<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 31, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CYTRX CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<CAPTION>
DELAWARE 58-1642740
<S> <C>
(State or Other Jurisdiction of Incorporation or Organization) (I.R.S. Employer Identification Number)
</TABLE>
154 TECHNOLOGY PARKWAY
NORCROSS, GEORGIA 30092
(770) 368-9500
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
____________________________
JACK J. LUCHESE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CYTRX CORPORATION
154 TECHNOLOGY PARKWAY
NORCROSS, GEORGIA 30092
(770) 368-9500
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
_____________________________
THE COMMISSION IS REQUESTED TO SEND COPIES OF ALL COMMUNICATIONS TO:
GEORGE M. MAXWELL JR., ESQ. MARK W. REYNOLDS
ALSTON & BIRD LLP VICE PRESIDENT, FINANCE
ONE ATLANTIC CENTER CYTRX CORPORATION
1201 WEST PEACHTREE STREET 154 TECHNOLOGY PARKWAY
ATLANTA, GEORGIA 30309-3424 NORCROSS, GEORGIA 30092
(404) 881-7000 (770) 368-9500
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
<PAGE>
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.[X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [_] _______
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [_] _______
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [_]
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed maximum
Title Of Shares To Amount To Be Aggregate Price Per Aggregate Offering Amount Of
Be Registered Registered Unit(1) Price Registration Fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.001 par value 2,606,092 $2.75 $7,166,753 $1,893
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</TABLE>
(1) Based on the average of the reported high and low sales prices of the
Common Stock reported on the Nasdaq Stock Market's National Market on March 28,
2000 estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
SUBJECT TO COMPLETION, DATED MARCH 31, 2000
PROSPECTUS
2,606,092 SHARES
CYTRX CORPORATION
COMMON STOCK
______________________
The shareholders named in the table included in the "Selling Shareholders"
section of this prospectus, which begins on page 9, are offering all of the
shares of our common stock covered by this prospectus.
The shares offered hereby consist of 2,606,092 shares of our common stock,
$.001 par value per share, together with a Series A Junior Participating
Preferred Stock Purchase Right that is associated with each share. The shares
include 437,500 shares reserved for issuance upon the exercise of certain
warrants issued to certain of the selling shareholders. The shares also include
143,000 shares which may be reserved for issuance upon the exercise of certain
warrants which may be issued to certain selling shareholders. The selling
shareholders are offering all of the shares of our common stock covered by this
prospectus. We will not receive any of the proceeds from the sale of the shares
by the selling shareholders.
The selling shareholders have not advised us of any specific plans for the
distribution of the shares covered by this Prospectus, but it is anticipated
that the shares will be sold from time to time as described in the "Plan of
Distribution" section of this prospectus, which begins on page 10.
Our Common Stock is traded in the over-the-counter market and quoted on the
Nasdaq National Market under the symbol "CYTR." On March 30, 2000 the last
reported closing price of the Common Stock was $2.00 per share.
________________________________
THIS INVESTMENT INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING ON PAGE 1.
________________________________
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS __________________ , 2000
<PAGE>
PROSPECTUS SUMMARY
We were founded in 1985 and are engaged in the development and
commercialization of pharmaceutical-related products and services, including
human therapeutics, focused on high-value critical-care therapies. Our principal
executive offices are located at 154 Technology Parkway, Norcross, Georgia
30092, telephone number: (770) 368-9500. References herein to "the Company"
include CytRx and each of our subsidiaries.
On August 3, 1999, we issued a warrant to purchase our Common Stock to John
R. Boettiger and also granted Mr. Boettiger registration rights regarding the
underlying shares. Between February 25 and March 15, 2000, we exchanged debt
obligations owed by us in return for cash and the issuance of shares of our
Common Stock and granted registration rights along with our Common Stock. On
March 31, 2000, we issued shares of Common Stock in return for certain services
and granted registration rights along with our Common Stock. On March 31, 2000,
we issued shares of Common Stock as well as warrants to purchase our Common
Stock in return for a cash investment in our company and also granted
registration rights along with our Common Stock and the warrants. We have
prepared this prospectus to comply with these registration rights.
RISK FACTORS
You should carefully consider the following risks before deciding to
purchase shares of our common stock. If any of the following risks actually
occur, the trading price of our common stock could decline, and you could lose
all or part of your investment. You should also refer to the other information
in this prospectus and the information incorporated herein by reference,
including our financial statements and the related notes.
We May Not Have Adequate Funds to Continue Product Testing and Research and
Development.
On December 31, 1999, we had approximately $3 million in cash and cash
equivalents and working capital of $664,000. During the first quarter of 2000
we reached agreement with certain of our trade creditors whereby $2.3 million of
aggregate indebtedness was cancelled in exchange for issuance of 937,592 shares
of CytRx Common Stock and the granting of registration rights to such creditors.
We do not have adequate funds to conduct the required testing and data
collection necessary for the FDA to approve FLOCOR or any of our other products
We will have to either:
1. severely reduce or terminate testing and research and development
activities with respect to some or all of our products; or
2. obtain additional financing from third parties to fund the required
testing.
