SEC Info - Cytrx Corp - ‘10-K’ for 12/31/16

Cytrx Corp – ‘10-K’ for 12/31/16 – ‘EX-10.38’

On: Wednesday, 3/15/17, at 3:19pm ET · For: 12/31/16 · Accession #: 799698-17-12 · File #: 0-15327

Document/Exhibit Description Pages Size 1: 10-K Annual Report on Form 10-K for Year Ending Dec. HTML 1.05M 31, 2016 2: EX-4.6 Form of Warrant Dated July 20, 2016 HTML 107K 3: EX-4.7 Contingent Common Stock Purchase Warrant HTML 72K 4: EX-4.8 Emmanuel Warrant Issued on November 10, 2013 HTML 87K 5: EX-4.9 Emmanuel Warrant HTML 74K 6: EX-10.26 2017 Employment Agreement - Daniel Levitt, M.D., HTML 101K Ph.D. 7: EX-10.29 2017 Employment Agreement - Scott Wieland HTML 79K 8: EX-10.30 2017 Employment Agreement - John Caloz HTML 79K 9: EX-10.31 2017 Employment Agreement - Olivia Ware HTML 81K 10: EX-10.38 2017 Amendment to Employment Agreement - Steven A. HTML 30K Kriegsman 11: EX-10.39 Restricted Stock Purchase Agreement Dated January HTML 46K 11, 2017 12: EX-23.1 Consent of Independent Accounting Firm HTML 23K 13: EX-31.1 Certification of Chief Executive Officer HTML 30K 14: EX-31.2 Certification of Chief Financial Officer HTML 29K 15: EX-32.1 Certification of Chief Executive Officer (SEC. HTML 24K 1350) 16: EX-32.2 Certification of Chief Financial Officer (SEC. HTML 25K 1350) 23: R1 Document and Entity Information HTML 51K 24: R2 Balance Sheets HTML 101K 25: R3 Balance Sheets (Parenthetical) HTML 51K 26: R4 Statements of Operations HTML 66K 27: R5 Statements of Stockholders' Equity HTML 118K 28: R6 Statements of Cash Flows HTML 128K 29: R7 Nature of Business HTML 34K 30: R8 Summary of Significant Accounting Policies HTML 83K 31: R9 Foreign Currency Remeasurement HTML 29K 32: R10 Receivables HTML 28K 33: R11 Prepaid and Other Assets HTML 25K 34: R12 Short-term Investments HTML 28K 35: R13 Equipment and Furnishings HTML 34K 36: R14 Accrued Expenses and Other Current Liabilities HTML 34K 37: R15 Non-Cash Litigation Settlement Due in Shares of HTML 26K Common Stock 38: R16 Term Loan HTML 41K 39: R17 Warrant Liabilities HTML 41K 40: R18 Commitments and Contingencies HTML 62K 41: R19 Equity Transactions HTML 36K 42: R20 Stock Options and Equity-Classified Warrants HTML 218K 43: R21 Stockholder Protection Rights Plan HTML 28K 44: R22 Income Taxes HTML 66K 45: R23 Earnings (Loss) Per Share HTML 31K 46: R24 Quarterly Financial Data (Unaudited) HTML 49K 47: R25 Subsequent Event HTML 25K 48: R26 Schedule Ii - Valuation and Qualifying Accounts HTML 42K 49: R27 Summary of Significant Accounting Policies HTML 132K (Policies) 50: R28 Summary of Significant Accounting Policies HTML 53K (Tables) 51: R29 Equipment and Furnishings (Tables) HTML 32K 52: R30 Accrued Expenses and Other Current Liabilities HTML 34K (Tables) 53: R31 Term Loan (Tables) HTML 42K 54: R32 Warrant Liabilities (Tables) HTML 39K 55: R33 Commitments and Contingencies (Tables) HTML 46K 56: R34 Stock Options and Equity-Classified Warrants HTML 219K (Tables) 57: R35 Income Taxes (Tables) HTML 62K 58: R36 Earnings (Loss) Per Share (Tables) HTML 29K 59: R37 Quarterly Financial Data (Unaudited) (Tables) HTML 48K 60: R38 Nature of Business (Details) HTML 68K 61: R39 Summary of Significant Accounting Policies HTML 69K (Details) 62: R40 Foreign Currency Remeasurement (Details) HTML 27K 63: R41 Receivables (Details) HTML 26K 64: R42 Prepaid and Other Assets (Details) HTML 26K 65: R43 Short-term Investments (Details) HTML 25K 66: R44 Equipment and Furnishings (Details) HTML 35K 67: R45 Accrued Expenses and Other Current Liabilities HTML 38K (Details) 68: R46 Non-Cash Litigation Settlement Due in Shares of HTML 30K Common Stock (Details) 69: R47 Term Loan (Details) HTML 75K 70: R48 Warrant Liabilities (Details) HTML 47K 71: R49 Commitments and Contingencies (Details) HTML 107K 72: R50 Equity Transactions (Details) HTML 111K 73: R51 Stock Options and Equity-Classified Warrants HTML 199K (Details) 74: R52 Stock Options and Equity-Classified Warrants, HTML 37K Schedule of Employee and Non Employee Service Share Based Compensation (Details) 75: R53 Stock Options and Equity-Classified Warrants, HTML 87K Options by Exercise Price Range (Details) 76: R54 Stock Options and Equity-Classified Warrants, HTML 76K Warrants, Shares Purchased and Intrinsic Value (Details) 77: R55 Stockholder Protection Rights Plan (Details) HTML 36K 78: R56 Income Taxes (Details) HTML 113K 79: R57 Earnings (Loss) Per Share (Details) HTML 40K 80: R58 Quarterly Financial Data (Unaudited) (Details) HTML 35K 81: R59 Subsequent Event (Details) HTML 32K 82: R60 Schedule Ii - Valuation and Qualifying Accounts HTML 35K (Details) 84: XML IDEA XML File -- Filing Summary XML 127K 83: EXCEL IDEA Workbook of Financial Reports XLSX 78K 18: EX-101.INS XBRL Instance -- cytr-20161231 XML 2.03M 20: EX-101.CAL XBRL Calculations -- cytr-20161231_cal XML 209K 21: EX-101.DEF XBRL Definitions -- cytr-20161231_def XML 648K 17: EX-101.LAB XBRL Labels -- cytr-20161231_lab XML 1.78M 22: EX-101.PRE XBRL Presentations -- cytr-20161231_pre XML 1.03M 19: EX-101.SCH XBRL Schema -- cytr-20161231 XSD 178K 85: ZIP XBRL Zipped Folder -- 0000799698-17-000012-xbrl Zip 193K

