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As filed with the Securities and Exchange Commission on April 6, 2017
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Reg. No. 333-______________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CYTRX CORPORATION
(Exact name of registrant as specified in
its charter)
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Delaware
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58-1642750
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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CytRx Corporation
11726 San Vicente Boulevard, Suite 650
Los Angeles, California 90049
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Steven A. Kriegsman
Chairman and Chief Executive Officer
CytRx Corporation
11726 San Vicente Boulevard, Suite 650
Los Angeles, California 90049
(310) 826-5648
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
With a copy to:
Dale E. Short
TroyGould PC
1801 Century Park East, Suite 1600
Los Angeles, California 90067
Telephone: (310) 789-1259
Facsimile: (310) 789-1459
Approximate date of commencement of proposed
sale to public:
From time to time after the effective date of this registration statement.
If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
¨
CALCULATION OF REGISTRATION FEE
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Title of each class of
securities to be registered
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Amount
to be
registered(1)
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Proposed
maximum
offering price
per security(1)
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Proposed
maximum
aggregate
offering price(1)
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Amount of
registration fee(2)
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Common stock, par value $0.001 per share(3)
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—
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(3)
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—
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—
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—
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Preferred stock, $0.01 par value per share
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—
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—
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—
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—
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Warrants
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—
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—
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—
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—
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Units
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—
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—
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—
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—
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Total
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—
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—
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$
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50,000,000
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$
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5,795
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(1)
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The securities registered by this registration statement may be sold separately, together with other securities registered
hereunder, or as units consisting of a combination of other securities registered hereunder. Pursuant to Rule 457(o) under the
Securities Act of 1933 and General Instruction II.D to Form S-3 under the Securities Act of 1933, the numbers of shares, warrants
and units are not specified. There is being registered hereunder an indeterminate amount of common stock, preferred stock, warrants
and units of the registrant as may from time to time be issued at indeterminate prices. The maximum offering price per class of
securities will be determined from time to time by the registrant in connection with the issuance of the securities. However, in
no event will the maximum aggregate offering price of the securities issued exceed $50,000,000 or such lesser aggregate amount
permitted under General Instruction I.B.6 to Form S-3 under the Securities Act of 1933. Pursuant to Rule 416 under the Securities
Act of 1933, this registration statement also registers such indeterminate amounts of securities as may be issued upon conversion
of, or in exchange for, the securities registered hereunder and such indeterminate number of shares of common stock and preferred
stock as may be issued from time to time upon conversion or exchange as a result of stock splits, stock dividends or similar transactions.
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(2)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933.
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(3)
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Each share of common stock will be accompanied by one Series A Junior Participating Preferred Stock Purchase Right that trades
with the common stock. The value, if any, attributable to this right is reflected in the market price of common stock. Prior to
the occurrence of certain events, none of which has occurred as of the date of this registration statement, the rights will not
be exercisable or evidenced separately from the common stock.
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If any of the securities being registered on
this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest reinvestment plans, check the following box.
x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering.
¨
If this Form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box.
¨
If this Form is a post-effective amendment to
a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions
of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2
of the Exchange Act. (Check one):
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Large accelerated filer
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¨
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Accelerated filer
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x
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Non-accelerated filer
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¨
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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Pursuant to Rule 429(a) under the Securities Act of 1933,
as amended (the “Act”), the prospectus included in this registration statement is a combined prospectus relating to
$150,000,000 of securities of the registrant, $100,000,000 of which were registered and remain unsold under the registrant’s
prior registration statement on Form S 3 (Reg. No. 333-208803) declared effective on March 30, 2017. Pursuant to Rule 429(b) under
the Act, this post-effective amendment, upon effectiveness, also constitutes a post-effective amendment to the prior registration
statement, which post-effective amendment shall become effective concurrently with the effectiveness of this post-effective amendment
and in accordance with Section 8(c) of the Act. If securities previously registered under the prior registration statements are
offered and sold before the effective date of this post-effective amendment, the amount of previously registered securities so
sold will not be included in the combined prospectus herein.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON
SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY
STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT
OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.
The information in this prospectus is not complete and may be
changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission becomes
effective. This prospectus is not an offer to sell these securities, and it is not a solicitation of an offer to buy these securities,
in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, April 6, 2017
PROSPECTUS
$150,000,000
We may offer and sell from time to time up to
$150,000,000 in the aggregate of shares of our common stock, shares of our preferred stock and warrants in amounts, at prices and
on terms that we will decide at the time of the offering. These securities may be offered and sold separately, together or as units
with other securities. Each share of our common stock to be offered and sold is accompanied by one Series A Junior Participating
Preferred Stock Purchase Right that trades with our common stock.
We will provide the specific terms of these
offers and sales in supplements to this prospectus. This prospectus may not be used to sell securities unless accompanied by a
prospectus supplement. You should read this prospectus and the prospectus supplement carefully before you invest. We may offer
securities directly to investors or through agents, underwriters or dealers. If any agents, underwriters or dealers are involved
in the sale of any of our securities, their names and any applicable purchase prices, fees, commissions or discount arrangements
will be set forth in the prospectus supplement.
