UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-A/A
(Amendment
No. 1)
FOR REGISTRATION OF CERTAIN CLASSES OF
SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
CYTRX
CORPORATION
(Exact
Name of Registrant as Specified in its Charter)
Delaware
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000-15327
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58-1642740
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(State
or other jurisdiction
of
incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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11726
San Vicente Boulevard, Suite 650
Los
Angeles, California 90049
(Address
of principal executive offices) (Zip Code)
Securities
to be registered pursuant to Section 12(b) of the Act: None
If
this Form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective
pursuant to General Instruction A.(c) or (e), please check the following box. [ ]
If
this Form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective
pursuant to General Instruction A.(d) or (e), please check the following box. [X]
If
this form relates to the registration of a class of securities concurrently with a Regulation A offering, check the following
box. [ ]
Securities
Act registration statement or Regulation A offering statement file number to which this form relates: None
Securities
to be registered pursuant to Section 12(g) of the Act: Rights to Purchase Series B Junior Participating Preferred Stock
Explanatory
Note
This
Form 8-A/A (Amendment No. 1) is being filed by CytRx Corporation, a Delaware corporation (the “Company”),
to amend and supplement disclosure in the Company’s Registration Statement on Form 8-A filed with the Securities and Exchange
Commission on January 23, 2020 (including the exhibits thereto, the “Form 8-A”).
Item
1. Description of the Registrant’s Securities to Be Registered.
On
December 13, 2019, the Board of Directors (the “Board”) of the Company authorized and declared a dividend
of one right (a “Right”) for each of the Company’s issued and outstanding shares of common stock,
par value $0.001 per share (“Common Stock”). The dividend was paid to the stockholders of record at
the close of business on December 23, 2019 (the “Record Date”). Each Right entitled the registered holder,
subject to the terms of the Original Rights Agreement (as defined below), to purchase from the Company one one-thousandth of a
share of the Company’s Series B Junior Participating Preferred Stock, par value $0.01 per share (the “Preferred
Stock”), at a price of $5.00 (the “Purchase Price”), subject to certain adjustments. The
description and terms of the Rights were set forth in the Rights Agreement, dated as of December 13, 2019 (the “Original
Rights Agreement”) by and between the Company and American Stock Transfer &Trust Company, LLC, as Rights Agent
(the “Rights Agent”).
On
November 12, 2020, the Board approved an amendment and restatement of the Original Rights Agreement (as amended and restated,
the “Amended and Restated Rights Agreement”) to effect certain changes to the Original Rights Agreement,
including (i) reducing the duration to a term of three years, subject to certain earlier expiration as described in more detail
below, and (ii) lowering the beneficial ownership threshold at which a person or group of persons becomes an Acquiring Person
(as defined below) to 4.95% or more of the Company’s outstanding shares of Common Stock, subject to certain exceptions.
The Amended and Restated Rights Agreement is designed to discourage (i) any person or group of persons from acquiring beneficial
ownership of more than 4.95% of the Company’s shares of Common Stock and (ii) any existing stockholder currently beneficially
holding 4.95% or more of the Company’s shares of Common Stock from acquiring additional shares of the Company’s Common
Stock.
The
purpose of the Amended and Restated Rights Agreement is to protect value by preserving the Company’s ability to utilize
its net operating losses and certain other tax attributes (collectively, the “Tax Benefits”) to offset
potential future income tax obligations. The Company’s ability to use its Tax Benefits would be substantially limited if
it experiences an “ownership change,” as such term is defined in Section 382 of the Internal Revenue Code of 1986,
as amended (the “Tax Code”). A corporation generally will experience an ownership change if the percentage
of the corporation’s stock owned by its “5-percent shareholders,” as defined in Section 382 of the Tax Code,
increases by more than 50 percentage points over their lowest ownership percentage within a rolling three-year period. The Amended
and Restated Rights Agreement is intended to reduce the likelihood the Company would experience an ownership change under Section
382 of the Tax Code.
