<PAGE> 1
As filed with the Securities and Exchange Commission on July 21, 1997.
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
- --------------------------------------------------------------------------------
CYTRX CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 58-1642740
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
154 TECHNOLOGY PARKWAY
TECHNOLOGY PARK/ATLANTA
NORCROSS, GEORGIA 30092
(Address, including zip code, of principal executive offices)
CYTRX CORPORATION
401(K) PROFIT-SHARING PLAN
(Full title of the plan)
Copy to:
JACK J. LUCHESE GEORGE M. MAXWELL, JR.
CYTRX CORPORATION ALSTON & BIRD LLP
154 TECHNOLOGY PARKWAY ONE ATLANTIC CENTER
TECHNOLOGY PARK/ATLANTA 1201 WEST PEACHTREE STREET
NORCROSS, GEORGIA 30092 ATLANTA, GEORGIA 30309-3424
(404) 368-9500 (404) 881-7000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
==================================================================================================================================
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to be Registered be Registered Per Share(1) Offering Price(1) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, $.001 par value(2) (3) 100,000 $3.53 $353,000 $106.97
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</TABLE>
(1) Determined in accordance with paragraphs (c) and (h) of Rule 457 solely for
the purpose of calculating the registration fee. The registration fee
calculation is based upon the average of the reported high and low sales
prices of the Registrant's Common Stock on July 15, 1997, as reported on
the Nasdaq Stock Market's National Market System.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
These securities have no offering price and therefore, pursuant to Rule
457(h)(2), no separate registration fee is required.
(3) Includes a Series A Junior Participating Preferred Stock Purchase Right
that accompanies each share of Common Stock.
<PAGE> 2
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated by reference into this
registration statement and are deemed to be a part hereof from the date of the
filing of such documents:
(1) The Annual Report on Form 10-K of CytRx Corporation (the "Company"
or the "Registrant") for the fiscal year ended December 31, 1996.
(2) The Annual Report on Form 11-K of the CytRx Corporation 401(k)
Profit-Sharing Plan (the "Plan") for the fiscal year ended December 31, 1996.
(3) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since December
31, 1996.
(4) The descriptions of the Company's Common Stock and associated
Series A Junior Participating Preferred Stock Purchase Rights contained in the
Company's registration statements filed under the Exchange Act including all
amendments or reports filed for the purpose of updating such descriptions.
(5) All other documents subsequently filed by the Company or the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of filing of such documents.
Any statement contained in a document incorporated or deemed
incorporated herein by reference shall be deemed to be modified or superseded
for the purpose of this registration statement to the extent that a statement
contained herein or in any subsequently filed document which also is, or is
deemed to be, incorporated herein by reference modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this registration
statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Certificate of Incorporation of the Registrant was amended in 1986
so as to eliminate personal liability of the members of the Board of Directors
to the fullest extent permitted by law. Specifically, Article Eleventh of the
Certificate of Incorporation provides as follows:
A director of the Corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived any improper personal
benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this Article to authorize corporate
action further eliminating or limiting the personal liability of
directors, then the liability of a director of the corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of
such repeal or modification.
In addition, the Certificate of Incorporation and By-Laws of the
Registrant provide for indemnification of all officers and directors of the
Registrant to the fullest extent permitted by law. In particular, Article Nine
of the Certificate of Incorporation provides as follows:
The Corporation shall, to the fullest extent permitted by Section 145
of the General Corporation Law of the State of Delaware, as the same
may be amended and supplemented, indemnify any and all persons whom it
shall have power to indemnify under said section from and against any
and all of the expenses, liabilities or other matters referred to in or
covered by said section, and the indemnification provided for herein
shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any By-Law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Article Five of the Corporation's By-Laws provides as follows:
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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.
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.
Section 145 of the Delaware General Corporation Law provides as
follows:
(a) A corporation shall have power to indemnify 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 (other than an action by or in the right of the corporation) by
reason of the fact that the person 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 the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best
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<PAGE> 5
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which the person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that the person's
conduct was unlawful.