EXHIBIT 10.38

FOURTH AMENDMENT TO FOURTH AMENDED
AND RESTATED EMPLOYMENT AGREEMENT

This Fourth Amendment (this "Amendment") is entered into as of January 10, 2017, between CytRx Corporation, a Delaware corporation ("Employer"), and Steven A. Kriegsman ("Employee") in order to amend as follows that certain Fourth Amended and Restated Employment Agreement, effective as of May 10, 2012, as amended by the First Amendment thereto dated as of March 4, 2014, the Second Amendment thereto dated as of January 1, 2015 and the Third Amendment thereto dated as of March 8, 2016 (as so amended, the "Employment Agreement"), between Employer and Employee.

1. Term. The first sentence of Section 5 of the Employment Agreement is hereby amended in part to read:

"Employee's employment under this Agreement shall commence on the Effective Date and shall continue until December 31, 2021 (the "Expiration Date"), unless sooner terminated by Employer or Employee in accordance with Section 7 (the "Term")"

The remainder of that sentence and Section 5 of the Employment Agreement are unchanged.

2. Restricted Stock. A new Section 6.3.1 of the Employment Agreement is hereby added to read:

"Restricted Stock. Employee shall receive a special, off-cycle equity award in the form of a number of shares of restricted stock of Employer (the "Restricted Stock") with an aggregate grant date fair market value equal to $1 million, which included 2,325,586 shares at $0.43 a share granted on December 15, 2016. The Restricted Stock shall vest in equal annual installments on each of the first three anniversaries of the grant date, subject to Employee's continuous service to Employer through the applicable vesting date. For the avoidance of doubt, the Restricted Stock grant shall not be construed to limit in any way Employee's eligibility to participate in Employer's annual grant of stock options."

3. Change in Control. The fourth sentence of Section 7.5 of the Employment Agreement is hereby amended in part to read:

"For clarity, during the Term and after two years after a Change in Control, the provisions of Section 7.2 and Section 7.3 shall once more apply; provided, however, that in the event of Employee's termination of employment for any reason on or following the expiration of the Term (including, without limitation, an expiration of the Term arising from the non-renewal of this Agreement by either party under Section 5), Employee shall be entitled to the severance benefits set forth in this Section 7.5."

The remainder of Section 7.5 of the Employment Agreement is unchanged.

4. Legal Fees. A new Section 17 of the Employment Agreement is hereby added to read:

"Legal Fees. Costs and expenses (including attorneys' fees) incurred by Employee in the enforcement of his rights under this Agreement shall be paid by Employer in advance of the final disposition of such litigation or arbitration."

5. Arbitration. Section 18 of the Employment Agreement is hereby amended by removing therefrom the final sentence. The remainder of Section 18 of the Employment Agreement is unchanged.

6. Survival. Section 20 of the Employment Agreement is hereby amended in its entirety to read:

"In the event this Agreement expires after its Term or is terminated, the provisions of Sections 7, 10, 11, 12, 15, 16, 17, 18, 19 and 22 shall survive."

7. No Other Changes to the Employment Agreement. Except as expressly amended by this Amendment, all of the terms of the Employment Agreement shall remain in full force and effect.

IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first set forth above.

EMPLOYER:

CytRx Corporation

By: /s/ DR. LOUIS IGNARRO

Dr. Louis Ignarro

Lead Director and Chairman of the Compensation Committee of the CytRx Corporation Board of Directors

EMPLOYEE:

By: /s/ STEVEN A. KRIEGSMAN

Steven A. Kriegsman