A reduction in, or termination of, testing and research and development
activities could have a material adverse impact on our business and future
results of operations. If we elect to attempt to obtain additional financing,
we may be unable to obtain funds from any third party or to obtain such
financing on terms that we believe are acceptable. Our inability to obtain
additional financing could have a material adverse effect on our business and
future results of operations. See "We Will Require Additional Financing."
We Have No Significant Source of Revenue From Our Operations
We will require substantial funds to complete
. research and development activities,
. preclinical studies and testing activities, and
<PAGE>
. required data collection and other activities required for FDA review.
We currently have no significant source of operating revenue. Our inability to
generate revenues in amounts adequate to satisfy our operating needs may have a
material adverse effect on our business and may cause us to depend on raising
funds by borrowing from third parties or by entering into collaborative
relationships with third parties. See "We Will Require Additional Financing."
Our total revenues for 1999 were approximately $1.9 million. Approximately
49% of our 1999 revenues or $927,000 consisted of non-operating revenue such as
interest income and grants from government agencies. Approximately 43% of our
1999 revenues or $823,000 was derived from selling our services and products
(mainly consisting of TiterMax).
If the FDA does not approve the commercialization of FLOCOR or one of our
other pharmaceutical products, we may not be able to generate significant
revenues for an extended period of time, which would have a material adverse
effect on our business, financial condition and future results of operations.
We Have Operated At a Loss For Over Five Years and Will Probably Continue to
Operate at a Loss For Some Time
We have incurred significant net losses for each of the last five years.
Our inability to operate at a profit in the future could have a material adverse
effect on our business and financial condition. Since our inception, we have
primarily conducted research and development of our products. The costs of our
research and development and our lack of operating revenues has resulted in our
net losses. We will continue to incur substantial additional losses in the near
future because we are continuing to conduct research and development of our
products while we continue to fail to generate any significant revenues.
We will probably incur losses until one or more of our products is approved
by the FDA and that product has achieved significant sustained commercial sales.
The activities required for the FDA review process of a new pharmaceutical are
extremely costly and usually take several years. See "We May Incur Substantial
Unanticipated Costs If We Have Significant Delays in the Regulatory Approval of
Our Products." Also, we may never obtain FDA approval of any of our products
currently under development.
We Will Require Additional Financing
We believe that we do not have enough funds (1) to complete the required
testing and data collections necessary to obtain regulatory approval of FLOCOR
or any of our other products currently under development or (2) to manufacture,
market, and distribute any of our products, if we obtain FDA approval with
respect to that product. The continuation of the Phase III clinical trials and
the requirement of additional trials for FLOCOR and the related activities in
preparation for its commercialization has greatly increased our need for
capital.
We may have to raise additional funds through an equity or debt offering, a
third party loan, or a third party collaborative arrangement. We may be unable
to obtain any financing when we need it or on terms that we believe to be
acceptable. Our inability to raise the required additional financing when we
need it could have a material adverse effect on our business and financial
condition, and could result in the termination of our operations.
If we are able to obtain financing when we require it, such financing may
be on terms which may result in dilution to our then-existing stockholders.
Our Common Stock May Be Delisted From The Nasdaq National Market
On March 14, 2000 we received correspondence from Nasdaq regarding the
Company's failure to satisfy certain quantitative criteria of the maintenance
standards for listing its Common Stock with the Nasdaq National Market which
provided the Company with ten business days to respond with its plan to
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<PAGE>
bring the Company back into compliance with such criteria. If we are unable to
satisfy such criteria or provide Nasdaq with an adequate plan to return to
compliance, Nasdaq may commence procedures to delist our Common Stock from the
Nasdaq National Market.
We May Be Unable to Successfully Develop or Commercialize Our Products
Our overall success substantially depends on our ability to successfully
develop and commercialize our products. Our inability to successfully develop
and commercialize our products could have a material adverse effect on our
business, financial condition and future results of operations.
Our products are in various stages of development and significant amounts
of time and money will be required to develop and commercialize them. Cost
overruns caused by unanticipated regulatory delays or unexpected adverse side
effects could end or substantially delay our development efforts. We also may be
unable to obtain FDA approval of those products, if we are unable to prove to
the FDA that those products are safe and effective.
In December 1999, the Company reported results from its Phase III clinical
study of FLOCOR for treatment of acute sickle cell crisis. The study did not
demonstrate statistical significance in the primary endpoint. In order to
collect adequate information to obtain FDA approval, we will need to conduct
additional studies, which we will not commence unless we are able to raise
additional funds.