(b) A corporation shall have power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person 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) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because the
person has met the applicable standard of conduct set forth in subsections (a)
and (b) of this section. Such determination shall be made (1) by a majority vote
of the directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (2) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (3)
by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such
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<PAGE> 6
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation as
authorized in this section. Such expenses (including attorneys' fees) incurred
by other employees and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who 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 any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under this section.
(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this section with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this section.
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(j) The indemnification and advancement of expenses provided
by, or granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise. The Court of Chancery
may summarily determine a corporation's obligation to advance expenses
(including attorneys' fees).
Section 102(b)(7) of the Delaware General Corporation Law enables a
corporation in its certificate of incorporation to eliminate or limit personal
liability of members of this board of directors or governing body for violations
of a director's fiduciary duty of care. However, directors remain liable for
breaches of duties of loyalty, failing to act in good faith, engaging in
intentional misconduct, knowingly violating a law, paying a dividend or
approving a stock repurchase which was illegal under Delaware General
Corporation Law Section 174 or obtaining an improper personal benefit. In
addition, equitable remedies for breach of fiduciary duty, such as injunction or
recession, are available.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act") may be permitted to directors,
officers and controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director, officer
or controlling person of the Company in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Company will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The exhibits included as part of this registration statement are as
follows:
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<PAGE> 8
Exhibit Number Description
-------------- -----------
4.1 Registrant's Certificate of
Incorporation, as amended (included as
Exhibit 3.1 to the Registrant's annual
report on Form 10-K for the year ended
December 31, 1995 (File No. 000-15327)
and incorporated herein by reference).
4.2 Registrant's Bylaws, as amended.
4.3 Shareholder Protection Rights Agreement
dated April 16, 1997 between CytRx
Corporation and American Stock Transfer
& Trust Company as Rights Agent
(included as Exhibit 4.1 to the
Registrant's quarterly report on Form
10-Q for the quarter ended March 31,
1997 (File No. 000-15327) and
incorporated herein by reference).
4.4 Certificate of Designation, Preferences
and Rights of the Series A Junior
Participating Preferred Stock of CytRx
Corporation (included as Exhibit 4.2 to
the Registrant's quarterly report on
Form 10-Q for the quarter ended March
31, 1997 (File No. 000-15327) and
incorporated herein by reference).
5.1 Opinion of Alston & Bird LLP.
5.2 Internal Revenue Service determination
letter that the Plan is qualified under
Section 401 of the Internal Revenue
Code.
23.1 Consent of Alston & Bird LLP (included
in Exhibit 5 above).
23.2 Consents of Ernst & Young LLP and
Arthur Andersen LLP.
24 Power of Attorney (included on the
signature page contained in Part II
hereof).
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ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities being offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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<PAGE> 10
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the Registrant's articles of incorporation,
bylaws, or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
(signatures on following page)
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Norcross, State of Georgia, on this 21st day of
July, 1997.
CYTRX CORPORATION
By: /s/ Jack J. Luchese
--------------------------------------
Jack J. Luchese
President, Chief Executive Officer and
Chairman of the Board of Directors
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Norcross, State of
Georgia on the 21st day of July, 1997.
CYTRX CORPORATION
401(k) PROFIT-SHARING PLAN
By: /s/ Mark W. Reynolds
--------------------------------------
Mark W. Reynolds
Plan Administrator
Know All Men By These Presents, that each person whose signature
appears below constitutes and appoints Jack J. Luchese and Mark W. Reynolds, and
each of them, his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully and to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, or his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
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<PAGE> 12
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- -----
<S> <C> <C>
/s/ Jack J. Luchese President, Chief Executive Officer and July 21, 1997
- ----------------------------------------------- Chairman of the Board of Directors
Jack J. Luchese (Principal Executive Officer)
/s/ Mark W. Reynolds Chief Financial Officer and Secretary July 21, 1997
- ----------------------------------------------- (Principal Financial Officer and Principal
Mark W. Reynolds Accounting Officer)
/s/ Jack L. Bowman Director July 21, 1997
- -----------------------------------------------
Jack L. Bowman
/s/ Raymond C. Carnahan, Jr. Director July 21, 1997
- -----------------------------------------------
Raymond C. Carnahan, Jr.
