Ex 10.1
SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement ("Agreement") is made and
entered into as of May 10, 2004 (the "Effective Date"), by and between CytRx
Corporation, a Delaware corporation (the "Company"), and MBN Consulting, LLC, a
Florida limited liability company ("MBN"), with respect to the following facts:
RECITALS
A. The Company and MBN entered into a Consulting Agreement, dated as
of December 1, 2003 (the "Consulting Agreement"), whereby MBN was to represent
the Company on a non-exclusive basis in investors' communications and to consult
with management concerning the Company's activities.
B. Pursuant to the Consulting Agreement, the Company has paid to MBN
$20,000 in cash consulting fees and issued a warrant to MBN to purchase 600,000
shares of the Company's common stock, $0.01 par value ("Common Stock"), at a
purchase price per share of $2.25 per share, with such warrant being vested and
exercisable as to 100,000 shares of the Company's Common Stock as of December 1,
2003, and the balance of 500,000 shares exercisable upon the Company meeting
certain requirements for listing of its Common Stock on the Nasdaq National
Market on or before June 30, 2004 (the "Original Warrant").
C. Thereafter, various disputes ensued among the parties, and thus
the parties now seek to terminate the Consulting Agreement and enter into this
Agreement to settle fully and finally, in the manner set forth herein, all
differences between them which have arisen, or which may arise, prior to, or at
the time of the execution of this Agreement, including any and all claims and
controversies arising out of the Consulting Agreement.
NOW, THEREFORE, in consideration of the premises and promises
contained in this Agreement, the sufficiency of which the parties hereto
acknowledge, the parties hereto hereby agree as follows:
1. SETTLEMENT AND TERMINATION OF CONSULTING AGREEMENT. Upon
execution of this Agreement, (a) MBN shall forgive any and all sums due and owed
by the Company under the Consulting Agreement; (b) MBN shall retain the $20,000
the Company has previously paid pursuant to the Consulting Agreement and (c) the
Consulting Agreement shall be considered terminated in its entirety as of the
Effective Date. The foregoing arrangements shall be in complete satisfaction and
extinction of all obligations of all parties hereto to the others incurred in
connection with the Consulting Agreement.
2. ORIGINAL WARRANT. Upon execution of this Agreement, (a) MBN shall
return the Original Warrant to the Company; (b) the Company shall issue a fully
executed replacement warrant for the purchase of the 100,000 vested shares MBN
is previously entitled to subject to the same terms and conditions as currently
exist in the Original Warrant; and (c) the right to purchase the additional
500,000 shares of Common Stock as contained in the Original Warrant shall be
terminated and extinguished in its entirety.
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3. RELEASE.
(a) Except as otherwise specified in Section 4 below, the
Company, for itself and on behalf of (as applicable) its officers, directors,
stockholders, partners, employees, trustees, trust beneficiaries, agents,
representatives, administrators, executors, predecessors and
successors-in-interest, heirs and assigns, and all other persons, firms,
corporations or other entities with whom any of the former have been, are now,
or may hereafter be affiliated, (collectively, the "Company Releasing Parties"),
hereby releases and forever discharges MBN, and its officers, directors,
managers, members, employees, trustees, trust beneficiaries, agents,
representatives, administrators, executors, predecessors and
successors-in-interest, heirs and assigns, and all other persons, firms,
corporations or other entities with whom any of the former have been, are now,
or may hereafter be affiliated (collectively, the "MBN Released Parties"), from
any and all past, present and future claims, demands, obligations, and causes of
action of any nature whatsoever, whether in tort (including, without limitation,
acts of active negligence), contract or any other theory of recovery in law or
equity, whether or not wrongful, whether for compensatory or punitive damages,
equitable relief or otherwise, and whether now known or unknown, suspected or
unsuspected, which are based upon, arise out of or are in connection with the
Consulting Agreement, including, but not limited to, matters relating to the
Original Warrant (the "Released Matters").