Even if we are able to obtain FDA approval of one or more of our products,
we may not have adequate financial or other resources, or the expertise to
successfully commercialize, market and distribute those products. If we do not
have adequate resources or the expertise to successfully commercialize our
products, we may rely on third parties to provide financial or other resources
to help us commercialize those products or we may have such third parties market
and distribute our products for us. In order to enter into any such arrangements
with a third party, we may have to give up some or all of our rights to some of
our products. Also, we may be unable to find a third party willing to provide us
with resources or to market and distribute our products. Even if we find a
willing third party, we may not be able to reach an agreement on terms that we
believe are acceptable. Our inability to successfully commercialize our
products, alone or with the assistance of third parties, may have a material
adverse effect on our business, financial condition and future results of
operations.
We May Incur Substantial Unanticipated Costs If We Have Significant Delays in
the Regulatory Approval of Our Products
Our products are subject to extensive regulation by federal, state and
local governments in the United States, including the FDA, and similar agencies
in other countries where we test and intend to market our current and future
products. Regulatory approval of a product can take several years and requires
the expenditure of substantial resources. If we experience significant delays in
the regulatory approval process of our products, we may incur substantial
unanticipated additional costs. Because we generate insignificant revenues from
operations and we have limited funds, if we incur substantial unanticipated
costs, we may have to seek additional financing earlier than we had anticipated.
At that time, we may be unable to obtain additional financing or financing on
terms that we believe are acceptable. Our inability to obtain additional
financing to complete the regulatory approval process could have a material
adverse effect on our business, financial condition and our ability to continue
to operate.
In December 1999, the Company reported results from its Phase III clinical
study of FLOCOR for treatment of acute sickle cell crisis. The study did not
demonstrate statistical significance in the primary endpoint. In order to
collect adequate information to obtain FDA approval, we will need to conduct
additional studies, which we will not commence unless we are able to raise
additional funds.
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<PAGE>
We May Be Unable to Successfully Compete Against Other Pharmaceutical and
Biotechnology Companies
Our competitors mainly consist of pharmaceutical and biotechnology
companies. Many of those companies have advantages over us, including the
following:
. substantially greater financial resources and research and development
staffs,
. substantially superior facilities,
. more extensive experience regarding FDA and other regulatory
processes,
. greater manufacturing and marketing expertise, and
. alliances with major pharmaceutical companies that may afford greater
resources and other advantages.
If our competitors develop better products than us; or if they develop their
products and obtain regulatory approval faster than us; or if they more
successfully manufacture, market and distribute their products than us, then
that could have a material adverse effect on our business and future results of
operations.
We May Be Unable to Establish and Maintain Necessary Relationships with Third
Parties
We may have to rely on third parties to enable us to offer our products
to a larger customer base than we could otherwise reach through direct marketing
efforts. Consequently, our success will depend in part on our ability to enter
into relationships with strategic partners and the performance of those
partners. We may be unable to find third parties willing to enter into a
relationship with us or to enter a relationship on terms that are acceptable to
us. Also, we may be unable to maintain any relationships once we have formed
them. Our inability to establish and maintain such third party relationships or
the unsuccessful performance of one or more of our strategic partners could have
a material adverse effect on our business, financial condition and future
results of operations. If we are unable to establish and maintain third party
relationships, or if such third parties are unsuccessful, we may have to
establish our own marketing and distribution channels for our products. We may
not have the available financial or other resources at such time to establish
our own marketing or distribution channels. Our inability to develop our own
marketing and distribution channels in such case could have a material adverse
effect on our business and financial condition, and could result in the
termination of our operations.
We Depend on Certain Suppliers For an Adequate Supply of Materials
We require three suppliers of materials or services to manufacture
FLOCOR. These consist of a supplier of the raw drug substance, a supplier of
the purified drug which is refined from the raw drug and a manufacturer who can
formulate and sterile fill the purified drug substance into the finished drug
product. Our inability to maintain relationships with those suppliers could
result in (1) lengthy delays in the FDA and other regulatory agencies approval
processes, causing us to incur substantial unanticipated costs or (2) our
inability to produce, market and distribute our product. Such delays or
inability could have a material adverse effect on our business, financial
condition and future results of operation.
We have not entered into an agreement with any supplier for the raw drug
substance because we believe that it is widely available.
In August 1999, we entered into a long-term commercial supply contract with
Organichem Corp. of Rensselaer, New York to obtain the purified drug substance.
We have also entered into an agreement with the Hospital Products Division of
Abbott Laboratories for the manufacture of our finished drug product. Our
inability to maintain such relationships on terms acceptable to us or to replace
such suppliers if they fail to adequately perform could have a material adverse
effect on our business, financial condition and future results of operations.
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<PAGE>
We Depend On Certain Members of Management for Future Success
We depend to a significant extent on the members of the management staff,
particularly Jack J. Luchese, for our future success. We may be unable to
retain his services or the services of such members of management, or to replace
them with qualified skilled individuals. Our loss of the services of Mr.
Luchese or any of the other members of management could have a material adverse
effect on our business and future results of operations. We have an employment
agreement with Mr. Luchese, however, we would be unable to prevent him from
terminating his employment with us. Also, we carry no key man life insurance on
the life of Mr. Luchese or any other member of the management team.