/s/ Max Link Director July 21, 1997
- -----------------------------------------------
Max Link
/s/ Herbert H. McDade, Jr. Director July 21, 1997
- -----------------------------------------------
Herbert H. McDade, Jr.
</TABLE>
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<PAGE> 13
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit Number Description
-------------- -----------
4.1 Registrant's Certificate of
Incorporation, as amended (included as
Exhibit 3.1 to the Registrant's annual
report on Form 10-K for the year ended
December 31, 1995 (File No. 000-15327)
and incorporated herein by reference).
4.2 Registrant's Bylaws, as amended.
4.3 Shareholder Protection Rights Agreement
dated April 16, 1997 between CytRx
Corporation and American Stock Transfer
& Trust Company, as Rights Agent
(included as Exhibit 4.1 to the
Registrant's quarterly report on Form
10-Q for the quarter ended March 31,
1997 (File No. 000-15327) and
incorporated herein by reference).
4.4 Certificate of Designation, Preferences
and Rights of the Series A Junior
Participating Preferred Stock of CytRx
Corporation (included as Exhibit 4.2 to
the Registrant's quarterly report on
Form 10-Q for the quarter ended March
31, 1997 (File No. 000-15327) and
incorporated herein by reference).
5.1 Opinion of Alston & Bird LLP.
5.2 Internal Revenue Service determination
letter that the Plan is qualified under
Section 401 of the Internal Revenue
Code.
23.1 Consent of Alston & Bird LLP (included
in Exhibit 5 above).
23.2 Consents of Ernst & Young LLP and
Arthur Andersen LLP.
24 Power of Attorney (included on
signature page of this Registration
Statement).
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<PAGE> 1
EXHIBIT 4.2
Exhibit 4.2
Registrant's Bylaws
As Amended
<PAGE> 2
RESTATED BY-LAWS
OF
CYTRX CORPORATION
(a Delaware Corporation)
REFLECTING AMENDMENTS
THROUGH JUNE 26, 1997
<PAGE> 3
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> 4
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, 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.
<PAGE> 5
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 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
<PAGE> 6
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.
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
<PAGE> 7
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 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;
<PAGE> 8
(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.
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;
<PAGE> 9
(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;
(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. CLASSES, ELECTION, TERM OF OFFICE AND VACANCIES. The
directors shall be divided into three classes, designated as Classes I, II and
III, with each class consisting as nearly as possible of one-third (1/3) of the
total number of directors. The directors
<PAGE> 10
elected at the 1997 annual meeting of stockholders shall be placed in such
classes and shall serve such terms as were described in the Proxy Statement
delivered to the Company's stockholders in connection with such meeting. At the
1998 annual meeting of stockholders and at each subsequent annual meeting of
stockholders, directors elected to succeed those whose terms are expiring shall
be elected for a term of office to expire at the third succeeding annual meeting
of stockholders. The directors shall be elected at annual meetings of the
stockholders, and each director elected shall hold office until his successor is
elected and qualified or until his earlier death, resignation or removal. In the
interim between annual meetings of stockholders or 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, any
vacancy in the Board of Directors resulting from a newly created directorship or
from the death, resignation or removal of a director may be filled by the vote
of a majority of the directors then in office, although less than a quorum, or
by the sole remaining director. A director selected to fill such vacancy shall
serve until the end of the term of the position filled or until his successor is
elected and qualified or his earlier death, resignation or removal.
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.
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,
<PAGE> 11
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 from the Board of Directors only for cause, by action of either the
stockholders or 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
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.
<PAGE> 12
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.
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.
<PAGE> 13
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.
<PAGE> 1
EXHIBIT 5.1
Exhibit 5.1
Opinion of Alston & Bird LLP
<PAGE> 2
[Letterhead of Alston & Bird LLP]
July 21, 1997
CytRx Corporation
154 Technology Parkway
Technology Park/Atlanta
Norcross, Georgia 30092
Re: Form S-8 Registration Statement of CytRx Corporation -- CytRx
Corporation 401(k) Profit-Sharing Plan
Ladies and Gentlemen:
This opinion is given in connection with the filing by CytRx
Corporation, a Delaware corporation (the "Company"), of a Registration Statement
on Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, in connection with the
registration of an additional 100,000 shares of the $.001 par value Common Stock
of the Company (the "Shares") to be issued pursuant to the CytRx Corporation
401(k) Profit-Sharing Plan (the "Plan").
