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[Letterhead of Alston & Bird LLP appears here]
November 28, 2000
CytRx Corporation
154 Technology Parkway
Norcross, Georgia 30092
Re: Form S-1 Registration Statement - Resale of Stock on Behalf of Selling
Stockholders
Ladies and Gentlemen:
We have acted as counsel to CytRx Corporation, a Delaware corporation (the
"Company"), in connection with the above referenced Registration Statement on
Form S-1 (the "Registration Statement") being filed by the Company with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, and covering 6,262,047 shares (the "Shares") of the
Company's common stock, $.001 par value ("Common Stock"), which are being
offered for the account of the selling stockholders specified therein. The
opinion hereinafter set forth is given to the Commission at the request of the
Company pursuant to Item 16 of Form S-1 and Item 601(b)(5) of Regulation S-K.
In the capacity described above, we have considered such matters of law and
of fact, including the examination of originals or copies, certified or
otherwise identified to our satisfaction, of such records and documents of the
Company, certificates of public officials and such other documents as we have
deemed appropriate as a basis for the opinions hereinafter set forth. The
opinions set forth herein are limited to the Law of the State of Delaware.
With respect to the issuance of 6,010,244 shares which may be issued to the
selling stockholders specified in the Registration Statement (the "Equity Line
of Credit Agreement Shares") pursuant to the private equity line of credit
agreement as described in the Registration Statement (the "Equity Line of Credit
Agreement"), we assumed that the Company shall have sufficient authorized and
unissued shares of Common Stock available at the time of such issuance; that any
required consideration to be received for the issuance of the Shares will be
paid in accordance with the current terms of the Equity Line of Credit Agreement
and the current terms of the resolutions of the Board of Directors authorizing
the issuance of the Equity Line of Credit Agreement Shares; that the statements
made in such agreement, including without limitation, the representations and
warranties, are true and correct; and that the relevant provisions of the
Certificate of Incorporation and Bylaws of the Company and the Delaware General
Corporations Law in effect at the time of issuance of any of the Equity Line of
Credit Agreement Shares will not differ in any relevant respect from the
relevant provisions of the Certificate of Incorporation and Bylaws of the
Company and the Delaware General Corporations Law in effect as of the date of
this opinion. We recognize that approval by the Board of Directors has only been
received for 3,000,000 of the Equity Line of Credit Agreement Shares (the
"Director Approved Shares") and that approval by the shareholders has only been
received for 5,000,000 of the Equity Line of Credit Agreement Shares (the
"Shareholder Approved Shares") and that prior to the issuance of any shares in
excess of the Director Approved Shares or the Shareholder Approved Shares, the
Company will have to obtain approval from the Board of
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CytRx Corporation
November 28, 2000
Page 2
Directors or the shareholders or both. Therefore, in conducting our examination,
we also assumed that with respect to the Equity Line of Credit Agreement Shares
for which either approval by the Board of Directors or the shareholders has not
been obtained, prior to their issuance, the Company shall have obtained the
required approval of the Board of Directors or the shareholders or both.
Furthermore, in conducting our examination, we assumed that with respect to
the issuance of the Shares issuable upon exercise of the warrants being issued
to the selling stockholders specified in the Registration Statement (the
"Underlying Shares"), the Company shall have sufficient authorized and unissued
shares of common stock available at the time of such issuance; that any required
consideration to be received for the issuance of the Underlying Shares will be
paid in accordance with the current terms of such warrants and the current terms
of the resolutions of the Board of Directors authorizing the issuance of the
Underlying Shares; that the statements made in such agreements, including
without limitation, the representations and warranties, are true and correct;
and that the relevant provisions of the Certificate of Incorporation and Bylaws
of the Company and the Delaware General Corporations Law in effect at the time
of issuance of any of the Underlying Shares will not differ in any relevant
respect from the relevant provisions of the Certificate of Incorporation and
Bylaws of the Company and the Delaware General Corporations Law in effect as of
the date of this opinion.
Based upon the foregoing it is our opinion that the Shares are or will be
upon issuance by the Company, legally and validly issued, fully paid and
nonassessable.
This opinion letter is provided to you for your benefit and for the benefit
of the Commission solely with regard to the Registration Statement, may be
relied upon by you and the Commission only in connection with the Registration
Statement, and may not be relied upon by any other person or for any other
purpose without our prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement.
Sincerely,
ALSTON & BIRD LLP
By:
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W. Thomas Carter III
a Partner
CA:ca