We May Incur Substantial Costs and Liability From Product Liability Claims
We may be exposed to claims for personal injury resulting from allegedly
defective products. Even if the commercialization of one or more of our
products is approved by the FDA, users may claim that such product caused
unintended adverse effects. We currently carry product liability insurance
covering the use of our products in human clinical trials and may extend that
coverage to third parties who collaborate with us on the development of our
products. However, if a claim is successfully asserted against us and the
amount of such claims exceeds our policy limits or is not covered by our policy,
such successful claim may have a material adverse effect on our business.
Even if claims asserted against us are unsuccessful, they may divert
management's attention from our operations and we may have to incur substantial
costs to defend such claims. If a significant number of claims are asserted
against us, regardless of whether they are successful, they may have a material
adverse effect on our operations and business.
We Depend On Our Patents and Other Intellectual Property Rights for Our Future
Success
Our future success, if any, will depend in a substantial part, on our
ability to protect our products by obtaining patents covering them in the United
States and other countries. If we are unable to obtain patents covering our
products, other companies may develop, manufacture, market and distribute
products similar to or the same as our products. Our inability to obtain
patents in each country in which we intend to market our products or our
inability to successfully challenge third party infringement of our patent
claims could have a material adverse effect on our business and future results
of operations.
Third parties may challenge the validity of our patents through
challenges filed with the United States Patent and Trademark Office and its
foreign equivalents or through lawsuits. Third parties may also claim that our
products infringe their rights under their patents. If a third party
successfully asserts an infringement claim against us, we may be prevented from
practicing the subject matter claimed in such third party's patents or we could
be required to obtain licenses or redesign our products to avoid infringement.
If any of our patents are successfully challenged, or any of our products are
determined to infringe on the rights of others, we may incur substantial
additional costs which may have a material adverse effect on our business,
financial condition and future results of operations.
In addition, we depend on our trade secrets, proprietary know-how and
continuing technological innovation, which we seek to protect with
confidentiality agreements with our employees, consultants and collaborators.
However, we may be unable to prevent an employee, consultant or collaborator
from disclosing trade secrets, know-how or other information. If we are unable
to prevent such disclosure, we may have a cause of action against the disclosing
party for only monetary damages, which may not be an adequate remedy compared to
the harm we may have suffered from the disclosure. Our inability to adequately
protect our proprietary information and trade secrets could have a material
adverse effect on our business, financial condition and future results of
operations.
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<PAGE>
We May Be Unable to Successfully Market Our Products If Their Costs Are Not
Adequately Reimbursed By Government and Third Party Payors
The success of each of our products will depend in part upon the extent
to which a consumer will be able to obtain reimbursement for the cost of such
product from government health administration authorities, private health
insurers and other organizations. We are uncertain as to the reimbursement
status of any of our products that we are currently developing. Government and
other third party payors are increasingly attempting to decrease health care
costs by refusing to provide coverage for products that have not been approved
by the FDA, and by limiting the coverage and reimbursement levels for new
products approved by the FDA. If the government and other third party payors do
not adequately cover our products, the market may not accept our products. The
lack of market acceptance could have a material adverse effect on our business,
financial condition and future results of operations. We have initiated
discussions with consultants and other advisors who will help us to develop a
strategy for seeking adequate reimbursement from the government and other third
party payors for FLOCOR. However, we will be unable to finalize our strategy
until we have obtained all of the required regulatory approvals for FLOCOR and
established its market price.
Government Pricing Regulation May Reduce Our Future Revenues and Profitability
Our future revenues and profitability may be affected by the continuing
efforts of governments to decrease or contain the costs of health care through
the regulation of the pricing and profitability of pharmaceutical products. We
are unable to predict whether any federal, state, local or foreign governments
will adopt such regulations. However, if such regulations are adopted, they
could have a material adverse effect on our business and future results of
operations.
We May Incur Substantial Costs and Liability Under Environmental and Hazardous
Materials Laws
Our research and development activities involve the use of hazardous
materials, which are subject to federal, state and local laws regarding the use,
manufacture, storage, handling and disposal of such materials. Although we
believe that we comply with applicable environmental laws and regulations, we
are unable to completely eliminate the risk of accidental contamination or
injury from our hazardous materials and other waste products. If an accident or
injury were to occur, we could be liable for any damages that result and any
such liability could exceed our resources, which could have a material adverse
effect on our business.
In addition, we may have to incur substantial costs to comply with
environmental laws and regulations in the future which could also have a
material adverse effect on our business and future results of operations.
We May Experience Volatility in Our Stock Price
The market price of our common stock may experience significant
volatility from time to time. Such volatility may be affected by factors such
as:
. our quarterly operating results;
. announcements of regulatory developments, technological innovations or
new therapeutic products;
. developments in patent or other proprietary rights; and
. public concern regarding the safety of our products.
Other factors which may affect our stock price is general changes in the
economy, financial markets or the pharmaceutical or biotechnology industries.
