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EXHIBIT 2.5
CytRx Corporation
154 Technology Park/Atlanta
Norcross, Georgia 30092
(770) 368-9500
November 28, 2000
Majorlink Holdings Limited
Attn.:
Re: Waiver of certain provisions of the Private Equity Line of Credit
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Agreement
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Gentlemen:
Reference is made to that certain Private Equity Line of Credit
Agreement (the "Purchase Agreement"), dated April 26, 2000, between CytRx
Corporation (the "Company") and Majorlink Holdings Limited (the "Purchaser").
In order to register for resale the Common Stock to be purchased pursuant to the
Purchase Agreement, certain provisions of the Purchase Agreement must be waived
and revised.
In consideration of the mutual covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree to
restate the following section of the Purchase Agreement as follows:
Section 2.1(b) Maximum Aggregate Amount of Puts. Anything in
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this Agreement to the contrary notwithstanding, (i) unless the Company
obtains shareholder approval of this Agreement pursuant to the
applicable corporate governance rules of the Nasdaq Stock Market, the
Company may not make a Put (or issue any additional shares under
Section 2.5) which results in the issuance of more than 19.9% of the
number of shares of Common Stock issued and outstanding on the Closing
Date hereof in the aggregate pursuant to all Puts made under the terms
of this Agreement and the exercise of the Warrants and (ii) the
Company may not make a Put to the extent that, after such purchase by
the Investor, the sum of the number of shares of Common Stock and
Warrants beneficially owned by the Investor and its affiliates would
result in beneficial ownership by the Investor and its affiliates of
more than 9.9% of the then outstanding shares of Common Stock. For
purposes of the immediately preceding sentence, beneficial ownership
shall be determined in accordance with Section 13(d) of the Securities
and Exchange Act of 1934, as
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amended. The Investor agrees they will not vote any shares they
acquire under this Agreement in any vote called for by (i) above.
Section 2.4 (a) The obligation of the Investor to purchase
shares of Common Stock shall terminate permanently (including with
respect to a Closing Date that has not yet occurred) in the event that
(i) there shall occur any stop order or suspension of the
effectiveness of the Registration Statement for an aggregate of thirty
(30) Trading Days during the Commitment Period, for any reason other
than deferrals or suspensions in accordance with the Registration
Rights Agreement as a result of corporate developments subsequent to
the Effective Date that would require such Registration Statement to
be amended to reflect such event in order to maintain its compliance
with the disclosure requirements of the Securities Act or (ii) the
Company shall at any time fail to comply in any material respect with
the requirements of Section 6.2, 6.3 or 6.5.
Section 2.4 (b) The obligation of the Company to sell Put Shares
to the Investor shall terminate if the Investor fails to honor any Put
Notice within two (2) Trading Days of the Closing Date scheduled for
such Put, and the Company notifies Investor of such termination. Upon
such termination, the Company may immediately withdraw the
Registration Statement, and the Purchaser shall return to the Company
for cancellation a pro-rata portion of the Warrants, based upon that
portion of the $5,000,000 Commitment Amount that has not been
previously honored.
Except as specifically set forth in this letter, the Purchase
Agreement and its exhibits shall remain unmodified and in full force and effect,
and shall not be in any way changed, modified or superseded by the terms set
forth herein. All terms used but not defined in this letter shall have the
meanings set forth in the Purchase Agreement.
This waiver may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument and shall
become effective when counterparts have been signed by each party and delivered
to the other parties hereto, it being understood that all parties need not sign
the same counterpart. Execution may be made by delivery by facsimile.
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If the foregoing correctly sets forth our understanding and agreement, please
so indicate by signing where indicated below.
CYTRX CORPORATION
By: /s/ Jack J. Luchese
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Jack J. Luchese, President & CEO
ACCEPTED AND AGREED TO:
MAJORLINK HOLDINGS LIMITED
By: /s/ Hans Gassner
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Name: Hans Gassner
Title: Director
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