The
Rights will not be exercisable until the earlier to occur of (i) the close of business on the tenth business day after a public
announcement or filing that a person or group of affiliated or associated persons has become an “Acquiring Person,”
which is defined as a person or group of affiliated or associated persons that, at any time after the date of the Amended and
Restated Rights Agreement, has acquired, or obtained the right to acquire, beneficial ownership of 4.95% or more of the Company’s
outstanding shares of Common Stock, subject to certain exceptions or (ii) the close of business on the tenth business day after
the commencement of, or announcement of an intention to commence, a tender offer or exchange offer the consummation of which would
result in any person becoming an Acquiring Person (the earlier of such dates being called the “Distribution Date”)
(provided, however, that if such tender or exchange offer is terminated prior to the occurrence of the Distribution
Date, then no Distribution Date shall occur as a result of such tender or exchange offer).
With
respect to certificates representing shares of Common Stock outstanding as of the Record Date, until the Distribution Date, the
Rights will be evidenced by such shares of Common Stock registered in the names of the holders thereof, and not by separate Rights
Certificates (as defined below). With respect to book entry shares of Common Stock outstanding as of the Record Date, until the
Distribution Date, the Rights will be evidenced by the balances indicated in the book entry account system of the transfer agent
for the Common Stock, registered in the names of the holders thereof. Until the earlier of the Distribution Date and the Expiration
Date (as defined below), the transfer of any shares of Common Stock outstanding on the Record Date will also constitute the transfer
of the Rights associated with such shares of Common Stock. As soon as practicable after the Distribution Date, separate certificates
evidencing the Rights (“Rights Certificates”) will be mailed to holders of record of the Common Stock
as of the close of business on the Distribution Date, and such Rights Certificates alone will evidence the Rights.
The
Rights, which are not exercisable until the Distribution Date, will expire at or prior to the earliest of (i) the close of business
on November 16, 2023; (ii) the time at which the Rights are redeemed pursuant to the Amended and Restated Rights Agreement;
(iii) the time at which the Rights are exchanged pursuant to the Amended and Restated Rights Agreement; (iv) the time at which
the Rights are terminated upon the occurrence of certain mergers or other transactions approved in advance by the Board; and (v)
the close of business on the date set by the Board following a determination by the Board that (x) the Amended and Restated Rights
Agreement is no longer necessary or desirable for the preservation of the Tax Benefits or (y) no Tax Benefits are available to
be carried forward or are otherwise available (the earliest of (i), (ii), (iii), (iv) and (v) is referred to as the “Expiration
Date”).
Each
share of Preferred Stock will be entitled, when, as and if declared, to a preferential per share quarterly dividend payment equal
to the greater of (i) $1.00 per share or (ii) an amount equal to 1,000 times the dividend declared per share of Common Stock.
Each share of Preferred Stock will entitle the holder thereof to 1,000 votes on all matters submitted to a vote of the stockholders
of the Company. In the event of any merger, consolidation or other transaction in which shares of Common Stock are converted or
exchanged, each share of Preferred Stock will be entitled to receive 1,000 times the amount received per one share of Common Stock.
The
Purchase Price payable, and the number of shares of Preferred Stock or other securities or property issuable, upon exercise of
the Rights are each subject to adjustment from time to time to prevent dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of the Preferred Stock, (ii) upon the grant to holders of the Preferred Stock of
certain rights or warrants to subscribe for or purchase Preferred Stock or convertible securities at less than the then-current
market price of the Preferred Stock or (iii) upon the distribution to holders of the Preferred Stock of evidences of indebtedness
or assets (excluding regular periodic cash dividends or dividends payable in Preferred Stock) or of subscription rights or warrants
(other than those referred to above). The number of outstanding Rights and the number of one one-thousandths of a share of Preferred
Stock issuable upon exercise of each Right are also subject to adjustment in the event of a stock split, reverse stock split,
stock dividends and other similar transactions involving the Common Stock.