Our common stock is traded on The NASDAQ Capital
Market under the symbol “CYTR.” On April 3, 2017, the closing price of our common stock as reported on The NASDAQ Capital
Market was $0.46 per share. The aggregate market value of our outstanding common stock held by non-affiliates as of the date of
this prospectus is approximately $53.1 million, calculated based upon 115,541,079 shares of outstanding common stock held by non-affiliates
and a per share price of $0.46, the closing sale price of our common stock as reported on The NASDAQ Capital Market on April 3,
2017 (a date within 60 days of the date hereof). Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities
registered on the registration statement of which this prospectus is a part in a public primary offering with a value exceeding
more than one-third of our public float in any 12-month period if our public float, measured in accordance with such instruction,
remains below $75 million. As of the date hereof, we have not offered any securities pursuant to General Instruction I.B.6 of Form
S-3 during the 12-month period prior to and including the date of this prospectus.
An investment in our securities involves
significant risks. Before purchasing any securities, you should consider carefully the risks referred to under “Risk Factors”
on page 3 of this prospectus and in the prospectus supplement.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION
NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED THAT THIS PROSPECTUS IS COMPLETE
OR ACCURATE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is ________________,
2017
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
(Reg. No. 333-__________) utilizing the “shelf registration” process that we filed with the Securities and Exchange
Commission, or the SEC, to permit us to offer and sell the securities described in this prospectus in one or more transactions.
The plan of distribution of the securities is described in this prospectus under the heading “Plan of Distribution.”
As permitted by the rules and regulations of
the SEC, the registration statement filed by us includes additional information not contained in this prospectus. You may read
the registration statement and the other reports we file with the SEC at the SEC’s web site or at the SEC’s offices
described below under the heading “Where You Can Find More Information .”
This prospectus provides you with a general
description of the securities we may offer. Each time securities are sold, we will provide a prospectus supplement that will contain
specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained
in this prospectus. You should read both this prospectus and the prospectus supplement, together with additional information described
in this prospectus under the heading “Where You Can Find More Information.”
You should rely only on the information provided
in this prospectus and in the prospectus supplement, including any information incorporated by reference. For more details on information
incorporated herein by reference, you should review the discussion contained under the heading “Incorporation of Certain
Documents by Reference.” We have not authorized anyone to provide you with information different from that contained or incorporated
by reference in this prospectus and in the prospectus supplement. We are offering the securities only in jurisdictions where offers
are permitted. You should not assume that the information in this prospectus or the prospectus supplement is accurate at any date
other than the date indicated on the cover page of these documents.
NOTE ON FORWARD-LOOKING
STATEMENTS
Some of the statements contained or incorporated
by reference in this prospectus or in the prospectus supplement may include forward-looking statements that reflect our current
views with respect to our research and development activities, business strategy, business plan, financial performance and other
future events. These statements include forward-looking statements both with respect to us, specifically, and the biotechnology
sector, in general. We make these statements pursuant to the safe harbor provisions of the Private Securities Litigation Reform
Act of 1995. Statements that include the words “expect,” “intend,” “plan,” “believe,”
“project,” “estimate,” “may,” “should,” “anticipate,” “will”
and similar statements of a future or forward-looking nature identify forward-looking statements for purposes of the federal securities
laws or otherwise.
All forward-looking statements involve inherent
risks and uncertainties, and there are or will be important factors that could cause actual results to differ materially from those
indicated in these statements. We believe that these factors include, but are not limited to, those factors set forth under the
caption “Risk Factors” in this prospectus and in any prospectus supplement and under the captions “Business,”
“Legal Proceedings,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,”
“Quantitative and Qualitative Disclosures About Market Risk” and “Controls and Procedures” in our most
recent Annual Report on Form 10-K incorporated herein by reference, all of which you should review carefully. Please consider our
forward-looking statements in light of those risks as you read this prospectus and the prospectus supplement. We undertake no obligation
to publicly update or review any forward-looking statement, whether as a result of new information, future developments or otherwise.
If one or more of these or other risks or uncertainties
materializes, or if our underlying assumptions prove to be incorrect, actual results may vary materially from what we anticipate.
All subsequent written and oral forward-looking statements attributable to us or individuals acting on our behalf are expressly
qualified in their entirety by this Note. Before purchasing any of our securities, you should consider carefully all of the factors
set forth or referred to in this prospectus and in the prospectus supplement that could cause actual results to differ.
INDUSTRY DATA
Unless otherwise indicated, information contained
or incorporated by reference in this prospectus concerning our industry, including our general expectations and market opportunity,
is based on information from our own management estimates and research, as well as from industry and general publications and research,
surveys and studies conducted by third parties. Management estimates are derived from publicly available information our knowledge
of our industry and assumptions based on such information and knowledge, which we believe to be reasonable. In addition, assumptions
and estimates of our and our industry’s future performance are necessarily subject to a high degree of uncertainty and risk
due to a variety of factors, including those referred to under “Risk Factors” below in this prospectus. These and other
factors could cause our future performance to differ materially from our assumptions and estimates.
TRADEMARKS
CytRx and LADR are some of our trademarks used
in this prospectus. This prospectus also includes trademarks, trade names and service marks that are the property of other organizations.
Solely for convenience, trademarks and trade names referred to in this prospectus sometimes appear without the
®
and ™ symbols, but those references are not intended to indicate that we will not assert, to the fullest extent under applicable
law, our rights, or that the applicable owner will not assert its rights, to these trademarks and trade names.