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<PAGE>
Our Anti-Takeover Provisions May Limit Stockholder Value
We have provisions in our bylaws and in our shareholder protection rights
agreement that may discourage or prevent a person or group from acquiring us
without our board of directors' approval. The intent of these provisions is to
protect shareholders' interests by encouraging anyone seeking control of the
Company to negotiate with the Board of Directors.
The following is a description of these provisions which may reduce the
market value of our shares of common stock.
We have a classified board of directors, which requires that at least two
stockholder meetings, instead of one, will be required to effect a change in the
majority control of our board of directors. This provision applies to every
election of directors, not just an election occurring after a change in control.
The classification of our board increases the amount of time it takes to change
majority control of our board of directors and may cause our potential
purchasers to lose interest in the potential purchase of us, regardless of
whether our purchase would be beneficial to us and our stockholders.
Our bylaws provide that directors may only be removed for cause by the
affirmative vote of the holders of at least a majority of the outstanding shares
of our capital stock then entitled to vote at an election of directors. This
provision prevents stockholders from removing any incumbent director without
cause.
Our bylaws also provide that a stockholder must give us at least 120 days
notice of a proposal or director nomination that such stockholder desires to
present at any annual meeting or special meeting of stockholders. Such
provision prevents a stockholder from making a proposal or director nomination
at a stockholder meeting without us having advance notice of that proposal or
director nomination. This could make a change in control more difficult by
providing our directors with more time to prepare an opposition to a proposed
change in control.
Under our shareholder protection rights agreement, on May 15, 1997, we
distributed one preferred stock purchase right for each then-outstanding share
of our common stock. Each right entitles registered holders to purchase one
ten-thousandth of a share of our Series A Junior Participating Preferred Stock
at an initial purchase price of $30 per share, subject to adjustment. Our
preferred stock purchase rights are exercisable only if a person or group (1)
announces that they have acquired beneficial ownership of 15% or more of our
common stock, or (2) commences a tender offer for 15% or more of our common
stock. If a person or group announces that they had acquired 15% or more of our
common stock, or commences a tender offer for 15% or more of our common stock,
then, after ten days, each right not owned by the person or group which acquired
15% or more of our common stock or who commenced a tender offer for 15% or more
of our stock entitles its holder to purchase at the purchase price the number of
shares of common stock having a market value equal to twice the purchase price.
We may exchange or terminate the preferred stock purchase rights at any time
before they become exercisable.
The preferred stock purchase rights will cause substantial dilution to a
person or group that attempts to acquire us on terms not approved by our board
of directors, which encourages persons who seek to acquire us to initiate such
an acquisition through negotiations with our board of directors. This could
discourage any potential acquiror of us and could result in the lower prices of
our common stock than may occur during a hostile acquisition attempt.
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<PAGE>
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the information in this prospectus contains forward-looking
statements that involve substantial risks and uncertainties. You can identify
these statements by forward-looking words such as "may," "will," "expect,"
"anticipate," "believe," "intend," "estimate" and "continue" or similar words.
You should read statements that contain these words carefully for the following
reasons:
- the statements discuss our future expectations;
- the statements contain projections of our future earnings or of our
financial condition; and
- the statements state other "forward-looking" information.
We believe it is important to communicate our expectations to our
investors. There may be events in the future, however, that we are not
accurately able to predict or over which we have no control. The risk factors
listed above, as well as any cautionary language in or incorporated by reference
into this prospectus, provide examples of risks, uncertainties and events that
may cause our actual results to differ materially from the expectations we
describe in our forward-looking statements. The SEC allows us to "incorporate by
reference" the information we file with them, which means we can disclose
important information to you by referring you to those documents. Before you
invest in our common stock, you should be aware that the occurrence of any of
the events described in the above risk factors, elsewhere in or incorporated by
reference into this prospectus and other events that we have not predicted or
assessed could have a material adverse effect on our earnings, financial
condition and business. If the events described above or other unpredicted
events occur, then the trading price of our common stock could decline and you
may lose all or part of your investment.
USE OF PROCEEDS
The shares of our Common Stock offered hereby are for the account of the
selling shareholders. We will not receive any of the proceeds from any sales of
the shares by the selling shareholders.
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SELLING SHAREHOLDERS
The following table sets forth:
. The name of each of the selling shareholders;
. The number of shares beneficially owned by each selling shareholder
prior to the offering;
. The number of shares being offered by each selling shareholder under
this prospectus; and
. The number of shares of common stock beneficially owned by each
selling shareholder after the completion of the offering.
As of the date of this prospectus, none for the selling shareholders has
had a material relationship with us or any of our affiliates within the past
three years. The table has been prepared on the basis of information furnished
to us by or on behalf of the selling shareholders. Because the selling
shareholders may offer all or some of the shares pursuant to this offering, no
estimate can be given as to the amount of shares that will be held by the
selling shareholders upon the termination of this offering. The table assumes
that the selling shareholder will sell all shares they are offering under this
prospectus, and that the selling shareholder will not acquire additional shares
of our Common Stock prior to completion of this offering. Each selling
shareholder will own less than 1% of the total number of shares of CytRx common
stock outstanding after the completion of this offering.
