|
·
|
free doxorubicin is then released in the tumor.
|
·
|
commercially reasonable royalties based on a percentage of net sales (as defined in the agreement);
|
·
|
a percentage of any non-royalty sub-licensing income (as defined in the agreement); and
|
·
|
milestones of $1 million for each additional final marketing approval that we obtain.
|
· | fund our clinical trials and pursue regulatory approval of aldoxorubicin and fund development of product candidates based on our LADR™ technology; |
· | expand our research and development activities; |
· | finance our general and administrative expenses; |
· | acquire or license new technologies; |
· | prepare, file, prosecute, maintain, enforce and defend our patent and other proprietary rights; and |
· | develop and implement sales, marketing and distribution capabilities to successfully commercialize any product for which we obtain marketing approval and choose to market ourselves. |
· | difficulty in enrolling patients in conformity with required protocols or projected timelines; |
· | requirements for clinical trial design imposed by the FDA; |
· | unexpected adverse reactions by patients in trials; |
· | difficulty in obtaining clinical supplies of the product; |
· | changes in or our inability to comply with FDA or foreign governmental product testing, manufacturing or marketing requirements; |
· | regulatory inspections of clinical trials or manufacturing facilities, which may, among other things, require us or our manufacturers or licensees to undertake corrective action or suspend or terminate the affected clinical trials if investigators find them not to be in compliance with applicable regulatory requirements; |
· | inability to generate statistically significant data confirming the safety and efficacy of the product being tested; |
· | modification of the product during testing; and |
· | reallocation of our limited financial and other resources to other clinical programs. |
· | restrictions on the marketing or manufacturing of the product, withdrawal of the product from the market, or voluntary or mandatory product recalls; |
· | fines, warning letters or holds on clinical trials; |
· | refusal by the FDA to approve pending applications or supplements to approved applications filed by us or our strategic partners, or suspension or revocation of product license approvals; |
· | product seizure or detention, or refusal to permit the import or export of products; and |
· | injunctions or the imposition of civil or criminal penalties. |
· | obtaining regulatory approval to commence a trial; |
· | reaching agreement on acceptable terms with prospective contract research organizations, or CROs, and clinical trial sites, the terms of which can be subject to extensive negotiation and may vary significantly among different CROs and clinical trial sites; |
· | obtaining institutional review board approval at each clinical trial site; |
· | recruiting suitable patients to participate in a trial; |
· | having patients complete a trial or return for post-treatment follow-up; |
· | clinical trial sites deviating from trial protocol or dropping out of a trial; |
· | adding new clinical trial sites; or |
· | manufacturing sufficient quantities of product candidate for use in clinical trials. |
· | If our product candidates receive marketing approval, the FDA could require us to adopt a Risk Evaluation and Mitigation Strategy to ensure that the benefits of any approved product candidate outweigh its risks; |
· | regulatory authorities may withdraw approvals of such product; |
· | regulatory authorities may require additional warnings on the label; |
· | we may be required to create a medication guide outlining the risks of such side effects for distribution to patients; |
· | we could be sued and held liable for harm caused to patients; and |
· | our reputation may suffer. |
· | we may become involved in time-consuming and expensive litigation, even if the claim is without merit; |
· | we may become liable for substantial damages for past infringement if a court decides that our technology infringes a competitor's patent; |
· | a court may prohibit us from selling or licensing our product without a license from the patent holder, which may not be available on commercially acceptable terms, if at all, or which may require us to pay substantial royalties or grant cross licenses to our patents; and |
· | we may have to redesign our product candidates or technology so that it does not infringe patent rights of others, which may not be possible or commercially feasible. |
· | they are "incidental" to a physician's services; |
· | they are "reasonable and necessary" for the diagnosis or treatment of the illness or injury for which they are administered according to accepted standard of medical practice; |
· | they are not excluded as immunizations; and |
· | they have been approved by the FDA. |
· | the federal Anti-Kickback Statute, which prohibits, among other things, any person from knowingly and willfully offering, soliciting, receiving or providing remuneration, directly or indirectly, to induce either the referral of an individual, for an item or service or the purchasing or ordering of a good or service, for which payment may be made under federal healthcare programs such as the Medicare and Medicaid programs; |
· | the federal False Claims Act, which prohibits, among other things, individuals or entities from knowingly presenting, or causing to be presented, false claims, or knowingly using false statements, to obtain payment from the federal government, and which may apply to entities that provide coding and billing advice to customers; |
· | federal criminal laws that prohibit executing a scheme to defraud any healthcare benefit program or making false statements relating to healthcare matters; |
· | the federal physician sunshine requirements under the Affordable Care Act, which requires manufacturers of drugs, devices, biologics, and medical supplies to report annually to the Centers for Medicare & Medicaid Services information related to payments and other transfers of value to physicians, other healthcare providers, and teaching hospitals, and ownership and investment interests held by physicians and other healthcare providers and their immediate family members; |
· | the federal Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act, which governs the conduct of certain electronic healthcare transactions and protects the security and privacy of protected health information; and |
· | state law equivalents of each of the above federal laws, such as anti-kickback and false claims laws which may apply to items or services reimbursed by any third-party payor, including commercial insurers; state laws that require pharmaceutical companies to comply with the pharmaceutical industry's voluntary compliance guidelines and the applicable compliance guidance promulgated by the federal government, or otherwise restrict payments that may be made to healthcare providers and other potential referral sources; state laws that require drug manufacturers to report information related to payments and other transfers of value to physicians and other healthcare providers or marketing expenditures; and state laws governing the privacy and security of health information in certain circumstances, many of which differ from each other in significant ways and may not have the same effect, thus complicating compliance efforts. |
· | succeed in developing competitive products sooner than us or our strategic partners or licensees; |
· | obtain FDA or foreign governmental approvals for their products before we can obtain approval of any of our products; |
· | obtain patents that block or otherwise inhibit the development and commercialization of our product candidate candidates; |
· | develop products that are safer or more effective than our products; |
· | devote greater resources than us to marketing or selling products; |
· | introduce or adapt more quickly than us to new technologies and other scientific advances; |
· | introduce products that render our products obsolete; |
· | withstand price competition more successfully than us or our strategic partners or licensees; |
· | negotiate third-party strategic alliances or licensing arrangements more effectively than us; and |
· | take better advantage than us of other opportunities. |
· | commercially reasonable royalties based on a percentage of net sales (as defined in the agreement); |
· | a percentage of any non-royalty sub-licensing income (as defined in the agreement); and |
· | milestones of $1,000,000 for each additional final marketing approval that we might obtain. |
· | foreign regulatory requirements that could restrict or limit our ability to conduct our clinical trials; |
· | administrative burdens of conducting clinical trials under multiple foreign regulatory schema; |
· | foreign exchange fluctuations; |
· | diminished protection of intellectual property in some countries; and |
· | possible nationalization and expropriation. |
· | In addition, there may be changes to our business and political position if there is instability, disruption or destruction in a significant geographic region, regardless of cause, including war, terrorism, riot, civil insurrection or social unrest, and natural or man-made disasters, including famine, flood, fire, earthquake, storm or disease, which could seriously harm the development of our current operating strategy. |
· | difficulties, complications, delays and other unanticipated factors in connection with the development of new drugs; |
· | competition from companies that have substantially greater assets and financial resources than we have; |
· | our ability to anticipate and adapt to a competitive market and rapid technological developments; |
· | our need to rely on multiple levels of complex financing agreements with outside funding due to the length of drug development cycles and governmental approved protocols associated with the pharmaceutical industry; and |
· | our dependence upon key scientific personnel, including Felix Kratz, Ph.D., our Vice President of Drug Discovery and Andre Warnecke, Ph.D., our Senior Director of Drug Discovery. |
· | announcements of interim or final results of our clinical trials or our drug discovery activities; |
· | announcements of regulatory developments or technological innovations by us or our competitors; |
· | changes in our relationship with our licensors and other strategic partners; |
· | our quarterly operating results; |
· | litigation involving or affecting us; |
· | shortfalls in our actual financial results compared to our guidance or the forecasts of stock market analysts; |
· | developments in patent or other technology ownership rights; |
· | acquisitions or strategic alliances by us or our competitors; |
· | public concern regarding the safety of our products; and |
· | government regulation of drug pricing. |
High
|
Low
|
|||||||
Fiscal Year 2015:
|
||||||||
Fourth Quarter
|
$
|
3.41
|
$
|
2.32
|
||||
Third Quarter
|
$
|
4.20
|
$
|
1.98
|
||||
Second Quarter
|
$
|
5.42
|
$
|
3.30
|
||||
First Quarter
|
$
|
3.88
|
$
|
2.51
|
||||
Fiscal Year 2014:
|
||||||||
Fourth Quarter
|
$
|
3.20
|
$
|
2.08
|
||||
Third Quarter
|
$
|
4.25
|
$
|
2.54
|
||||
Second Quarter
|
$
|
5.46
|
$
|
2.78
|
||||
First Quarter
|
$
|
8.35
|
$
|
3.15
|
Plan Category
|
(a)
Number of Securities
to be Issued Upon
Exercise of
Outstanding Options,
Warrants and Rights
|
(b)
Weighted-Average
Exercise Price of
Outstanding Options,
Warrants and Rights
|
Number of Securities
Remaining Available
for Issuance Under
Equity
Compensation
Plans (Excluding
Securities Reflected
in Column (a))
|
|||||||||
Equity compensation plans approved by our security holders:
|
||||||||||||
2000 Long-Term Incentive Plan
|
593,615
|
$
|
7.15
|
—
|
||||||||
2008 Stock Incentive Plan
|
13,580,251
|
2.91
|
6,419,749
|
|||||||||
Equity compensation plans not approved by our security holders:
|
||||||||||||
Outstanding warrants (1)
|
7,225,472
|
4.28
|
—
|
|||||||||
Total
|
21,399,338
|
$
|
3.49
|
6,419,749
|
(1) | The warrants shown were issued in discrete transactions from time to time as compensation for services rendered by consultants, advisors or other third parties, and do not include warrants sold in capital-raising transactions. The material terms of such warrants were determined based upon arm's-length negotiations with the service providers. The warrant exercise prices approximate the market price of our common stock at or about the date of grant, and the warrant terms range from two to ten years from the grant date. The warrants contain customary anti-dilution adjustments in the event of a stock split, reverse stock split, reclassification or combination of our outstanding common stock and similar events and certain of the warrants contain anti-dilution adjustments triggered by other corporate events, such as dividends. On August 1, 2016, 6,371,899 warrants priced at $4.48 expire. |
December 31,
|
|||||
2011
|
2012
|
2013
|
2014
|
2015
|
|
CytRx Corporation
|
27.72
|
26.45
|
88.68
|
38.76
|
37.48
|
The NASDAQ Stock Market Index
|
99.17
|
116.48
|
163.21
|
187.27
|
200.31
|
The NASDAQ Pharmaceutical Index
|
107.04
|
142.41
|
234.79
|
306.46
|
324.29
|
2015
|
2014
|
2013
|
2012
|
2011
|
||||||||||||||||
Statement of Operations Data:
|
||||||||||||||||||||
Revenue
|
||||||||||||||||||||
Licensing revenue
|
$
|
100,000
|
$
|
100,000
|
$
|
300,000
|
$
|
100,000
|
$
|
250,000
|
||||||||||
Total revenue
|
$
|
100,000
|
$
|
100,000
|
$
|
300,000
|
$
|
100,000
|
$
|
250,000
|
||||||||||
Net loss applicable to common stockholders
|
$
|
(58,587,000
|
)
|
$
|
(30,118,000
|
)
|
$
|
(47,485,000
|
)
|
$
|
(17,964,000
|
)
|
$
|
(14,425,000
|
)
|
|||||
Basic and diluted loss per share applicable to common stock
|
$
|
(0.97
|
)
|
$
|
(0.55
|
)
|
$
|
(1.44
|
)
|
$
|
(0.78
|
)
|
$
|
(0.80
|
)
|
|||||
Balance Sheet Data:
|
||||||||||||||||||||
Cash, cash equivalents and short-term investments
|
$
|
57,297,000
|
$
|
77,840,000
|
$
|
38,568,000
|
$
|
38,344,000
|
$
|
36,046,000
|
||||||||||
Total assets
|
$
|
67,024,000
|
$
|
85,693,000
|
$
|
41,500,000
|
$
|
40,232,000
|
$
|
37,854,000
|
||||||||||
Total stockholders' equity
|
$
|
44,079,000
|
$
|
67,911,000
|
$
|
10,661,000
|
$
|
30,166,000
|
$
|
24,254,000
|
Payments due by periods as of December 31, 2015
|
||||||||||||||||||||
Contractual Obligations
|
Total
|
Year 1
|
Years 2 and 3
|
Years 4 and 5
|
Years 6 and beyond
|
|||||||||||||||
Operating lease obligations
|
$
|
1,401
|
$
|
318
|
$
|
746
|
$
|
337
|
$
|
—
|
||||||||||
Employment obligations
|
5,761
|
3,647
|
2,114
|
—
|
—
|
|||||||||||||||
R&D contract obligations
|
36,689
|
27,940
|
8,738
|
11
|
—
|
|||||||||||||||
Total contractual obligations
|
$
|
43,851
|
$
|
31,905
|
$
|
11,598
|
$
|
348
|
$
|
—
|
(1)
|
Operating leases are primarily our facility lease obligations, as well as equipment and software lease obligations with third party vendors.
