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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
- - --- ACT OF 1934
For the quarterly period ended March 31, 1997
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OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
- - --- EXCHANGE ACT OF 1934
For the transition period from to
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Commission file number 0-15327
CYTRX CORPORATION
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(Exact name of Registrant as specified in its charter)
Delaware 58-1642740
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
154 Technology Parkway, Norcross, Georgia 30092
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(Address of principal executive offices) (Zip Code)
(770) 368-9500
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(Registrant's telephone number)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
YES X NO
---- ----
Number of shares of CytRx Corporation Common Stock, $.001 par value, issued and
outstanding as of May 12, 1997: 7,411,120.
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CYTRX CORPORATION
Form 10-Q
Table of Contents
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<TABLE>
<S> <C> <C>
PART I. FINANCIAL INFORMATION Page
Item 1 Financial Statements:
Condensed Consolidated Balance Sheets as of March 31, 1997 (unaudited)
and December 31, 1996 3
Condensed Consolidated Statements of Operations (unaudited) for the
Three Month Periods Ended March 31, 1997 and 1996 4
Condensed Consolidated Statements of Cash Flows (unaudited) for the
Three Month Periods Ended March 31, 1997 and 1996 5
Notes to Condensed Consolidated Financial Statements 6
Item 2 Management's Discussion and Analysis of Financial Condition
and Results of Operations 9
PART II. OTHER INFORMATION
Item 6 Exhibits and Reports on Form 8-K 12
SIGNATURES 13
</TABLE>
2
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Part I - FINANCIAL INFORMATION
Item 1. - Financial Statements
CYTRX CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
March 31, 1997 December 31, 1996
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(unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 4,040,155 $ 1,604,003
Short-term investments 11,496,765 10,273,108
Accounts receivable, net 2,193,625 643,079
Inventories 11,434 9,508
Other current assets 339,041 532,399
-------------- --------------
Total current assets 18,081,020 13,062,097
Property and equipment, net 5,031,368 5,012,809
Other assets:
Long-term investments 0 5,096,353
Note receivable 975,000 975,000
Other 124,207 153,063
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Total other assets 1,099,207 6,224,416
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Total assets $ 24,211,595 $ 24,299,322
============== ==============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 1,061,115 $ 586,920
Accrued liabilities 1,618,857 1,123,476
Unearned revenue 1,038 251,192
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Total current liabilities 2,681,010 1,961,588
Commitments
Stockholders' equity:
Preferred stock, $.01 par value, 1,000 shares authorized;
no shares issued and outstanding - -
Common stock, $.001 par value, 18,750,000 shares authorized;
7,952,221 and 7,945,203 shares issued at March 31, 1997
and December 31, 1996, respectively 7,952 7,945
Additional paid-in capital 62,683,458 62,653,015
Treasury stock, at cost (552,054 and 507,750 shares held at
March 31, 1997 and December 31, 1996, respectively) (2,186,908) (2,021,669)
Accumulated deficit (38,973,917) (38,301,557)
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Total stockholders' equity 21,530,585 22,337,734
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Total liabilities and stockholders' equity $ 24,211,595 $ 24,299,322
============== ==============
</TABLE>
See accompanying notes.
3
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CYTRX CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
Three Month Period Ended March 31,
----------------------------------
1997 1996
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<S> <C> <C>
Revenues:
Net sales $ 3,743,080 $ 337,525
Investment income 244,535 303,972
Collaborative and grant income 92,667 0
Other income 25,694 33,768
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4,105,976 675,265
Expenses:
Cost of sales 2,324,645 112,715
Research and development 777,564 987,219
Selling, general and administrative 1,676,127 887,270
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4,778,336 1,987,204
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Net loss $ (672,360) $ (1,311,939)
============= =============
Net loss per share -- see Exhibit 11 $ (0.09) $ (0.17)
============= =============
</TABLE>
See accompanying notes.
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CYTRX CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Three Month Period Ended March 31,
------------------------------------
1997 1996
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<S> <C> <C>
Cash flows from operating activities:
Net loss $ (672,360) $ (1,311,939)
Adjustments to reconcile net loss to net cash
used by operating activities:
Depreciation and amortization 154,908 164,107
Net change in assets and liabilities (610,836) (814,581)
------------- --------------
Total adjustments (455,928) (650,474)
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Net cash used by operating activities (1,128,288) (1,962,413)
Cash flows from investing activities:
Increase in short-term investments (1,223,657) (11,658,456)
Decrease in long-term investments 5,096,353 0
Capital expenditures, net (173,467) (68,065)
------------- --------------
Net cash provided (used) by investing activities 3,699,229 (11,726,521)
Cash flows from financing activities:
Proceeds from issuance of common stock 30,450 25,737
Purchase of treasury stock (165,239) -
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Net cash provided (used) by financing activities (134,789) 25,737
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Net increase (decrease) in cash and cash equivalents 2,436,152 (13,663,197)
Cash and cash equivalents at beginning of period 1,604,003 16,645,570
-------------- --------------
Cash and cash equivalents at end of perio $ 4,040,155 $ 2,982,373
============== ==============
</TABLE>
See accompanying notes.
5
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CYTRX CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
March 31, 1997
(Unaudited)
1. DESCRIPTION OF COMPANY AND BASIS OF PRESENTATION
CytRx Corporation's business strategy is to build shareholder value
through the development and commercialization of high value human therapeutic
products and the successful development and rollout of its promising subsidiary
companies. CytRx's CRL-5861 is being developed to treat acute sickle cell
crisis and other vascular diseases. Vaxcel, Inc. is developing the Optivax
vaccine delivery system to enhance the effectiveness of vaccines. VetLife,
Inc. markets and distributes products to enhance food animal growth.
Proceutics, Inc. provides high quality preclinical development services to the
pharmaceutical industry. Reference herein to "the Company" includes CytRx and
its subsidiaries.
The accompanying condensed consolidated financial statements at March 31,
1997 and for the three month periods ended March 31, 1997 and 1996 include the
accounts of CytRx together with those of its subsidiaries and are unaudited,
but include all adjustments, consisting of normal recurring entries, which the
Company's management believes to be necessary for a fair presentation of the
periods presented. All significant intercompany transactions have been
eliminated. Interim results are not necessarily indicative of results for a
full year. The financial statements should be read in conjunction with the
Company's audited financial statements in its Form 10-K for the year ended
December 31, 1996.