The information in this table is as of the date of this prospectus.
Information concerning the selling shareholders may change from time to time and
any such changed information will be set forth in supplements to this prospectus
if and when necessary.
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------
Shares Shares
Beneficially Shares Beneficially
Owned Before Offered After
Name The Offering Hereby Offering
---- ------------ ------ --------
------------------------------------------------------------------------------------------------
<S> <C> <C>
Theradex Corporation 300,000 300,000 -0-
------------------------------------------------------------------------------------------------
Thar Designs, Inc. 180,000 180,000 -0-
------------------------------------------------------------------------------------------------
Abt Associates, Inc. 128,579 128,579 -0-
------------------------------------------------------------------------------------------------
Oread, Inc. 111,795 111,795 -0-
------------------------------------------------------------------------------------------------
Organichem Corp. 60,000 60,000 -0-
------------------------------------------------------------------------------------------------
Metrics, Inc. 42,128 42,128 -0-
------------------------------------------------------------------------------------------------
GlobolMax LLC 42,000 42,000 -0-
------------------------------------------------------------------------------------------------
Certified Facilities Corp. 32,903 32,903 -0-
------------------------------------------------------------------------------------------------
Bio-Kinetic Clinkal
Applications, Inc. 21,360 21,360 -0-
------------------------------------------------------------------------------------------------
James D. Johnson 11,693 11,693 -0-
------------------------------------------------------------------------------------------------
A.M. Arismendi, Jr. PC 7,134 7,134 -0-
------------------------------------------------------------------------------------------------
John R. Boettiger 37,500 37,500 -0-
------------------------------------------------------------------------------------------------
AMRO International, S.A. 779,945 779,945 -0-
------------------------------------------------------------------------------------------------
Balmore, S.A. 389,973 389,973 -0-
------------------------------------------------------------------------------------------------
Celest Trust Reg. 389,973 389,973 -0-
------------------------------------------------------------------------------------------------
Ladenburg Thalmann & Co., Inc. 69,109 69,109 -0-
------------------------------------------------------------------------------------------------
Peter B. Baxter 1,000 1,000 -0-
------------------------------------------------------------------------------------------------
The Malachi Group, Inc. 1,000 1,000 -0-
------------------------------------------------------------------------------------------------
</TABLE>
-9-
<PAGE>
PLAN OF DISTRIBUTION
Any or all of the shares of our common stock offered hereby may be sold
from time to time by the selling shareholders, or by pledgees, donees,
transferees or other successors in interest. The selling shareholders may sell
their shares in transactions through the Nasdaq National Market System, in
negotiated transactions, or by a combination of those methods of sale. The
shares of our common stock offered hereby may be offered at fixed prices that
may be changed, at market prices prevailing at the time of sale, at prices
related to the prevailing market prices, or at negotiated prices. Prices will be
determined by the selling shareholders or by agreement between the selling
shareholders and its underwriter, broker-dealer, or agent. The selling
shareholders may sell their shares directly to purchasers or through
underwriters, agents or broker-dealers by one or more of the following:
. ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
. purchases by a broker or dealer as principal and resale by such broker
or dealer for their account pursuant to this prospectus;
. a block trade in which the broker or dealer will attempt to sell the
shares as agent, but may position and resell a portion of the block as
principal to facilitate the transaction;
. an exchange distribution in accordance with the rules of the exchange
or automated interdealer quotation system on which the shares are then
listed; and
. through the writing of options on the shares.
Underwriters, agents or broker-dealers may receive compensation in the form
of discounts, concessions or commissions from the selling shareholders and or
the purchasers of the shares for which such underwriters, agents or broker-
dealers may act as agents or to whom they sell as principals, or both. The
compensation paid by the selling shareholders to an underwriter, agent or
particular broker-dealer will be negotiated prior to the sale and may be in
excess of customary compensation. If required by applicable law at the time a
particular offer of the shares is made, the terms and conditions of such
transaction will be set forth in a supplement to this prospectus. In addition,
any shares covered by this prospectus which qualify for sale pursuant to Rule
144 under the Securities Act of 1933, as amended, may be sold under Rule 144
rather than pursuant to this prospectus.
In connection with the distribution of the shares being sold pursuant to
this prospectus, the selling shareholders may enter into hedging transactions
with broker-dealers. In connection with these transactions, broker-dealers may
engage in short sales of the shares in the course of hedging the positions they
assume with the selling shareholders. The selling shareholders may also sell the
shares short and redeliver the shares to close out the short positions. The
selling shareholders may also enter into option or other transactions with
broker-dealers which require the delivery to the broker-dealer of the shares.
The selling shareholders may also loan or pledge the shares to a broker-dealer,
and the broker-dealer may sell the shares so loaned, or upon a default the
broker-dealer may effect sales of the pledged shares. In addition to the
foregoing, the selling shareholders may from time to time enter into other types
of hedging transactions.