|
(2)
|
Employment agreements include management contracts that provide for minimum salary levels, adjusted periodically at the discretion of our Compensation Committee, as well as minimum bonuses and employee benefits, in some cases.
|
(3)
|
Research and development obligations relate primarily to our clinical trials. All of these obligations are cancelable upon notice without liability to us.
|
Years Ended December 31,
|
||||||||||||
2015
|
2014
|
2013
|
||||||||||
(In thousands)
|
||||||||||||
Research and development expenses
|
$
|
41,805
|
$
|
34,203
|
$
|
17,072
|
||||||
Non-cash research and development expenses
|
—
|
1,543
|
186
|
|||||||||
Employee stock and stock option expense
|
1,591
|
932
|
242
|
|||||||||
Total
|
$
|
43,396
|
$
|
36,678
|
$
|
17,500
|
Year Ended December 31,
|
||||||||||||
2015
|
2014
|
2013
|
||||||||||
(In thousands)
|
||||||||||||
General and administrative expenses
|
$
|
13,871
|
$
|
8,724
|
$
|
6,717
|
||||||
Stock, stock option and warrant expenses to non-employees and consultants
|
226
|
1,737
|
858
|
|||||||||
Employee stock option expense
|
5,568
|
2,384
|
2,699
|
|||||||||
Total
|
$
|
19,665
|
$
|
12,845
|
$
|
10,274
|
·
|
Our internal control over a significant and unusual non-cash transaction was not designed appropriately to ensure that the related accounting conclusions were sufficiently reviewed for compliance with generally accepted accounting principles.
|
Name
|
Age
|
Class of
Director(1)
|
Position
|
Steven A. Kriegsman
|
74
|
II
|
Director, Chairman of the Board and Chief Executive Officer
|
Louis Ignarro, Ph.D.
|
74
|
I
|
Director (2) (3) (4)
|
Joseph Rubinfeld, Ph.D.
|
83
|
I
|
Lead Director (2) (3) (4).(5)
|
Eric Selter
|
58
|
III
|
Director (2) (4)
|
Anita J. Chawla, Ph.D.
|
57
|
II
|
Director (3) (4) (5)
|
Cheryl Cohen
|
50
|
III
|
Director (2) (5)
|
John Y. Caloz
|
64
|
—
|
Chief Financial Officer
|
Daniel J. Levitt, M.D., Ph.D.
|
68
|
—
|
Executive Vice President and Chief Medical Officer
|
Olivia Ware
|
59
|
—
|
Chief Commercial Officer
|
Scott Wieland, Ph.D.
|
56
|
—
|
Senior Vice President-Drug Development
|
Benjamin S. Levin
|
39
|
—
|
Senior Vice President, General Counsel and Corporate Secretary
|
David J. Haen
|
37
|
—
|
Vice President – Business Development and Investor Relations
|
(1) | Our Class I directors serve until the 2016 annual meeting of stockholders, our Class II directors serve until the 2017 annual meeting of stockholders, and our Class III directors serves until the 2018 annual meeting of stockholders. |
(2) | Members of our Audit Committee. Mr. Selter is Chairman of the Committee. |
(3) | Members of our Nominating and Corporate Governance Committee. Dr. Ignarro is Chairman of the Committee. |
(4) | Members of our Compensation Committee. Dr. Rubinfeld is Chairman of the Committee. |
(5) | Members of our Strategy Committee. Ms. Cohen is Chairwoman of the Committee |
· | Complete enrollment in the aldoxorubicin Phase 3 STS pivotal clinical trial; |
· | Present Phase 2 GBM and Kaposi's sarcoma clinical studies at scientific meetings; |
· | Initiate the validation activities in manufacturing; |
· | Publish results of the Phase 2b STS study in a scientific journal; |
· | Identify an in vivo proof of concept for one new drug candidate based on novel linker technologies in the pre-clinical laboratory in Freiburg, Germany; and |
· | Raise additional capital. |
· | base salary; |
· | annual bonuses; and |
· | equity incentive compensation. |
· | the negotiated terms of each executive's employment agreement, if any; |
· | each executive's individual performance; |
· | an internal review of the executive's compensation, both individually and relative to other named executive officers; and |
· | to a lesser extent, base salaries paid by comparable companies. |
· | links the creation of stockholder value with executive compensation; |
· | provides increased equity ownership by executives; |
· | functions as a retention tool, because of the vesting features included in all options granted by the Compensation Committee; and |
· | helps us to maintain competitive levels of total compensation. |
Joseph Rubinfeld, Ph.D.
Chairman
|
Louis Ignarro, Ph.D.
|
Eric Selter
|
Anita Chawla, Ph.D.
|
Name and Principal Position
|
Year
|
Salary ($)
|
Bonus
($)(1)
|
Option
Awards
($) (2)(4)
|
All Other
Compensation ($)(3)
|
Total
($)
|
Steven A. Kriegsman
|
||||||
Chief Executive Officer
|
2015
|
850,000
|
150,000
|
1,593,000
|
13,700
|
2,606,700
|
2014
|
825,000
|
450,000
|
903,000
|
13,700
|
2,191,700
|
|
2013
|
700,000
|
330,000
|
1,714,150
|
13,700
|
2,757,850
|
|
John Y. Caloz
|
||||||
Chief Financial Officer and Treasurer
|
2015
|
375,000
|
135,000
|
477,900
|
—
|
987,900
|
2014
|
350,000
|
100,000
|
301,000
|
—
|
751,000
|
|
2013
|
350,000
|
100,000
|
256,800
|
—
|
706,800
|
|
Daniel Levitt, M.D., Ph.D.
|
||||||
Executive Vice President and Chief
|
2015
|
625,000
|
150,000
|
796,500
|
—
|
1,571,500
|
Medical Officer
|
2014
|
525,000
|
300,000
|
602,000
|
—
|
1,427,000
|
2013
|
525,000
|
300,000
|
1,483,000
|
—
|
2,308,000
|
|
Benjamin S. Levin General Counsel,
|
||||||
General Counsel, Senior Vice President and
|
2015
|
365,000
|
135,000
|
477,900
|
—
|
977,900
|
Secretary
|
2014
|
350,000
|
100,000
|
301,000
|
—
|
751,000
|
2013
|
350,000
|
150,000
|
513,600
|
—
|
1,013,600
|
|
Scott Wieland, Ph.D.
|
||||||
Senior Vice President – Drug Development
|
2015
|
400,000
|
75,000
|
159,300
|
—
|
634,300
|
2014
|
350,000
|
300,000
|
301,000
|
—
|
951,000
|
|
2013
|
350,000
|
100,000
|
256,800
|
—
|
706,800
|
(1) | Bonuses to the named executive officers reported above were paid in December of the applicable year, except that Dr. Levitt received $75,000 of his annual bonus in June, and Mr. Kriegsman received a retention bonus in connection with the extension of his employment agreement in March 2014. |
(2) | The values shown in this column represent the aggregate grant date fair value of equity-based awards granted during the fiscal year, in accordance with ASC 718, " Share Based-Payment." The fair value of the stock options at the date of grant was estimated using the Black-Scholes option-pricing model, based on the assumptions described in Note 13 of the Notes to Financial Statements included in this Annual Report. |
(3) | Represents life insurance premiums. |
(4) | In the case of Dr. Levitt, for 2013, this amount includes the aggregate grant date fair value of a restricted stock award granted for services during 2013, as well as the aggregate grant date fair value of an equity-based award granted for that year. The restricted stock awarded for 2013 was issued in January 2014. |
Name
|
Grant Date
|
All Other
Option Awards
(# of CytRx
Shares)
|
Exercise Price of
Option Awards
($/Share)
|
Grant Date
Fair Value of
Stock and
Option Awards
|
||||||||
Steven A. Kriegsman
|
12/15/2015
|
1,000,000
|
(1)
|
$
|
2.44
|
$
|
1,593,000
|
|||||
Chief Executive Officer
|
||||||||||||
John Y. Caloz
|
12/15/2015
|
300,000
|
(1)
|
$
|
2.44
|
$
|
477,900
|
|||||
Chief Financial Officer and Treasurer
|
||||||||||||
Daniel Levitt, M.D., Ph.D.
|
12/15/2015
|
500,000
|
(1)
|
$
|
2.44
|
$
|
796,500
|
|||||
Executive Vice President and Chief Medical Officer
|
||||||||||||
Benjamin S. Levin
|
12/15/2015
|
300,000
|
(1)
|
$
|
2.44
|
$
|
477,900
|
|||||
General Counsel, Senior Vice President and Secretary
|
||||||||||||
Scott Wieland, Ph.D.
|
12/15/2015
|
100,000
|
(1)
|
$
|
2.44
|
$
|
159,000
|
|||||
Senior Vice President – Drug Development
|
(1) | Options vest in 36 equal monthly installments, subject to the named executive officer's remaining in our continuous employ through such dates, except that in the case of each of Mr. Kriegsman and Dr. Levitt, the unvested options will vest, in full, upon termination of his employment by us without "cause", upon FDA approval to market aldoxorubicin, or by reason of his "disability" or by him for "good reason" or upon his death. |
· | designate participants; |
· | determine the types of awards to grant to each participant and the number, terms and conditions of any award; |
· | establish, adopt or revise any rules and regulations as it may deem necessary or advisable to administer the Plan; and |
· | make all other decisions and determinations that may be required under, or as the Compensation Committee deems necessary or advisable to administer, the Plan. |
Option Awards
|
|||||||||||||||||||
Number of
Securities
Underlying
Unexercised
Options
(#)
|
|||||||||||||||||||
Name
|
Exercisable
|
Unexercisable
|
Option Exercise
Price (2)
($)
|
Option
Expiration Date
|
|||||||||||||||
Steven A. Kriegsman
|
—
|
(1
|
)
|
1,000,000
|
2.44
|
12/14/25
|
|||||||||||||
President and Chief Executive Officer
|
200,000
|
(1
|
)
|
400,000
|
2.15
|
12/14/24
|
|||||||||||||
616,667
|
(2
|
)
|
308,333
|
4.66
|
12/09/23
|
||||||||||||||
67,995
|
(1
|
)
|
6,181
|
2.46
|
3/07/23
|
||||||||||||||
500,000
|
—
|
1.83
|
12/10/22
|
||||||||||||||||
142,857
|
—
|
2.17
|
12/11/21
|
||||||||||||||||
107,143
|
—
|
7.07
|
12/14/20
|
||||||||||||||||
107,143
|
—
|
7.35
|
12/10/19
|
||||||||||||||||
42,857
|
—
|
2.59
|
11/21/18
|
||||||||||||||||
64,286
|
—
|
8.05
|
4/07/18
|
||||||||||||||||
50,000
|
—
|
8.05
|
4/18/17
|
||||||||||||||||
28,571
|
—
|
8.05
|
6/16/16
|
||||||||||||||||
John Y. Caloz
|
—
|
(1
|
)
|
300,000
|
2.44
|
12/14/25
|
|||||||||||||
Chief Financial Officer and Treasurer
|
66,667
|
(1
|
)
|
133,333
|
2.15
|
12/14/24
|
|||||||||||||
100,000
|
(2
|
)
|
50,000
|
4.66
|
12/09/23
|
||||||||||||||
100,000
|
—
|
1.83
|
12/10/22
|
||||||||||||||||
28,571
|
—
|
2.17
|
12/11/21
|
||||||||||||||||
7,143
|
—
|
7.07
|
12/14/20
|
||||||||||||||||
17,857
|
—
|
7.35
|
12/10/19
|
||||||||||||||||
7,143
|
—
|
2.10
|
01/02/19
|
||||||||||||||||
7,143
|
—
|
2.59
|
11/21/18
|
||||||||||||||||
3,571
|
—
|
8.05
|
04/07/18
|
||||||||||||||||
3,571
|
—
|
8.05
|
12/06/17
|
||||||||||||||||
10,714
|
—
|
8.05
|
10/26/17
|
||||||||||||||||
Daniel Levitt, M.D., Ph.D.
