-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NKsvSV0ANRmXRRs887BMEKljqKwGUTOcNw/zaniXmuFL05vkRk1g6kmy4qzDIqDr SaBHzDtpeqG+eC6EER/DYw== 0001144204-03-005661.txt : 20030917 0001144204-03-005661.hdr.sgml : 20030917 20030917080024 ACCESSION NUMBER: 0001144204-03-005661 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20030916 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20030917 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CYTRX CORP CENTRAL INDEX KEY: 0000799698 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 581642750 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-15327 FILM NUMBER: 03898610 BUSINESS ADDRESS: STREET 1: 154 TECHNOLOGY PKWY STREET 2: TECHNOLOGY PARK/ATLANTA CITY: NORCROSS STATE: GA ZIP: 30092 BUSINESS PHONE: 4043689500 MAIL ADDRESS: STREET 1: 154 TECHNOLOGY PARKWAY CITY: NORCROSS STATE: GA ZIP: 30092 8-K 1 form8k.txt SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported):September 16, 2003 CytRx Corporation - -------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in its Charter) Delaware - -------------------------------------------------------------------------------- (State or Other Jurisdiction of Incorporation) 000-15327 58-1642750 - ------------------------------------- --------------------------------------- (Commission File Number) (I.R.S. Employer Identification No.) 11726 San Vicente Blvd., Suite 650, Los Angeles, CA 90049 - --------------------------------------------------- ------------------ (Address of Principal Executive Offices) (Zip Code) (310) 826-5648 - -------------------------------------------------------------------------------- Registrant's Telephone Number, Including Area Code - -------------------------------------------------------------------------------- (Former Name or Former Address, if Changed Since Last Report). ITEM 5. OTHER EVENTS AND REGULATION FD DISCLOSURE. A. On September 16, 2003, CytRx Corporation completed a private placement of its common stock and warrants to purchase shares of common stock. A press release announcing the foregoing sale of securities was issued by CytRx on September 17, 2003. The foregoing press release and the forms of documents entered into in connection with the offering are filed as exhibits to this Current Report on Form 8-K. B. On September 17, 2003, CytRx Corporation issued a press release announcing that it had reached an agreement in principle with Michael Czech, Ph.D., Professor and Chair of Molecular Medicine, and Professor of Biochemistry and Molecular Pharmacology at the University of Massachusetts Medical School (UMMS), and a team of prominent scientists to form Araios, Inc., a CytRx subsidiary that will develop orally active small molecule based drugs to prevent, treat and cure obesity and type II diabetes. The foregoing press release is filed as an exhibit to Current Report Form 8-K. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (c) The following exhibits are filed as part of this Current Report on Form 8-K: EXHIBIT NO. DESCRIPTION - ----------- ----------- 4.1 Form of Warrant for the Purchase of Shares of Common Stock, dated September 16, 2003, issued to the Purchasers by CytRx Corporation. 10.1 Form of Securities Purchase Agreement, dated as of September 15, 2003, entered into by and among CytRx Corporation and the Purchasers. 10.2 Form of Registration Rights Agreement, dated as of September 15, 2003, entered into by and among CytRx Corporation and the Purchasers. 99.1 Press release regarding completion of private placement issued September 17, 2003. 99.2 Press release regarding Araios, Inc. issued September 17, 2003. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. CYTRX CORPORATION (Registrant) Date: September 17, 2003 By: /s/ Steven A. Kriegsman --------------------------------- Name: Steven A. Kriegsman Title: Chief Executive Officer EXHIBIT INDEX EXHIBIT NO. DESCRIPTION - ----------- ----------- 4.1 Form of Warrant for the Purchase of Shares of Common Stock, dated September 16, 2003, issued to the Purchasers by CytRx Corporation. 10.1 Form of Securities Purchase Agreement, dated as of September 15, 2003, entered into by and among CytRx Corporation and the Purchasers. 10.2 Form of Registration Rights Agreement, dated as of September 15, 2003, entered into by and among CytRx Corporation and the Purchasers. 99.1 Press release regarding completion of private placement issued September 17, 2003. 99.2 Press release regarding Araios, Inc. issued September 17, 2003. EX-4.1 3 ex4_1.txt Exhibit 4.1 THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES ISSUABLE UPON THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED EXCEPT UPON DELIVERY TO THE CORPORATION OF AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO IT THAT SUCH TRANSFER WILL NOT VIOLATE THE SECURITIES ACT OF 1933, AS AMENDED THE TRANSFER OF THIS WARRANT IS RESTRICTED AS DESCRIBED HEREIN. CytRx Corporation Warrant for the Purchase of Shares of Common Stock, par value $0.001 per Share No. W-____ ______ Shares Issuance Date: September 16, 2003 THIS CERTIFIES that, for value received, _____________, whose address is _________________________ or its registered assigns (the "Holder"), is entitled to subscribe for and purchase from CytRx Corporation, a Delaware corporation (the "Company"), upon the terms and conditions set forth herein, ______ shares of the Company's Common Stock, par value $0.001 per share ("Common Stock"), at a price of $3.05 per share, subject to adjustment as provided herein (the "Exercise Price"). As used herein the term "this Warrant" shall mean and include this Warrant and any Common Stock or Warrants hereafter issued as a consequence of the exercise or transfer of this Warrant in whole or in part. The number of shares of Common Stock issuable upon exercise of the Warrants (the "Warrant Shares") and the Exercise Price may be adjusted from time to time as hereinafter set forth. The Warrant Shares are entitled to the benefits, and subject to the obligations, set forth in the Registration Rights Agreement among the Company, the Holder and certain other parties dated concurrently herewith. 1. Exercise Price and Exercise Period. This Warrant may be exercised at any time or from time to time during the period commencing on the Issuance Date and ending at 5:00 P.M. Pacific time on September 14, 2008 (the "Exercise Period"). 2. Procedure for Exercise; Effect of Exercise. (a) Cash Exercise. This Warrant may be exercised, in whole or in part, by the Holder during normal business hours on any business day during the Exercise Period by (i) the delivery to the Company of a duly executed Notice of Exercise (in the form attached to this Agreement) 1 specifying the number of Warrant Shares to be purchased, (ii) delivery of payment to the Company of the Exercise Price for the number of Warrant Shares specified in the Notice of Exercise by cash, wire transfer of immediately available funds to a bank account specified by the Company, or by certified or bank cashier's check (the "Aggregate Exercise Price"), and (iii) the surrender to a common carrier for overnight delivery to the Company, or as soon as practicable following the date the holder of this Warrant delivers the Notice of Exercise to the Company, of this Warrant (or an indemnification undertaking with respect to this Warrant in the case of its loss, theft or destruction). (b) Cashless Exercise. This Warrant may also be exercised by the Holder through a cashless exercise, as described in this Section 2(b). This Warrant may be exercised, in whole or in part, by (i) the delivery to the Company of a duly executed Notice of Exercise specifying the number of Warrant Shares to be applied to such exercise, and (ii) the surrender to a common carrier for overnight delivery to the Company, or as soon as practicable following the date the holder of this Warrant delivers the Notice of Exercise to the Company, of this Warrant (or an indemnification undertaking with respect to this Warrant in the case of its loss, theft or destruction). The number of shares of Common Stock to be issued upon exercise of this Warrant pursuant to this Section 2(b) shall equal the value of this Warrant (or the portion thereof being canceled) computed as of the date of delivery of this Warrant to the Company using the following formula: X = Y(A-B) ------ A Where: X = the number of shares of Common Stock to be issued to Holder under this Section 2(b); Y = the number of Warrant Shares identified in the Notice of Exercise as being applied to the subject exercise; A = the Current Market Price on such date; and B = the Exercise Price on such date For purposes of this Section 2(b), Current Market Price shall have the definition provided in Section 6(g). The Company acknowledges and agrees that this Warrant was issued on the date set forth at the end of this Warrant. Consequently, the Company acknowledges and agrees that, if the Holder conducts a cashless exercise pursuant to this Section 2(b), the period during which the Holder held this Warrant may, for purposes of Rule 144 promulgated under the Securities Act of 1933, as amended (the "Securities Act"), as such rule is currently in effect, be "tacked" to the period during which the Holder holds the Warrant Shares received upon such cashless exercise. Notwithstanding the foregoing, the Holder may conduct a cashless exercise pursuant to 2 this Section 2(b) only after the first anniversary of the Issuance Date, and then only in the event that a registration statement covering the resale of the Warrant Shares is not then effective at the time that the Holder wishes to conduct such cashless exercise. (c) Effect of Exercise. Upon receipt by the Company of a Notice of Exercise, together with proper payment of the Exercise Price, as provided in this Section 2, the Company agrees that such Warrant Shares shall be deemed to be issued to the Holder as the record holder of such Warrant Shares as of the close of business on the date on which the Notice of Exercise has been delivered and payment has been made for such Warrant Shares in accordance with this Agreement and the Holder shall be deemed to be the holder of record of the Warrant Shares, notwithstanding that the stock transfer books of the Company shall then be closed or that certificates representing such Warrant Shares shall not then be actually delivered to the Holder. On or before the fifth business day following the date on which the Company has received each of the Notice of Exercise, the Aggregate Exercise Price (or notice of a cashless exercise) and this Warrant (or an indemnification undertaking with respect to this Warrant in the case of its loss, theft or destruction) (the "Exercise Delivery Documents"), the Company shall (X) issue and deliver to the address as specified in the Notice of Exercise, a certificate, registered in the name of the holder of this Warrant or its designee, for the number of shares of Common Stock to which the holder of this Warrant is entitled pursuant to such exercise, or (Y) provided that the Company's transfer agent (the "Transfer Agent") is participating in The Depository Trust Company ("DTC") Fast Automated Securities Transfer Program, upon the request of the Holder, credit such aggregate number of shares of Common Stock to which the Holder of this Warrant is entitled pursuant to such exercise to the Holder's or its designee's balance account with DTC through its Deposit Withdrawal Agent Commission system. If this Warrant should be exercised in part only, the Company shall, upon surrender of this Warrant for cancellation, execute and deliver a new Warrant evidencing the right of the Holder to purchase the balance of the Warrant Shares subject to purchase hereunder within five (5) business days of receipt of the Warrant. 3. Registration of Warrants; Transfer of Warrants. Any Warrants issued upon the transfer or exercise in part of this Warrant shall be numbered and shall be registered in a Warrant Register as they are issued. The Company shall be entitled to treat the registered holder of any Warrant on the Warrant Register as the owner in fact thereof for all purposes and shall not be bound to recognize any equitable or other claim to or interest in such Warrant on the part of any other person, and shall not be liable for any registration or transfer of Warrants which are registered or to be registered in the name of a fiduciary or the nominee of a fiduciary unless made with the actual knowledge that a fiduciary or nominee is committing a breach of trust in requesting such registration or transfer, or with the knowledge of such facts that its participation therein amounts to bad faith. This Warrant shall be transferable only on the books of the Company upon delivery thereof duly endorsed by the Holder or by its duly authorized attorney or representative, or accompanied by proper evidence of succession, assignment, or authority to transfer. In all cases of transfer by an attorney, executor, administrator, guardian, or other legal representative, duly authenticated evidence of his or its authority shall be produced. Upon any registration of transfer, the Company shall deliver a new Warrant or Warrants to the person entitled thereto. This Warrant may be exchanged, at the option of the Holder thereof, for another 3 Warrant, or other Warrants of different denominations, of like tenor and representing in the aggregate the right to purchase a like number of Warrant Shares, upon surrender to the Company or its duly authorized agent. 4. Restrictions on Transfer. (a) The Holder, as of the date of issuance hereof, represents to the Company that such Holder is acquiring the Warrants for its own account for investment purposes and not with a view to the distribution thereof or of the Warrant Shares. Notwithstanding any provisions contained in this Warrant to the contrary, this Warrant and the related Warrant Shares shall not be transferable except pursuant to the proviso contained in the following sentence or upon the conditions specified in this Section 4, which conditions are intended, among other things, to insure compliance with the provisions of the Securities Act and applicable state law in respect of the transfer of this Warrant or such Warrant Shares. The Holder by acceptance of this Warrant agrees that the Holder will not transfer this Warrant or the related Warrant Shares prior to delivery to the Company of an opinion of the Holder's counsel (as such opinion and such counsel are described in Section 4(b) hereof) or until registration of such Warrant Shares under the Securities Act has become effective or after a sale of such Warrant Shares has been consummated pursuant to Rule 144 or Rule 144A under the Securities Act; provided, however, that the Holder may freely transfer this Warrant or such Warrant Shares (without delivery to the Company of an opinion of Counsel) (i) to one of its nominees, affiliates or a nominee thereof, (ii) to a pension or profit-sharing fund established and maintained for its employees or for the employees of any affiliate, (iii) from a nominee to any of the aforementioned persons as beneficial owner of this Warrant or such Warrant Shares, or (iv) to a qualified institutional buyer, so long as such transfer is effected in compliance with Rule 144A under the Securities Act. (b) The Holder, by its acceptance hereof, agrees that prior to any transfer of this Warrant or of the related Warrant Shares (other than as permitted by Section 4(a) hereof or pursuant to a registration under the Securities Act), the Holder will give written notice to the Company of its intention to effect such transfer, together with an opinion of such counsel for the Holder as shall be reasonably acceptable to the Company, to the effect that the proposed transfer of this Warrant and/or such Warrant Shares may be effected without registration under the Securities Act. Upon delivery of such notice and opinion to the Company, the Holder shall be entitled to transfer this Warrant and/or such Warrant Shares in accordance with the intended method of disposition specified in the notice to the Company. (c) Each stock certificate representing Warrant Shares issued upon exercise or exchange of this Warrant shall bear the following legend unless the opinion of counsel referred to in Section 4(b) states such legend is not required: "THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED EXCEPT UPON DELIVERY TO THE CORPORATION OF AN OPINION OF COUNSEL SATISFACTORY IN FORM 4 AND SUBSTANCE TO IT THAT SUCH TRANSFER WILL NOT VIOLATE THE SECURITIES ACT OF 1933, AS AMENDED." The Holder understands that the Company may place, and may instruct any transfer agent or depository for the Warrant Shares to place, a stop transfer notation in the securities records in respect of the Warrant Shares. 5. Reservation of Shares. The Company shall at all times during the Exercise Period reserve and keep available out of its authorized and unissued Common Stock, solely for the purpose of providing for the exercise of the rights to purchase all Warrant Shares granted pursuant to the Warrants, such number of shares of Common Stock as shall, from time to time, be sufficient therefor. The Company covenants that all shares of Common Stock issuable upon exercise of this Warrant, upon receipt by the Company of the full Exercise Price therefor, and all shares of Common Stock issuable upon conversion of this Warrant, shall be validly issued, fully paid, non-assessable, and free of preemptive rights. 6. Exercise Price Adjustments. The Exercise Price shall be subject to adjustment from time to time as follows: (a) (i) In the event that the Company shall (A) pay a dividend or make a distribution, in shares of Common Stock, on any class of capital stock of the Company or any subsidiary which is not directly or indirectly wholly owned by the Company, (B) split or subdivide its outstanding Common Stock into a greater number of shares, or (C) combine its outstanding Common Stock into a smaller number of shares, then in each such case the Exercise Price in effect immediately prior thereto shall be adjusted so that the Holder of a Warrant thereafter surrendered for Exercise shall be entitled to receive the number of shares of Common Stock that such Holder would have owned or have been entitled to receive after the occurrence of any of the events described above had such Warrant been exercised immediately prior to the occurrence of such event. An adjustment made pursuant to this Section 6(a)(i) shall become effective immediately after the close of business on the record date in the case of a dividend or distribution (except as provided in Section 6(e) below) and shall become effective immediately after the close of business on the effective date in the case of such subdivision, split or combination, as the case may be. Any shares of Common Stock issuable in payment of a dividend shall be deemed to have been issued immediately prior to the close of business on the record date for such dividend for purposes of calculating the number of outstanding shares of Common Stock under clauses (ii) and (iii) below. (ii) In the event that the Company shall commit to issue or distribute Common Stock or issue rights, warrants, options or convertible or exchangeable securities entitling the holder thereof to subscribe for or purchase, convert into or exchange for Common Stock, in any such case at a price per share less than the Current Market Price per share on the earliest of (i) the date the Company shall enter into a firm contract for such issuance or distribution, (ii) the record date for the determination of stockholders entitled to receive any such rights, warrants, options or convertible or exchangeable securities, if applicable, or (iii) the date of 5 actual issuance or distribution of any such Common Stock or rights, warrants, options or convertible or exchangeable securities (provided that the issuance of Common Stock upon the exercise of rights, warrants, options or convertible or exchangeable securities will not cause an adjustment in the Exercise Price if no such adjustment would have been required at the time such right, warrant, option or convertible or exchangeable security was issued), then the Exercise Price in effect immediately prior to such earliest date shall be adjusted so that the Exercise Price shall equal the price determined by multiplying the Exercise Price in effect immediately prior to such earliest date by the fraction: (x) whose numerator shall be the number of shares of Common Stock outstanding on such date plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at such Current Market Price (such amount, with respect to any such rights, warrants, options or convertible or exchangeable securities, determined by multiplying the total number of shares subject thereto by the exercise price of such rights, warrants, options or convertible or exchangeable securities and dividing the product so obtained by the Current Market Price), and (y) whose denominator shall be the number of shares of Common Stock outstanding on such date plus the number of additional shares of Common Stock to be issued or distributed or receivable upon exercise of any such right, warrant, option or convertible or exchangeable security. Such adjustment shall be made successively whenever any such Common Stock, rights, warrants, options or convertible or exchangeable securities are issued or distributed. In determining whether any rights, warrants or options entitle the holders to subscribe for or purchase shares of Common Stock at less than such Current Market Price, and in determining the aggregate offering price of shares of Common Stock so issued or distributed, there shall be taken into account any consideration received by the Company for such Common Stock, rights, warrants, options, or convertible or exchangeable securities, the value of such consideration, if other than cash, to be determined by the Board of Directors, whose determination shall be conclusive and described in a certificate filed with the records of corporate proceedings of the Company. If any right, warrant, option or convertible or exchangeable security to purchase or acquire Common Stock, the issuance of which resulted in an adjustment in the Exercise Price pursuant to this subsection (ii) shall expire and shall not have been exercised, the Exercise Price shall immediately upon such expiration be recomputed to the Exercise Price which would have been in effect had the adjustment of the Exercise Price made upon the issuance of such right, warrant, option or convertible or exchangeable security been made on the basis of offering for subscription, purchase or issuance, as the case may be, only of that number of shares of Common Stock actually purchased or issued upon the actual exercise of such right, warrant, option or convertible or exchangeable securities. (iii) No adjustment in the Exercise Price shall be required unless the adjustment would require an increase or decrease of at least 1% in the Exercise Price then in 6 effect; provided, however, that any adjustments that by reason of this Section 6(a) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 6(a) shall be made to the nearest cent or nearest 1/100th of a share. (iv) Notwithstanding anything to the contrary set forth in this Section 6(a), no adjustment shall be made to the Exercise Price upon (A) the issuance of shares of Common Stock pursuant to any compensation or incentive plan for officers, directors, employees or consultants of the Company which plan has been approved by the Compensation Committee of the Board of Directors (or, if there is no such committee then serving, by the majority vote of the Directors then serving each of which Director is not (x) an employee or officer of the Company, (y) a 5% or greater stockholder of the Company, or (y) an officer, employee, affiliate or associate of any such 5% or greater stockholder) (unless the exercise price thereof is changed after the date hereof other than solely by operation of the anti-dilution provisions thereof or by the Compensation Committee of the Board of Directors or, if applicable, the Board of Directors and, if required by law, the stockholders of the Company), or (B) the issuance of Common Stock upon the conversion or exercise of the options, warrants or rights of the Company outstanding on September 15, 2003, unless the conversion or exercise price thereof is changed after September 15, 2003 (other than solely by operation of the anti-dilution provisions thereof). (v) The Company from time to time may reduce the Exercise Price by any amount for any period of time in the discretion of the Board of Directors; provided, however, that if the Company so reduces the Exercise Price, then it shall similarly reduce the exercise price of all other warrants sold and issued to other holders pursuant to that certain Securities Purchase Agreement dated as of September 15, 2003, by and among the Company, the Holder and certain other holders. A voluntary reduction of the Exercise Price does not change or adjust the Exercise Price otherwise in effect for purposes of this Section 6(a). (vi) In the event that, at any time as a result of an adjustment made pursuant to Sections 6(a)(i) through 6(a)(iii) above, the Holder of any Warrant thereafter surrendered for exercise shall become entitled to receive any shares of the Company other than shares of the Common Stock, thereafter the number of such other shares so receivable upon exercise of any such Warrant shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in Sections 6(a)(i) through 6(a)(v) above, and the other provisions of this Section 6(a) with respect to the Common Stock shall apply on like terms to any such other shares. (b) In case of any reclassification of the Common Stock (other than in a transaction to which Section 6(a)(i) applies), any consolidation of the Company with, or merger of the Company into, any other entity, any merger of another entity into the Company (other than a merger that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the Company), any sale or transfer of all or substantially all of the assets of the Company or any compulsory share exchange, pursuant to which share exchange the Common Stock is converted into other securities, cash or other 7 property, then lawful provision shall be made as part of the terms of such transaction whereby the Holder of a Warrant then outstanding shall have the right thereafter, during the period such Warrant shall be exercisable, to exercise such Warrant only for the kind and amount of securities, cash and other property receivable upon the reclassification, consolidation, merger, sale, transfer or share exchange by a holder of the number of shares of Common Stock of the Company into which a Warrant might have been able to exercise for immediately prior to the reclassification, consolidation, merger, sale, transfer or share exchange assuming that such holder of Common Stock failed to exercise rights of election, if any, as to the kind or amount of securities, cash or other property receivable upon consummation of such transaction subject to adjustment as provided in Section 6(a) above following the date of consummation of such transaction. The Company shall not effect any such reclassification, consolidation, merger, sale, transfer, share exchange or other disposition unless prior to or simultaneously with the consummation thereof the successor corporation (if other than the Company) resulting from such consolidation or merger, or the corporation purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall assume, by written instrument executed and delivered to the Holder, the obligation to deliver to the Holder upon its exercise of the Warrant such shares of stock, securities or assets as, in accordance with the foregoing provisions, the Holder may be entitled to purchase and the other obligations under this Warrant. Notwithstanding the foregoing, in the case of any sale or transfer of all or substantially all of the assets of the Company or merger or consideration of the Company in which the shareholders of the Company receive cash or other property for each of their shares of Common Stock in excess of the then Exercise Price, this Warrant will terminate if not exercised by the Holder no later than the closing of such sale, merger or consolidation. The provisions of this Section 6(b) shall similarly apply to successive reclassifications, consolidations, mergers, sales, transfers or share exchanges. (c) If: (i) the Company shall take any action which would require an adjustment in the Exercise Price pursuant to Section 6(a); or (ii) the Company shall authorize the granting to the holders of its Common Stock generally of rights, warrants or options to subscribe for or purchase any shares of any class or any other rights, warrants or options; or (iii) there shall be any reclassification or change of the Common Stock (other than a subdivision or combination of its outstanding Common Stock or a change in par value) or any consolidation, merger or statutory share exchange to which the Company is a party and for which approval of any stockholders of the Company is required, or the sale or transfer of all or substantially all of the assets of the Company; or 8 (iv) there shall be a voluntary or involuntary dissolution, liquidation or winding up of the Company; then, in each such case, the Company shall cause to be filed with the transfer agent for the Warrants and shall cause to be mailed to each Holder at such Holder's address as shown on the books of the transfer agent for the Warrants, as promptly as possible, but at least 30 days prior to the applicable date hereinafter specified, a notice stating (A) the date on which a record is to be taken for the purpose of such dividend, distribution or granting of rights, warrants or options, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution or rights, warrants or options are to be determined, or (B) the date on which such reclassification, change, consolidation, merger, statutory share exchange, sale, transfer, dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reclassification, change, consolidation, merger, statutory share exchange, sale, transfer, dissolution, liquidation or winding up. Failure to give such notice or any defect therein shall not affect the legality or validity of the proceedings described in this Section 6(c). (d) Whenever the Exercise Price is adjusted as herein provided, the Company shall promptly file with the transfer agent for the Warrants a certificate of an officer of the Company setting forth the Exercise Price after the adjustment and setting forth a brief statement of the facts requiring such adjustment and a computation thereof. The Company shall promptly cause a notice of the adjusted Exercise Price to be mailed to each Holder. (e) In any case in which Section 6(a) provides that an adjustment shall become effective immediately after a record date for an event and the date fixed for such adjustment pursuant to Section 6(a) occurs after such record date but before the occurrence of such event, the Company may defer until the actual occurrence of such event (i) issuing to the Holder of any Warrants exercised after such record date and before the occurrence of such event the additional shares of Common Stock issuable upon such conversion by reason of the adjustment required by such event over and above the Common Stock issuable upon such exercise before giving effect to such adjustment, and (ii) paying to such holder any amount in cash in lieu of any fraction pursuant to Section 6(i). (f) In case the Company shall take any action affecting the Common Stock, other than actions described in this Section 6, which in the opinion of the Board of Directors would materially adversely affect the exercise right of the Holders, the Exercise Price may be adjusted, to the extent permitted by law, in such manner, if any, and at such time, as the Board of Directors may determine to be equitable in the circumstances; provided, however, that in no event shall the Board of Directors be required to take any such action. (g) For the purpose of any computation under Section 2(b) or this Section 6, the "Current Market Price" per share of Common Stock on any day shall mean: (i) if the principal trading market for such securities is a national or regional securities exchange, 9 the closing price on such exchange on such day; or (ii) if sales prices for shares of Common Stock are reported by the NASDAQ National Market System or NASDAQ Small Cap Market (or a similar system then in use), the last reported sales price (regular way) so reported on such day; or (iii) if neither (i) nor (ii) above are applicable, and if bid and ask prices for shares of Common Stock are reported in the over-the-counter market by NASDAQ (or, if not so reported, by the National Quotation Bureau), the average of the high bid and low ask prices so reported on such day. Notwithstanding the foregoing, if there is no reported closing price, last reported sales price, or bid and ask prices, as the case may be, for the day in question, then the Current Market Price shall be determined as of the latest date prior to such day for which such closing price, last reported sales price, or bid and ask prices, as the case may be, are available, unless such securities have not been traded on an exchange or in the over-the-counter market for 30 or more days immediately prior to the day in question, in which case the Current Market Price shall be determined in good faith by, and reflected in a formal resolution of, the Board of Directors of the Company. (h) Upon each adjustment of the Exercise Price, this Warrant shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of shares (calculated to the nearest thousandth) obtained by dividing (i) the product obtained by multiplying the number of shares purchasable upon exercise of this Warrant prior to adjustment of the number of shares by the Exercise Price in effect prior to adjustment of the Exercise Price, by (ii) the Exercise Price in effect after such adjustment of the Exercise Price. (i) The Company shall not be required to issue fractions of shares of Common Stock or other capital stock of the Company upon the exercise of this Warrant. If any fraction of a share would be issuable on the exercise of this Warrant (or specified portions thereof), the Company shall purchase such fraction for an amount in cash equal to the same fraction of the Current Market Price of such share of Common Stock on the date of exercise of this Warrant. 