<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 25, 2000
REGISTRATION NO. 333-33792
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
CYTRX CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 58-1642740
(State or Other Jurisdiction of Incorporation (I.R.S. Employer
or Organization) Identification Number)
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: [__]
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 MAY, 2000
PROSPECTUS
2,606,092 SHARES
CYTRX CORPORATION
COMMON STOCK
______________________
The shareholders 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 selling shareholders will sell their shares as described in the "Plan of
Distribution" section, which begins on page 7. We will not receive any of the
proceeds from the sale of the shares by the selling shareholders.
Our Common Stock is traded in the over-the-counter market and quoted on the
Nasdaq National Market under the symbol "CYTR." On May 24, 2000 the last
reported closing price of the Common Stock was $.938 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
CytRx Corporation was founded in 1985 and is engaged in the development and
commercialization of pharmaceutical products. Our current research and
development focus is on disorders affecting the vascular system, specifically
those conditions caused by a blockage in the vascular system, commonly referred
to as vascular-occlusive disorders. 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.
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 Be Able to Obtain Adequate Funds to Continue Product Testing and
Research and Development, Which Will Severely Reduce or Terminate Our Operations
and Could Negatively Impact Our Future Profitability and Growth
On March 31, 2000, we had approximately $3.2 million in cash and cash
equivalents and working capital of $1.7 million.
We do not currently have adequate funds to conduct the required testing and
data collection necessary for the FDA to approve FLOCOR or any of our other
products. As a result, we must either severely reduce or terminate testing and
research and development activities, or obtain additional financing from third
parties to fund the required testing.
If we elect to attempt to obtain additional financing, we may be unable to
obtain funds from any third party on terms that we believe are acceptable. Our
inability to obtain additional financing would require us to severely reduce or
terminate testing and research and development activities and could result in
the termination of our operations.
We do not currently have enough funds 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 to manufacture, market, and
distribute any products that may obtain FDA approval. Our need for capital has
greatly increased due to additional FDA-required testing of FLOCOR.
We need to raise additional funds through equity or debt financing, or a
combination of both. We may be unable to obtain any financing or financing on
acceptable terms. Any financing may be on terms that dilute our stockholders.
A lack of financing would require us to severely reduce or terminate testing and
research and development activities and could result in the termination of our
operations.
We Have No Significant Source of Revenue From Our Operations and If We Are
Unable to Generate Revenues From Our Operations We May Have to Depend on Third
Parties to Raise Funds
We currently have no significant source of operating revenue. Our total
revenues for 1999 were approximately $1.9 million. Approximately 49% of our
1999 revenues, or $927,000, came from non-operating sources such as interest
income and grants from government agencies. Approximately 43% of our 1999
revenues, or $823,000, came from selling our services and products, mainly
TiterMax.
If the FDA does not approve, for commercial sale, FLOCOR or one of our
other products, we may not be able to generate significant revenues for an
extended period of time. Lack of revenues adequate to satisfy our operating
needs will cause us to depend on equity or debt financing, or a combination of
both.
<PAGE>
We Have Operated At a Loss For Over Five Years and Will Likely Continue to
Operate at a Loss For Some Time
We incurred significant net losses for each of the last five years. 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 probably incur losses until one or more of our products is approved
by the FDA and that product has achieved significant sales volume. The
activities required for the FDA review process of a new pharmaceutical are
extremely costly and usually take several years. We may never obtain FDA
approval of any of our products currently under development.
The Nasdaq National Market May Delist Our Common Stock and If We Are Delisted
There May Not Be an Active Trading Market for Our Common Stock
On March 14, 2000 we received correspondence from Nasdaq regarding our
failure to satisfy (as of December 31, 1999) the "net tangible assets" criteria
to remain listed on the Nasdaq National Market System. This criteria requires
that we maintain a minimum of $4 million of "net tangible assets" (defined as
Total Assets minus Total Liabilities minus Goodwill minus Redeemable
Securities). Nasdaq provided us with ten business days to respond with our plan
to comply with such criteria. We responded on March 28, and on April 14 Nasdaq
notified us that they had accepted our plan and allowed us to maintain our
listing on the Nasdaq National Market.
Our ability to remain listed on the Nasdaq National Market will depend on
our ability to maintain at least $4 million in net tangible assets as well as
other criteria defined by Nasdaq. If we are unable to continue to satisfy these
criteria, Nasdaq may commence procedures to remove our common stock from the
Nasdaq National Market. If we are delisted from the Nasdaq National Market, an
active trading market for our common stock may no longer exist.