|
—
|
(1
|
)
|
500,000
|
2.44
|
12/14/25
|
|||||||||||||
Executive Vice President and Chief Medical Officer
|
133,333
|
(1
|
)
|
266,667
|
2.15
|
12/14/24
|
|||||||||||||
|
44,521
|
(3
|
)
|
—
|
n/
|
a
|
n/
|
||||||||||||
333,333
|
(1
|
166,667
|
2.39
|
12/09/23
|
|||||||||||||||
46,751
|
(3
|
)
|
—
|
n/
|
a
|
n/
|
|||||||||||||
71,429
|
—
|
2.17
|
12/11/21
|
||||||||||||||||
35,714
|
—
|
7.07
|
12/14/20
|
||||||||||||||||
71,429
|
—
|
7.42
|
10/11/19
|
||||||||||||||||
Benjamin S. Levin
|
—
|
(1
|
)
|
300,000
|
2.44
|
12/14/25
|
|||||||||||||
General Counsel, Sr. Vice President — Legal Affairs and Secretary
|
66,667
|
(1
|
)
|
133,333
|
2.39
|
12/14/24
|
|||||||||||||
|
100,000
|
(2
|
)
|
200,000
|
4.66
|
12/09/23
|
|||||||||||||
100,000
|
(1
|
)
|
—
|
1.83
|
12/10/22
|
||||||||||||||
35,714
|
—
|
2.17
|
12/11/21
|
||||||||||||||||
14,286
|
—
|
7.07
|
12/14/20
|
||||||||||||||||
14,286
|
—
|
7.35
|
12/10/19
|
||||||||||||||||
14,286
|
—
|
2.59
|
11/21/18
|
||||||||||||||||
14,286
|
—
|
8.05
|
4/07/18
|
||||||||||||||||
14,286
|
—
|
8.05
|
4/18/17
|
||||||||||||||||
12,857
|
—
|
8.05
|
6/16/16
|
||||||||||||||||
Scott Wieland, Ph.D.
|
—
|
(1
|
)
|
100,000
|
2.44
|
12/14/25
|
|||||||||||||
Senior Vice President – Drug Development
|
66,667
|
(1
|
)
|
133,333
|
2.15
|
12/14/24
|
|||||||||||||
100,000
|
(1
|
)
|
50,000
|
2.39
|
12/09/23
|
||||||||||||||
100,000
|
(1
|
)
|
—
|
1.83
|
12/10/22
|
||||||||||||||
28,571
|
—
|
2.17
|
12/11/21
|
||||||||||||||||
14,286
|
—
|
7.07
|
12/14/20
|
||||||||||||||||
14,286
|
—
|
7.35
|
12/10/19
|
||||||||||||||||
4,286
|
—
|
3.99
|
7/01/18
|
||||||||||||||||
7,143
|
—
|
2.59
|
11/21/18
|
||||||||||||||||
14,286
|
—
|
8.05
|
4/18/17
|
||||||||||||||||
3,571
|
—
|
8.05
|
12/06/17
|
(1) | These options vest in 36 equal monthly installments, subject to the named executive officer's remaining in our continuous employ through such dates. All stock options held by Mr. Kriegsman and Dr. Levitt provide for (a) vesting, in full, of the stock options in the event of, and upon, FDA approval to market aldoxorubicin and in the event of the termination of Dr. Levitt's employment by us without "cause" or due to his "disability," his resignation for "good reason" or his death and (b) the extended exercisability for their full term of all vested options in the event of the termination of his employment other than a termination by us with "cause" or his resignation without "good reason." |
(2) | These options were re-priced from $2.39 to $4.66 on June 1, 2015, with no change to the expiration date of the options. |
(3) | Represents restricted stock fully-vested at December 31, 2015. On December 31, 2012, Dr. Levitt was granted 100,000 shares of restricted stock, and an additional 100,000 shares of restricted stock were awarded to him in December 2013 and issued in January 2014. We reacquired 108,728 shares in order to satisfy income tax withholding obligations, as permitted under the agreement. No restricted stock was granted in 2014 or 2015. |
Termination w/o Cause or, for Mr. Kriegsman and Dr. Levitt, for Good Reason
|
|||||||
Name
|
Benefit | Note |
Before Change in
Control ($)
|
After Change in
Control ($)
|
Death ($)
|
Disability ($)
|
Change in
Control ($)
|
Steven A. Kriegsman
|
Severance Payment | (4) |
1,700,000
|
2,550,000
|
1,700,000
|
1,700,000
|
—
|
Chief Executive Officer
|
Stock Options | (1) |
311,000
|
311,000
|
311,000
|
311,000
|
311,000
|
|
Health Insurance | (2) |
85,800
|
128,600
|
85,800
|
85,800
|
—
|
Life Insurance |
27,400
|
41,100
|
—
|
27,400
|
—
|
||
Bonus |
300,000
|
450,000
|
300,000
|
300,000
|
—
|
||
Tax Gross Up | (3) |
—
|
—
|
—
|
—
|
—
|
|
John Y. Caloz
|
Severance Payment | (4) |
200,000
|
400,000
|
—
|
—
|
—
|
Chief Financial Officer
|
Stock Options | (1) |
—
|
67,000
|
—
|
—
|
67,000
|
Daniel Levitt, M.D., Ph.D.
|
Severance Payment | (4) |
625,000
|
1,250,000
|
—
|
—
|
—
|
Executive Vice President and Chief Medical Officer
|
Stock Options | (1) |
—
|
281,700
|
—
|
—
|
281,700
|
|
Health Insurance |
3,700
|
7,400
|
—
|
—
|
—
|
|
|
|||||||
Benjamin S. Levin
|
Severance Payment | (4) |
182,500
|
365,000
|
—
|
—
|
—
|
General Counsel, Senior Vice President and Secretary
|
Stock Options | (1) |
—
|
96,300
|
—
|
—
|
96,300
|
Scott Wieland, Ph.D.
|
Severance Payment | (4) |
200,000
|
400,000
|
—
|
—
|
—
|
Senior Vice President – Drug Development
|
Stock Options | (1) |
—
|
100,700
|
—
|
—
|
100,700
|
|
(1) | Represents the aggregate value of stock options that vest and become exercisable immediately upon each of the triggering events listed as if such events took place on December 31, 2015, determined by the aggregate difference between the stock price as of December 31, 2015 and the exercise prices of the underlying options. |
(2) | Represents the cost as of December 31, 2015 for benefits provided to Mr. Kriegsman for a period of two years, or in the event of a change in control, a period of three years. |
(3) | Each of Mr. Kriegsman's and Dr. Levitt's employment agreements provides that if a change in control (as defined in our 2000 Plan or our 2008 Plan) occurs during the term of the employment agreement, and if, during the term and within two years after the date on which the change in control occurs, Mr. Kriegsman's or Dr. Levitt's employment, respectively, is terminated by us without "cause" or by him for "good reason" (each as defined in their respective employment agreement), then, to the extent that any payment or distribution of any type by us to or for the benefit of Mr. Kriegsman or Dr. Levitt, respectively, resulting from the termination of their respective employment is or will be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended, we will pay Mr. Kriegsman or Dr. Levitt, respectively, prior to the time the excise tax is payable with respect to any such payment (through withholding or otherwise), an additional amount that, after the imposition of all income, employment, excise and other taxes, penalties and interest thereon, is equal to the sum of (i) the excise tax on such payments plus (ii) any penalty and interest assessments associated with such excise tax. Based on each of Mr. Kriegsman's and Dr. Levitt's past compensation and the estimated payment that would result from a termination of employment following a change in control, we have estimated that a gross-up payment would not be required. "Good reason" as defined in each of Mr. Kriegsman's and Dr. Levitt's employment agreement includes any change in Mr. Kriegsman's or Dr. Levitt's duties or title, as applicable, that are inconsistent with their respective positions. |
(4) | Severance payments are prescribed by our employment agreements with the named executive officers and represent a factor of their annual base compensation ranging from six months to three years. |
Name (1)
|
Fees Earned or Paid in Cash ($)
(2)
|
Option Awards
($) (3)
|
Total ($)
|
|||||||||
Joseph Rubinfeld, Ph.D., Lead Director
|
111,750
|
368,300
|
480,050
|
|||||||||
Louis Ignarro, Ph.D., Director
|
68,750
|
368,300
|
437,050
|
|||||||||
Anita Chawla, Ph.D., Director
|
51,250
|
843,500
|
894,750
|
|||||||||
Eric Selter, Director
|
57,500
|
1,028,360
|
1,085,860
|
|||||||||
Cheryl Cohen, Director
|
47,000
|
976,700
|
1,023,700
|
|||||||||
Richard Wennekamp, Director (4)
|
44,250
|
—
|
44,250
|
(1) | Steven A. Kriegsman does not receive additional compensation for his role as Chairman of the Board. For information relating to Mr. Kriegsman's compensation as Chief Executive Officer, see the Summary Compensation Table above. |
(2) | The amounts in this column represent cash payments made to Non-Employee Directors for annual retainer fees, committee and/or chairmanship fees and meeting fees during the year. |
(3) | In March, April and May, 2015, respectively, we granted stock options to purchase 180,000 shares of our common stock to newly-appointed non-employee directors, Anita Chawla, Ph.D., Eric Selter and Cheryl Cohen, respectively, at an exercise price equal to the current market value of our common stock on the date of grant, which had an aggregate grant date fair value respectively of $475,200, $660,060 and $608,400, calculated in accordance with FASB ASC Topic 718. The amount recognized for these awards was calculated using the Black Scholes option-pricing model, and reflect grants from our 2008 Long-Term Incentive Plan. In December 2015, we granted stock options to purchase 180,000 shares of our common stock to each non-employee director at an exercise price equal to the current market value of our common stock on the date of grant, which had an aggregate grant date fair value of $368,300. The amount recognized for these awards was calculated using the Black Scholes option-pricing model, and reflect grants from our 2008 Long-Term Incentive Plan, which is described in Note 12 of the Notes to Financial Statements. |
(4) | Richard Wennekamp's term as Director ended in June, 2015. |
Shares of
Common Stock
|
||||||||||
Name and Address of Beneficial Owner
|
Note |
Number
|
Percent
|
|||||||
Named Executive Officers and Directors
|
# | |||||||||
Louis Ignarro, Ph.D.
|
(1) |
692,416
|
*
|
|||||||
Steven A. Kriegsman
|
(2) |
2,871,088
|
4.3
|
%
|
||||||
Joseph Rubinfeld, Ph.D.
|
(3) |
759,285
|
*
|
|||||||
Eric Selter
|
(4) |
545,785
|
*
|
|||||||
Anita J. Chawla, Ph.D.
|
(5) |
360,000
|
*
|
|||||||
Cheryl Cohen
|
(6) |
360,000
|
*
|
|||||||
Dan Levitt, M.D., Ph.D.
|
(7) |
828,574
|
1.3
|
%
|
||||||
John Y. Caloz
|
(8) |
393,033
|
*
|
|||||||
Scott Wieland, Ph.D.
|
(9) |
378,095
|
*
|
|||||||
Benjamin S. Levin
|
(10) |
624,005
|
*
|
|||||||
All executive officers and directors as a group (ten persons)
|
(11) |
7,812,282
|
11.8
|
%
|
||||||
Name and Address of 5% Beneficial Owners
|
||||||||||
QVT Financial LP
|
(12) |
5,850,399
|
8.8
|
%
|
||||||
Gene Z. Salkind, M.D.
|
(13) |
4,963,597
|
7.5
|
%
|
||||||
Scott Patterson, D.D.S.
|
(14) |
4,645,904
|
7.0
|
%
|
||||||
Blackrock, Inc.