ABOUT CYTRX
Company Overview
CytRx Corporation (“we,” “us,”
“our” or the “company”) is a biopharmaceutical research and development company specializing in oncology.
We currently are focused on the clinical development of aldoxorubicin, our modified version of doxorubicin. We are also developing
new anti-cancer drug conjugates that utilize our Linker Activated Drug Release (LADR
TM
) technology.
We are a Delaware corporation, incorporated
in 1985. Our corporate offices are located at 11726 San Vicente Boulevard, Suite 650, Los Angeles, California 90049, and our telephone
number is (310)826-5648. Our web site is located on the worldwide web at http://www.cytrx.com. We do not incorporate by reference
into this prospectus the information on, or accessible through, our website, and you should not consider it as part of this prospectus.
RISK FACTORS
Investing in our securities involves significant
risks, including those set forth under the caption “Risk Factors” in our most recent Annual Report on Form 10-K incorporated
herein by reference. The prospectus supplement relating to a particular offering will contain a discussion of risks applicable
to an investment in the securities offered. Prior to making a decision about investing in our securities, you should carefully
consider the specific factors discussed under the heading “Risk Factors” in the applicable prospectus supplement together
with all of the other information contained in the prospectus supplement or appearing or incorporated by reference in this prospectus.
USE OF PROCEEDS
Unless we state otherwise in the accompanying
prospectus supplement, we intend to use the net proceeds from the sale of securities offered by this prospectus for working capital
and general corporate purposes, including the clinical trials of our product candidates. General corporate purposes also may include
funding of capital expenditures, payments in connection with possible future acquisitions and strategic investments and repayment
of future indebtedness.
We have not determined the amounts we plan to
spend on any of the areas listed above or the timing of these expenditures. As a result, our management will have broad discretion
to allocate the net proceeds from this offering. Pending application of the net proceeds as described above, we expect to invest
the net proceeds in short-term, interest-bearing, investment-grade securities pursuant to our investment policy.
FINANCIAL RATIOS
If required in connection with any offer of
preference equity securities, we will provide a ratio of preference dividends to earnings in the related prospectus supplement.
DIVIDEND POLICY
Our board of directors sets our dividend policy.
We have never paid any cash dividends on our common stock and do not intend to declare cash dividends on our common stock in the
foreseeable future. We currently intend to retain all available funds and any future earnings for use in the operation and expansion
of our business, but we may determine in the future to declare or pay cash dividends on our common stock. Any future determination
as to the declaration and payment of dividends will be at the discretion of our board of directors and will be dependent upon our
results of operations and cash flows, our financial position and capital requirements, general business conditions, legal, tax,
regulatory and any contractual restrictions on the payment of dividends, and any other factors our board of directors deems relevant.
THE SECURITIES THAT
WE MAY OFFER
We, directly or through agents, dealers or underwriters
designated from time to time, may offer, issue and sell, together or separately, up to $150,000,000 in the aggregate of:
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shares of our common stock, par value $0.001 per share;
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shares of our preferred stock, par value $0.01 per share;
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warrants to purchase our common stock or preferred stock; and
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any combination of the securities listed above, separately or as units, each on terms to be determined at the time of sale.
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The common stock, preferred stock, warrants
and units collectively are referred to in this prospectus as the “securities.”
We have summarized below the material terms
of the various types of securities that we may offer. We will describe in the applicable prospectus supplement the detailed terms
of the securities offered by that supplement. If indicated in the prospectus supplement, the terms of the offered securities may
differ from the terms summarized below.
DESCRIPTION OF CAPITAL
STOCK
As of March 31, 2017, our authorized capital
stock consisted of 250,000,000 shares of common stock, $0.001 par value per share, of which 118,722,895 shares were outstanding,
and 5,000,000 shares of preferred stock, $0.01 par value per share, of which 25,000 shares were designated as Series A Junior Participating
Preferred Stock and 3,900 shares were designated as Series B Convertible Preferred Stock.
We have reserved all of the shares of our Series
A Junior Participating Preferred Stock for issuance upon the exercise of the rights under our Shareholder Protection Rights Agreement
described below.
In December 2016, we sold and issued 3,300 shares
of our authorized shares of Series B Convertible Preferred Stock, all of which shares had been converted into shares of our common
stock and retired as of March 31, 2017. We have no plan or arrangement to issue any remaining authorized shares of our Series B
Convertible Preferred Stock.
The following summary of certain provisions
of our common stock and preferred stock does not purport to be complete. You should refer to our amended and restated certificate
of incorporation and our restated bylaws, which are filed with or incorporated by reference in the registration statement relating
to this offering filed by us with the SEC. The summary below is also qualified by reference to the provisions of applicable Delaware
corporation law.
Common Stock
Holders of our common stock are entitled to
one vote per share on matters on which our stockholders vote, including with respect to the election of directors. Holders of common
stock are entitled to receive dividends, if declared by our board of directors, out of funds that we may legally use to pay dividends.
See the section of this prospectus entitled “Dividend Policy” for further information. If we liquidate or dissolve,
holders of common stock are entitled to share ratably in our assets once our debts and any liquidation preference owed to holders
of any then-outstanding preferred stock are paid. No shares of preferred stock will be outstanding immediately after the closing
of this offering. All shares of common stock that are outstanding as of the date of this prospectus supplement are, and all shares
we are selling in this offering, upon their issuance and sale, will be, fully-paid and nonassessable. Holders of our common stock
have no preemptive, conversion or subscription rights, and there are no redemption or sinking fund provisions with respect to our
common stock.