We May Be Unable to Successfully Develop or Commercialize Our Products, Which
Would Severely Reduce or Terminate Our Operations
Our continued operations substantially depend on our ability to
successfully develop and commercialize our products.
In a Phase III clinical study, a drug is tested in a large patient
population to provide a thorough understanding of the drug's effectiveness,
benefits and the range of possible side effects. A Phase III study must be
successfully completed before a company can request FDA approval for marketing
the drug.
In December 1999, we reported results from our Phase III clinical study of
FLOCOR for treatment of sickle cell disease patients experiencing an acute vaso-
occlusive crisis (a blockage of blood flow caused by deformed, or "sickled" red
blood cells). Overall, the study did not achieve the statistical target for its
primary objective, which was to decrease the length of vaso-occlusive crisis for
the study population as a whole. In order to collect adequate information for
FDA approval, we will need to conduct additional clinical studies, which we will
not begin 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 expertise to
commercialize, market and distribute those products successfully. If we do not
have adequate resources or the expertise to commercialize our products
successfully, 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. 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.
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<PAGE>
We May Incur Substantial Unanticipated Costs From Delays in Product Approval
Our products are subject to extensive U.S. regulation and foreign
regulation in other countries where we test and intend to market our current and
future products. Approval of a product can take several years and requires
substantial capital resources. Delays in regulatory approval will cause
substantial unanticipated additional costs. Our lack of significant revenues
from operations and limited funds will require us to seek additional financing
earlier, or in greater amounts, than we had anticipated.
If We Cannot Establish and Maintain Necessary Relationships with Third Parties,
We May Not Be Able to Successfully Introduce Our Products
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 and our success will depend in part on obtaining relationships with
those third parties on terms that are acceptable to us. If we are unable to
establish and maintain third party relationships, or if those 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 could
reduce the likelihood of successful product introduction.
We Depend on a Limited Number of Suppliers For an Adequate Supply of Materials,
Which May Negatively Affect Our Ability to Manufacture Our Products
We require three suppliers of materials or services to manufacture FLOCOR.
These consist of a supplier of poloxamer 188, which is the raw material used to
manufacture FLOCOR (the raw drug substance), a manufacturer who can refine the
raw drug substance to our specifications (the purified drug substance), and a
manufacturer who can mix the purified drug substance with other inactive
ingredients in a sterile environment to produce the final dosage form of FLOCOR.
Our inability to maintain relationships with those suppliers could result in
lengthy delays in the FDA and other regulatory agencies approval processes,
causing us to incur substantial unanticipated costs or our inability to produce,
market and distribute our product.
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. If we are unable
to maintain those relationships on terms acceptable to us or to replace such
suppliers if they fail to adequately perform, we will experience delays in
clinical trials or commercialization of our products.
We May Incur Substantial Costs and Liability From Product Liability Claims
If any of our products are alleged defective, they may expose us to claims
for personal injury. 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 someone asserts a claim against us and the amount of such
claim exceeds our policy limits or is not covered by our policy, such successful
claim may exceed our financial resources and cause us to cease operations. 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.
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<PAGE>
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 financial resources.
We May Experience Volatility in Our Stock Price, Which May Negatively Impact
Your Investment
The market price of our common stock has experienced significant volatility
in the past and may continue to experience significant volatility from time to
time. Our stock price has ranged from $0.75 to $13.50 over the past five years.
Factors such as the following may affect such volatility:
. our quarterly operating results;
. announcements of regulatory developments or technological innovations by
us or our competitors;
. government regulation of drug pricing;
. developments in patent or other technology ownership rights; and
. public concern regarding the safety of our products.
Other factors which may affect our stock price are general changes in the
economy, financial markets or the pharmaceutical or biotechnology industries.
Our Anti-Takeover Provisions May Limit Stockholder Value
We have a shareholder rights plan and provisions in our bylaws that may
discourage or prevent a person or group from acquiring us without our board of
directors' approval. The intent of the shareholder rights plan and our bylaw
provisions is to protect our shareholders' interests by encouraging anyone
seeking control of our Company to negotiate with our Board of Directors.
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.