|
(15) |
3,434,433
|
5.2
|
%
|
||||||
(1) | Includes 679,285 shares subject to options or warrants. |
(2) | Includes 2,273,977 shares subject to options or warrants. |
(3) | Includes 759,285 shares subject to options or warrants. |
(4) | Includes 519,642 shares subject to options or warrants. |
(5) | Includes 360,000 shares subject to options or warrants. |
(6) | Includes 360,000 shares subject to options or warrants. |
(6) | Includes 459,128 shares subject to options or warrants. |
(7) | Includes 723,016 shares subject to options or warrants. |
(8) | Includes 388,491 shares subject to options or warrants. |
(9) | Includes 378,096 shares subject to options or warrants. |
(10) | Includes 619,208 shares subject to options or warrants. |
(11) | Includes 4,650,602 shares subject to options or warrants. |
(12) | According to its Schedule 13G filed with the SEC, QVT Financial LP ("QVT Financial") is the investment manager for QVT Fund V LP and other private investment funds (collectively, the "Funds"). The Funds aggregately own 5,850,399 shares of Common Stock. Accordingly, QVT Financial may be deemed to be the beneficial owner of an aggregate amount of 5,850,399 shares of common stock, consisting of the shares owned by the Funds. QVT Financial GP LLC, as General Partner of QVT Financial, may be deemed to beneficially own the same number of shares of common stock reported by QVT Financial. QVT Associates GP LLC, as General Partner of the Funds, may be deemed to beneficially own the aggregate number of shares of common stock owned by the Funds, and accordingly, QVT Associates GP LLC may be deemed to be the beneficial owner of an aggregate amount of 5,850,399 shares of common stock. The principal business addresses for QVT Financial LP and QVT Financial GP LLC are 1177 Avenue of the Americas, 9th Floor, New York, New York 10036. |
(13) | Of the shares shown, Dr. Salkind has sole voting and dispositive power over 53,000 shares and shares voting and dispositive power with his wife, Catherine Salkind, over 4,910,597 shares. Mrs. Salkind may be deemed to beneficially own the shares shown. Dr. and Mrs. Salkind's address is 727 Welsh Road, Suite 108, Huntingdon Valley, Pennsylvania 19006. |
(14) | Based on his Schedule 13G filed with the SEC, the shares shown include 4,564,005 shares owned beneficially by Dr. Patterson and 81,899 shares owned beneficially by his wife, Nataliya V. Patterson. Dr. and Mrs. Patterson's address is 1703 Casino Tower, Av. Francia y Biarritz, Punta del Este 20100, Uruguay. |
(15) | Based on its Schedule 13G filed with the SEC. The principal business address for Blackrock, Inc. is 55 East 52nd Street, New York, New York 10022. |
· | that all related person transactions, all material terms of the transactions, and all the material facts as to the related person's direct or indirect interest in, or relationship to, the related person transaction must be communicated to the Audit Committee; and |
· | that all related person transactions, and any material amendment or modification to any related person transaction, be reviewed and approved or ratified by the Audit Committee, as required by NASDAQ Marketplace Rules. |
· | information provided by members of our board of directors in connection with the required annual evaluation of director independence; |
· | pertinent responses to the Directors' and Officers' Questionnaires submitted periodically by our officers and directors and provided to the Audit Committee by our management; |
· | background information on nominees for director provided by the Nominating and Corporate Governance Committee of our board of directors; and |
· | any other relevant information provided by any of our directors or officers. |
· | In connection with its review and approval or ratification, if appropriate, of any related person transaction, our Audit Committee is to consider whether the transaction will compromise standards included in our Code of Ethics. In the case of any related person transaction involving an outside director or nominee for director, the Audit Committee also is to consider whether the transaction will compromise the director's status as an independent director as prescribed in the NASDAQ Marketplace Rules. |
· | "related person" has the meaning given to such term in Item 404(a) of Securities and Exchange Commission Regulation S-K ("Item 404(a)"); and |
· | "related person transaction" means any transaction for which disclosure is required under the terms of Item 404(a) involving us and any related persons. |
Exhibit
Number
|
Description
|
Footnote
|
2.1
|
Agreement and Plan of Merger, dated as of June 6, 2008, among CytRx Corporation, CytRx Merger Subsidiary, Inc., Innovive Pharmaceuticals, Inc., and Steven Kelly
|
(l)
|
3.1
|
Restated Certificate of Incorporation of CytRx Corporation, as amended
|
(r)
|
3.2
|
Certificate of Amendment of Restated Certificate of Incorporation
|
(t)
|
3.3
|
Restated By-Laws of CytRx Corporation, as amended
|
(a)
|
4.1
|
Shareholder Protection Rights Agreement dated April 16, 1997 between CytRx Corporation and American Stock Transfer &Trust Company, as Rights Agent
|
(b)
|
4.2
|
Amendment No. 1 to Shareholder Protection Rights Agreement, dated February 11, 2002
|
(e)
|
4.3
|
Amendment No. 2 to Shareholder Protection Rights Agreement, dated March 30, 2007
|
(j)
|
4.5
|
Common Stock Purchase Warrant issued by CytRx Corporation to Alexander Capital, L.P.
|
|
4.6
|
Form of Common Stock Purchase Warrant issued by CytRx Corporation, dated August 1, 2011
|
(n)
|
10.1*
|
CytRx Corporation 2000 Long-Term Incentive Plan
|
(c)
|
10.2*
|
Amendment No. 1 to CytRx Corporation 2000 Long-Term Incentive Plan
|
(f)
|
10.3*
|
Amendment No. 2 to CytRx Corporation 2000 Long-Term Incentive Plan
|
(f)
|
10.4*
|
Amendment No. 3 to CytRx Corporation 2000 Long-Term Incentive Plan
|
(g)(3)
|
10.5*
|
Amendment No. 4 to CytRx Corporation 2000 Long-Term Incentive Plan
|
(g)(4)
|
10.6*
|
CytRx Corporation Amended and Restated 2008 Stock Incentive Plan
|
(s)
|
10.7*
|
First Amendment to Amended and Restated CytRx Corporation 2008 Stock Incentive Plan
|
(v)
|
10.8*
|
Second Amendment to Amended and Restated CytRx Corporation 2008 Stock Incentive Plan
|
(v)
|
10.9*
|
Third Amendment to Amended and Restated CytRx Corporation 2008 Stock Incentive Plan
|
w)
|
10.10*
|
Fourth Amendment to Amended and Restated CytRx Corporation 2008 Stock Incentive Plan
|
(x)
|
10.11*
|
Form of Non-qualified Stock Option for grants to non-employee directors under Amended and Restated 2008 Stock Incentive Plan.
|
|
10.12*
|
Form of Non-qualified Stock Option for grants to executive officers under Amended and Restated 2008 Stock Incentive Plan.
|
|
10.13*
|
Form of Non-qualified Stock Option for grants to Steven A. Kriegsman and Daniel J. Levitt, M.D., Ph.D., under Amended and Restated 2008 Stock Incentive Plan.
|
|
10.14*
|
Amendment No. 1 to Stock Option Agreements of Daniel J. Levitt, M.D., Ph.D., dated December 31, 2015.
|
|
10.15*
|
Amendment No. 1 to Stock Option Agreements (2000 Long-Term Incentive Plan) of Steven A. Kriegsman, dated March 8, 2016.
|
|
10.16*
|
Amendment No. 1 to Stock Option Agreements (2008 Stock Incentive Plan) of Steven A. Kriegsman, dated March 8, 2016
|
|
10.17†
|
License Agreement, dated December 7, 2001, by and between CytRx Corporation and Vical Incorporated
|
(d)
|
10.18
|
Office Lease between The Kriegsman Capital Group, LLC and Douglas Emmett Joint Venture, dated April 13, 2000
|
(g)(1)
|
10.19
|
Assignment, Assumption and Consent, effective July 1, 2003, by and among CytRx Corporation, The Kriegsman Capital Group, LLC and Douglas Emmett Joint Venture, concerning Office Lease dated April 13, 2000
|
(g)(2)
|
10.20
|
First Amendment to Office Lease dated October 14, 2005, by and between CytRx Corporation and Douglas Emmett 1993, LLC
|
(h)
|
10.21†
|
License Agreement dated April 17, 2006 between Innovive Pharmaceuticals, Inc. and KTB Tumorforschungs GmbH
|
(i)
|
10.22
|
Amendment dated March 14, 2014 to License Agreement between CytRx Corporation and KTB Tumorforschungs GmbH
|
(q)
|
10.23
|
Second Amendment to Office Lease dated June 30, 2008, by and between CytRx Corporation and Douglas Emmett 1993, LLC
|
(m)
|
10.24
|
Third Amendment to Office Lease dated December 1, 2009, by and between CytRx Corporation and Douglas Emmett 1993, LLC
|
(p)
|
10.25
|
Fourth Amendment to Office Lease dated February 10, 2014, by and between CytRx Corporation and Douglas Emmett 1993, LLC
|
(y)
|
10.26*
|
Employment Agreement datedDecember 31, 2015, between CytRx Corporation and Daniel J. Levitt, M.D., Ph.D.
|
|
10.27*
|
Employment Agreement dated December 31, 2015, between CytRx Corporation and Benjamin S. Levin
|
|
10.28*
|
Employment Agreement dated December 31, 2015, between CytRx Corporation and Scott Wieland
|
|
10.29*
|
Employment Agreement dated December 31, 2015 , between CytRx Corporation and John Y. Caloz
|
|
10.30*
|
Employment Agreement dated January 11 , 2016 by and between CytRx Corporation and Olivia S. Ware
|
|
10.31†
|
Asset Purchase Agreement dated May 13, 2011 by and between CytRx Corporation and Orphazyme ApS
|
(o)
|
10.32
|
Letter Agreement dated February 9, 2016, between CytRx Corporation and Alexander Capital, L.P.
|
|
10.33*
|
Fourth Amended and Restated Employment Agreement, dated May 10, 2012, by and between CytRx Corporation and Steven A. Kriegsman.
|
(z)
|
10.34*
|
First Amendment to Fourth Amended and Restated Employment Agreement by and between CytRx Corporation and Steven A. Kriegsman, dated March 4, 2014
|
(k)
|
10.35*
|
Second Amendment to Fourth Amended and Restated Employment Agreement by and between CytRx Corporation and Steven A. Kriegsman, dated January 1, 2015
|
(aa)
|
10.36*
|
Third Amendment to Fourth Amended and Restated Employment Agreement by and between CytRx Corporation and Steven A. Kriegsman, dated March 8, 2016
|
|
10.37
|
Loan and Security Agreement dated February 5, 2016 among CytRx Corporation, the Lender referred to therein, and Hercules Technology Growth Capital, Inc., as Agent
|
(bb)(1)
|
10.38
|
Warrant Agreement dated as of February 5, 2016 issued by CytRx Corporation to Hercules Technology Growth Capital, LLC
|
(bb)(2)
|
10.39
|
Warrant Agreement dated as of February 5, 2016 issued by CytRx Corporation to Hercules Technology III, L.P.
|
(cc)
|
23.1
|
Consent of BDO USA, LLP
|
|
31.1
|
Certification of Chief Executive Officer Pursuant to 15 U.S.C. Section 7241, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
|
|
31.2
|
Certification of Chief Financial Officer Pursuant to 15 U.S.C. Section 7241, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
|
|
32.1
|
Certification of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
|
32.2
|
Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
|
101.INS++
|
XBRL Instance Document.
|
|
101.SCH++
|
XBRL Taxonomy Extension Schema Document.
|
|
101.CAL++
|
XBRL Taxonomy Extension Calculation Linkbase Document.
|
|
101.DEF++
|
XBRL Taxonomy Extension Definition Linkbase Document.
|
|
101.LAB++
|
XBRL Taxonomy Extension Label Linkbase Document.
|
|
101.PRE++
|
XBRL Taxonomy Extension Presentation Linkbase Document.