2. INVENTORIES
Inventories at March 31, 1997 and December 31, 1996 are comprised of the
following:
March 31, 1997 December 31, 1996
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Finished goods $8,399 $6,144
Raw materials 3,035 3,364
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$11,434 $9,508
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3. REVERSE STOCK SPLIT
All share and per share information in the accompanying condensed
consolidated financial statements and notes thereto has been retroactively
adjusted to reflect a one-for-four
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reverse stock split approved on February 5, 1996 by the Company's stockholders,
effective February 6, 1996.
4. NET LOSS PER COMMON SHARE
Net loss per common share is calculated in accordance with Accounting
Principles Board Opinion No. 15, Earnings per Share, and is based on the
weighted average number of common shares and common share equivalents
outstanding during each period. Stock options and warrants outstanding are
excluded from the computation of net loss per share since the effect is
antidilutive.
In February 1997, the Financial Accounting Standards Board issued
Statement No. 128, Earnings per Share, which is required to be adopted on
December 31, 1997. At that time, the Company will be required to change the
method currently used to compute earnings per share and to restate all prior
periods. Under the new requirements for calculating primary earnings per
share, the dilutive effect of stock options will be excluded. The adoption of
Statement No. 128 will not impact the Company's calculation of net loss per
share for the three month periods ended March 31, 1997 and 1996.
5. POTENTIAL MERGER OF VAXCEL
In December 1996 CytRx, Vaxcel and Zynaxis, Inc. ("Zynaxis") signed an
agreement whereby Zynaxis will be merged with a wholly-owned subsidiary of
Vaxcel. Zynaxis is a publicly-held biotechnology company engaged in the
development of certain vaccine technologies. Under the terms of the agreement,
all of the outstanding shares of Zynaxis will be converted into shares of
Vaxcel based upon certain exchange ratios defined in the agreement. After
closing, it is anticipated that CytRx will own approximately 87.5% of the
outstanding common shares of Vaxcel, with the remaining 12.5% held by the
former stockholders of Zynaxis. The merger will be treated as a purchase by
Vaxcel and is expected to constitute a tax-free reorganization for Zynaxis
stockholders.
Pursuant to the agreement, CytRx will provide up to $2 million to Zynaxis
under a secured credit facility bearing interest at prime plus 2% during the
period prior to the closing of the merger, at which time the outstanding
principal and interest will be contributed to the capital of Vaxcel, together
with additional equity in the amount of $4 million less the outstanding
principal and interest of the secured note. At March 31, 1997 the outstanding
principal balance under this credit facility was $975,000 and during April 1997
CytRx advanced an additional $450,000 to Zynaxis.
The proposed transaction is subject to the approval of the Zynaxis
stockholders at a meeting to be held May 21, 1997.
7
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6. ADOPTION OF SHAREHOLDER PROTECTION RIGHTS PLAN
Effective April 16, 1997, the Company's Board of Directors declared a
distribution of one Right for each outstanding share of the Company's Common
Stock to stockholders of record at the close of business on May 15, 1997 and
for each share of Common Stock issued by the Company thereafter and prior to a
Flip-in Date (as defined below). Each Right entitles the registered holder to
purchase from the Company one ten-thousandth (1/10,000th) of a share of Series
A Junior Participating Preferred Stock, at an exercise price of $30. The
Rights are generally not exercisable until 10 business days after an
announcement by the Company that a person or group of affiliated persons (an
"Acquiring Person") has acquired beneficial ownership of 15% or more of the
Company's then outstanding shares of Common Stock (a "Flip-in Date").
In the event the Rights become exercisable as a result of the acquisition
of shares, each Right will enable the owner, other than the Acquiring Person,
to purchase at the Right's then current exercise price a number of shares of
Common Stock with a market value equal to twice the exercise price. In
addition, unless the Acquiring Person owns more than 50% of the outstanding
shares of Common Stock, the Board of Directors may elect to exchange all
outstanding Rights (other than those owned by such acquiring person) at an
exchange ratio of one share of Common Stock per Right. All Rights that are
owned by any person on or after the date such person becomes an Acquiring
Person will be null and void.
The Rights have been distributed to protect the Company's stockholders
from coercive or abusive takeover tactics and to give the Board of Directors
more negotiating leverage in dealing with prospective acquirors.
8
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Item 2. -- MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Financial Condition and Liquidity
At March 31, 1997 the Company had cash and investments of $15.5 million
and net assets of $21.5 million, compared to $17 million and $22.3 million,
respectively, at December 31, 1996. Working capital totaled $15.4 million at
March 31, 1997, compared to $11.1 million at December 31, 1996. Working
capital at December 31, 1996 excludes $5.1 million of investments classified as
non-current assets which mature in early 1998 that are included in working
capital at March 31, 1997.
Management believes that cash and investments on hand, combined with
interest income and operating revenues, will be sufficient to satisfy the
Company's liquidity and working capital needs for the next several years, but
it is possible that additional funding may be required to accomplish the
necessary testing and data collection procedures prescribed by the U.S. Food
and Drug Administration for the commercialization of any products for human
use. Definitive statements as to the time required and costs involved in
reaching certain objectives for the Company's products are difficult to project
due to the uncertainties of the medical research field. Requirements could
vary depending upon the results of research, competitive and technological
developments, and the time and expense required for governmental approval of
products, some of which factors are beyond management's control.
During 1996 the Company received federal government funding for certain
research and development activities via several Small Business Innovative
Research (SBIR) grants. The Company will continue to seek government
assistance for its product development efforts as appropriate and available.
Additional funding for research and development expenditures is expected to be
obtained through joint ventures and product licensing arrangements with other
companies. CytRx also anticipates that it may raise funds through equity
financings of one or more of its subsidiaries, either directly by the
subsidiary through issuance of the subsidiary's stock, or through sale by CytRx
of a portion of its ownership in a subsidiary. These statements regarding the
Company's plans for future financing are forward-looking statements that are
subject to a number of risks and uncertainties. The Company's ability to
obtain future financings through joint ventures, product licensing
arrangements, equity financings or otherwise is subject to market conditions
and the Company's ability to identify parties that are willing and able to
enter into such arrangements on terms that are satisfactory to the Company.
There can be no assurance that the Company will be able to obtain future
financing from these sources.