In
the event that any person or group of affiliated or associated persons becomes an Acquiring Person, each holder of a Right, other
than the Rights beneficially owned by the Acquiring Person, affiliates and associates of the Acquiring Person and certain transferees
thereof (which will thereupon become null and void), will thereafter have the right to receive upon exercise of a Right that number
of shares of Common Stock having a market value of two times the Purchase Price.
In
the event that, after a person or a group of affiliated or associated persons has become an Acquiring Person, the Company is acquired
in a merger or other business combination transaction, or 50% or more of the Company’s assets or earning power are sold,
proper provision will be made so that each holder of a Right will thereafter have the right to receive, upon the exercise thereof
at the then-current purchase price of the Right, that number of shares of common stock of the acquiring company having a market
value at the time of that transaction equal to two times the Purchase Price.
With
certain exceptions, no adjustment in the Purchase Price will be required unless such adjustment would require an increase or decrease
of at least one percent (1%) in the Purchase Price. No fractional shares of Preferred Stock will be issued (other than fractions
which are integral multiples of one one-thousandth of a share of Preferred Stock, which may, at the election of the Company, be
evidenced by depositary receipts) and, in lieu thereof, an adjustment in cash will be made based on the market price of the Preferred
Stock on the trading day immediately prior to the date of exercise.
At
any time after any person or group of affiliated or associated persons becomes an Acquiring Person and prior to the acquisition
of beneficial ownership by such Acquiring Person of 50% or more of the outstanding shares of Common Stock, the Board, at its option,
may exchange each Right (other than Rights owned by such person or group of affiliated or associated persons which will have become
void), in whole or in part, at an exchange ratio of one share of Common Stock per outstanding Right (subject to adjustment).
In
connection with any exercise or exchange of the Rights, no holder of a Right will be entitled to receive shares of Common Stock
if receipt of such shares would result in such holder, together with such holder’s affiliates and associates, beneficially
owning more than 4.95% of the then-outstanding Common Stock (such shares, the “Excess Shares”) and the
Board determines that such holder’s receipt of Excess Shares would jeopardize or endanger the value or availability of the
Tax Benefits or the Board otherwise determines that such holder’s receipt of Excess Shares is not in the best interests
of the Company. In lieu of such Excess Shares, such holder will only be entitled to receive cash or a note or other evidence of
indebtedness with a principal amount equal to the then-current market price of the Common Stock multiplied by the number of Excess
Shares that would otherwise have been issuable.
At
any time before the Distribution Date, the Board may redeem the Rights in whole, but not in part, at a price of $0.001 per Right
(subject to certain adjustments) (the “Redemption Price”). The redemption of the Rights may be made
effective at such time, on such basis and with such conditions as the Board in its sole discretion may establish.
Immediately
upon the action of the Board electing to redeem or exchange the Rights, the Company shall make a public announcement thereof,
and upon such election, the right to exercise the Rights will terminate and the only right of the holders of Rights will be to
receive the Redemption Price.
Until
a Right is exercised or exchanged, the holder thereof, as such, will have no rights as a stockholder of the Company, including,
without limitation, the right to vote or to receive dividends.
The
Board may amend or supplement the Amended and Restated Rights Agreement without the approval of any holders of Rights, including,
without limitation, in order to (a) cure any ambiguity, (b) correct inconsistent provisions, (c) alter time period provisions,
including the Expiration Date, or (d) make additional changes to the Amended and Restated Rights Agreement that the Board deems
necessary or desirable. However, from and after the date any person or group of affiliated or associated persons becomes an Acquiring
Person, the Amended and Restated Rights Agreement may not be supplemented or amended in any manner that would adversely affect
the interests of the holders of Rights.
The
Amended and Restated Rights Agreement is attached hereto as Exhibit 4.1 and is incorporated herein by reference. The description
of the Amended and Restated Rights Agreement herein does not purport to be complete and is qualified in its entirety by reference
to Exhibit 4.1.
Item
2. Exhibits.
SIGNATURE
Pursuant
to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereto duly authorized.
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CYTRX
CORPORATION
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Date:
November 17, 2020
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/s/
John Y. Caloz
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John
Y. Caloz
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Chief
Financial Officer
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