Preferred Stock
Our board of directors has the authority to
issue shares of our authorized and unissued preferred stock in one or more Series and to fix the rights of each Series . These
rights may include dividend rights, dividend rates, conversion rights, voting rights, terms of redemption, redemption prices, liquidation
preferences, sinking fund terms, and the number of shares that constitute any Series . The board of directors may exercise this
authority without any further action by our stockholders.
Our board of directors will fix the rights,
preferences, privileges, qualifications and restrictions of the preferred stock of each Series that we sell under this prospectus
in the certificate of designation relating to each such Series . We will incorporate by reference as an exhibit to the registration
statement of which this prospectus is a part or as an exhibit to one or more current reports on Form 8-K, the Form of any certificate
of designation that describes the terms of the Series of preferred stock we are offering before the issuance of the related Series
of preferred stock. This description will include:
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the title and stated value;
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the number of shares we are offering;
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the liquidation preference per share;
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the purchase price per share;
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the dividend rate per share, dividend period, payment date or dates and method of calculation of dividends;
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whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
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our right, if any, to defer payment of dividends and the maximum length of any such deferral period;
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the procedures for any auction and remarketing, if any;
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the provisions for a sinking fund, if any;
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the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption
and repurchase rights;
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any listing of the preferred stock on any securities exchange or market;
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whether the preferred stock will be convertible into our common stock or other securities of ours, including warrants, and,
if applicable, the conversion price, or how it will be calculated, and under what circumstances and the mechanism by which it may
be adjusted, and the conversion period;
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whether the preferred stock will be exchangeable into debt securities or other securities of ours, and, if applicable, the
exchange price, or how it will be calculated, and under what circumstances it may be adjusted, and the exchange period;
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preemptive rights, if any;
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restrictions on transfer, sale or other assignment, if any;
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a discussion of any material United States federal income tax considerations applicable to the preferred stock;
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the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind
up our affairs;
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any limitations on issuances of any class or Series of preferred stock ranking senior or on a parity with the Series of preferred
stock being issued as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and
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any other specific terms, rights, preferences, privileges, qualifications or limitations of, or restrictions on, the preferred
stock.
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If we issue and sell shares of preferred stock
pursuant to this prospectus, the shares will be fully paid and nonassessable and will not have, or be subject to, any preemptive
or similar rights.
The laws of the State of Delaware, the state
of our incorporation, provide that the holders of preferred stock will have the right to vote separately as a class on any proposal
involving fundamental changes in the rights of holders of such preferred stock. This right is in addition to any voting rights
that may be provided for in the applicable certificate of designation.
We believe the power to issue preferred stock
will provide our board of directors with flexibility in connection with certain possible corporate transactions. The issuance of
preferred stock, however, could adversely affect the voting power of holders of our common stock, restrict their rights to receive
payment upon liquidation, and have the effect of delaying, deferring, or preventing a change in control which may be beneficial
to our stockholders.
Anti-Takeover Measures
Delaware Law
Section 203 of the Delaware General Corporation
Law is applicable to takeovers of certain Delaware corporations, including us. Subject to exceptions enumerated in Section 203,
Section 203 provides that a corporation shall not engage in any business combination with any “interested stockholder”
for a three-year period following the date that the stockholder becomes an interested stockholder unless:
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prior to that date, the board of directors of the corporation approved either the business combination or the transaction that
resulted in the stockholder becoming an interested stockholder;
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upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, though some shares
may be excluded from the calculation; or
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on or subsequent to that date, the business combination is approved by the board of directors of the corporation and by the
affirmative votes of holders of at least two-thirds of the outstanding voting stock that is not owned by the interested stockholder.
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Except as specified in Section 203, an interested
stockholder is generally defined to include any person who, together with any affiliates or associates of that person, beneficially
owns, directly or indirectly, 15% or more of the outstanding voting stock of the corporation, or is an affiliate or associate of
the corporation and was the owner of 15% or more of the outstanding voting stock of the corporation, any time within three years
immediately prior to the relevant date. Under certain circumstances, Section 203 makes it more difficult for an interested stockholder
to effect various business combinations with a corporation for a three-year period, although the stockholders may elect not to
be governed by this section, by adopting an amendment to the certificate of incorporation or by-laws, effective 12 months after
adoption. Our amended and restated certificate of incorporation and by-laws do not opt out from the restrictions imposed under
Section 203. We anticipate that the provisions of Section 203 may encourage companies interested in acquiring us to negotiate in
advance with the board because the stockholder approval requirement would be avoided if a majority of the directors then in office
excluding an interested stockholder approve either the business combination or the transaction that resulted in the stockholder
becoming an interested stockholder. These provisions may have the effect of deterring hostile takeovers or delaying changes in
control, which could depress the market price of our common stock and deprive stockholders of opportunities to realize a premium
on shares of common stock held by them.