In addition, the selling shareholders and any underwriter, broker-dealer,
or agent that participates in the distribution of the shares of our common stock
may be deemed to be an underwriter under the Securities Act of 1933, as amended,
(although neither CytRx nor the selling shareholders so concedes), and any
profit on the sale of shares of our common stock and any discount, concession,
or commission received by any of such underwriter, broker-dealer, or agent, may
be deemed to be underwriting discounts and commissions under the Securities Act
of 1933, as amended.
-10-
<PAGE>
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents which we have previously filed with the SEC are
hereby incorporated by reference herein:
(1) CytRx's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, filed with the Securities and Exchange Commission (the
"Commission") on March 30, 2000.
(2) the description of our Common Stock and series A junior
participating preferred stock purchase rights as set forth in our registration
statements filed under Section 12 of the Exchange Act, and any amendment or
report filed for the purpose of updating any description.
All other documents subsequently filed by the registrant pursuant to
Section 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. Subject to
the foregoing, all information appearing in this registration statement is
qualified in its entirety by the information appearing in the documents
incorporated by reference.
We will provide without charge, upon the written or oral request of any
person, including any beneficial owner, to whom this prospectus is delivered, a
copy of any and all information (excluding certain exhibits) relating to our
business or our common stock that has been incorporated by reference in the
Registration Statement. Such requests should be directed to:
Mark W. Reynolds
Vice President, Finance
CytRx Corporation
154 Technology Parkway
Norcross, Georgia 30092
(770) 368-9500
HOW TO OBTAIN ADDITIONAL INFORMATION
We file annual, quarterly, and special reports, proxy statements, and
other information with the Securities and Exchange Commission (the "SEC"). You
may read and copy any document that we file with the SEC at the SEC's public
reference rooms at the following locations: 450 Fifth Street, N.W., Judiciary
Plaza, Washington, D.C. 20549; 7 World Trade Center, 13th Floor, New York, New
York 10048; and Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. The SEC also maintains a site on the World Wide Web at
http://www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the SEC.
Our common stock is listed and traded on the Nasdaq National Market
System under the symbol "CYTR." Reports, proxy and information statements, and
other information concerning CytRx also may be inspected at the offices of the
National Association of Securities Dealers; Inc. located at 1735 K Street, N.W.,
Washington, D.C. 20006.
This prospectus constitutes part of the Registration Statement on Form S-
3 of CytRx (including any exhibits and amendments thereto, the "Registration
Statement") filed with the SEC under the Securities Act of 1933, as amended,
relating to the shares of our common stock offered hereby. This prospectus does
-11-
<PAGE>
not include all of the information in the Registration Statement. For further
information about our business and our common stock, please refer to the
Registration Statement. The Registration Statement may be inspected and copied,
at prescribed rates, at the SEC's public reference facilities at the addresses
set forth above.
The SEC allows us to "incorporate by reference" certain information we file
with the SEC. This means we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information that we file
with the SEC will automatically update this information. We incorporate by
reference the documents listed below, and any future filings made with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of
1934, as amended, until the selling shareholders sells all the shares of our
common stock registered hereby.
THIS PROSPECTUS INCLUDES PRODUCT NAMES, TRADE NAMES, SERVICE MARKS AND
TRADEMARKS OF CYTRX, ITS SUBSIDIARIES AND OTHER COMPANIES INCLUDING, WITHOUT
LIMITATION, FLOCOR(TM), CYTRX/(R)/, AND TITERMAX/(R)/.
-12-
<PAGE>
LEGAL MATTERS
The validity of the Shares offered hereby will be passed upon the Company
by Alston & Bird LLP, Atlanta, Georgia.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K for
the year ended December 31, 1999, as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in the registration
statement. Our financial statements and schedule are incorporated by reference
in reliance on Ernst & Young LLP's report, given on their authority as experts
in accounting and auditing.
-13-
<PAGE>
2,606,092 SHARES
CYTRX CORPORATION
COMMON STOCK
_______________________
PROSPECTUS
_______________________
__________________, 2000
NO DEALER, SALES REPRESENTATIVE OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS
OFFERING OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY, BY THE SELLING SHAREHOLDERS OR BY ANY UNDERWRITER.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN
OFFER TO BUY, ANY SECURITIES OTHER THAN THE REGISTERED SECURITIES TO WHICH IT
RELATES OR AN OFFER TO, OR A SOLICITATION OF, ANY PERSON IN ANY JURISDICTION
WHERE SUCH AN OFFER OR SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF
ANY TIME SUBSEQUENT TO THE DATE HEREOF.
-14-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the Common
Stock are set forth in the following table. All amounts except the Securities
and Exchange Commission registration fee and the NASD filing fee are estimated.
No portions of these fees will be, borne by the selling shareholders
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee............ $ 1,892
Nasdaq National Market Listing Fee............................. $ 0
Accountants' Fees and Expenses................................. $ 8,000*
Legal Fees and Expenses........................................ $10,000*
Total........................................................ $16,892*
</TABLE>
*Estimated
ITEM 15. 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 Eleven 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.