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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 under this prospectus 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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<PAGE>
SELLING SHAREHOLDERS
The following table provides:
. 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 after 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 our common stock outstanding after
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 Beneficially
Owned Before Shares Owned After
Name Offering Offered Offering
- -------------------------------------- ------------------- ------------------- -------------------
<S> <C> <C> <C>
Theradex Corporation 300,000 300,000 -0-
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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-
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Metrics, Inc. 42,128 42,128 -0-
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GlobolMax LLC 42,000 42,000 -0-
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Certified Facilities Corp. 32,903 32,903 -0-
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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-
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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>
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<PAGE>
PLAN OF DISTRIBUTION
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 those
shares. Between February 25 and March 15, 2000, we exchanged debt obligations
owed by us in return for cash and 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 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
the registration right mentioned above.
The shares the selling shareholders are offering under this registration
statement 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 the exercise of warrants issued to some of the selling
shareholders. The shares also include 143,000 shares which may be reserved for
the exercise of warrants which may be issued to some of the 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.
Any or all of the shares of our common stock offered under this
registration statement 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
under this registration statement 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 attempts 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 following the rules of the exchange or automated
interdealer quotation system which lists the shares; and
. through the options written 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 acting as agents for selling as principals, or
both. The compensation paid by the selling shareholders to an underwriter, agent
or particular broker-dealer will be negotiated before the sale and may exceed
customary compensation. The terms and conditions of an offer of shares will be
included in a supplement to this prospectus at the time of the offer, if
required by applicable law. In addition, any shares covered by this prospectus
which qualify for sale under Rule 144 under the Securities Act of 1933, as
amended, may be sold under Rule 144 rather than under this prospectus.
In connection with distributing the shares being sold under this prospectus,
the selling shareholders may enter 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
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<PAGE>
shares to close out the short positions. The selling shareholders may also enter
into option or other transactions with broker-dealers which require 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 loaned
shares, or upon a default the broker-dealer may effect sales of the pledged
shares. Additionally, 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 characterized as underwriting discounts and commissions under the Securities
Act of 1933, as amended.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents, which we have previously filed with the SEC, are
incorporated into this Registration Statement by reference:
(1) Our Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 2000, filed with the Securities and Exchange Commission (the
"Commission") on May 15, 2000.
(2) Our Annual Report on Form 10-K for the fiscal year ended December 31,
1999, filed with the Commission on March 30, 2000, as amended on Form 10-K/A,
filed with the Commission on April 25, 2000.
(3) 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 us under 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
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<PAGE>
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 our Registration Statement on Form S-3
(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. This prospectus does 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 above addresses.
The SEC allows us to "incorporate by reference" some of the information we
file. 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
under this Registration Statement.
THIS PROSPECTUS INCLUDES OUR PRODUCT NAMES, TRADE NAMES, SERVICE MARKS AND
TRADEMARKS, AS WELL AS THOSE OF OUR SUBSIDIARIES AND OTHER COMPANIES INCLUDING,
WITHOUT LIMITATION, FLOCOR(TM), CYTRX/(R)/, AND TITERMAX/(R)/.
-9-
<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/A
for the year ended December 31, 1999, as described 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
and rely on Ernst & Young LLP's report, given on their authority as experts in
accounting and auditing.
-10-
<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.
-11-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses connected with issuing and distributing the common stock are
provided 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
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
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, with some 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 for directors,
officers and controlling persons of the Company under the above provisions, or
otherwise, the Securities and Exchange Commission has advised us that, in its
opinion, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforce-able. 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)*
- -------------------------------------
* Previously filed
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.
II-5
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities being offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 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 May 25, 2000.
CYTRX CORPORATION
By: /s/ Jack J. Luchese
-------------------
Jack J. Luchese
President and Chief Executive
Officer
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 May 25, 2000.
SIGNATURE TITLE
/s/ Jack J. Luchese Director, President and Chief Executive
- ------------------------ Officer (Principal Executive Officer)
Jack J. Luchese
/s/ Mark W. Reynolds Vice President, Finance (Principal Financial
- ------------------------ Officer and Principal Accounting Officer)
Mark W. Reynolds
* Director
- ------------------------
Jack L. Bowman
* Director
- ------------------------
Raymond C. Carnahan, Jr.
* Director
- ------------------------
Lyle A. Hohnke
* Director
- -------------------------
Max Link
* Director
- -------------------------
Herbert H. McDade, Jr.
*By: /s/ Mark W. Reynolds
--------------------------
Mark W. Reynolds
Attorney-in-fact
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
----------- -------
<C> <S>
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)*
</TABLE>
======================================
*Previously filed
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in Amendment
No. 1 to the Registration Statement on Form S-3 (No. 333-33792) 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/A) for
the year ended December 31, 1999, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Atlanta, Georgia
May 19, 2000