Charter and By-Law Provisions
In addition to the board of directors’
ability to issue shares of preferred stock, our amended and restated certificate of incorporation and restated by-laws contain
the following provisions that may have the effect of discouraging unsolicited acquisition proposals:
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our restated by-laws classify the board of directors into three classes with staggered three-year terms;
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under our restated by-laws, our board of directors may enlarge the size of the board and fill the vacancies;
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our restated by-laws provide that a stockholder may not nominate candidates for the board of directors at any annual or special
meeting unless that stockholder notifies us of its intention a specified period in advance and provides us with certain required
information;
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stockholders who wish to bring business before the stockholders at our annual meeting must provide advance notice; and
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our restated by-laws provide that special meetings of stockholders may only be called by our board of directors or by an officer
so instructed by our board.
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Our restated by-laws also provide that, unless
we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will be the sole
and exclusive forum for:
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any derivative action or proceeding brought on our behalf;
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any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the company to
us or our stockholders;
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any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law; or
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any action asserting a claim governed by the internal affairs doctrine.
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Our restated by-laws further provide that any person or entity purchasing or otherwise acquiring any interest in shares of
capital stock of the company is deemed to have notice of and consented to the foregoing provision.
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Shareholder Protection Rights Agreement
Our board of directors adopted a Shareholder
Protection Rights Agreement, or Rights Agreement, dated April 16, 1997, as amended, between us and American Stock Transfer&
Trust Co., as Rights Agent. The Rights Agreement will expire on April 16, 2022, unless renewed or extended by our board of directors.
A Series of our preferred stock, designated as Series A Junior Participating Preferred Stock, par value $0.01 per share, was created
in accordance with the Rights Agreement. The Rights Agreement is designed to deter coercive takeover tactics, including the accumulation
of shares in the open market or through private transactions, and to prevent an acquirer from gaining control of us without offering
a fair and adequate price and terms to all of our stockholders. As such, the Rights Agreement is intended to enhance our board
of directors’ ability to protect stockholder interests and help to assure that stockholders receive fair and equal treatment
in the event any proposed takeover of CytRx is made in the future. Pursuant to the Rights Agreement, our board of directors declared
a dividend distribution of one preferred stock purchase right for each outstanding share of our common stock. The preferred stock
purchase rights are attached to, and trade with, our common stock. The purchase rights are exercisable only upon the occurrence
of certain triggering events described in the Rights Agreement.
Transfer Agent
The transfer agent for our common stock is American
Stock Transfer& Trust Company, 40 Wall Street, New York,
New York 10005.
DESCRIPTION OF WARRANTS
We may offer and issue warrants to purchase
shares of our common stock or preferred stock. The warrants may be issued independently or as a part of units consisting of shares
of our common stock or preferred stock and warrants to purchase additional shares of our common stock or preferred stock. If the
warrants are issued pursuant to warrant agreements, we will so specify in the prospectus supplement relating to the warrants being
offered pursuant to the prospectus supplement.
The following description will apply to the
warrants offered by this prospectus unless we provide otherwise in the applicable prospectus supplement. The applicable prospectus
supplement for a particular Series of warrants may specify different or additional terms. The forms of any warrant certificates
or warrant agreements evidencing the warrants that we issue will be filed with the SEC and incorporated by reference into this
prospectus, and you should carefully review such documents.
The prospectus supplement will describe the
following terms of warrants to purchase our common stock, preferred stock or debt securities to the extent applicable:
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the title of the warrants;
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the common stock or preferred stock for which the warrants are exercisable;
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the price at which the warrants will be issued and the exercise price of the warrants;
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the aggregate number of warrants offered;
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the number of shares of common stock or preferred stock that may be purchased upon the exercise of each warrant;
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whether the warrants are being offered separately or as a part of units consisting of shares of our common stock or preferred
stock and warrants to purchase additional shares of our common stock or preferred stock;
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the terms of any right by us to redeem the warrants;
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the date on which the right to exercise the warrants will commence and the date on which this right will expire;
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the procedures for exercising the warrants;
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the terms on which the warrants may be amended;
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the terms of any adjustments in the warrant exercise price and the number of shares of common stock or preferred stock purchasable
upon the exercise of each warrant to be made in certain events, including the issuance of a stock dividend to holders of common
stock or preferred stock or a stock split, reverse stock split, combination, subdivision or reclassification of common stock;
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the effect on the warrants of our merger or consolidation with another entity or our sale of all or substantially all of our
assets;
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the maximum or minimum number of warrants which may be exercised at any time; and
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the material United States federal income tax consequences applicable to the warrants and their exercise.
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Holders of warrants to purchase common stock
or preferred stock will not be entitled, by virtue of being such holders, to vote, consent, receive dividends, receive notice as
stockholders with respect to any meeting of stockholders for the election of our directors or any other matter, or to exercise
any rights whatsoever as our stockholders.
Warrants may be exercised at any time up to
the close of business on the expiration date set forth in the prospectus supplement relating to the warrants offered thereby. After
the close of business on the expiration date, unexercised warrants will become void. Upon our receipt of the exercise price of
the warrants upon the due exercise of the warrants, we will, as soon as practicable, forward the securities purchasable upon exercise.
If less than all of the warrants represented by such warrant certificate are exercised, a new warrant certificate will be issued
for the remaining warrants.
DESCRIPTION OF UNITS
We may offer and issue units that consist of
shares of our common stock or preferred stock and warrants to purchase additional shares of our common stock or preferred stock.
For example, we may elect to issue units for a specified price per unit, with each unit consisting of one share of our common stock
or preferred stock and one warrant to purchase an additional share of our common stock or preferred stock at a specified price.