II-1
<PAGE>
Article Five of the Corporation's By-Laws provides as follows:
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 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
II-2
<PAGE>
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 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 other-wise, 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 I
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
II-3
<PAGE>
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.
(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.
The Company holds an insurance policy covering directors and officers under
which the insurer agrees to pay, subject to certain exclusions, for any claim
made against the directors and officers of the registrant for a wrongful act
that they may become legally obligated to pay or for which the registrant is
required to indemnify the directors or officers.
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.
II-4
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
Exhibit Number Description
-------------- -----------
4.1 Restated Certificate of Incorporation of the Registrant
(Incorporated herein by reference to Exhibit 3.1 to the
Registrant's registration statement on Form S-3 filed
November 5, 1997, Registration No. 333-39607)
4.2 Restated Bylaws of the Registrant, as amended (Incorporated
herein by reference to Exhibit 4.2 to the Registrant's
registration statement or Form S-8 filed July 21, 1997,
Registration No. 333-31717)
4.3 Shareholder Protection Rights Agreement dated April 16, 1997
between CytRx Corporation and American Stock Transfer &
Trust Company as Rights Agent (Incorporated herein by
reference to Exhibit 4.1 to the Registrant's quarterly
report on Form 10-Q for the quarter ended March 31, 1997,
File Number 000-15327)
5 Opinion of Alston & Bird LLP
23.1 Consent of Alston & Bird LLP (included in Exhibit 5 above)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (see Signature Page)
ITEM 17. 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 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.
Notwithstanding the foregoing, any increase or decrease in the volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the Effective 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
II-5
<PAGE>
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 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 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 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the 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.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4), or 497(h)
under the Securities Act of 1933 shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus 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.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Atlanta, and State of Georgia, on March 31, 2000.
CYTRX CORPORATION
By: /s/ Jack J. Luchese
---------------------------
Jack J. Luchese
President and Chief Executive
Officer
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 and each of
them, with the power to act without the other, as 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 and necessary to be done
in and about the premises, 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 either of them, or their or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated on March 30, 2000.
SIGNATURE TITLE
/s/ Jack J. Luchese Director, President and Chief Executive
- ----------------------------
Jack J. Luchese Officer (Principal Executive Officer)
/s/ Mark W. Reynolds Vice President, Finance (Principal Financial
- ----------------------------
Mark W. Reynolds Officer and Principal Accounting Officer)
/s/ Jack L. Bowman Director
- ----------------------------
Jack L. Bowman
/s/ Raymond C. Carnahan, Jr. Director
- ----------------------------
Raymond C. Carnahan, Jr.
/s/ Lyle A. Hohnke Director
- ----------------------------
Lyle A. Hohnke
/s/ Max Link Director
- ----------------------------
Max Link
/s/ Herbert H. McDade, Jr. Director
- ----------------------------
Herbert H. McDade, Jr.
II-7
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. EXHIBIT
----------- -------
4.1 Restated Certificate of Incorporation of the Registrant
(Incorporated herein by reference to Exhibit 3.1 to the
Registrant's registration statement on Form S-3 filed
November 5, 1997, Registration No. 333-39607)
4.2 Restated Bylaws of the Registrant, as amended (Incorporated
herein by reference to Exhibit 4.2 to the Registrant's
registration statement or Form S-8 filed July 21, 1997,
Registration No. 333-31717)
4.3 Shareholder Protection Rights Agreement dated April 16, 1997
between CytRx Corporation and American Stock Transfer &
Trust Company as Rights Agent (Incorporated herein by
reference to Exhibit 4.1 to the Registrant's quarterly
report on Form 10-Q for the quarter ended March 31, 1997,
File Number 000-15327)
5 Opinion of Alston & Bird LLP
23.1 Consent of Alston & Bird LLP (included in Exhibit 5 above)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (see Signature Page)
<PAGE>
EXHIBIT 5
[Letterhead of Alston & Bird LLP]
March 31, 2000
CytRx Corporation
154 Technology Parkway
Norcross, Georgia 30092
Re: Form S-3 Registration Statement - Resale of Stock on Behalf of Certain
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-3 (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 2,606,092 shares (the "Shares") of the
Company's common stock, $.001 par value ("Common Stock"), which are being
offered for the account of certain selling stockholders specified therein. The
Company will not receive any proceeds from the sale of the Shares. The opinion
hereinafter set forth is given to the Commission at the request of the Company
pursuant to Item 16 of Form S-3 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.
Furthermore, in conducting our examination, we assumed that with respect to
the issuance of the Shares issuable upon exercise of the Warrants in accordance
with the Warrant Agreements (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 agreements 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: /s/ W. Thomas Carter III
------------------------
W. Thomas Carter III
a Partner
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related Prospectus of CytRx Corporation
for the registration of 2,606,092 shares of its common stock and to the
incorporation by reference therein of our report dated March 15, 2000, with
respect to the consolidated financial statements and schedule of CytRx
Corporation included in its Annual Report (Form 10-K) for the year ended
December 31, 1999, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Atlanta, GA
March 30, 2000