|
(a)
|
Incorporated by reference to Exhibit 3.2 to the Registrant's Form 8-K filed on July 16, 2013
|
(b)
|
Incorporated by reference to Exhibit 99.1 the Registrant's Form 8-K filed on April 17, 1997
|
(c)
|
Incorporated by reference to Exhibit 10.11 to the Registrant's Form 10-K filed on March 27, 2001
|
(d)
|
Incorporated by reference to Exhibit 99 to the Registrant's Form 8-K filed on December 21, 2001
|
(e)
|
Incorporated by reference to Exhibit 4.2 to the Registrant's Form 10-K filed on April 1, 2002
|
(f)
|
Incorporated by reference to Annex C to the Registrant's Proxy Statement filed June 11, 2002
|
(g)(1)
|
Incorporated by reference to Exhibit 10.63 to the Registrant's Form 10-K filed on May 14, 2004
|
(g)(2)
|
Incorporated by reference to Exhibit 10.64 to the Registrant's Form 10-K filed on May 14, 2004
|
(g)(3)
|
Incorporated by reference to Exhibit 10.64 to the Registrant's Form 10-K filed on May 14, 2004
|
(g)(4)
|
Incorporated by reference to Exhibit 10.64 to the Registrant's Form 10-K filed on May 14, 2004
|
(h)
|
Incorporated by reference to Exhibit 10.1 to the Registrant's Form 8-K filed on October 20, 2005
|
(i)
|
Incorporated by reference to Exhibit 10.15 to the CytRx Oncology Corp (f/k/a Innovive Pharmaceuticals, Inc.) Form 10-Q filed on November 14, 2006
|
(j)
|
Incorporated by reference to Exhibit 4.3 to the Registrant's Form 10-K filed on April 2, 2007
|
(k)
|
Incorporated by reference to Exhibit 10.32 to the Registrant's Form 10-K filed on March 5, 2014
|
(l)
|
Incorporated by reference to Exhibit 2.1 to the Registrant's Form 8-K filed on June 9, 2008
|
(m)
|
Incorporated by reference to Exhibit 10.29 to the Registrant's Form 10-K filed on March 13, 2009
|
(n)
|
Incorporated by reference to Exhibit 4.1 to the Registrant's Form 8-K filed on July 27, 2011
|
(o)
|
Incorporated by reference to Exhibit 10.1 to the Registrant's Form 10-Q filed on August 9, 2011
|
(p)
|
Incorporated by reference to Exhibit 10.1 to the Registrant's Form 10-Q filed on December 4, 2009
|
(q)
|
Incorporated by reference to Exhibit 1.1 to the Registrant's Form 8-K filed on March 17, 2014
|
(r)
|
Incorporated by reference to Exhibit 3.1 to the Registrant's Form 10-K filed on March 13, 2012
|
(s)
|
Incorporated by reference to Exhibit 10.6 to the Registrant's Form 10-K filed on March 13, 2012
|
(t)
|
Incorporated by reference to Exhibit 3.1 to the Registrant's Form 8-K filed on May 15, 2012
|
(u)
|
Incorporated by reference to Annex B of the Registrant's Proxy Statement filed April 2, 2012
|
(v)
|
Incorporated by reference to Annex C of the Registrant's Proxy Statement filed April 2, 2012
|
(w)
|
Incorporated by reference to Annex A of the Registrant's Proxy Statement filed May 17, 2013
|
(x)
|
Incorporated by reference to Annex B of the Registrant's Proxy Statement filed May 17, 2013
|
(y)
|
Incorporated by reference to Exhibit 10.1 to the Registrant's Form 8-K filed on February 13, 2014
|
(z)
|
Incorporated by reference to Exhibit 10.1 to the Registrant's 8-K filed on October 19, 2012
|
(aa)
|
Incorporated by reference to Exhibit 10.31 to the Registrant's Form 10-K filed on March 10, 2015
|
(bb)(1)
|
Incorporated by reference to Exhibit 10.1 to the Registrant's Form 8-K filed on February 9, 2016
|
bb)(2)
|
Incorporated by reference to Exhibit 10.2 to the Registrant's Form 8-K filed on February 9, 2016
|
(cc)
|
Incorporated by Reference to Exhibit 10.3 to the Registrant's Form 8-K filed on February 9, 2016
|
CYTRX CORPORATION
|
|
||
|
|
|
|
Date: March 11, 2016
|
By:
|
/s/ STEVEN A. KRIEGSMAN
|
|
|
|
Steven A. Kriegsman
|
|
|
|
Chief Executive Officer
|
|
|
|
|
Signature
|
Title
|
Date
|
/s/ STEVEN A. KRIEGSMAN
Steven A. Kriegsman
|
Chairman of the Board, Chief Executive Officer
|
March 11, 2016
|
(Principal Executive Officer)
|
||
/s/ JOHN Y. CALOZ
|
Chief Financial Officer
|
March 11, 2016
|
John Y. Caloz
|
(Principal Financial and Accounting Officer)
|
|
/s/ LOUIS IGNARRO
|
Director
|
March 11, 2016
|
Louis Ignarro, Ph.D.
|
||
/s/ JOSEPH RUBINFELD
|
Director
|
March 11, 2016
|
Joseph Rubinfeld, Ph.D.
|
||
/s/ ERIC J. SELTER
|
Director
|
March 11, 2016
|
Eric J. Selter
|
/s/ ANITA J. CHAWLA
|
Director
|
March 11, 2016
|
Anita J. Chawla, Ph.D.
|
/s/ CHERYL COHEN
|
Director
|
March 11, 2016
|
Cheryl Cohen
|
CytRx Corporation
|
|
Report of Independent Registered Public Accounting Firm
|
F- 2
|
Balance Sheets
|
F- 3
|
Statements of Operations
|
F- 4
|
Statements of Stockholders' Equity
|
F- 5
|
Statements of Cash Flows
|
F- 6
|
Notes to Financial Statements
|
F- 7
|
Financial Statement Schedule II — Valuation and Qualifying Accounts
|
F- 21
|
December 31,
|
||||||||
2015
|
2014
|
|||||||
ASSETS
|
||||||||
Current assets:
|
||||||||
Cash and cash equivalents
|
$
|
22,261,372
|
$
|
32,218,905
|
||||
Short-term investments
|
35,035,420
|
45,621,593
|
||||||
Receivables
|
4,593,475
|
2,019,293
|
||||||
Interest receivable
|
28,130
|
104,627
|
||||||
Prepaid expenses and other current assets
|
2,373,708
|
3,250,355
|
||||||
Total current assets
|
64,292,105
|
83,214,773
|
||||||
Equipment and furnishings, net
|
1,467,681
|
970,873
|
||||||
Goodwill
|
183,780
|
183,780
|
||||||
Other assets
|
1,080,872
|
1,323,156
|
||||||
Total assets
|
$
|
67,024,438
|
$
|
85,692,582
|
||||
LIABILITIES AND STOCKHOLDERS' EQUITY
|
||||||||
Current liabilities:
|
||||||||
Accounts payable
|
$
|
8,058,624
|
$
|
6,655,962
|
||||
Accrued expenses and other current liabilities
|
9,693,359
|
5,994,072
|
||||||
Non-cash litigation settlement due in shares of common stock | 4,500,000 |
—
|
||||||
Warrant liability
|
693,457
|
5,131,085
|
||||||
Total current liabilities
|
22,945,440
|
17,781,119
|
||||||
Commitment and contingencies
|
||||||||
Stockholders' equity:
|
||||||||
Preferred Stock, $.01 par value, 5,000,000 shares authorized, including 25,000 shares of Series A Junior Participating Preferred Stock; no shares issued and outstanding
|
—
|
—
|
||||||
Common stock, $.001 par value, 250,000,000 shares authorized; 66,480,065 and 55,921,986 shares issued and outstanding at December 31, 2015 and 2014, respectively
|
66,480
|
55,924
|
||||||
Additional paid-in capital
|
409,107,292
|
376,975,984
|
||||||
Treasury stock, at cost (199,275 shares at December 31, 2014)
|
—
|
(2,612,861
|
)
|
|||||
Accumulated deficit
|
(365,094,774
|
)
|
(306,507,584
|
)
|
||||
Total stockholders' equity
|
44,078,998
|
67,911,463
|
||||||
Total liabilities and stockholders' equity
|
$
|
67,024,438
|
$
|
85,692,582
|
Years Ended December 31,
|
||||||||||||
2015
|
2014
|
2013
|
||||||||||
Revenue:
|
||||||||||||
Licensing revenue
|
$
|
100,000
|
$
|
100,000
|
$
|
300,000
|
||||||
Expenses:
|
||||||||||||
Research and development
|
43,395,574
|
36,677,706
|
17,500,469
|
|||||||||
General and administrative
|
19,664,904
|
12,845,231
|
10,273,576
|
|||||||||
Depreciation and amortization
|
317,649
|
182,927
|
120,399
|
|||||||||
63,378,127
|
49,705,864
|
27,894,444
|
||||||||||
Loss before other income (loss)
|
(63,278,127
|
)
|
(49,605,864
|
)
|
(27,594,444
|
)
|
||||||
Other income (loss):
|
||||||||||||
Interest income
|
233,958
|
305,331
|
137,676
|
|||||||||
Other income, net
|
20,151
|
132,114
|
183,025
|
|||||||||
Gain (loss) on warrant liability
|
4,437,628
|
19,051,239
|
(20,210,094
|
)
|
||||||||
Loss before provision for income taxes
|
(58,586,390
|
)
|
(30,117,180
|
)
|
(47,483,837
|
)
|
||||||
Provision for income taxes
|
(800
|
)
|
(800
|
)
|
(1,600
|
)
|
||||||
Net loss
|
$
|
(58,587,190
|
)
|
$
|
(30,117,980
|
)
|
$
|
(47,485,437
|
)
|
|||
Basic and diluted loss per share
|
$
|
(0.97
|
)
|
$
|
(0.55
|
)
|
$
|
(1.44
|
)
|
|||
Basic and diluted weighted average shares outstanding
|
60,483,151
|
54,371,151
|
32,891,202
|
Additional
|
||||||||||||||||||||||||
Common Stock
|
Paid-In
|
Accumulated
|
Treasury
|
|||||||||||||||||||||
Shares Issued
|
Amount
|
Capital
|
Deficit
|
Stock
|
Total
|
|||||||||||||||||||
Balance at December 31, 2012
|
30,607,916
|
$
|
30,608
|
$
|
261,318,638
|
$
|
(228,904,167
|
)
|
$
|
(2,279,238
|
)
|
$
|
30,165,841
|
|||||||||||
Issuance of stock options/warrants for compensation and services
|
—
|
—
|
3,798,717
|
—
|
—
|
3,798,717
|
||||||||||||||||||
Common stock issued in connection with a public offering
|
11,500,000
|
11,500
|
24,083,030
|
—
|
—
|
24,094,530
|
||||||||||||||||||
Restricted stock expense
|
—
|
—
|
186,389
|
—
|
—
|
186,389
|
||||||||||||||||||
Options and warrants exercised
|
9,048
|
10
|
39,326
|
—
|
—
|
39,336
|
||||||||||||||||||
Repurchase of common stock for treasury
|
—
|
—
|
—
|
—
|
(138,009
|
)
|
(138,009
|
)
|
||||||||||||||||
Net loss
|
—
|
—
|
—
|
(47,485,437
|
)
|
—
|
(47,485,437
|
)
|
||||||||||||||||
Balance at December 31, 2013
|
42,116,964
|
42,118
|
289,426,100
|
(276,389,604
|
)
|
(2,417,247
|
)
|
10,661,367
|
||||||||||||||||
Issuance of stock options/warrants for compensation and services
|
—
|
—
|
5,139,348
|
—
|
—
|
5,139,348
|
||||||||||||||||||
Common stock issued in connection with a public offering
|
13,225,000
|
13,225
|
80,522,176
|
—
|
—
|
80,535,401
|
||||||||||||||||||
Options and warrants exercised
|
280,022
|
281
|
431,660
|
—
|
—
|
431,941
|
||||||||||||||||||
Issuance of restricted stock for compensation
|
100,000
|
100
|
626,900
|
—
|
—
|
627,000
|
||||||||||||||||||
Issuance of common stock for compensation
|
200,000
|
200
|
829,800
|
—
|
—
|
830,000
|
||||||||||||||||||
Repurchase of common stock for treasury
|
—
|
—
|
—
|
—
|
(195,614
|
)
|
(195,614
|
)
|
||||||||||||||||
Net loss
|
—
|
—
|
—
|
(30,117,980