In December 1996 CytRx, Vaxcel and Zynaxis, Inc. signed an agreement to
merge Zynaxis with a wholly-owned subsidiary of Vaxcel (see Note 5 to Financial
Statements). The merger is subject to approval by the Zynaxis shareholders at
a meeting to be held on May 21, 1997. Pursuant to the agreement, CytRx has
committed to provide $4 million in equity funding to Vaxcel, less the
outstanding principal and interest drawn on a $2 million secured credit
facility by Zynaxis during the period prior to closing of the merger.
Subsequent to the merger, CytRx
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will own approximately 87.5% of Vaxcel, with the remaining 12.5% held by the
former Zynaxis shareholders. It is expected that the Vaxcel common stock will
be publicly traded subsequent to the merger.
During 1995 the Company formed a new subsidiary, Proceutics, Inc., to
provide preclinical development services to the pharmaceutical industry. CytRx
contributed existing property and staff resources to the venture, which
commenced formal operations in January 1996. Although Proceutics continues to
provide services to its affiliates, revenues derived from third party sources
are contributing to the Company's consolidated liquidity and capital resources.
In January 1996 VetLife signed an agreement with IVY Laboratories, Inc. to
market and distribute IVY's line of FDA-approved cattle growth products and
devices in North America beginning January 1, 1997. In September 1996 VetLife
signed an agreement with Elanco Animal Health, a division of Eli Lilly and
Company, whereby VetLife became the exclusive U.S. supplier of Elanco's
Compudose cattle growth promotant products, effective October 1, 1996.
Management expects that revenue generated from these arrangements will offset
VetLife's product development efforts and will contribute to the Company's
consolidated liquidity and capital resources.
At December 31, 1996 the Company has net operating loss carryforwards for
income tax purposes of approximately $37 million, which will expire at various
dates through 2011 if not utilized. The Company also has research and
development credits available to reduce income taxes, if any, of approximately
$1.1 million. Based on an assessment of all available evidence including, but
not limited to, the Company's limited operating history and lack of
profitability, uncertainties of the commercial viability of the Company's
technology, the impact of government regulation and healthcare reform
initiatives, and other risks normally associated with biotechnology companies,
the Company has concluded that it is more likely than not that these net
operating loss carryforwards and credits will not be realized and, as a result,
a 100% deferred tax valuation allowance has been recorded against these assets.
Such valuation allowance had no impact on reported net losses.
Results of Operations
The following table presents the breakdown of consolidated results of
operations by operating unit for the three month periods ended March 31, 1997
and 1996. Although the subsequent discussion addresses the consolidated
results of operations for CytRx together with its subsidiaries, management
believes this presentation of net results by operating unit is important to an
understanding of the consolidated financial statements taken as a whole.
10
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<TABLE>
<CAPTION>
Three Month Period Ended March 31,
------------------------------------
1997 1996
(in thousands) ----------------- -----------------
<S> <C> <C>
CytRx $(616) $(361)
Proceutics (87) (409)
Vaxcel (343) (296)
VetLife 374 (246)
----------------- -----------------
Consolidated $(672) $(1,312)
================= =================
</TABLE>
Consolidated net sales for the three months ended March 31, 1997 were
$3,743,000, as compared to $338,000 in 1996. The significant components of net
sales are shown below.
<TABLE>
<CAPTION>
Three Month Period Ended March 31,
------------------------------------
1997 1996
(in thousands) ----------------- -----------------
<S> <C> <C>
Product Sales (VetLife) $3,080 $ -
Product Sales (CytRx) 128 123
Service Revenues (Proceutics) 436 155
Service Revenues (CytRx) 99 60
----------------- -----------------
Consolidated $3,743 $338
================= =================
</TABLE>
Cost of sales were $2,325,000 (62% of net sales) during the first quarter
of 1997 as compared to $113,000 (33% of net sales) in 1996. This increase is
directly attributable to the sales activities of VetLife, which initiated sales
and marketing activities during the fourth quarter of 1996, as well as an
increased level of activity for Proceutics.
Investment income was $244,000 during the first quarter of 1997 as
compared to $304,000 for the same period in 1996, corresponding to reductions
in cash and investment balances.
Research and development expenditures were $778,000 during the first
quarter of 1997 as compared to $987,000 for the same period in 1996. This
decrease is due in part to staff reductions and other scale-backs in research
and development activities by VetLife during 1996 as it shifted its primary
focus to the start-up and pre-marketing activities of its Cattle Business Unit.
Also contributing to the decrease is the broader base of selling and
administrative activities in Proceutics and VetLife to which overall facilities
costs and shared services are allocated, thereby reducing such allocations to
research and development.
Selling, general and administrative expenses during the first quarter of
1997 were $1,676,000 as compared to $887,000 in 1996. This increase is
attributable to the initiation of selling activities for VetLife, together with
the resulting increased allocation of overhead expenses as discussed above.
Management believes that inflation had no material impact on the Company's
operations during the three year period ended December 31, 1996.
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Part II -- OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit
Number Description
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3(ii) Bylaws of the Company
4.1 Shareholder Protection Rights Agreement, dated as of
April 16, 1997, between CytRx Corporation and American
Stock Transfer & Trust Company, as Rights Agent *
4.2 Certificate of Designation, Preferences and Rights of the
Series A Junior Participating Preferred Stock of CytRx
Corporation
11 Statement re: computation of net loss per share
27 Financial Data Schedule (for SEC use only).
* Incorporated by reference from the Company's report on Form 8-K
filed April 16, 1997
(b) Reports on Form 8-K: None.
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SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CYTRX CORPORATION
(Registrant)
Date: May 14, 1997 By: /s/ Mark W. Reynolds
------------ -------------------------
Mark W. Reynolds
Chief Financial Officer
(Chief Accounting Officer)
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EXHIBIT 3(ii)
RESTATED BY-LAWS
OF
CYTRX CORPORATION
(a Delaware Corporation)
REFLECTING AMENDMENTS
THROUGH OCTOBER 7, 1993
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ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK. Every holder of stock in the
corporation shall be entitled to have a certificate signed by, or in the name
of, the corporation by the Chairman or Vice-Chairman of the Board of Directors,
if any, or by the President or a Vice-President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of the
Corporation certifying the number of shares owned by him in the corporation.
If such certificate is countersigned by a transfer agent other than the
corporation or its employee or by a registrar other than the corporation or its
employee, any other signature on the certificate may be a facsimile. In case
any officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if he were such officer,
transfer agent, or registrar at the date of issue.