7. Beneficial Ownership. The Company shall not effect the exercise of this Warrant, and no Person (as defined below) who is a holder of this Warrant shall have the right to exercise this Warrant, to the extent that after giving effect to such exercise, such Person (together with such Person's affiliates) would beneficially own in excess of 9.99% of the shares of the Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such Person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised portion of this Warrant beneficially owned by such Person and its affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Person and its affiliates (including, without limitation, any debentures, convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in 10 accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company's most recent Form 10-Q, Form 10-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or its Transfer Agent setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written or oral request of the holder of this Warrant, the Company shall within two Business Days confirm orally and in writing to the holder of this Warrant the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company by the holder of this Warrant and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. In effecting the exercise of this Warrant, the Company shall be entitled to rely on a representation by the holder of this Warrant as to the number of shares that it beneficially owns for purposes of the above 9.99% limitation calculation. 8. Transfer Taxes. The issuance of any shares or other securities upon the exercise of this Warrant, and the delivery of certificates or other instruments representing such shares or other securities, shall be made without charge to the Holder for any tax or other charge in respect of such issuance. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of any certificate in a name other than that of the Holder and the Company shall not be required to issue or deliver any such certificate unless and until the person or persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. 9. Loss or Mutilation of Warrant. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of any Warrant (and upon surrender of any Warrant if mutilated), and upon reimbursement of the Company's reasonable incidental expenses, the Company shall execute and deliver to the Holder thereof a new Warrant of like date, tenor, and denomination. 10. No Rights as a Stockholder. The Holder of any Warrant shall not have, solely on account of such status, any rights of a stockholder of the Company, either at law or in equity, or to any notice of meetings of stockholders or of any other proceedings of the Company, except as provided in this Warrant. 11. Governing Law. This Warrant shall be construed in accordance with the laws of the State of Delaware applicable to contracts made and performed within such State, without regard to principles of conflicts of law. Dated: September 16, 2003 CYTRX CORPORATION By: ----------------------------------------- Steven A. Kriegsman, Chief Executive Officer 11 FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the attached Warrant.) FOR VALUE RECEIVED, hereby sells, assigns, and transfers unto __________________ a Warrant to purchase __________ shares of Common Stock, par value $0.001 per share, of CytRx Corporation (the "Company"), together with all right, title, and interest therein, and does hereby irrevocably constitute and appoint attorney to transfer such Warrant on the books of the Company, with full power of substitution. Dated: ----------------------------- By: -------------------------------- Signature The signature on the foregoing Assignment must correspond to the name as written upon the face of this Warrant in every particular, without alteration or enlargement or any change whatsoever. To: CytRx Corporation 11726 San Vicente Blvd., Suite 650 Los Angeles, California 90049 Attention: Chief Executive Officer NOTICE OF EXERCISE The undersigned hereby exercises his or its rights to purchase _______ Warrant Shares covered by the within Warrant and tenders payment herewith in the amount of $_________ by [tendering cash or delivering a certified check or bank cashier's check, payable to the order of the Company] [surrendering ______ shares of Common Stock received upon exercise of the attached Warrant, which shares have a Current Market Price equal to such payment] in accordance with the terms thereof, and requests that certificates for such securities be issued in the name of, and delivered to: --------------------------------------- --------------------------------------- --------------------------------------- (Print Name, Address and Social Security or Tax Identification Number) and, if such number of Warrant Shares shall not be all the Warrant Shares covered by the within Warrant, that a new Warrant for the balance of the Warrant Shares covered by the within Warrant be registered in the name of, and delivered to, the undersigned at the address stated below. Dated: --------------------------------- By: ------------------------------------ Print Name --------------------------------------- Signature Address: - ------------------------------ - ------------------------------ - ------------------------------ EX-10.1 4 ex10_1.txt Exhibit 10.1 SECURITIES PURCHASE AGREEMENT DATED AS OF SEPTEMBER 15, 2003 AMONG CYTRX CORPORATION AND THE PURCHASERS LISTED ON EXHIBIT A TABLE OF CONTENTS
PAGE ---- ARTICLE I Purchase and Sale of Common Stock and Warrants........................................................1 Section 1.1 Purchase and Sale of Common Stock and Warrants.........................................1 Section 1.2 Purchase Price and Closing.............................................................1 Section 1.3 Warrants...............................................................................2 Section 1.4 Warrant Shares.........................................................................2 ARTICLE II Representations and Warranties........................................................................2 Section 2.1 Representations and Warranties of the Company..........................................2 Section 2.2 Representations and Warranties of the Purchasers......................................13 ARTICLE III Covenants............................................................................................14 Section 3.1 Securities Compliance.................................................................15 Section 3.2 Registration and Listing..............................................................15 Section 3.3 Inspection Rights.....................................................................15 Section 3.4 Compliance with Laws..................................................................15 Section 3.5 Keeping of Records and Books of Account...............................................15 Section 3.6 Reporting Requirements................................................................15 Section 3.7 Other Agreements......................................................................16 Section 3.8 Reservation of Shares.................................................................16 Section 3.9 Disclosure of Transactions and Other Material Information.............................16 Section 3.10 Delivery of Share Certificates........................................................17 Section 3.11 No Trading in the Common Stock........................................................17 ARTICLE IV Conditions...........................................................................................17 Section 4.1 Conditions Precedent to the Obligation of the Company to Close and to Sell the Shares and Warrants..........................................................17 Section 4.2 Conditions Precedent to the Obligation of the Purchasers to Close and to Purchase the Shares and Warrants...................................................18 ARTICLE V Certificate Legend...................................................................................20 Section 5.1 Legend................................................................................20 ARTICLE VI Termination..........................................................................................21 Section 6.1 Termination by Mutual Consent.........................................................21 Section 6.2 Effect of Termination.................................................................21
-i- TABLE OF CONTENTS (continued)
PAGE ---- ARTICLE VII Indemnification.....................................................................................21 Section 7.1 General Indemnity.....................................................................21 Section 7.2 Indemnification Procedure.............................................................21 ARTICLE VIII Miscellaneous.......................................................................................22 Section 8.1 Fees and Expenses.....................................................................22 Section 8.2 Specific Enforcement; Consent to Jurisdiction.........................................23 Section 8.3 Entire Agreement; Amendment...........................................................23 Section 8.4 Notices...............................................................................24 Section 8.5 Waivers...............................................................................24 Section 8.6 Headings; Interpretation..............................................................24 Section 8.7 Successors and Assigns................................................................25 Section 8.8 No Third Party Beneficiaries..........................................................25 Section 8.9 Governing Law.........................................................................25 Section 8.10 Survival..............................................................................25 Section 8.11 Counterparts..........................................................................25 Section 8.12 Publicity.............................................................................25 Section 8.13 Severability..........................................................................25 Section 8.14 Further Assurances....................................................................26 Section 8.15 Independent Nature of Purchasers' Obligations and Rights..............................26
-ii- SECURITIES PURCHASE AGREEMENT This SECURITIES PURCHASE AGREEMENT this ("Agreement"), dated as of September 15, 2003, by and among CytRx Corporation, a Delaware corporation (the "Company"), and the entities listed on Exhibit A hereto (each, a "Purchaser" and collectively, the "Purchasers"), for the purchase and sale by the Purchasers of shares of the Company's Common Stock, par value $0.001 per share (the "Common Stock"), and warrants to purchase shares of Common Stock. The parties hereto agree as follows: ARTICLE I PURCHASE AND SALE OF COMMON STOCK AND WARRANTS Section 1.1 Purchase and Sale of Common Stock and Warrants. Upon the following terms and conditions, the Company shall issue and sell to the Purchasers, and each Purchaser shall, severally but not jointly, purchase from the Company that number of shares of Common Stock (the "Shares") and warrants to purchase shares of Common Stock equal to 25% of the number of Shares to be purchased by such Purchaser, in substantially the form attached hereto as Exhibit B (the "Warrants"), in each case, set forth opposite such Purchaser's name on Exhibit A hereto at a price per Share and related Warrants of $2.10 for an aggregate purchase price to the Company from each Purchasers (the "Purchase Price") equal to the amount set forth on the signature page hereof and on Exhibit A. The Company and the Purchasers are executing and delivering this Agreement in accordance with and in reliance upon the exemption from securities registration afforded by Section 4(2) of the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "Securities Act"), including Regulation D ("Regulation D"), and/or upon such other exemption from the registration requirements of the Securities Act as may be available with respect to any or all of the investments to be made hereunder. Section 1.2 Purchase Price and Closing. The Company agrees to issue and sell to the Purchasers and, in consideration of and in express reliance upon the representations, warranties, covenants, terms and conditions of this Agreement, the Purchasers, severally but not jointly, agree to purchase the number of Shares and Warrants set forth on the signature page hereof and opposite their respective names on Exhibit A. The closing of the purchase and sale of the Shares and Warrants to be acquired by the Purchasers from the Company under this Agreement shall take place at the offices of the Company located at 11726 San Vicente Boulevard, Suite 650, Los Angeles, California 90049 (the "Closing") at 10:00 a.m., Pacific Time (i) on or before September 15, 2003, provided, that all of the conditions set forth in Article IV hereof and applicable to the Closing shall have been fulfilled or waived in accordance herewith, or (ii) at such other time and place or on such date as the Purchasers and the Company may agree upon (the "Closing Date"). The entire Purchase Price payable by each Purchaser shall be payable in cash, by wire transfer or in readily available funds, at the Closing. Section 1.3 Warrants. At the Closing, the Company shall issue to each Purchaser such number of Warrants to purchase shares of Common Stock as is set forth opposite such Purchaser's name on Exhibit A hereto. The Warrants shall be exercisable for five (5) years from the date of issuance and shall have an exercise price equal to $3.05. Section 1.4 Warrant Shares. The Company has authorized and has reserved and covenants to continue to reserve, free of preemptive rights and other similar contractual rights of stockholders, a number of its authorized but unissued shares of Common Stock equal to the aggregate number of shares of Common Stock necessary to effect the exercise of the Warrants. Any shares of Common Stock issuable upon exercise of the Warrants (and such shares when issued) are herein referred to as the "Warrant Shares". The Shares, the Warrants and the Warrant Shares are sometimes collectively referred to herein as the "Securities". ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2.1 Representations and Warranties of the Company. In order to induce the Purchasers to enter into this Agreement and to purchase the Shares and the Warrants, the Company hereby makes the following representations and warranties to the Purchasers: (a) Organization, Good Standing and Power. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has the requisite corporate power to own, lease and operate its properties and assets and to conduct its business as it is now being conducted. The Company does not have any Subsidiaries (as defined in Section 2.1(g)) or own securities of any kind in any other entity, except as set forth on Schedule 2.1(g) hereto. The Company and each such Subsidiary is duly qualified as a foreign corporation to do business and is in good standing in every jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except for any jurisdiction(s) (alone or in the aggregate) in which the failure to be so qualified will not have a Material Adverse Effect. For the purposes of this Agreement, "Material Adverse Effect" means any adverse effect on the business, operations, properties, prospects or financial condition of the Company or its Subsidiaries and which is material to such entity or other entities controlling or controlled by such entity or which is likely to materially hinder the performance by the Company of its material obligations hereunder and under the other Transaction Documents (as defined in Section 2.1(b) hereof). (b) Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and perform this Agreement, the Registration Rights Agreement, the Warrants, and the other agreements and documents contemplated hereby and thereby and executed by the Company or to which the Company is party (collectively, the "Transaction Documents"), and to issue and sell the Shares and the Warrants in accordance with the terms hereof. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by it of the transactions contemplated thereby have been duly and validly authorized by all necessary corporate action, and, except as set forth in Schedule 2.1(b), no further consent or authorization of the Company, its Board of Directors or its -2- stockholders is required. This Agreement has been duly executed and delivered by the Company. The other Transaction Documents will have been duly executed and delivered by the Company at the Closing. Each of the Transaction Documents constitutes, or shall constitute when executed and delivered, a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditor's rights and remedies or by other equitable principles of general application. (c) Capitalization. The authorized capital stock of the Company and the shares thereof currently issued and outstanding as of September 9, 2003 are set forth on Schedule 2.1(c) hereto. All of the outstanding shares of the Company's Common Stock and any other security of the Company have been duly and validly authorized. Except as set forth on Schedule 2.1(c) hereto, no shares of Common Stock or any other security of the Company are entitled to preemptive rights or registration rights and there are no outstanding options, warrants, scrip, rights to subscribe to, call or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company. Furthermore, except as set forth on Schedule 2.1(c) hereto, there are no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, securities or rights convertible into shares of capital stock of the Company. Except for customary transfer restrictions contained in agreements entered into by the Company in order to sell restricted securities or as provided on Schedule 2.1(c) hereto, the Company is not a party to or bound by any agreement or understanding granting registration or anti-dilution rights to any person with respect to any of its equity or debt securities. Except as set forth on Schedule 2.1(c), the Company is not a party to, and it has no knowledge of, any agreement or understanding restricting the voting or transfer of any shares of the capital stock of the Company. Except as set forth on Schedule 2.1(c) hereto, the offer and sale of all capital stock, convertible securities, rights, warrants, or options of the Company issued prior to the Closing complied with all applicable federal and state securities laws, and no holder of such securities has a right of rescission or claim for damages with respect thereto which could have a Material Adverse Effect. The Company has furnished or made available to the Purchasers true and correct copies of the Company's Certificate of Incorporation as amended and restated and in effect on the date hereof (the "Certificate"), and the Company's Bylaws as in effect on the date hereof (the "Bylaws"). (d) Issuance of Securities. The Shares and the Warrants to be issued at the Closing have been duly authorized by all necessary corporate action and, when paid for or issued in accordance with the terms hereof, the Shares shall be validly issued and outstanding, fully paid and nonassessable and free and clear of all liens, encumbrances and rights of refusal of any kind and the holders shall be entitled to all rights accorded to a holder of Common Stock. When the Warrant Shares are issued and paid for in accordance with the terms of this Agreement and as set forth in the Warrants, such shares will be duly authorized by all necessary corporate action and validly issued and outstanding, fully paid and nonassessable, free and clear of all liens, encumbrances and rights of refusal of any kind and the holders shall be entitled to all rights accorded to a holder of Common Stock. -3- (e) No Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby do not and will not (i) violate any provision of the Certificate or Bylaws or any Subsidiary's comparable charter documents, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries' respective properties or assets are bound, (iii) create or impose a lien, mortgage, security interest, charge or encumbrance of any nature on any property or asset of the Company or any of its Subsidiaries under any agreement or any commitment to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or by which any of their respective properties or assets are bound, or (iv) result in a violation of any federal, state, local or foreign statute, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected, except, in all cases other than violations pursuant to clauses (i) or (iv) (with respect to federal and state securities laws) above, for such conflicts, defaults, terminations, amendments, acceleration, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect. The business of the Company and its Subsidiaries is not being conducted in violation of any laws, ordinances or regulations of any governmental entity, except for possible violations which singularly or in the aggregate do not and will not have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is required under federal, state, foreign or local law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under the Transaction Documents or issue and sell the Shares, the Warrants or the Warrant Shares in accordance with the terms hereof or thereof (other than any filings which may be required to be made by the Company with the Securities and Exchange Commission (the "Commission") and/or the NASD prior to or subsequent to the Closing, or state securities administrators subsequent to the Closing, or any registration statement which may be filed pursuant hereto or thereto). (f) Commission Documents; Financial Statements; Form S-3. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, except as disclosed on Schedule 2.1(f) hereto, the Company has timely filed all reports, schedules, forms, statements and other documents required to be filed by it with the Commission pursuant to the reporting requirements of the Exchange Act, including material filed pursuant to Section 13(a) or 15(d) of the Exchange Act (all of the foregoing, including filings incorporated by reference therein, being referred to herein as the "Commission Documents"). The Company has delivered or made available to the Purchasers true and complete copies of the Commission Documents filed with the Commission since December 31, 2000. Except for the information regarding the Company's investment in Araios, Inc. contained in Schedule of Exceptions to Representations and Warranties attached to this Agreement, the Company has not provided to the Purchasers any material non-public information or other information which, according to applicable law, rule or regulation, should have been disclosed publicly by the Company but which has not been so disclosed, other than with respect to the transactions -4- contemplated by this Agreement. At the time of its filing, the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2003 (the "Form 10-Q") complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission promulgated thereunder and other federal, state and local laws, rules and regulations applicable to such documents, and the Form 10-Q did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time of its filing, the Company's Annual Report on Form 10-K/A for the fiscal year ended December 31, 2002 (the "Form 10-K") complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission promulgated thereunder and other federal, state and local laws, rules and regulations applicable to such documents, and, at the time of its filing, the Form 10-K did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the Commission Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the Commission or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles ("GAAP") applied on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the Notes thereto or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements), and fairly present in all material respects the financial position of the Company and its Subsidiaries as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). As of the date of this Agreement, the Company is eligible to register shares of its outstanding securities on Form S-3 for sale in a secondary offering. (g) Subsidiaries. Schedule 2.1(g) hereto sets forth each Subsidiary of the Company, showing the jurisdiction of its incorporation or organization and showing the percentage of each person's ownership of the outstanding stock or other interests of such Subsidiary. For the purposes of this Agreement, "Subsidiary" shall mean any corporation or other entity of which at least a majority of the securities or other ownership interest having ordinary voting power (absolutely or contingently) for the election of directors or other persons performing similar functions are at the time owned directly or indirectly by the Company and/or any of its other Subsidiaries. All of the outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued, and are fully paid and nonassessable. There are no outstanding preemptive, conversion or other rights, options, warrants or agreements granted or issued by or binding upon any Subsidiary for the purchase or acquisition of any shares of capital stock of any Subsidiary or any other securities convertible into, exchangeable for or evidencing the rights to subscribe for any shares of such capital stock. Neither the Company nor any Subsidiary is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of the capital stock of any Subsidiary or any convertible securities, rights, warrants or options of the type described in the preceding sentence except as set forth on Schedule 2.1(g) hereto. Neither the Company nor any Subsidiary is party to, nor has any -5- knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of any Subsidiary. (h) No Material Adverse Change. Since June 30, 2003, the Company has not experienced or suffered any Material Adverse Effect, except as disclosed on Schedule 2.1(h) hereto. (i) No Undisclosed Liabilities. Except as disclosed on Schedule 2.1(i) hereto, neither the Company nor any of its Subsidiaries has any liabilities, obligations, claims or losses (whether liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise) other than those set forth in the Commission Documents or incurred in the ordinary course of the Company's or its Subsidiaries respective businesses since June 30, 2003, and which, individually or in the aggregate, do not or would not have a Material Adverse Effect on the Company or its Subsidiaries. (j) No Undisclosed Events or Circumstances. Since June 30, 2003, except as disclosed on Schedule 2.1(j) hereto, no event or circumstance has occurred or exists with respect to the Company or its Subsidiaries or their respective businesses, properties, prospects, operations or financial condition, which, under applicable law, rule or regulation, requires public disclosure or announcement by the Company but which has not been so publicly announced or disclosed. (k) Indebtedness. Schedule 2.1(k) hereto sets forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments, that is not disclosed in the Commission Documents. For purposes of this Agreement: (x) "Indebtedness" of any Person means, without duplication (A) any indebtedness for borrowed money in excess of $100,000, (B) any obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than trade payables entered into in the ordinary course of business) in excess of $100,000, (C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) any obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (E) any indebtedness in excess of $100,000 created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (F) all monetary obligations under any leasing or similar arrangement which, in connection with GAAP, consistently applied for the periods covered thereby, is classified as a capital lease with a present value in excess of $100,000, (G) all indebtedness referred to in clauses (A) through (F) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, charge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (H) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (A) through (G) above; and (y) -6- "Contingent Obligation" means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto in excess of $100,000 due under leases required to be capitalized in accordance with GAAP. Except as disclosed on Schedule 2.1(k), neither the Company nor any Subsidiary is in default with respect to any Indebtedness. (l) Title to Assets. Each of the Company and the Subsidiaries has good and marketable title to all of its real and personal property, free and clear of any mortgages, pledges, charges, liens, security interests or other encumbrances of any nature whatsoever, except for those indicated on Schedule 2.1(l) hereto or such that, individually or in the aggregate, do not have a Material Adverse Effect. All said leases of the Company and each of its Subsidiaries are valid and subsisting and in full force and effect. (m) Actions Pending. There is no action, suit, claim, investigation, arbitration, alternate dispute resolution proceeding or other proceeding pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary which questions the validity of this Agreement or any of the other Transaction Documents or any of the transactions contemplated hereby or thereby or any action taken or to be taken pursuant hereto or thereto. Except as set forth on Schedule 2.1(m) hereto, there is no action, suit, claim, investigation, arbitration, alternate dispute resolution proceeding or other proceeding pending or, to the knowledge of the Company, threatened against or involving the Company, any Subsidiary or any of their respective properties or assets, which individually or in the aggregate, would have a Material Adverse Effect. There are no outstanding orders, judgments, injunctions, awards or decrees of any court, arbitrator or governmental or regulatory body against the Company or any Subsidiary or any officers or directors of the Company or any Subsidiary in their capacities as such, which individually, or in the aggregate, would have a Material Adverse Effect. (n) Compliance with Law. The business of the Company and the Subsidiaries has been and is presently being conducted in accordance with all applicable federal, state and local governmental laws, rules, regulations and ordinances, except as set forth in the Commission Documents or on Schedule 2.1(n) hereto or such that, individually or in the aggregate, the noncompliance therewith would not have a Material Adverse Effect. The Company and each of its Subsidiaries have all franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals necessary for the conduct of its business as now being conducted by it unless the failure to possess such franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. (o) Taxes. Except as set forth on Schedule 2.1(o) hereto, the Company and each of the Subsidiaries has accurately prepared and filed all federal, state and other tax returns required by law to be filed by it, has paid or made provisions for the payment of all taxes shown to be due and all additional assessments, and adequate provisions have been and are reflected in -7- the financial statements of the Company and the Subsidiaries for all current taxes and other charges to which the Company or any Subsidiary is subject and which are not currently due and payable. Except as disclosed on Schedule 2.1(o) hereto, none of the