The holder of a unit will also hold each of the securities that is included in the unit.
We have provided in the preceding sections of
this prospectus a general description of our common stock, preferred stock, and warrants that we may offer. If we elect to offer
units, we will describe the specific terms of the units in a supplement to this prospectus. Among other things, the prospectus
supplement will describe, to the extent applicable:
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the price of each unit;
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the securities comprising each unit;
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the exercise price of the warrants comprising part of the units;
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the aggregate number of units offered;
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the number of shares of common stock or preferred stock that may be purchased upon the exercise of each warrant comprising
part of a unit;
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the terms of any right by us to redeem any of the securities comprising the units;
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the date on which the right to exercise the warrants forming part of the units will commence and the date on which this right
will expire;
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any transfer restrictions on the units, including whether the securities comprising the units may be transferred separately;
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the terms on which the units or warrants forming part of the units may be amended;
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with respect to preferred stock forming part of the units, the other matters listed above under “Description of Capital
Stock—Preferred Stock”;
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with respect to warrants forming part of the units, the other matters listed above under “Description of Warrants”;
and
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the material United States federal income tax consequences applicable to the units.
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PLAN OF DISTRIBUTION
We may sell the securities being offered hereby
in one or more of the following ways from time to time:
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through agents to the public or to investors;
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to one or more underwriters for resale to the public or to investors;
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in “at the market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act of 1933, as amended, or
the Securities Act, to or through a market maker or into an existing trading market, on an exchange or otherwise;
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directly to investors; or
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through a combination of these methods of sale.
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We will set forth in a prospectus supplement
the terms of an offering of shares of our securities, including.
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the name or names of any agents or underwriters;
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the purchase price of the securities being offered and the proceeds we will receive from the sale;
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any over-allotment options under which underwriters may purchase additional securities from us;
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any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
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the public offering price; and
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any discounts or concessions allowed or re-allowed or paid to dealers.
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We may distribute the securities from time to
time in one or more transactions;
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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We may also, from time to time, authorize dealers,
acting as our agents, to offer and sell securities upon the terms and conditions set forth in the applicable prospectus supplement.
We, or the purchasers of securities for whom the underwriters may act as agents, may compensate underwriters in the Form of underwriting
discounts or commissions, in connection with the sale of securities. Underwriters may sell the securities to or through dealers,
and those dealers may receive compensation in the Form of discounts, concessions or commissions from the underwriters or commissions
from the purchasers for whom they may act as agent. Unless otherwise indicated in a prospectus supplement, an agent will be acting
on a “best efforts” basis and a dealer will purchase securities as a principal, and may then resell the common stock
at varying prices to be determined by the dealer.
We will describe in the applicable prospectus
supplement any compensation we will pay to underwriters or agents in connection with the offering of securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers. The dealers and agents participating in the distribution
of securities may be deemed to be underwriters, and any discounts and commissions received by them and any profit realized by them
on resale of the securities may be deemed to be underwriting discounts and commissions. We may enter into agreements to indemnify
underwriters, dealers and agents against certain civil liabilities, including liabilities under the Securities Act and to reimburse
these persons for certain expenses. We may grant underwriters who participate in the distribution of securities we are offering
under this prospectus an option to purchase additional shares to cover over-allotments, if any, in connection with the distribution.
To facilitate the offering of securities, certain
persons participating in the offering may engage in transactions that stabilize, maintain, or otherwise affect the price of the
securities. This may include over-allotments or short sales of the securities, which involve the sale by persons participating
in the offering of more securities than we sold to them. In these circumstances, these persons would cover such over-allotments
or short positions by making purchases in the open market or by exercising their over-allotment option, if any. In addition, these
persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the open market or by
imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if securities
sold by them is repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize
or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These transactions
may be discontinued at any time.
Any underwriters who are qualified market makers
on The NASDAQ Capital Market may engage in passive market making transactions in the securities on The NASDAQ Capital Market in
accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement
of offers or sales of the securities. Passive market makers must comply with applicable volume and price limitations and must be
identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest
independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the
passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
Certain underwriters, dealers or agents and
their associates may engage in transactions with and perform services for us in the ordinary course of our business.
WHERE YOU CAN FIND
MORE INFORMATION
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s
website at http://www.sec.gov. The SEC’s website contains reports, proxy and information statements and other information
regarding issuers such as us that file electronically with the SEC. You may also read and copy any document we file with the SEC
at the SEC’s Public Reference Room at 100 F Street, N.E., Room 1580, Washington, D.C. 20549, and may obtain copies of these
documents at prescribed rates by writing to the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the operation
of its Public Reference Room.
Information about us is also available at our
website at www.cytrx.com; however, information on our website is not incorporated into this prospectus and is not a part of this
prospectus.
INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference”
the information we have filed with it, which means that we can disclose important information to you by referring you to another
document that we have filed separately with the SEC. You should read the information incorporated by reference because it is an
important part of this prospectus. Any statement in a document we incorporate by reference into this prospectus will be considered
to be modified or superseded to the extent a statement contained in this prospectus or any other subsequently filed document that
is incorporated by reference into this prospectus modifies or supersedes that statement. The modified or superseded statement will
not be considered to be a part of this prospectus, except as modified or superseded.