Whenever the corporation shall be authorized to issue more than one class
of stock or more than one series of any class of stock, and whenever the
corporation shall issue any shares of its stock as partly paid stock, the
certificates representing shares of any such class or series or of any such
partly paid stock shall set forth thereon the statements prescribed by the
General Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
The corporation may issue a new certificate of stock in place of any
certificate theretofore issued by it alleged to have been lost, stolen, or
destroyed, and the Board of Directors may require the owner of any lost,
stolen, or destroyed certificate, or his legal representative, to give the
corporation a bond sufficient to indemnify the corporation against any claim
that may be made against it on account of the alleged loss, theft, or
destruction of any such certificate or the issuance of any such new
certificate.
2. FRACTIONAL SHARE INTERESTS. The corporation may, but shall not be
required to, issue fractions of a share. In lieu thereof it shall either pay
in cash the fair value of fractions of a share, as determined by the Board of
Directors, to those entitled thereto or issue scrip or fractional warrants in
registered or bearer form over the manual or facsimile signature of an officer
of the corporation or of its agent, exchangeable as therein provided for full
shares, but such scrip or fractional warrants shall not entitle the holder to
any rights of a stockholder except as therein provided. Such scrip or
fractional warrants may be issued subject to the condition that the same shall
become void if not exchanged for certificates representing full shares of stock
before a specified date, or subject to the condition that the shares of stock
for which such scrip or fractional warrants are exchangeable may be sold by the
corporation and the proceeds thereof distributed to the holders of such scrip
or fractional warrants, or subject to any other conditions which the Board of
Directors may determine.
<PAGE> 3
3. STOCK TRANSFERS. Upon compliance with provisions restricting the
transfer or registration of transfer of shares of stock, if any, transfers or
registration of transfers of shares of stock of the corporation shall be made
only on the stock ledger of the corporation by the registered holder thereof,
or by his attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the corporation or with a transfer agent or a
registrar, if any, and on surrender of the certificate or certificates for such
shares of stock properly endorsed and the payment of all taxes due thereon.
4. RECORD DATE FOR STOCKHOLDERS. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to or dissent from any corporate
action in writing without a meeting, or for the purpose of determining
stockholders entitled to receive payment of any dividend or other distribution
or the allotment of any rights, or to exercise any rights in respect of any
change, conversion, or exchange of stock, or for the purpose of any other
lawful action, the directors may fix, in advance, a date as the record date for
any such determination of stockholders. Such date shall not be more than sixty
days nor less than ten days before the date of such meeting, nor more than
sixty days prior to any other action. If no record date is fixed, the record
date for the determination of stockholders entitled to notice of or to vote at
a meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; the record date for determining stockholders for any other purpose shall
be at the close of business on the day on which the Board of Directors adopts
the resolution relating thereto. When a determination of stockholders of
record entitled to notice of or to vote at any meeting of stockholders has been
made as provided in this paragraph, such determination shall apply to any
adjournment thereof; provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting.
5. MEANING OF CERTAIN TERMS. As used herein in respect of the right to
notice of a meeting of stockholders or a waiver thereof or to participate or
vote thereat or to consent or dissent in writing in lieu of a meeting, as the
case may be, the term "share" or "shares" or "share of stock" or "shares of
stock" or "stockholder" or "stockholders" refers to an outstanding share or
shares of stock and to a holder or holders of record of outstanding shares of
stock when the corporation is authorized to issue only one class of shares of
stock, and said reference is also intended to include any outstanding share or
shares of stock and any holder or holders of record of outstanding shares of
stock of any class upon which or upon whom the certificate of incorporation
confers such rights where there are two or more classes or series of shares of
stock or upon which or upon whom the General Corporation Law confers such
rights notwithstanding that the certificate of incorporation may provide for
more than one class or series of shares of stock, one or more of which are
limited or denied such rights thereunder; provided,
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<PAGE> 4
however, that no such right shall vest in the event of an increase or decrease
in the authorized number of shares of stock of any class or series which is
otherwise denied voting rights under the provisions of the certificate of
incorporation.
6. STOCKHOLDERS MEETINGS.
TIME. The annual meeting shall be held on the date and at the time fixed,
from time to time, by the directors, provided, that the first annual meeting
shall be held on a date within thirteen months after the organization of the
corporation, and each successive annual meeting shall be held on a date within
thirteen months after the date of the preceding annual meeting. A special
meeting shall be held on the date and at the time fixed by the directors.
PLACE. Annual meetings and special meetings shall be held at such place,
within or without the State of Delaware, as the directors from time to time may
fix. Whenever the directors shall fail to fix such place, the meeting shall be
held at the registered office of the corporation in the State of Delaware.
CALL. Annual meetings and special meetings may be called by the directors
or by any officer instructed by the directors to call the meeting.
NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall be
given, stating the place, date, and hour of the meeting and stating the place
within the city or other municipality or community at which the list of
stockholders of the corporation may be examined. The notice of an annual
meeting shall state that the meeting is called for the election of directors
and for the transaction of other business which may properly come before the
meeting, and shall (if any, other action which could be taken at a special
meeting is to be taken at such annual meeting) state the additional purpose or
purposes. The notice of a special meeting shall in all instances state the
purpose or purposes for which the meeting is called. If any action is proposed
to be taken which would, if taken, entitle stockholders to receive payment for
their shares of stock, the notice shall include a statement of that purpose and
to that effect. Except as otherwise provided by the General Corporation Law, a
copy of the notice of any meeting shall be given, personally or by mail, not
less than ten days nor more than fifty days before the date of the meeting,
unless the lapse of the prescribed period of time shall have been waived, and
shall be directed to each stockholder at his record address or at such other
address which he may have furnished by request in writing to the Secretary of
the corporation. Notice by mail shall be deemed to be given when deposited,
with postage thereon prepaid, in the United States mail. If a meeting is
adjourned to another time, not more than thirty days hence, and/or to another
place, and if an announcement of the adjourned time and/or place is made at the
meeting, it shall not be necessary to give notice of the adjourned meeting
unless the directors, after adjournment, fix a new record date for the
adjourned meeting. Notice need not be given to any stockholder who submits a
written waiver of notice by him before or after the time stated therein.
Attendance of a
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<PAGE> 5
person at a meeting of stockholders shall constitute a waiver of notice of such
meeting, except when the stockholder attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders need be specified in any written waiver of notice.