We have examined such corporate records and documents as we deemed
relevant and necessary to enable us to give the opinion set forth herein,
including the Certificate of Incorporation and Bylaws of the Company, as
amended, and resolutions of the Board of Directors of the Company. For
purposes of this opinion, we assume that all Shares will be issued in
accordance with the Plan.
In conducting our examination we assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such documents.
Based upon the foregoing, we are of the opinion that the Shares, when
issued in accordance with the terms and conditions of the Plan, will be duly
authorized, legally issued, fully paid and nonassessable under the Delaware
General Corporation Law as in effect on this date.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement.
ALSTON & BIRD LLP
By: /s/ George M. Maxwell, Jr.
------------------------------
George M. Maxwell, Jr.
<PAGE> 1
EXHIBIT 5.2
Exhibit 5.2
Internal Revenue Service Determination Letter
<PAGE> 2
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P. O. BOX 1055
ATLANTA, GA 30370
Date: Employer Identification Number:
58-1642740
File Folder Number:
CYTRX CORPORATION 580046988
C/O REBEECA PROBERG, Person to Contact:
MERRILL LYNCH BUSINESS FIN.SVCS. HELEN LISSIMORE
P.O. BOX 9038 Contact Telephone Number:
PRINCETON, NJ 08543-9038 (404) 720-2080
Plan Name:
CYTRX CORPORATION 401K
PROFIT SHARING PLAN
Plan Number: 001
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regualtions.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that your read the publication.
This letter relates only to the status of your plans under the Internal
Revenue Code. It is not a determination regarding the effect of other federal or
local statutes.
This determination letter is applicable for the amendment(s) adopted on
05/24/94.
This plan satifies the nondiscrimination in amount requirement of
section 1.401(a)(4)-1(b)(2) of the regulations on the basis of a design-based
safe harbor described in the regulations.
This letter is issued under Rev. Proc. 93-39 and considers the
amendments required by the Tax Reform Act of 1986 except as otherwise specified
in this letter.
This plan satisfies the nondiscriminatory current availability
requirements of section 1.401(a)(4)-4(b) of the regulations with respect to
those benefits, rights, and features that are
<PAGE> 3
currently available to all employees in the plan's coverage group. For this
purpose, the plan's coverage group consists of those employees treated as
currently benefiting for purposes of demonstrating that the plan satisfies the
minimum coverage requirements of section 410(b) of the Code.
This letter may not be relied upon with respect to whether the plan
satisfies the qualification requirements as amended by the Uruguay Round
Agreements Act, Pub. L. 108-465.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
/s/ Nelson A. Brooke
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Nelson A. Brooke
District Director
Enclosures:
Publication 794
<PAGE> 1
EXHIBIT 23.2
Exhibit 23.2
Consents of Independent Public Accountants and Independent Auditors
<PAGE> 2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
(Form S-8) pertaining to the 401(k) Profit-Sharing Plan of CytRx Corporation of
our reports (a) dated February 19, 1997, with respect to the consolidated
financial statements of CytRx Corporation incorporated by reference in its
Annual Report (Form 10-K/A) and the related financial statement schedule
included therein and (b) dated May 29, 1997, with respect to the financial
statements and schedules of the CytRx Corporation 401(K) Profit Sharing Plan
included in the Plan's Annual Report (Form 11-K), both for the year ended
December 31, 1996 filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
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ERNST & YOUNG LLP
Atlanta, Georgia
July 15, 1997
<PAGE> 3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement of our report dated January
21, 1997 with respect to the consolidated financial statements of Zynaxis, Inc.
and subsidiaries for the year ended December 31, 1996 included in CytRx
Corporation's Amendment No. 1 to Form 8-K filed on June 3, 1997 and to all
references to our Firm included in this Form S-8 Registration Statement.
/s/ Arthur Andersen LLP
-----------------------
ARTHUR ANDERSEN LLP
Philadelphia, Pa.,
July 18, 1997