|
)
|
—
|
(30,117,980
|
)
|
||||||||||||||||
Balance at December 31, 2014
|
55,921,986
|
55,924
|
376,975,984
|
(306,507,584
|
)
|
(2,612,861
|
)
|
67,911,463
|
||||||||||||||||
Issuance of stock options/warrants for compensation and services
|
—
|
—
|
7,384,656
|
—
|
—
|
7,384,656
|
||||||||||||||||||
Common stock issued in connection with a public offering
|
10,465,000
|
10,465
|
26,769,603
|
—
|
—
|
26,780,068
|
||||||||||||||||||
Options and warrants exercised
|
292,354
|
290
|
589,711
|
—
|
—
|
590,001
|
||||||||||||||||||
Retirement of treasury stock
|
(199,275
|
)
|
(199
|
)
|
(2,612,662
|
)
|
—
|
2,612,861
|
—
|
|||||||||||||||
Net loss
|
—
|
—
|
—
|
(58,587,190
|
)
|
—
|
(58,587,190
|
)
|
||||||||||||||||
Balance at December 31, 2015
|
66,480,065
|
$
|
66,480
|
$
|
409,107,292
|
$
|
(365,094,774
|
)
|
$
|
—
|
$
|
44,078,998
|
Years Ended December 31,
|
||||||||||||
2015
|
2014
|
2013
|
||||||||||
Cash flows from operating activities:
|
||||||||||||
Net loss
|
$
|
(58,587,190
|
)
|
$
|
(30,117,980
|
)
|
$
|
(47,485,437
|
)
|
|||
Adjustments to reconcile net loss to net cash used in operating activities:
|
||||||||||||
Depreciation and amortization
|
317,649
|
182,927
|
120,399
|
|||||||||
Loss on retirement of equipment and furnishings
|
2,614
|
1,220
|
2,595
|
|||||||||
(Gain) loss on warrant liability
|
(4,437,628
|
)
|
(19,051,239
|
)
|
20,210,094
|
|||||||
Unrealized foreign exchange gain
|
—
|
(125,659
|
)
|
(118,438
|
)
|
|||||||
Stock-based compensation expense
|
7,384,656
|
6,596,248
|
3,985,106
|
|||||||||
Non-cash litigation settlement due in common stock | 4,500,000 |
—
|
—
|
|||||||||
Changes in assets and liabilities:
|
||||||||||||
Receivable
|
(2,574,182
|
)
|
(1,901,766
|
)
|
(835
|
)
|
||||||
Interest receivable
|
76,497
|
(96,163
|
)
|
18,053
|
||||||||
Prepaid expenses and other current assets
|
1,118,931
|
(2,126,771
|
)
|
(1,132,428
|
)
|
|||||||
Accounts payable
|
916,919
|
2,779,409
|
789,655
|
|||||||||
Accrued expenses and other current liabilities
|
3,699,287
|
3,303,967
|
(139,747
|
)
|
||||||||
Net cash used in operating activities
|
(47,582,447
|
)
|
(40,555,807
|
)
|
(23,750,983
|
)
|
||||||
Cash flows from investing activities:
|
||||||||||||
Proceeds from matured short-term investments
|
76,544,319
|
38,584,980
|
24,000,000
|
|||||||||
Purchase of short-term investments
|
(65,958,146
|
)
|
(57,121,593
|
)
|
(27,084,980
|
)
|
||||||
Purchases of equipment and furnishings
|
(331,328
|
)
|
(956,286
|
)
|
(41,809
|
)
|
||||||
Net cash provided by (used in) investing activities
|
10,254,845
|
(19,492,899
|
)
|
(3,126,789
|
)
|
|||||||
Cash flows from financing activities:
|
||||||||||||
Proceeds from common stock issued in public offering, net of fees
|
26,780,068
|
80,535,401
|
24,094,530
|
|||||||||
Proceeds from issuance of restricted stock to employee
|
—
|
100
|
—
|
|||||||||
Repurchase of Company's own stock for treasury
|
—
|
(182,943
|
)
|
(117,070
|
)
|
|||||||
Net proceeds from exercise of stock options and warrants
|
590,001
|
431,941
|
39,336
|
|||||||||
Net cash provided by financing activities
|
27,370,069
|
80,784,499
|
24,016,796
|
|||||||||
Net increase (decrease) in cash and cash equivalents
|
(9,957,533
|
)
|
20,735,793
|
(2,860,976
|
)
|
|||||||
Cash and cash equivalents at beginning of year
|
32,218,905
|
11,483,112
|
14,344,088
|
|||||||||
Cash and cash equivalents at end of year
|
$
|
22,261,372
|
$
|
32,218,905
|
$
|
11,483,112
|
||||||
Supplemental disclosures of non-cash financing activities:
|
||||||||||||
Cashless warrant exercises
|
$
|
3
|
$
|
133
|
$
|
—
|
||||||
Repurchase of Company's own stock for treasury
|
$
|
—
|
$
|
12,671
|
$
|
27,829
|
||||||
Equipment and furnishings purchased but not paid
|
$
|
485,743
|
$
|
23,282
|
$
|
3,360
|
||||||
Retirement of treasury stock
|
$
|
2,612,861
|
$
|
—
|
$
|
—
|
||||||
Supplemental disclosure of Cash Flow Information:
|
||||||||||||
Cash paid during the year for income taxes
|
$
|
800
|
$
|
800
|
$
|
800
|
(In thousands)
|
Level I
|
Level II
|
Level III
|
Total
|
||||||||||||
Cash equivalents
|
$
|
20,673
|
$
|
—
|
$
|
—
|
$
|
20,673
|
||||||||
Short-term investments
|
35,035
|
—
|
—
|
35,035
|
||||||||||||
Warrant liability
|
—
|
—
|
(693
|
)
|
(693
|
)
|
(In thousands)
|
Level I
|
Level II
|
Level III
|
Total
|
||||||||||||
Cash equivalents
|
$
|
31,159
|
$
|
—
|
$
|
—
|
$
|
31,159
|
||||||||
Short-term investments
|
45,622
|
—
|
—
|
45,622
|
||||||||||||
Warrant liability
|
—
|
—
|
(5,131
|
)
|
(5,131
|
)
|
(In thousands)
|
2015
|
2014
|
||||||
Beginning balance
|
$
|
5,131
|
$
|
24,182
|
||||
Net changes in valuation
|
(4,438
|
)
|
(19,051
|
)
|
||||
Ending balance
|
$
|
693
|
$
|
5,131
|
2015
|
2014
|
|||||||
Equipment and furnishings
|
$
|
1,843
|
$
|
1,417
|
||||
Less — accumulated depreciation
|
(375
|
)
|
(446
|
)
|
||||
Equipment and furnishings, net
|
$
|
1,468
|
$
|
971
|
2015
|
2014
|
|||||||
Professional fees
|
$
|
5,459
|
$
|
2,593
|
||||
Research and development costs
|
2,625
|
2,945
|
||||||
Litigation settlement
|
5,500
|
—
|
||||||
Wages, bonuses and employee benefits
|
527
|
451
|
||||||
Other
|
82
|
5
|
||||||
Total
|
$
|
14,193
|
$
|
5,994
|
Year Ended December 31,
|
||||||||||||
2015
|
2014
|
2013
|
||||||||||
Risk-free interest rate
|
0.57
|
%
|
0.46
|
%
|
0.13% - 0.58
|
%
|
||||||
Expected dividend yield
|
0
|
%
|
0
|
%
|
0
|
%
|
||||||
Expected lives
|
0.59
|
1.59
|
0.95 – 2.59
|
|||||||||
Expected volatility
|
61.7
|
%
|
89.7
|
%
|
83.4% - 95.3
|
%
|
||||||
Number of warrants classified as liabilities
|
6,371,854
|
6,371,854
|
6,984,716
|
|||||||||
Gain (Loss) on warrant liabilities
|
$
|
4,437,628
|
$
|
19,051,239
|
$
|
(20,210,094
|
)
|
Operating
Leases
(1)
|
Employment
Agreements (2)
|
Research and
Development (3)
|
Total
|
|||||||||||||
2016
|
$
|
318
|
$
|
3,647
|
$
|
27,940
|
$
|
31,905
|
||||||||
2017
|
383
|
1,057
|
8,652
|
10,092
|
||||||||||||
2018
|
363
|
1,057
|
86
|
1,506
|
||||||||||||
2019
|
278
|
—
|
11
|
289
|
||||||||||||
2020
|
59
|
—
|
—
|
59
|
||||||||||||
Thereafter
|
—
|
—
|
—
|
—
|
||||||||||||
Total
|
$
|
1,401
|
$
|
5,761
|
$
|
36,689
|
$
|
43,851
|
(1) | Operating leases are primarily facility lease related obligations, as well as equipment lease obligations with third party vendors. The Company recognized rent expenses of $351,075, $335,991, and $315,134 in 2015, 2014 and 2013, respectively. |
(2) | Employment agreements include management contracts which have been revised from time to time. The employment agreement for the Company's executive officers provide for minimum salaries, which are adjusted annually at the discretion of the Company's Compensation Committee, and in some cases provide for minimum annual bonuses, and employee benefits, as well. New employment agreements for the Company's other executive officers are usually entered into annually or biennially. |
(3) | Research and development obligations relate primarily to clinical trials. All of these purchase obligations are cancelable. |
2015
|
2014
|
2013
|
||||||||||
Risk-free interest rate
|
1.74% - 2.42
|
%
|
1.74% - 2.12
|
%
|
0.91% - 2.79
|
%
|
||||||
Expected volatility
|
74% - 85
|
%
|
82% - 90
|
%
|
85% - 89
|
%
|
||||||
Expected lives (years)
|
6 - 10
|
6 - 10
|
6 - 10
|
|||||||||
Expected dividend yield
|
0.00
|
%
|
0.00
|
%
|
0.00
|
%
|
Stock Options
|
Weighted Average
Exercise Price
|
||||||||||||||||||||||
2015
|
2014
|
2013
|
2015
|
2014
|
2013
|
||||||||||||||||||
Outstanding — beginning of year
|
9,348,592
|
6,228,593
|
3,240,850
|
$
|
2.83
|
$
|
3.11
|
$
|
4.08
|
||||||||||||||
Granted
|
4,590,000
|
3,180,000
|
3,323,176
|
2.61
|
2.47
|
2.43
|
|||||||||||||||||
Exercised
|
(287,143
|
)
|
(1,667
|
)
|
(476
|
)
|
2.05
|
1.83
|
1.93
|
||||||||||||||
Forfeited
|
—
|
(24,333
|
)
|
(127,812
|
)
|
—
|
2.81
|
3.09
|
|||||||||||||||
Expired
|
(77,587
|
)
|
(34,001
|
)
|
(207,145
|
)
|
5.58
|
8.18
|
9.59
|
||||||||||||||
Outstanding — end of year
|
13,573,862
|
9,348,592
|
6,228,593
|
3.11
|
2.83
|
3.11
|
|||||||||||||||||
Exercisable at end of year
|
8,015,164
|
4,901,511
|
3,125,720
|
$
|
3.45
|
$
|
3.22
|
$
|
3.86
|
||||||||||||||
Weighted average fair value of stock options granted during the year:
|
$
|
1.88
|
$
|
1.80
|
$
|
1.82
|
Stock Options
|
Weighted Average
Exercise Price
|
|||||||||||||||||||||||
2015
|
2014
|
2013
|
2015
|
2014
|
2013
|
|||||||||||||||||||
Outstanding — beginning of year
|
692,143
|
167,143
|
142,143
|
$
|
3.47
|
$
|
5.69
|
$
|
6.20
|
|||||||||||||||
Granted
|
—
|
550,000
|
25,000
|
—
|
2.76
|
2.79
|
||||||||||||||||||
Exercised
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||||||||||||
Expired/Forfeited
|
(56,429
|
)
|
(25,000
|
)
|
—
|
8.54
|
2.79
|
—
|
||||||||||||||||
Outstanding — end of year
|
635,714
|
692,143
|
167,143
|
3.02
|
3.47
|
5.69
|
||||||||||||||||||
Exercisable at end of year
|
635,714
|
692,143
|
167,143
|
$
|
3.02
|
$
|
3.47
|
$
|
5.69
|
|||||||||||||||
Weighted average fair value of stock options granted during the year:
|
$
|
—
|
$
|
2.32
|
$
|
1.98
|
2015
|
2014
|
2013
|
||||||||||
Risk-free interest rate
|
—
|
2.23
|
%
|
2.05
|
%
|
|||||||
Expected volatility
|
—
|
85.0
|
%
|
84.8
|
%
|
|||||||
Expected lives (years)
|
—
|
10
|
10
|
|||||||||
Expected dividend yield
|
—
|
0
|
%
|
0
|
%
|
Range of
Exercise Prices
|
Number of Options
|
Weighted Average
Remaining
Contractual Life
(years)
|
Weighted Average
Exercise Price
|
Number of
Options
Exercisable
|
Weighted Average
Contractual Life
|
Weighted Average
Exercise Price
|
||||||||||||||||||||