STOCKHOLDER LIST. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders, arranged in alphabetical
order, and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city or other municipality or community
where the meeting is to be held, which place shall be specified in the notice
of the meeting, or, if not so specified, at the place where the meeting is to
be held. The list also shall be produced and kept at the time and place where
the meeting is to be held. The list also shall be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. The stock ledger shall be the
only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by this section or the books of the corporation, or
to vote at any meeting of stockholders.
CONDUCT OF MEETING. Meetings of the stockholders shall be presided over
by one of the following officers in the order of seniority and if present and
acting - the Chairman of the Board, if any, the Vice-Chairman of the Board, if
any, the President, a Vice-President, or, if none of the foregoing is in office
and present and acting, by a chairman to be chosen by the stockholders. The
Secretary of the corporation, or in his absence, an Assistant Secretary, shall
act as secretary of every meeting, but if neither the Secretary nor an
Assistant Secretary is present the chairman of the meeting shall appoint a
secretary of the meeting.
PROXY REPRESENTATION. Every stockholder may authorize another person or
persons to act for him by proxy in all matters in which a stockholder is
entitled to participate, whether by waiving notice of any meeting, voting or
participating at a meeting, or expressing consent or dissent without a meeting.
Every proxy must be signed by the stockholder or by his attorney-in-fact. No
proxy shall be voted or acted upon after three years from its date unless such
proxy provides for a longer period. A duly executed proxy shall be irrevocable
if it states that it is irrevocable and if, and only as long as, it is coupled
with an interest sufficient in law to support an irrevocable power. A proxy
may be made irrevocable regardless of whether the interest with which it is
coupled is an interest in the stock itself or an interest in the corporation
generally.
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<PAGE> 6
INSPECTORS AND JUDGES. The directors, in advance of any meeting, may, but
need not, appoint one or more inspectors of election or judges of the vote, as
the case may be, to act at the meeting or any adjournment thereof. If an
inspector or inspectors or judge or judges are not appointed, the person
presiding at the meeting may, but need not, appoint one or more inspectors or
judges. In case any person who may be appointed as an inspector or judge fails
to appear or act, the vacancy may be filled by appointment made by the
directors in advance of the meeting or at the Meeting by the person presiding
thereat. Each inspector or judge, if any, before entering upon the discharge
of his duties, shall take and sign an oath faithfully to execute the duties of
inspector or judge at such meeting with strict impartiality and according to
the best of his ability. The inspectors or judges, if any, shall determine the
number of shares of stock outstanding and the voting power of each, the shares
of stock represented at the meeting, the existence of a quorum, the validity
and effect of proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots or consents, determine the result,
and do such acts as are proper to conduct the election or vote with fairness to
all stockholders. On request of the person presiding at the meeting, the
inspector or inspectors or judge or judges, if any, shall make a report in
writing of any challenge, question or matter determined by him or them and
execute a certificate of any fact found by him or them.
QUORUM. The holders of a majority of the outstanding shares or stock
shall constitute a quorum at a meeting of stockholders for the transaction of
any business. The stockholders present may adjourn the meeting despite the,
absence of a quorum.
VOTING. Each share of common stock shall entitle the holder thereof to
one vote. The voting rights of holders of Preferred Stock shall be as set
forth in Preferred Stock Designations adopted by the Board of Directors in
accordance with Article Fourth of the Certificate of Incorporation. In the
election of directors, a plurality of the votes cast by holders of each class
of stock entitled to elect directors or a class of directors shall elect. Any
other action shall be authorized by a majority of the votes cast except where
the General Corporation Law prescribes a different percentage of votes and/or a
different exercise of voting power. In the election of directors, voting need
not be by ballot. Voting by ballot shall not be required for any other
corporate action except as otherwise provided by General Corporation Law.
7. STOCKHOLDER ACTION WITHOUT MEETINGS. Whenever the vote of stockholders
at a Meeting thereof is required or permitted to be taken for or in connection
with any corporate action, the meeting and vote of stockholders may be
dispensed with if all of the stockholders who would have been entitled to vote
upon the action if such meeting were held shall consent in writing to such
corporate action being taken; or if less than all of said stockholders, but not
less than those having at least the minimum voting power required to take
corporate action under the provisions of the General Corporation Law, shall
consent in writing to such corporate action; provided that
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<PAGE> 7
prompt notice be given to all stockholders of the taking of such action without
a meeting and by less than unanimous written consent.
8. STOCKHOLDER PROPOSALS. Except as provided in Article II, Section 2 of
these By-laws with respect to stockholder nominations of director candidates,
any stockholder entitled to vote in the election of directors may propose any
action or actions for consideration by the stockholders at any meeting of
stockholders only if written notice of such stockholder's intent to propose
such action or actions for consideration by the stockholders has been given,
either by personal delivery or by registered or certified mail, to the
Secretary of the corporation, by the date specified under Rule 14a-8(a)(4) of
the 1934 Act (or any amendment or successor to such rule) as the deadline for
submitting stockholder proposals for any meeting of stockholders called for
purposes of electing directors. (The Rule currently requires that stockholder
proposals be submitted no later than 120 days before the anniversary of the
mailing date of the previous year's proxy statement.) The deadline for
nominations shall apply regardless of any postponement or adjournment of any
such meeting and regardless of whether the Company is subject to the 1934 Act.
Each such notice shall set forth:
(1) the name and address of the stockholder who intends to make the
proposal and any other stockholders known by the proposing stockholder to
be supporting such proposal;
(2) a representation that the stockholder is a holder of record of stock
of the corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to propose such action or actions
for consideration by the stockholders; and
(3) such information regarding each action as would be required to be
included in a proxy statement filed with the Securities and Exchange
Commission pursuant to the proxy rules of the 1934 Act.
The chairman of the meeting may refuse to consider any stockholder proposal not
made in compliance with the foregoing procedure, in addition to any other basis
for such refusal afforded by the 1934 Act or otherwise.
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION. The business of the corporation shall be
managed by the Board of Directors of the corporation. The use of the phrase
whole board herein refers to the total number of directors which the
corporation would have if there were no vacancies.
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<PAGE> 8
2. QUALIFICATIONS AND NUMBER.
(a) Qualifications.--Each director of the corporation shall be a natural
person of full age. A director of the corporation need not be a citizen of the
United States, a resident of the State of Delaware or a stockholder of the
corporation.