(b) Except as otherwise specified in Section 4 below, MBN for
itself and on behalf of (as applicable) its respective officers, directors,
managers, members, partners, employees, trustees, trust beneficiaries, agents,
representatives, administrators, executors, predecessors and
successors-in-interest, heirs and assigns, and all other persons, firms,
corporations or other entities with whom any of the former have been, are now,
or may hereafter be affiliated (collectively, the "MBN Releasing Parties" and
together with the Company Releasing Parties, the "Releasing Parties"), hereby
release and forever discharge the Company, and its officers, directors,
stockholders, partners, employees, trustees, trust beneficiaries, agents,
representatives, administrators, executors, predecessors and
successors-in-interest, heirs and assigns, and all other persons, firms,
corporations or other entities with whom any of the former have been, are now,
or may hereafter be affiliated (collectively, the "Company Released Parties" and
together with the MBN Released Parties, the "Released Parties"), from any and
all past, present and future claims, demands, obligations, and causes of action
of any nature whatsoever, whether in tort (including, without limitation, acts
of active negligence), contract or any other theory of recovery in law or
equity, whether or not wrongful, whether for compensatory or punitive damages,
equitable relief or otherwise, and whether now known or unknown, suspected or
unsuspected, which are based upon, arise out of or are in connection with the
Released Matters.
4. CLAIMS NOT RELEASED. Notwithstanding anything to the contrary set
forth herein, the Released Matters shall not include any claim of the Releasing
Parties against any of the Released Parties arising from or related to any
executory provision of this Agreement.
5. COVENANTS. Company and MBN each covenant and agree themselves and
on behalf of the Company Releasing Parties and the MBN Releasing Parties, not to
sue, or otherwise participate in any action or class action, against any of the
MBN Released Parties, in
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the case of the Company, and against any of the Company Released Parties, in the
case of MBN, based upon any the claims released in Section 3.
6. CIVIL CODE SECTION 1542; REPRESENTATIONS AND WARRANTIES OF THE
PARTIES. Without limiting the generality of Section 3 above, the Company and
MBN, on behalf of the Company Releasing Parties and MBN Releasing Parties
respectively, expressly release any and all past, present and future claims in
connection with the Released Matters which the Company, MBN or any of the
Releasing Parties does not know of or suspect to exist in their favor, whether
through ignorance, oversight, error, negligence or otherwise, and which, if
known, would materially affect the Company's or MBN's decision to enter into
this Agreement, and to this end the Company and MBN, on behalf of the Releasing
Parties, hereby waive all rights under Section 1542 of the California Civil Code
which states in full as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor."
The Company and MBN represent, warrant and agree that in entering
into this Agreement, they are not relying and have not relied upon any
representation, promise or statement made by anyone which is not recited,
contained or embodied in this Agreement. The Company and MBN understand and
expressly assume the risk that any fact not recited, contained or embodied
herein may turn out hereafter to be other than, different from or contrary to
the facts now known to him or believed by him to be true. Nevertheless, the
Company and MBN intend by this Agreement, and with the advice of their own
independently selected counsel and on behalf of the Releasing Parties, to
release fully, finally and forever the Released Matters and agree that this
Agreement shall be effective in all respects notwithstanding any such difference
in facts and shall not be subject to termination, modification or rescission by
reason of any such difference in facts.
7. NO ASSIGNMENT OR TRANSFER OF CLAIMS. Both the Company and MBN
hereby represent and warrant that they have not heretofore assigned or
transferred, or purported to assign or transfer, to any person or entity,
whether by act, operation of law or otherwise, all or any part of or any
interest in any claim, contention, demand or cause of action relating to the
Released Matter or any interest in the Original Warrant. The Company and MBN
hereby agree to indemnify, defend and hold the Released Parties harmless from
and against any claim, contention, demand, cause of action, obligation and
liability of any nature, character or description whatsoever, including the
payment of attorneys' fees and costs actually incurred, whether or not
litigation is commenced, which may be based upon or which may arise out of or in
connection with any such assignment or transfer or purported assignment or
transfer.
8. NO WRONGDOING. The parties understand and agree that neither the
execution nor delivery of this Agreement by any party nor the receipt of any
consideration by any party incident to this Agreement is an admission of any
wrongdoing whatsoever on the part of any of the Released Parties.
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9. LIMITATIONS OF LIABILITY; NO CONSEQUENTIAL DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NO PARTY
SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTIES FOR
CONSEQUENTIAL, PUNITIVE, INCIDENTAL, OR SPECIAL DAMAGES, INCLUDING BUT NOT
LIMITED TO LOST PROFITS, EVEN IF SUCH PARTIES HAVE BEEN APPRISED OF THE
LIKELIHOOD THEREOF.