$
|
1.75 — 2.00
|
1,374,500
|
6.95
|
$
|
1.83
|
1,374,500
|
6.95
|
$
|
1.83
|
|||||||||||||||||
$
|
2.01 — 2.50
|
8,215,556
|
9.14
|
2.33
|
3,280,923
|
8.54
|
2.30
|
|||||||||||||||||||
$
|
2.51 — 4.00
|
986,980
|
8.06
|
2.89
|
919,481
|
8.01
|
2.87
|
|||||||||||||||||||
$
|
4.01 — 32.55
|
3,632,540
|
7.03
|
5.38
|
3,075,974
|
6.85
|
5.48
|
|||||||||||||||||||
14,209,576
|
8.31
|
$
|
3.10
|
8,650,878
|
7.63
|
$
|
3.42
|
Years Ended December 31,
|
||||||||||||
2015
|
2014
|
2013
|
||||||||||
Research and development - employee
|
$
|
1,590,267
|
$
|
932,482
|
$
|
241,459
|
||||||
General and administrative - employee
|
5,568,537
|
2,383,624
|
2,659,105
|
|||||||||
Total employee stock-based compensation
|
$
|
7,158,804
|
$
|
3,316,106
|
$
|
2,900,564
|
||||||
Research and development – non-employee
|
$
|
—
|
$
|
86,539
|
$
|
—
|
||||||
General and administrative – non-employee
|
225,852
|
1,736,703
|
898,153
|
|||||||||
Total non-employee stock-based compensation
|
$
|
225,852
|
$
|
1,823,242
|
$
|
898,153
|
Warrants
|
Weighted Average
Exercise Price
|
|||||||||||||||||||||||
2015
|
2014
|
2013
|
2015
|
2014
|
2013
|
|||||||||||||||||||
Outstanding — beginning of year
|
7,349,760
|
8,324,609
|
7,518,113
|
$
|
4.27
|
$
|
4.86
|
$
|
5.09
|
|||||||||||||||
Granted
|
—
|
25,000
|
816,667
|
—
|
5.60
|
2.80
|
||||||||||||||||||
Exercised
|
(10,000
|
)
|
(340,527
|
)
|
(8,572
|
)
|
2.50
|
2.56
|
4.48
|
|||||||||||||||
Forfeited
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||||||||||||
Expired
|
(114,288
|
)
|
(659,322
|
)
|
(1,599
|
)
|
3.82
|
12.66
|
14.99
|
|||||||||||||||
Outstanding — end of year
|
7,225,472
|
7,349,760
|
8,324,609
|
4.28
|
4.27
|
4.86
|
||||||||||||||||||
Exercisable at end of year
|
7,225,472
|
7,149,760
|
7,924,609
|
$
|
4.28
|
$
|
4.32
|
$
|
4.98
|
|||||||||||||||
Weighted average fair value of warrants granted during the year:
|
$
|
—
|
$
|
3.46
|
$
|
1.31
|
Warrants Outstanding
|
||||||||||||||||||||||
Range of Exercise Prices
|
Number of
Shares
|
Weighted
Average
Remaining
Contractual Life
(years)
|
Weighted
Average
Exercise Price
|
Warrants
Number of
Shares
Exercisable
|
Exercisable
Weighted Average
Exercise Price
|
|||||||||||||||||
$
|
2.10 — 2.60
|
578,573
|
2.32
|
$
|
2.42
|
578,573
|
$
|
2.42
|
||||||||||||||
$
|
2.61 — 3.60
|
125,000
|
2.86
|
3.00
|
125,000
|
3.00
|
||||||||||||||||
$
|
3.61 — 4.60
|
6,496,899
|
0.63
|
4.47
|
6,496,899
|
4.47
|
||||||||||||||||
$
|
4.61 — 5.60
|
25,000
|
8.21
|
5.60
|
25,000
|
5.60
|
||||||||||||||||
7,225,472
|
0.83
|
$
|
4.28
|
7,225,472
|
$
|
4.28
|
December 31,
|
December 31,
|
|||||||
2015
|
2014
|
|||||||
Deferred tax assets:
|
||||||||
Net operating loss carryforwards
|
$
|
105,661
|
$
|
86,541
|
||||
Tax credit carryforwards
|
27,671
|
22,716
|
||||||
Equipment, furnishings and other
|
10,547
|
14,396
|
||||||
Total deferred tax assets
|
143,879
|
123,653
|
||||||
Deferred tax liabilities
|
(270
|
)
|
(187
|
)
|
||||
Net deferred tax assets
|
143,609
|
123,466
|
||||||
Valuation allowance
|
(143,609
|
)
|
(123,466
|
)
|
||||
$
|
—
|
$
|
—
|
Years ended December 31,
|
||||||||||||
2015
|
2014
|
2013
|
||||||||||
Federal benefit at statutory rate
|
$
|
(19,919
|
)
|
$
|
(10,240
|
)
|
$
|
(16,145
|
)
|
|||
State income taxes, net of Federal taxes
|
(3,556
|
)
|
(2,773
|
)
|
(1,517
|
)
|
||||||
State credits
|
(1,324
|
)
|
(990
|
)
|
(787
|
)
|
||||||
Warrant liabilities
|
(1,509
|
)
|
(6,477
|
)
|
6,871
|
|||||||
Other permanent differences
|
16
|
37
|
14
|
|||||||||
Provision related to change in valuation allowance
|
20,142
|
23,440
|
14,606
|
|||||||||
Current year tax credit
|
(2,050
|
)
|
(1,300
|
)
|
(1,034
|
)
|
||||||
Return to provision
|
8,198
|
(1,504
|
)
|
(2,011
|
)
|
|||||||
Other, net
|
3
|
(192
|
)
|
5
|
||||||||
$
|
1
|
$
|
1
|
$
|
2
|
Quarters Ended
|
||||||||||||||||
March 31
|
June 30
|
September 30
|
December 31
|
|||||||||||||
(In thousands, except per share data)
|
||||||||||||||||
2015
|
||||||||||||||||
Total revenues
|
$
|
—
|
$
|
—
|
$
|
—
|
$
|
100
|
||||||||
Net loss
|
$
|
(17,525
|
)
|
$
|
(11,687
|
)
|
$
|
(7,073
|
)
|
$
|
(22,302
|
)
|
||||
Basic and diluted loss per share applicable to common stock
|
$
|
(0.31
|
)
|
$
|
(0.21
|
)
|
$
|
(0.11
|
)
|
$
|
(0.34
|
)
|
||||
2014
|
||||||||||||||||
Total revenues
|
$
|
—
|
$
|
—
|
$
|
—
|
$
|
100
|
||||||||
Net income (loss)
|
$
|
4,665
|
$
|
(15,719
|
)
|
$
|
(5,625
|
)
|
$
|
(13,439
|
)
|
|||||
Basic income (loss) per share applicable to common stock
|
$
|
0.09
|
$
|
(0.28
|
)
|
$
|
(0.10
|
)
|
$
|
(0.24
|
)
|
|||||
Diluted income (loss) per share applicable to common stock
|
$
|
0.08
|
$
|
(0.28
|
)
|
$
|
(0.10
|
)
|
$
|
(0.24
|
)
|
Additions
|
|||||||||||||||||||
Description
|
Balance at
Beginning of
Year
|
Charged to
Costs and
Expenses
|
Charged to
Other
Accounts
|
Deductions
|
Balance at
End of Year
|
||||||||||||||
Reserve Deducted in the Balance Sheet from the Asset to Which it Applies:
|
|||||||||||||||||||
Allowance for Deferred Tax Assets
|
|||||||||||||||||||
Year ended December 31, 2015
|
$
|
123,466,000
|
$
|
—
|
$
|
20,143,000
|
$
|
—
|
$
|
143,609,000
|
|||||||||
Year ended December 31, 2014
|
$
|
100,026,000
|
$
|
—
|
$
|
23,440,000
|
$
|
—
|
$
|
123,466,000
|
|||||||||
Year ended December 31, 2013
|
$
|
85,420,000
|
$
|
—
|
$
|
14,606,000
|
$
|
—
|
$
|
100,026,000
|
CYTRX CORPORATION | |||
|
By:
|
/s/ STEVEN A. KRIEGSMAN | |
Steven A. Kriegsman | |||
Chairman and Chief Executive Officer | |||
Name of Participating Optionee:
Grant No.
|
||
Total Number of Shares Awarded:
|
180,000 Non-Qualified Stock Options
|
|
Exercise price:
|
$
|
|
Grant date:
|
||
Vesting Schedule:
|
The Option shall vest in full immediately.
|
|
CYTRX CORPORATION | |||
|
By:
|
/s/ STEVEN A. KRIEGSMAN | |
Steven A. Kriegsman | |||
Chief Executive Officer | |||
CYTRX CORPORATION
|
[Name of Optionee]
|
By:
/s/
STEVEN A. KRIEGSMAN
|
/s/__________________________
|
Steven A. Kriegsman
|
Optionee
|
Chief Executive Officer
|
[ ] | Cash Only : by delivering a check to the Company for $___________. |
[ ] | Cash From Broker : by delivering the purchase price from _______________________, a broker, dealer or other "creditor" as defined by Regulation T issued by the Board of Governors of the Federal Reserve System (the "Broker"). I authorize the Company to issue a stock certificate in the number of shares indicated above in the name of the Broker in accordance with instructions received by the Company from the Broker and to deliver such stock certificate directly to the Broker (or to any other party specified in the instructions from the Broker) upon receiving the exercise price from the Broker. |
[ ] | Pursuant to a Net Exercise Arrangement |
[ ] | Other Company Shares : by delivering for surrender other shares of the Company's Common Stock that I have owned for at least six months (or such other longer or shorter period of time required to avoid a charge to earnings for financial accounting purposes) having a fair market value at the time of receipt by the Company equal to not less than the exercise price |
Name of Participating Optionee:
Grant No.
|
||
Total Number of Shares Awarded:
|
[______] Non-Qualified Stock Options
|
|
Exercise price:
|
$
|
|
Grant date:
|
||
Vesting Schedule:
|
Unless the exercisability of the Option is accelerated in accordance with the Plan, the Option shall vest (become exercisable) in thirty-six (36) equal monthly installments, beginning on the one-month anniversary of the Date of Grant.
|
|
CYTRX CORPORATION | |||
|
By:
|
/s/ STEVEN A. KRIEGSMAN | |
Steven A. Kriegsman | |||
Chairman and Chief Executive Officer | |||
CYTRX CORPORATION | [NAME OF OPTIONEE] | |||
/s/ STEVEN A. KRIEGSMAN
|
/s/
|
|||
Steven A. Kriegsman
|
Name
|
|||
Chairman and Chief Executive Officer
|
|
[ ] | Cash Only : by delivering a check to the Company for $___________. |
[ ] | Cash From Broker : by delivering the purchase price from _______________________, a broker, dealer or other "creditor" as defined by Regulation T issued by the Board of Governors of the Federal Reserve System (the "Broker"). I authorize the Company to issue a stock certificate in the number of shares indicated above in the name of the Broker in accordance with instructions received by the Company from the Broker and to deliver such stock certificate directly to the Broker (or to any other party specified in the instructions from the Broker) upon receiving the exercise price from the Broker. |
[ ] | Pursuant to a Net Exercise Arrangement |
[ ] | Other Company Shares : by delivering for surrender other shares of the Company's Common Stock that I have owned for at least six months (or such other longer or shorter period of time required to avoid a charge to earnings for financial accounting purposes) having a fair market value at the time of receipt by the Company equal to not less than the exercise price |
Name of Participating Optionee:
Grant No.
|
[Daniel J.Levitt, M.D., Ph.D.];
[Steven A. Kriegsman]
|
|
Total Number of Shares Awarded:
|
[___] Non-Qualified Stock Options
|
|
Exercise price:
|
$
|
|
Grant date:
|
||
Vesting Schedule:
|
Unless the exercisability of the Option is accelerated in accordance with the Plan, the Option shall vest (become exercisable) in thirty-six (36) equal monthly installments, beginning on the one-month anniversary of the Date of Grant. Under certain conditions specified in Section 1 of the Stock Option Agreement, any and all unvested options in this Grant No. _____ shall become immediately exercisable.
