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As filed with the Securities and Exchange Commission on August 6, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CYTRX CORPORATION
(EXACT NAME OF ISSUER AS SPECIFIED IN ITS CHARTER)
Delaware 58-1642740
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
154 TECHNOLOGY PARKWAY
NORCROSS, GEORGIA 30092
(Address of Principal Executive Offices) (Zip Code)
CYTRX CORPORATION
1998 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
MARK W. REYNOLDS
CYTRX CORPORATION
154 TECHNOLOGY PARKWAY
NORCROSS, GEORGIA 30092
(770) 368-9500
(Name, address, and telephone number, including area code, of agent for service)
COPY TO:
GEORGE M. MAXWELL, JR.
ALSTON & BIRD LLP
ONE ATLANTIC CENTER
1201 WEST PEACHTREE STREET
ATLANTA, GEORGIA 30309-3424
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
TITLE OF AMOUNT TO BE PROPOSED PROPOSED AMOUNT OF
SECURITIES TO REGISTERED MAXIMUM MAXIMUM REGISTRATION
BE REGISTERED OFFERING PRICE PER AGGREGATE OFFERING FEE
SHARE (1) PRICE (1)
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<S> <C> <C> <C> <C>
Common Stock, par value $.001 500,000 $2.25 $1,125,000 $312.75
per share
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</TABLE>
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(1) Based on the average of the high and low price of shares of the Common Stock
of the Registrant reported on the NASDAQ National Market System on August 3,
1999, pursuant to Rule 457 paragraphs (c) and (h).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
CytRx Corporation will provide the documents constituting Part I of
this registration statement to participants in the CytRx Corporation 1998
Long-Term Incentive Plan as specified by Rule 428(b)(1) under the Securities Act
of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by CytRx with the Securities and Exchange
Commission are incorporated herein by reference:
(a) CytRx's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998.
(b) CytRx's Quarterly Report on Form 10-Q/A for the
quarter ended September 30, 1998, Quarterly Report on
Form 10-Q for the quarter ended March 31, 1999 and
Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999.
(c) The description of CytRx's common stock contained in
CytRx's registration statement on Form 8-A declared
effective by the SEC on March 1, 1996.
All documents subsequently filed by CytRx 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 remaining unsold, shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of the filing of such
documents.
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.
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation's board of directors to grant, indemnity to directors
and officers who are a party to, or are threatened to be made a party to, any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, because such person is an officer or
director against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the director or
officer in connection with such action, suit or proceeding if the director or
officer acted in good faith and in a manner he/she believed to be in, or not
opposed to, the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his/her
conduct was unlawful.
In accordance with the Delaware General Corporation Law, CytRx's
certificate of incorporation, as amended, provides that its directors shall not
be liable to it or its stockholders for monetary damages for breach of a
director's fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to CytRx 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 to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of CytRx shall be
eliminated or limited to the fullest extent permitted by the law as so amended.
This provision in the certificate does not eliminate the duty of care, and in
appropriate circumstances equitable remedies such as injunctive or other forms
of non-monetary relief will remain available under Delaware law.
In addition, CytRx's certificate of incorporation and bylaws provide
that CytRx must 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 by reason of the
fact that such person is or was a director, officer, employee or agent of CytRx,
against expenses, (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interest of CytRx, and with respect to any criminal action or proceeding, such
person had no reasonable cause to believe that their conduct was unlawful. CytRx
is also obligated to pay the reasonable expenses actually incurred by a
director, officer, employee or agent in the course of defending such proceeding
if the indemnified party agrees to repay all amounts advanced if it is
ultimately determined that such person is not entitled to indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
4.1 Certificate of Incorporation, as amended (incorporated by
reference from Exhibit 3.1 to CytRx's Registration Statement on Form S-3 filed
on November 5, 1997 (File No. 333-39607))
4.2 Bylaws, as amended (incorporated by reference from Exhibit 4.2
to CytRx's registration statement on Form S-8 filed on July 21, 1997 (File No.
333-37171))
4.3 CytRx Corporation 1998 Long-Term Incentive Plan (incorporated
by reference from Exhibit 10.10 to CytRx's Annual Report on Form 10-K for the
year ended December 31, 1998 (File No. 000-15327))
5.1 Opinion of Alston & Bird LLP regarding the legality of the
securities being registered
23.1 Consent of Alston & Bird LLP (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on the signature page contained on
page II-6)
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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 of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the 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; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change in 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
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contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment 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.
(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 issuer hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities and Exchange Act of 1934) that is incorporated by reference in the
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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the registrant pursuant to the provisions described in Item 6 of this
Part II, 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 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 Act and
will be governed by the final adjudication of such issue.