(b) Nomination of Candidates.--Nominations of candidates for election to
the board of directors at a meeting of the stockholders may be made only by or
at the direction of a majority of the board of directors or a nominating
committee appointed by the board of directors or by any stockholder entitled to
vote in such election. A nomination may be made by a stockholder only if
written notice of the nomination has been given to the Secretary of the
corporation, either by personal delivery or registered or certified mail, not
less than the date specified under Rule 14a8(a)(4) of the Securities Exchange
Act of 1934 (the "1934 Act") (or any amendment or successor to such rule) as
the deadline for submitting stockholder proposals for any meeting of
stockholders called for purposes of electing directors. (The Rule currently
requires that stockholder proposals be submitted no later than 120 days before
the anniversary of the mailing date of the previous year's proxy statement.)
The deadline for nominations shall apply regardless of any postponement or
adjournment of any such meeting and regardless of whether the Company is
subject to the 1934 Act. Each such notice shall set forth:
(1) the name and address of the stockholder who intends to make the
nomination and any other stockholders known by the nominating stockholder
to be supporting such nominee;
(2) the number of shares of stock beneficially owned by each stockholder
specified in clause (1) and a representation that the stockholder is a
holder of record or beneficial owner of shares of the corporation
entitled to vote at the meeting and intends to appear in person or by
proxy at the meeting to nominate the person or persons specified in the
notice;
(3) the name, address and principal occupation or employment of the
person or persons to be nominated;
(4) the number of shares of any class of the corporation's stock
beneficially owned by each such person;
(5) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to
be made by the stockholder;
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<PAGE> 9
(6) such other information regarding each nominee proposed by the
stockholder as would be required to be disclosed pursuant to Regulation
13D under the 1934 Act, as amended or included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission if
the nominee had been nominated by the board of directors, regardless of
whether such person is subject to the provisions of any such rules or
regulations;
(7) a representation signed by the nominee that he or she meets the
qualifications specified in Section 2(a); and
(8) the written consent of each nominee, signed by such nominee, to serve
as a director of the corporation if so elected.
The Secretary of the corporation shall notify a stockholder in writing whether
such stockholder's nomination has been made in accordance with the time and
information requirements of this Section 2.
Only persons nominated in accordance with the procedures set forth in this
Section 2(b) shall be eligible for election as directors at a meeting of
stockholders called for the purpose of electing directors. Accordingly, the
chairman of the meeting shall determine whether any nomination by a stockholder
has been made in compliance with the foregoing procedure.
Any stockholder nomination for a director to be elected by the holders of a
class or series of stock of the corporation must be made by a stockholder of
the same class or series.
3. ELECTION AND TERM. The first Board of Directors, unless the members
thereof shall have been named in the certificate of incorporation, shall be
elected by the incorporator or incorporators and shall hold office until the
first annual meeting of stockholders and until their successors have been
elected and qualified or until their earlier resignation or removal. Any
director may resign at any time upon written notice to the corporation.
Thereafter, directors who are elected at an annual meeting of stockholders, and
directors who are elected in the interim to fill vacancies and newly created
directorships, shall hold office until the next annual meeting of stockholders
and until their successors have been elected and qualified or until their
earlier resignation or removal. In the interim between annual meetings of
stockholders or of special meetings of stockholders called for the election of
directors and/or for the removal of one or more directors and for the filling
of any vacancy in that connection, newly created directorships and any
vacancies in the Board of Directors, including vacancies resulting from the
removal of directors for cause or without cause, may be filled by the vote of a
majority of the remaining directors then in office, although less than a
quorum, or by the sole remaining director.
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<PAGE> 10
Until October 1, 1996, the holders of Series A Preferred Stock, if any
shares of Series A Preferred Stock remain outstanding, voting together as a
class, shall elect the number of members of the Board of Directors indicated on
the following chart:
Number of Members
of the Board of
Total Number of Directors Elected by
Members on the Holders of Series A
Board of Directors Preferred Stock
------------------ ---------------
3 2
4 3
5 3
6 4
7 4
8 5
9
The holders of Common Stock, voting together as a class, shall elect the
remaining directors.
4. MEETINGS. TIME. Meetings shall be held at such time as the Board
shall fix, except that the first meeting of a newly elected Board shall be held
as soon after its election as the directors may conveniently assemble.
PLACE. Meetings shall be held at such place within or without the State
of Delaware as shall be fixed by the Board.
CALL. No call shall be required for regular meetings for which the time
and place have been fixed. Special meetings may be called by or at the
direction of the Chairman of the Board, if any, the Vice-Chairman of the Board,
if any, the President, or a majority of the directors in office.
NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required for
regular meetings for which the time and place have been fixed. Written, oral,
or any other mode of notice of the time and place shall be given for special
meetings in sufficient time for the convenient assembly of the directors
thereat. The notice of any meeting need not specify the purpose of the
meeting. Any requirements of furnishing a notice shall be waived by any
director who signs a written waiver of such notice before or after the time
stated therein. Attendance of a director at a meeting shall constitute a
waiver of notice of such meeting, except when the director attends a meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
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<PAGE> 11
QUORUM AND ACTION. A majority of the whole Board shall constitute a
quorum except when a vacancy or vacancies prevents such majority, whereupon a
majority of the directors in office shall constitute a quorum, provided, that
such majority shall constitute at least one-third of the whole Board. A
majority of the directors present, whether or not a quorum is present, may
adjourn a meeting to another time and place. Except as herein otherwise
provided, and except as otherwise provided by the General Corporation Law, the
act of the Board shall be the act by vote of a majority of the directors
present at a meeting, a quorum being present. The quorum and voting provisions
herein stated shall not be construed as conflicting with any provisions of the
General Corporation Law and these By-Laws which govern a meeting of directors
held to fill vacancies and newly created directorships in the Board.
CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if present
and acting, shall preside at all meetings. Otherwise, the Vice-Chairman of the
Board, if any and if present and acting, or the President, if present and
acting, or any other director chosen by the Board, shall preside.
5. REMOVAL OF DIRECTORS. Any or all of the directors may be removed for
cause or without cause by the stockholders. One or more of the directors may
be removed for cause by the Board of Directors.