|
|
CYTRX CORPORATION | |||
|
By:
|
/s/ STEVEN A. KRIEGSMAN | |
Steven A. Kriegsman | |||
Title: Chairman and Chief Executive Officer | |||
[in the case of Daniel Levitt, M.D., Ph.D]; [John Y. Caloz, Chief Financial Officer in the case of Steven A. Kriegsman] |
CYTRX CORPORATION
|
[DANIEL J. LEVITT, M.D., Ph.D.]; [STEVEN A. KRIEGSMAN]
|
/s/ [__________________________]
|
/s/ [__________________________] |
Steven A. Kriegsman
|
Optionee
|
Chairman and Chief Executive Officer
[in the case of Daniel Levitt, M.D., Ph.D.]; [John Y. Caloz, Chief Financial Officer, in the case of Steven A. Kriegsman]
|
[ ] | Cash Only : by delivering a check to the Company for $___________. |
[ ] | Cash From Broker : by delivering the purchase price from _______________________, a broker, dealer or other "creditor" as defined by Regulation T issued by the Board of Governors of the Federal Reserve System (the "Broker"). I authorize the Company to issue a stock certificate in the number of shares indicated above in the name of the Broker in accordance with instructions received by the Company from the Broker and to deliver such stock certificate directly to the Broker (or to any other party specified in the instructions from the Broker) upon receiving the exercise price from the Broker. |
[ ] | Pursuant to a Net Exercise Arrangement |
[ ] | Other Company Shares : by delivering for surrender other shares of the Company's Common Stock that I have owned for at least six months (or such other longer or shorter period of time required to avoid a charge to earnings for financial accounting purposes) having a fair market value at the time of receipt by the Company equal to not less than the exercise price |
CYTRX CORPORATION | |||
|
By:
|
/s/ STEVEN A. KRIEGSMAN | |
Steven A. Kriegsman | |||
Title: Chairman of the Board and Chief Executive Officer | |||
|
|||
HOLDER: | |||
/s/ DANIEL J. LEVITT, M.D., Ph.D. | |||
Daniel J. Levitt, M.D., Ph.D. |
CYTRX C ORPORATION | HOLDER: | |||
/s/ JOHN Y. CALOZ
|
/s/ STEVEN A. KRIEGSMAN
|
|||
John Y. Caloz
|
Steven A. Kriegsman
|
|||
Chief Financial Officer
|
|
CYTRX CORPORATION | HOLDER: | |||
/s/ JOHN Y. CALOZ
|
/s/ STEVEN A. KRIEGSMAN
|
|||
John Y. Caloz
|
Steven A. Kriegsman
|
|||
Chief Financial Officer
|
|
"EMPLOYER"
|
"EMPLOYEE"
|
|||
CYTRX CORPORATION | ||||
/s/ STEVEN A. KRIEGSMAN
|
/s/ DANIEL LEVITT, M.D., Ph.D.
|
|||
Steven A. Kriegsman
|
Daniel Levitt, M.D., Ph.D.
|
|||
Chairman and Chief Executive Officer
|
|
"EMPLOYER"
|
"EMPLOYEE"
|
|||
CYTRX CORPORATION | ||||
/s/ STEVEN A. KRIEGSMAN
|
/s/ BENJAMIN S. LEVIN
|
|||
Steven A. Kriegsman
|
Benjamin S. Levin
|
|||
Chairman and Chief Executive Officer
|
|
5.1.
|
Salary
. Employee shall be entitled to receive an annual salary of Four Hundred Thousand Dollars ($400,000), payable in accordance with Employer's normal payroll policies and procedures.
|
5.2.
|
Discretionary Bonus
. Employee also may be eligible for a bonus from time to time 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 continue to accrue vacation days without loss of compensation in accordance with Employer's usual policies applicable to all employees at a rate of four weeks' vacation time for each 12-month period during the Term.
|
5.5.
|
Tax Gross-Up
. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute "parachute payments" within the meaning of Section 280G of the Code, and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the "
Excise Tax
"), then the Employee's benefits under this Agreement shall be either: (x) delivered in full, or (y) delivered as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless Employer and the Employee otherwise agree in writing, any determination required under this Section 1 shall be made in writing by Employer's independent public accountants (the "
Accountants
"), whose determination shall be conclusive and binding upon the Employee and Employer for all purposes. For purposes of making the calculations required by this Section 1, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. Employer and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5.5. Employer shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5.5.
|
5.6.
|
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.
|
5.7.
|
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.
|
6.1.
|
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:
|
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 (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, (2) any unpaid bonus that may have been awarded to Employee under Section 5.2 prior to such date, which shall be due and payable in accordance with Employer's normal payroll practices or as otherwise required by California law, (3) payment of any Tax Gross-Up payment as provided in Section 5.5, (4) 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., provided, that if such termination occurs following a Change of Control (as hereinafter defined), then the amount described in this clause (4) shall be equal to 12 months' salary as provided in Section 5.1, and (5) continued participation, at Employer's cost and expense, of Employee and his dependents for a period of six months following such termination (12 months if such termination occurs following a Change of Control) in any Employer-sponsored group benefit plans in which Employee was participating as of the date of termination. Employee's right to the compensation and benefits provided for in clauses (3) through (5) of this Section 6.2 shall be conditioned upon Employee having executed and delivered to Employer a General Release of All Claims in the form attached hereto as Exhibit A. For purposes of this Section 6.2, a "Change of Control" shall have the meaning ascribed to the term "Corporate Transaction" in Employer's 2008 Stock Incentive Plan, as such Plan may be amended from time to time.
|
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.
|
"EMPLOYER"
|
"EMPLOYEE"
|
|||
CYTRX CORPORATION | ||||
/s/ STEVEN A. KRIEGSMAN
|
/s/ SCOTT WIELAND
|
|||
Steven A. Kriegsman
|
Scott Wieland
|
|||
Chairman and Chief Executive Officer
|
|
"EMPLOYER"
|
"EMPLOYEE"
|
|||
CYTRX CORPORATION | ||||
/s/ STEVEN A. KRIEGSMAN
|
/s/ JOHN CALOZ
|
|||
Steven A. Kriegsman
|
John Caloz
|
|||
Chairman and Chief Executive Officer
|
|
"EMPLOYER"
|
"EMPLOYEE"
|
|||
CYTRX CORPORATION | ||||
/s/ STEVEN A. KRIEGSMAN
|
/s/ OLIVIA C. WARE
|
|||
Steven A. Kriegsman
|
Olivia C. Ware
|
|||
Chairman and Chief Executive Officer
|
|
1.
|
Appointment
. The Company hereby retains Alexander, and Alexander hereby agrees to act as the Company's financial advisor and render financial advisory services as more specifically set forth in paragraph 2 below, effective as of the date hereof (the "Effective Date").
|
2.
|
Scope and Certain Conditions of Services
. Alexander will use its best efforts to furnish ongoing awareness and business advisory services (the "Services") as the Company may from time to time reasonably request. Services shall include, without limitation, the following:
|
·
|
Assistance with investor presentations such as, but not limited to, PowerPoint slide presentations, broker/dealer fact sheets, financial projections and budgets;
|
·
|
Sponsorship to capital conferences;
|
·
|
Identification and evaluation of financing transactions;
|
·
|
Identification and evaluation of acquisition and/or merger candidates;
|
·
|
Introduction to broker/dealers, analysts and potential investors in regions outside of the New York area;
|
·
|
Arranging meetings between CytRx management and broker/dealers, research analysts, and investment companies in coordination with the Company
'
s management
'
s travel schedule;
|
3.
|
Fees and Compensation
. In consideration for the Services, the Company shall pay to Alexander an advisory fee of twenty two thousand dollars ($22,000) per month (the "Monthly Advisory Fee"). The first Monthly Advisory Fee shall be paid to Alexander on the Effective Date and thereafter no later than the fifteenth (15
th
) day of each monthly anniversary of the Effective Date during the Term of this Agreement. The Monthly Advisory Fee shall be earned and payable each month and may not be deferred by the Company unless the Company submits a written request to Alexander and Alexander approves such a request in writing. The Monthly Advisory Fee shall be mailed to Alexander at the following address:
|
4.
|
Term of Retention.
The term of retention shall expire 24 months from the Effective Date of this Agreement (the "Term"), but may be terminated by either party after 12 months with 30 days written notice.
|
5.
|
Sale or Change of Control.
In the event of a change of control or sale of substantially all assets of the Company ("Event"), the un-vested Advisory Warrants shall all become due and earned upon the Event.
|
6.
|
The Company will promptly notify Alexander in writing upon the filing of any registration statement or other periodic reporting documents filed pursuant to the rules and regulations of the Securities Act of 1933, as amended, or the Securities Act of 1934, as amended.
|
7.
|
The Company recognizes that Alexander now renders and may continue to render financial consulting, management, investment banking and other services to other companies that may or may not conduct business and activities similar to those of the Company. Alexander shall be free to render such advice and other services and the Company hereby consents thereto. Alexander shall not be required to devote its full time and attention to the performance of its duties under this Agreement, but shall devote sufficient time and attention as is reasonably necessary to fulfill its obligation hereunder.
|
8.
|
During the Term of this Agreement the Company covenants, promises and agrees that the Company shall immediately notify Alexander if it is the subject of any publicly disclosable material investigation or material litigation.
|
9.
|
Alexander shall be responsible for all out of pocket expenses, including without limitation acceptable travel and lodging, business entertainment, printing, legal, and mailing cost that Alexander may incur in performance of the Services under this Agreement; notwithstanding, Alexander may request written approval for a significant potential expenditure to which it cannot commit until approved by the Company.
|
10.
|
The Company acknowledges that Alexander has made no guarantees that its performance hereunder will achieve any particular result with respect to the Company
'
s business, stock price, trading volume, market capitalization or otherwise.
|
11.
|
Should John Columbia no longer be affiliated with Alexander Capital, the Company has the right to immediately terminate this Agreement.
|
12.
|
Governing Law; Jurisdiction; Waiver of Jury Trial
. This Agreement (including all exhibits hereto) shall be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be fully performed therein, without regard to conflicts of law principles, as more specifically set forth in Exhibit B. The Company irrevocably submits to the exclusive jurisdiction of any State or Federal court sitting in Los Angeles County, California for the purpose of any suit, action or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against the Company, and agrees that service of process in connection with any such suit, action or proceeding may be made upon the Company in accordance with
Exhibit B
hereof. The parties hereby expressly waive all rights to trial by jury in any suit, action or proceeding arising under this Agreement.
|
13.
|
Amendments
. This Agreement may not be modified or amended except in a writing duly executed by the parties hereto.
|
14.
|
Successors and Assigns
. The benefits of this Agreement shall inure to the parties hereto, their respective successors and assigns and to the indemnified parties hereunder and their respective successors and assigns, and the obligations and liabilities assumed in this Agreement shall be binding upon the parties hereto and their respective successors and assigns. Notwithstanding anything contained herein to the contrary, neither Alexander nor the Company shall assign any of its obligations hereunder without the prior written consent of such other party.
|
15.
|
Counterparts.
For the convenience of the parties, this Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original instrument, but all of which, taken together, shall constitute one and the same agreement. Facsimile signatures shall be deemed originals for all purposes hereunder.
|
16.
|
This Engagement Agreement constitutes the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and there are no agreements or understandings with respect hereto which are not contained in this Engagement Agreement.
|
CYTRX CORPORATION | ALEXANDER CAPITAL, LP | |||
/s/ STEVEN A. KRIEGSMAN
|
/s/ JONATHAN GAZDAK
|
|||
Steven A. Kriegsman
|
Jonathan Gazdak
|
|||
Chairman and Chief Executive Officer
|
Head of Investment Banking
|
EMPLOYER: | EMPLOYEE: | |||
CYTRX CORPORATION | ||||
/s/ JOHN Y. CALOZ
|
/s/ STEVEN A. KRIEGSMAN
|
|||
John Y. Caloz
|
Steven A. Kriegsman
|
|||
Chief Financial Officer
|
|
CYTRX CORPORATION | |||
Date: March 11, 2016
|
By:
|
/s/ STEVEN A. KRIEGSMAN | |
Steven A. Kriegsman | |||
Chairman and Chief Executive Officer | |||
CYTRX CORPORATION | |||
Date: March 11, 2016
|
By:
|
/s/ JOHN Y. CALOZ | |
John Y. Caloz | |||
Chief Financial Officer | |||
CYTRX CORPORATION | |||
Date: March 11, 2016
|
By:
|
/s/ STEVEN A. KRIEGSMAN | |
Steven A. Kriegsman | |||
Chairman and Chief Executive Officer | |||
CYTRX CORPORATION | |||
Date: March 11, 2016
|
By:
|
/s/ JOHN Y. CALOZ | |
John Y. Caloz | |||
Chief Financial Officer | |||