We incorporate by reference the following information
or documents that we have filed with the SEC (excluding those portions of any document that are “furnished” and not
“filed” in accordance with SEC rules):
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our Annual Report on Form 10-K for the year ended December 31, 2016 filed with the SEC on March 15, 2017;
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our Current Reports on Form 8-K and Form 8-K/A filed with the SEC on January 6, 2017, January 13, 2017, February 24, 2017 and
March 15, 2017, respectively;
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the description of our securities as described in our Registration Statement on Form 8-A filed under the Exchange Act on March
17, 1987 (File No. 000-15327), and any amendment or report filed for the purpose of updating any such description; and
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the description of our Series A Junior Participating Preferred Stock Purchase Rights as described in our Registration Statement
on Form 8-A filed under the Exchange Act on April 17, 1997 (File No. 000 15327), and any amendment or report filed for the purpose
of updating any such descriptions.
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We also incorporate by reference all documents
filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date on which we filed the registration
statement of which this prospectus is a part and prior to the termination of this offering (excluding those portions of any document
that are “furnished” and not “filed” in accordance with SEC rules).
Statements made in this prospectus or in any
document incorporated by reference in this prospectus as to the contents of any contract or other document referred to herein or
therein are not necessarily complete, and in each instance reference is made to the copy of such contract or other document filed
as an exhibit to the documents incorporated by reference, each such statement being qualified in all material respects by such
reference.
You may obtain a copy of the foregoing documents
from us without charge by writing or calling us at the following address and telephone number: 11726 San Vicente Blvd., Suite 650
Los Angeles, California 90049, Attention: Corporate Secretary; (310)826-5648.
LEGAL MATTERS
The validity of the securities being offered
hereby has been passed upon for us by TroyGould PC, Los Angeles, California. TroyGould PC and some of its attorneys own shares
of our common stock constituting in the aggregate less than 1% of our outstanding shares of common stock.
EXPERTS
The financial statements and schedule as of
December 31, 2016 and 2015 and for each of the three years in the period ended December 31, 2016 and management’s assessment
of the effectiveness of internal control over financial reporting as of December 31, 2016 incorporated by reference in this prospectus
have been so incorporated in reliance on the reports of BDO USA, LLP, an independent registered public accounting firm, incorporated
herein by reference, given on the authority of said firm as experts in auditing and accounting.
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PROSPECTUS
$150,000,000
The date of this prospectus is _______, 2017
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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ITEM 14.
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OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
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We estimate that the expenses incurred in connection
with the distribution described in this registration statement will be as set forth below. We will bear all of such expenses.
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SEC registration fee
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$
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5,795
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Transfer agent fees and expenses
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*
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The NASDAQ Capital Market listing fees
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*
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FINRA corporate filing fees
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*
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Accounting fees and expenses
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$
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25,000
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Legal fees and expenses
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*
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Printing expenses
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*
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Miscellaneous
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*
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Total
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$
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30,795
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* Estimated expenses, if any, not presently known.
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ITEM 15.
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INDEMNIFICATION OF DIRECTORS AND OFFICERS
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Section 102(b)(7) of the Delaware General Corporation
Law authorizes a corporation in its certificate of incorporation to eliminate or limit personal liability of directors of the corporation
for violations of the directors’ fiduciary duty of care. However, directors remain liable for breaches of duties of loyalty,
failing to act in good faith, engaging in intentional misconduct, knowingly violating a law, paying a dividend or approving a stock
repurchase which was illegal under Delaware General Corporation Law Section 174 or obtaining an improper personal benefit. In addition,
equitable remedies for breach of fiduciary duty of care, such as injunction or recession, are available.
Our amended and restated certificate of incorporation
eliminates the personal liability of the members of our board of directors to the fullest extent permitted by law. Specifically,
Article Eleven of our amended and restated certificate of incorporation provides as follows:
A director of the corporation shall not be personally
liable to the corporation or its security holders for monetary damages for breach of fiduciary duty as a director, except for liability
(i)for any breach of the director’s duty of loyalty to the corporation or its security holders, (ii)for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation of law, (iii)under Section 174 of the Delaware
General Corporation Law, or (iv)for any transaction from which the director derived any improper personal benefit. If the Delaware
General Corporation Law is amended after approval by the security holders of this Article to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated
or limited to the fullest extent permitted by the Delaware General Corporation Law as so amended.
Any repeal or modification of the foregoing
paragraph by the security holders of the corporation shall not adversely affect any right or protection of a director of the corporation
existing at the time of such repeal or modification.
In addition, our amended and restated certificate
of incorporation and restated by-laws provide for indemnification of our officers and directors to the fullest extent permitted
by law. In particular, Article Nine of our amended and restated certificate of incorporation provides as follows:
The corporation shall, to the fullest extent permitted
by Section 145 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented, indemnify
any and all persons whom it shall have power to indemnify under said section from and against any and all of the expenses, liabilities
or other matters referred to in or covered by said section, and the indemnification provided for herein shall not be deemed exclusive
of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of security holders or disinterested
directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office,
and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person.
Section 145 of the Delaware General Corporation
Law empowers a corporation to indemnify any person who was or is party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he
is or was a director, officer or agent of the corporation or another enterprise if serving at the request of the corporation. Depending
on the character of the proceeding, a corporation may indemnify against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding if the
person indemnified acted in good faith in respect to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. In the case of an action by or in the right of the corporation, no indemnification may be made with respect
to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only
to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine that despite the
adjudication of liability such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper. Section 145 further provides that to the extent a director, officer, employee or agent of a corporation has been successful
in the defense of any action, suit or proceeding referred to above or in the defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.