6. COMMITTEES. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee
to consist of two or more of the directors of the corporation. The Board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. Any
such committee, to the extent provided in the resolution of the Board, shall
have and may exercise the powers of the Board of Directors in the management of
the business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it. in the absence or
disqualification of any member of any such committee or committees, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member.
7. ACTION IN WRITING. Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken without
a meeting if all members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
ARTICLE III
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<PAGE> 12
OFFICERS
The directors shall elect a President, a Secretary, and a Treasurer, and
may elect a Chairman of the Board of Directors, a Vice-Chairman thereof, and
one or more Vice-Presidents, Assistant Secretaries, and Assistant Treasurers,
and may elect or appoint such other officers and agents as are desired. The
President may but need not be a director. Any number of offices may be held by
the same person.
Officers shall have the powers and duties defined in the resolutions
appointing them; provided, that the Secretary shall record all proceedings of
the meetings or of the written actions of the stockholders and of the
directors, and any committee thereof, in a book to be kept for that purpose.
The Board of Directors may remove any officer for cause or without cause.
ARTICLE IV
CORPORATE SEAL
The corporate seal shall be in such form as the Board of Directors shall
prescribe.
ARTICLE V
INDEMNIFICATION
1. MANDATORY INDEMNIFICATION. The corporation shall indemnify, to the
fullest extent permissible under Delaware law, any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action or suit by or in the right of the
corporation to procure a judgment in its favor, by reason of the fact that he
or she is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interest
of the corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful.
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<PAGE> 13
2. MANDATORY ADVANCEMENT OF EXPENSES. Expenses reasonably and actually
incurred by a director, officer, employee, or agent in the course of defending
any suit under paragraph 1 of this Article V shall be paid by the corporation
in advance of the final disposition of the action, suit or proceeding, upon
receipt of an undertaking by or on behalf of the director, officer, employee,
or agent to repay such amounts if it is ultimately determined that he is not
entitled to be indemnified by the corporation. The corporation shall pay these
expenses as they are incurred by the person who may be entitled to
indemnification.
3. CONTINUATION OF RIGHT TO INDEMNIFICATION. The indemnification and
advancement of expenses expressly provided by this bylaw shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of his heirs, executors and administrators.
4. INTENT OF BYLAW. The intent of this Article V is to provide the
broadest possible rights to indemnification to the directors, officers,
employees, and agents of the corporation permissible under the law of Delaware
and not to affect any other right to indemnification that may exist.
ARTICLE VI
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall be subject to
change, by the Board of Directors.
ARTICLE VII
CONTROL OVER BY-LAWS
The power to amend, alter, and repeal these By-Laws and to adopt new
By-Laws, except a By-Law classifying directors for election for staggered
terms, shall be vested in the Board of Directors as well as in the
stockholders.
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<PAGE> 1
EXHIBIT 4.2
CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF THE
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
CYTRX CORPORATION
Pursuant to Section 151 of the
Delaware General Corporation Law
CytRx Corporation, a corporation organized under the laws of the State of
Delaware (the "Corporation"), hereby certifies that, pursuant to the authority
conferred upon the Board of Directors by the Certificate of Incorporation, as
amended, of the Corporation, the Board of Directors on April 16, 1997, adopted
the following resolution creating a series of 1,000 shares of Preferred Stock
designated as Series A Junior Participating Preferred Stock:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (the "Board") in accordance with the
provisions of its Certificate of Incorporation, as amended, a series of
Preferred Stock of the Corporation be and it hereby is created, and that the
designation and amount thereof and the voting rights or powers, preferences and
relative, participating, optional and other special rights of the shares of
such series, and the qualifications, limitations or restrictions thereof are as
follows:
1. Series A Participating Preferred Stock. There is hereby established a
series of Preferred Stock, par value $0.01 per share, of the Corporation, and
the designation and certain terms, powers, preferences and other rights of the
shares of such series, and certain qualifications, limitations and restrictions
thereon, are hereby fixed as follows:
(i) The distinctive serial designation of this series shall be "Series A
Junior Participating Preferred Stock" (hereinafter called "this Series"). Each
share of this Series shall be identical in all with the other shares of this
Series except as to the dates from and after which dividends thereon shall be
cumulative.
(ii) The number of shares in this Series shall initially be 1,000, which
number may from time to time be increased or decreased (but not below the
number then outstanding) by the Board of Directors. Shares of this Series
purchased by the Corporation shall be canceled and shall revert to authorized
but unissued shares of Preferred Stock undesignated as to series. Shares of
this Series may be issued in fractional shares, which fractional shares shall
entitle the holder, in
<PAGE> 2
proportion to such holder's fractional share, to all rights of a holder of a
whole share of this Series.
(iii) The holders of full or fractional shares of this Series shall be
entitled to receive, when and as declared by the Board of Directors, but only
out of funds legally available therefor, dividends, (A) on each date that
dividends or other distributions payable in Common Stock of the Corporation are
payable on or in respect of Common Stock comprising part of the Reference
Package (as defined below), in an amount per whole share of this Series equal
to the aggregate amount of dividends or other distributions (other than
dividends or distributions payable in Common Stock of the Corporation) that
would be payable on such date to a holder of the Reference Package and (B) on
the last day of March, June, September and December in each year, in an amount
per whole share of this Series equal to the excess (if any) of $1.00 over the
aggregate dividends paid per whole share of this Series during the three-month
period ending on such last day. Each such dividend shall be paid to the
holders of record of shares of this Series on the date, not exceeding sixty
days preceding such dividend or distribution payment date, fixed for that
purpose by the Board of Directors in advance of payment of each particular
dividend or distribution. Dividends on each full and each fractional share of
this Series shall be cumulative from the date such full or fractional share is
originally issued; provided that any such full or fractional share originally
issued after a dividend record date and on or prior to the dividend payment
date to which such record date relates shall not be entitled to receive the
dividend payable on such dividend payment date or any amount in respect of the
period from such original issuance to such dividend payment date.
The term "Reference Package" shall initially mean 10,000 shares of Common
Stock, par value $.001 per share ("Common Stock"), of the Corporation. In the
event the Corporation shall at any time (A) declare or pay a dividend on any
Common Stock payable in Common Stock, (B) subdivide any Common Stock or (C)
combine any Common Stock into a smaller number of shares, then and in each such
case the Reference Package after such event shall be the Common Stock that a
holder of the Reference Package immediately prior to such event would hold
thereafter as a result thereof.