federal income tax returns of the Company or any Subsidiary have been audited by the Internal Revenue Service. The Company has no knowledge of any additional assessments, adjustments or contingent tax liability (whether federal or state) of any nature whatsoever, whether pending or threatened against the Company or any Subsidiary for any period, nor of any basis for any such assessment, adjustment or contingency. (p) Certain Fees. Except as set forth on Schedule 2.1(p) hereto, the Company has not employed any broker or finder or incurred any liability for any brokerage or investment banking fees, commissions, finders' structuring fees, financial advisory fees or other similar fees in connection with the Transaction Documents. (q) Disclosure. To the best of the Company's knowledge, neither this Agreement or the Schedules hereto nor any other documents, certificates or instruments furnished to the Purchasers by or on behalf of the Company or any Subsidiary in connection with the transactions contemplated by this Agreement contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made herein or therein, in the light of the circumstances under which they were made herein or therein, not misleading. (r) Intellectual Property. Schedule 2.1(r) contains a complete and correct list of all patents, trademarks, domain names (whether or not registered) and any patentable improvements or copyrightable derivative works thereof, websites and intellectual property rights relating thereto, service marks, trade names, copyrights, licenses and authorizations, and all rights with respect to the foregoing (collectively, the "Proprietary Rights"), held by the Company or any of its Subsidiaries. As of the date of this Agreement, neither the Company nor any of its Subsidiaries has received any written notice that any Proprietary Rights have been declared unenforceable or otherwise invalid by any court or governmental agency. As of the date of this Agreement, there is, to the knowledge of the Company, no material existing infringement, misuse or misappropriation of any Proprietary Rights by others. From June 30, 2003 to the date of this Agreement, neither the Company nor any of its Subsidiaries has received any written notice alleging that the operation of the business of the Company or any of its Subsidiaries infringes in any material respect upon the intellectual property rights of others. (s) Environmental Compliance. Except as disclosed on Schedule 2.1(s) hereto, the Company and each of its Subsidiaries have obtained all material approvals, authorization, certificates, consents, licenses, orders and permits or other similar authorizations of all governmental authorities, or from any other person, that are required under any Environmental Laws. Schedule 2.1(s) hereto sets forth all material permits, licenses and other authorizations issued under any Environmental Laws to the Company or its Subsidiaries. "Environmental Laws" shall mean all applicable laws relating to the protection of the environment including, without limitation, all requirements pertaining to reporting, licensing, permitting, controlling, investigating or remediating emissions, discharges, releases or threatened releases of hazardous substances, chemical substances, pollutants, contaminants or toxic substances, materials or wastes, whether solid, liquid or gaseous in nature, into the air, surface -8- water, groundwater or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of hazardous substances, chemical substances, pollutants, contaminants or toxic substances, material or wastes, whether solid, liquid or gaseous in nature. Except as set forth on Schedule 2.1(s) hereto, the Company has all necessary governmental approvals required under all Environmental Laws and used in its business or in the business of any of its Subsidiaries, except for such instances as would not individually or in the aggregate have a Material Adverse Effect. The Company and each of its Subsidiaries are also in compliance with all other limitations, restrictions, conditions, standards, requirements, schedules and timetables required or imposed under all Environmental Laws. Except for such instances as would not individually or in the aggregate have a Material Adverse Effect, there are no past or present events, conditions, circumstances, incidents, actions or omissions relating to or in any way affecting the Company or its Subsidiaries that violate or may violate any Environmental Law after the Closing or that may give rise to any Environmental Liabilities, or otherwise form the basis of any claim, action, demand, suit, proceeding, hearing, study or investigation (i) under any Environmental Law, or (ii) based on or related to the manufacture, processing, distribution, use, treatment, storage (including, without limitation, underground storage tanks), disposal, transport or handling, or the emission, discharge, release or threatened release of any hazardous substance. "Environmental Liabilities" means all liabilities of a person (whether such liabilities are owed by such person to governmental authorities, third parties or otherwise) whether currently in existence or arising hereafter which arise under or relate to any Environmental Law. (t) Books and Records; Internal Accounting Controls. The books, records and documents of the Company and its Subsidiaries accurately reflect in all material respects the information relating to the business of the Company and the Subsidiaries, the location and collection of their assets, and the nature of all transactions giving rise to the obligations or accounts receivable of the Company or any Subsidiary. The Company and each of its Subsidiaries maintain a system of internal accounting controls sufficient, in the judgment of the Company's board of directors, to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate actions are taken with respect to any differences. (u) Material Agreements. Except for the Transaction Documents or as set forth on Schedule 2.1(u) hereto, or those that are included as exhibits to the Commission Documents, neither the Company nor any Subsidiary is a party to any written or oral contract, instrument, agreement, commitment, obligation, plan or arrangement, a copy of which would be required to be filed with the Commission (collectively, "Material Agreements") if the Company or any Subsidiary were registering securities under the Securities Act. The Company and each of its Subsidiaries has in all material respects performed all the obligations required to be performed by them to date under the foregoing agreements, have received no notice of default and, to the best of the Company's knowledge, are not in default under any Material Agreement now in effect, the result of which could cause a Material Adverse Effect. No written or oral contract, -9- instrument, agreement, commitment, obligation, plan or arrangement of the Company or of any Subsidiary limits or shall limit the payment of dividends on its Common Stock. (v) Transactions with Affiliates. Except as set forth in the Commission Documents or on Schedule 2.1(v) hereto, there are no loans, leases, agreements, contracts, royalty agreements, management contracts or arrangements or other continuing transactions between (a) the Company, any Subsidiary or any of their respective customers or suppliers, on the one hand, and (b) on the other hand, any officer, employee, consultant or director of the Company, or any of its Subsidiaries, or any person owning any capital stock of the Company or any Subsidiary or any member of the immediate family of such officer, employee, consultant, director or stockholder or any corporation or other entity controlled by such officer, employee, consultant, director or stockholder. (w) Securities Act of 1933. The Company has complied and will comply with all applicable federal and state securities laws in connection with the offer, issuance and sale of the Shares, the Warrants and the Warrant Shares hereunder. Neither the Company nor anyone acting on its behalf, directly or indirectly, has or will sell, offer to sell or solicit offers to buy any of the Securities, or similar securities to, or solicit offers with respect thereto from, or enter into any preliminary conversations or negotiations relating thereto with, any person, or has taken or will take any action so as to bring the issuance and sale of any of the Securities under the registration provisions of the Securities Act and applicable state securities laws. Neither the Company nor any of its affiliates, nor any person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or sale of any of the Securities. (x) Governmental Approvals. Except as set forth on Schedule 2.1(x) hereto, and except for the filing of any notice prior or subsequent to the Closing that may be required under applicable state and/or federal securities laws (which if required, shall be filed on a timely basis), no authorization, consent, approval, license, exemption of, filing or registration with any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, is or will be necessary for, or in connection with, the execution or delivery of the Shares and the Warrants, or for the performance by the Company of its obligations under the Transaction Documents. (y) Employees. Neither the Company nor any Subsidiary has any collective bargaining arrangements or agreements covering any of its employees. Except as set forth in the Commission Documents or on Schedule 2.1(y) hereto, neither the Company nor any Subsidiary has any employment contract, agreement regarding proprietary information, non-competition agreement, non-solicitation agreement, confidentiality agreement, or any other similar contract or restrictive covenant, relating to the right of any officer, employee or consultant to be employed or engaged by the Company or such Subsidiary. Since June 30, 2003, no officer, consultant or key employee of the Company or any Subsidiary whose termination, either individually or in the aggregate, could have a Material Adverse Effect, has terminated or, to the knowledge of the Company, has any present intention of terminating his or her employment or engagement with the Company or any Subsidiary. -10- (z) Absence of Certain Developments. Except as set forth in the Commission Documents or on Schedule 2.1(z) hereto, since June 30, 2003, neither the Company nor any Subsidiary has: (i) issued any stock, bonds or other corporate securities or any rights, options or warrants with respect thereto; (ii) borrowed any amount or incurred or become subject to any liabilities (absolute or contingent) except current liabilities incurred in the ordinary course of business which are comparable in nature and amount to the current liabilities incurred in the ordinary course of business during the comparable portion of its prior fiscal year, as adjusted to reflect the current nature and volume of the Company's or such Subsidiary's business; (iii) discharged or satisfied any lien or encumbrance or paid any obligation or liability (absolute or contingent), other than current liabilities paid in the ordinary course of business; (iv) declared or made any payment or distribution of cash or other property to stockholders with respect to its stock, or purchased or redeemed, or made any agreements so to purchase or redeem, any shares of its capital stock; (v) sold, assigned or transferred any other tangible assets, or canceled any debts or claims, except in the ordinary course of business; (vi) sold, assigned or transferred any patent rights, trademarks, trade names, copyrights, trade secrets or other intangible assets or intellectual property rights, or disclosed any proprietary confidential information to any person except in the ordinary course of business or to the Purchasers or their representatives; (vii) suffered any substantial losses or waived any rights of material value, whether or not in the ordinary course of business, or suffered the loss of any material amount of prospective business; (viii) made any changes in employee compensation except in the ordinary course of business and consistent with past practices; (ix) made capital expenditures or commitments therefor that aggregate in excess of $25,000; (x) entered into any other transaction other than in the ordinary course of business, or entered into any other material transaction, whether or not in the ordinary course of business; (xi) made charitable contributions or pledges in excess of $25,000; -11- (xii) suffered any material damage, destruction or casualty loss, whether or not covered by insurance; (xiii) experienced any material problems with labor or management in connection with the terms and conditions of their employment; (xiv) effected any two or more events of the foregoing kind which in the aggregate would cause a Material Adverse Effect; or (xv) entered into an agreement, written or otherwise, to take any of the foregoing actions. (aa) Use of Proceeds. All of the net proceeds (after deduction of all commissions and other offering expenses) from the sale of the Shares and the Warrants will be used by the Company to purchase shares of preferred stock of Araios, Inc., a Delaware corporation. (bb) Public Utility Holding Company Act and Investment Company Act Status. The Company is not a "holding company" or a "public utility company" as such terms are defined in the Public Utility Holding Company Act of 1935, as amended. The Company is not, and as a result of and immediately upon Closing will not be, an "investment company" or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended. (cc) ERISA. No liability to the Pension Benefit Guaranty Corporation has been incurred with respect to any Plan by the Company or any of its Subsidiaries which is or would cause a Material Adverse Effect. The execution and delivery of this Agreement and the issue and sale of the Shares and the Warrants will not involve any transaction which is subject to the prohibitions of Section 406 of ERISA or in connection with which a tax could be imposed pursuant to Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"); provided that, if any Purchaser, or any person or entity that owns a beneficial interest in any Purchaser, is an "employee pension benefit plan" (within the meaning of Section 3(2) of ERISA) with respect to which the Company is a "party in interest" (within the meaning of Section 3(14) of ERISA), the requirements of Sections 407(d)(5) and 408(e) of ERISA, if applicable, are met. As used in this Section 2.1(cc), the term "Plan" shall mean an "employee pension benefit plan" (as defined in Section 3 of ERISA) which is or has been established or maintained, or to which contributions are or have been made, by the Company or any Subsidiary or by any trade or business, whether or not incorporated, which, together with the Company or any Subsidiary, is under common control, as described in Section 414(b) or (c) of the Code. (dd) Delisting Notification. The Company has not received a delisting notification from the NASDAQ Stock Market that has not been rescinded, and, to its knowledge, there are no existing facts or circumstances that could give rise to the delisting of the Common Stock from the NASDAQ Stock Market. -12- (ee) Sarbanes-Oxley Act. The Company is in compliance with any and all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof, except where such noncompliance would not have, individually or in the aggregate, a Material Adverse Effect. Section 2.2 Representations and Warranties of the Purchasers. Each of the Purchasers hereby makes the following representations and warranties to the Company with respect solely to itself and not with respect to any other Purchaser: (a) Organization and Standing of the Purchasers. If such Purchaser is an entity, such Purchaser is a corporation, limited liability company or partnership duly incorporated or organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization. (b) Authorization and Power. Such Purchaser has the requisite power and authority to enter into and perform the Transaction Documents and to purchase the Shares and Warrants being sold to it hereunder. The execution, delivery and performance of the Transaction Documents by such Purchaser and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate or partnership action, and no further consent or authorization of such Purchaser or its Board of Directors, stockholders, or partners, as the case may be, is required. This Agreement has been duly authorized, executed and delivered by such Purchaser. The other Transaction Documents constitute, or shall constitute when executed and delivered, valid and binding obligations of such Purchaser enforceable against such Purchaser in accordance with their terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditor's rights and remedies or by other equitable principles of general application. (c) Acquisition for Investment. Such Purchaser is purchasing the Shares and acquiring the Warrants solely for its own account for the purpose of investment and not with a view to or for sale in connection with the distribution thereof. Such Purchaser does not have a present intention to sell any of the Securities, nor a present arrangement (whether or not legally binding) or intention to effect any distribution of any of the Securities to or through any person or entity; provided, however, that by making the representations herein and subject to Section 2.2(e) below, such Purchaser does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to pledge any of the Securities for margin purposes and/or to dispose of any of the Securities at any time in accordance with federal and state securities laws applicable to such disposition. Such Purchaser acknowledges that it (i) has such knowledge and experience in financial and business matters such that such Purchaser is capable of evaluating the merits and risks of its investment in the Company, (ii) is able to bear the financial risks associated with an investment in the Securities, and (iii) has been given full access to such records of the Company and the Subsidiaries and to the officers of the Company and the Subsidiaries as it has deemed necessary or appropriate to conduct its due diligence investigation. -13- (d) Rule 144. Such Purchaser understands that the Securities must be held indefinitely unless such Securities are registered under the Securities Act or an exemption from registration is available. Such Purchaser acknowledges that it is familiar with Rule 144 of the rules and regulations of the Commission, as amended, promulgated pursuant to the Securities Act ("Rule 144"), and that such Purchaser has been advised that Rule 144 permits resales only under certain circumstances. Such Purchaser understands that to the extent that Rule 144 is not available, such Purchaser will be unable to sell any Securities without either registration under the Securities Act or the existence of another exemption from such registration requirement. (e) General. Such Purchaser understands that the Securities are being offered and sold in reliance on a transactional exemption from the registration requirements of federal and state securities laws and the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of such Purchaser set forth herein in order to determine the applicability of such exemptions and the suitability of such Purchaser to acquire the Securities. Such Purchaser understands that no United States federal or state agency or any government or governmental agency has passed upon or made any recommendation or endorsement of the Securities. (f) Opportunities for Additional Information. Such Purchaser acknowledges that such Purchaser has had the opportunity to ask questions of and receive answers from, or obtain additional information from, the executive officers of the Company concerning the financial and other affairs of the Company, and to the extent deemed necessary in light of such Purchaser's personal knowledge of the Company's affairs, such Purchaser has asked such questions and received answers to the full satisfaction of such Purchaser, and such Purchaser desires to invest in the Company. (g) No General Solicitation. Such Purchaser acknowledges that the Securities were not offered to such Purchaser by means of any form of general or public solicitation or general advertising, or publicly disseminated advertisements or sales literature, including (i) any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media, or broadcast over television or radio, or (ii) any seminar or meeting to which such Purchaser was invited by any of the foregoing means of communications. (h) Accredited Investor. Such Purchaser is an accredited investor (as defined in Rule 501 of Regulation D), and such Purchaser has such experience in business and financial matters that it is capable of evaluating the merits and risks of an investment in the Securities. Such Purchaser acknowledges that an investment in the Securities is speculative and involves a high degree of risk. ARTICLE III COVENANTS The Company covenants with each Purchaser as follows, which covenants are for the benefit of each Purchaser and their respective permitted assignees. -14- Section 3.1 Securities Compliance. The Company shall notify the Commission, in accordance with its rules and regulations, of the transactions contemplated by any of the Transaction Documents, and shall take all other necessary action and proceedings as may be required and permitted by applicable law, rule and regulation, for the legal and valid issuance of the Securities to the Purchasers, or their respective subsequent holders. Section 3.2 Registration and Listing. The Company will cause its Common Stock to continue to be registered under Section 12(b) or 12(g) of the Exchange Act, will comply in all respects with its reporting and filing obligations under the Exchange Act, will comply with all requirements related to any registration statement filed pursuant to this Agreement, and will not take any action or file any document (whether or not permitted by the Securities Act or the rules promulgated thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under the Exchange Act or Securities Act, except as permitted herein. The Company shall use its commercially reasonable best efforts to continue the quotation of its Common Stock on the NASDAQ Stock Market or any successor market. The Company will promptly file the "Listing Application" for, or in connection with, the issuance and delivery of the Shares and the Warrant Shares. Section 3.3 Inspection Rights. In the event the Registration Statement (as defined in the Registration Rights Agreement) is not effective or has been suspended at any time that such Registration Statement is required to be in effect, the Company shall, during normal business hours and upon reasonable request and reasonable notice, permit a Purchaser or any employees, agents or representatives thereof, so long as the Purchaser shall beneficially own the Shares, Warrant Shares or the Warrants which, in the aggregate, represent more than two percent (2%) of the total combined voting power of all voting securities then outstanding, to examine and make reasonable copies of and extracts from the records and books of account of, and visit and inspect the properties, assets, operations and business of the Company and any Subsidiary, and to discuss the affairs, finances and accounts of the Company and any Subsidiary with any of its officers, consultants, directors, and key employees. Section 3.4 Compliance with Laws. The Company shall comply, and cause each Subsidiary to comply, with all applicable laws, rules, regulations and orders, the noncompliance with which could have a Material Adverse Effect. Section 3.5 Keeping of Records and Books of Account. The Company shall keep and cause each Subsidiary to keep adequate records and books of account, in which complete entries will be made in accordance with GAAP consistently applied, reflecting all financial transactions of the Company and its Subsidiaries, and in which, for each fiscal year, all proper reserves for depreciation, depletion, obsolescence, amortization, taxes, bad debts and other purposes in connection with its business shall be made. Section 3.6 Reporting Requirements. The Company shall furnish two (2) copies of the following to each Purchaser in a timely manner so long as that Purchaser shall be obligated hereunder to purchase the Shares or shall beneficially own the Shares or Warrants, or shall own Warrant Shares which, in the aggregate, represent more than one percent (1%) of the total combined voting power of all voting securities then outstanding: -15- (a) Quarterly Reports filed with the Commission on Form 10-Q as soon as available, and in any event within forty-five (45) days after the end of each of the first three (3) fiscal quarters of the Company, but in no event prior to the time that such Reports are publicly filed with the Commission or otherwise made publicly available; (b) Annual Reports filed with the Commission on Form 10-K as soon as available, and in any event within ninety (90) days after the end of each fiscal year of the Company, but in no event prior to the time that such Reports are publicly filed with the Commission or otherwise made publicly available; and (c) Copies of all notices and information, including without limitation notices and proxy statements in connection with any meetings, that are provided to holders of shares of Common Stock, contemporaneously with the delivery of such notices or information to such holders of Common Stock. Section 3.7 Other Agreements. The Company shall not enter into any agreement in which the terms of such agreement would restrict or impair the right or ability of the Company or any Subsidiary to perform under any Transaction Document. Section 3.8 Reservation of Shares. So long as the Warrants remain outstanding, the Company shall take all action necessary to at all times have authorized, and reserved for the purpose of issuance, the maximum number of shares of Common Stock to effect the exercise of the Warrants. Section 3.9 Disclosure of Transactions and Other Material Information. On or before 8:30 a.m., New York City time, on the Business Day immediately following the Closing Date, the Company shall file a Current Report on Form 8-K (including all attachments, the "8-K Filing") with the Commission (i) describing the terms of the transactions contemplated by the Transaction Documents and including as exhibits to such Current Report on Form 8-K this Agreement, the Warrants and the Registration Rights Agreement, and the schedules hereto and thereto in the form required by the Exchange Act, and (ii) disclosing the Company's investment in Araios, Inc. As of the time of the filing of the 8-K Filing with the Commission, no Purchaser shall be in possession of any material, nonpublic information received from the Company, any of its Subsidiaries or any of their respective officers, directors, employees or agents, that is not disclosed in the 8-K Filing. The Company shall not, and shall cause each of its Subsidiaries and its and each of their respective officers, directors, employees and agents not to, provide any Purchaser with any material, nonpublic information regarding the Company or any of its Subsidiaries from and after the filing of the 8-K Filing with the Company without the express written consent of such Purchaser. Subject to the foregoing, neither the Company nor any Purchaser shall issue any press releases or any other public statements with respect to the transactions contemplated hereby; provided, however, that the Company shall be entitled, without the prior approval of any Purchaser, to make any press release or other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing and contemporaneously therewith, and (ii) as is required by applicable law and regulations, including the applicable rules and regulations of the NASDAQ National Market or NASDAQ Small Cap Market (provided that in the case of clause (i) above, each Purchaser shall be notified by the -16- Company (although the consent of such Purchaser shall not be required) in connection with any such press release or other public disclosure prior to its release). Section 3.10 Delivery of Share Certificates. At Closing or as soon thereafter as reasonably possible (but in any event no later than three Business Days immediately following the Closing Date), the Company shall deliver to each Purchaser certificates representing the Shares (in such denominations as each Purchaser may request) acquired by such Purchaser at the Closing. Section 3.11 No Trading in the Common Stock. From the date hereof until the Closing, no Purchaser shall purchase, sell, sell short (or enter into any other similar hedging transaction with respect to), or otherwise effect any transaction in any shares of the Company's Common Stock. ARTICLE IV CONDITIONS Section 4.1 Conditions Precedent to the Obligation of the Company to Close and to Sell the Shares and Warrants. The obligation hereunder of the Company to close and issue and sell the Shares and the Warrants to the Purchasers on the Closing Date is subject to the satisfaction or waiver, at or before the Closing, of the conditions set forth below. These conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion. (a) Accuracy of the Purchasers' Representations and Warranties. The representations and warranties of each Purchaser shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at that time, except for representations and warranties that are expressly made as of a particular date, which shall be true and correct in all material respects as of such date. (b) Performance by the Purchasers. Each Purchaser shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Purchasers at or prior to the Closing Date. (c) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement. (d) Delivery of Purchase Price. The Purchase Price for the Shares and Warrants shall have been delivered to the Company at the Closing. -17- (e) Delivery of Transaction Documents. The Transaction Documents to which the Purchasers are party shall have been duly executed and delivered by the Purchasers to the Company. Section 4.2 Conditions Precedent to the Obligation of the Purchasers to Close and to Purchase the Shares and Warrants. The obligation hereunder of the Purchasers to purchase the Shares and Warrants and consummate the transactions contemplated by this Agreement is subject to the satisfaction or waiver, at or before the Closing, of each of the conditions set forth below. These conditions are for the Purchasers' sole benefit and may be waived by the Purchasers at any time in their sole discretion. (a) Accuracy of the Company's Representations and Warranties. Each of the representations and warranties of the Company in this Agreement, the Warrants and the Registration Rights Agreement shall be true and correct in all material respects as of the Closing Date, except for representations and warranties that speak as of a particular date, which shall be true and correct in all material respects as of such date. (b) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date. (c) No Suspension, Etc. Trading in the Common Stock shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets ("Bloomberg") shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by Bloomberg, or quoted by NASDAQ, nor shall a banking moratorium have been declared either by the United States or California State authorities, nor shall there have occurred any national or international calamity or crisis of such magnitude in its effect on any financial market which, in each case, in the reasonable judgment of the Purchasers, makes it impracticable or inadvisable to purchase the Shares. (d) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement. (e) No Proceedings or Litigation. No action, suit or proceeding before any arbitrator or any governmental authority shall have been commenced, and no investigation by any governmental authority shall have been threatened, against the Company or any Subsidiary, or any of the officers, directors or affiliates of the Company or any Subsidiary, seeking to restrain, prevent or change the transactions contemplated by this Agreement, or seeking damages in connection with such transactions. -18- (f) Opinion of Counsel, Etc. The Purchasers shall have received an opinion of counsel to the Company, dated the Closing Date, in the form of Exhibit C hereto, and such other certificates and documents as the Purchasers or their counsel shall reasonably require incident to the Closing. (g) Warrants. The Company shall have delivered to the Purchasers the originally executed Warrants (in such denominations as each Purchaser may request) being acquired by the Purchasers at the Closing. (h) Resolutions. The Board of Directors of the Company shall have adopted resolutions consistent with Section 2.1(b) hereof in a form reasonably acceptable to the Purchasers (the "Resolutions"). (i) Reservation of Shares. As of the Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the issuance of the Shares and the exercise of the