(Signatures on the following page)
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, CytRx
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 Atlanta, State of Georgia, on this 6th day of August,
1999.
CytRx Corporation
By: /s/ Jack J. Luchese
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Jack J. Luchese
President and Chief Executive Officer
(Principal Executive Officer)
By: /s/ Mark W. Reynolds
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Mark W. Reynolds
Chief Financial Officer and Secretary
(Principal Financial and Accounting Officer)
(Continued on next page)
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POWER OF ATTORNEY
Know All Men By These Presents, that each person whose signature
appears below constitutes and appoints Jack J. Luchese, and Mark W. Reynolds, or
either of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution, and resubstitution, for him and in his 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 or necessary to be done, as fully to all intents
and purposes as he 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 their
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Jack J. Luchese Director August 6, 1999
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Jack J. Luchese
/s/ Lyle A. Hohnke Director August 6, 1999
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Lyle A. Hohnke
/s/ Jack L. Bowman Director August 6, 1999
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Jack L. Bowman
/s/ Raymond C. Carnahan, Jr. Director August 6, 1999
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Raymond C. Carnahan, Jr.
/s/ Max Link Director August 6, 1999
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Max Link
/s/ Herbert H. McDade, Jr. Director August 6, 1999
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Herbert H. McDade, Jr.
</TABLE>
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EXHIBIT INDEX
4.1 Certificate of Incorporation, as amended (incorporated by
reference from Exhibit 3.1 to CytRx's Registration Statement on Form S-3 filed
on November 5, 1997 (File No. 333-39607))
4.2 Bylaws, as amended (incorporated by reference from Exhibit 4.2
to CytRx's registration statement on Form S-8 filed on July 21, 1997 (File No.
333-37171))
4.3 CytRx Corporation 1998 Long-Term Incentive Plan (incorporated
by reference from Exhibit 10.10 to CytRx's Annual Report on Form 10-K for the
year ended December 31, 1998 (File No. 000-15327))
5.1 Opinion of Alston & Bird LLP regarding the legality of the
securities being registered
23.1 Consent of Alston & Bird LLP (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on the signature page contained on
page II-6)
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EXHIBIT 5.1
[Letterhead of Alston & Bird LLP]
M. Hill Jeffries Direct Dial (404) 881-7823
August 6, 1999
CytRx Corporation
154 Technology Parkway
Norcross, Georgia 30092
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to CytRx Corporation, a Delaware corporation
("the Company"), in connection with the filing of the above-referenced
Registration Statement (the "Registration Statement"), with the Securities and
Exchange Commission (the "Commission") to register under the Securities Act of
1933, as amended (the "Securities Act"), up to 500,000 shares (the "Shares") of
the Company's Common Stock, par value $.001 per share (the "Common Stock"),
which may be issued by the Company upon the grant or exercise of awards pursuant
to the CytRx Corporation 1998 Long-Term Incentive Plan (the "Plan"). This
opinion letter is rendered pursuant to Item 8 of Form S-8 and Item 601(b)(5) of
the Commission's Regulation S-K.
We have examined the Certificate of Incorporation of the Company, as
amended, the Bylaws of the Company, as amended, records of proceedings of the
Board of Directors and stockholders of the Company deemed by us to be relevant
to this opinion letter, the Plan and the Registration Statement. We also have
made such further legal and factual examinations and investigations as we deemed
necessary for purposes of expressing the opinion set forth herein.
As to certain factual matters relevant to this opinion letter, we have
relied upon certificates and statements of officers of the Company and
certificates of public officials. Except to the extent expressly set forth
herein, we have made no independent investigations with regard thereto, and
accordingly, we do not express any opinion as to matters that might have been
disclosed by independent verification.
This opinion letter is provided to the Company and the Commission for
their use solely in connection with the transactions contemplated by the
Registration Statement and may not be used, circulated, quoted or otherwise
relied upon by any other person or for any other purpose without our express
written consent. The only opinion rendered by us consists of those matters set
forth in the sixth paragraph hereof, and no opinion may be implied or inferred
beyond those expressly stated.
Our opinion set forth below is limited to the laws of the State of
Delaware, and we do not express any opinion herein concerning any other laws.
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Based upon the foregoing, it is our opinion that the Shares to be
issued under the Plan are duly authorized and, when issued by the Company in
accordance with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Commission thereunder.
ALSTON & BIRD LLP
By: /s/ M. Hill Jeffries
--------------------------------
M. Hill Jeffries, Partner
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the CytRx Corporation 1998 Long-Term Incentive Plan of
our report dated March 9, 1999, with respect to the consolidated financial
statements of CytRx Corporation included in its Annual Report (Form 10-K) for
the year ended December 31, 1998, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Atlanta, Georgia
August 2, 1999