Holders of shares of this Series shall not be entitled to any dividends,
whether payable in cash, property or stock, in excess of full cumulative
dividends, as herein provided on this Series.
So long as any shares of this Series are outstanding, no dividend (other
than a dividend in Common Stock or in any other stock ranking junior to this
Series as to dividends and upon liquidation) shall be declared or paid or set
aside for payment or other distribution declared or made upon the Common Stock
or upon any other stock ranking junior to this Series as to dividends or upon
liquidation, nor shall any Common Stock nor any other stock of the Corporation
ranking junior to or on a parity with this Series as to dividends or upon
liquidation be redeemed, purchased or otherwise
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<PAGE> 3
acquired for any consideration (or any moneys be paid to or made available for
a sinking fund for the redemption of any shares of any such stock) by the
Corporation (except by conversion into or exchange for stock of the Corporation
ranking junior to this series as to dividends and upon liquidation), unless, in
each case, the full cumulative dividends (including the dividend to be due upon
payment of such dividend, distribution, redemption, purchase or other
acquisition) on all outstanding shares of this Series shall have been, or shall
contemporaneously be, paid.
(iv) In the event of any merger, consolidation, reclassification or other
transaction in which the shares of Common Stock are exchanged for or changed
into other stock or securities, cash and/or any other property, then in any
such case the shares of this Series shall at the same time be similarly
exchanged or changed in an amount per whole share equal to the aggregate amount
of stock, securities, cash and/or any other property (payable in kind), as the
case may be, that a holder of the Reference Package would be entitled to
receive as a result of such transaction.
(v) In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, the holders of
full and fractional shares of this Series shall be entitled, before any
distribution or payment is made on any date to the holders of the Common Stock
or any other stock of the Corporation ranking junior to this Series upon
liquidation, to be paid in full an amount per whole share of this Series equal
to-the greater of (A) $1.00 or (B) the aggregate amount distributed or to be
distributed prior to such date in connection with such liquidation, dissolution
or winding up to a holder of the Reference Package (such greater amount being
hereinafter referred to as the "Liquidation Preference"), together with accrued
dividends to such distribution or payment date, whether or not earned or
declared. If such payment shall have been made in full to all holders of
shares of this Series, the holders of shares of this Series as such shall have
no right or claim to any of the remaining assets of the Corporation.
In the event the assets of the Corporation available for distribution to
the holders of shares of this Series upon any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such holders are entitled
pursuant to the first paragraph of this Section (v), no such distribution shall
be made on account of any shares of any other class or series of Preferred
Stock ranking on a parity with the shares of this Series upon such liquidation,
dissolution or winding up unless proportionate distributive amounts shall be
paid on account of the shares of this Series, ratably in proportion to the full
distributable, amounts for which holders of all such parity shares are
respectively entitled upon such liquidation, dissolution or winding up.
Upon the liquidation, dissolution or winding up of the Corporation, the
holders of shares of this Series then outstanding shall be entitled to be paid
out of assets of the Corporation available for distribution to its stockholders
all amounts to which such holders are entitled pursuant to the first paragraph
of this Section (v) before any
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<PAGE> 4
payment shall be made to the holders of Common Stock or any other stock of the
Corporation ranking junior upon liquidation to this Series.
For the purposes of this Section (v), the consolidation or merger of, or
binding share exchange by, the Corporation with any other corporation shall not
be deemed to constitute a liquidation, dissolution or winding up of the
corporation.
(vi) The shares of this series shall not be redeemable.
(vii) In addition to any other vote or consent of stockholders required by
law or by the Certificate of Incorporation, as amended, of the Corporation,
each whole share of this Series shall, on any matter, vote as a class with any
other capital stock comprising part of the Reference Package and voting on such
matter and shall have the number of votes thereon that a holder of the
Reference Package would have.
IN WITNESS WHEREOF, CytRx Corporation has caused this Certificate of
Designation to be executed as of May ____, 1997.
CYTRX CORPORATION
By: /s/ Jack J. Luchese
-------------------
Jack J. Luchese
President and Chief Executive Officer
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<PAGE> 1
EXHIBIT 11
CytRx Corporation
Computation of Net Loss Per Share
<TABLE>
<CAPTION>
COMPUTATION OF LOSS PER SHARE - PRIMARY
Three Month Period Ended March 31,
----------------------------------
1997 1996
----------- ------------
<S> <C> <C>
Net loss $ (672,360) $ (1,311,939)
=========== ============
Average number of common shares outstanding 7,441,039 7,859,962
Common shares issuable assuming exercise of
stock options and warrants 0 (1) 0 (1)
----------- ------------
Total shares 7,441,039 7,859,962
=========== ============
Net loss per share ($0.09) ($0.17)
=========== ============
COMPUTATION OF LOSS PER SHARE - FULLY DILUTED
Net loss $ (672,360) $ (1,311,939)
=========== ============
Average number of common shares outstanding 7,441,039 7,859,962
Common shares issuable assuming exercise of
stock options and warrants 0 (1) 0 (1)
----------- ------------
Total shares 7,441,039 7,859,962
=========== ============
Net loss per share ($0.09) ($0.17)
=========== ============
</TABLE>
(1) Stock options and warrants outstanding are excluded from the
computation of net loss per share since their effect would be antidilutive.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTIAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FORM 10-Q
FOR THE PERIOD ENDED 3/31/97 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> MAR-31-1997
<CASH> 4,040,155
<SECURITIES> 11,496,765
<RECEIVABLES> 2,242,055
<ALLOWANCES> 48,430
<INVENTORY> 11,434
<CURRENT-ASSETS> 18,081,020
<PP&E> 7,232,568
<DEPRECIATION> 2,201,200
<TOTAL-ASSETS> 24,211,595
<CURRENT-LIABILITIES> 2,681,010
<BONDS> 0
0
0
<COMMON> 7,952
<OTHER-SE> 21,522,633
<TOTAL-LIABILITY-AND-EQUITY> 24,211,595
<SALES> 3,743,080
<TOTAL-REVENUES> 4,105,976
<CGS> 2,324,645
<TOTAL-COSTS> 2,324,645
<OTHER-EXPENSES> 2,453,691
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (672,360)
<INCOME-TAX> 0
<INCOME-CONTINUING> (672,360)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (672,360)
<EPS-PRIMARY> (.09)
<EPS-DILUTED> (.09)
</TABLE>