Warrants, a number of shares of Common Stock equal to the number of Warrant Shares issuable upon exercise of the Warrants. (j) Secretary's Certificate. The Company shall have delivered to the Purchasers a secretary's certificate, dated as of the Closing Date, as to (i) the Resolutions, (ii) the Certificate and the Bylaws, each as in effect at the Closing, and (iii) the authority and incumbency of the officers of the Company executing the Transaction Documents and any other documents required to be executed or delivered in connection therewith. (k) Officer's Certificate. On the Closing Date, the Company shall have delivered to the Purchasers a certificate of an executive officer of the Company, dated as of the Closing Date, confirming the accuracy of the Company's representations, warranties and covenants as of the Closing Date and confirming the compliance by the Company with the conditions precedent set forth in this Section 4.2 as of the Closing Date. (l) Fees and Expenses. As of the Closing Date, all fees and expenses required to be paid by the Company shall have been or authorized to be paid by the Company as of the Closing Date. (m) Registration Rights Agreement. As of the Closing Date, the parties shall have entered into the Registration Rights Agreement in the Form of Exhibit D attached hereto. (n) Material Adverse Effect. No Material Adverse Effect shall have occurred. (o) Araios, Inc. Share Purchase. The Company shall have entered into a binding agreement with Araios, Inc. to purchase shares of Araios, Inc. preferred stock with the net proceeds of this offering. -19- ARTICLE V CERTIFICATE LEGEND Section 5.1 Legend. Each certificate representing the Shares, the Warrants and the Warrant Shares shall be stamped or otherwise imprinted with a legend substantially in the following form (in addition to any legend required by applicable state securities or "blue sky" laws): THE SECURITIES REPRESENTED BY THIS CERTIFICATE (THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES LAWS OR CYTRX CORPORATION SHALL HAVE RECEIVED AN OPINION OF ITS COUNSEL THAT REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED. The Company agrees to reissue certificates representing any of the Securities, without the legend set forth above, if at such time, prior to making any transfer of any such Securities, such holder thereof shall give written notice to the Company describing the manner and terms of such transfer and removal as the Company may reasonably request. Such proposed transfer and removal of the legend will not be effected until: (a) the Company has notified such holder that either (i) in the opinion of Company counsel, the registration of the Shares, the Warrants or Warrant Shares under the Securities Act is not required in connection with such proposed transfer, or (ii) a registration statement under the Securities Act covering such proposed disposition has been filed by the Company with the Commission and has become effective under the Securities Act; and (b) the Company has notified such holder that either (i) in the opinion of Company counsel, the registration or qualification under the securities or "blue sky" laws of any state is not required in connection with such proposed disposition, or (ii) compliance with applicable state securities or "blue sky" laws has been effected. The Company will use its reasonable best efforts to respond to any such notice from a holder within three (3) Business Days. In the case of any proposed transfer under this Section 5.1, the Company will use reasonable efforts to comply with any such applicable state securities or "blue sky" laws, but shall in no event be required, in connection therewith, to qualify to do business in any state where it is not then qualified or to take any action that would subject it to tax or to the general service of process in any state where it is not then subject. The restrictions on transfer contained in this Section 5.1 shall be in addition to, and not by way of limitation of, any other restrictions on transfer contained in any other section of this Agreement. Notwithstanding the foregoing, the restrictions on transfer contained in this Section 5.1 shall not be deemed to limit or prohibit any Purchaser's right to pledge any of the Securities for margin purposes. -20- ARTICLE VI TERMINATION Section 6.1 Termination by Mutual Consent. This Agreement may be terminated at any time prior to the Closing Date by the mutual written consent of the Company and the Purchasers. Section 6.2 Effect of Termination. In the event of termination by the Company or the Purchasers, written notice thereof shall forthwith be given to the other party and the transactions contemplated by this Agreement shall be terminated without further action by any party. If this Agreement is terminated as provided in Section 6.1 herein, this Agreement shall become void and of no further force and effect, except for Sections 8.1 and 8.2, and Article VII herein. Nothing in this Section 6.2 shall be deemed to release the Company or any Purchaser from any liability for any breach under this Agreement, or to impair the rights of the Company or such Purchaser to compel specific performance by the other party of its obligations under this Agreement. ARTICLE VII INDEMNIFICATION Section 7.1 General Indemnity. The Company agrees to indemnify and hold harmless each Purchaser (and its respective directors, officers, employees, affiliates, agents, successors and assigns) from and against any and all losses, liabilities, deficiencies, costs, damages and expenses (including, without limitation, reasonable attorneys' fees, charges and disbursements) incurred by each Purchaser or any such person as a result of any inaccuracy in or breach of the representations, warranties or covenants made by the Company herein. The Purchasers severally but not jointly agree to indemnify and hold harmless the Company and its directors, officers, employees, affiliates, agents, successors and assigns from and against any and all losses, liabilities, deficiencies, costs, damages and expenses (including, without limitation, reasonable attorneys' fees, charges and disbursements) incurred by the Company as result of any inaccuracy in or breach of the representations, warranties or covenants made by the Purchasers herein. Section 7.2 Indemnification Procedure. Any party entitled to indemnification under this Article VII (an "indemnified party") will give written notice to the indemnifying party of any matters giving rise to a claim for indemnification; provided, that the failure of any party entitled to indemnification hereunder to give notice as provided herein shall not relieve the indemnifying party of its obligations under this Article VII except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. In case any action, proceeding or claim is brought against an indemnified party in respect of which indemnification is sought hereunder, the indemnifying party shall be entitled to participate in and, unless in the reasonable judgment of the indemnified party a conflict of interest between it and the indemnifying party may exist with respect to such action, proceeding or claim, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. In the event that -21- the indemnifying party advises an indemnified party that it will contest such a claim for indemnification hereunder, or fails, within thirty (30) days of receipt of any indemnification notice to notify, in writing, such person of its election to defend, settle or compromise, at its sole cost and expense, any action, proceeding or claim (or discontinues its defense at any time after it commences such defense), then the indemnified party may, at its option, defend, settle or otherwise compromise or pay such action or claim. In any event, unless and until the indemnifying party elects in writing to assume and does so assume the defense of any such claim, proceeding or action, the indemnified party's costs and expenses arising out of the defense, settlement or compromise of any such action, claim or proceeding shall be losses subject to indemnification hereunder. The indemnified party shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action or claim by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the indemnified party which relates to such action or claim. The indemnifying party shall keep the indemnified party fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. If the indemnifying party elects to defend any such action or claim, then the indemnified party shall be entitled to participate in such defense with counsel of its choice at its sole cost and expense. The indemnifying party shall not be liable for any settlement of any action, claim or proceeding effected without its prior written consent. Notwithstanding anything in this Article VII to the contrary, the indemnifying party shall not, without the indemnified party's prior written consent, settle or compromise any claim or consent to entry of any judgment in respect thereof which imposes any future obligation on the indemnified party or which does not include, as an unconditional term thereof, the giving by the claimant or the plaintiff to the indemnified party of a release from all liability in respect of such claim. The indemnification required by this Article VII shall be made by periodic payments of the amount thereof during the course of investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred, so long as the indemnified party irrevocably agrees to refund such moneys if it is ultimately determined by a court of competent jurisdiction that such party was not entitled to indemnification. The indemnity agreements contained herein shall be in addition to (a) any cause of action or similar rights of the indemnified party against the indemnifying party or others, and (b) any liabilities the indemnifying party may be subject to pursuant to the law. ARTICLE VIII MISCELLANEOUS Section 8.1 Fees and Expenses. Each party shall pay the fees and expenses of its advisors, counsel, accountants and other experts, if any, and all other expenses, incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement; provided, however, that the Company shall pay all fees and expenses (including attorneys' fees and expenses) incurred by the Purchasers in connection with the preparation, negotiation, execution, delivery and performance of this Agreement and the other Transaction Documents and the transactions contemplated thereunder up to an aggregate maximum of $15,000, regardless of whether or not the Closing occurs (unless the failure of the Closing to occur is a result of a breach by any Purchaser of this Agreement, in which event the Company shall not be required to pay any of such fees or expenses). In addition, the Company -22- shall pay all reasonable fees and expenses incurred by the Purchasers in connection with any amendments, modifications or waivers of this Agreement or any of the other Transaction Documents or incurred in connection with the enforcement of this Agreement and any of the other Transaction Documents, following a breach by the Company of this Agreement or any of the other Transaction Documents, including, without limitation, all reasonable attorneys' fees, disbursements and expenses. Section 8.2 Specific Enforcement; Consent to Jurisdiction. (a) The Company and the Purchasers acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement or the other Transaction Documents were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent or cure breaches of the provisions of this Agreement or the other Transaction Documents and to enforce specifically the terms and provisions hereof or thereof, this being in addition to any other remedy to which any of them may be entitled by law or equity. (b) The Company and each Purchaser (i) hereby irrevocably submit to the non-exclusive jurisdiction of the United States District Court sitting in the Central District of California and the courts of the State of California located in the City of Los Angeles, for the purposes of any suit, action or proceeding arising out of or relating to this Agreement or any of the other Transaction Documents or the transactions contemplated hereby or thereby, and (ii) hereby waive, and agree not to assert in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such court, that the suit, action or proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper. The Company and each Purchaser consent to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing in this Section 8.2 shall affect or limit any right to serve process in any other manner permitted by law. The Company and the Purchasers hereby agree that the prevailing party in any suit, action or proceeding arising out of or relating to the Shares, this Agreement, the Registration Rights Agreement or the Warrants, shall be entitled to reimbursement for reasonable legal fees from the non-prevailing party. Section 8.3 Entire Agreement; Amendment. This Agreement and the Transaction Documents contain the entire understanding and agreement of the parties with respect to the matters covered hereby and, except as specifically set forth herein or in the other Transaction Documents, neither the Company nor any Purchaser make any representation, warranty, covenant or undertaking with respect to such matters, and they supersede all prior understandings and agreements with respect to said subject matter, all of which are merged herein. No provision of this Agreement may be waived or amended other than by a written instrument signed by the Company and the holders of at least a majority in interest of the then-outstanding Shares, and no such amendment shall be effective to the extent that it applies to less than all of the holders of the Shares then outstanding. No consideration shall be offered or paid to any person to amend or consent to a waiver or modification of any provision of any of the -23- Transaction Documents unless the same consideration is also offered to all of the parties to the Transaction Documents or holders of Shares, as the case may be. Section 8.4 Notices. Any notice, demand, request, waiver or other communication required or permitted to be given hereunder shall be in writing and shall be effective (a) upon hand delivery by telecopy or facsimile at the address or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received), or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be: If to the Company: CytRx Corporation 11726 San Vicente Boulevard, Suite 650 Los Angeles, California 90049 Attention: Steven A. Kriegsman Telecopier: (310) 826-5529 Telephone: (310) 826-5648 with copies (which copies shall not constitute notice to the Company) to: Troy & Gould Professional Corporation 1801 Century Park East, 16th Floor Los Angeles, California 90067-2367 Attention: Sanford J. Hillsberg Telecopier: (310) 201-4746 Telephone: (310) 553-4441 If to any Purchaser: At the address of such Purchaser set forth on Exhibit A to this Agreement. Any party hereto may from time to time change its address for notices by giving at least ten (10) days written notice of such changed address to the other party hereto. Section 8.5 Waivers. No waiver by any party of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter. Section 8.6 Headings; Interpretation. The article, section and subsection headings in this Agreement are for convenience only and shall not constitute a part of this Agreement for any other purpose and shall not be deemed to limit or affect any of the provisions hereof. The interpretation of this Agreement shall not be affected by the party who drafted this Agreement, and all parties waive any statute, legal decision, or common law principle that would -24- require interpretation of any ambiguities in this Agreement against the party that drafted this Agreement. Section 8.7 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. After the Closing, the assignment by a party to this Agreement of any rights hereunder shall not affect the obligations of such party under this Agreement. After the Closing, the Purchasers may assign the Shares, the Warrants and their rights under this Agreement and the other Transaction Documents and any other rights hereto and thereto without the consent of the Company, except as otherwise required in this Agreement. Section 8.8 No Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other person (other than indemnified parties, as contemplated by Article VII). Section 8.9 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to the choice of law provisions. This Agreement shall not be interpreted or construed with any presumption against the party causing this Agreement to be drafted. Section 8.10 Survival. The representations and warranties of the Company and the Purchasers contained in Sections 2.1(o) and 2.1(s) shall survive indefinitely and those contained in Article II, with the exception of Sections 2.1(o) and 2.1(s), shall survive the execution and delivery hereof and the Closing until the date two (2) years from the Closing Date, and the agreements and covenants set forth in Articles I, III, V, VII and VIII of this Agreement shall survive the execution and delivery hereof and the Closing hereunder. Section 8.11 Counterparts. This Agreement 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. Section 8.12 Publicity. The Company agrees that it will not disclose, and will not include in any public announcement, the names of the Purchasers without the consent of the Purchasers in accordance with Section 8.3, which consent shall not be unreasonably withheld or delayed, or unless and until such disclosure is required by law, rule or applicable regulation, and then only to the extent of such requirement. Section 8.13 Severability. The provisions of this Agreement are severable and, in the event that any court of competent jurisdiction shall determine that any one or more of the provisions or part of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision or part of a provision of this Agreement and this Agreement shall be reformed and construed as if such invalid or illegal or unenforceable provision, or part of such provision, had never been contained herein, so that such provisions would be valid, legal and enforceable to the maximum extent possible. -25- Section 8.14 Further Assurances. From and after the date of this Agreement, upon the request of the Purchasers or the Company, the Company and each Purchaser shall execute and deliver such instruments, documents and other writings as may be reasonably necessary or desirable to confirm and carry out and to effectuate fully the intent and purposes of this Agreement, the Warrants and the Registration Rights Agreement. Section 8.15 Independent Nature of Purchasers' Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser confirms that it has independently participated in the negotiation of the transactions contemplated hereby with the advice of its own counsel and advisors. Each Purchaser shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement or out of any other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose. [Remainder of page intentionally left blank. Signature pages to follow.] -26- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the date first above written. CYTRX CORPORATION By:_____________________________________ Name: Steven A. Kriegsman Title: Chief Executive Officer [SIGNATURES OF PURCHASERS TO FOLLOW ON NEXT PAGES.] -27- "PURCHASERS" ------------------------------ (PRINTED NAME OF PURCHASER) By: ---------------------------------- Name: -------------------------------- Title: ------------------------------- Purchase Price: $_____________ ------------------------------ ------------------------------ ------------------------------ (Print address) Telephone: ___________________ Facsimile:____________________ E-mail:_______________________ -28- EXHIBIT A --------- LIST OF PURCHASERS NAMES AND ADDRESSES NUMBER OF SHARES NUMBER OF WARRANTS DOLLAR AMOUNT OF PURCHASERS PURCHASED PURCHASED OF PURCHASE PRICE - ------------- --------- --------- ----------------- A-1 EXHIBIT B --------- THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES ISSUABLE UPON THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED EXCEPT UPON DELIVERY TO THE CORPORATION OF AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO IT THAT SUCH TRANSFER WILL NOT VIOLATE THE SECURITIES ACT OF 1933, AS AMENDED THE TRANSFER OF THIS WARRANT IS RESTRICTED AS DESCRIBED HEREIN. CytRx Corporation Warrant for the Purchase of Shares of Common Stock, par value $0.001 per Share No. W-____ ______ Shares Issuance Date: September 16, 2003 THIS CERTIFIES that, for value received, _____________, whose address is _________________________ or its registered assigns (the "Holder"), is entitled to subscribe for and purchase from CytRx Corporation, a Delaware corporation (the "Company"), upon the terms and conditions set forth herein, ______ shares of the Company's Common Stock, par value $0.001 per share ("Common Stock"), at a price of $3.05 per share, subject to adjustment as provided herein (the "Exercise Price"). As used herein the term "this Warrant" shall mean and include this Warrant and any Common Stock or Warrants hereafter issued as a consequence of the exercise or transfer of this Warrant in whole or in part. The number of shares of Common Stock issuable upon exercise of the Warrants (the "Warrant Shares") and the Exercise Price may be adjusted from time to time as hereinafter set forth. The Warrant Shares are entitled to the benefits, and subject to the obligations, set forth in the Registration Rights Agreement among the Company, the Holder and certain other parties dated concurrently herewith. 1. Exercise Price and Exercise Period. This Warrant may be exercised at any time or from time to time during the period commencing on the Issuance Date and ending at 5:00 P.M. Pacific time on September 14, 2008 (the "Exercise Period"). 2. Procedure for Exercise; Effect of Exercise. (a) Cash Exercise. This Warrant may be exercised, in whole or in part, by the Holder during normal business hours on any business day during the Exercise Period by (i) the delivery to the Company of a duly executed Notice of Exercise (in the form attached to this Agreement) B-1 specifying the number of Warrant Shares to be purchased, (ii) delivery of payment to the Company of the Exercise Price for the number of Warrant Shares specified in the Notice of Exercise by cash, wire transfer of immediately available funds to a bank account specified by the Company, or by certified or bank cashier's check (the "Aggregate Exercise Price"), and (iii) the surrender to a common carrier for overnight delivery to the Company, or as soon as practicable following the date the holder of this Warrant delivers the Notice of Exercise to the Company, of this Warrant (or an indemnification undertaking with respect to this Warrant in the case of its loss, theft or destruction). (b) Cashless Exercise. This Warrant may also be exercised by the Holder through a cashless exercise, as described in this Section 2(b). This Warrant may be exercised, in whole or in part, by (i) the delivery to the Company of a duly executed Notice of Exercise specifying the number of Warrant Shares to be applied to such exercise, and (ii) the surrender to a common carrier for overnight delivery to the Company, or as soon as practicable following the date the holder of this Warrant delivers the Notice of Exercise to the Company, of this Warrant (or an indemnification undertaking with respect to this Warrant in the case of its loss, theft or destruction). The number of shares of Common Stock to be issued upon exercise of this Warrant pursuant to this Section 2(b) shall equal the value of this Warrant (or the portion thereof being canceled) computed as of the date of delivery of this Warrant to the Company using the following formula: X = Y(A-B) ------ A Where: X = the number of shares of Common Stock to be issued to Holder under this Section 2(b); Y = the number of Warrant Shares identified in the Notice of Exercise as being applied to the subject exercise; A = the Current Market Price on such date; and B = the Exercise Price on such date For purposes of this Section 2(b), Current Market Price shall have the definition provided in Section 6(g). The Company acknowledges and agrees that this Warrant was issued on the date set forth at the end of this Warrant. Consequently, the Company acknowledges and agrees that, if the Holder conducts a cashless exercise pursuant to this Section 2(b), the period during which the Holder held this Warrant may, for purposes of Rule 144 promulgated under the Securities Act of 1933, as amended (the "Securities Act"), as such rule is currently in effect, be "tacked" to the period during which the Holder holds the Warrant Shares received upon such cashless exercise. Notwithstanding the foregoing, the Holder may conduct a cashless exercise pursuant to B-2 this Section 2(b) only after the first anniversary of the Issuance Date, and then only in the event that a registration statement covering the resale of the Warrant Shares is not then effective at the time that the Holder wishes to conduct such cashless exercise. (c) Effect of Exercise. Upon receipt by the Company of a Notice of Exercise, together with proper payment of the Exercise Price, as provided in this Section 2, the Company agrees that such Warrant Shares shall be deemed to be issued to the Holder as the record holder of such Warrant Shares as of the close of business on the date on which the Notice of Exercise has been delivered and payment has been made for such Warrant Shares in accordance with this Agreement and the Holder shall be deemed to be the holder of record of the Warrant Shares, notwithstanding that the stock transfer books of the Company shall then be closed or that certificates representing such Warrant Shares shall not then be actually delivered to the Holder. On or before the fifth business day following the date on which the Company has received each of the Notice of Exercise, the Aggregate Exercise Price (or notice of a cashless exercise) and this Warrant (or an indemnification undertaking with respect to this Warrant in the case of its loss, theft or destruction) (the "Exercise Delivery Documents"), the Company shall (X) issue and deliver to the address as specified in the Notice of Exercise, a certificate, registered in the name of the holder of this Warrant or its designee, for the number of shares of Common Stock to which the holder of this Warrant is entitled pursuant to such exercise, or (Y) provided that the Company's transfer agent (the "Transfer Agent") is participating in The Depository Trust Company ("DTC") Fast Automated Securities Transfer Program, upon the request of the Holder, credit such aggregate number of shares of Common Stock to which the Holder of this Warrant is entitled pursuant to such exercise to the Holder's or its designee's balance account with DTC through its Deposit Withdrawal Agent Commission system. If this Warrant should be exercised in part only, the Company shall, upon surrender of this Warrant for cancellation, execute and deliver a new Warrant evidencing the right of the Holder to purchase the balance of the Warrant Shares subject to purchase hereunder within five (5) business days of receipt of the Warrant. 3. Registration of Warrants; Transfer of Warrants. Any Warrants issued upon the transfer or exercise in part of this Warrant shall be numbered and shall be registered in a Warrant Register as they are issued. The Company shall be entitled to treat the registered holder of any Warrant on the Warrant Register as the owner in fact thereof for all purposes and shall not be bound to recognize any equitable or other claim to or interest in such Warrant on the part of any other person, and shall not be liable for any registration or transfer of Warrants which are registered or to be registered in the name of a fiduciary or the nominee of a fiduciary unless made with the actual knowledge that a fiduciary or nominee is committing a breach of trust in requesting such registration or transfer, or with the knowledge of such facts that its participation therein amounts to bad faith. This Warrant shall be transferable only on the books of the Company upon delivery thereof duly endorsed by the Holder or by its duly authorized attorney or representative, or accompanied by proper evidence of succession, assignment, or authority to transfer. In all cases of transfer by an attorney, executor, administrator, guardian, or other legal representative, duly authenticated evidence of his or its authority shall be produced. Upon any registration of transfer, the Company shall deliver a new Warrant or Warrants to the person entitled thereto. This Warrant may be exchanged, at the option of the Holder thereof, for another B-3 Warrant, or other Warrants of different denominations, of like tenor and representing in the aggregate the right to purchase a like number of Warrant Shares, upon surrender to the Company or its duly authorized agent. 4. Restrictions on Transfer. (a) The Holder, as of the date of issuance hereof, represents to the Company that such Holder is acquiring the Warrants for its own account for investment purposes and not with a view to the distribution thereof or of the Warrant Shares. Notwithstanding any provisions contained in this Warrant to the contrary, this Warrant and the related Warrant Shares shall not be transferable except pursuant to the proviso contained in the following sentence or upon the conditions specified in this Section 4, which conditions are intended, among other things, to insure compliance with the provisions of the Securities Act and applicable state law in respect of the transfer of this Warrant or such Warrant Shares. The Holder by acceptance of this Warrant agrees that the Holder will not transfer this Warrant or the related Warrant Shares prior to delivery to the Company of an opinion of the Holder's counsel (as such opinion and such counsel are described in Section 4(b) hereof) or until registration of such Warrant Shares under the Securities Act has become effective or after a sale of such Warrant Shares has been consummated pursuant to Rule 144 or Rule 144A under the Securities Act; provided, however, that the Holder may freely transfer this Warrant or such Warrant Shares (without delivery to the Company of an opinion of Counsel) (i) to one of its nominees, affiliates or a nominee thereof, (ii) to a pension or profit-sharing fund established and maintained for its employees or for the employees of any affiliate, (iii) from a nominee to any of the aforementioned persons as beneficial owner of this Warrant or such Warrant Shares, or (iv) to a qualified institutional buyer, so long as such transfer is effected in compliance with Rule 144A under the Securities Act. (b) The Holder, by its acceptance hereof, agrees that prior to any transfer of this Warrant or of the related Warrant Shares (other than as permitted by Section 4(a) hereof or pursuant to a registration under the Securities Act), the Holder will give written notice to the Company of its intention to effect such transfer, together with an opinion of such counsel for the Holder as shall be reasonably acceptable to the Company, to the effect that the proposed transfer of this Warrant and/or such Warrant Shares may be effected without registration under the Securities Act. Upon delivery of such notice and opinion to the Company, the Holder shall be entitled to transfer this Warrant and/or such Warrant Shares in accordance with the intended method of disposition specified in the notice to the Company. (c) Each stock certificate representing Warrant Shares issued upon exercise or exchange of this Warrant shall bear the following legend unless the opinion of counsel referred to in Section 4(b) states such legend is not required: "THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED EXCEPT UPON DELIVERY TO THE CORPORATION OF AN OPINION OF COUNSEL SATISFACTORY IN FORM B-4 AND SUBSTANCE TO IT THAT SUCH TRANSFER WILL NOT VIOLATE THE SECURITIES ACT OF 1933, AS AMENDED." The Holder understands that the Company may place, and may instruct any transfer agent or depository for the Warrant Shares to place, a stop transfer notation in the securities records in respect of the Warrant Shares. 5. Reservation of Shares. The Company shall at all times during the Exercise Period reserve and keep available out of its authorized and unissued Common Stock, solely for the purpose of providing for the exercise of the rights to purchase all Warrant Shares granted pursuant to the Warrants, such number of shares of Common Stock as shall, from time to time, be sufficient therefor. The Company covenants that all shares of Common Stock issuable upon exercise of this Warrant, upon receipt by the Company of the full Exercise Price therefor, and all shares of Common Stock issuable upon conversion of this Warrant, shall be validly issued, fully paid, non-assessable, and free of preemptive rights. 