10. CONFIDENTIAL INFORMATION. MBN understands and agrees that while
retained as an independent contractor to the Company, it has, as a result, among
other things, had access to, learned, acquired or otherwise became informed of
the Company's proprietary and confidential information that is not generally
known to the public or the competitors of the Company, including, without
limitation, Company information regarding (i) product development, marketing,
financial and sales data and strategies, (ii) lists of any customers, suppliers,
employees or agents, (iii) information about the Company's business, marketing
or sales reports, plans or similar analysis; (iv) terms of any contracts or
agreements with any customers, suppliers, employees or agents; (v) technical,
technological and production know-how; (vi) future plans and methods of doing
business; and (vii) products, inventions, designs, programs, patents and other
processes or documentation, whether developed or in development (collectively,
the "Confidential Information"). MBN understands and agrees that such
Confidential Information constitutes a valuable competitive asset of the Company
and that it is and shall remain the exclusive property of the Company, and, to
that end, it covenants and warrants that it shall never directly or indirectly,
and shall cause its respective directors, officers, members, managers, employees
and affiliates not to, directly or indirectly, make known, divulge, reveal,
furnish, make available, disclose or use any Confidential Information until and
unless any such Confidential Information shall have become, through no fault of
MBN generally known to the public.
11. MISCELLANEOUS PROVISIONS.
a. Binding Nature of Agreement. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and (as applicable) their
respective principals, partners, officers, directors, stockholders, members,
managers, employees, trustees, trust beneficiaries, agents, independent
contractors and the successors, assigns, heirs, executors, administrators and
representatives of each of the foregoing.
b. Attorneys' Fees. In the event of any action, suit or other
proceeding concerning the negotiation, interpretation, validity, performance or
breach of this Agreement, the prevailing party or parties shall be entitled to
recover all of such party's attorneys' fees, expenses and costs, not limited to
costs of suit, incurred in each and every such action, suit or other proceeding,
including any and all appeals or petitions relating thereto.
c. Entire Agreement. This Agreement constitutes and is
intended to constitute the entire agreement of the parties concerning the
subject matter hereof. No covenants, agreements, representations or warranties
of any kind whatsoever have been made by any party hereto, except as
specifically set forth herein. All prior and contemporaneous
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discussions and negotiations with respect to the subject matter hereof are
superseded by this Agreement.
d. Waiver. No waiver of any provision of this Agreement shall
be effective unless in writing and signed by the party against whom the waiver
is sought to be enforced. No failure or delay by any party in exercising any
right, power, or remedy under this Agreement shall operate as a waiver of such
right, power, or remedy. No waiver of any provision, condition or default of
this Agreement shall be construed as a waiver of any other provision, condition
or default.
e. Severability. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable,
in whole or in part, the remaining provisions, and any partially invalid or
unenforceable provisions, to the extent valid and enforceable, shall
nevertheless be binding and valid and enforceable.
f. Amendments. This Agreement may only be modified, amended,
or supplemented by a writing executed by all parties hereto.
g. Governing Law. This Agreement shall be construed according
to and governed by the laws of the State of California. The parties hereto do
hereby irrevocably submit to the jurisdiction of any state or federal court
located in the City and County of Los Angeles, State of California solely in
respect of the interpretation and enforcement of the provisions of this
Agreement
h. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
i. Assignment. No party shall be entitled to assign its rights
or delegate its obligations under this Agreement to any third party without the
prior written consent of the other parties; except that either the Company or
MBN may assign its rights under this Agreement without consent from the other
parties in connection with a merger, consolidation, sale of all or substantially
all of its respective assets or other corporate reorganization. Any attempted or
purported assignment or delegation without such required consent will be void.
j. Notices.All notices, requests and other communications
hereunder shall be deemed to be duly given if sent by first class U.S. mail,
postage prepaid, or overnight courier, addressed to the other party at the
address as set forth herein below:
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To the Company: CytRx Corporation
11726 Vicente Blvd.
Los Angeles, California 90049
Attention: Chief Executive Officer
To the Consultant: MBN Consulting, LLC
3151 Clint Moore Rd.
Suite 204
Boca Raton, Florida 33496
Attention: President
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first set forth above
CYTRX CORPORATION,
a Delaware corporation
By: /s/ STEVEN A. KRIEGSMAN
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Title: President and Chief Executive Officer
MBN CONSULTING, LLC ,
a Florida limited liability company
By: /s/ STEVEN SANDERS
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Its: Managing Director
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