Our restated by-laws permit us to purchase insurance on behalf of such person against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such, whether or not we would have the power to indemnify him against
such liability under the foregoing provision of the restated by-laws.
We have entered into indemnification agreements
with each of our directors and officers under which we agree, in effect, to indemnify them to the fullest extent permitted by Delaware
law.
We also hold an insurance policy covering directors
and officers under which the insurer agrees to pay, with some exclusions, for any claim made against our directors and officers
for a wrongful act that they may become legally obligated to pay or for which we are is required to indemnify our directors or
officers.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933, as amended, or the Securities Act, may be permitted for directors, officers and controlling persons
of the Company under the above provisions, or otherwise, the Commission has advised us that, in its opinion, such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
The exhibits listed in the accompanying Exhibit
Index are filed or incorporated by reference as part of this registration statement.
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement; notwithstanding the foregoing, any increase or decrease in the volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the Form of prospectus filed with the Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration
statement; and
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i), (a)(1)(ii)
and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 and the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement, or is contained in a Form of prospectus filed pursuant to Rule 424(b) that is part of the registration
statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x)for the purpose of providing the information
required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such Form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is a part of the registration statement will, as to a purchaser with
a time of contract sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was a part of the registration statement or made in any such document immediately prior to such effective date.
(5) That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller
to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and (and,
where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Los Angeles, State of California, on April 6, 2017.
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CYTRX CORPORATION
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By:
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/s/ STEVEN A. KRIEGSMAN
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Steven A. Kriegsman
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Chairman and Chief Executive Officer
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KNOW ALL PERSONS BY THESE PRESENTS, that each
person whose signature appears below constitutes and appoints Steven A. Kriegsman as his true and lawful attorney-in-fact and agent,
with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this registration statement on Form S-3, and to sign any registration
statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462(b)
promulgated under the Securities Act of 1933, and all post-effective amendments thereto, and to file the same and all prospectus
supplements, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
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Signature
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Title
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Date
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/s/ STEVEN A. KRIEGSMAN
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Chairman of the Board and Chief Executive Officer
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April 6, 2017
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Steven A. Kriegsman
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(principal executive officer)
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/s/ JOHN Y. CALOZ
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Chief Financial Officer and Treasurer
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April 6, 2017
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John Y. Caloz
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/s/ ANITA J. CHAWLA, PH.D.
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Director
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April 6, 2017
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Anita J. Chawla, Ph.D.
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/s/ EARL W. BRIEN
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Director
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April 6, 2017
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Earl W. Brien, M.D.
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/s/ LOUIS J. IGNARRO, PH.D.
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Director
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April 6, 2017
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Louis J. Ignarro, Ph.D.
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/s/ ERIC SELTER
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Director
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April 6, 2017
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Eric Selter
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EXHIBIT INDEX
The following exhibits are filed herewith or
incorporated herein by reference.
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Exhibit
Number
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Description
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1.1
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Form of Underwriting Agreement.*
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3.1
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Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K filed on March 13, 2012).
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3.2
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Certificate of Amendment of Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on May 15, 2012).
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3.3
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Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock, pursuant to Section 151 of the Delaware General Corporation Law (incorporated by Reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on December 14, 2016).
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3.4
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Restated By-Laws, as amended (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed on July 16, 2013).
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4.1
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Shareholder Protection Rights Agreement dated April 16, 1997 between CytRx Corporation and American Stock Transfer & Trust Company as Rights Agent (incorporated by reference to Exhibit 99.1 to the Registrant’s Current Report on Form 8-K filed April 17, 1997).
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4.2
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Amendment No. 1 to Shareholder Protection Rights Agreement (incorporated by reference to Exhibit 4.2 to the Registrant’s Annual Report on Form 10-K filed on April 1, 2002).
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4.3
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Amendment No. 2 to Shareholder Protection Rights Agreement (incorporated by reference to Exhibit 4.3 to the Registrant’s Annual Report on Form 10-K filed on April 2, 2007).
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4.4
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Amendment No. 3 to Shareholder Protection Rights Agreement (incorporated by reference to Exhibit 4.1 to the Registrant’s Quarterly Report on Form 10-Q filed on November 7, 2016).
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4.5
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Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed on December 14, 2016).
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4.6
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Form of Preferred Stock Certificate.*
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4.7
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Certificate of Determination regarding the rights, preferences, privileges and restrictions with respect to Preferred Stock.*
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4.8
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Form of Warrant for Common Stock or Preferred Stock.*
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4.9
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Form of Warrant Agreement for Common Stock or Preferred Stock.*
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4.10
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Form of Unit Agreement.*
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5.1
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Opinion of TroyGould PC
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23.1
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Consent of TroyGould PC (included in Exhibit 5.1).
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23.2
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Consent of BDO USA, LLP.
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24.1
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Power of Attorney (included on page II-5)
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* To be filed, if applicable, subsequent to the effectiveness of
this registration statement (1) by an amendment to this registration statement or (2) as an exhibit to a Current Report on Form
8-K and incorporated herein by reference.
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