6. Exercise Price Adjustments. The Exercise Price shall be subject to adjustment from time to time as follows: (a) (i) In the event that the Company shall (A) pay a dividend or make a distribution, in shares of Common Stock, on any class of capital stock of the Company or any subsidiary which is not directly or indirectly wholly owned by the Company, (B) split or subdivide its outstanding Common Stock into a greater number of shares, or (C) combine its outstanding Common Stock into a smaller number of shares, then in each such case the Exercise Price in effect immediately prior thereto shall be adjusted so that the Holder of a Warrant thereafter surrendered for Exercise shall be entitled to receive the number of shares of Common Stock that such Holder would have owned or have been entitled to receive after the occurrence of any of the events described above had such Warrant been exercised immediately prior to the occurrence of such event. An adjustment made pursuant to this Section 6(a)(i) shall become effective immediately after the close of business on the record date in the case of a dividend or distribution (except as provided in Section 6(e) below) and shall become effective immediately after the close of business on the effective date in the case of such subdivision, split or combination, as the case may be. Any shares of Common Stock issuable in payment of a dividend shall be deemed to have been issued immediately prior to the close of business on the record date for such dividend for purposes of calculating the number of outstanding shares of Common Stock under clauses (ii) and (iii) below. (ii) In the event that the Company shall commit to issue or distribute Common Stock or issue rights, warrants, options or convertible or exchangeable securities entitling the holder thereof to subscribe for or purchase, convert into or exchange for Common Stock, in any such case at a price per share less than the Current Market Price per share on the earliest of (i) the date the Company shall enter into a firm contract for such issuance or distribution, (ii) the record date for the determination of stockholders entitled to receive any such rights, warrants, options or convertible or exchangeable securities, if applicable, or (iii) the date of B-5 actual issuance or distribution of any such Common Stock or rights, warrants, options or convertible or exchangeable securities (provided that the issuance of Common Stock upon the exercise of rights, warrants, options or convertible or exchangeable securities will not cause an adjustment in the Exercise Price if no such adjustment would have been required at the time such right, warrant, option or convertible or exchangeable security was issued), then the Exercise Price in effect immediately prior to such earliest date shall be adjusted so that the Exercise Price shall equal the price determined by multiplying the Exercise Price in effect immediately prior to such earliest date by the fraction: (x) whose numerator shall be the number of shares of Common Stock outstanding on such date plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at such Current Market Price (such amount, with respect to any such rights, warrants, options or convertible or exchangeable securities, determined by multiplying the total number of shares subject thereto by the exercise price of such rights, warrants, options or convertible or exchangeable securities and dividing the product so obtained by the Current Market Price), and (y) whose denominator shall be the number of shares of Common Stock outstanding on such date plus the number of additional shares of Common Stock to be issued or distributed or receivable upon exercise of any such right, warrant, option or convertible or exchangeable security. Such adjustment shall be made successively whenever any such Common Stock, rights, warrants, options or convertible or exchangeable securities are issued or distributed. In determining whether any rights, warrants or options entitle the holders to subscribe for or purchase shares of Common Stock at less than such Current Market Price, and in determining the aggregate offering price of shares of Common Stock so issued or distributed, there shall be taken into account any consideration received by the Company for such Common Stock, rights, warrants, options, or convertible or exchangeable securities, the value of such consideration, if other than cash, to be determined by the Board of Directors, whose determination shall be conclusive and described in a certificate filed with the records of corporate proceedings of the Company. If any right, warrant, option or convertible or exchangeable security to purchase or acquire Common Stock, the issuance of which resulted in an adjustment in the Exercise Price pursuant to this subsection (ii) shall expire and shall not have been exercised, the Exercise Price shall immediately upon such expiration be recomputed to the Exercise Price which would have been in effect had the adjustment of the Exercise Price made upon the issuance of such right, warrant, option or convertible or exchangeable security been made on the basis of offering for subscription, purchase or issuance, as the case may be, only of that number of shares of Common Stock actually purchased or issued upon the actual exercise of such right, warrant, option or convertible or exchangeable securities. (iii) No adjustment in the Exercise Price shall be required unless the adjustment would require an increase or decrease of at least 1% in the Exercise Price then in B-6 effect; provided, however, that any adjustments that by reason of this Section 6(a) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 6(a) shall be made to the nearest cent or nearest 1/100th of a share. (iv) Notwithstanding anything to the contrary set forth in this Section 6(a), no adjustment shall be made to the Exercise Price upon (A) the issuance of shares of Common Stock pursuant to any compensation or incentive plan for officers, directors, employees or consultants of the Company which plan has been approved by the Compensation Committee of the Board of Directors (or, if there is no such committee then serving, by the majority vote of the Directors then serving each of which Director is not (x) an employee or officer of the Company, (y) a 5% or greater stockholder of the Company, or (y) an officer, employee, affiliate or associate of any such 5% or greater stockholder) (unless the exercise price thereof is changed after the date hereof other than solely by operation of the anti-dilution provisions thereof or by the Compensation Committee of the Board of Directors or, if applicable, the Board of Directors and, if required by law, the stockholders of the Company), or (B) the issuance of Common Stock upon the conversion or exercise of the options, warrants or rights of the Company outstanding on September 15, 2003, unless the conversion or exercise price thereof is changed after September 15, 2003 (other than solely by operation of the anti-dilution provisions thereof). (v) The Company from time to time may reduce the Exercise Price by any amount for any period of time in the discretion of the Board of Directors; provided, however, that if the Company so reduces the Exercise Price, then it shall similarly reduce the exercise price of all other warrants sold and issued to other holders pursuant to that certain Securities Purchase Agreement dated as of September 15, 2003, by and among the Company, the Holder and certain other holders. A voluntary reduction of the Exercise Price does not change or adjust the Exercise Price otherwise in effect for purposes of this Section 6(a). (vi) In the event that, at any time as a result of an adjustment made pursuant to Sections 6(a)(i) through 6(a)(iii) above, the Holder of any Warrant thereafter surrendered for exercise shall become entitled to receive any shares of the Company other than shares of the Common Stock, thereafter the number of such other shares so receivable upon exercise of any such Warrant shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in Sections 6(a)(i) through 6(a)(v) above, and the other provisions of this Section 6(a) with respect to the Common Stock shall apply on like terms to any such other shares. (b) In case of any reclassification of the Common Stock (other than in a transaction to which Section 6(a)(i) applies), any consolidation of the Company with, or merger of the Company into, any other entity, any merger of another entity into the Company (other than a merger that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the Company), any sale or transfer of all or substantially all of the assets of the Company or any compulsory share exchange, pursuant to which share exchange the Common Stock is converted into other securities, cash or other B-7 property, then lawful provision shall be made as part of the terms of such transaction whereby the Holder of a Warrant then outstanding shall have the right thereafter, during the period such Warrant shall be exercisable, to exercise such Warrant only for the kind and amount of securities, cash and other property receivable upon the reclassification, consolidation, merger, sale, transfer or share exchange by a holder of the number of shares of Common Stock of the Company into which a Warrant might have been able to exercise for immediately prior to the reclassification, consolidation, merger, sale, transfer or share exchange assuming that such holder of Common Stock failed to exercise rights of election, if any, as to the kind or amount of securities, cash or other property receivable upon consummation of such transaction subject to adjustment as provided in Section 6(a) above following the date of consummation of such transaction. The Company shall not effect any such reclassification, consolidation, merger, sale, transfer, share exchange or other disposition unless prior to or simultaneously with the consummation thereof the successor corporation (if other than the Company) resulting from such consolidation or merger, or the corporation purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall assume, by written instrument executed and delivered to the Holder, the obligation to deliver to the Holder upon its exercise of the Warrant such shares of stock, securities or assets as, in accordance with the foregoing provisions, the Holder may be entitled to purchase and the other obligations under this Warrant. Notwithstanding the foregoing, in the case of any sale or transfer of all or substantially all of the assets of the Company or merger or consideration of the Company in which the shareholders of the Company receive cash or other property for each of their shares of Common Stock in excess of the then Exercise Price, this Warrant will terminate if not exercised by the Holder no later than the closing of such sale, merger or consolidation. The provisions of this Section 6(b) shall similarly apply to successive reclassifications, consolidations, mergers, sales, transfers or share exchanges. (c) If: (i) the Company shall take any action which would require an adjustment in the Exercise Price pursuant to Section 6(a); or (ii) the Company shall authorize the granting to the holders of its Common Stock generally of rights, warrants or options to subscribe for or purchase any shares of any class or any other rights, warrants or options; or (iii) there shall be any reclassification or change of the Common Stock (other than a subdivision or combination of its outstanding Common Stock or a change in par value) or any consolidation, merger or statutory share exchange to which the Company is a party and for which approval of any stockholders of the Company is required, or the sale or transfer of all or substantially all of the assets of the Company; or B-8 (iv) there shall be a voluntary or involuntary dissolution, liquidation or winding up of the Company; then, in each such case, the Company shall cause to be filed with the transfer agent for the Warrants and shall cause to be mailed to each Holder at such Holder's address as shown on the books of the transfer agent for the Warrants, as promptly as possible, but at least 30 days prior to the applicable date hereinafter specified, a notice stating (A) the date on which a record is to be taken for the purpose of such dividend, distribution or granting of rights, warrants or options, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution or rights, warrants or options are to be determined, or (B) the date on which such reclassification, change, consolidation, merger, statutory share exchange, sale, transfer, dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reclassification, change, consolidation, merger, statutory share exchange, sale, transfer, dissolution, liquidation or winding up. Failure to give such notice or any defect therein shall not affect the legality or validity of the proceedings described in this Section 6(c). (d) Whenever the Exercise Price is adjusted as herein provided, the Company shall promptly file with the transfer agent for the Warrants a certificate of an officer of the Company setting forth the Exercise Price after the adjustment and setting forth a brief statement of the facts requiring such adjustment and a computation thereof. The Company shall promptly cause a notice of the adjusted Exercise Price to be mailed to each Holder. (e) In any case in which Section 6(a) provides that an adjustment shall become effective immediately after a record date for an event and the date fixed for such adjustment pursuant to Section 6(a) occurs after such record date but before the occurrence of such event, the Company may defer until the actual occurrence of such event (i) issuing to the Holder of any Warrants exercised after such record date and before the occurrence of such event the additional shares of Common Stock issuable upon such conversion by reason of the adjustment required by such event over and above the Common Stock issuable upon such exercise before giving effect to such adjustment, and (ii) paying to such holder any amount in cash in lieu of any fraction pursuant to Section 6(i). (f) In case the Company shall take any action affecting the Common Stock, other than actions described in this Section 6, which in the opinion of the Board of Directors would materially adversely affect the exercise right of the Holders, the Exercise Price may be adjusted, to the extent permitted by law, in such manner, if any, and at such time, as the Board of Directors may determine to be equitable in the circumstances; provided, however, that in no event shall the Board of Directors be required to take any such action. (g) For the purpose of any computation under Section 2(b) or this Section 6, the "Current Market Price" per share of Common Stock on any day shall mean: (i) if the principal trading market for such securities is a national or regional securities exchange, B-9 the closing price on such exchange on such day; or (ii) if sales prices for shares of Common Stock are reported by the NASDAQ National Market System or NASDAQ Small Cap Market (or a similar system then in use), the last reported sales price (regular way) so reported on such day; or (iii) if neither (i) nor (ii) above are applicable, and if bid and ask prices for shares of Common Stock are reported in the over-the-counter market by NASDAQ (or, if not so reported, by the National Quotation Bureau), the average of the high bid and low ask prices so reported on such day. Notwithstanding the foregoing, if there is no reported closing price, last reported sales price, or bid and ask prices, as the case may be, for the day in question, then the Current Market Price shall be determined as of the latest date prior to such day for which such closing price, last reported sales price, or bid and ask prices, as the case may be, are available, unless such securities have not been traded on an exchange or in the over-the-counter market for 30 or more days immediately prior to the day in question, in which case the Current Market Price shall be determined in good faith by, and reflected in a formal resolution of, the Board of Directors of the Company. (h) Upon each adjustment of the Exercise Price, this Warrant shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of shares (calculated to the nearest thousandth) obtained by dividing (i) the product obtained by multiplying the number of shares purchasable upon exercise of this Warrant prior to adjustment of the number of shares by the Exercise Price in effect prior to adjustment of the Exercise Price, by (ii) the Exercise Price in effect after such adjustment of the Exercise Price. (i) The Company shall not be required to issue fractions of shares of Common Stock or other capital stock of the Company upon the exercise of this Warrant. If any fraction of a share would be issuable on the exercise of this Warrant (or specified portions thereof), the Company shall purchase such fraction for an amount in cash equal to the same fraction of the Current Market Price of such share of Common Stock on the date of exercise of this Warrant. 7. Beneficial Ownership. The Company shall not effect the exercise of this Warrant, and no Person (as defined below) who is a holder of this Warrant shall have the right to exercise this Warrant, to the extent that after giving effect to such exercise, such Person (together with such Person's affiliates) would beneficially own in excess of 9.99% of the shares of the Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such Person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised portion of this Warrant beneficially owned by such Person and its affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Person and its affiliates (including, without limitation, any debentures, convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in B-10 accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company's most recent Form 10-Q, Form 10-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or its Transfer Agent setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written or oral request of the holder of this Warrant, the Company shall within two Business Days confirm orally and in writing to the holder of this Warrant the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company by the holder of this Warrant and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. In effecting the exercise of this Warrant, the Company shall be entitled to rely on a representation by the holder of this Warrant as to the number of shares that it beneficially owns for purposes of the above 9.99% limitation calculation. 8. Transfer Taxes. The issuance of any shares or other securities upon the exercise of this Warrant, and the delivery of certificates or other instruments representing such shares or other securities, shall be made without charge to the Holder for any tax or other charge in respect of such issuance. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of any certificate in a name other than that of the Holder and the Company shall not be required to issue or deliver any such certificate unless and until the person or persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. 9. Loss or Mutilation of Warrant. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of any Warrant (and upon surrender of any Warrant if mutilated), and upon reimbursement of the Company's reasonable incidental expenses, the Company shall execute and deliver to the Holder thereof a new Warrant of like date, tenor, and denomination. 10. No Rights as a Stockholder. The Holder of any Warrant shall not have, solely on account of such status, any rights of a stockholder of the Company, either at law or in equity, or to any notice of meetings of stockholders or of any other proceedings of the Company, except as provided in this Warrant. 11. Governing Law. This Warrant shall be construed in accordance with the laws of the State of Delaware applicable to contracts made and performed within such State, without regard to principles of conflicts of law. Dated: September 16, 2003 CYTRX CORPORATION By: ----------------------------------------- Steven A. Kriegsman, Chief Executive Officer B-11 FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the attached Warrant.) FOR VALUE RECEIVED, hereby sells, assigns, and transfers unto __________________ a Warrant to purchase __________ shares of Common Stock, par value $0.001 per share, of CytRx Corporation (the "Company"), together with all right, title, and interest therein, and does hereby irrevocably constitute and appoint attorney to transfer such Warrant on the books of the Company, with full power of substitution. Dated: ----------------------------- By: -------------------------------- Signature The signature on the foregoing Assignment must correspond to the name as written upon the face of this Warrant in every particular, without alteration or enlargement or any change whatsoever. B-12 To: CytRx Corporation 11726 San Vicente Blvd., Suite 650 Los Angeles, California 90049 Attention: Chief Executive Officer NOTICE OF EXERCISE The undersigned hereby exercises his or its rights to purchase _______ Warrant Shares covered by the within Warrant and tenders payment herewith in the amount of $_________ by [tendering cash or delivering a certified check or bank cashier's check, payable to the order of the Company] [surrendering ______ shares of Common Stock received upon exercise of the attached Warrant, which shares have a Current Market Price equal to such payment] in accordance with the terms thereof, and requests that certificates for such securities be issued in the name of, and delivered to: --------------------------------------- --------------------------------------- --------------------------------------- (Print Name, Address and Social Security or Tax Identification Number) and, if such number of Warrant Shares shall not be all the Warrant Shares covered by the within Warrant, that a new Warrant for the balance of the Warrant Shares covered by the within Warrant be registered in the name of, and delivered to, the undersigned at the address stated below. Dated: --------------------------------- By: ------------------------------------ Print Name --------------------------------------- Signature Address: - ------------------------------ - ------------------------------ - ------------------------------ B-13 EXHIBIT C --------- FORM OF OPINION 1. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has the requisite corporate power to own, lease and operate its properties and assets, and to carry on its business as presently conducted. 2. The Company has the requisite corporate power and authority to enter into and perform its obligations under the Transaction Documents and to issue the Shares, the Warrants and the Warrant Shares. The execution, delivery and performance of each of the Transaction Documents by the Company and the consummation by it of the transactions contemplated thereby have been duly and validly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Directors is required. Each of the Transaction Documents have been duly executed and delivered, and the Shares and the Warrants have been duly executed, issued and delivered by the Company and each of the Transaction Documents constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its respective terms. Neither the Shares nor the Warrant Shares are subject to any preemptive rights under the Certificate of Incorporation or the Bylaws. 3. The Shares have been duly authorized and, when delivered against payment in full as provided in the Agreement, will be validly issued, fully paid and nonassessable. The Warrant Shares, have been duly authorized and reserved for issuance, and, when delivered upon exercise or against payment in full as provided in the Warrants, will be validly issued, fully paid and nonassessable. 4. The execution, delivery and performance of and compliance with the terms of the Transaction Documents and the issuance of the Shares, the Warrants and the Warrant Shares do not (a) violate any provision of the Certificate of Incorporation or Bylaws, (b) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material Post-Acquisition Agreement to which the Company is a party and which is known to us, (c) create or impose a lien, charge or encumbrance on any property of the Company under any Post-Acquisition Agreement known to us to which the Company is a party or by which the Company is bound or by which any of its respective properties or assets are bound, or (d) result in a violation of any Federal, state, local or foreign statute, rule, regulation, order, judgment, injunction or decree applicable to the Company or by which any property or asset of the Company is bound or affected (provided, however, that our opinion is limited to those statutes, rules and regulations which, in our experience, are typically applicable to transactions of the type contemplated by the Agreement), except, in all cases other than violations pursuant to clauses (a) and (d) above, for such conflicts, default, terminations, amendments, acceleration, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect. "Post-Acquisition Agreement" refers to all agreements, mortgages, deeds of trust, indentures, notes, bonds, licenses, lease agreements, instruments or other obligations of the Company that the Company entered into after the July 19, 2002 acquisition of Global Genomics Capital, Inc. C-1 5. No consent, approval or authorization of or designation, declaration or filing with any governmental authority on the part of the Company is required under Federal, state or local law, rule or regulation in connection with the valid execution, delivery and performance of the Transaction Documents, or the offer, sale or issuance of the Shares, the Warrants or the Warrant Shares other than filings as may be required by applicable Federal and state securities laws and regulations and the NASD rules and regulations (provided, however, that our opinion is limited to those statutes, rules and regulations which, in our experience, are typically applicable to transactions of the type contemplated by the Agreement). 6. To our knowledge, there is no action, suit, claim, investigation or proceeding pending or threatened against the Company which questions the validity of the Agreement or the transactions contemplated thereby or any action taken or to be taken pursuant thereto. Except as set forth in the Agreement, to our knowledge, there is no action, suit, claim, investigation or proceeding pending, or to our knowledge, threatened, against or involving the Company or any of its properties or assets and which, if adversely determined, is reasonably likely to result in a Material Adverse Effect. 7. The offer, issuance and sale of the Shares and the Warrants, and the offer, issuance and sale of the Warrant Shares pursuant to the Warrants, are exempt from the registration requirements of Section 5 of the Securities Act of 1933, as amended. C-2 EXHIBIT D --------- FORM OF REGISTRATION RIGHTS AGREEMENT D-1 SCHEDULE OF EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES These Schedules are furnished by CytRx Corporation, a Delaware corporation (the "Company"), pursuant to the Securities Purchase Agreement dated as of September 15, 2003 (the "Purchase Agreement"), by and among the Company and the investors listed on Exhibit A attached thereto. Nothing in the Schedules constitutes an admission of any liability or obligation of the Company to any third party, nor an admission to any third party against the Company's interests. Unless otherwise stated, all statements made herein are made as of the date of execution of the Purchase Agreement. The Schedules are qualified in their entirety by reference to specific provisions of the Purchase Agreement. The representations and warranties made by the Company in the Purchase Agreement are qualified by, and subject to the exceptions noted in, the information set forth in these Schedules. The inclusion or disclosure of any item or information in the Schedules shall not be construed as an admission that such item or information is material to the Company, and any inclusion in the Schedules shall expressly not be deemed to constitute an admission, or otherwise imply, that any such item or information is material or creates measures for materiality for the purposes of the Purchase Agreement. Any matter described in any section or subsection of any Schedule shall be deemed set forth for all purposes in any other Schedule to the extent such matter is reasonably related to the Schedule in question. Headings have been inserted on the sections of the Schedules for convenience of reference only and shall to no extent have the effect of amending or changing the express description of the sections as set forth in the Purchase Agreement. Capitalized terms used herein but not otherwise defined shall have the meanings set forth in the Purchase Agreement. SCHEDULE 2.1(B) - --------------- None. SCHEDULE 2.1(C) - --------------- Preferred Shares ---------------- Shares Authorized 1,000 Shares Outstanding none Common Shares ------------- Shares Authorized 50,000,000 Shares Outstanding (excluding 28,608,776 treasury shares) Securities Convertible Into Common Shares ----------------------------------------- No. Shares ---------------------- Stock Option Plans 1,967,208 Stock Purchase Warrants 5,256,302 Total Convertible Securities 7,223,510 ---------------------- Securities Entitled to Registration Rights ------------------------------------------ As required by registration rights agreements previously entered into by the Company, there are two Registration Statements on Form S-3 currently in effect (SEC registration nos. 333-106629 and 333-100947). In addition to the securities covered by these two Form S-3 Registration Statements, the following securities are covered by registration rights: (i) Cappello and assignee warrants - aggregate of 1,413,880 shares (ii) See, "Commitments to Issue Additional Shares of Common Stock" for a description of registration rights ( the Company has agreed to grant to Dr. Michael P. Czech. (iii) The Company has agreed to register 357,500 shares of common stock owned by J.P. Turner & Company LLC, including 82,500 shares of common stock underlying stock purchase warrants issued to J.P. Turner & Company LLC (iv) As compensation for the services rendered to the Company by the placement agents engaged in the offer and sale of the Common Stock offered hereby, the Company has agreed to grant such placement agents warrants to purchase shares of Common Stock. The Company has agreed to register the shares of Common Stock issuable upon the exercise of the warrants to be granted to the placement agents of this offering. Commitments to Issue Additional Shares of Common Stock ------------------------------------------------------ The Company has reached an agreement in principle with Rip Grossman & Associates to issue that firm 100,000 shares of common stock as its fee in connection with the University of Massachusetts Medical School transaction. The Company has entered into an Agreement in Principle (the "Agreement in Principle") with Araios, Inc. ("Araios"), a Delaware corporation, and Michael P. Czech regarding the formation, capitalization and control of Araios. Under the terms of the Agreement in Principle, the Company will acquire a 95% equity interest in Araios, and Dr. Czech will own the remaining 5% interest. Commencing 18 months after the closing of the Company's investment in Araios, Dr. Czech will have the right to "put" his 5% equity interest in Araios to the Company in exchange for 650,000 shares of Common Stock. The Company has agreed that it will register the 650,000 shares that may be issued to Dr. Czech on the next Form S-3 filed by the Company following the issuance of those shares, provided that Dr. Czech shall have demand registration rights to cause those shares to be registered at the Company's expense if the shares are not registered within 180 days of issuance. Pursuant to the Agreement in Principle, the Company is required to (i) increase its stock option plans to set aside 900,000 shares of its outstanding Common Stock for equity incentive grants to Araios employees, which grants will be made by the Company's Compensation Committee in consultation with Araios, and (ii) grant options to purchase up to 20,000 shares of Common Stock to each of the three new members of Araois' advisory board. SCHEDULE 2.1(F) - --------------- None. SCHEDULE 2.1(G) - --------------- Subsidiaries % Ownership --------------- GGC Pharmaceuticals, Inc. 100% Proceutics, Inc. (inactive) 100% CytRx Animal Health, Inc. (inactive) 100% Custom Adjuvants, Inc. (inactive) 100% Minority Owned Entities (held by GGC Pharmaceuticals) ----------------------------------------------------- Blizzard Genomics, Inc. 40% Psynomics, Inc. 5% SCHEDULE 2.1(H) - --------------- None. SCHEDULE 2.1(I) - --------------- None. SCHEDULE 2.1(J) - --------------- None. SCHEDULE 2.1(K) - --------------- As described in Agreement in Principle, the Company agreed to invest $7,000,000 in Araios and has agreed to fund additional staffing and infrastructure expenditures. SCHEDULE 2.1(L) - --------------- None. SCHEDULE 2.1(M) - --------------- None. SCHEDULE 2.1(N) - --------------- None. SCHEDULE 2.1(O) - --------------- None. SCHEDULE 2.1(P) - --------------- Cappello Capital Corp., Dunwoody Brokerage Services, Inc., Gilford Securities Incorporated, Cardinal Securities, LLC, J.P. Turner & Co., Maxim Group LLC and are serving as placement agents and will receive cash fees and warrants in connection with this transaction. SCHEDULE 2.1(R) - --------------- Registered domain name - www.CytRx.com License Agreements Vical Incorporated Merck & Co., Inc. Carnegie Institution Ivy Animal Health University of Massachusetts Medical School (seven license agreements covering pending and provisional patent applications) Trademarks, Patents and Patent Applications See Exhibit A to Schedule 2.1(r). SCHEDULE 2.1(S) - --------------- None. SCHEDULE 2.1(U) - --------------- The Company will be required to file certain of the agreements that it enters into with Araios and/or Dr. Michael P. Czech in accordance with the Agreement in Principle. Amendment to Professional Services Agreement between the Company and the Kriegsman Group Employment Agreement between the Company and Kirk Peacock, Chief Financial Officer of the Company SCHEDULE 2.1(V) - --------------- As stated in the Agreement in Principle, (i) the Company will be required to appoint Dr. Czech to the Company's Scientific Advisory Board, (ii) Araios, as a subsidiary of the Company, will be required to enter into an employment agreement with Mark A. Tepper, Ph.D., and (iii) Araios will be required to appoint up to three other persons to the Scientific Advisory Board of Araios. SCHEDULE 2.1(X) - --------------- Notice of issuance of the Company's shares required to be delivered to Nasdaq prior to closing of transaction will be delivered after closing. SCHEDULE 2.1(Y) - --------------- None. SCHEDULE 2.1(Z) - --------------- Between July 1, 2003 and September 12, 2003, the Company has granted options to purchase up to 210,000 shares of Common Stock to Kirk Peacock, the Company's new Chief Financial Officer. In addition, on July 29, 2003, the Company agreed to grant options to purchase 350,000 shares of Common Stock to Louis Ignarro, Ph.D., a Director, the Chairman of the Scientific Advisory Board, and Chief Scientific Spokesman of the Company. No warrants have been granted by the Company since July 1, 2003. Between July 1, 2003 and September 12, 2003, the Company issued a total of 984,336 shares of common stock issued pursuant to the exercise of outstanding options and warrants. In addition, the Company has issued 100,000 shares of common stock as a finder's fee. In August 2003, the Company hired (i) Kirk Peacock as the Company's new Chief Financial Officer, (ii) Ed Umali as the Company's new Director of Operations, (iii) David Haen as the Company's new Director of Business Development; and (iv) Carolyn French as the Company's new Director of Communications. Exhibit A
K-S MATTER NO. CLIENT NO. COUNTRY TITLE - ------------------------------------------------------------------------------------------------------------------------------------ 216026 19720-0035 US Method of Stimulating the Immune System - ------------------------------------------------------------------------------------------------------------------------------------ 216034 19720-0043CA Canada Improved Fibrinolytic Composition - ------------------------------------------------------------------------------------------------------------------------------------ 216043 19720-0051IL Israel Improved Fibrinolytic Composition - ------------------------------------------------------------------------------------------------------------------------------------ 216044 19720-0052 US Improved Fibrinolytic Composition Combination with fibrinolytic - ------------------------------------------------------------------------------------------------------------------------------------ 216046 19720-0053 US Improved Fibrinolytic Composition - Treating Tumors - ------------------------------------------------------------------------------------------------------------------------------------ 216054 19720-0057 US An Improved Method for Treating Burns - ------------------------------------------------------------------------------------------------------------------------------------ 216055 19720-0058 US An Improved Method for Treating Sickle Cell Anemia - ------------------------------------------------------------------------------------------------------------------------------------ 216093 19720-0077 US Antiinfective Compounds and Method of Use - ------------------------------------------------------------------------------------------------------------------------------------ 216113 19720-0101 US Method of Treating Ischemic Tissue - ------------------------------------------------------------------------------------------------------------------------------------ 216119 19720-0110 US Improved Method for Treating Damaged Tissue - ------------------------------------------------------------------------------------------------------------------------------------ 216122 19720-0112 US Method of Treating Tissue Damaged by Reperfusion Injury - ------------------------------------------------------------------------------------------------------------------------------------ 216138 19720-0151 US Improved Method of Performing Angioplasty Procedures - ------------------------------------------------------------------------------------------------------------------------------------ 216144 19720-0162IE Ireland Injectable Pharmaceutical Composition for the Protection of Tissue Damaged by Ischemia - ------------------------------------------------------------------------------------------------------------------------------------ 216154 19720-0186 US Method of Delivering Drugs to Damaged or Diseased Tissue - ------------------------------------------------------------------------------------------------------------------------------------ 216225 19720-0222 US Polyoxypropylene/Polyoxyethelene Copolymers with Improved Biological Activity - ------------------------------------------------------------------------------------------------------------------------------------ 216226 19720-0223 US Polyoxypropylene/Polyoxyethelene Copolymers with Improved Biological Activity - ------------------------------------------------------------------------------------------------------------------------------------ 216231 19720-0224 US Improved Antiinfective Polyoxypropylene/Polyoxyethelene Copolymers and Methods of Use - ------------------------------------------------------------------------------------------------------------------------------------ 216232 19720-0225 US Polyoxypropylene/Polyoxyethelene Copolymers with Improved Biological Activity - ------------------------------------------------------------------------------------------------------------------------------------ 216233 19720-0226 US Polyoxypropylene/Polyoxyethylene Copolymers with Improved Biological Activity - ------------------------------------------------------------------------------------------------------------------------------------ 216234 19720-0227 US Polyoxypropylene/Polyoxyethylene Copolymers with Improved Biological Activity - ------------------------------------------------------------------------------------------------------------------------------------ 216235 19720-0228 US Polyoxypropylene/Polyoxyethylene Copolymers with Improved Biological Activity - ------------------------------------------------------------------------------------------------------------------------------------ 263913 19720-0229 US Polyoxypropylene/Polyoxyethylene Copolymers with Improved Biological Activity - ------------------------------------------------------------------------------------------------------------------------------------ 216263 19720-0430JP Japan Improved Fibrinolytic Composition - ------------------------------------------------------------------------------------------------------------------------------------ 216332 19720-0500AT Austria Methods and Compositions for Treatment of Pathological Hydrophobic Interactions in Biological Fluids - ------------------------------------------------------------------------------------------------------------------------------------ 216333 19720-0500AU Australia Australia--Methods and Compositions for Treatment of Pathological Hydrophobic Interactions in Biological Fluids - ------------------------------------------------------------------------------------------------------------------------------------ 216334 19720-0500BE Belgium Methods and Compositions for Treatment of Pathological Hydrophobic Interactions in Biological Fluids - ------------------------------------------------------------------------------------------------------------------------------------ 216335 19720-0500CA Canada Canada--Methods and Compositions for Treatment of Pathological Hydrophobic Interactions in Biological Fluids - ------------------------------------------------------------------------------------------------------------------------------------ 216336 19720-0500CH Switzerland Methods and Compositions for Treatment of Pathological Hydrophobic Interactions in Biological Fluids - ------------------------------------------------------------------------------------------------------------------------------------ 216337 19720-0500DE Germany Methods and Compositions for Treatment of Pathological Hydrophobic Interactions in Biological Fluids - ------------------------------------------------------------------------------------------------------------------------------------ 216339 19720-0500EP EPO EPO--Methods and Compositions for Treatment of Pathological Hydrophobic Interactions in Biological Fluids - ------------------------------------------------------------------------------------------------------------------------------------ 216340 19720-0500ES Spain Methods and Compositions for Treatment of Pathological Hydrophobic Interactions in Biological Fluids - ------------------------------------------------------------------------------------------------------------------------------------ 216342 19720-0500FR France Methods and Compositions for Treatment of Pathological Hydrophobic Interactions in Biological Fluids - ------------------------------------------------------------------------------------------------------------------------------------ 216343 19720-0500GB United Kingdom Methods and Compositions for Treatment of Pathological Hydrophobic Interactions in Biological Fluids - ------------------------------------------------------------------------------------------------------------------------------------ 216345 19720-0500IT Italy Methods and Compositions for Treatment of Pathological Hydrophobic Interactions in Biological Fluids - ------------------------------------------------------------------------------------------------------------------------------------ 216347 19720-0500LU Luxembourg Methods and Compositions for Treatment of Pathological Hydrophobic Interactions in Biological Fluids - ------------------------------------------------------------------------------------------------------------------------------------ 216348 19720-0500NL Netherlands Methods and Compositions for Treatment of Pathological Hydrophobic Interactions in Biological Fluids - ------------------------------------------------------------------------------------------------------------------------------------ 216350 19720-0500SE Sweden Methods and Compositions for Treatment of Pathological Hydrophobic Interactions in Biological Fluids - ------------------------------------------------------------------------------------------------------------------------------------ 216352 19720-0501 US Method of Treating Myocardial Damage - ------------------------------------------------------------------------------------------------------------------------------------ 216354 19720-0502 US Method of Treating Myocardial Damage - ------------------------------------------------------------------------------------------------------------------------------------ 216356 19720-0511 US Method of Treating Stroke - ------------------------------------------------------------------------------------------------------------------------------------ 216358 19720-0513 US Method of Treating Stroke - ------------------------------------------------------------------------------------------------------------------------------------ 216359 19720-0520 US Method of Treating Adult Respiratory Distress Syndrome - ------------------------------------------------------------------------------------------------------------------------------------ 216377 19720-0573 US Method of Treating Tumors - ------------------------------------------------------------------------------------------------------------------------------------ 216415 19720-0620AT Austria Therapeutic Delivery Compositions and Methods of Use Thereof 19720-0620BE Belgium Therapeutic Delivery Compositions and Methods of Use Thereof - ------------------------------------------------------------------------------------------------------------------------------------ 216414 19720-0620CA Canada Therapeutic Delivery Compositions and Methods of Use Thereof 19720-0620CH Switzerland Therapeutic Delivery Compositions and Methods of Use Thereof 19720-0620DE Germany Therapeutic Delivery Compositions and Methods of Use Thereof 19720-0620DK Denmark Therapeutic Delivery Compositions and Methods of Use Thereof - ------------------------------------------------------------------------------------------------------------------------------------ 216415 19720-0620EP EPO Therapeutic Delivery Compositions and Methods of Use Thereof 19720-0620ES Spain Therapeutic Delivery Compositions and Methods of Use Thereof 19720-0620FR France Therapeutic Delivery Compositions and Methods of Use Thereof 19720-0620GB United Kingdom Therapeutic Delivery Compositions and Methods of Use Thereof 19720-0620IE Ireland Therapeutic Delivery Compositions and Methods of Use Thereof 19720-0620IT Italy Therapeutic Delivery Compositions and Methods of Use Thereof - ------------------------------------------------------------------------------------------------------------------------------------ 216416 19720-0620JP Japan Therapeutic Delivery Compositions and Methods of Use Thereof - ------------------------------------------------------------------------------------------------------------------------------------ 216417 19720-0620KR South Korea Therapeutic Delivery Compositions and Methods of Use Thereof 19720-0620NL Netherlands Therapeutic Delivery Compositions and Methods of Use Thereof 19720-0620SE Sweden Therapeutic Delivery Compositions and Methods of Use Thereof - ------------------------------------------------------------------------------------------------------------------------------------ 216422 19720-0624 US Therapeutic Delivery Compositions and Methods of Use Thereof - ------------------------------------------------------------------------------------------------------------------------------------ 261843 19720-0625 US Therapeutic Delivery Compositions and Methods of Use Thereof - ------------------------------------------------------------------------------------------------------------------------------------ 262529 19720-0626 US Therapeutic Delivery Compositions and Methods of Use Thereof - ------------------------------------------------------------------------------------------------------------------------------------ 276833 19720-0627WP PCT Therapeutic Delivery Compositions and Methods of Use Thereof - ------------------------------------------------------------------------------------------------------------------------------------ 216433 19720-0650AT Austria Novel Vaccine Adjuvant and Vaccine - ------------------------------------------------------------------------------------------------------------------------------------ 216432 19720-0650CA Canada Novel Vaccine Adjuvant and Vaccine - ------------------------------------------------------------------------------------------------------------------------------------ 216433 19720-0650DE Germany Novel Vaccine Adjuvant and Vaccine - ------------------------------------------------------------------------------------------------------------------------------------ 216433 19720-0650EP EPO Novel Vaccine Adjuvant and Vaccine - ------------------------------------------------------------------------------------------------------------------------------------ 216433 19720-0650FR France Novel Vaccine Adjuvant and Vaccine 19720-0650IE Ireland Novel Vaccine Adjuvant and Vaccine - ------------------------------------------------------------------------------------------------------------------------------------ 216433 19720-0650IT Italy Novel Vaccine Adjuvant and Vaccine - ------------------------------------------------------------------------------------------------------------------------------------ 216434 19720-0650JP Japan Novel Vaccine Adjuvant and Vaccine 19720-0650SE Sweden Novel Vaccine Adjuvant and Vaccine - ------------------------------------------------------------------------------------------------------------------------------------ 269291 19720-0651EP EPO Novel Vaccine Adjuvant and Vaccine - ------------------------------------------------------------------------------------------------------------------------------------ 277996 19720-0651HK Hong Kong Method for Making Polyoxypropylene/Polyoxyethylene Block Copolymers - ------------------------------------------------------------------------------------------------------------------------------------ 216438 19720-0652 US Novel Vaccine Adjuvant and Vaccine - ------------------------------------------------------------------------------------------------------------------------------------ 216443 19720-0657 US Novel Vaccine Adjuvant and Vaccine - ------------------------------------------------------------------------------------------------------------------------------------ 216444 19720-0658 US Novel Vaccine Adjuvant and Vaccine - ------------------------------------------------------------------------------------------------------------------------------------ 271667 19720-0659 US Novel Vaccine Adjuvant and Vaccine - ------------------------------------------------------------------------------------------------------------------------------------ 245350 22031-0065AT Austria Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245351 22031-0065AU Australia Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245352 22031-0065BE Belgium Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245354 22031-0065CA Canada Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245355 22031-0065CH Switzerland Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245357 22031-0065DE Germany Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245358 22031-0065DK Denmark Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245359 22031-0065EP EPO Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245360 22031-0065ES Spain Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245361 22031-0065FR France Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245362 22031-0065GB Great Britain Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245363 22031-0065GR Greece Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245364 22031-0065IE Ireland Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245366 22031-0065IT Italy Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245367 22031-0065JP Japan Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245368 22031-0065KR South Korea Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245369 22031-0065LU Luxembourg Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245372 22031-0065NL Netherlands Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245373 22031-0065NZ New Zealand Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245375 22031-0065PT Portugal Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245376 22031-0065SE Sweden Improved Adjuvants and Vaccines - ------------------------------------------------------------------------------------------------------------------------------------ 245382 22031-0069 US Methods and Vaccines Comprising Surface-Active Copolymers - ------------------------------------------------------------------------------------------------------------------------------------ 245415 22031-0095 US Multiple Emulsions and Methods of Preparation - ------------------------------------------------------------------------------------------------------------------------------------ 245416 22031-0096 US Multiple Emulsions and Methods of Preparation (Oral Vaccines) - ------------------------------------------------------------------------------------------------------------------------------------ 245508 22170-0100CA Canada Biologically Active Copolymers - ------------------------------------------------------------------------------------------------------------------------------------ 245510 22170-0100CL Chile Biologically Active Copolymers - ------------------------------------------------------------------------------------------------------------------------------------ 245512 22170-0100DE Germany Use of Biologically Active Copolymers for the Manufacture of a Medicament for Stimulating the Growth of an Animal - ------------------------------------------------------------------------------------------------------------------------------------ 245515 22170-0100ES Spain Biologically Active Copolymers - ------------------------------------------------------------------------------------------------------------------------------------ 245517 22170-0100FR France Use of Biologically Active Copolymers for the Manufacture of a Medicament for Stimulating the Growth of an Animal - ------------------------------------------------------------------------------------------------------------------------------------ 245518 22170-0100GB United Kingdom Use of Biologically Active Copolymers for the Manufacture of a Medicament for Stimulating the Growth of an Animal - ------------------------------------------------------------------------------------------------------------------------------------ 245526 22170-0100MX Mexico Biologically Active Copolymers - ------------------------------------------------------------------------------------------------------------------------------------ 245527 22170-0100NL Netherlands Use of Biologically Active Copolymers for the Manufacture of a Medicament for Stimulating the Growth of an Animal - ------------------------------------------------------------------------------------------------------------------------------------ 245550 22170-0105 US Biologically-Active Copolymers - ------------------------------------------------------------------------------------------------------------------------------------ 245564 22170-0121 US Growth Promoting Compositions and Methods of Use - ------------------------------------------------------------------------------------------------------------------------------------
FILING DATE APPL. SERIAL NO. ISSUE DATE PATENT NO. - ------------------------------------------------------------------------------------------------------------------------------------ 6/12/1991 107,358 8/10/1993 5,234,683 - ------------------------------------------------------------------------------------------------------------------------------------ 5/13/1987 537,052 3/24/1992 1,297,792 - ------------------------------------------------------------------------------------------------------------------------------------ 5/14/1987 82519 8/26/1992 P/82519 - ------------------------------------------------------------------------------------------------------------------------------------ 5/7/1987 07/045,459 1/31/1989 4,801,452 - ------------------------------------------------------------------------------------------------------------------------------------ 12/21/1987 07/136,034 10/10/1989 4,873,083 - ------------------------------------------------------------------------------------------------------------------------------------ 12/29/1988 07/291,925 11/7/1989 4,879,109 - ------------------------------------------------------------------------------------------------------------------------------------ 1/13/1989 07/297,156 6/6/1989 4,837,014 - ------------------------------------------------------------------------------------------------------------------------------------ 6/1/1995 08/457,808 9/22/1998 5,811,088 - ------------------------------------------------------------------------------------------------------------------------------------ 5/11/1990 07/522,193 2/18/1992 5,089,260 - ------------------------------------------------------------------------------------------------------------------------------------ 6/1/1989 07/359,903 1/30/1990 4,897,263 - ------------------------------------------------------------------------------------------------------------------------------------ 5/4/1990 07/519,005 8/20/1991 5,041,288 - ------------------------------------------------------------------------------------------------------------------------------------ 5/3/1990 07/518,510 5/21/1991 5,017,370 - ------------------------------------------------------------------------------------------------------------------------------------ 7/23/1992 922401 - ------------------------------------------------------------------------------------------------------------------------------------ 5/4/1990 07/519,148 7/9/1991 5,030,448 - ------------------------------------------------------------------------------------------------------------------------------------ 7/2/1993 08/087,136 4/18/2000 Re. 36,665 - ------------------------------------------------------------------------------------------------------------------------------------ 8/9/1994 08/292,803 10/22/1996 5,567,859 - ------------------------------------------------------------------------------------------------------------------------------------ 6/6/1995 08/468,137 10/7/1997 5,674,911 - ------------------------------------------------------------------------------------------------------------------------------------ 6/2/1995 08/460,192 12/9/1997 5,696,298 - ------------------------------------------------------------------------------------------------------------------------------------ 6/3/1996 08/657,161 11/25/1997 5,691,387 - ------------------------------------------------------------------------------------------------------------------------------------ 7/8/1997 08/889,342 11/23/1999 5,990,241 - ------------------------------------------------------------------------------------------------------------------------------------ 8/5/1999 09/368,855 3/19/2002 6,359,014 - ------------------------------------------------------------------------------------------------------------------------------------ 12/14/2001 10/017,223 - ------------------------------------------------------------------------------------------------------------------------------------ 5/8/1987 62-503333 12/7/1994 1891157 - ------------------------------------------------------------------------------------------------------------------------------------ 8/22/1990 90 901 954.9 E 149 791 - ------------------------------------------------------------------------------------------------------------------------------------ 7/18/1990 48495/90 10/11/1993 637996 - ------------------------------------------------------------------------------------------------------------------------------------ 8/22/1990 90 901 954.9 0 409 940 - ------------------------------------------------------------------------------------------------------------------------------------ 12/29/1989 2,006,953 2,006,953 - ------------------------------------------------------------------------------------------------------------------------------------ 8/22/1990 90 901 954.9 0 409 940 - ------------------------------------------------------------------------------------------------------------------------------------ 8/22/1990 90 901 954.9 0 409 940 - ------------------------------------------------------------------------------------------------------------------------------------ 8/22/1990 90 901 954.9 3/12/1997 409940 - ------------------------------------------------------------------------------------------------------------------------------------ 8/22/1990 90 901 954.9 0 409 940 - ------------------------------------------------------------------------------------------------------------------------------------ 8/22/1990 90 901 954.9 0 409 940 - ------------------------------------------------------------------------------------------------------------------------------------ 8/22/1990 90 901 954.9 0 409 940 - ------------------------------------------------------------------------------------------------------------------------------------ 8/22/1990 90 901 954.9 0 409 940 - ------------------------------------------------------------------------------------------------------------------------------------ 8/22/1990 90 901 954.9 0 409 940 - ------------------------------------------------------------------------------------------------------------------------------------ 8/22/1990 90 901 954.9 0 409 940 - ------------------------------------------------------------------------------------------------------------------------------------ 8/22/1990 90 901 954.9 0 409 940 - ------------------------------------------------------------------------------------------------------------------------------------ 5/11/1990 07/522,168 7/2/1991 5,028,599 - ------------------------------------------------------------------------------------------------------------------------------------ 12/4/1991 07/802,331 3/30/1993 5,198,211 - ------------------------------------------------------------------------------------------------------------------------------------ 5/11/1990 07/522,297 9/10/1991 5,047,236 - ------------------------------------------------------------------------------------------------------------------------------------ 12/4/1992 07/985,746 8/31/1993 5,240,702 - ------------------------------------------------------------------------------------------------------------------------------------ 5/3/1990 07/518,348 3/5/1991 4,997,644 - ------------------------------------------------------------------------------------------------------------------------------------ 3/24/1995 08/409,549 7/15/1997 5,648,071 - ------------------------------------------------------------------------------------------------------------------------------------ 4/30/1996 94 931827.3 - ------------------------------------------------------------------------------------------------------------------------------------ 4/30/1996 94 931827.3 - ------------------------------------------------------------------------------------------------------------------------------------ 4/12/1996 2,174,122 - ------------------------------------------------------------------------------------------------------------------------------------ 4/30/1996 94 931827.3 - ------------------------------------------------------------------------------------------------------------------------------------ 4/30/1996 94 931827.3 - ------------------------------------------------------------------------------------------------------------------------------------ 4/30/1996 94 931827.3 - ------------------------------------------------------------------------------------------------------------------------------------ 4/30/1996 94 931827.3 - ------------------------------------------------------------------------------------------------------------------------------------ 4/30/1996 94 931827.3 - ------------------------------------------------------------------------------------------------------------------------------------ 4/30/1996 94 931827.3 - ------------------------------------------------------------------------------------------------------------------------------------ 4/30/1996 94 931827.3 - ------------------------------------------------------------------------------------------------------------------------------------ 4/30/1996 94 931827.3 - ------------------------------------------------------------------------------------------------------------------------------------ 4/30/1996 94 931827.3 - ------------------------------------------------------------------------------------------------------------------------------------ 4/15/1996 7-512031 - ------------------------------------------------------------------------------------------------------------------------------------ 4/15/1996 701930-1996 6/8/1999 218140 - ------------------------------------------------------------------------------------------------------------------------------------ 4/30/1996 94 931827.3 723440 - ------------------------------------------------------------------------------------------------------------------------------------ 4/30/1996 94 931827.3 - ------------------------------------------------------------------------------------------------------------------------------------ 12/9/1999 09/457,771 - ------------------------------------------------------------------------------------------------------------------------------------ 7/31/2001 09/919,504 - ------------------------------------------------------------------------------------------------------------------------------------ 8/14/2001 09/929,819 - ------------------------------------------------------------------------------------------------------------------------------------ 7/31/2002 PCT/US02/24425 - ------------------------------------------------------------------------------------------------------------------------------------ 8/9/1995 95 929336.6 5/29/2002 E218.066 - ------------------------------------------------------------------------------------------------------------------------------------ 8/9/1995 2,196,801 - ------------------------------------------------------------------------------------------------------------------------------------ 8/9/1995 95 929336.6 6/17/2002 774974 - ------------------------------------------------------------------------------------------------------------------------------------ 8/9/1995 95 929336.6 5/29/2002 774974 - ------------------------------------------------------------------------------------------------------------------------------------ 8/9/1995 95 929336.6 - ------------------------------------------------------------------------------------------------------------------------------------ 8/9/1995 95 929336.6 5/29/2002 774974 - ------------------------------------------------------------------------------------------------------------------------------------ 8/9/1995 95 929336.6 8/14/2002 28003BE/2002 - ------------------------------------------------------------------------------------------------------------------------------------ 8/9/1995 8-507368 - ------------------------------------------------------------------------------------------------------------------------------------ 8/9/1995 95 929336.6 5/29/2002 774 974 - ------------------------------------------------------------------------------------------------------------------------------------ 11/23/2001 1127904.9 - ------------------------------------------------------------------------------------------------------------------------------------ 11/23/2001 2106150.1 1044890A - ------------------------------------------------------------------------------------------------------------------------------------ 8/9/1995 08/513,162 7/11/2000 6,086,899 - ------------------------------------------------------------------------------------------------------------------------------------ 12/28/1998 09/221,339 11/21/2000 6,149,922 - ------------------------------------------------------------------------------------------------------------------------------------ 3/21/2000 09/532,345 7/9/2002 6,416,947 - ------------------------------------------------------------------------------------------------------------------------------------ 4/2/2002 10/115332 - ------------------------------------------------------------------------------------------------------------------------------------ 12/21/1992 91 913213.4 8/27/1997 E 157 259 - ------------------------------------------------------------------------------------------------------------------------------------ 6/27/1991 US91/04716 4/24/1995 655593 - ------------------------------------------------------------------------------------------------------------------------------------ 12/21/1992 91 913213.4 8/27/1997 536302 - ------------------------------------------------------------------------------------------------------------------------------------ 12/22/1992 US91/04716 6/12/2001 20,860,397 - ------------------------------------------------------------------------------------------------------------------------------------ 12/21/1992 91 913213.4 8/27/1997 536302 - ------------------------------------------------------------------------------------------------------------------------------------ 12/21/1992 91 913213.4 8/27/1997 536302 - ------------------------------------------------------------------------------------------------------------------------------------ 12/21/1992 91 913213.4 8/27/1997 536302 - ------------------------------------------------------------------------------------------------------------------------------------ 12/21/1992 US91/04716 8/27/1997 536302 - ------------------------------------------------------------------------------------------------------------------------------------ 12/21/1992 91 913213.4 8/27/1997 536302 - ------------------------------------------------------------------------------------------------------------------------------------ 12/21/1992 91 913213.4 8/27/1997 536302 - ------------------------------------------------------------------------------------------------------------------------------------ 12/21/1992 91 913213.4 8/27/1997 536302 - ------------------------------------------------------------------------------------------------------------------------------------ 12/21/1992 91 913213.4 8/27/1997 536302 - ------------------------------------------------------------------------------------------------------------------------------------ 6/27/1991 91 913213.4 2/27/2002 82178 - ------------------------------------------------------------------------------------------------------------------------------------ 12/21/1992 91 913213.4 8/27/1997 536302 - ------------------------------------------------------------------------------------------------------------------------------------ 12/28/1992 US91/04716 11/21/1996 2112600 - ------------------------------------------------------------------------------------------------------------------------------------ 12/26/1992 US91/04716 6/8/1999 218138 - ------------------------------------------------------------------------------------------------------------------------------------ 12/21/1992 91 913213.4 8/27/1997 536302 - ------------------------------------------------------------------------------------------------------------------------------------ 12/21/1992 91 913213.4 8/27/1997 536302 - ------------------------------------------------------------------------------------------------------------------------------------ 6/26/1991 07/544,831 6/26/1991 238731 - ------------------------------------------------------------------------------------------------------------------------------------ 6/27/1991 07/544,831 9/3/1998 98119 - ------------------------------------------------------------------------------------------------------------------------------------ 12/21/1992 91 913213.4 8/27/1997 536302 - ------------------------------------------------------------------------------------------------------------------------------------ 4/11/1995 08/420,333 9/10/1996 5,554,372 - ------------------------------------------------------------------------------------------------------------------------------------ 8/16/1994 08/291,286 4/22/1997 5,622,649 - ------------------------------------------------------------------------------------------------------------------------------------ 1/20/1995 08/376,088 3/23/1999 5,885,590 - ------------------------------------------------------------------------------------------------------------------------------------ 6/18/1986 745,917 2/5/1991 1,279,822 - ------------------------------------------------------------------------------------------------------------------------------------ 7/7/1986 465-86 9/22/1989 36564 - ------------------------------------------------------------------------------------------------------------------------------------ 2/16/1987 86 904 533.6 8/28/1991 0 228 448 - ------------------------------------------------------------------------------------------------------------------------------------ 7/7/1986 86 904 533.6 11/3/1987 556.216(3) - ------------------------------------------------------------------------------------------------------------------------------------ 2/16/1987 86 904 533.6 8/28/1991 0 228 448 - ------------------------------------------------------------------------------------------------------------------------------------ 2/16/1987 86 904 533.6 8/28/1991 0 228 448 - ------------------------------------------------------------------------------------------------------------------------------------ 7/14/1986 3119 10/3/1994 176179 - ------------------------------------------------------------------------------------------------------------------------------------ 2/16/1987 86 904 533.6 8/28/1991 0 228 448 - ------------------------------------------------------------------------------------------------------------------------------------ 10/9/1987 07/107,358 5/19/1992 5,114,708 - ------------------------------------------------------------------------------------------------------------------------------------ 8/20/1996 08/700,074 10/20/1998 5,824,322 - ------------------------------------------------------------------------------------------------------------------------------------
TRADEMARK CASE NO. APPLN. NO. REG. NO. STATUS FILING DATE REG. DATE COUNTRY OWNER TITERMAX 245427 557776 557776 Registered 14-Jun-1991 14-Jun-1991 Australia Cytrx Corporation TITERMAX 245437 765008 502465 Registered 11-Jun-1991 11-Jun-1991 Benelux Cytrx Corporation TITERMAX 245428 683649 396820 Registered 11-Jun-1991 03-Apr-1992 Canada Cytrx Corporation TITERMAX 245430 VA4157/91 VR27591992 Registered 13-Jun-1991 10-Apr-1992 Denmark Cytrx Corporation TITERMAX 245431 2745/91 120566 Registered 11-Jun-1991 20-Jul-1992 Finland Cytrx Corporation TITERMAX 245432 290827 1670592 Registered 11-Jun-1991 11-Jun-1991 France Cytrx Corporation TITERMAX 245434 2831/91 146885 Registered 11-Jun-1991 11-Jun-1991 Ireland Cytrx Corporation TITERMAX 245435 MI91C006616 626163 Registered 12-Sep-1991 12-Sep-1991 Italy Cytrx Corporation TITERMAX 245436 3-60821 2569276 Registered 13-Jun-1991 31-Aug-1993 Japan Cytrx Corporation TITERMAX 245438 91-05228 250845 Registered 13-Jun-1991 20-Aug-1993 Sweden Cytrx Corporation TITERMAX 245433 1467066 1467066 Registered 12-Jun-1991 12-Jun-1991 United Kingdom Cytrx Corporation TITERMAX 245426 74/081640 1695189 Registered 25-Jul-1990 16-Jun-1992 USA Cytrx Corporation TITERMAX 216489 C42176/5WZ 2011164 Registered 04-Jul-1991 13-Mar-92 Germany Cytrx Corporation
Class Goods 5 Pharmaceutical, veterinary and sanitary preparations and substances; vaccines; adjuvants; vaccine adjuvants; all included in class 5. 5 Pharmaceutical, veterinary and sanitary preparations; dietetic substances adapted for medical use, food for babies; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides, 5 Vaccine adjuvants. 5 Vaccine adjuvants. 5 Vaccine adjuvants. 5 Vaccine adjuvants. 5 Pharmaceutical and veterinary preparations and substances; vaccines and vaccine adjuvants. 5 Vaccine adjuvants. 1 Vaccine rejuvants. 5 Vaccines and vaccine adjuvants. 5 Pharmaceutical, veterinary and sanitary preparations and substances; vaccines; adjuvants; vaccine adjuvants; all included in Class 5. 5 Vaccine adjuvants. 5 Vaccine adjuvants.
EX-10.2 5 ex10_2.txt Exhibit 10.2 REGISTRATION RIGHTS AGREEMENT ----------------------------- This Registration Rights Agreement (this "Agreement") is made and entered into as of September 15, 2003, by and among CytRx Corporation, a Delaware corporation (the "Company"), and the persons and entities listed on Exhibit A hereto (each, a "Purchaser" and, collectively, the "Purchasers"). WHEREAS, upon the terms and subject to the conditions of the Securities Purchase Agreement, dated as of the date hereof (the "Purchase Agreement"), the Company has agreed to issue and sell shares of its Common Stock and Warrants to purchase shares of its Common Stock to the Purchasers; and WHEREAS, to induce the Purchasers to execute and deliver the Purchase Agreement and to purchase the Shares and the Warrants, the Company has agreed to provide certain registration rights under the Securities Act of 1933, as amended, with respect to the Shares, the Warrants and the Warrant Shares (each as respectively defined in the Purchase Agreement). NOW, THEREFORE, in consideration of the representations, warranties and agreements contained herein and other good and valuable consideration, the receipt and legal adequacy of which are hereby acknowledged by the parties, the Company and the Purchasers hereby agree as follows: 1. Definitions. Capitalized terms used but not otherwise defined herein shall have the meanings given such terms in the Purchase Agreement. As used in this Agreement, the following terms shall have the following meanings: "Affiliate" means, with respect to any Person, any other Person that directly or indirectly controls or is controlled by or under common control with such Person. For the purposes of this definition, "control," when used with respect to any Person, means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the terms "affiliated," "controlling" and "controlled" have meanings correlative to the foregoing. "Blackout Period" shall have the meaning set forth in Section 3(m). "Board" shall have the meaning set forth in Section 3(m). "Business Day" means any day except Saturday, Sunday and any day which is a legal holiday or a day on which banking institutions in the state of California generally are authorized or required by law or other government actions to close. "Commission" means the Securities and Exchange Commission. "Common Shares" shall have the meaning set forth in the definition of "Registrable Securities." "Common Stock" means the Company's Common Stock, $.001 par value. "Effectiveness Date" means with respect to the Registration Statement the earlier of (i) the 120th day following the Closing Date, before which the Company will use its commercially reasonable best efforts to cause the Registration Statement to become effective, and (ii) the date which is within five (5) Business Days after the date on which the Commission informs the Company in writing (a) that the Commission will not review the Registration Statement, or (b) that the Company may request the acceleration of the effectiveness of the Registration Statement. "Effectiveness Period" shall have the meaning set forth in Section 2. "Event" shall have the meaning set forth in Section 8(d). "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Holder" means, collectively, each holder from time to time of Registrable Securities including, without limitation, each Purchaser and its assignees. To the extent this Agreement refers to an election, consent, waiver, request or approval of or by the Holder, such reference shall mean an election, consent, waiver, request or approval by the holders of a majority in interest of the then-outstanding Registrable Securities (on an as exercised basis). "Indemnified Party" shall have the meaning set forth in Section 6(c). "Indemnifying Party" shall have the meaning set forth in Section 6(c). "Liquidated Damages" shall have the meaning set forth in Section 8(d). "Losses" shall have the meaning set forth in Section 6(a). "NASDAQ" shall mean the NASDAQ Stock Market. "Person" means an individual or a corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind. "Proceeding" means an action, claim, suit, investigation or proceeding (including, without limitation, an investigation or partial proceeding, such as a deposition), whether commenced or threatened. "Prospectus" means the prospectus included in the Registration Statement (including, without limitation, a prospectus that includes any information previously omitted -2- from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by the Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference in such Prospectus. "Registrable Securities" means (i) the shares of Common Stock issued or issuable pursuant to the Purchase Agreement, and upon any stock split, stock dividend, recapitalization or similar event with respect to such shares of Common Stock and any other securities issued in exchange of or replacement of such shares of Common Stock (collectively, the "Common Shares"); until in the case of any of the Common Shares (a) a Registration Statement covering such Common Share has been declared effective by the Commission and continues to be effective during the Effectiveness Period, or (b) such Common Share is sold in compliance with Rule 144 or may be sold pursuant to Rule 144(k), after which time such Common Share shall not be a Registrable Security; and (ii) the shares of Common Stock issued and issuable pursuant to the exercise of the Warrants, and upon any stock split, stock dividend, recapitalization or similar event with respect to such shares of Common Stock and any other securities issued in exchange of or replacement of such shares of Common Stock (collectively, the "Warrant Shares"); until in the case of any of the Warrant Shares (a) a Registration Statement covering such Warrant Share has been declared effective by the Commission and continues to be effective during the Effectiveness Period, or (b) such Warrant Share is sold in compliance with Rule 144 or may be sold pursuant to Rule 144(k), after which time such Warrant Share shall not be a Registrable Security. "Registration Statement" means the registration statement, including the Prospectus, amendments and supplements to such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference in such registration statement, for the Shares and the Warrant Shares required to be filed by the Company with the Commission pursuant to this Agreement. "Required Filing Date" means the thirtieth (30th) day immediately following the Closing Date. "Rule 144" means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule. "Rule 158" means Rule 158 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule. "Rule 415" means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule. -3- "Securities Act" means the Securities Act of 1933, as amended. "Special Counsel" means an attorney selected by and acting as special counsel to Holder. "Warrant Shares" shall have the meaning set forth in the definition of "Registrable Securities." 2. Registration. On or prior to the Required Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of the Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance with the Securities Act and the rules promulgated thereunder) and shall contain (except if otherwise directed by the Purchasers) the "Plan of Distribution" attached hereto as Exhibit B. The Company shall (i) use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act (including filing with the Commission a request for acceleration of effectiveness within five (5) Business Days of the date that the Company is notified in writing by the Commission that the Registration Statement will not be "reviewed," or not be subject to further review) as soon as possible after the filing thereof, but in any event prior to the Effectiveness Date, and (ii) keep such Registration Statement continuously effective under the Securities Act for a period of two years from the Effectiveness Date (the "Effectiveness Period"). 3. Registration Procedures; Company's Obligations. In connection with the registration of the Registrable Securities, the Company shall: (a) Prepare and file with the Commission on or prior to the Required Filing Date, a Registration Statement on Form S-3 (or if the Company is not then eligible to register for resale the Registrable Securities on Form S-3 such registration shall be on another appropriate form in accordance with the Securities Act and the Rules promulgated thereunder) in accordance with the method or methods of distribution thereof as specified by the Holder (except if otherwise directed by the Holder), and use its commercially reasonable best efforts to cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated therein by reference), the Company shall (i) furnish to the Holder and any Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the timely review of and comment by such Special Counsel, and (ii) at the request of the Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of such Special Counsel, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to -4- which the Holder or any Special Counsel shall reasonably object in writing within three (3) Business Days of their receipt thereof. (b) (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond promptly to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and promptly provide the Holder true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holder set forth in the Registration Statement as so amended or in such Prospectus as so supplemented. (c) Notify the Holder of Registrable Securities to be sold and any Special Counsel promptly (and, in the case of (i)(A) below, not less than three (3) Business Days prior to such filing and, in the case of (i)(C) below, no later than the first Business Day following the date on which the Registration Statement becomes effective) and (if requested by any such Person) confirm such notice in writing no later than three (3) Business Days following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed, (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement, and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (v) of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. -5- The Company shall promptly furnish to the Special Counsel, without charge, (i) any correspondence from the Commission or the Commission's staff to the Company or its representatives relating to any Registration Statement, and (ii) promptly after the same is prepared and filed with the Commission, a copy of any written response to the correspondence received from the Commission. (d) Use its commercially reasonable best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any U.S. jurisdiction, at the earliest practicable moment. (e) If requested by the Holder, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should be included therein, and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment. (f) Furnish to the Holder and any Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission. (g) Promptly deliver to the Holder and any Special Counsel, without charge, as many copies of the Registration Statement, Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by the selling Holder in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto. (h) Prior to any public offering of Registrable Securities, use its commercially reasonable best efforts to register or qualify or cooperate with the selling Holder and any Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as the Holder reasonably requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or subject the Company to any tax in any such jurisdiction where it is not then so subject. -6- (i) Cooperate with the Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement and to enable such Registrable Securities to be in such denominations and registered in such names as the Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. (j) Upon the occurrence of any event contemplated by Section 3(c)(v), promptly prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (k) Use its commercially reasonable best efforts to cause all Registrable Securities relating to such Registration Statement to be quoted by NASDAQ and any other securities exchange, quotation system, market or over-the-counter bulletin board, if any, on which the same securities issued by the Company are then listed as and when required pursuant to the Purchase Agreement. (l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than forty-five (45) days after the end of any twelve (12) month period (or ninety (90) days after the end of any twelve (12) month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158. (m) If (i) there is material non-public information regarding the Company which the Company's Board of Directors (the "Board") reasonably determines not to be in the Company's best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company's best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may suspend effectiveness of a Registration Statement and suspend the sale of Registrable Securities under a Registration Statement one (1) time every three (3) months or three (3) times in any twelve month period, provided that the Company may not suspend its obligation for more than sixty (60) days in the aggregate in any twelve month period (each, a "Blackout Period"); provided, however, that no such suspension shall be permitted for more than twenty (20) consecutive days, arising out of the same set of facts, circumstances or transactions, and that there shall be at least two business days between each Blackout Period. -7- (n) Within two (2) Business Days after the Registration Statement which includes the Registrable Securities is ordered effective by the Commission, the Company shall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities (with copies to the Holder whose Registrable Securities are included in such Registration Statement) confirmation that the Registration Statement has been declared effective by the Commission in the form attached hereto as Exhibit C. 4. Registration Procedures; Holder's Obligations In connection with the registration of the Registrable Securities, the Holder shall: (a) If the Registration Statement refers to the Holder by name or otherwise as the holder of any securities of the Company, have the right to require (if such reference to the Holder by name or otherwise is not required by the Securities Act or any similar federal statute then in force) the deletion of the reference to the Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. (b) (i) not sell any Registrable Securities under the Registration Statement until it has received copies of the Prospectus as then amended or supplemented as contemplated in Section 3(g) and notice from the Company that such Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(c), (ii) comply with the prospectus delivery requirements of the Securities Act as applicable to it in connection with sales of Registrable Securities pursuant to the Registration Statement, and (iii) furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of the Holder if it fails to furnish such information within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. (c) upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv), 3(c)(v) or 3(m), forthwith discontinue disposition of such Registrable Securities under the Registration Statement until the Holder's receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. 5. Registration Expenses All reasonable fees and expenses incident to the performance of or compliance with this Agreement by the Company shall be borne by the Company whether or not the Registration Statement is filed or becomes effective and whether or not any Registrable Securities are sold pursuant to the Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation, the following: (i) all registration and -8- filing fees (including, without limitation, fees and expenses (A) with respect to filings required to be made with NASDAQ and each securities exchange or other market on which Registrable Securities are required hereunder to be listed, (B) with respect to filings required to be made with the Commission, and (C) in compliance with state securities or Blue Sky laws); (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities and of printing prospectuses if the printing of prospectuses is requested by the holders of a majority of the Registrable Securities included in the Registration Statement); (iii) messenger, telephone and delivery expenses incurred by the Company; (iv) fees and disbursements of counsel for the Company; and (v) fees and expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by this Agreement, including, without limitation, the Company's independent public accountants (including the expenses of any comfort letters or costs associated with the delivery by independent public accountants of a comfort letter or comfort letters). In addition, the Company shall be responsible for all of its internal expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit, and the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange as required hereunder. The Company shall not be responsible for the payment of any commissions or other expenses incurred by the Holder in connection with their sales of Registrable Securities or for the fees of any Special Counsel. 6. Indemnification (a) Indemnification by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Purchaser, its permitted assignees, officers, directors, agents, brokers (including brokers who offer and sell Registrable Securities as principal as a result of a pledge or any failure to perform under a margin call of Common Stock), investment advisors and employees, each Person who controls any such Purchaser or permitted assignee (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, agents and employees of each such controlling Person, and the respective successors, assigns, estate and personal representatives of each of the foregoing, to the fullest extent permitted by applicable law, from and against any and all claims, losses, damages, liabilities, penalties, judgments, costs (including, without limitation, costs of investigation) and expenses (including, without limitation, reasonable attorneys' fees and expenses) (collectively, "Losses"), as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any Prospectus, as supplemented or amended, if applicable, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or form of prospectus or supplement thereto, in the light of the circumstances under which they were made) not misleading, except (i) to the extent, but only to the extent, that such untrue statements or omissions are based solely upon information regarding the Holder furnished in writing to the Company by the Holder expressly for use in the Registration Statement, such Prospectus or such form of Prospectus or in any amendment or supplement thereto, or (ii) as a result of the failure of the Holder to deliver a Prospectus, as amended or supplemented, to a purchaser in connection with an offer or sale (provided that copies of the Prospectus, as amended or supplemented, have been provided to the -9- Holder by the Company for delivery to such purchaser). The Company shall notify the Holder promptly of the institution, threat or assertion of any Proceeding of which the Company is aware in connection with the transactions contemplated by this Agreement. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of an Indemnified Party (as defined in Section 6(c) hereof) and shall survive the transfer of the Registrable Securities by the Holder. (b) Indemnification by Purchaser. Each Purchaser and its permitted assignees shall, severally and not jointly, indemnify and hold harmless the Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling Persons, and the respective successors, assigns, estate and personal representatives of each of the foregoing, to the fullest extent permitted by applicable law, from and against any and all Losses, as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any Prospectus, as supplemented or amended, if applicable, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or form of prospectus or supplement thereto, in the light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that (i) such untrue statement or omission is contained in or omitted from any information so furnished in writing by the Holder or the Special Counsel to the Company specifically for inclusion in the Registration Statement or such Prospectus, and (ii) such information was reasonably relied upon by the Company for use in the Registration Statement, such Prospectus or such form of prospectus or, to the extent that such information relates to the Holder or the Holder's proposed method of distribution of Registrable Securities, was reviewed and expressly approved in writing by the Holder expressly for use in the Registration Statement, such Prospectus or such form of Prospectus Supplement. Notwithstanding anything to the contrary contained herein, the Holder shall be liable under this Section 6(b) for only that amount as does not exceed the net proceeds to the Holder as a result of the sale of Registrable Securities pursuant to such Registration Statement. (c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or asserted against any Person entitled to indemnity pursuant to Section 6(a) or 6(b) hereunder (an "Indemnified Party"), such Indemnified Party promptly shall notify the Person from whom indemnity is sought (the "Indemnifying Party) in writing, and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have materially and adversely prejudiced the Indemnifying Party. An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (i) the Indemnifying Party -10- has agreed in writing to pay such fees and expenses; or (ii) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding; or (iii) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably withheld, conditioned or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, which consent shall not unreasonably be withheld, conditioned or delayed, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding. All reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within ten (10) Business Days of written notice thereof to the Indemnifying Party (regardless of whether it is ultimately determined that an Indemnified Party is not entitled to indemnification hereunder; provided, that the Indemnifying Party may require such Indemnified Party to undertake to reimburse all such fees and expenses to the extent it is finally judicially determined that such Indemnified Party is not entitled to indemnification hereunder or pursuant to applicable law). (d) Contribution. If a claim for indemnification under Section 6(a) or 6(b) is unavailable to an Indemnified Party because of a failure or refusal of a governmental authority to enforce such indemnification in accordance with its terms (by reason of public policy or otherwise), then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in Section 6(c), any reasonable attorneys' or other reasonable fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for under Section 6(a) or 6(b) was available to such -11- party in accordance with its terms. Notwithstanding anything to the contrary contained herein, the Holder shall be liable or required to contribute under this Section 6(d) for only that amount as does not exceed the net proceeds to the Holder as a result of the sale of Registrable Securities pursuant to the Registration Statement. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties. 7. Rule 144. As long as the Holder owns Registrable Securities, the Company covenants to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to Section 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holder with true and complete copies of all such filings. As long as the Holder owns Registrable Securities, if the Company is not required to file reports pursuant to Section 13(a) or 15(d) of the Exchange Act, it will prepare and furnish to the Holder and make publicly available in accordance with Rule 144(c) promulgated under the Securities Act annual and quarterly financial statements, together with a discussion and analysis of such financial statements in form and substance substantially similar to those that would otherwise be required to be included in reports required by Section 13(a) or 15(d) of the Exchange Act, as well as any other information required thereby, in the time period that such filings would have been required to have been made under the Exchange Act. The Company further covenants that it will take such further action as the Holder may reasonably request, all to the extent required from time to time to enable the Holder to sell the Common Shares and Warrant Shares without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act, including providing any legal opinions of counsel to the Company referred to in the Purchase Agreement. Upon the request of any Holder, the Company shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such requirements. 8. Miscellaneous. (a) Remedies. The remedies provided in this Agreement and the Purchase Agreement are cumulative and not exclusive of any remedies provided by law. In the event of a breach by the Company or by the Holder of any of their obligations under this Agreement, the Holder or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The Company and the Holder agree that monetary damages would not provide adequate compensation for any losses incurred by reason -12- of a breach by it of any of the provisions of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall waive the defense that a remedy at law would be adequate. (b) No Inconsistent Agreements. Neither the Company nor any of its Affiliates has as of the date hereof entered into, nor shall the Company or any of its Affiliates, on or after the date of this Agreement, enter into, any agreement with respect to its securities that is inconsistent with the rights granted to the Holder in this Agreement or otherwise conflicts with the provisions hereof. Without limiting the generality of the foregoing, without the written consent of the Holder, the Company shall not grant to any Person the right to request the Company to register any securities of the Company under the Securities Act if the rights so granted are inconsistent with the rights granted to the Holder set forth herein, or otherwise prevent the Company with complying with all of its obligations hereunder. (c) No Piggyback on Registrations. Neither the Company nor any of its security holders (other than the Holder in such capacity pursuant hereto) may include securities of the Company in the Registration Statement; provided, however, that securities held by other security holders the resale of which the Company is contractually obligated to register under the Securities Act as of the date of this Agreement may be included in the Registration Statement. (d) Failure to File Registration Statement and Other Events. The Company and the Holder agree that the Holder will suffer damages if the Registration Statement is not filed on or prior to the Required Filing Date or is not declared effective by the Commission on or prior to the Effectiveness Date and maintained in the manner contemplated herein during the Effectiveness Period or if certain other events occur. The Company and the Holder further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, if (i) the Registration Statement is not filed on or prior to the Required Filing Date, or is not declared effective by the Commission on or prior to the Effectiveness Date, or (ii) the Company fails to file with the Commission a request for acceleration within five (5) Business Days of the date that the Company is notified in writing by the Commission that a Registration Statement will not be "reviewed," or not subject to further review, or (iii) the Registration Statement is filed with and declared effective by the Commission but thereafter ceases to be effective or available as to all Registrable Securities at any time during the Effectiveness Period, without being succeeded within a reasonable period by a subsequent Registration Statement filed with and declared effective by the Commission (any such failure or breach being referred to as an "Event"), the Company shall pay as liquidated damages for such failure or breach and not as a penalty (the "Liquidated Damages") to the Holder an amount equal to two percent (2%) of the purchase price of the Common Stock paid by the Holder pursuant to the Purchase Agreement for each thirty (30) day period during which any Event described in subsections (i), (ii) or (iii) above occurs and is continuing, pro rated for any period less than thirty (30) days, following the Event until the applicable Event has been cured; provided, however, the Holder will waive any Liquidated Damages resulting from the Registration Statement ceasing to remain effective after being declared effective by the Commission if the Company cures such breach prior to the end of the first thirty (30) day period thereafter. Notwithstanding the foregoing, in no event shall the Company be required to pay aggregate Liquidated Damages (A) in excess of sixteen percent (16%) of the purchase price of the Common Stock paid by the Holder pursuant to the Purchase -13- Agreement for a failure to comply with subsections (i) or (ii) above, or (B) in excess of eight percent (8%) of the purchase price of the Common Stock paid by the Holder pursuant to the Purchase Agreement for a failure to comply with subsection (iii) above. Payments to be made pursuant to this Section 8(d) shall be due and payable immediately upon demand in cash. The parties agree that the Liquidated Damages represent a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that may be incurred by the Holder if the Registration Statement is not filed on or prior to the Required Filing Date or has not been declared effective by the Commission on or prior to the Effectiveness Date and maintained in the manner contemplated herein during the Effectiveness Period. (e) Consent to Jurisdiction. The Company and each Purchaser (i) hereby irrevocably submit to the non-exclusive jurisdiction of the United States District Court for the Central District of California and the courts of the State of California located in the City of Los Angeles, California, for the purposes of any suit, action or proceeding arising out of or relating to this Agreement or the Purchase Agreement, and (ii) hereby waive, and agree not to assert in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such court, that the suit, action or proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper. The Company and each Purchaser consent to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing in this Section 8(e) shall affect or limit any right to serve process in any other manner permitted by law. (f) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the same shall be in writing and signed by the Company and the Purchasers. (g) Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earlier of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile telephone number specified for notice prior to 5:00 p.m., Pacific Time, on a Business Day, (ii) the first Business Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile telephone number specified for notice later than 5:00 p.m., Pacific Time, on any date and earlier than 11:59 p.m., Pacific Time, on such date, (iii) the Business Day following the date of mailing, if sent by nationally recognized overnight courier service, or (iv) actual receipt by the party to whom such notice is required to be given. (x) if to the Company: -14- CytRx Corporation 11726 San Vicente Boulevard, Suite 650 Los Angeles, California 90049 Attention: Steven A. Kriegsman Telecopier: (310) 826-5529 Telephone: (310) 826-5648 with a copy to: Troy & Gould Professional Corporation 1801 Century Park East, 16th Floor Los Angeles, California 90067-2367 Attention: Sanford J. Hillsberg Telecopier: (310) 201-4746 Telephone: (310) 553-4441 (y) if to any Purchaser: At the address of such Purchaser set forth on Exhibit A to this Agreement. or to such other address or addresses or facsimile number or numbers as any such party may most recently have designated in writing to the other parties hereto by such notice. (h) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns and shall inure to the benefit of the Holder and its successors and assigns. The Company may not assign this Agreement or any of its respective rights or obligations hereunder without the prior written consent of the Purchasers. Each Purchaser may assign its rights hereunder in the manner and to the Persons as permitted under the Purchase Agreement. (i) Assignment of Registration Rights. The rights of the Holder hereunder, including the right to have the Company register for resale Registrable Securities in accordance with the terms of this Agreement, shall be assignable by each Holder to any transferee of the Holder of all or a portion of the shares of Registrable Securities if: (i) the Holder agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company within a reasonable time after such assignment; (ii) the Company is, within a reasonable time after such transfer or assignment, furnished with written notice of (A) the name and address of such transferee or assignee, and (B) the securities with respect to which such registration rights are being transferred or assigned; (iii) following such transfer or assignment the further disposition of such securities by the transferee or assignees is restricted under the Securities Act and applicable state securities laws; (iv) at or before the time the Company receives the written notice contemplated by clause (ii) of this Section, the transferee or assignee agrees in writing with the Company to be bound by all of the provisions of this Agreement; and (v) such transfer shall have been made in accordance with the applicable requirements of the Purchase Agreement and shall be for no less than 10% of the Registrable -15- Securities. In addition, the Holder shall have the right to assign its rights hereunder to any other Person with the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. The rights to assignment shall apply to the Holder (and to subsequent) successors and assigns. In the event of an assignment pursuant to this Section 8(i), the Purchaser shall pay all incremental costs and expenses incurred by the Company in connection with filing a Registration Statement (or an amendment to the Registration Statement) to register the shares of Registrable Securities assigned to any assignee or transferee of the Purchaser. (j) Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, and all of which taken together shall constitute one and the same Agreement. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid binding obligation of the party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such facsimile signature were the original thereof. (k) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of law thereof. This Agreement shall not be interpreted or construed with any presumption against the party causing this Agreement to be drafted. (l) Cumulative Remedies. The remedies provided herein are cumulative and not exclusive of any remedies provided by law. (m) Termination. This Agreement shall terminate on the date on which the Registrable Securities may be sold without restriction pursuant to Rule 144(k) of the Securities Act. (n) Severability. If any term, provision, covenant or restriction of this Agreement is held to be invalid, illegal, void or unenforceable in any respect, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable. (o) Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. [Remainder of page intentionally left blank. Signature pages to follow.] -16- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized persons as of the date first indicated above. CYTRX CORPORATION By: --------------------------------------------- Name: Steven A. Kriegsman Title: Chief Executive Officer [SIGNATURES OF PURCHASERS TO FOLLOW ON NEXT PAGES.] PURCHASERS: --------------------------------- By:_____________________________ EXHIBIT A --------- PURCHASERS A-1 EXHIBIT B PLAN OF DISTRIBUTION We are registering the shares of common stock on behalf of the selling stockholders. The common stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market prices, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected at various times in one or more of the following transactions, or in other kinds of transactions: o transactions on the NASDAQ Stock Market or on any national securities exchange or U.S. inter-dealer system of a registered national securities association on which the common stock and the warrants may be listed or quoted at the time of sale; o in the over-the-counter market; o in private transactions and transactions otherwise than on these exchanges or systems or in the over-the-counter market; o in connection with short sales of the shares; o by pledge to secure or in payment of debt and other obligations; o through the writing of options, whether the options are listed on an options exchange or otherwise; o in connection with the writing of non-traded and exchange-traded call options, in hedge transactions and in settlement of other transactions in standardized or over-the-counter options; or o through a combination of any of the above transactions. The selling stockholders and their successors, including their transferees, pledgees or donees or their successors, may sell the common stock directly to purchasers or through underwriters, broker-dealers or agents, who may receive compensation in the form of discounts, concessions or commissions from the selling stockholders or the purchasers. These discounts, concessions or commissions as to any particular underwriter, broker-dealer or agent may be in excess of those customary in the types of transactions involved. The selling stockholders also may engage in short sales against the box, puts and calls and other transactions in our securities or derivatives of our securities and may sell or deliver shares in connection with these trades. In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule 144 of the Securities Act may be sold under Rule 144 rather than pursuant to this prospectus. B-1 The selling stockholders may from time to time pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus and may sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders and any broker-dealers or agents that are involved in selling the shares of common stock may be deemed to be "underwriters" within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares of common stock purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. We entered into a registration rights agreement for the benefit of the selling stockholders to register the common stock under applicable federal and state securities laws. The registration rights agreement provides for cross-indemnification of the selling stockholders and us and our respective directors, officers and controlling persons against specific liabilities in connection with the offer and sale of the common stock, including liabilities under the Securities Act. We will pay substantially all of the expenses incurred by the selling stockholders incident to the registration of the common stock. The selling stockholders have advised us that they have not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of their shares of common stock, nor is there an underwriter or coordinating broker acting in connection with a proposed sale of shares of common stock by any selling stockholder. If we are notified by any selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of shares of common stock, if required, we will file a supplement to this prospectus. If the selling stockholders use this prospectus for any sale of the shares of common stock, they will be subject to the prospectus delivery requirements of the Securities Act. The anti-manipulation rules of Regulation M under the Securities Exchange Act may apply to sales of our common stock and activities of the selling stockholders. B-2 EXHIBIT C --------- FORM OF NOTICE OF EFFECTIVENESS OF REGISTRATION STATEMENT [Name and address of Transfer Agent] - ----------------- - ----------------- - ----------------- Attn: ____________ Re: CytRx Corporation Ladies and Gentlemen: We are counsel to CytRx Corporation, a Delaware corporation (the "COMPANY"), and have represented the Company in connection with that certain Securities Purchase Agreement (the "PURCHASE AGREEMENT"), dated as of September 15, 2003, by and among the Company and the purchasers (the "PURCHASERS" and the "HOLDERS") named therein pursuant to which the Company issued to the Purchasers shares (the "SHARES") of its Common Stock, $0.001 par value. Pursuant to the Purchase Agreement, the Company has also entered into a Registration Rights Agreement with the Purchasers (the "REGISTRATION RIGHTS AGREEMENT"), dated as of September 15, 2003, pursuant to which the Company agreed, among other things, to register the Registrable Securities (as defined in the Registration Rights Agreement), including the Shares, under the Securities Act of 1933, as amended (the "1933 ACT"). In connection with the Company's obligations under the Registration Rights Agreement, on _________ __, 2003, the Company filed a Registration Statement on Form S-3 (File No. 333-________) (the "REGISTRATION STATEMENT") with the Securities and Exchange Commission (the "SEC") relating to the resale of the Registrable Securities which names the Holders as selling stockholders thereunder. In connection with the foregoing, we advise you that a member of the SEC's staff has advised us by telephone that the SEC has entered an order declaring the Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge, after telephonic inquiry of a member of the SEC's staff, that any stop order suspending its effectiveness has been issued or that any proceedings for that purpose are pending before, or threatened by, the SEC and, accordingly, the Registrable Securities are available for resale under the 1933 Act in the manner specified in, and pursuant to the terms of, the Registration Statement. Very truly yours, By: cc: [PURCHASERS] C-1 EX-99.1 6 ex99_1.txt Exhibit 99.1 [LOGO]CytRx Corporation For Additional Information: CytRx Corporation Steven A. Kriegsman Carolyn French Chief Executive Officer Director of Communications 310/826-5648 310/826-5648 STEVENK@CYTRX.COM CFRENCH@CYTRX.COM CYTRX RAISES $8.7 MILLION IN PRIVATE PLACEMENT OF COMMON STOCK LOS ANGELES, CA - SEPTEMBER 17, 2003 - CytRx Corporation (NASDAQ:CYTR) announced today the completion of a private placement of 4,141,000 shares of its common stock to selected institutional investors, including current shareholders, with gross proceeds of approximately $8.7 million. In connection with the sale of the common stock, the company also issued warrants to purchase an additional 1,035,000 shares of common stock at an exercise price of $3.05 per share. CytRx has agreed to register all of the privately placed shares of common stock, together with the shares issuable upon exercise of the warrants, for resale. The company said that approximately $7 million of the offering proceeds will be used to fund Araios, Inc., a CytRx subsidiary that will develop orally active small molecule based drugs to prevent, treat and cure obesity and type II diabetes. Cappello Capital Corp. served as lead placement agent in the financing. "The completion of this financing allows CytRx to expand its RNAi program in obesity and type II diabetes through the formation of a new, fully staffed operating subsidiary engaged in the development of an orally active drug to treat these debilitating diseases," said Steven A. Kriegsman, the company's chief executive officer. "We are extremely pleased with our new group of institutional investors and the executive and scientific team that we have been able to attract. With this financing, we believe we are now the world leader in developing RNAi for obesity and type II diabetes." (more) ABOUT CYTRX CORPORATION CytRx Corporation is a biopharmaceutical company engaged in the development and commercialization of large-market opportunity products in a variety of therapeutic categories. The company recently formed a broad-based strategic alliance with the University of Massachusetts Medical School to develop novel compounds for obesity, type II diabetes and ALS, including using a promising new technology known as RNA interference (RNAi). CytRx recently licensed from UMMS the exclusive worldwide rights to a DNA-based HIV vaccine technology. CytRx is seeking strategic partners to complete the development of FLOCOR, a product for the treatment of sickle cell disease and which may have applications in cancer and disorders such as stroke and heart attack. The company has licensed its TranzFect delivery technology for DNA-based vaccines for certain diseases. A CytRx subsidiary also holds interests in two development stage genomics-based healthcare companies. For more information, visit CytRx's website at www.cytrx.com. CAUTIONARY NOTICE ABOUT FORWARD-LOOKING STATEMENTS This press release may contain forward-looking statements within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended, that involve risks and uncertainties that could cause actual events or results to differ materially from the events or results described in the forward-looking statements, including risks or uncertainties related to the potential need for additional capital for CytRx to make future milestone payments and to fund research for its various products, the need to satisfy closing conditions for the formation of CytRx's new obesity and type II diabetes subsidiary, the time and expense to develop CytRx's DNA-based HIV vaccine and commercial applications for its RNAi technology, and the uncertainty of potential results from the future clinical trials for these products. Additional uncertainties and risks are described in CytRx's most recently filed SEC documents, such as its most recent annual report on Form 10-K, all quarterly reports on Form 10-Q and any current reports on Form 8-K filed since the date of the last Form 10-K. All forward-looking statements are based upon information available to CytRx on the date the statements are first published. CytRx undertakes no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. # # # EX-99.2 7 ex99_2.txt Exhibit 99.2 [LOGO] CytRx(R) CORPORATION For Additional Information: CytRx Corporation Steven A. Kriegsman Carolyn French Chief Executive Officer Director of Communications 310/826-5648 310/826-5648 STEVENK@CYTRX.COM CFRENCH@CYTRX.COM CYTRX TEAMS WITH WORLD RENOWNED SCIENTISTS TO CREATE OBESITY AND TYPE II DIABETES PROGRAM --COMPANY TO FOCUS ON SMALL MOLECULE DRUGS USING RNAI TECHNOLOGY-- LOS ANGELES, CA - SEPTEMBER 17, 2003 - CytRx Corporation (NASDAQ:CYTR) today reached an agreement to form Araios, Inc., a CytRx subsidiary that will develop orally active small molecule based drugs to prevent, treat and cure obesity and type II diabetes. Michael P. Czech, Ph.D., Professor and Chair of Molecular Medicine, and Professor of Biochemistry and Molecular Pharmacology at the University of Massachusetts Medical School (UMMS), will team with prominent scientists affiliated with leading medical institutions, including Harvard Medical School, to form the company. The new company will be initially funded by CytRx with $7 million. This funding was provided out of the proceeds of CytRx's private placement that was completed yesterday. CytRx's new subsidiary is an outgrowth of a landmark alliance established in April 2003 with UMMS to use RNA interference (RNAi) technology for the development of novel products for the prevention, treatment and cure of obesity and type II diabetes. The new unit initially will focus on using a genomic and proteomic based drug discovery approach that leverages RNAi to swiftly screen and identify key drug targets and pathways in obesity and type II diabetes. It will then develop orally active medicines against these targets. The formation of the new subsidiary represents a significant evolution of CytRx's business plan, with CytRx becoming a fully staffed drug discovery and development company in the obesity and type II diabetes fields. "CytRx is UMMS's first commercial partner in developing RNAi technology to treat major illnesses. As a result of this unique transaction with our prominent scientists, they are now the world's leading company in the application of RNAi technology to develop medicines for the treatment of obesity and type II diabetes," said John L. Sullivan, MD, Director of the Office of Research at the University of Massachusetts Medical School. "Based on our relationship with CytRx, I would expect them to be the first RNAi company to have a commercial product in the market for these diseases." Dr. Czech, a world renowned authority in the field of obesity and type II diabetes, will serve as chairman of the new company's Scientific Advisory Board and as chief scientific advisor. The Scientific Advisory Board is comprised of distinguished physicians and researchers including: o RONALD KAHN, M.D., President and Director, Joslin Diabetes Center; Section Head Cellular and Molecular Physiology, Professor of Medicine, Harvard Medical School. o LUCIANO ROSSETI, M.D., Director, Albert Einstein College of Medicine Diabetes Research and Training Center. Dr. Czech has pioneered work using RNAi to selectively inhibit gene expression in metabolic tissues and has developed model systems for studying insulin actions in tissues relevant to diabetes and obesity. Obesity and type II diabetes are associated conditions, with 85% of type II diabetics being overweight. These two metabolic conditions affect more than 85 million Americans and 180 million people worldwide, resulting in more than $100 billion in annual health care expenditures. Current approved drugs for these diseases have unpleasant or serious side effects causing potential health concerns and are only partially effective. "The application of RNAi technology to drug discovery in metabolic disease is a breakthrough advance," said Dr. Czech. "Araios will take full advantage of this powerful approach, which should greatly accelerate progress toward developing new therapies for obesity and diabetes." "We are pleased to have attracted the finest minds in the medical world, who are determined to find a cure for obesity and type II diabetes," said Steven A. Kriegsman, CytRx's chief executive officer. "With such renowned scientists and an agile and focused program, CytRx is committed to curing these horrendous diseases. We plan to use all of our pharmaceutical and biotech relationships to develop unique multiple partnership opportunities with the world's largest and finest pharmaceutical companies. We believe our team can rapidly build a pipeline of novel drug candidates for these indications." Louis J. Ignarro, Ph.D, chairman of the CytRx Scientific Advisory Board and Nobel Laureate in medicine, said, "It is unusual to have amassed such an accomplished group of scientists within an organization to concentrate their attention on one area. Obesity and type II diabetes are debilitating maladies for millions of individuals throughout the world. While true scientific breakthroughs are both challenging and rare, this opportunity holds great promise for success." In addition to Dr. Czech, Araios has attracted several industry veterans to join its team, including Mark A. Tepper, Ph.D., who will serve as president. Dr. Tepper has over 25 years of experience in biomedical research. For the past 14 years, he has led small molecule and protein therapeutic discovery and early development projects in pharmaceutical and biotechnology companies. Dr. Tepper most recently was chief executive officer of Arradial, a venture backed microfluids based drug discovery company. He previously held positions as vice president, research and operations at the Serono Pharmaceutical Research Institute, and at the Bristol Myers Squibb Pharmaceutical Research Institute. "The founders and senior executives at our new subsidiary have more than 50 years of combined research and business experience working in the field of diabetes and obesity," Kriegsman said. "We are excited about the prospects of becoming the premier company in the discovery and development of new medicines to treat this worldwide epidemic." ABOUT CYTRX CORPORATION CytRx Corporation is a biopharmaceutical company engaged in the development and commercialization of large-market opportunity products in a variety of therapeutic categories. The company recently formed a broad-based strategic alliance with the University of Massachusetts Medical School to develop novel compounds for obesity, type II diabetes and ALS, including using a promising new technology known as RNA interference (RNAi). CytRx recently licensed from UMMS the exclusive worldwide rights to a DNA-based HIV vaccine technology. CytRx is seeking strategic partners to complete the development of FLOCOR, a product for the treatment of sickle cell disease and which may have applications in cancer and disorders such as stroke and heart attack. The company has licensed its TranzFect delivery technology for DNA-based vaccines for certain diseases. A CytRx subsidiary also holds interests in two development stage genomics-based healthcare companies. For more information, visit CytRx's website at www.cytrx.com. This press release may contain forward-looking statements within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended, that involve risks and uncertainties that could cause actual events or results to differ materially from the events or results described in the forward-looking statements, including without limitation risks or uncertainties related to the need to satisfy certain closing conditions for the formation of the new subsidiary, the potential need to fund future operations of the new subsidiary with additional capital, the reliance of the new subsidiary on the efforts of Dr. Czech, the need to recruit and retain scientific personnel for the new subsidiary, the risks and uncertainties in identifying and validating drug targets for the new subsidiary using new RNAi technologies, the time and substantial cost to develop new drugs in the obesity and type II diabetes fields and the risks and uncertainties associated with the development of potential commercial applications for CytRx's RNAi technology in other fields. Additional uncertainties and risks are described in CytRx's most recently filed SEC documents, such as its most recent annual report on Form 10-K, all quarterly reports on Form 10-Q and any current reports on Form 8-K filed since the date of the last Form 10-K. All forward-looking statements are based upon information available to CytRx on the date the statements are first published. CytRx undertakes no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. # # # -----END PRIVACY-ENHANCED MESSAGE-----